Gurung v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1425
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gurung v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1425
File number(s): SYG 2268 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 19 December 2024 Catchwords: MIGRATION – application for judicial review of the Administrative Appeal Tribunal’s (Tribunal) decision – whether the Tribunal’s decision was unreasonable – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li [2013] HCA 18
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 2 December 2024 Place: Sydney Counsel for the applicant: Mr J R Young Solicitor for the applicant: Shamser Thapa & Associates Counsel for the first respondent: Ms K Morris Solicitor for the first respondent: Sparke Helmore Lawyers Counsel for the second respondent: Submitting appearance, save as to costs ORDERS
SYG 2268 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BINA GURUNG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $6,500.
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 MCCABE:
Ms Bina Gurung applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the visa) in March 2019 after she had entered Australia as a dependent of her then partner. The visa application was rejected by the minister's delegate (the delegate) in May 2019. The Administrative Appeals Tribunal (the Tribunal) affirmed the rejection decision because it was not satisfied Ms Gurung was able to satisfy the so-called 'Genuine Temporary Entrant' requirement in cl 500.212 to Schedule Two of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant has now sought judicial review of the Tribunal's decision. The application was filed pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). At the hearing, I was told there was one substantive ground of review: Ms Gurung argued the Tribunal's decision was legally unreasonable. In making that argument, Ms Gurung pointed to supposed flaws in the Tribunal's fact-finding process that are said to amount to a material jurisdictional error. Ms Gurung asked the Court to exercise its discretion to quash the decision and return the application for a visa to the Tribunal for reconsideration according to law.
I am not satisfied the Tribunal's decision is affected by material jurisdictional error. The application for judicial review must therefore be dismissed. I explain my reasons below.
BACKGROUND TO THE APPLICATION
Ms Gurung is a citizen of Nepal. She first arrived in Australia in October 2017. She was accompanied by her partner at the time. He held a student visa and Ms Gurung was his dependent. Ms Gurung broke up with her partner after she arrived.
On 12 March 2019, Mr Gurung applied for the student visa which is at the heart of these proceedings. The application was lodged around the time her existing visa was due to expire. In her student visa application, Ms Gurung said she wanted to complete an English language course and then enrol in (first) a Diploma and (thereafter) an Advanced Diploma of Leadership and Management with a view to obtaining a management position when she returned to Nepal. This sequence of courses would run for several years during which she would be entitled to remain in Australia.
The delegate decided to refuse the application. The delegate's decision is dated 23 May 2019.
Mr Gurung lodged an application for review with the Tribunal on 12 June 2019. During the pre-hearing process, she was invited to provide additional information about her case pursuant to s 359(2) of the Act. She completed and returned a questionnaire (reproduced in the court book at pp 54ff) and provided other documents including confirmations of enrolment. In the questionnaire, Ms Gurung confirmed she did not complete (and was no longer enrolled in) the courses that were listed in her original application. She informed the Tribunal she had instead recently enrolled in:
·a Certificate IV in Commercial Cookery that would commence on 6 April 2020 and be completed by 12 September 2021; and
·a Diploma of Hospitality Management commencing on 20 September 2021 that would be completed on 10 April 2022.
Mr Gurung also reported she had been working as a crew member at a McDonalds franchise since May 2019. She confirmed she had not left Australia since arriving in this country in 2017.
THE TRIBUNAL'S DECISION
The Tribunal decided the application without a hearing after Ms Gurung (who was assisted by a migration agent at the time) consented to that course. On 28 August 2020, the Tribunal affirmed the decision not to grant the visa. A copy of the Tribunal's decision and reasons are reproduced in the court book at pp 75ff.
At the outset of its reasons, the Tribunal sets out the text of cl 500.212(a)-(c) of the Regulations. The reasons also refer to and summarise the relevant passages of Direction 69 (the Direction), a determination issued by the minister. The Direction says the Tribunal must have regard to certain matters when considering the criterion in cl 500.212(a). The Tribunal then turned to evaluate the information provided by the applicant having regard to the considerations proposed in the Direction.
Clause 9(a) of Direction 69 requires the Tribunal to consider "whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. …". Presumably with that question in mind, the Tribunal notes Ms Gurung was asked in the questionnaire (issued in accordance with s 359(2) of the Act) why she had not studied the courses in question in Nepal. The Tribunal recorded Ms Gurung's response to that question in its reasons (at [14]):
As I was already in Australia, I realized that studying abroad would bring some new experience of learning to all the overseas student like me. I have chosen to study in Australia as it is one of the top destinations for international student of the world and the degree of Australian universities is more globally accepted in comparison to that of Nepal's. Also it is English speaking country with multicultural society with quality education. There are many colleges and universities which offer Hospitality course in Nepal, however they are not fully focused on practical based knowledge. Australia is better destinations for the students because of certain reasons such as low crime rates compared to other countries like USA. Similarly UK has a very challenging immigration rules and there is no tuition fee refund guarantee if the university shuts down, also Nepal and Australia has good diplomatic relation. [sic.]
The Tribunal found (at [15]) Ms Gurung did not adequately explain why she could not study the courses in question in Nepal. The Tribunal added:
…the applicant does not state that she looked into studying the United Stated or the United Kingdom, for example, therefore the references she made to other countries is not relevant for her application. Taking all of these matters into consideration, the Tribunal does not believe the application has a sound reason for not studying the proposed courses in her home country. [sic]
In paragraph [16] of the reasons, the Tribunal turned its attention to the enquiry prompted by cl 9(b) of the Direction - namely the extent of Ms Gurung's personal ties to Nepal (such as family, community and employment ties) and whether those circumstances would provide a significant incentive for her to return there once she concluded her studies. The Tribunal noted Ms Gurung's parents and siblings remained in Nepal, and it acknowledged Ms Gurung said she communicated with them on a regular basis. But the Tribunal also noted the applicant had not returned home to visit her family since she had arrived in Australia, even after the breakdown of her relationship with her partner. The Tribunal concluded:
… This is not the behaviour of someone who has strong ties to their home country. Rather, it demonstrates that her family ties in her home country are not significant enough represent a strong incentive to return home.
In paragraph [17] of its reasons, the Tribunal addressed the applicant's economic circumstances in Nepal. That enquiry is dictated by clause 9(c) of the Direction which directs attention to:
… economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant s circumstances relative to the home country and to Australia.
The Tribunal noted:
·Ms Gurung did not work when she lived in Nepal although she has worked in Australia, and
·her family has provided some support for her while she had lived in this country.
The Tribunal said it had not been provided with other information about the applicant's economic circumstances or those of her family. Deploying an unfortunate flurry of double negatives, the Tribunal concluded (at [17]):
… Based on the lack of information available, the Tribunal cannot be satisfied that the application economic circumstances are a not significant reason for her not to return to her home country.
The Tribunal then addressed the considerations referred to in cl 9(d) of the Direction (which deals with military service commitments) and cl 9(e) (which deals with political and civil unrest in the applicant's home country). The Tribunal concluded (at [18]) neither of these matters was at issue in this case.
Having addressed itself to the matters in cl 9 of the Direction, the Tribunal turned its attention to the applicant's potential circumstances in Australia. At paragraph [19], the Tribunal noted (again) that Ms Gurung had arrived with her partner but that relationship had broken down. In paragraph [20], the Tribunal commented on the limited information before it regarding the applicant's living arrangements and expenses although it observed Ms Gurung had been undertaking paid employment at McDonalds since February 2018.
The reference to working at McDonalds provided a segue for discussing Ms Gurung's emerging preference for enrolling in a cooking course. The Tribunal observed at [21]:
The applicant now claims that she has always been interested in cooking. However, the Tribunal notes that this was not her first choice when it came to study in Australia. She has provided no satisfactory explanation as to why she enrolled in the two leadership and management courses and not complete them. Her only explanation in her questionnaire where she said, "I was previously on a secondary student visa. Later I decided to go into student visa as I wanted to have Australian qualification. In order to do my intended hospitality course, I was advised to improve my English. Therefore I joined my English course. However my visa was refused on 23 May 2019. I did not continue with this course as I was advised that I can go into diploma directly if I can get required English score. Therefore I focused in test preparation”. [sic]
The Tribunal was plainly troubled by this evidence. It remarked (at [22]):
This statement is problematic for the applicant for a few reasons. First, there is no evidence that the applicant was on a secondary student visa. She was in Australia as a dependant to her partner's student visa. Second, at the time of the delegate's decision she was enrolled in an English course and then subsequently the two leadership and management courses. She was not enrolled in the proposed courses at this time. Third, it does not explain why she did not enrol in the proposed courses until just under a year after the delegate's decision refusing her application for a student visa. The Tribunal does not consider this explanation about the period of time she was not enrolled to be adequate. Nor does it consider that it explains why she changed from leadership and management to the proposed courses.
The Tribunal then returned to the significance of Ms Gurung's relationship breakdown. As we shall see, the applicant's counsel argued the repeated references to the relationship breakdown became something of a preoccupation of the Tribunal that was unreasonable. The Tribunal observed (at [23]):
The Tribunal also notes that the applicant was previously on a dependant to her former spouse. They have now separated. Rather than returning to her home country upon the breakdown of her marriage, the applicant has instead applied for a student visa in her own right. A breakdown in one's marriage or relationship would be a significant event in one's life. The fact that the applicant did not return to her home country and instead applied for a student visa where she had not previously studied suggests that the applicant is motivated to maintain ongoing residence in Australia.
At [24] of its reasons the Tribunal recorded its finding that:
·the applicant's circumstances in Australia; and
·the lack of an adequate explanation for the change in courses:
suggested "the applicant is using the student visa to maintain ongoing residence in Australia and in doing so is attempting to circumvent the intentions of the migration program."
The Tribunal then turned its attention to the value of the proposed course to the applicant's future. That consideration is referred to in cl 12 of the Direction. The Tribunal acknowledged the proposed studies were at a level that was consistent with Ms Gurung's previous educational attainment. The Tribunal then contrasted the applicant's explanation for pursuing courses in leadership in management (which was contained in the visa application) and the revelation of her life-long desire to study cooking and hospitality (contained in the questionnaire provided to the Tribunal). The Tribunal thought it odd that the applicant would enrol in leadership and management courses if her real interest lay elsewhere: at [28].
In paragraph [29], the Tribunal went on:
While the proposed courses could assist the applicant in obtaining employment in the hospitality industry in her home country and would be relevant to this type of work, the Tribunal considers that her change in interest from working in management to cooking and hospitality in a relatively short period of time suggests that the applicant is motivated in studying these courses as it will allow her to continue residing in Australia. It is noted that the applicant did not work in Nepal before coming to Australia. Since arriving here, she has worked at McDonalds. As mentioned above, the Tribunal considers if she were really interested in cooking and the hospitality industry, she would be working in a restaurant or cafe environment rather than the fast food industry. The Tribunal has had regard to the applicant's evidence about remuneration she can expect to earn, however based on the findings above, the Tribunal does not consider the proposed courses will assist her by increasing her remuneration in her home country or third country, as it considers it likely that the applicant wants to continue residing in Australia.
The Tribunal then turned to consider Ms Gurung's migration history, which is referred to in cl 13 and 14 of the Direction. After noting in the applicant's favour that she had never been refused a visa, the Tribunal returned to the fact Ms Gurung had not returned home in the wake of her relationship breakdown. The Tribunal observed (at [30]):
…since arriving in Australia in October 2017, the applicant has not left Australia once in the last nearly three years. She is now proposing to stay for a further nearly two years. This is a significant amount of time to spend onshore in Australia without leaving. As mentioned above, the applicant was previously on a dependant to her former spouse. They have now separated. Rather than returning to her home country upon the breakdown of her marriage, the applicant has instead applied for a student visa in her own right. A breakdown in one's marriage or relationship would be a significant event in one's life. The fact that the applicant did not return to her home country and instead applied for a student visa where she had not previously studied suggests that the applicant is motivated to maintain ongoing residence in Australia.
The Tribunal then concluded "[o]n the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily…": at [32]. That meant Ms Gurung could not satisfy the criteria in cl 500.212(a) of the Regulations. As a result, she could not be regarded as a genuine applicant for entry as a student: at [32]-[33].
THE GROUNDS OF REVIEW
Ms Gurung's application for review identified six grounds. Mr Young, the applicant's counsel, confirmed at the hearing Ms Gurung was pressing ground three, and he expressly abandoned grounds one and two. Ground four, five and six appear to be subsumed into ground three. Ground three contends the decision is affected by material jurisdictional error because it was "irrational, unreasonable or devoid of any intellectual process". The written and oral submissions on behalf of the applicant focused on criticisms of the Tribunal's fact-finding process.
The courts have expounded on legal unreasonableness in cases like Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS). The decision in SZMDS is particularly relevant in a case like the present where the focus is on the logical coherence and integrity of the fact-finding and reasoning process. In SZMDS, Crennan and Bell JJ explained (at [135]):
… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
A final decision that is reached by an illogical or irrational process will be legally unreasonable, as Hayne, Kiefel and Bell JJ explained in Li at [72]:
… Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
It is well-understood that "unreasonableness in the final result" would amount to a material jurisdictional error such that the decision is treated at law as if it were no decision at all: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [6] per Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ.
REASONABLENESS OF THE TRIBUNAL'S REASONING AND DECISION
I turn to the specific criticisms that were levelled at the Tribunal's decision-making which are said to amount to material jurisdictional error.
The applicant’s written submissions filed 29 July 2024 argued (at [10]) the Tribunal's "assessment under 9a of the Direction was not based upon the evidence and was entirely unreasonable". Mr Young confirmed that was a reference to paragraph [15] of the reasons for decision (quoted above) where the Tribunal discussed whether the applicant had given a proper explanation for enrolling in a course of study in Australia rather than studying in Nepal.
At the hearing, Mr Young zeroed in on the Tribunal's observation in [15] that "the applicant does not state that she looked into studying the United Stated or the United Kingdom…" [sic]. He said that observation was problematic because the applicant did give reasons for not studying in the United States or the United Kingdom in a passage that the Tribunal quoted from the questionnaire. I note Ms Gurung had also mentioned the practical focus of the Australian courses as a positive reason for studying in Australia.
The Tribunal's reference to the applicant's reasons for preferring Australia to rival destinations is ultimately beside the point. A fair reading of the Tribunal's reasons in this paragraph suggests it was focused on why the applicant did not study the courses in question in Nepal, which was the enquiry required under clause 9(a) of the Direction. Mr Young argued the Tribunal's reasoning was still defective and unreasonable because Ms Gurung had offered up a rational reason for wanting to study in Australia rather than enrol in a course in Nepal. But - once again - a fair reading of the Tribunal's reasons at [15] makes clear it evaluated Ms Gurung's assertion about the relative merits of the courses but found her comparison wanting because it was unsupported by any evidence of research into the structure or curricula of courses offered in Nepal. The Tribunal was entitled to decide it was not persuaded by the applicant's assertion about the relative quality of the educational offerings in those circumstances: it was not acting illogically or irrationally when it made its finding.
Mr Young also criticised the Tribunal's finding (recorded in paragraph [16] of the reasons) regarding the strength of the applicant's personal ties to Nepal. The enquiry as to her personal ties was prompted by cl 9(b) of the Direction. Mr Young was particularly troubled by the significance which the Tribunal attached to the fact the applicant did not return home to visit her family after the breakdown of her relationship with her partner. (As I have already noted, the Tribunal returned to Ms Gurung's behaviour in the wake of the relationship breakdown several times in its reasons: see [19], [23] and [30]). The applicant’s written submissions said the Tribunal's reliance on the applicant's post-breakdown behaviour when evaluating her family ties was "so unreasonable and contrary to human experience that no reasonable decision maker could so reason": at [11]. Mr Young said the Tribunal's finding was premised on a stereotype of how someone who experienced a relationship breakdown should behave. The written submissions went on (at [12]-[13]) to argue the Tribunal was being "arbitrary and capricious" because it concluded the applicant would wish to leave the country as a consequence of a relationship breakdown.
The Tribunal was properly focused on the strength of the applicant's ties to Nepal. Most of her family remained there; the Tribunal was entitled to consider the fact Ms Gurung did not return to Nepal to visit her family as an indicator of the strength of those ties. The Tribunal was not acting illogically, irrationally or unreasonably when it expressed surprise that Ms Gurung did not visit her family to seek comfort in the wake of her relationship breakdown. The Tribunal noted Ms Gurung's (former) partner was the only family member in Australia; in the absence of that support in Australia, ‘human experience might suggest a visit home would be more likely if the ties in Nepal were strong. Whether another Tribunal member would have attached as much weight to her behaviour following the relationship breakdown is not the question: subject to the requirement of reasonableness, the Tribunal is entitled to make its own assessment of the significance of this and other relevant matters. The Tribunal did not act unreasonably when it looked at the applicant's behaviour and concluded (at [16]):
This is not the behaviour of someone who has strong ties to their home country. Rather, it demonstrates that her family ties in her home country are not significant enough represent [sic] a strong incentive to return home.
The applicant's written submissions note the Tribunal also mentioned Ms Gurung's behaviour in the wake of the relationship breakdown when the Tribunal discussed the motive and timing of her application for a student visa: reasons for decision at [19]. Mr Young argued there was nothing wrong with the applicant taking the opportunity to apply to study in those circumstances. He asserted in written submissions (at [15]):
It was entirely wrong and unreasonable for the AAT to assume that the end of her relationship precluded her from making application to be a student. It is arbitrary and capricious. It borders on a denial of human rights and dignity.
The obvious answer to this argument is that the Tribunal did not find or suggest at [19] of its reasons that Ms Gurung was precluded from applying for a student visa because of her relationship breakdown. The Tribunal was entitled to look to the applicant's personal circumstances in this country, and a change in those circumstances was clearly relevant. The applicant's claim in written submissions (at [16]) that the Tribunal adopted inflexible reasoning to the effect that "an end in a relationship in Australia meant inevitably that the only option was for the applicant to return to Nepal" does not accurately characterise what the Tribunal said in its reasons at [19].
I acknowledge the Tribunal returned to the relationship breakdown at [23] of its reasons, and again at [30]. The Tribunal found the applicant's decision to persevere in Australia on her own following the breakdown reflected a desire to live and remain here, not a genuine desire to study before ultimately returning to Nepal. That reasoning is not illogical or irrational in circumstances where the Tribunal was required under the Direction to consider Ms Gurung's potential circumstances in Australia when deciding whether "the applicant intends genuinely to stay in Australia temporarily": cl 500.212(a) of the Regulations.
Mr Young also criticised the Tribunal's treatment of Ms Gurung's work as a crew member at a McDonald's franchise. At [29] of its reasons, the Tribunal expressed its doubts over the value of work at McDonalds if the applicant were genuinely interested in a career in cooking. If the applicant were committed to a career in cooking, it reasoned, the applicant would have taken work at a café or restaurant rather than a fast-food outlet. Mr Young argued the Tribunal should not have drawn that inference because there were other reasons for working at McDonalds apart from gaining experience in cookery - most obviously, because work at McDonalds provided a source of income for the applicant while she lived and studied. Mr Young said the Tribunal's approach reflected 'rigid assessment stereotyping'.
The applicant argued that she had long harboured a desire to become a cook. The Tribunal was trying to establish whether there was evidence in support of that claim apart from the (recent) applicant's claim given she had originally applied to study something else. The Tribunal was plainly and explicitly concerned that the applicant was tailoring her choice of course with a view to remaining in Australia, rather than to improve her work prospects upon return to Nepal. The focus on the applicant's work at McDonalds was raised in that context. It was not irrational or illogical for the Tribunal to look to that conduct when considering the question it was required to answer. While it is possible a different decision-maker would not have taken such a dim view of the value of work experience at McDonalds, I am not satisfied the Tribunal was acting irrationally or illogically, or that it somehow refused to engage with the evidence because of its fixed view of the value of that work. It was merely pointing out the dearth of evidence in support of the applicant's claim that she had chosen the courses in question because of a long-standing interest in cooking.
I note Mr Young also criticised the Tribunal's choice of language at [22] of its reasons where it discussed Ms Gurung's answer in the questionnaire. The applicant had described herself as being "previously on a secondary student visa". The Tribunal took issue with that claim, noting the applicant "was in Australia as a dependent to her partner's student visa". As I understand Mr Young's argument, he was saying the Tribunal was making a distinction without a difference. Ms Morris, counsel for the minister, pointed out the Tribunal was technically correct in its description of the applicant's former visa. It is difficult to understand how the Tribunal's reasons can be criticised in those circumstances.
PREJUDGMENT OR BIAS?
Mr Young confirmed the applicant was relying on the third ground of review which contended the Tribunal's decision was affected by material jurisdictional error on account of unreasonableness. As I have explained, it is necessary to identify with some precision what it is about the reasoning or the outcome that is unreasonable. The third ground focuses on the supposed irrationality or illogicality of the reasoning. I have dealt with the various contentions to that effect above, and I have concluded they do not withstand scrutiny. While the Tribunal's decision has its quirks, the Tribunal's reasoning does not appear irrational or illogical when one reads the reasons fairly and without an eye attuned to error.
I should note the written submissions on behalf of the applicant make more general and emotive claims about the Tribunal behaving in a way that is variously described as "arbitrary and capricious", "wrong and unreasonable", and "so unreasonable and contrary to human experience that no decision-maker could so reason". Extravagant expressions of that nature are unhelpful.
I also note the written submissions expressly refer to the Tribunal prejudging at least one issue. To that extent, the applicant was arguing she had been denied procedural fairness.
The applicant's written submissions noted (at [26]) the Tribunal had observed (at [29] of its reasons) the study of the cookery courses might assist the applicant if she returned to Nepal - but the Tribunal went on to conclude that was not Ms Gurung's motivation because it was satisfied Ms Gurung was seeking to stay in Australia. Mr Young said that language confirmed the Tribunal was approaching the evidence having already made up its mind that the applicant was not a genuine temporary entrant. If one has regard to the reasons as a whole, however, it is plain the Tribunal formed the view the applicant was not seeking the visa with a view to remaining in this country temporarily having regard to a range of matters. In the disputed passage at [29] of its reasons, the Tribunal noted the evidence as to the utility of the course might otherwise weigh in favour of a different finding but explained it was not persuaded. I am not satisfied the applicant was denied procedural fairness, to the extent that was argued.
CONCLUSION
The applicant has not established the Tribunal's decision was unreasonable and that it was otherwise affected by material jurisdictional error. The application for judicial review must therefore be dismissed.
I discussed the question of costs at the conclusion of the hearing. Ms Morris said the minister would seek a fixed costs order in the amount of $6500 in the event the applicant was unsuccessful. She pointed out that amount was lower than the amount provided for in the relevant scale. Mr Young agreed that there was no issue as to costs if his client was unsuccessful. He did not take objection to the amount suggested by Ms Morris.
I see no reason why costs should not be awarded in the circumstances, and the amount sought by the minister is reasonable.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 19 December 2024
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