Maharjan v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 792
•2 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maharjan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 792
File number(s): MLG 4542 of 2019 Judgment of: JUDGE FARY Date of judgment: 2 June 2025 Catchwords: MIGRATION - application for judicial review – student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not satisfy cl 500.212(a) of Sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide genuine consideration to mandatory relevant considerations and the applicant’s immigration history – found no jurisdictional error on behalf of the Tribunal – application dismissed. Legislation: Australian Constitution s75(v)
Migration Act 1958 (Cth) s 47(1), s 65(1), s 476, s 499
Migration Regulations 1994 (Cth) cl 500.211, cl 500.212 – cl 500.218
Cases cited: BFH16 v Minister for Immigration and Border Protection (2020) 274 FCR 542
CED15 v Minister for Immigration and Border Protection [2018] FCA 451
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 83 AAR 226
ETA067 v The Republic of Nauru (2018) 360 ALR 228
Services and Multicultural Affairs (2020) 83 AAR 226
Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1385
Kaur v Minister for Home Affairs [2019] FCA 2026
Kaur v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670
Kumar v Minister of Immigration and Border Protection (2020) 274 FCR 646
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593
Division: Division 2 General Federal Law Number of paragraphs: 126 Date of last submission/s: 19 May 2025 Date of hearing: 26 May 2025 Place: Melbourne Counsel for the Applicants: Mr J R Young Solicitor for the Applicants: Mr Pokharel, Proficient Legal Counsel for the First Respondent: Mr Sypott Solicitor for the First Respondent: Mr Michelon. Australian Government Solicitor Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 4542 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KARUNA MAHARJAN
First Applicant
DHARMA MAHARJAN
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
2 JUNE 2025
THE COURT ORDERS THAT:
1.The application be 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 Fary
INTRODUCTION
By an Application filed in this Court on 19 December 2019 (Application), the applicants (Applicants) seek judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 4 December 2019 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision, the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the first applicant (Applicant) a Student (Temporary) (Class TU) Student (Subclass 500) visa (Visa) on the basis that the Applicant did not satisfy the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) (cl 500.212a).
The hearing of the Application took place at the Melbourne Registry of the Court on 26 May 2025 (Hearing). The Minister and Applicants were both represented by counsel. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 26 May 2025, Order 3.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal fell into jurisdictional error in its decision (Tribunal Decision), by failing to have regard to mandatory relevant considerations about the Applicants immigration history.
BACKGROUND
The Court has before it a Court Book with 232 pages filed by the Minister on 21 April 2020 (Court Book). The Court has reviewed the Court Book in detail. The Outline of the Minister’s Submissions, filed 19 May 2025 (Minister’s Submissions) accurately summarise the background to this matter at [3] to [8]. The Court adopts those submissions with amendments as follows.
The Applicants are citizens of Nepal.[2]
[2] Court Book (CB) 11, 104, 215.
Dharma Maharjan, the second applicant is the husband of the first applicant in these proceedings. He was named as a dependent applicant.
On 7 July 2009, the Applicants applied for the visa. The Applicants had previously held 3 student visas, a temporary work visa and six bridging visas.[3]
[3] CB 10-35.
On 30 May 2018, the Delegate refused to grant the Applicants visas on the basis that they did not satisfy the genuine temporary entrant criteria in cl 500.212(a) of the Regulations.[4]
[4] CB 102-108.
On 13 June 2018, the Applicants sought review of the Delegate’s Decision before the Tribunal (Review Application).[5]
[5] CB 109-110.
On 14 June 2018, the Tribunal wrote to the Applicant’s migration agent (Applicant’s representative), Ms Alice Tarr, acknowledging receipt of the Review Application.[6]
[6] CB 111-115.
On 14 June 2018, the Applicant’s representative wrote to the Tribunal resending the Delegate’s Decision.[7]
[7] CB 116.
On 25 October 2019, the Tribunal wrote to the Applicant’s representative inviting the Applicants to attend a hearing on 20 November 2019.[8]
[8] CB 117-127.
On 14 November 2019, the Applicant’s representative wrote to the Tribunal attaching a signed hearing invitation, MR5, submissions and annexures.[9]
[9] CB 128.
On 20 November 2019, the Applicants and their representative, Mr Christian Dawson, attended a hearing before the Tribunal with the assistance of a Nepalese interpreter.[10]
[10] CB 205.
On 2 December 2019, the Tribunal affirmed the decision under review.[11]
[11] CB 214-226.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 214 to 220 of the Court Book.
The Tribunal first outlined the background to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [1] to [7].
The Tribunal noted that the central issue was whether the Applicant intended genuinely to stay in Australia temporarily as required by cl 500.212(a) of the Regulations.
The Tribunal found that the Applicant was using the student visa program to extend her stay in Australia, with particular findings as follows:[12]
(a)The Applicant has been Australia since 2009 and has completed only 4 out of the 14 courses in which she had been enrolled;
(b)The Applicant has only recently expressed an interest in nursing and her interest in this field was formed after the death of her brother which was sincere;
(c)The “difficulties” in the Applicant’s future intention to qualify and return to work in Nepal were the amount of further time it would take for her to be fully qualified, and the commensurate incentives she had to remain in Australia;
(d)The Tribunal found it difficult to accept that at the end of 13 years of study in Australia, the Applicants had only visited Nepal three or four times. While the Tribunal accepted that there is a demand for nurses in Nepal, the Tribunal considered the earning potential in Australia, the demand for nurses in Australia and the fact that she had coped with the Australian cost of living for 10 years. The Tribunal was not persuaded that the opportunities and economic circumstances for her in Nepal outweighed those opportunities and circumstances in Australia;
(e)The Tribunal also noted that the Applicant initially came to Australia to study in a culinary field, switched to studying accounting and management; and took the opportunity to be sponsored for a subclass 457 visa, a pathway to permanent residency. When she was unsuccessful in obtaining a subclass 457 visa, the Applicant pursued nursing studies for personal and employment reasons; and
(f)The Applicant’s husband was in Australia and provided her with a level of family comfort and incentive to remain.
[12] CB 214-200.
The Tribunal found that the Applicant did not meet cl 500.212(a) of the Regulations. The second applicant did not satisfy cl 500.311 of the Regulations. The Tribunal upheld the decision of the Delegate.[13]
[13] CB 220.
PROCEEDINGS IN THIS COURT
The Application was filed in this Court on 19 December 2019, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 8 April 2020, Orders were made by Registrar Carlton of this Court for the Applicants to file: written submissions, any amended application with proper particulars and any additional evidence. For the Respondent to file: a copy of the court book, written submission and any additional evidence. That the directions hearing listed on 8 April 2020 be vacated.
On 24 March 2025, Orders were made by Registrar Lindsay of this Court for the First Respondent’s name to be amended to the Minister for Immigration and Multicultural Affairs.
On 15 April 2025, Orders were made by me for the time to comply with Order 4 and Order 5 of the Orders made by Registrar Lindsay dated 24 March 2025 to be extended.
On 15 May 2025, Orders were made by me to grant leave to the Applicant’s counsel to appear and make submissions electronically via MS Teams.
On 5 May 2025, the Applicants filed an Amended Application.
This matter was heard on 26 May 2025 at a Final Hearing before me. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicants to engage with the Court.
The Applicants relied upon the following documents:
(a)The Amended Application filed 5 May 2025;
(b)The Affidavit of the first applicant sworn and filed 19 December 2019 (Applicant’s Affidavit); and
(c)The Applicant’s Outline of Submissions filed 5 May 2025.
The Minister relied upon:
(a)The Response, filed 28 January 2020;
(b)The Minister’s Outline of Submissions filed 19 May 2025; and
(c)The List of Authorities filed 20 May 2025.
Both parties relied on the Court Book.
The Amended Application contains four (4) grounds of review (Grounds of Review):
The Second Respondent made jurisdictional error by making a decision which was unreasonable. (Ground 5).
The Second Respondent made jurisdictional error by failing to have regard to mandatory relevant considerations being the Applicants’ immigration history and in particular level of compliance with previous visas and the Applicants’ significant land holdings in Nepal. (Ground 6).
The Second Respondent made contradictory findings at [17] and [18] of the decision record in that it accepted the First Applicant had recently developed a genuine and strong interest in nursing while using the Applicant’s application for a student visa to study nursing as indicating that she was using the student visa program to extend her stay in Australia. (Ground 7).
The Second Respondent made jurisdictional error by making findings of which there was no evidence being a), that the Applicant had commenced 14 different courses in Australia and b), that the applicant would have more opportunities for nursing employment in Australia than she would in Nepal. (Ground 8).
(Words in bold added, otherwise as written).
APPLICANTS’ SUBMISSIONS
The Applicants submit that at paragraph [17] of the Tribunal’s Decision under the heading “Analysis and Conclusions”, the following two paragraphs are contradictory.
The Applicants submit that the Tribunal’s consideration was based upon a finding in respect of which there was no evidence. At paragraph [18] the Tribunal asserts that the Applicant had completed four out of 14 courses. The Applicants submits that there was no explanation provided for the alleged 14 courses. The Applicants further submit that there is no evidence of 14 courses and that there was only evidence of six courses, and the Applicant completed four of these courses.
The Applicants provided important documents concerning the land holding and valuation of the land held by the second applicant in Nepal. The Applicants submit that the Tribunal failed to consider the issue of land holdings in Nepal, and this is a significant matter as a person may well be prepared to accept a lower salary in their home country rather than a high salary in Australia where there is no prospect of home ownership.
While the Tribunal accepted that the Applicant had indicated a recent interest in nursing, this factor is outweighed by her continued residency in Australia since 2009. The Applicants submit that this is not reasonable in circumstances where the Tribunal accepted the Applicant’s genuine interest in pursuing a career in nursing.
The Applicants submit that the Applicant’s actions are not inconsistent with an intention genuinely to stay in Australia temporarily and her genuine interest in nursing cannot be used as a finding that she misused the student visa program.
Under cl 500.212(a)(ii), the Applicants submit that the Tribunal did not consider the Applicant’s level of compliance with all her previous visas and have regard to the Applicant’s immigration history.
RESPONDENT’S SUBMISSIONS
The Minister submits that the Amended Application should be dismissed with costs fixed.
Ground 5
The Minister submits that ground five should be dismissed as it lacks any particulars, and the Applicant’s submissions fail to suggest how the Tribunal’s Decision was unreasonable.
Ground 6
Failure to consider the level of compliance with previous visas
While the Tribunal is required to have regard to the various considerations listed in Ministerial Direction 69; this does not oblige the Tribunal to make a finding in respect of each consideration irrespective of its materiality to a particular case. The absence of an express reference to a particular consideration in the Tribunal’s reasons does not necessarily mean that it was not considered by the Tribunal.
The Minister submits that while the Tribunal did not mention the Applicant’s compliance with previous visa conditions, this does not disclose jurisdictional error and the factor was not considered material to its decision, such that it did not warrant explicit recitation in its reasons.
Further, the Minister submits that the Tribunal’s focus was based on the length of time she had already been in Australia studying, as opposed to her compliance with the visa conditions. The evidence and submissions provided by the Applicant to both the Department and Tribunal did not suggest that her level of compliance with previous visa conditions was a matter of importance.
Failure to have regard to land holdings in Nepal
The Minister submits that the Tribunal did have regard to the second applicant’s land holdings in Nepal. In the Tribunal’s Decision at [12e], the Tribunal noted that it had the property valuation for that land before it and noted at [15j] the first applicant’s oral evidence about her husband’s land holdings in Nepal.
Land holdings are not mentioned in [17] to [18] of the Tribunal’s reasoning, the Minister submits that this is the case as the Tribunal formed the view that it was not material to its reasoning.
The Minister notes that the Applicants did not make submissions or give evidence to the Tribunal regarding their inability to own a home in Australia. Further, the Applicant attributes a significance to the land holdings that were not argued before the Tribunal and invites the Court to engage in impermissible merits review.
Ground 7
The Applicants allege that the Tribunal’s findings were legally unreasonable, and the more appropriate lens of analysis is illogicality or irrationality.[14]
[14] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328.
The Minister acknowledges that there are authorities to the contrary[15], however, this ground can be disposed of by asking whether the process of reasoning engaged in by the Tribunal was open to it, bearing in mind that it is insufficient to disagree with the Tribunal’s reasoning.[16]
[15] BFH16 v Minister for Immigration and Border Protection (2020) 274 FCR 542.
[16] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.
The Tribunal’s task was to determine whether the Applicants intended genuinely to reside in Australia temporarily. When determining this matter, it was not contradictory for the Tribunal to find that, notwithstanding the first applicant’s intention to study and work in nursing, the length of time she had spent in Australia combined with the incentives to remain in Australia indicated that she did not intend to reside in Australia temporarily.
Ground 8
No evidence of commencing 14 courses
The Tribunal had before it a screenshot of the first applicant’s history of enrolment via the Provider Registration and International Student Management System (PRISMS) which provided that the Applicant had been enrolled 14 times in a variety of courses; this being the basis for the Tribunal’s findings at [18].
No evidence of greater opportunities in nursing in Australia
The Minister submits that the findings in paragraph [19] to [20], the Tribunal considered all the evidence and concluded that the economic incentive for the Applicant to remain in Australia was greater than the economic incentive to return to Nepal.
It was not a finding that the Applicant would have fewer opportunities in Nepal than she would have in Australia.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[17]
[17] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[18] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[19]
[18] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[19] Yusuf at [82].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[20] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[21] Different kinds of error may overlap.[22] The categories are not closed.[23]
[20] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[21] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[22] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82].
[23] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[24] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[25] It has been described as an “undemanding” standard.[26]
[24] LPDT at [7].
[25] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[26] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Student Visas
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
The criteria that the Applicant was required to satisfy for the grant of a Student visa (Subclass 500) are set out in cl 500.211 to 500.218 in Schedule 2 of the Regulations.
CONSIDERATION
Ground 6
Ground 6 is that:
The Second Respondent made jurisdictional error by failing to have regard to mandatory relevant considerations being the Applicants’ immigration history and in particular level of compliance with previous visas and the Applicants’ significant land holdings in Nepal.
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
Clause 500.211 of Schedule 2 of the Regulations provides:
a. the applicant is enrolled in a course of study;
b. if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;
c. if the applicant is a Foreign Affairs student-the applicant has the support of the Foreign Minister for the grant of the visa;
d. if the applicant is a Defence student-the applicant has the support of the Defence Minister for the grant of the visa.
Clause 500.212 of Schedule 2 of the Regulations provides:
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. because of any other relevant matter.
In Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 83 AAR 226, Allsop CJ stated (at [8] and [9]):
It is important to focus on the words of cl 500.212. First, the chapeau contains a whole idea or conception: "a genuine applicant for entry and stay as a student". This expresses a criterion that will involve value judgments about the applicant and his or her genuineness to enter and stay as a student. The last, emphasised, words were the subject of submissions and debate. They should not be disconnected from the text, structure and purpose of the whole clause.
The expression is followed by the word "because" and a list of various matters in subcll (a)(i)-(iv), (b)(i)-(ii) and (c), to which the decision-maker looks, overall, to come to a state of satisfaction about the contents of the chapeau. A plain reading of cl 500.212 leads to the conclusion that the satisfaction as to whether the applicant is a genuine applicant for entry and stay as a student is reached by reason of the particular criteria in subcll 500.212(a), (b) and (c), and not otherwise. That said the width of subcll (a)(iv) and (c) are to be recognised: that is "any other relevant matter". Such a wide frame of reference is, of course, limited by reference to the subject matter, scope and purpose of cl 500.212: Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 at 505.
Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about (a) the performance of those functions; or (b) the exercise of those powers. Section 499(2A) of the Migration Act provides that a person or body (which would include the Tribunal) must comply with a direction given under s 499(1).[27]
[27] See Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 204 at [19]; Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209 at [65]
While a decision maker must comply with written direction made pursuant to s 499,[28] Direction 69 “provides guidance to decision makers on what factors require consideration when assessing” the genuine temporary entrant criterion and the matters in cl 500.212.
[28] See s 499(2A) and Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 204 at [19].
In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, Gummow and Callinan JJ held (at [24] and [25]) that a failure by the decision maker “to respond to a substantial, clearly articulated argument relying upon established facts” would entitle the applicant to relief under s 75(v) of the Constitution.
In Kumar v Minister of Immigration and Border Protection (2020) 274 FCR 646; 274 FCR 646 (Kumar), Derrington and Thawley JJ explained how a failure to comply with a Ministerial Direction might give rise to jurisdictional error:
If there is a failure to comply with Direction 53 in reaching an adverse state of satisfaction under cl 572.223(1)(a) which is sufficiently material to the formation of that state of satisfaction, and consequently upon the state of satisfaction in s 65(1) of the Act then, depending on the nature of the non-compliance, jurisdictional error may be established. An example of such jurisdictional error is as follows. If Direction 53 required a particular matter to be taken into account as a mandatory relevant consideration in reaching the required state of satisfaction and such a matter was advanced by an applicant but ignored by the delegate or Tribunal, then jurisdictional error would be demonstrated if the applicant established that he or she was thereby deprived of the possibility of the repository of power forming a favourable state of satisfaction: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]–[31] (Keifel CJ, Gageler and Keane JJ) and [72] (Edelman J); Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421 at [45]–[48] (Bell, Gageler and Keane JJ) and [84]–[95] (Nettle and Gordon JJ). Although the decision-maker was, in fact, not satisfied that the visa applicant had met the relevant criteria, that actual state of mind was reached through a “material” non-compliance with statutory requirements prescribed for that decisional process. Accordingly, the state of non-satisfaction was not of the kind upon which the legislature conditioned the exercise of power under s 65(1)(b).
Their Honours found (at [96]) that Direction 53 did not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality and, less still, was there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.
Direction 69 provides in paragraph 1, that it “is only to guide decision makers”, and identifies facts the decision maker “should have regard to”. In contrast, Direction 53 (which was the subject of the decision in Kumar) is expressed in terms that the decision maker “have regard to” the factors set out in that direction.
The principles set out in Kumar were applied by Sarah C Derrington J in the context of Direction 69 in Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1385.
In Kaur v Minister for Home Affairs [2019] FCA 2026 (Kaur),[29] Steward J held (at [29]) that what the Tribunal must do in a case concerning the application of cl 500.212(a) is make a finding of fact about whether an applicant does or does not intend genuinely to stay in Australia temporarily, and for that purpose apply the four factors prescribed by cl 500.212(a); namely the applicant’s circumstances, the applicant’s immigration history, if the applicant is a minor, the intentions of the parent, legal guardian or spouse; and any other relevant matter.
[29] See also Kaur v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 esp at [15].
His Honour held that Direction 69 should be used as a “guide” in applying the four factors in cl 500.212(a), that the factors in the Direction “should” be considered, rather than “must” be considered, and that the Direction should not be applied by way of a “checklist”.
His Honour held that the factors in Direction 69 which a decision maker must take into account are those “which have been the subject of substantial, clearly articulated claims made by the visa applicant” (at [31]). A failure to consider and engage with such a claim may constitute jurisdictional error. Alternatively, a failure to consider a claim engaging a factor listed in Direction 69 that is apparent on the face of the material before the Tribunal and which “clearly emerged” from that material may constitute jurisdictional error.
A finding that an unarticulated claim “clearly emerged” from material is not one which is made lightly. It is insufficient that such a claim “might” emerge from the material.[30] But it is one that is more likely to be made where the applicant is self represented.[31]
[30] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [68].
[31] CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [74] – [75].
Ground 6 identifies two matters, characterised as “mandatory relevant considerations”, that the Applicants contend that the Tribunal “failed to have regard to”:
(a)the Applicant’s immigration history and in particular level of compliance with previous visas; and
(b)the Applicants’ significant land holdings in Nepal.
I shall start with the alleged error concerning immigration history.
The Applicants contended that under cl 500.212(a)(ii), the Tribunal must have regard to the Applicant’s immigration history which “will include questions of compliance with previous visas”. The Applicants contended that:
The Tribunal noted that the Applicant had been in Australia since 2009 and on a number of different visas including those noted at [7] at CB 215 being 3 student visas, a temporary work visa and six bridging visas. The Tribunal did not consider her level of compliance with these visas which were a mandatory statutory consideration.[32]
[32] Applicants’ submissions at [25].
The first point to note is that the Tribunal did have regard to “the applicant’s immigration history” (at [18] and [19]); it noted that the Applicant “has been in Australia since 2009” (at [18]), had “three years spent on a work visa” (at [18]), had “been here for a decade training” (at [18]), had “little more than three or four visits to Nepal” (at [18]), “took the opportunity to be sponsored for a Temporary Work (Skilled) visa (subclass 457)” (at [19]), had “a long period of absence from her family and her home country” (at [19]) and had regard to “the history of her stay in Australia in relation to study and work” (at [19]).
There is a specific reference in cl 500.212(b) to the requirement that “the applicant intends to comply with any conditions subject to which the visa is granted”. However, in circumstances where the Tribunal concluded that the Applicant did not satisfy the genuine temporary entrant criterion in cl 500.212(a), it was unnecessary for the Tribunal to consider the criterion in cl 500.212(b).[33]
[33] Compare Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 at [59] - [61].
Clause 500.212(a)(ii) required the Tribunal to have regard to “the applicant’s immigration history” in determining whether it was satisfied as to the genuine temporary entrant criterion.
Direction 69 provides, relevantly under the heading “The applicant’s immigration history”:
13. An applicant’s immigration history refers both to their visa and travel history.
14. When considering the applicant’s immigration history, decision makers should have regard to the following factors:
Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
Previous travels to Australia or other countries, including:
i. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii. the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv. if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any noncompliance.
(emphasis added)
I am not satisfied that the Tribunal erred by failing to have regard to the Applicant’s immigration history and in particular level of compliance with previous visas:
(a)First, the reference to visa compliance in Direction 69, is that they are directed to “Previous travels to Australia or other countries”. The situation here was that the Applicant had been in Australia since 2009, and save for limited visits home, there is no evidence of “Previous travels to Australia”;
(b)Second, the issue of visa compliance appears to be directed to non-compliance as a factor to be weighed against other factors, when assessing the temporary entrant criterion. For example, previously overstaying a visa would be probative of a lack of intention genuinely to stay in Australia temporarily. By contrast, previous visa compliance would, at best, provide weak support for the proposition that “the applicant intends genuinely to stay in Australia temporarily”. The connection between previous compliance (as opposed to non-compliance) and future intention is not obvious; and
(c)Third, there is no evidence that the contention that the Applicant had complied with previous visa conditions was the “subject of substantial, clearly articulated claims made by the visa applicant” and nor was it a matter “clearly emerged” from that material.[34]
[34] Compare Kaur at [31].
I turn to the alleged error concerning land holdings in Nepal.
While paragraph [18] of the Tribunal’s Decision referred to “opportunities and economic circumstances for the applicant in Nepal”, the Minister eschewed any argument that this included reference to the property in Nepal.
The Applicant contends that:
At CB 46 and CB 147-152 are important documents concerning the land holding and valuation of that land held by the Second Applicant in Nepal. In the section of analysis, the Tribunal does not, it is submitted, in terms or at all, consider the issue of land holding in Nepal. There is a vague reference at [18] at CB 219 to economic circumstances of the Applicant in Nepal but this appears to be directed to the issue of income rather than land holding.
This is highly significant matter as a person may well be prepared to accept a lower salary in their home county rather than a higher salary in Australia where there is no prospect of home ownership.
I note that the Second Applicant’s statement provided as follows:[35]
I will be staying together with her till she finishes her study and once she completed study we are going back to home country because all our family are back in Nepal and that I have apiece of land tat I received from my father after he pass away therefore we have more responsibility to take in terms of culture and tradition as well as my siblings are looking forward to see us back home.
(as written)
[35] CB 66.
The Applicants’ lawyer’s email to the Tribunal provided:[36]
The Review Applicant’s husband also owns land and a house in Nepal, which they intend on returning to upon the completion of the Review Applicant’s Bachelor of Nursing Please find land valuation reports attached at Annexure Four.
[36] CB 137.
The documents showed that the second applicant was the owner of two plots of land in Nepal with a combined value of 25,500,000 NRS.[37]
[37] CB 148.
Clause 500.212(a)(i) required the Tribunal to have regard to “the applicant’s circumstances” in determining whether it was satisfied as to the genuine temporary entrant criterion.
Direction 69 provides, relevantly under the heading “The applicant’s circumstances”:
Decision makers should have regard to the applicant’s circumstances in their home country
Direction 69 provides, relevantly under the heading “The applicant’s circumstances in their home country”:
When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
…
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;
I note that the Applicant was the “primary applicant”. The critical question was whether she satisfied the temporary entrant criterion. The entitlement of the second applicant was dependent on whether the Applicant was the holder of a visa. While Ground 6 refers to “the Applicant’s significant land holdings in Nepal”, this was a reference to the second applicant’s land holding.
To the extent it is alleged that the Tribunal failed to have regard to mandatory criteria, the contention would appear to be that the second applicant’s land holding is an “economic circumstance” of the Applicant; presumably on the basis of her relationship with her “dependent spouse” (at [7]) and husband, the second applicant.
The Tribunal’s Decision listed “property valuation for land in Nepal owned by secondary applicant” under the heading “Documents submitted and considered” (emphasis added) (at [12]). The Tribunal also recorded answers from the Applicant, that included a reference to “she and her husband had land in Nepal” (at [15(j)]). Apart from those references, there is no other reference in the Tribunal’s Decision to the second applicant’s land holding in Nepal.
Having regard to the whole of the Tribunal’s Decision, I am satisfied that the Tribunal did have regard to the “applicant’s circumstances” including “economic circumstances”; for example, to having “been in Australia since 2009” (at [18]), to her “academic history” (at [18]), to the death of her brother (at [18]), to the “comparatively modest circumstances and opportunities in her home country” (at [18]), to her having coped with the cost of living in Australia (at [18]), to the fact that her husband was with her in Australia (at [19]), to her claims concerning her family in Nepal (at [19]) and to her employment (at [19]). The Tribunal’s Decision contains an analysis of “economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country” at [18] and [19] as per Direction 69 at 9(c).
The question is whether there is any significance to the failure of the Tribunal to specifically refer to the second applicant’s land holding in Nepal in the Tribunal’s Decision in the course of its reasoning (i.e. [17] to [19]).
I am not satisfied that the Tribunal erred by failing to have regard to “the Applicants’ significant land holdings in Nepal”:
(a)First, I do not consider that the omission of any specific reference to the second applicant’s land holding in Nepal to constitute a failure to consider a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review”;[38]
(b)Second, even in circumstances where the Tribunal does not expressly refer to “a claim” in the Tribunal’s Decision, this does not necessarily lead to the inference that the Tribunal did not consider that “claim”. Where the Tribunal’s Decision is otherwise comprehensive, and the issue has been identified at some point, the court should not readily draw the inference that the Tribunal did not consider the claim.[39] In the present case, I do not draw the inference of a failure to consider the second applicant’s land holding in circumstances where it was identified at [12(e)], referred to again at [15(j)], and the Tribunal’s Decision is otherwise comprehensive; and
(c)Third, an obvious inference to be drawn from the absence of reference to the second applicant’s land holdings in Nepal in [17] and [18] is that the Tribunal did not consider that matter to be material to its reasoning.
[38] ETA067 v The Republic of Nauru (2018) 360 ALR 228 per Bell, Keane and Gordon JJ (at [14]).
[39] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [46] and [47].
I am not satisfied that jurisdictional error is made out by reference to Ground 6.
Grounds 5 and 7
Ground 7 is that:
The Second Respondent made contradictory findings at [17] and [18] of the decision record in that it accepted the First Applicant had recently developed a genuine and strong interest in nursing while using the Applicant’s application for a student visa to study nursing as indicating that she was using the student visa program to extend her stay in Australia.
Ground 5 is that:
The Second Respondent made jurisdictional error by making a decision which was unreasonable.
At the Hearing, counsel for the Applicants advised me that Ground 5 is to be treated as part of Ground 7. Accordingly, I will consider the question of unreasonableness by reference to the matters set out in Ground 7.
Paragraph [17] and [18] of the Tribunal’s Decision provided:
The Tribunal has given careful consideration to all the evidence submitted by the applicant before, during and after the hearing, against the factors in Direction 69 the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to her future, and in relation to other relevant information provided by the applicant, or information otherwise available to the Tribunal, including information that may be either beneficial or unfavourable to the applicant. The Tribunal concludes the applicant is using the Student visa program to extend her stay in Australia, and does not intend genuinely to remain in Australia temporarily. The Tribunal does so for the following reasons.
The applicant has been in Australia since 2009 and had completed four out of 14 courses. Even allowing for three years spent on a work visa, this is a slim academic record. She has completed a Diploma of Nursing in November 2019 and is enrolled in a Bachelor of Nursing. She indicates convincingly that she has a strong interest in nursing, despite the fact that it is a relatively recent interest and is part of a chequered academic history, but there is some credence to her claims of wishing to work in an international aid agency, which she has done in the (distant) past, and the Tribunal is satisfied the interest is sincere. She claims the death of her brother in 2011 encouraged her interest in health care. The difficulties with her submissions in regard to her future intentions to qualify then return to work in Nepal, is the amount of further time it will take for her to be fully qualified as a Registered Nurse or Enrolled Nurse, and the commensurate incentives she has to remain in Australia. She has been here for a decade and training will take a further three years, until December 2022 at least and possibly longer, before the applicant is ready to work at the level she aspires to. The applicant states she is proud of her study capacity in nursing, her part-time work in the nursing home, and her future potential to work as a nurse at a world-class level. It is difficult, therefore, to accept that at the end of 13 years in Australia, with little more than three or four visits to Nepal, she will be motivated to accept comparatively modest circumstances and opportunities in her home country. She submits that her potential is to earn between AU60,000-AUD74,000 in Australia. The Tribunal accepts there is a significant demand for qualified nurses in Nepal, and costs are lower. However there is also demand in Australia and she has coped with the cost of living here for 10 years. The Tribunal is not persuaded the opportunities and economic circumstances for the applicant in Nepal will outweigh those in Australia. It weighs this significantly against the applicant.
(emphasis added)
The premise of Ground 7 is that two of the Tribunal’s findings are irreconcilable:
(a)The Applicant’s genuine and strong interest in nursing; and
(b)The conclusion that the Applicant is using the student visa program to extend her stay in Australia.
I do not accept the premise of Ground 7, that these two findings are irreconcilable. It is possible that the Applicant was using the student visa program to extend her stay in Australia even though she had a genuine and strong interest in nursing. The task for the Tribunal was to weigh up various considerations, which may, in a particular case, pull in different directions. Questions of weight to be attached to different evidence or material is, subject to requirements of reasonableness and rationality, a matter for the Tribunal.[40]
[40] SJSS at [33].
The critical question is whether the Applicant satisfied the criterion “genuine applicant for entry and stay as a student” which required consideration of whether “the applicant intends genuinely to stay in Australia temporarily”, “the applicant intends to comply with any conditions subject to which the visa is granted” and “any other relevant matter”.
It is important to read paragraphs [17] and [18] in their context. The conclusion in [17], that the “the applicant is using the Student visa program to extend her stay in Australia, and does not intend to genuinely to remain in Australia temporarily” was drawn for the “following reasons”, namely, those set out at [18] and [19].
Paragraph [19] of the Tribunal’s Decision provided:
The Tribunal notes and has taken into account in forming the conclusions in paragraph 18 that the applicant came to Australia to study in a culinary field, switched to accounting and management, and then took the opportunity to be sponsored for a Temporary Work (Skilled) visa (subclass 457) which at the time, was a pathway to permanent residency. When that opportunity was curtailed, for reasons that were personal as well as employment related, she sought a student visa and commenced to study nursing. The history, therefore, appears to be one of using the student visa program to extend her stay in Australia. If so, nursing qualifications are a sensible choice because of the scale of opportunity for a qualified nurse in Australia. The applicant submits that once qualified, she could earn a significant salary, as described earlier in these reasons, and one that she could not come close to matching in Nepal. Further, the Tribunal notes that the applicant’s husband is with her in Australia, providing her with a level of family comfort and an incentive to remain. The Tribunal takes into account the applicant’s claim her family in Nepal are a strong incentive to return home. However the Tribunal notes the applicant has been in Australia since 2009 and wishes to remain until 2022 at least. She has not seen her family often in that time for reasons the applicant states are to do with visa conditions and funds. The Tribunal notes that while here, she and her husband have jobs to fund their presence. The Tribunal is not satisfied that such a long period of absence from her family and her home country, and the history of her stay in Australia in relation to study and work, indicates that the applicant is in Australia for a temporary stay as a student. The Tribunal weighs this consideration against the applicant.
(emphasis added)
At the conclusion of paragraph [18], the Tribunal indicated that it weighed the “long period of absence from her family and her home country, and the history of her stay in Australia in relation to study and work” against the Applicant. At the conclusion of paragraph [19], the Tribunal indicated that it weighed the various circumstances which “indicate[d] that the applicant is in Australia for a temporary stay as a student” against the Applicant. In the course of paragraphs [18] and [19], the Tribunal considered and evaluated the criterion in cl 500.212(a), including her “strong interest in nursing”, a matter in favour of the Applicant. The evaluation of the evidence and weighting of different factors was a matter for the Tribunal.
For Ground 3 to succeed, the Applicant would need to demonstrate that the conclusion challenged “that the Applicant is using the student visa program to extend her stay in Australia” was illogical, unreasonable or irrational.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), Crennan and Bell JJ stated (at [130] and [131]):
In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
(emphasis added)
I do not consider that the finding that the Applicant had a genuine and strong interest in nursing compels the conclusion of illogicality, unreasonableness or irrationality. The conclusion drawn to the Tribunal was one open to it having regard to the whole of the evidence and reasoning, including at [19]. The Tribunal’s reasoning indicates that it placed greater weight on matters other than the Applicant’s strong interest in nursing.
I am not satisfied that jurisdictional error is made out by reference to Grounds 5 or 7.
Ground 8
Ground 8 is that:
The Second Respondent made jurisdictional error by making findings of which there was no evidence being a), that the Applicant had commenced 14 different courses in Australia and b), that the applicant would have more opportunities for nursing employment in Australia than she would in Nepal.
At the Hearing, the Applicants abandoned that part of Ground 8 concerning whether there was no evidence “that the Applicant had commenced 14 different courses in Australia”. The finding that the Applicant had completed four out of 14 courses would appear to have as its origin in the Provider Registration and International Student Management System (PRISMS) record.[41]
[41] CB 203-204.
What remained of Ground 8 was the allegation that there was “no evidence… that the applicant would have more opportunities for nursing employment in Australia than she would in Nepal”.
The relevant findings are:
(a)“The Tribunal accepts there is a significant demand for qualified nurses in Nepal, and costs are lower. However, there is also demand in Australia” (at [18]);
(b)“It is difficult, therefore, to accept that at the end of 13 years in Australia, with little more than three or four visits to Nepal, she will be motivated to accept comparatively modest circumstances and opportunities in her home country. She submits that her potential is to earn between AU60,000- AUD74,000 in Australia. The Tribunal accepts there is a significant demand for qualified nurses in Nepal, and costs are lower. However, there is also demand in Australia and she has coped with the cost of living here for 10 years. The Tribunal is not persuaded the opportunities and economic circumstances for the applicant in Nepal will outweigh those opportunities and economic circumstances for the applicant in Nepal will outweigh those in Australia. It weighs this significantly against the applicant” (at [18]); and
(c)“If so, nursing qualifications are a sensible choice because of the scale of opportunity for a qualified nurse in Australia” (at [19]).
The Applicants’ oral submissions focussed on the sentence: “The Tribunal is not persuaded the opportunities and economic circumstances for the applicant in Nepal will outweigh those opportunities and economic circumstances for the applicant in Nepal will outweigh those in Australia” (at [19]).
There was some dispute between the Applicants and the Minister as to whether the phrase “opportunities and economic circumstances” was to be read disjunctively (as contended by the Applicants)[42] or as a composite phrase (as contended by the Minister). The Applicants’ contention was that sentence was intended to convey that (1) the Tribunal was not satisfied that the opportunities for the Applicant in Nepal outweighed those in Australia, and (2) the Tribunal was not satisfied that the economic circumstances for the Applicant in Nepal outweighed those in Australia. Reading the reasons as a whole, and avoiding adopting an unduly narrow approach,[43] I agree with the Minister’s interpretation of the sentence (i.e. that the phrase “opportunities and economic circumstances” is a composite phrase).
[42] See Applicants’ submissions at [19].
[43] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Kirby J (at 291).
The basis for the Tribunal’s Decision findings concerning nursing opportunities in Australia and Nepal would appear to include the following:
(a)Genuine Entry Statement of the Applicant:
“Currently in Nepal, there is an extreme shortage of nurses, particularly in rural areas of the country and there is an urgent need to train highly skilled nursing staff to deal with the growing need for heath care in Nepal”. [44]
(b)Letter from Results Migration to Tribunal dated 14 November 2019:
“In Nepal there is an extreme shortage of nurses, particularly in rural areas of the country, and there is an urgent need to train highly skilled nursing staff to deal with the growing need for healthcare”.[45]
(c)The Tribunal recorded the following responses to the Tribunal’s questions:
“In the nursing home in Australia she earned approximately AUD 22.60 per hour”.[46]
[44] CB 175.
[45] CB 138.
[46] CB 218.
The apparent intention of the Applicant was to convince the Delegate that there were significant opportunities for a nurse in Nepal, a goal the Applicant appeared to have achieved when the Tribunal found “there is a significant demand for nurses in Nepal…” (at [18]). The bland statement that followed “there is also demand in Australia” merely states a proposition of which the Tribunal was entitled to take notice (noting [121(c)], above), namely that there are nursing jobs in Australia. It says nothing about the extent of those jobs.
It is unclear what the Tribunal was referring to by the “scale of opportunity” for a qualified nurse in Australia (at [19]). While not completely free from doubt, I have concluded that the reference to “scale of opportunity” is a reference to the extent of financial reward. As to the matter of “scale”, the Applicant submitted to the Tribunal that she had potential to earn between $AUD 60,000-AUD 74,000 in Australia. There was evidence before the Tribunal in the form of a “Cost of Living Comparison Between Brisbane and Kathmandu” which indicated that “Average Monthly Net Salary (After Tax) was 93.34% less in Kathmandu”.[47] The Applicants’ submission to the Tribunal acknowledged that “there is an economic disparity between Nepal and Australia”.[48] I note that the Applicants gave oral evidence before the Tribunal (at [3]), but there is no transcript in evidence before me.
[47] CB 43.
[48] CB 136.
On the basis of the material before me I am unable to draw the conclusion that there was “no evidence” to support the Tribunal’s finding that it was “not persuaded the opportunities and economic circumstances for the applicant in Nepal will outweigh those in Australia.” I consider that this statement and the Tribunal’s conclusion that “the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily” (at [20]) was one open to it.
I am not satisfied that jurisdictional error is made out by reference to Ground 8.
CONCLUSION
As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error, the Application for review must be dismissed.
Costs
I will hear the parties on the question of costs.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 2 June 2025
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