Maharjan v Minister for Immigration and Citizenship

Case •

[2025] FedCFamC2G 1658

•

10 October 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Maharjan v Minister for Immigration and Citizenship [2025] FedCFamC2G 1658

File number(s): SYG 1655 of 2020
Judgment of: JUDGE DOUST
Date of judgment: 10 October 2025
Catchwords: MIGRATION – Application for student visa – primary applicant citizen of Nepal – Tribunal determined applicant did not satisfy criterion in cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide an interpreter – applicant did not seek assistance of interpreter – applicant did not demonstrate any subversion of the review – Tribunal did not fail to give proper, genuine and realistic consideration to application – no jurisdictional error – application dismissed.
Legislation:

Migration Act 1958 (Cth) ss 338, 360, 363, 425, 476, 499

Migration Regulations 1994 (Cth) cl 500.212 of sch 2
Cases cited:

CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 513; [2019] FCA 2190

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12

Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126

Tobasi v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 322; [2002] FCA 1050
Division: Division 2 General Federal Law
Number of paragraphs: 70
Date of hearing: 7 July 2025
Place: Sydney
The Applicants: In person, with the assistance of a Nepalese interpreter
Solicitor for the First Respondent: Mr C Warren, Sparke Helmore Lawyers
The Second Respondent: Submitting appearance, save as to costs

ORDERS

SYG 1655 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

NIRMALA MAHARJAN

First Applicant

SUMAN MAHARJAN

Second Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE DOUST

DATE OF ORDER:

10 OCTOBER 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicants are to pay the first respondent’s costs.

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

REASONS FOR JUDGMENT

JUDGE DOUST:

INTRODUCTION

  1. The first applicant (the applicant), born 19 January 1987, is a citizen of Nepal who applied for a Student (Temporary) (class TU) (subclass 500) visa (the visa) on 11 November 2017. The second applicant, born 8 June 1983 and the applicant’s husband, was included in the visa application as a member of the applicant’s family unit.  The second applicant’s entitlement to a visa was contingent on the applicant’s satisfaction of the relevant criteria, and accordingly, his claim in the present matter is coterminous with that of the applicant.

  2. On 7 February 2018, a delegate of the (then) Minister for Immigration and Border Protection (now Minister for Immigration and Citizenship (Minister)) refused the visa on the basis that the applicant did not meet the relevant criteria for the grant of the visa (the primary decision).

  3. On 28 February 2018, the applicant applied to the (then) Administrative Appeals Tribunal (now Administrative Review Tribunal (Tribunal)) for review of the primary decision. On 9 June 2020, the Tribunal affirmed the primary decision not to grant the applicant the visa (the Tribunal’s decision).

  4. On 9 July 2020, the applicant lodged the current application with this Court, seeking orders against the Minister and the Tribunal under s 476 of the Migration Act 1958 (Cth) (the Act) in respect of the Tribunal’s decision (originating application).

  5. In order for the Court to grant the relief sought by the applicant, the Court is required to be satisfied that the Tribunal’s decision involved jurisdictional error.

  6. For the reasons that follow, the Tribunal’s decision did not involve jurisdictional error and the application must be dismissed with costs.

    DOCUMENTS

  7. The Court received into evidence, without objection, the affidavit of the applicant dated 8 July 2020 which annexed a copy of the Tribunal’s decision record. The Court also accepted into evidence the court book prepared by the first respondent and filed 25 September 2020 which contained documents from the Department of Home Affairs (Department) and the Tribunal concerning the applicant’s visa application and application for review to the Tribunal.

  8. The Court made orders on 26 May 2025 providing the parties with an opportunity to file any amended application (in the case of the applicant), any evidence to be relied upon, a written outline of submissions, and a list of authorities. In the event, the applicant did not file any amended application, evidence, submissions, or authorities. The first respondent filed submissions and authorities.

    OPERATIVE STATUTORY PROVISIONS

    Visa Criteria

  9. The matter in issue in the application for review before the Tribunal was whether the applicant satisfied the requirements of cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) (Regulations). That clause provided as follows:

    500.212

    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; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)       of any other relevant matter.

    Provisions governing Tribunal Review

  10. The primary decision to refuse to grant the applicant the visa was a ‘Part 5 – Reviewable Decision’ within the meaning of s 338 of the Act. As such, the provisions in pt 5 of the Act governed the Tribunal’s review of that decision.

  11. Amongst the provisions in pt 5 of the Act is s 360, which provided, at all relevant times, as follows:

    360     Tribunal must invite applicant to appear

    (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    (2)      Subsection (1) does not apply if:

    (a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

    (b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c)       subsection 359C(1) or (2) applies to the applicant.

    (3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

  12. In addition, s 363 of the Act provided, at all relevant times, as follows:

    363     Powers of the Tribunal etc.

    (1)      For the purpose of the review of a decision, the Tribunal may:

    (a)       take evidence on oath or affirmation;

    (b)       adjourn the review from time to time;

    (c)subject to section 378, give information to the applicant and to the Secretary; or

    (d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

    (2)The Tribunal may combine the reviews of 2 or more Part 5‑reviewable decisions made in respect of the same person.

    (3)      Subject to subsection (4), the Tribunal may, for the purposes of a review:

    (a)       summon a person to appear before the Tribunal to give evidence;

    (b)summon a person to produce to the Tribunal the documents or things referred to in the summons;

    (c)require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and

    (d)       administer an oath or affirmation to a person so appearing.

    (4)The Tribunal must not, for the purposes of a review that is being conducted in Australia, summon a person under paragraph (3)(a) or (b) unless the person is in Australia.

    ISSUES FOR DETERMINATION

  13. When it is considering an application under s 476 of the Act, the Court’s role is to review the Tribunal’s exercise of power for jurisdictional error.

  14. Jurisdictional error describes a failure, by a person or body given authority under a statute to exercise a power, to comply with a condition attaching to the exercise of a statutory power, where that failure is of such a character as to warrant the conclusion that the purported decision or purported exercise of power lacks the authority of the statute. The categories of jurisdictional error are not closed.  Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; fails to observe some applicable requirement of procedural fairness; and in some cases, makes an erroneous finding or reaches a mistaken conclusion: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [2]-[3].

  15. In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: ibid [7].

  16. The originating application contained the following three grounds (reproduced without alteration):

    1. The Tribunal erred in law by eliciting evidence from the applicant who is of a non English speaking background without the assistance of an interpreter

    Particulars

    The applicant was self represented at the time of hearing. The applicant is a Nepalese citizen and her mother tongue is Nepalese . The applicant came to Australia in 2017 and she has a very limited knowledge of English. Due to COVID the interview as done over phone. As the interview proceeded the applicant found it difficult to understand the questions and being self represented she was not aware of her rights to seek an interpreter but proceeded to answer the questions even though she found it difficult to comprehend the questions raised by the Tribunal. This affected the fairness in the decision making process and her ability to correctly understand and answer the questions involved . The procedure adopted violated the principles laid down by Federal Court of Australia in SZTFQ v Minister for immigration and Border Protection 2017) FCA 562 (23 May 2017).

    2. The Tribunal erred in law by failing to give the matter "proper, genuine and realistic consideration" to the evidence adduced or to "engage in an active intellectual process" and "by asking a wrong question of law". This resulted in miscarriage of justice.

    Particulars

    The primary applicant came to Australia only in 2017 and applied for study in November 2017 in the field (Child care) she had worked in Nepal . The Tribunal failed to consider that the applicant has made good academic progress and has completed the courses on time . The Tribunal gave overwhelming weight to the fact that her spouse has stayed in Australia for more than 10 years. It is submitted that the Tribunal failed to appreciate the evidence in an intelligible manner after providing proper consideration as required in Federal Court Judgement in CBNI8 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190 (23 December 2019) Paragraph 83

    3. The Tribunal erred in law by failing to consider all the applicant's evidence in relation to the application and this resulted in miscarriage of justice .

    Particulars

    The Tribunal having received the evidence of the applicant, has failed to consider all such evidence while stating the reasons for the affirmation of the refusal to approve the 500 student visa application . The failure to consider the evidence of the applicant amounts to jurisdictional error.

  17. These grounds are each considered below, following a recitation of the history of the matter.

    BACKGROUND AND RELEVANT FACTS

    Visa history

  18. The applicant’s Australian visa history was outlined both in the primary decision record of the delegate, and in the Tribunal’s decision. The applicant did not contest that history.

  19. The applicant first arrived in Australia in February 2017 as a dependant of the second applicant, who held a Graduate Work Stream (Subsequent Entrant) (VC 485) visa (the dependant visa). Since her entry to Australia in February 2017, and as at the time of the primary decision, the applicant had not travelled outside Australia.

  20. On 11 November 2017, one day prior to the expiry of the dependant visa, the applicant applied for the visa the subject of this proceeding. On 13 November 2017, two days after the visa application, the applicant enrolled in a Certificate III in Early Childhood Education and Care and a Diploma of Early Childhood Education and Care. If granted, the visa would have extended the applicant’s stay in Australia until April 2020.

    The Primary Decision

  21. On 7 February 2018, the Minister’s delegate wrote to the applicant informing her that her application for the visa had been refused (refusal letter).

  22. The decision record attached with the refusal letter recorded the delegate’s view that cl 500.212 of sch 2 of the Regulations was not satisfied.

  23. The delegate referred to ‘Ministerial Direction No 69 – Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications’ (the Ministerial Direction), which set out the factors that must be taken into account when assessing the criterion in cl 500.212 of sch 2 of the Regulations. The delegate noted that the Ministerial Direction was made in accordance with s 499 of the Act, and set out a summary of factors to be considered arising from the Ministerial Direction, which relevantly included:

    (1)The applicant’s circumstances in their home country;

    (2)The applicant’s potential circumstances in Australia;

    (3)The value of the course to the applicant’s future; and

    (4)The applicant’s immigration history.

  24. The delegate then went on to consider those factors in the applicant’s case.

  25. The delegate was first concerned that the applicant’s intention to live in Australia was motivated by factors other than study, owing to the fact that the applicant had not provided any evidence of ties to her home country to show that she had a significant incentive to return home. The fact that the applicant was married and was living with her spouse in Australia, and the disparity in economic circumstances between Nepal and Australia meant the delegate was not satisfied there was significant incentive for the applicant to return to her home country upon completion of her studies in Australia.

  26. The delegate placed weight on the applicant’s potential circumstances in Australia and noted that the second applicant had, at that point, been in Australia for a period of over 10 years, having been the holder of three Student (VET Sector) visas, three Student (Higher Education Sector) visas, and a Graduate Work Stream visa thereafter. The delegate formed the view that, based on the available information, the applicant lodged the visa application to extend her own and the second applicant’s stay in Australia.

  27. The delegate was not satisfied that the applicant had demonstrated the value of the proposed course/s to her future. Notably, the applicant stated that she had previously studied a short course in the same field, being Early Childhood Education, in Nepal in 2015. However, aside from a brief letter of completion of that short course, the applicant had not provided any evidence of further study or employment in this field since then. The delegate expressed serious concern about the value of the proposed course to the applicant’s future, noting that the applicant had not demonstrated a clear and substantial improvement arising from the proposed study which would outweigh the cost and time the course in Australia would require.

  28. The delegate noted that the applicant applied for the visa one day prior to the expiry of the dependant visa, and enrolled in the proposed course of study two days later. That indicated to the delegate that the applicant appeared to be commencing study to secure a visa, rather than due to genuine interest in this area of study.

  29. The delegate was not ultimately satisfied that the applicant intended to remain temporarily as a genuine entrant for study in Australia and refused the visa application.

    The Review by the Tribunal

  30. The applicant lodged her application for review with the Tribunal on 28 February 2018, by completing a handwritten ‘Application for review – Migration’ form (Tribunal application), listing the second applicant on the Tribunal application as a secondary person applying for review.

  31. In response to a question on the Tribunal application which stated, “Do you need an interpreter when communicating with us?”, the applicant ticked a box marked “No”. The applicant then marked “Yes” to a further question which asked whether she consented for the Tribunal to send all correspondence to her by email, and listed her email address in an allocated box.

  32. Annexed to the Tribunal application was a letter addressed to the Tribunal which, inter alia, set out the applicant’s claims that she was indeed a genuine student and that the second applicant had also been a genuine student historically (first letter).

  33. On 15 October 2019, the Tribunal wrote to the applicant by email with an invitation to provide information concerning the application.

  34. The attached invitation stated that it was a requirement of the student visa sought by the applicant that she be both:

    ·enrolled in a registered course of study; and

    ·a genuine applicant for entry and stay as a student.

  35. The invitation advised the applicant that she would need to provide sufficient information to satisfy the Tribunal that she met both of those visa requirements. It invited her to give to the Tribunal, in writing, all relevant information about the course of study she was undertaking and her entry and stay in Australia as a student. The invitation directed her to provide specific details about the requested information using the “Request for Student Visa Information” form (Request form), to which the invitation provided a link. The invitation also provided the applicant with a copy of the Ministerial Direction.

  36. The applicant provided a completed Request form to the Tribunal. The applicant indicated that she did not consent to the Tribunal deciding the review without a hearing. In response to a question on the Request form which reads, “If a hearing is required, do you or any other applicant require an interpreter?”, the applicant responded “No”.

  37. In the section of the form headed ‘Information about current and proposed courses of study’, the applicant stated the following in response to questions about why she chose her current course of study, and whether any similar courses are available in her home country (reproduced without alteration):

    Before I came to Australia, I had worked as a Childcare Teacher for 8 years and i found the Childcare course here in Australia so I was keen to study which will helps my future career. Before I go back to my country I would like to finish my remaining course Diploma of Early Childhood Education and Care. I want to be a professional Childcare Teacher.

    My country doesn't have similar courses like Certificate III or Diploma of Early childhood Education and Care. We have only training in childcare which I had taken a short course from the Early Childhood Education Centre.

  1. The applicant’s application stated that she had worked as a childcare teacher for Joy Bells International from April 2008 to February 2017. A statement of service to this effect was annexed to both the visa application and Tribunal application.

  2. Annexed to the completed Request form, and dated 5 November 2019, was a further letter addressed to the Tribunal (second letter).

  3. On 27 November 2019, the Tribunal wrote to the applicant attaching an invitation to attend a telephone hearing on 18 December 2019. On the front page of the invitation, and in bold font, the invitation stated, “Please advise us at least 7 days before the hearing if you require an interpreter”. The invitation also asked the applicant to provide certain documents to the Tribunal prior to the hearing, namely, her current confirmation of enrolment (CoE), documents showing her past studies in Australia, and documents demonstrating work experience relevant to her studies.

  4. The invitation letter advised that the Tribunal may assess whether the applicant was a genuine applicant for entry and stay as a student and attached a copy of the Ministerial Direction.

  5. The hearing proceeded via telephone on 18 December 2019.

  6. On 11 June 2020, the applicant was notified of the Tribunal’s decision to affirm the primary decision to refuse the visa. That notification enclosed a copy of the Tribunal’s written decision record, dated 9 June 2020.

    The Tribunal’s Reasons

  7. The Tribunal noted (at [6] of its reasons) that the criteria for the visa were set out in pt 500 of sch 2 to the Regulations, and that the issue before it was whether the applicant was a genuine temporary entrant for entry and stay in Australia. After setting out cl 500.212 of sch 2 of the Regulations, the Tribunal noted (at [8]) that in considering that question, it was bound to have regard to the Ministerial Direction.

  8. The Tribunal noted the applicant’s immigration history. Namely, she had first arrived in Australia in February 2017 on the dependant visa and had applied for the visa one day prior to the expiry of the dependant visa and had not returned to her home country since her arrival in Australia. The Tribunal also noted (at [10]) that the applicant’s husband had been in Australia since 2007 on temporary student visas.

  9. The Tribunal noted (at [12] – [13]) the applicant’s previous employment as a childcare teacher in Nepal, and that she had, by the point of the Tribunal hearing, completed the Certificate III in Early Childhood and Education and Care, and proposed to complete a Diploma of Early Childhood Education and Care. The Diploma was scheduled for completion in January 2021, by which time the applicant would have remained in Australia for a period of four years, and the second applicant a period of 14 years.

  10. The Tribunal listed (at [14]) the documents provided by the applicant in support of her application, including:

    (a)The response to the Request form (referred to as the “s 359(2) request”);

    (b)A supporting statement authored by the applicant, being the first letter;

    (c)Current CoE for Diploma of Early Childhood Education and Care;

    (d)Completion Certificate for Certificate III in Early Childhood Education and Care;

    (e)Record of results from Certificate III in Early Childhood Education and Care;

    (f)Training completion Certificate from Nepal; and

    (g)Letter evidencing her work experience as a Childcare Educator and willingness to have her back with them on her return to Nepal.

  11. In its reasons, the Tribunal:

    (a)noted (at [16]) the applicant’s claim that there are no similar courses in Nepal, aside from the short course which she had previously undertaken, but did not accept that claim, noting that it was a bare claim made without evidence (at [17]);

    (b)considered the applicant’s personal ties to her home country (at [16]), noting that the applicant’s school friends, parents, and siblings (and their children) remain in Nepal, and the applicant speaks to her parents on a daily basis. However, the applicant had no property or assets in Nepal, and had not returned there since her arrival in Australia. The Tribunal accepted that the applicant had family ties in her home country, but did not accept that these ties constituted a strong incentive to return (at [18]);

    (c)considered the applicant’s potential circumstances in Australia, based on the evidence provided at the hearing (at [20]). These included that the applicant’s husband had been in Australia since 2007, that the applicant had recently given birth, and that the applicant and her husband appeared to have an active social circle of friends in Australia. The Tribunal found that these circumstances evidenced the applicant having established a settled life in Australia which constituted a significant incentive to remain in the country (at [21]);

    (d)considered the value of the proposed courses to the applicant’s future at [22] to [26] of its reasons. The Tribunal ultimately concluded that whilst the courses themselves may be of educational value, it was unable to conclude that the proposed courses would improve the applicant’s remuneration or job prospects, particularly when considered against the cost of completing the courses, and the fact there was no requirement for such a qualification in Nepal for the applicant to continue to work in childcare; and

    (e)noted the timing of the visa application one day prior to the expiration of the dependant visa, which made it appear that the commencement of study was aimed to securing a temporary visa, rather than due to a genuine interest in further study (at [28]).

  12. The Tribunal was not ultimately satisfied that the applicant intended genuinely to stay in Australia temporarily, concluded that she did not meet the requirement in cl 500.212 of sch 2 of the Regulations, and affirmed the primary decision not to grant the visa.

    CONSIDERATION

  13. Each of the three grounds in the originating application are dealt with in turn.

    Ground One

  14. Ground one of the originating application contends (reproduced without alteration):

    1. The Tribunal erred in law by eliciting evidence from the applicant who is of a non English speaking background without the assistance of an interpreter

    Particulars

    The applicant was self represented at the time of hearing. The applicant is a Nepalese citizen and her mother tongue is Nepalese . The applicant came to Australia in 2017 and she has a very limited knowledge of English. Due to COVID the interview as done over phone. As the interview proceeded the applicant found it difficult to understand the questions and being self represented she was not aware of her rights to seek an interpreter but proceeded to answer the questions even though she found it difficult to comprehend the questions raised by the Tribunal. This affected the fairness in the decision making process and her ability to correctly understand and answer the questions involved . The procedure adopted violated the principles laid down by Federal Court of Australia in SZTFQ v Minister for immigration and Border Protection 2017) FCA 562 (23 May 2017).

  15. The assertion in the particulars above that the applicant did not understand her rights to seek an interpreter cannot be accepted.  On three occasions (set out above) the Tribunal afforded the applicant an opportunity to indicate that she required the assistance of an interpreter.  At the hearing before this Court, the applicant explained that she had declined that invitation as she thought it may reflect adversely upon her given she was proposing to undertake studies in English.

  16. The applicant’s first ground is essentially a complaint that the Tribunal failed to discharge its obligation under s 360 of the Act to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That section imports a corresponding obligation upon the Tribunal to afford the applicant the opportunity to appear before it, which opportunity must be meaningful: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 (SCAR) at [18] – [37] regarding the operation of s 425 of the Act, which is analogous to s 360. Where a failure to provide an interpreter, or an adequate interpreter effectively precludes an applicant from taking part in the hearing, the Tribunal may have failed to comply with the obligation in s 360 of the Act: SCAR at [37].

  17. The mere assertion of difficulty following the questioning will not suffice to demonstrate that the Tribunal erred.  Where some inadequacy in interpretation is alleged, what must be shown is that the applicant was effectively prevented from giving their evidence, or that the Tribunal made findings adverse to the applicant based on erroneous or inadequate translation: Tobasi v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 322; [2002] FCA 1050 at [61]. The question for the Court is not one of fairness, but whether the process in the relevant part of the Act (in this instance, pt 5) has been subverted: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41, per Perram J at [73] – [83].

  18. The same question, that is, whether the process in pt 5 of the Act has been subverted, must be addressed here, where there is no allegation of inadequate or erroneous interpretation, but where the applicant did not, as a consequence of her own election, have the assistance of an interpreter at all.

  19. The applicant submitted that she had not understood some of the Tribunal hearing as the Tribunal member was speaking a bit fast.

  20. The applicant did not provide any evidence to illustrate any difficulty she had in understanding what was said in the Tribunal hearing.  She did not tender either a recording or a transcript of the hearing, nor give evidence that she failed to respond to questions of the Tribunal, or that she responded inappropriately to any of the Tribunal’s questions because she had not understood the questions.  The applicant did not identify anything further that she might have told the Tribunal if she had the assistance of an interpreter, or any part of the Tribunal’s decision which contained an error which could be connected to the absence of an interpreter at the hearing.  The applicant was accompanied by her husband at the hearing.  He has been in Australia since about 2007.  I infer he would have been of some assistance in understanding the Tribunal’s questions and in prompting the applicant to provide relevant information in response and would have provided moral support and assistance to raise any difficulty.

  21. The applicant has not demonstrated that the review process in pt 5 of the Act was subverted or that the Tribunal failed to afford the applicant a real and meaningful opportunity to give evidence and present arguments on the review.

  22. Ground one does not disclose jurisdictional error.

    Ground Two

  23. Ground two of the originating application contends (reproduced without alteration):

    2. The Tribunal erred in law by failing to give the matter "proper, genuine and realistic consideration" to the evidence adduced or to "engage in an active intellectual process" and "by asking a wrong question of law". This resulted in miscarriage of justice.

    Particulars

    The primary applicant came to Australia only in 2017 and applied for study in November 2017 in the field (Child care) she had worked in Nepal . The Tribunal failed to consider that the applicant has made good academic progress and has completed the courses on time . The Tribunal gave overwhelming weight to the fact that her spouse has stayed in Australia for more than 10 years. It is submitted that the Tribunal failed to appreciate the evidence in an intelligible manner after providing proper consideration as required in Federal Court Judgement in CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190 (23 December 2019) Paragraph 83

  24. The claim in the particular above that the Tribunal failed to consider that the applicant had made good academic progress and completed the course on time is not made out.  At [13] of its reasons, the Tribunal observed that the applicant had completed the Certificate III course and was scheduled to complete her diploma in January 2021.  The Tribunal also noted (at [14]) that it had the applicant’s record of results before it.  The Tribunal was cognisant of the applicant’s academic progress.  Ultimately, the Tribunal’s view about the purpose of the applicant’s study was based substantially upon the timing of her visa application and the Tribunal’s conclusion that the study was not necessary for the applicant to obtain employment when she returned to Nepal.  It was open to the Tribunal to give greater weight to those matters than to the applicant’s academic progress.  No error is disclosed by the manner in which the Tribunal considered the applicant’s academic progress.  The judgment in CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 513; [2019] FCA 2190 has no observations that are applicable to the present matter.

  25. At the hearing before the Court, the applicant and her husband proffered an explanation for why the applicant had not applied for the visa until the day prior to her husband’s visa expiring.  They submitted that they had planned to return to Nepal, then saw some information about available childcare courses in Australia and decided to remain.  However, it took them some time to find a good college.

  26. The applicant’s husband also submitted that he had lived in Australia for a long time and had not broken the rules; it was not fair to use his history against the applicant.

  27. Both submissions were, effectively, an invitation to the Court to consider for itself the question that was before the Tribunal, and to reach its own conclusion about the genuineness of the applicant.  That invitation is one that the Court may not accept, no matter how sympathetic the applicant.  The Court is limited to considering whether there has been jurisdictional error in the Tribunal’s conduct of its review; it is not empowered to consider for itself the merits of the application that was before the Tribunal.

    Ground Three

  28. Ground three of the originating application contends (reproduced without alteration):

    3. The Tribunal erred in law by failing to consider all the applicant's evidence in relation to the application and this resulted in miscarriage of justice .

    Particulars

    The Tribunal having received the evidence of the applicant, has failed to consider all such evidence while stating the reasons for the affirmation of the refusal to approve the 500 student visa application . The failure to consider the evidence of the applicant amounts to jurisdictional error.

  29. In respect of this ground, the applicant’s husband submitted that there was nothing to say, but in passing repeated the argument that it was unfair to use his background as a reason to reject his wife’s application.

  30. That was again, effectively an invitation to the Court to consider for itself the question that was before the Tribunal, and to reach its own conclusion about the genuineness of the applicant.  As set out above, the invitation must be declined.

    CONCLUSION

  31. For the reasons above, the application must be dismissed.

  32. I will order that the applicants pay the first respondent’s costs.

  33. The parties will be heard on the question of the quantum of such order.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.

Associate:

Dated:       10 October 2025

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