Sedhai v Minister for Immigration and Citizenship
[2025] FedCFamC2G 833
•3 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sedhai v Minister for Immigration and Citizenship [2025] FedCFamC2G 833
File number(s): SYG 913 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 3 June 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant applicant student visa – whether Tribunal required to exercise its power to obtain visa refusal decision concerning applicant’s wife – whether Tribunal made inconsistent findings – whether Tribunal made findings concerning courses, laws and policies in Nepal without evidence – whether Tribunal relied on personal or specialised knowledge to make findings – whether Tribunal made unwarranted assumption - application dismissed Legislation: Migration Act 1958 (Cth) 65, 348, 359(2), 368(1), 476, 499
Migration Regulations 1994 (Cth) cl 500.212 of Sch 2
Cases cited: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Mukiza [2022] FCAFC 89; 291 FCR 568
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398
Vo v Minister for Home Affairs [2019] FCAFC 108; 269 FCR 566
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 8 May 2025 Place: Parramatta Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Residency Legal Solicitor for the Respondents: Mr C Burke of Sparke Helmore Lawyers ORDERS
SYG 913 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARJUN SEDHAI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
3 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $8,371.30.
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 ZIPSER
INTRODUCTION
On 24 May 2021, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 5 May 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
Clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provided as a time of decision criterion for a student visa:
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether an applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction 69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” (Direction 69), made under s 499 of the Act, which required the Tribunal to have regard to specified factors in relation to:
(a)the applicant’s circumstances in their home country;
(b)the applicant’s potential circumstances in Australia;
(c)the value of the course to the applicant’s future; and
(d)the applicant’s immigration history.
FACTUAL BACKGROUND
In January 2019, the applicant, a citizen of Nepal, arrived in Australia as the holder of a visitor visa which was valid until April 2019.
On 10 April 2019, the applicant applied for a subclass 500 student visa to study an Advanced Diploma of Leadership and Management and a Diploma of Accounting.
On 9 October 2019, a delegate of the first respondent refused to grant the visa on the basis that the applicant did not satisfy cl 500.212 of Schedule 2.
On 17 October 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 3 February 2021, the Tribunal invited the applicant to provide information through a ‘Request for Student Visa Information’ form pursuant to s 359(2) of the Act, which the applicant subsequently completed and returned to the Tribunal.
On 26 March 2021, the Tribunal invited the applicant to attend a hearing on 12 April 2021.
On 12 April 2021, the applicant attended the hearing.
On 5 May 2021, the Tribunal made a decision affirming the decision under review not to grant the applicant a student visa.
TRIBUNAL’S DECISION
The Tribunal at [6]-[9] identified that the issue before it was whether the applicant satisfied cl 500.212(a) and, in considering this issue, it was required to have regard to Direction 69.
The Tribunal at [14] found that it “does not consider the applicant has sound reasons for not undertaking the proposed courses (or similar courses) in his home country of Nepal”.
The Tribunal at [15]-[16] considered the applicant’s personal ties to his home country. The Tribunal at [16] concluded that “having family in Nepal … was not a significant incentive to return to Nepal at the expiration of his visitor visa”.
The Tribunal at [17]-[19] considered the applicant’s economic circumstances. The Tribunal at [18] concluded that it was “not persuaded that the applicant’s economic circumstances would be a significant incentive for him to return to Nepal”.
The Tribunal at [20]-[23] considered the applicant’s potential circumstances in Australia. The Tribunal at [23] concluded “that the applicant does have ties to Australia that represent a strong incentive to remain”.
The Tribunal at [24]-[32] considered the value of the proposed course to the applicant’s future. The Tribunal at [32] concluded that it was “not satisfied that the proposed courses will be of any real assistance to the applicant in obtaining employment or improving his employment prospects in his home country”.
The Tribunal at [34] considered the applicant’s immigration history. In 2016, the applicant was a dependant on his wife’s student visa application in Australia that was refused. The Tribunal was concerned “that the applicant’s wife (and therefore the applicant as well) did not meet the genuine temporary entrant criterion in 2016”.
The Tribunal at [36] concluded that, on the basis of the above, it was not satisfied the applicant intended genuinely to stay in Australia temporarily, and therefore he did not meet cl 500.212(a).
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to 8 May 2025
On 24 May 2021, the applicant filed an application in this Court which sought judicial review of the Tribunal’s decision.
On 31 July 2024, the applicant filed an amended application (Amended Application) which advanced four grounds of review (reproduced as written):
1.The Tribunal made a jurisdictional error in relation to the scope for the Applicant’s wife and child to join him in Australia as dependants.
a. As part of the law of irrationality or legal unreasonableness, illogical reasoning or fact-finding by a decision-maker on the way to a final conclusion may establish jurisdictional error: ARG15 v Minister for Immigration [2016] FCAFC 174 at [47];
b. The Tribunal has a duty to give proper consideration to the Applicant’s case, raising the question of whether the Tribunal has failed to effect active intellectual engagement in the circumstances of the case: Ngatoko v Minister for Immigration [2023] FCA 1165 at [53], [60];
c. The Tribunal may fail to exercise its jurisdiction by ignoring evidence that has acquired importance to the exercise of its jurisdiction: Minister for Immigration vSZSRS [2014] FCAFC 16; 309 ALR 67 at [54];
d. The Tribunal found at paragraph 15 of its decision that if the applicant received the visa, he “would be able to apply for dependant visas for his wife and child”;
e. The Tribunal found at paragraph 23 of its decision that the Applicant had strong ties to Australia in light of “the potential to bring his wife and child as dependants to Australia if he were granted a student visa”;
f. The Tribunal did not give proper consideration to the fact that or overlooked the evidence that the Applicant had listed his wife and child as “non-accompanying dependants” on his application for this visa and there was not scope by the time of its decision to add the Applicant’s wife and child as “accompany dependants” on the visa;
g. In any event, even if the Applicant’s wife and child were eligible to apply to join the Applicant as dependants on a subsequent visa, this matter should have been treated by the Tribunal as at most neutral to the Applicant’s satisfaction of the genuine temporary entrant criterion, as it was a course permitted by the Regulations.
2. The Tribunal made a jurisdictional error in relation to the previous application for a student visa by the wife of the Applicant.
a. The Tribunal’s decision is reviewable for legal unreasonableness where the Tribunal unreasonably fails to get information relevant to the proceeding before it under s 359 of the Migration Act 1958 (Cth) in the sense that there is no evident and intelligible justification for not doing so: DYI16 v Ministerfor Immigration [2021] FCA 612, [43]-[63]; Ismail v Minister forImmigration [2024] HCA 2 at [25];
b. In the alternative, the Tribunal may constructively fail to exercise its jurisdiction, including but not limited to where it fails to make an obvious inquiry into a critical fact the existence of which could easily be ascertained: Ismail v Minister for Immigration [2024] HCA 2 at [25];
c. The Tribunal found at paragraph 34 of its decision that the Applicant’s wife had previously been refused a student visa in 2016;
d. The Tribunal found at paragraph 34 of its decision that it was concerned that the applicant’s wife (and, therefore, on that occasion the applicant as well) did not meet the genuine temporary entrant criterion in 2016;
e. The Tribunal found at paragraph 34 of its decision that the refusal in 2016 by reference to the genuine temporary entrant criterion raised concern about satisfaction of the same criterion in the present case;
f. The Tribunal under the above authorities should have obtained the decision of the Delegate refusing the applicant’s wife the visa so as to ascertain the true basis for the refusal. In any event, the Tribunal should not have allowed a past failure to prejudice fulfilment of the genuine temporary entrant criterion in the present case.
3. The Tribunal made a jurisdictional error in relation to its findings of as to circumstances in Nepal.
a. As part of the law of irrationality or legal unreasonableness, illogical reasoning or factfinding by a decision-maker on the way to a final conclusion may establish jurisdictional error: ARG15 v Minister for Immigration [2016] FCAFC 174 at [47];
b. Relatedly, under the no evidence rule, an absence of logically probative evidence for a finding of fact may constitute jurisdictional error (FES17 v Minister for Immigration [2022] FedCFamC2G 1003, [31]-[32]);
c. The Tribunal found at paragraph 14 of its decision that the applicant did not have sound reasons for not undertaking his studies in Nepal;
d. The Tribunal found at paragraph 13 of its decision that “[e]ven in Nepal, there would be professional accounting courses that are quite distinct from business studies”;
e. The Tribunal found at paragraph 13 of its decision that a Bachelor of Business Studies in Nepal was not similar to a Bachelor of Accounting in Australia and the former would give the Applicant “the management and accounting skills and knowledge that he claims he is interested in”;
f. The Tribunal found at paragraph 32 of its decision that the Applicant’s proposed courses would not be of any real assistance to him in Nepal;
g. The Tribunal found at paragraph 31 of its decision that “workplace health and safety policies in Nepal may be very different to those of Australia” and “procedures and programs in order to meet [the] `legislative environment’ in Australia” would not be particularly helpful in terms of the `legislative environment’ of Nepal”;
h. The Tribunal found at paragraph 29 of its decision that the applicant “appears to have confused what it is that an account’s manager actually does”, that “an account manager is someone who looks after clients who do business what (sic) that particular company” and that the “Diploma of Accounting would [not] be relevant to this role”;
i. The Tribunal’s fact finding in these respects exceeded its jurisdiction in accordance with the above authorities as there was no relevant basis for the Tribunal’s suppositions as to, or reliance upon, circumstances in Nepal.
4. The Tribunal made a jurisdictional error by imposing a value judgement or arbitrary standard in relation to the conduct of the Applicant.
a. As part of the law of irrationality or legal unreasonableness, illogical reasoning or fact-finding by a decision-maker on the way to a final conclusion may establish jurisdictional error: ARG15 v Minister for Immigration [2016] FCAFC 174 at [47];
b. A finding of fact may be held legally unreasonable on the basis that it concerns human conduct and makes an assumption about that conduct which is not founded in the material before the Authority or otherwise supportable (BZI17 v Minister forImmigration [2022] FedCFamC2G 717 at [28]-[34], [48]) or may entail a failure by the decision-maker to consider the Applicant’s case or material in support of that case (DVS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 611 at [21], [65]);
c. The Tribunal found at paragraph 23 of its decision that the Applicant had ties to Australia which represent a strong incentive to remain;
d. The Tribunal found at paragraph 22 of its decision that the Applicant did not wish to spend time with his wife and child in Nepal;
e. The basis for the Tribunal’s conclusion was that the Applicant “has been separated from them by his own actions for over two years, with over one more year of study to complete”;
f. The Tribunal held that these were “not the actions of a man who wants to spend time with his wife and child”;
g. The Tribunal thereby made an unwarranted assumption or relied on a matter inconsistent with its earlier reasoning and its conclusions were therefore legally unreasonable.
On 29 July 2024, the applicant filed a written submission (AS).
On 14 August 2024, the first respondent filed a written submission.
On 14 March 2025, the registry of the Court informed the parties that the matter was listed for hearing on 5 May 2025, which date was changed to 8 May 2025 at the parties’ request.
Hearing on 8 May 2025
At the hearing in this Court on 8 May 2025, Oliver Jones of counsel appeared for the applicant, and Cormac Burke from Sparke Helmore Lawyers appeared for the first respondent.
A Court Book was tendered (CB) which contained the Tribunal’s decision and documents before the Tribunal.
Mr Jones and Mr Burke made oral submissions which supplemented their written submissions. The submissions are addressed below.
CONSIDERATION
Ground 1
The Tribunal, in considering the applicant’s potential circumstances in Australia, found at [23]:
The Tribunal considers that the applicant does have ties to Australia that represent a strong incentive to remain. That is, his family ties and the potential to bring his wife and child as dependants to Australia if he were granted a student visa. The Tribunal has concerns that the applicant is using the student visa to maintain ongoing residence in Australia and in doing so, is attempting to circumvent the intentions of the Australian migration program.
The nub of ground 1 appears in particulars (f) and (g).
It is contended in particular (f) that, contrary to the finding that the applicant had “the potential to bring his wife and child as dependants to Australia”, “there was not scope by the time of its decision to add the applicant’s wife and child as accompanying dependants on the visa”.
If the applicant had no potential to bring his wife and child to Australia, as dependants or members of his family unit, if he were granted a student visa, the Tribunal may have misconstrued the legislative scheme, which might be a jurisdictional error. However, during the hearing in this Court on 8 May 2025, Mr Jones accepted that it was possible for the applicant to bring his wife and child to Australia, as dependants or members of his family unit, if he was granted a student visa.
It is contended in particular (g) that, even if the applicant’s wife and child were eligible to apply to join the applicant as dependants on a subsequent visa, “this matter should have been treated by the Tribunal as at most neutral to the applicant’s satisfaction of the genuine temporary entrant criterion”. The explanation given for this contention, at AS [21], is that “it cannot be held against the applicant for the purpose of the genuine temporary entrant criterion that he may avail himself of an option recognised by the Regulations that would enable his family to join him”. Paragraph 11(a) of Direction 69 required the Tribunal to have regard to “the applicant’s ties with Australia which would present as a strong incentive to remain in Australia”, which may include “family … ties”. I consider that it was open to the Tribunal to reason, as it did at [23], that the potential for the applicant to bring his wife and child to Australia contributed to a finding that the applicant “[had] ties to Australia that represent a strong incentive to remain”. I disagree with the applicant’s contention to the Court on this issue. Contrary to the applicant’s contention, that the Regulations permitted the applicant to bring his wife and child as dependants to Australia did not neutralise or diminish the weight the Tribunal could place on this matter.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
The Tribunal stated at [34]:
Lastly, the Tribunal has also considered the applicant’s immigration history. He does not have any other Australian visa application pending a decision. There is no evidence that he has been refused a visa or had a visa cancelled by a country other than Australia. He said that in 2016, he was a dependant on his wife’s application for a student visa in Australia that was refused in August 2016. He said in his questionnaire response that it was refused [as] his wife did not meet the criteria for a student visa. At the hearing, he said that his wife had not submitted the documents required for the visa and was not given further time to submit any documents. The Tribunal has difficulty accepting this explanation. It is common for the Department to request that an applicant provide further documentation in support of their application and they are given time to do so. It is unlikely that the applicant’s wife was not permitted time to provide missing documents. It follows that the Tribunal has difficulty accepting the explanation given by the applicant as to why he and his wife were not granted student visas in 2016. It raises concern that the applicant’s wife (and therefore the applicant as well) did not meet the genuine temporary entrant criterion in 2016, which in turn raises concern about the applicant’s current application for student visa.
The nub of ground 2 appears in particular (f) which states that the Tribunal “should have obtained the decision of the delegate refusing the applicant’s wife the visa so as to ascertain the true basis for the refusal”. It is stated at AS [22] that this was “an obvious enquiry”, although the applicant’s written submission does not explain why the Tribunal’s conduct was legally unreasonable or otherwise involved jurisdictional error.
For the following reasons, this ground does not identify a jurisdictional error in the Tribunal’s decision.
First, the Tribunal, in the “Request for Student Visa Information” form emailed to the applicant on 3 February 2021, requested information concerning previous visa refusals, and the applicant provided information in response. Specifically, the applicant’s response at CB 105 records the following questions and answers by the applicant:
Q: … has the Main Applicant ever been refused a visa to any country (including Australia) …
A: Yes.
Q: Please give details of the country, type of visa, as well as the date and the reason it was refused ….
A: I have a previous Australian visa refusal. Please find below the details:
Subclass: 500 as a secondary applicant with my wife
Refused on 26 August 2016
As my wife did not meet the criteria – I was also not granted the student visa.
The applicant chose not to explain why the wife’s student visa was refused, and did not provide to the Tribunal a copy of the refusal decision concerning the wife (Wife’s Refusal Decision).
Second, the Tribunal’s decision at [34] indicates there was discussion at the hearing as to why the applicant’s wife was refused a student visa. In light of the discussion, the applicant was on notice that the reason for the Wife’s Refusal Decision was relevant to the Tribunal’s consideration of whether the applicant was a genuine temporary entrant. The applicant again had an opportunity to provide a copy of the Wife’s Refusal Decision to the Tribunal in the weeks between the hearing before the Tribunal on 12 April 2021 and its decision on 5 May 2021, but did not do so.
Third, in Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 (DUA16) at [28] the High Court referred to its earlier observation in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [20] that:
The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
In circumstances where:
(a)the applicant neither provided a copy of the Wife’s Refusal Decision to the Tribunal, nor asked the Tribunal to exercise its powers to obtain a copy;
(b)the applicant provided the Tribunal with an explanation for the Wife’s Refusal Decision, albeit an explanation the Tribunal did not accept;
(c)the reason the wife was refused a student visa was one of many matters considered by the Tribunal in deciding whether the applicant was a genuine temporary entrant; and
(d)the Tribunal did not make an adverse finding against the applicant arising from the reason the wife was refused a student visa, but instead this gave rise merely to a “concern about the applicant’s current application for student visa” (Tribunal at [34]),
I consider that the Wife’s Refusal Decision was not “of critical significance to” the Tribunal’s decision. Further, I consider that in these circumstances, the Tribunal’s failure to exercise its power to obtain a copy of the Wife’s Refusal Decision was clearly not “an exercise of power so unreasonable that no reasonable person would have so exercised it”: DUA16 at [28]
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3
The Tribunal stated at [13]:
He also said that a Bachelor degree in Business Studies in Nepal is similar to a Bachelor in Accounting in Australia, but he does not want to study this course because he does not want to become a professional accountant. The Tribunal does not accept that these courses would be similar. Even in Nepal, there would be professional accounting courses that are quite distinct from business studies. The Tribunal considers that if the applicant were to undertake a Bachelor of Business studies in his home country, it would give him the management and accounting skills and knowledge that he claims he is interested in. Furthermore, in the time it would take the applicant to complete the proposed courses (ie. 3 years), he could complete a Bachelor degree in his home country.
The Tribunal stated at [31]:
The Tribunal considers that the applicant has simply referred to the units that are taught in this type of course. For example, the workplace health and safety policies in Nepal may be very different to those of Australia. Similarly, learning about procedures and programs in order to meet “legislative environment” in Australia would not be particularly helpful in terms of the “legislative environment” of Nepal. The applicant has simply referred to the types of matters that might subjects taught in this course rather than explain how the Advanced Diploma of Leadership and Management will actually assist him in future employment, including working for the multinational companies he cited or for the family business.
In relation to the Tribunal’s findings that:
(a)“in Nepal there would be professional accounting courses that are quite distinct from business studies” (at [13]);
(b)a Bachelor of Business course in Nepal “would give [the applicant] the management and accounting skills and knowledge that he claims he is interested in” (at [13]); and
(c)“the workplace health and safety policies in Nepal may be very different to those of Australia” and “learning about procedures and programs in order to meet legislative environments in Australia would not be particularly helpful in terms of the legislative environment of Nepal” (at [31]),
it is contended in particular (i) to ground 3 (which contains the nub of ground 3) that the Tribunal’s fact finding exceeded its jurisdiction “as there was no relevant basis for the Tribunal’s suppositions as to, or reliance upon, circumstances in Nepal”.
In relation to the Tribunal’s findings in paragraph 47 (a) and (b) above, it is stated at AS [24] that the Tribunal made these findings “without evidence, or logical foundation, as to the availability of professional accounting courses and the content of a Bachelor of Business degree in Australia”.
In relation to the Tribunal’s findings in paragraph 47 (c) above, it is stated at AS [25] that “the Tribunal assumed that differences between workplace health and safety and the legislative environment between Nepal and Australia meant that Australian studies were necessarily unhelpful”, the Tribunal did not have evidence to make this assumption, and “there is no basis for concluding that the Tribunal was applying facts which were common knowledge or based on its personal or specialised knowledge”.
For the following reasons, these matters do not identify a jurisdictional error in the Tribunal’s decision.
First, it is relevant to note that the applicant did not contend that any of the findings in paragraph 47 above were wrong.
Second, the mere fact that the Tribunal did not identify evidence on which it relied in support of a finding of fact does not mean the Tribunal did not rely on evidence. Pursuant to s 368(1) of the Act, the Tribunal’s written statement of decision must “set out the findings on any material questions of fact” and “refer to the evidence or any other material on which the findings of fact were based”. The statutory obligation to refer to evidence does not extend to evidence in support of findings concerning questions of fact which the Tribunal did not consider to be material: see Vo v Minister for Home Affairs [2019] FCAFC 108; 269 FCR 566 at [43(7)]. I consider that the questions of fact the subject of the findings in paragraph 47 above, were not, and were not considered by the Tribunal to be, material.
Third, in Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Mukiza [2022] FCAFC 89; 291 FCR 568 (Mukiza) the Full Court of the Federal Court considered the circumstances in which the Tribunal could make a finding concerning a matter without express evidence in support of the finding before the Tribunal. The Federal Court carefully considered the High Court’s decision in Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398. In that case, the High Court stated at [18] that there was “nothing in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant, and in determining whether the Minister is satisfied that there is ‘another reason’ for revocation”. In Mukiza at [49] the Federal Court found that the Tribunal, like the Minister acting personally, and the Minister’s delegate, “may act on its personal or specialised knowledge and on matters which are commonly known”. While this finding concerned the Tribunal’s task during a review of a decision under s 501CA(4), no provision of the Act suggests that the Tribunal may not also use personal or specialised knowledge, or commonly accepted knowledge, for the purpose of making findings during a review under s 348 of the Act. The applicant, in written and oral submissions to this Court, did not contend otherwise.
The findings of fact at [13], the subject of the applicant’s complaints in ground 3, involve a comparison between a bachelor degree in Business Studies in Nepal and the Australian course the subject of the student visa application. Paragraph 9(a) of Direction 69 required the Tribunal to have regard to “whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there”. Decision-makers will develop or accumulate personal or specialised knowledge over time relating to this factor. As in Mukiza at [44] (see also at [60]), “the proper inference, it not being suggested that the Tribunal simply made the matter up…, is that the Tribunal acted on its personal or specialised knowledge”.
The findings of fact at [31], the subject of the applicant’s complaint in ground 3, involve a consideration of whether the Australian course, the subject of the student visa application, would assist the applicant obtain employment in Nepal. Paragraph 12(a) and (b) of Direction 69 required the Tribunal to have regard to “whether the course will assist the applicant to obtain employment … in their home country” and “relevance of the course to the student’s … proposed future employment … in their home country”. Again, decision-makers will develop or accumulate personal or specialised knowledge over time relating to this factor. As in Mukiza at [44] (see also at [60]), “the proper inference, it not being suggested that the Tribunal simply made the matter up…, is that the Tribunal acted on its personal or specialised knowledge”. Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 4
Pursuant to paragraph 11 of Direction 69, the Tribunal was required to consider the applicant’s potential circumstances in Australia. This, in turn, required the Tribunal to consider whether the applicant might want to bring his wife and child to Australia if he was granted a student visa. As recorded by the Tribunal at [21], the applicant told the Department that his wife and child “do not want to join the applicant in Australia” and, in his statement to the Department, he explained that:
I want to be able to spend time with my wife and kid. If they come here it is going to be very hard for me and them. Therefore I do not want them to come here in Australia.
The Tribunal at [22] stated that it had concerns about the applicant’s explanation. One concern was as follows:
The second issue is that the applicant claims to want to spend time with his wife and child. However, he has been separated from them by his own actions for over two years, with over one more year of study to complete. This is not the actions of a man who wants to spend time with his wife and child. Furthermore, it cannot be the birth of their child that changed the applicant’s mind about bringing his wife to Australia, since their child was born on 10 February 2015 before they applied for her Australian student visa. It follows from this reasoning that the [Tribunal] must reject the applicant’s claim about his views regarding his brother’s life and family circumstances in Australia.
Ground 4 challenges the Tribunal’s statement that the applicant’s conduct was “not the actions of a man who wants to spend time with his wife and child”. It is contended in particular (g) of ground 4 that this was either “an unwarranted assumption” or “inconsistent with its earlier reasoning”.
In relation to the contention that the Tribunal’s finding involved “an unwarranted assumption”, it is stated at AS [26]:
The Tribunal characterises a separation of 3 years as necessarily indicating that the applicant does not wish to be reunited with his wife and child. However, a separation of that length, while difficult, could be worthwhile if it would improve the applicant’s life with and provision for his wife and child. It was wrong for the Tribunal to take such an inflexibly negative view of the separation.
I do not accept that the Tribunal’s finding involved an unwarranted assumption. I consider that it was open to the Tribunal to opine that the applicant’s actions, which caused him to be separated from his wife and child for two years with one more year of study to complete, “is not the actions of a man who wants to spend time with his wife and child”. Mr Jones did not contend that it was not open to the Tribunal to express this opinion. That the applicant considered that the Tribunal’s opinion was “inflexibly negative” (AS [26]) does not identify an error in the opinion, let alone a jurisdictional error.
In relation to the contention that the Tribunal’s finding was “inconsistent with its earlier reasoning”, it is stated at AS [27]:
… the Tribunal cannot have it both ways. It has earlier held it against the applicant that he may wish to bring his wife and child to Australia as dependants on his visa [since] this undermines the extent to which the applicant has ties to Nepal and enhances the scope for the applicant to have and further develop ties with Australia. Then, at a later point in its reasons, the Tribunal … regards [the separation of the applicant from his wife and child] as weighing against the applicant having only temporary ties with Australia.
I agree that the Tribunal at [15] relied on the fact that the applicant may wish to bring his wife and child to Australia as a factor in support of its conclusion that the applicant’s family in Nepal “was not a significant incentive to return to Nepal at the expiration of his visitor visa”. I disagree that the Tribunal’s reasoning at [22] was inconsistent with its reasoning at [15]. The Tribunal at [21]-[22] considered the applicant’s statement to the Department that his wife and child did not want to join the applicant in Australia, and his explanation in support of this statement. For reasons explained by the Tribunal at [22], it did not accept the explanation. The last sentence of [22] makes it clear that the Tribunal at [22] was considering, and did not accept, the applicant’s explanation in support of his statement to the Department that his wife and child do not want to join the applicant in Australia. It follows that the finding at [22] challenged by the applicant in ground 4 was consistent with, or least not inconsistent with, the Tribunal’s findings at [15]-[16].
Ground 4 does not identify a jurisdictional error in the Tribunal’s decision.
Since no grounds in the Amended Application identify a jurisdictional error in the Tribunal’s decision, the Amended Application must be dismissed.
COSTS
At the conclusion of the hearing, the agreed position between the parties was that the losing party should be ordered to pay the successful party’s costs in the scale amount of $8,371.30. I will order that the applicant pay the first respondent’s costs in the scale amount of $8,371.30.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 3 June 2025
0
13
2