Subedi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 127
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Subedi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 127
File number: SYG 124 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 6 February 2025 Catchwords: MIGRATION - Administrative Appeals Tribunal - Student (Temporary) (class TU) (subclass 500) visas refused – whether the Tribunal committed jurisdictional error by failing to take into account relevant considerations – whether the Tribunal misconstrued or misapplied genuine temporary entry criteria pursuant to cl 500.212 – no jurisdictional error occurred – application dismissed. Legislation: Migration Act 1968 (Cth) ss 65, 65(1)(b), 499.
Migration Regulations 1994 (Cth) sch 2 cls 500.212, 500.212.(a).
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Dongalen v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 838
FEH18 v Minister for Immigration, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293
Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 570
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 879
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 22 January 2025 Place: Parramatta Solicitor for the Applicants: Mr Warraich (HUK Legal Services) Solicitor for the First Respondent: Ms Evans (Sparke Helmore) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 124 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BISHNU SUBEDI
First Applicant
RAJU ADHIKARI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is to be amended to read ‘Minister for Immigration and Multicultural Affairs’.
2.The application is dismissed.
3.The First and Second Applicants are to pay the First Respondents costs fixed in the sum of
$4,767.00$7,467.00.
THE COURT NOTES THAT:
A.The Orders made on 6 February 2025 are amended pursuant to r 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) to amend Order 3 to correct the costs amount ordered.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”), as it was then, dated 18 December 2019 to affirm a decision of a delegate of the Minister for Home Affairs (“delegate”) to refuse to grant the applicants Student (Temporary) (class TU) (subclass 500) visas (“the visa”).
For the reasons set out below, the application must be dismissed.
BACKGROUND
The first applicant is a citizen of Nepal. The second applicant is the husband of the first applicant and is listed as a member of the applicant’s family unit.
The first applicant initially arrived in Australia on 18 March 2009 with her husband on a student (subclass 572) visa that was valid until 28 March 2011. She was granted further student visas on 20 April 2011 and 8 May 2014.
On 12 May 2017, the first applicant applied for the visa which is the subject of this judicial review application.
On 10 January 2018, a delegate of the Minister refused to grant the visas as the delegate was not satisfied the first applicant genuinely intended to stay in Australia temporarily and thus did not meet the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”).
The applicants sought merits review at the Tribunal.
On 18 December 2019, the Tribunal affirmed the decision not to grant the applicants the visa.
On 16 January 2020, the applicants sought judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal noted that in considering if the applicants met the requirements under cl 500.212(a), it must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ made under s 499 of the Migration Act 1968 (Cth) (“the Áct”) and the factors specified within it.
The Tribunal noted that the Provider Registration and International Student Management System (“PRISMS”) record referred to in the delegate’s decision indicated that the first applicant had obtained fifteen confirmations of enrolment in nine different courses across six education providers. The first applicant had completed courses in General English, Certificate III and Diploma in Children’s Services, Diploma of Business, Advanced Diploma of Business and a Bachelor of Business (Professional Accounting). Other enrolments were cancelled for reason of non-commencement of studies, transferring to other education providers and non-payment of fees.
At the time of the Tribunal’s decision, the applicant was enrolled in a Diploma of Leadership and Management, which was due to end on 12 July 2020. The applicants at the time of the Tribunal’s decision had remained in Australia on student visas for over 11 years.
The Tribunal considered the circumstances in the applicant’s home country. The first applicant stated that she was aware of courses similar to the Leadership and Management course in Nepal however she wanted the opportunity to study in a multicultural environment like Australia. The first applicant touched on the educational quality she can gain in Australia in a Statement of Purpose (“Statement”) provided to the Tribunal and partially reproduced at [14].
The Tribunal considered the first applicant to be motivated to remain in Australia to study, rather than return home and found that she did not have sound reasons for wanting to undertake further study. It did not find that the applicant liking the weather and living conditions a satisfactory reason to remain in Australia and continue studying given her study history [15].
The Tribunal noted that the applicant has gone offshore on four occasions for a combined total of 85 days [16].
Although the first applicant’s parents, grandmother, two sisters and brother all live in Nepal, who she stated she is in daily contact with, the applicant still has family connections in Australia. Her brother and sister-in-law live in Australia as well as her cousin and sister-in-law’s brothers.
Further, the applicant’s husband owned a business in Nepal which generated AUD $15,000.00 per month in income and the applicant is also financially supported by her father. Both applicants have worked in Australia, the applicant works in childcare doing 10 to 15 hours per week while her husband drives for Uber on Friday and Saturday nights.
The applicants stated that they own farming land in Nepal. She used to go to church and the temple, she used to be social with work friends prior to having a baby, and they do not own any assets in Australia.
The Tribunal, in considering the extent of the first applicant’s personal and economic ties to her home country, found that the matters do not represent strong ties to her home country or an incentive to return home. The first applicant’s personal connections overseas were not considered to be an incentive to cease her residence in Australia given that she has been able to manage personal relations overseas [21].
The Tribunal did not make any findings as to the state of civil or political unrest in Nepal as a factor affecting the applicant’s incentive to return or not to return home.
The Tribunal considered the applicant’s circumstances in Australia from [23] to [26] with particular attention to the earning capacity of her and her husband, the circumstances of the birth of her daughter in 2018, her studies being affected by the pregnancy, the significant time periods in which she was not studying, namely from December 2010 to January 2013, November 2015 to May 2016, June 2016 to May 2017.
The applicant addressed the periods of time she was not studying in her Statement claiming that from January 2016 to January 2017 she had severe pain with no improvement which necessitated her return to Nepal to get proper treatment. The Tribunal was not satisfied with this explanation given that medical records provided to the Tribunal indicated that she was in the hospital for a limited period of time and her evidence stated that she returned to Nepal in 2017 to visit her mother and not to seek medical treatment.
For the second period dating November 2015 to May 2016, the Tribunal noted that this corresponded with her employment as an accountant at Oceania. No explanation was provided for the gap dating December 2010 to January 2013.
Whilst the Tribunal accepted the applicant’s evidence that her pregnancy would have made study difficult, the Tribunal did not accept that she could not study for significant periods of time prior to this. It was more likely that the applicant was occupied with work, which was a motivating factor to apply for a further student visa.
In noting the length of time the applicant and her husband have remained onshore, their lengthy work periods, socialisation with colleagues and the knowledge that would come from living in a country for over 10 years, the Tribunal considered that this was a strong incentive for the applicant to remain in Australia.
The applicant previously applied for a temporary resident visa however she was unsuccessful as she did not pass the English test. This raised a concern of the applicant’s genuine intentions.
At [34] the Tribunal held that, when considered together, the applicant’s oral and written evidence and the information within the Department files raise a concern that the applicant applied for a further student visa in order to stay in Australia and circumvent the intentions of the migration system.
In assessing the value of the course to the applicant, the Tribunal had regard to the applicant’s work history in Nepal, her intentions after having worked in childcare and accounting in Australia to open her own childcare centre in Nepal and an offer letter dated 19 September 2019. The Tribunal noted that this job offer was made 11 months before the commencement date which coincided with the completion date of her Diploma of Leadership and Management course. Although the job was expected to pay around 50,00 to 60,000 rupees per month the applicant did not want to accept the job offer as she wanted to open a childcare centre.
The Tribunal was not satisfised with the applicant’s evidence as to how the course would assist in her opening a childcare centre. It was vague and unclear how it will also assist her to obtain employment or improve the prospects of finding employment or be a requirement for an accounting job or in opening a childcare centre. There was also no evidence to show that completion of the course will increase her remuneration.
The Tribunal raised concerns as to the applicant wanting to study her third Diploma and obtaining a Diploma level qualification which is a lower level than the Bachelor level she has already studied at. The course was not regarded as being consistent with her level of education and as such remaining in Australia would be of little use.
The Tribunal affirmed the decision not the grant the applicant’s visas.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained in an Originating Application filed on 16 January 2020. They are as follows (less particulars):
1.The Second Respondent made a jurisdictional error by failing to take into account relevant considerations.
2.The Second Respondent misconstrued or misapplied the GTE Test pursuant to cl.500.212.
THE APPLICANT’S SUBMISSIONS
The applicants appeared before the Court represented by Mr I Warraich of HUK Legal Services.
Despite Court orders of 21 March 2024 and 31 October 2024, no written submissions or other material was provided to the Court by the applicant’s legal representative in support of their case. At the commencement of the case, Mr Warraich was asked why no written submissions had been filed. He responded that he proposed to just rely upon the documents already filed and make oral submissions.
This posed a number of problems for both the Court and the legal representative of the Minister. First, both the Court and the legal representative of the Minister were unaware of what might be said. If any new matter was raised, as a matter of procedural fairness, the Court would need to consider adjourning the matter to enable the legal representative of the Minister to consider and then respond to these new issues.
The Court’s attention was drawn by Ms Evans, appearing for the Minister, to Dongalen v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 838, a decision of Judge Kendall of 5 September 2024. A similar issue arose in that case with Mr Warraich. At [45] – [49] the following appears:
[45] Unfortunately, and somewhat unusually given that the applicants were legally represented before the Court, no written submissions were filed on behalf of the applicants ahead of the hearing. This is despite clear orders requiring Mr Warraich to do so. When asked why no written submissions had filed, Mr Warraich informed the court that his preferred approach was to “make its submissions orally”.
[46] This approach is less than ideal. While expected and accommodated when applicant appeared without legal representation, more is expected from those who hold themselves out to be experience migration counsel.
[47] The Court expressed “concerns” about Mr Warraich’s conduct in this regard but ultimately allowed him to proceed – noting that if Mr Cunynghame (for the Minister) was unable to respond to any of the matters raised in Mr Warraich’s oral submissions, the Court would give him more time within which to do so (either orally or in writing).
[48] Mr Cunynghame demonstrated remarkable patience in this regard and the court thanks him for his cooperation and assistance.
[49] The Court notes that the assistance provided by Mr Warraich in this matter was “limited”. While the Court always prefers that applicants have the benefit of legal assistance, occasionally (but not often) that assistance fails to reach a standard that is, in fact, helpful.
The fact that Mr Warraich, notwithstanding the comments of Judge Kendall, set out above, continued in this Court with the same disregard for the orders of the Court regarding the filing of written submissions is very concerning. Orders of the Court are not optional at the discretion of legal representatives.
Mr Warraich’s conduct as a legal practitioner has previously been the subject of adverse criticism by this Court. In Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 570, Judge Blake at [49] – [50] described Mr Warraich’s attitude in circumstances where he failed to provide any explanation for the late filing of a review application or to properly address the Court on the factors that it should consider in deciding whether to extend time as being “cavalier”. At [54] Judge Blake stated that:
Mr Warraich should regard himself as being on notice that the Court is also far from satisfied that he has complied with rule 4 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, in particular, rule 4.1.3, which provides that a solicitor must ‘deliver legal services competently, diligently and as promptly as reasonably possible’.
Other matters in which the Court has criticised Mr Warraich’s conduct as a legal practitioner include Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138 (Judge Laing); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 879 (Judge Ladhams); FEH18 v Minister for Immigration, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293 (Judge Given). This has included personal costs orders being made against Mr Warraich. The Court is aware there are other matters where Mr Warraich’s conduct as a legal practitioner has been criticised by Courts. This criticism reveals a long-standing pattern of behaviour which must call into account Mr Warraich’s continued fitness to practice as a legal practitioner. This issue however is not a matter for this Court.
In the circumstances, the approach adopted by the Court was to allow Mr Warraich to make oral submissions and adjourn the hearing, if required, should any matter arise that could not be dealt with in Court by Ms Evans.
Mr Warraich’s oral submissions were less than helpful. They did not address the grounds of judicial review that were before the Court with reference to the particulars in each ground. Rather, they were simply broad assertions. He first submitted that the Tribunal erred by not considering the whole of the applicant’s circumstances including her previous study. The Tribunal applied its discretion narrowly and improperly. In his response to the Minister’s submissions, he again asserted the Tribunal fell into error as it should have exercised its discretion broadly and allowed the applicant to continue with further study.
THE RESPONDENT’S SUBMISSIONS
Ms Evans, on behalf the first respondent firstly addressed Mr Warraich’s oral submissions. In relation to the issue of any discretion that the Tribunal may have had, the role of the Tribunal was to assess whether or not the applicant met the genuine temporary entrant requirements. If the Tribunal concluded the applicant did not, it had no discretion to grant the applicant for the visa, due to the operation of s 65 of the Act.
The first respondent addressed each particular raised by the applicant underground one.
Particular (a) is a complaint that the Tribunal failed to consider that the applicant was enrolled in the Diploma of Leadership and Management course, which was scheduled to commence on 15 July 2019 and complete on 12 July 2020. The first respondent submits that the Tribunal’s decision was in fact based on the applicant’s desire to continue studying this course and whether she intended to stay in Australia temporarily. The Tribunal referred to the timeframe of the course and the applicant’s studying the course did not mean that the Tribunal ought to be satisfied that the applicant met cl 500.212.(a).
Particular (b), is a complaint that the Tribunal failed to consider the applicant’s study history and satisfactory progress. That the Tribunal placed adverse weight on the study history in assessing the genuine temporary entrant criteria did not mean that those factors were overlooked.
Particular (c) contends that the Tribunal did not consider that the applicant had paid her tuition fees and was still studying. It was submitted these were not matters that meant the applicant was a genuine temporary entrant, nor was it a prescribed factor for consideration under Direction No.69. The review was conducted on the basis that the applicant was enrolled at the time of the decision.
Particular (d) complains that the Tribunal did not consider the applicant will not be eligible to obtain a Diploma certificate if they are unable to continue the study. This claim was not made by the applicant and was not before the Tribunal. The first respondent argues that this matter is irrelevant to the issue of whether the applicant intended genuinely to stay in Australia temporarily which is what the Tribunal had to consider. Further, the applicant did not demonstrate that this was a mandatory consideration to be made.
Particular (e) is a complaint that the applicant’s interest about the current course was disregarded and her desire to achieve “an internationally recognised degree” was overlooked. The applicant’s preference to study in Australia was considered at [14]. Additionally, the Tribunal considered the value of the course to the applicant’s future and the applicant has not shown what interest the Tribunal regarded in their determination and moreover why any personal interest was a mandatory consideration for the issue under review.
In regard to particular (f), the first respondent contends that the Tribunal considered the applicant’s personal ties to Nepal including her family that still lives in Nepal, at [17] of the decision. It ultimately found that the circumstances did not represent strong ties to her home country nor a strong incentive to return home.
As to particular (g), it is contended that the Tribunal did expressly refer to the applicant’s intention to open her own business in Nepal after completing her course and this factor was not overlooked. The Tribunal determined that the course would be of little use to the applicant for any future aspirations such that the application for a further student visa raised a concern of her intentions to stay in Australia temporarily.
In ground two, the applicant contends that the Tribunal misconstrued or misapplied the test in cl 500.212. The particulars do not provide any basis for the ground argued and the ground essentially seeks impermissible merits review; (see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
Particular (a) is a statement that the applicant has returned to Nepal four times since arriving in Australia. The particular does not contend that this was not considered by the Tribunal, however it was expressly considered by the Tribunal at [16] – [21] with the determination that these circumstances did not provide strong ties to Nepal.
Particular (b) complains that the Tribunal did not consider that it is not unusual for an individual to change career paths. The Tribunal did not make any findings in regard to this, and no jurisdictional error is revealed in this complaint. Instead, the Tribunal made a finding that it was vague and unclear how the proposed course would assist her prospects in either career choice.
Particular (c) concerns the job offered to the applicant as an accountant upon completion of her studies. The applicant complains that the Tribunal did not consider this. The Tribunal expressly considered the point at [10] and [33]-[38].
Particular (d) contends that the value of the course to the applicant’s future was not considered. However, there is a detailed consideration of this, as required by Direction No 69 at [33]-[38] of the Decision Record.
Particular (e) contends that the Tribunal did not consider that the applicant’s circumstances in Australia are less favourable than they were in Nepal, because she was working 10-15 hours in childcare in Australia whilst in Nepal she was employed as a fulltime pre-school teacher and had a job offer. The Tribunal had regard to these factors in their decision but found that the applicant had a strong incentive to remain in Australia.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is for the applicant to provide her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction; (see: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [76]. The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”; (see: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82]).
Reasons of a Tribunal are not to be scrutinised “with an eye finely attuned to error”. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. Nor is it necessarily required to provide reasons of the kind that might be expected of a Court of law; (see: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]). Further at [47] the Court said as follows:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The task of the Tribunal in this matter was to consider if the applicants met the genuine temporary entrant (“GTE”) requirement for the grant of the visa sought. In so doing the Tribunal was required to consider the matters set out in cl 500.212 and Ministerial Direction No.69. What follows, as set out in the Tribunal decision record, is an orthodox, fulsome and thorough discussion of the evidence that was before the Tribunal and the conclusions it came to, based on that evidence. The fact that the applicants disagree with the conclusion arrived at does not point to jurisdictional error.
In relation to the issue of discretion, the Court agrees with the first respondent’s submission that the task of the Tribunal was to decide whether or not the applicant met the criteria prescribed in order for the visa to be granted pursuant to s 65(1)(b). If the Tribunal was not satisfied the criteria were met, it was required to refuse to grant the visa. The submission that the Tribunal somehow had a discretion to grant the visa is completely misconceived and wrong at law.
Ground One
Ground one is an allegation that the Tribunal made a jurisdictional error by failing to take into account relevant considerations. A number of particulars are then provided. The Court does not accept that the Tribunal fell into the error alleged.
The Tribunal expressly acknowledged that the applicant was now enrolled in a further course at [13]. The applicant’s study history was set out in some detail at [12] and [26] – [28]. This included periods of time when the applicant was not studying. The fact that the applicant had already paid her tuition fees and was currently studying was not a factor that required consideration under Direction No 69. The Court is satisfied the Tribunal proceeded on the basis that the applicant was currently enrolled as at the time of its decision as it expressly noted that her current course of study would end on 12 July 2020, some six months after the Tribunal decision.
In relation to the claim the Tribunal did not consider the applicant would not be eligible to obtain her diploma certificate if she was unable to continue studying, the Court is satisfied the Tribunal would have been aware of this possibility however it was not required to consider it under Direction No 69. The Court considers this was a matter that was unnecessary for the Tribunal to make a finding on.
The Court is satisfied the Tribunal did not disregard the applicant’s interest in the current course or her desire to achieve an internationally recognised degree. The Court is satisfied the Tribunal did consider the applicant’s preference to study in Australia at [14]. The Court is also not satisfied that interest in the course was a mandatory consideration which was required under Direction No 69. This issue had taken into account the overall consideration of the applicant’s claims.
The Court is satisfied the Tribunal properly considered the applicant’s significant ties to Nepal at [17]. The conclusion reached by the Tribunal that these did not represent strong ties or an incentive to return home was a conclusion that was available to the Tribunal based on the evidence before it and the reasons it gave.
The Court is satisfied the Tribunal specifically referred to the applicant’s intentions to open her own business in Nepal at [24] –[36]. The conclusion that the proposed course she was studying would be of little use to her was a conclusion that was open to the Tribunal on the evidence that was before it and for the reasons it gave.
Ground one has no merit.
Ground Two
Ground two is the contention the Tribunal misconstrued or misapplied the test in cl 500.212. The Court agrees with the respondent’s submission that the particulars provided do not point towards jurisdictional error, rather they simply seek to engage the Court in impermissible merits review.
The first particular is a statement that the applicant had returned home to Nepal on four occasions. This was considered by the Tribunal as part of its overall consideration. No jurisdictional error arises.
The second issue relates to a contention the Tribunal did not consider that it was not unusual for an individual to change career paths. As pointed out by the respondent, the Tribunal made no finding that the applicant had changed career paths. Such a finding was not put to the Tribunal and no error arises. The Court accepts that what the Tribunal found was that the applicant’s evidence regarding her career was vague as to how the course would help her prospects in either career given she was well-qualified in both childcare and accounting.
The third particular contains assertion the Tribunal did not consider the applicant had been offered a job as an accountant upon completion of her studies. This was expressly considered by the Tribunal at [10], [33] and [38].
The fourth particular contains the assertion the Tribunal did not consider the value of the current course of the applicant’s future. The Court is satisfied the Tribunal expressly considered this factor as required by Direction No. 69 at [33] – [38].
The last particular contains the assertion the Tribunal did not consider the applicant’s current circumstances in Australia were less favourable to what they were when she was Nepal. The applicant stated she was working 10 to 15 hours childcare in Australia but worked full-time as a preschool teacher in Nepal. The Court notes that the applicant indicated she wanted to open her own business and return to Nepal rather than accepting the accounting job. The Court is satisfied the Tribunal considered those factors but it was still open to it to find that the applicant had a strong incentive to remain in Australia.
Ground two has no merit.
In these circumstances, the application must be dismissed. The Court will hear from parties as to the issue of costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 6 February 2025
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