Sapkota v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 510
•11 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sapkota v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 510
File number(s): SYG 2704 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 11 April 2025 Catchwords: MIGRATION – judicial review – Administrative Appeals Tribunal – student visa – Nepal – genuine temporary entrant – unreasonableness – illogicality – whether Tribunal erred by considering matters beyond length of stay for the purposes of cl. 500.212(a) – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 359
Migration Regulations 1994 (Cth) sch 2 cl 500.212
Cases cited: BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729
Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25; (2022) 288 FCR 1
DFY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 169
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of hearing: 13 March 2025 Place: Parramatta Counsel for the Applicant: Mr Young Solicitor for the Applicant: Shamser Thapa & Associates Counsel for the First Respondent: Ms Gollan Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2704 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PHADINDRA SAPKOTA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
11 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application filed 27 November 2020, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS:
By amended application filed on 12 February 2025, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 2 November 2020. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicant a Student (Temporary) (Class TU) visa (the visa) under s 65 of the Migration Act 1958 (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.
BACKGROUD
The applicant is a citizen of Nepal. He first arrived in Australia on 31 March 2019 on a tourist visa, which was valid for three months from the date of entry.
On 30 April 2019, the applicant applied for the student visa. On 14 August 2019, the delegate refused to grant the visa. On 3 September 2019, the applicant sought review of the delegate’s decision.
On 5 June 2020, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act and invited him to provide information to demonstrate that he meets the visa requirements in relation to enrolment and being a genuine applicant for entry and stay as a student.
The applicant’s response to the invitation, which included a completed Student Visa Information Form (RFSVI Form), indicated that he consented to the Tribunal deciding the review without a hearing. Accordingly, the Tribunal decided the review based on the information before it without a hearing.
On 2 November 2020, the Tribunal decided to affirm the delegate’s decision not to grant the applicant a student visa.
THE TRIBUNAL’S DECISION
The Tribunal referred to the criteria for the grant of a student visa and relevantly set out the requirement in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The dispositive issue on the review was whether the applicant was a genuine temporary entrant.
The Tribunal also noted that it was required to consider the factors set out in Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69). It went on to consider all the factors it considered relevant to determining if the applicant satisfied cl 500.212(a) of the Regulations.
In respect of the applicant’s immigration history, the Tribunal had regard to the information contained in the RFSVI Form submitted by the applicant.
The Tribunal noted that within a month of arriving onshore on a FA 600 Tourist visa, the applicant lodged an application for a student visa on 30 April 2019. He also submitted Confirmation of Enrolments (COEs) that would extend his stay in Australia until at least 8 May 2022, extending his initial stay of 3 months to over 3 years. The Tribunal expressed concerns regarding this drastic change, especially considering its findings that the applicant’s studies would not benefit him in terms of future business prospects or an ability to be more highly renumerated. This was so, the Tribunal reasoned, because the applicant had run his own business and been the manager of Princla Cold Stores since November 2006 until May 2018 in Nepal. The Tribunal also found that Australia was the only country that the applicant had visited outside of Nepal and placed weight on this factor and his immigration history (CB 109, [18]).
In relation to the applicant’s circumstances in his home country, the Tribunal referred to the evidence that the applicant had given that the courses he had chosen to study in Australia were also available in Nepal, but that the applicant alleged that the courses in Nepal ‘would not be of good quality as they provide in Australia’. The Tribunal gave little weight to this response, as the applicant acknowledged that the chosen courses were available back in Nepal and did not provide any evidence showing that those courses were not the same as in Australia (CB 109, [20]). The Tribunal considered evidence provided by the applicant that he ‘undertook research of many universities/colleges in Sydney as I wanted to remain in Sydney.’ The Tribunal gave it significant weight as it indicated that the applicant had already completed some research into courses available in Sydney before arriving in Australia on a visitor visa.
The Tribunal also considered the personal ties that the applicant had with his home country. The Tribunal noted that he contacted his wife, daughter and son, still living in Nepal, ‘almost every day’ but did not consider this to serve a significant incentive to return to Nepal. The Tribunal also considered his economic circumstances in Nepal. He had land in his name valued at AUD 110,000 and other land in his father’s name valued at AUD 20,179. Despite having worked as a manager and owner of Princla Cold Stores, the applicant did not provide an annual salary in his s 359(2) response. His annual living expenses in Australia were AUD21,820 and the Tribunal recorded the applicant’s statement that his family would support him financially during his studies.’ The Tribunal placed limited weight on the applicant’s response regarding his economic circumstances, given he did not provide a salary for his job in Nepal and was fully financially supported by his family.
The Tribunal expressed concerns as to why the applicant left his employment prior to coming to Australia, given he came on a three-month tourist visa, and noted he was being fully financially supported by his family to study here. The Tribunal did not accept that the applicant and his family had not budgeted or planned for the applicant to extend his stay and considered that the economic circumstances within Australia for the applicant would present a strong incentive for the applicant not to return to his home country.
The Tribunal did not make adverse findings against the applicant in terms of cl 9(d), 9(e), and 10 of Ministerial Direction No. 69 as there was no evidence the applicant had military obligations and limited evidence before Tribunal regarding the applicant’s home country relative to the circumstances of others in that country.
While the applicant stated ‘N/A’ in his s 359(2) response when asked about having significant ties in Australia, the Tribunal gave this little weight as the applicant stated, in his statement of purpose, that he had friends in Sydney who had provided him with recommendations for his courses. The Tribunal also found it highly likely that he was living with friends or family (given his low accommodation costs) (CB 110-111, [27]-[28]).
The Tribunal referred to the fact that there was evidence that the applicant had completed a General English course through Southern English College, between 6 May 2019 and 18 October 2019. The applicant subsequently commenced a Certificate IV in Business at the Southern Academy of Business and Technology on 28 October 2019, that was due to be completed by 25 August 2020. The Tribunal noted that at the time of its decision in November 2020, the applicant should have completed this course, but had not provided any confirmation of completion. Further, the Tribunal found that the applicant proposed to commence a third course, being a Diploma of Leadership and Management through the Southern Academy of Business and Technology, which was due to start on 9 November 2020, and finish on May 2022 (CB 111, [28]).
Further, the Tribunal did not accept that the course that the applicant proposed to study would improve his future employment prospects. In his statement of purpose, the applicant stated he was ‘confident that [his] business, management and leadership skills will certainly enable [him] to make further progress in [his] career’. The Tribunal gave this statement little weight given the applicant was previously the owner and manager of Princla Cold Stores since 2006.
The Tribunal also placed weight on the fact that the applicant had entered Australia on a three– month tourist visa but did not have the intention of remaining in Australia temporarily on that visa, as within a month of arrival the applicant had applied to extend his stay in Australia by applying for a student visa to extend his stay until May 2022. The Tribunal noted that approximately 18 months later, the applicant remained in Australia having never departed since first arriving. The Tribunal did not accept that the applicant intended genuinely to stay in Australia temporarily or that he was a genuine student. For these reasons the Tribunal considered the student visa program was being used to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.
In the circumstances, the Tribunal held that it was not satisfied that the applicant met cl 500.212(a) of sch 2 of the Regulations and therefore that he was not a genuine applicant for entry and stay as a student, as required by cl 500.212 of Sch 2 of the Regulations. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa.
APPLICATION TO THIS COURT
On 27 November 2020, the applicant filed the originating application in this Court and the affidavit of Shamser Singh Thapa. The affidavit merely annexed the decision of the Tribunal, which was in the Court Book, therefore it was not necessary for this affidavit to be read into evidence.
On 4 February 2021, the Court ordered by consent that the applicant file and serve an amended application and any additional evidence on or before 30 April 2021, and written submissions 28 days before the hearing; and that the Minister file and serve a copy of the Court Book by 19 March 2021 and written submissions 14 days before the hearing.
On 12 March 2021, the Minister filed a copy of the Court Book. The Court Book was tendered into evidence at the final hearing and marked as Exhibit CB.
The matter was originally listed for final hearing on 6 March 2025, however, on 17 January 2025, the Court ordered by consent that the final hearing on 6 March 2025 be relisted to 13 March 2025.
On 12 February 2025, the applicant filed an amended application, an outline of submissions, and a list of authorities. At the final hearing leave was granted for the amended application to be relied upon. On 27 February 2025, the Minister filed an outline of submissions.
On 13 March 2025, Mr Young of Counsel appeared on behalf of the applicant at the final hearing. Ms Gollan of Counsel appeared on behalf of the Minister. The oral submissions developed the parties’ written submissions.
GROUNDS OF REVIEW
The amended application for judicial review contains seven grounds; grounds one to five, which were advanced in the originating application, are no longer pressed.
Grounds six and seven, being the two grounds of judicial review pressed by the applicant, are as follows (without alteration):
6. The Second Respondent made jurisdictional error by making a decision and engaging in reasoning which was and were unreasonable
Particulars
a) At [19] – [21] at CB 109– 110, the Second Respondent engaged in irrational reasoning confusing whether a similar course was available in the home country and studying the course in Australia.
b) At [22] at CB 110, the Second Respondent concluded that because the Applicant made contact with his wife, daughter and son in Nepal almost every day, that his personal ties would not serve as a significant incentive to return to Nepal.
c) At [23] and [24] at CB 110, the Second Respondent confused salary and landholding and thereby failed to give consideration to the Applicant's landholding in Nepal.
d) At [27] at CB 110–111, the Second Respondent made unreasonable conclusions about evidence relating to community ties and personal ties and confused the evidence before it.
e) The Second Respondent made unreasonable assumptions and reached unreasonable conclusions concerning evidence that the Applicant was paying $1800 per annum for accommodation.
f) The Second Respondent factored into its assessment as a negative factor against the Applicant the decision of the Delegate which the Second Respondent was required to review.
g) The Second Respondent at [31] at CB 111 treated evidence which it described as speculative and vague as being the foundation of a conclusion that it did not accept that the Applicant's future lay outside of Australia.
7. The Second Respondent made jurisdictional error by making legal error as to the construction of clause 500.212 of the Migration Regulations 1994.
Particulars
a) The Second Respondent considered whether the Applicant was a "genuine student."
b) The legal error is that subclause (a) of 500.212 is solely concerned with how long the Applicant intends to stay in Australia.
Ground six
By ground six the applicant contends that the Tribunal, in making its decision, had engaged in reasoning that was unreasonable. The applicant takes issue with the Tribunal’s reasoning (and related findings), as set out in particulars (a) to (g), each of which the applicant contends were so unreasonable such that they led to the Tribunal making a decision that was affected by jurisdictional error.
Relevant legal principles
The Minister’s submissions set out some relevant legal principles when considering the ground of legal unreasonableness, which I agree with and to which I have had regard. The authorities relied upon by the Minister included the following:
·In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11] (per Kiefel CJ) it was held that the test for unreasonableness was ‘necessarily stringent’.
·In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], the High Court stated ‘unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification’.
·In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [133] it was observed that ‘the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it’. Their Honours further stated at [135] that:
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
·In Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060 (Ludgero), Judge Lucev stated at [23] and [24]:
[23] The Court has no jurisdiction to engage in merits review, and the Tribunal's fact-finding is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 (NADR) at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (Wu Shan Liang), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[24] … Mere assertion of jurisdictional error as a cloak for mere disagreement with the Tribunal Decision cannot succeed, because mere disagreement with the Tribunal Decision does not amount to jurisdictional error: Re Minister for Immigration & Multicultural Affairs; ex parte s20/2002 [2003] HCA 30 … [and] are no more than a request for impermissible merits review.
The Minister’s submissions also refer to several authorities relevant to the consideration of matters when reaching a decision. The Minister relied upon Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317, wherein Robertson J said at [112]:
As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.
The Minister also relied upon DFY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 169, wherein Gleeson J said:
[27] An administrative decision maker will fall into administrative error if it ignores relevant material, which is so fundamental that it goes to jurisdiction: WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 at [21]. Whether the IAA was obliged to consider evidence will depend on the circumstances of the case and the nature of the evidence: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77].
[28] The requirement that a decision-maker give proper, genuine and realistic consideration to matters that he or she is required to consider does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Singh at [36].
In applying the above principles, it is important to bear in mind that the threshold for finding jurisdictional error on the ground of illogicality, irrationality or legal unreasonableness (or varieties thereof) is a high one and is not a finding to be made lightly: BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 at [45]-[46] (Perry J).
Further, in determining whether the Tribunal’s decision was legally unreasonable, the Court must have regard to the terms, scope and policy of the statutory source of the power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [9].
In conducting the review, the Tribunal was required to determine, as required by cl 500.212 of Schedule 2 to the Regulations, whether the applicant was 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
….
(iv) any other relevant matter;
In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69.
Direction No. 69 provides guidance to decision makers when considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. It requires decision makers to assess whether, on balance, the genuine temporary entrant criterion is satisfied, by: (a) considering the applicant against all factors specified in this Direction; and (b) considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
The decision record indicates that the Tribunal, in undertaking the evaluative exercise required by Direction No. 69, had regard to the relevant factors pertaining to the applicant’s immigration history, circumstances in his home country and Australia, the value of the courses to the applicant’s future and other relevant matters. The applicant takes issues with the Tribunal’s findings and considerations of some of these factors.
Particular (a)
By particular (a) the applicant alleges that at [19] to [21] of its decision, the Tribunal engaged in ‘irrational reasoning confusing whether a similar course was available in the home country and studying the course in Australia.’ The applicant argued that the Tribunal, at [21] of its decision, expressed the view that the availability of similar courses in the home country itself was sufficient evidence that the applicant had not provided reasonable reasons for undertaking the courses in his home country. It was submitted that a statement of purpose which had been provided clearly stated that while similar courses were offered in Nepal, they were inferior to those provided in Australia. As such, the applicant argued, that he had provided a reasonable basis for not undertaking the courses in his home country.
Paragraph 9(a) of Direction No. 69 required the Tribunal to consider:
whether the applicant has reasonable reasons for not undertaking the study in their home country or region if similar courses is already available there. Decision makers should allow for any reasonable motives established by the applicant
The Tribunal’s decision demonstrates that it took into account the applicant’s reasons for wanting to study in Australia. However, it gave his reasons little weight on the basis that the applicant had not provided evidence to substantiate his claim that similar courses, which were available in Nepal, did not offer the same subjects as in Australia or that the courses would provide him with the opportunity to work in a world class establishment in his home country of Nepal. The Tribunal considered that, as similar courses were available in Nepal, the applicant had not provided reasonable reasons for not undertaking the courses in his home country. It was open for the Tribunal, for the reasons it gave, to give little weight to the applicant’s claims. While another Tribunal may have apportioned different weight or reasoned differently, it cannot be said that the Tribunal’s consideration of the evidence and its finding with respect to the reasons given by the applicant as to the courses he wanted to study in Australia lacked an evident and intelligible justification or that the Tribunal’s finding was closed to it.
Particular (a) does not establish jurisdictional error.
Particular (b)
By particular (b), the applicant alleges that the Tribunal erred in finding that because he had contact with his wife, daughter and son in Nepal ‘almost every day’ that his personal ties overseas would not serve as a significant incentive to return to Nepal. The applicant argued that this is ‘not just unreasonable, it is quite inhumane’. It was suggested that if there was no contact for a lengthy period, there might have been some basis for such a conclusion. The applicant submitted that the Tribunal’s approach was to overly scrutinise his responses with a view to placing the ‘worst possible construction on everything’.
Paragraph 9(b) of Direction No. 69 required the Tribunal to consider the extent of the applicant's personal ties to his home country and whether they would serve as a significant incentive for him return there. The Tribunal took into account the applicant’s evidence that his wife and children remained in Nepal. It also had regard to the evidence that he maintained contact with them almost every day. The Tribunal was not satisfied that the applicant’s personal ties in Nepal (his wife and children) would provide a strong incentive for him to return to Nepal because the applicant had been able to maintain contact with them ‘almost every day’. This was a finding of fact for the Tribunal to make based on the evidence before it and its assessment of that evidence. Again, while another Tribunal may have reasoned differently, it cannot be said that the Tribunal’s reasons and conclusion were not open to it or that it was so illogical or irrational that no reasonable decision maker could have so found on the same evidence.
Particular (b) does not establish jurisdictional error.
Particular (c)
By particular (c) the applicant takes issue with the Tribunal’s reasons at [23] and [24] of its decision. The applicant contends that they demonstrate the Tribunal’s confusion between the applicant’s salary and landholding which led to its failure to give consideration to the applicant’s landholding in Nepal. It was submitted that the applicant had indicated he had land in his name and in his father’s name which would appear to be a matter favourable to the applicant. It was submitted that the Tribunal ‘side-stepped’ the relevance of the landholding and focused on the applicant not having provided his salary as the manager of a business in Nepal. The applicant submitted that the applicant had described himself as a manager (self-employed) and left the annual salary block empty in the response form, which by implication meant that he was not drawing a salary.
Paragraphs 9(b) and 9(c) of Direction No. 69 required the Tribunal to consider employment ties and economic circumstances in their home country and whether they would serve as a significant incentive to return to their home country.
As submitted by the Minister, the Tribunal was clearly aware of the value of the applicant’s landholdings (as well as the land in his father’s name and its value) and referred to these assets at [23] of its decision. The Tribunal also took into account that the applicant had not provided details about his annual salary as the manager and owner of the business (Princla Cold Stores). It was not for the Tribunal to speculate on why the applicant did not provided details of any salary and I do not accept the applicant’s submission that the Tribunal should have inferred that the applicant was drawing no salary. I accept, as submitted by the Minister, that the fact the applicant had not indicated what he lived off in terms of a salary or other income in Nepal was clearly relevant to the Tribunal’s evaluative task, and that it was entitled to take into account the absence of this information when assessing whether the applicant’s economic circumstances provided an incentive for him to return to his home country. Having taken into account the applicant’s circumstances, including that he had extended his initial stay and was being financially supported by his family while he was in Australia and that he had stopped his employment in Nepal prior to travelling to Australia, the Tribunal concluded at [24] that the applicant’s economic circumstances had presented ‘a strong incentive for the applicant not to return to his home country’. The Tribunal’s consideration of the applicant’s (and his father’s) landholdings was clearly part of the ‘mix’ of matters that it considered and how much weight it gave to each factor was a matter for it.
The Tribunal took into account the evidence before it relevant to its consideration of the applicant’s employment and economic circumstances. The Tribunal gave reasons for its conclusion. The Tribunal’s reasoning was not so illogical or irrational that no reasonable decision maker could have so reasoned. Nor can it be said that the Tribunal’s conclusion, given the matters it took into account, were not open to it on the evidence before it.
Particular (c) does not establish jurisdictional error.
Particulars (d) and (e)
By particulars (d) and (e), the applicant takes issue with the Tribunal’s considerations at [27] about community and personal ties which he contends were based on unreasonable assumptions and led to the Tribunal reaching an ‘unreasonable’ conclusion.
In its reasons the Tribunal stated at [27]:
The applicant stated “N/a” in his s.359(2) response when asked about having any significant ties in Australia. The Tribunal gives little weight to the applicant's response, given that he stated in his Statement of Purpose to the Tribunal that he has friends in Sydney who have provided the applicant with recommendations for his courses. Given the applicant's minimal housing/accommodation expenses of AUD1,800 per annum, the Tribunal would be inclined to believe that the applicant is possibly living with extended family and/or friends, or with other members of the strong Nepalese community in Sydney. For these reasons, the Tribunal considers the applicant does have ties with Australia that would present as a strong incentive to remain in Australia.
The applicant submitted that the question in the form was about community ties in Australia (and it gives an example of involvement in community groups or organisations) and was not a question about personal ties. It was submitted that the information in the statement provided by the applicant indicating that he had spoken to a few people in Sydney was not inconsistent with any other information he had provided. The applicant contends that it was unreasonable for the Tribunal to conclude that a person living in Sydney had a strong incentive to remain in Australia because he had spoke to a few people in Sydney about courses.
It was further submitted that the Tribunal was not entitled to speculate on where the applicant was living and that even if he was living with family, friends or members of the strong Nepalese community in Sydney, it was not a basis for stating that there was a strong incentive to remain in Australia. It was submitted that the applicant was simply organising cheap accommodation whilst in Australia. The applicant also took issue with the Tribunal’s reference to the ‘strong’ Nepalese community, arguing that it suggests that members of that community were more likely to breach visa conditions or lie about their intention to stay in Australia temporarily than other communities.
As part of its evaluative exercise, the Tribunal had regard to paragraphs 11(a) of Direction No. 69 which required it to consider ‘the applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties. It was in the context of this factor that the Tribunal had regard to the information provided by the applicant on the form and in his statement to the Tribunal. I accept the Minister’s submission that it was open to the Tribunal, on the evidence before it, to give little weight to the applicant’s response on the form (that the question about having ties in Australia was ‘not applicable’ to him) given there was other evidence before the Tribunal which indicated that the applicant did have friends in Sydney (with whom he spoke about courses of study) and where the amount he was paying for housing/accommodation (which the applicant concedes was ‘very low’) suggested he may have been ‘possibly living with family and/or friends or members of the ‘strong’ Nepalese community in Sydney’.
The Tribunal’s conclusion did not lack an evident and intelligible justification. Nor can it be said that the Tribunal’s reasoning was seriously illogical or irrational. I have not been persuaded that the Tribunal’s reasoning (and speculation) about the applicant’s living arrangements was based on an assumption which no reasonable decision maker could have made given the applicant’s ‘very low’ accommodation expenses in Sydney.
The Tribunal did not say anything (nor can an inference be drawn from its reasons) which suggests members of the Nepalese community were generally more likely to breach visa conditions or not be truthful about their intentions to stay in Australia temporarily. This is not a fair criticism of the Tribunal’s reasons.
In the context of the evaluative task it was required undertake, the Tribunal’s reasoning at [27] and its conclusion that the applicant had ties in Australia which would present as a strong incentive to remain in Australia was not, in my view, closed to it.
Particulars (d) and (e) do not establish jurisdictional error.
Particular (f)
By particular (f) the applicant takes issue with the Tribunal’s reasons at [28], which the applicant contends had unreasonably or illogically ‘factored into its assessment as a negative factor against the applicant the decision of the delegate which the Tribunal was required to review’. It was submitted that the Tribunal had engaged in illogical reasoning when concluding that the applicant was using the student visa program to circumvent the intention of the migration program and to maintain ongoing residence in Australia.
A fair reading of the Tribunal’s reasons indicate that the Tribunal was simply stating that it was required to assess at the time of its decision (‘[t]he Tribunal now must decide’) whether the applicant intended genuinely to stay in Australia temporarily (‘a genuine temporary entrant’) having regard to all the circumstances and evidence before it at that time. Fairly read, the reference to the applicant having been refused a visa by the Department was not a factor it took into account against the applicant, rather it was part of the narrative about the events which occurred since the applicant first arrived in Australia on a visitor visa (some 18 months earlier), which was supposed to have been for a period of three months.
I accept the applicant’s submission that there was no legal impediment (or restriction) on the applicant applying for a student visa onshore from a visitor visa. However, nothing in the Tribunal’s decision suggests that it erroneously considered the applicant’s onshore visa application which was not provided for (or restricted) by the legislation. While the ability to make the application onshore was lawfully available, it was not erroneous of the Tribunal to consider this course of action in its overall assessment as to whether the applicant intended to genuinely stay in Australia temporarily.
The Tribunal at [28] of its reasons sets out the evidence before it pertaining to the applicant’s initial enrolment in the various courses and study in Australia up until the time of its decision. It noted the evidence before it that the applicant had completed an English course, that he subsequently commenced another course (which should have been completed, but for which there was no evidence of completion) and that the applicant had also proposed a third course (the Diploma of Leadership and Management) which was due to finish on 8 May 2022. Having regard to that history, as assessed as at the time of its decision, the Tribunal formed the view that the applicant was using the student visa program to maintain ongoing residence in Australia.
As part of its evaluative task, the Tribunal was required to take into account all the relevant evidence before it as at the time of its decision. Whilst another Tribunal may have formed a different view or come to a different conclusion on the same evidence, it cannot be said that the Tribunal’s conclusion, for which it gave reasons, was not one that a reasonable decision maker could have arrived at on the material before it. Nor can it be said that the Tribunal’s process of reasoning in that regard was irrational or illogical or that its conclusion (or the view it formed about the applicant’s intentions) lacked an evident and intelligible justification.
Particular (f) does not establish jurisdictional error.
Particular (g)
By particular (g) the applicant takes issue with the Tribunal’s reasoning at [31], wherein the Tribunal considered that the applicant’s future plans were ‘speculative and vague’ because he had not indicated what type of job he expected to get on his return to Nepal. The Tribunal concluded at [31] that ‘given the limited information provided by the applicant the Tribunal does not accept that the applicant’s future plans lie outside of Australia’. The applicant contends that this conclusion could not reasonably have been based upon what the Tribunal regarded as vague evidence.
Paragraph 12 of Direction No. 69 required the Tribunal to consider the value of the courses that the applicant was seeking to undertake in Australia to his future, including the relevance of those courses to his past or proposed future employment in his home country. The Tribunal’s consideration in respect of this factor is set out at [29]–[31] of its decision. The Tribunal observed that the applicant had been managing his own business in Nepal since 2006 and was not satisfied that the two VET sector level courses would improve his future employment prospects. It gave little weight to the applicant’s claim about his earnings following completion of the courses because the applicant had not provided details about his remuneration before coming to Australia. The Tribunal observed that no details had been provided about the type of job the applicant expected to get on his return to Nepal. Having regard to these observations, the Tribunal was not satisfied that the applicant’s future plans lay outside Australia and gave little weight to the value of the courses to his future.
It was for the Tribunal to consider and evaluate the evidence before it. It was also for the Tribunal to attribute weight to evidence and the matters to which it had regard. The Tribunal’s reasons for not being satisfied that the applicant’s future plans lay outside Australia were open to it for the reasons it gave. The Tribunal’s reasoning did not involve illogicality or irrationality, nor was it illogical or unreasonable for it to conclude that the applicant’s evidence in this regard was vague or to rely on that finding. It cannot be said that its conclusion was so unreasonable that no reasonable decision maker would have arrived at the same conclusion.
Particular (g) does not establish jurisdictional error.
Ground 7
The applicant contends that the Tribunal erred by considering whether the applicant was a ‘genuine student’, in circumstances where subclause (a) of 500.212 of Sch 2 of the Regulations is solely concerned with how long the applicant intends to stay in Australia: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros) per Allsop CJ at [13]. The applicant takes particular issue with the Tribunal’s statement at [28] wherein it said:
The Tribunal now must decide, given the applicant's current onshore visa refusal, whether the applicant is now a genuine temporary entrant and a genuine student.
It was contended that the question whether the applicant was a ‘genuine student’ was entirely irrelevant.
The Minister argued that this ground is misconceived and should be dismissed. The Minister also relied upon Eros wherein Allsop CJ said at [8]:
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 (emphasis in original).
It was submitted that Allsop CJ had made clear that it is relevant to cl 500.212, for the decision-maker to determine whether the applicant is a genuine applicant for entry ‘as a student’.
As considered in Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25, cl 500.212 requires satisfaction of a single state of affairs, that being whether the applicant is a genuine applicant for entry and stay as a student. Each of sub-cls (a), (b) and (c) are integral elements of the criterion and the applicant must satisfy each sub-cl to qualify as a ’genuine applicant for entry and stay as a student’. However, if an applicant does not meet sub-cls (a) or (b) alone, it is not necessary to continue the enquiry: [31] – [32].
It is plain from the decision that the Tribunal only assessed whether the applicant met cl 500.212(a), which was concerned with whether he genuinely intends to stay in Australia temporarily. The Tribunal relevantly considered the criteria in cl 500.212(a)(i), (ii) and (iv) and ultimately concluded that cl 500.212(a) had not been met. It follows, as found by the Tribunal at [35], that the whole of cl 500.212 could therefore not be satisfied. There was no error in the Tribunal confining its consideration to cl 500.212(a). In the circumstances, it was entitled to go on and conclude that the whole of cl 500.212 (that the applicant is a genuine applicant for entry and stay as a student) had not been met.
The facts of this case are entirely distinguishable from those in Eros. In that case, the Court held that it was not open for the Tribunal to find that applicant did not intend to stay in Australia temporarily (i.e. did not satisfy cl 500.212(a)) when it had made findings that the applicant intended to stay in Australia for the duration of her daughter’s graduate work visa, which was for a period of two years. Allsop CJ found that, on any view, this period was a temporary period of stay. His Honour observed that the Tribunal’s finding was only consistent with a finding that Ms Eros intended to stay temporarily and there was no finding that she would stay longer (beyond the two years).
In the present case there was no finding by the Tribunal which suggested that the applicant intended to stay in Australia for some other purpose (for a temporary period) which had been misconstrued by the Tribunal when considering whether the applicant met cl 500.212(a). The Tribunal considered each of the relevant matters in cl 500.212(a) as guided by Direction No. 69 and made several findings, which were open to it on the evidence, which led it to conclude that it was not satisfied that the applicant intends genuinely to stay in Australia temporarily. Having found that the applicant did not satisfy cl 500.212(a), it was open for the Tribunal to conclude that cl 500.212 had not been met.
Ground 7 does not establish jurisdictional error.
CONCLUSION
As none of the grounds raised by the applicant establish jurisdictional error, it follows that the application for judicial review must be dismissed.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 11 April 2025
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