Acharya v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1537

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicants, a Nepalese married couple, lodged the present application on 30 March 2021 (the application) seeking a remedy under s 476 of the Migration Act 1958 (Cth) (the Act) in respect of a 4 March 2021 decision of the (then) Administrative Appeals Tribunal (now Administrative Review Tribunal (Tribunal)) affirming a decision to refuse the first applicant (the applicant) a Student (Temporary) (Class TU) Subclass 500 visa (student visa). The second applicant (and husband of the applicant) was a family member on the applicant's visa application.
2. The Tribunal was not satisfied that the applicant was a genuine applicant for temporary entry and stay as a student as required by cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) (Regulations).
3. The application to this Court for judicial review was made within the time stipulated in s 477(1) of the Act.
4. For reasons that follow, the Tribunal did not err, and the application must be dismissed.

1. On 31 May 2021, the first respondent, the (now) Minister for Immigration and Citizenship (Minister) filed a Court Book containing documents concerning the applicant's visa application, including a copy of the Tribunal decision the subject of the application (Court Book).
2. At the hearing, the Court received into evidence, without objection, the Court Book.
3. The Court also received into evidence, without objection, the affidavit of Binod Acharya (being the second applicant) affirmed on 20 March 2025. Mr Acharya stated that he had made an oral submission and given evidence before the Tribunal, but that there was no mention of that evidence in the Tribunal's decision record. He stated that he was in the process of getting the audio recording of the Tribunal hearing transcribed, but there was no express service available.
4. In the event, although the hearing of the application before this Court occurred on 17 April 2025, the applicants did not seek to tender a transcript of the hearing before the Tribunal, nor did the applicants request an adjournment for the purpose of obtaining such transcript.

1. The principal issue in the proceeding before the Tribunal was whether the applicant satisfied the requirements of cl 500.212 of sch 2 of the Regulations. That clause provides as follows:

500.212

The applicant is a genuine applicant for entry and stay as a student because:

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant's circumstances; and

(ii) the applicant's immigration history; and

(iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter; and

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

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

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

1. The Court may only make orders in respect of a decision of the Tribunal made under the Act where it is satisfied that the Tribunal decision is affected by jurisdictional error.
2. Jurisdictional error describes a failure, by a person or body given authority under a statute to exercise a power, to comply with a condition attaching to the exercise of that power, where that failure is of such a character as to warrant the conclusion that the purported decision or purported exercise of power lacks the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; fails to observe some applicable requirement of procedural fairness; and in some cases, makes an erroneous finding or reaches a mistaken conclusion: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 at [2]- [3] (LPDT).
3. In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: LPDT at [7].
4. The applicants relied upon an amended application filed with the Court on 20 March 2025.
5. The grounds of review are set out in full and addressed below, following a summary of the factual background.

1. The applicant, born 1 October 1979, is a citizen of Nepal.
2. The applicant entered Australia in April 2015 on a dependent Higher Education Sector visa (subclass 573). From September 2016, she then held two further dependent Higher Education Sector (subclass 500) visas.
3. On 4 February 2019, the applicant enrolled in a course of study, being a course in General English at the Australasian International Academy.
4. On 30 January 2019, the applicant made an application for a further student (subclass 500) visa. Her application stated that she wished to study English to increase her confidence in speaking, writing and reading prior to seeking any employment. The applicant listed her husband, Binod Acharya (the second applicant), as a member of her family unit in her visa application.
5. On 13 March 2019, a delegate of the Minister (the delegate) wrote to the applicant advising that her application for the student visa had been refused.

1. The delegate's decision record recorded the delegate's view that cl 500.212 in sch 2 of the Regulations was not satisfied.
2. The delegate referred to Ministerial Direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (the Direction) which set out the factors that must be taken into account when assessing the genuine temporary entrant criterion for student visa applications. The delegate noted that the Direction was made in accordance with s 499 of the Act. The delegate set out a summary of the factors to be considered arising from the Direction, which included, inter alia:
   • the applicant's circumstances in their home country;
   • the applicant's potential circumstances in Australia;
   • the value of the course to the applicant's future; and
   • the applicant's immigration history.
3. The delegate noted that the fact that the applicant's three dependent children were in Nepal, where they would remain until completion of their studies, may act as an incentive for her to return. The delegate weighed that against the presence of the applicant's spouse in Australia, which the delegate considered may be an incentive for the applicant to remain in Australia.
4. The delegate considered the absence of any history of employment in Nepal in the applicant's application and the absence of any information about significant financial assets in or business ties to Nepal and expressed serious concerns about whether the applicant intended to depart Australia at the completion of her studies.
5. The delegate opined that the lack of evidence provided by the applicant as to her investigation into any further study options in Nepal raised serious concerns regarding her motivation to study in Australia. The delegate also noted that at the time of the application, the applicant had resided in Australia for 1349 days (since April 2015) and spent only 30 days outside of the country since her initial arrival.
6. The delegate noted the applicant's statement of purpose, which was provided with her application, and concluded that it failed to demonstrate a realistic level of knowledge of her proposed course of study, was devoid of any ascertainable goals, and was vague in illustrating how the course of study would assist the applicant. The delegate gave weight to the fact that the applicant's continued residence in Australia until the completion of the course would bring her total time spent in Australia to just under five years, with minimal time spent outside the county.
7. On balance, the delegate considered that any ties to Nepal were outweighed by the absence of any financial and economic ties, the duration of time spent in Australia, the lack of clarity concerning the applicant's course of study, and failure to demonstrate any substantive utility of such study to the achievement of goals.
8. The delegate concluded that the applicant had not provided strong reasons for undertaking the study and found that the applicant was likely seeking to utilise the student visa program as a vehicle to extend her stay in Australia.
9. Ultimately, the delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia. The delegate concluded that the applicant did not meet the requirements of cl 500.212 of sch 2 of the Regulations and therefore refused the application for failure to satisfy the criteria for the grant of the visa.

1. On 25 March 2019, the applicant lodged her application for review with the Tribunal.
2. On 23 April 2020, the Tribunal wrote to the applicant with an invitation to provide information concerning the application. The invitation was contained in an attached letter which stated the following:

As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:

• enrolled in a registered course of study; and
• a genuine applicant for entry and stay as a student.

1. The letter advised the applicant that she would need to provide sufficient information to satisfy the Tribunal that she met both of those visa requirements. It invited the applicant to give the Tribunal, in writing, all relevant information about the course of study the applicant was undertaking and her entry and stay in Australia as a student. The letter directed the applicant to provide specific details about the requested information using the "Request for Student Visa Information" form, to which it provided a link, by 7 May 2020. The letter also provided the applicant with a copy of the Direction.
2. On 1 May 2020, the applicants' newly appointed migration agent emailed the Tribunal attaching a completed "Appointment of Representative Form".
3. On 6 May 2020, the applicants provided a completed Request for Student Visa Information form to the Tribunal.
4. In the form, the applicants stated that they did not consent to the Tribunal deciding the review without holding a hearing.
5. The applicant disclosed in the form that she first arrived in Australia in April 2015 and held a dependent (subclass 573) visa from March 2015, and two further Student (subclass 500) visas, the latter of which was granted in October of 2018.
6. The applicant disclosed that she had completed her course in General English in January 2020 and had enrolled in two further courses of study at the Australasian International Academy, being a Diploma of Business, and an Advanced Diploma of Business.
7. The applicant provided certificates for each of the courses she had undertaken.
8. On 29 September 2020, the Tribunal wrote to the applicants attaching an invitation to attend a telephone hearing on 14 October 2020, advising that on the material before the Tribunal alone, it was unable to make a decision that was favourable to the applicants. The letter contained the following:

Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a NAATI accredited translator.

In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

1. A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia. Please note, if you have recently provided these documents to the Tribunal, there is no need to submit them again, but please ensure that you have provided us with the most up-to-date information.

1. On 2 October 2020, the applicants returned to the Tribunal a completed "response to hearing invitation" form. In that form, they responded in the negative to a question regarding whether they intended to rely on any documents at the hearing.
2. On 14 October 2020, the Tribunal hearing proceeded as a telephone hearing.
3. The Tribunal gave a written statement of its decision and reasons on 4 March 2021, which was sent to the applicant under cover of a letter of that date.

1. In its written reasons, the Tribunal concluded that the decision under review should be affirmed.
2. The Tribunal noted at the outset that the applicants had appeared before the Tribunal to give evidence and present arguments and were assisted by a migration agent.
3. The Tribunal noted that at least one of the applicants was required to satisfy the requirements of cl 500.211 to cl 500.218 of sch 2 of the Regulations.
4. The Tribunal then turned to cl 500.212, the requirement that the applicant be a genuine applicant for temporary entry and stay as a student.
5. The Tribunal then referred to the Direction and set out a summary of the factors it was required to consider.
6. The Tribunal then addressed the applicant's entry and visa history, her time onshore, and her study history. It noted that the applicant was enrolled in a Diploma of Business scheduled for completion in January 2021 and was enrolled in an Advanced Diploma of Business scheduled for completion in January 2022.
7. The Tribunal then turned to consider the evidence the applicants had provided in support of the application for review. It addressed the applicant's circumstances in her home country, including her stated reasons for not studying in Nepal, her personal ties in Nepal, which included her three children who live with the applicant's sister. It noted that the applicant and her husband owned the land and building where the applicant's sister and children lived. It also noted that the applicant and her husband had employment in Australia.
8. After summarising the applicant's claims, the Tribunal went on to evaluate them, concluding that it did not accept the applicant's claims about study in Nepal compared to study in Australia, and was not persuaded of the benefit to the applicant of studying in Australia.
9. The Tribunal did not consider the applicant's family ties in Nepal presented a significant incentive to return considering the time she had spent in Australia and the fact her husband was present in Australia with her. The Tribunal found the applicant had a strong economic incentive to remain in Australia due to her and her husband's ongoing employment.
10. Addressing the applicant's potential circumstances in Australia, the Tribunal noted that the applicant's husband had previously been the primary visa holder, and the applicant was enrolled in inexpensive short vocational courses and had not attempted to study prior to the expiry of her husband's visa. The Tribunal was concerned that was an indication she was using the visa program to circumvent the migration program.
11. The Tribunal concluded at [23] as follows:
    1. The Tribunal is concerned that the applicant is using the applicant is using [error in original] the student visa program to circumvent the intention of the migration program. Due to the fact that the applicant and her spouse have been in Australia for 5 years and have 'swapped roles' between one applicant holding the dependent student visa and other holding the dependent student visa where there is no objectively reasonable explanation for this conduct, the Tribunal is of the view the applicants are engaging in this conduct to circumvent the intention of the student visa program and prolong stay in Australia for a purpose other than to study and progress academically.
12. The Tribunal went on as follows at [25] - [26]:
    1. The Tribunal has a concern that the applicant has no [presumably intended to be "now"] decided to study after not having done so since 1998 and that this is an indication that the enrolment in a course is not for the genuine purpose of academic progression. This concern was raised with the applicant and she stated that; she married very young and after her marriage she had children. She did not do study due to having children. She stated that once she came to Australia, she decided that it would be good to study.
    2. Considering the circumstances as a whole, the Tribunal does not accept the applicant's explanation as to her reason to return to study and considers that the enrolment in a course of study in Australia is for the purpose of using the student visa program to circumvent the usual migration processes.
13. The Tribunal went on to consider the value of the applicant's course. It noted that the applicant had previously "only completed year 10 study" and noted the applicant's expressed intention to seek employment as an administrator or co-ordinator, and that she wished to start her own business and open a pizza restaurant with her husband.
14. The Tribunal did not consider the applicant to have provided compelling evidence as to her plans against which to assess the value of the course (at [29]), was not satisfied the applicant had given genuine consideration to study in her home country (at [30]), and concluded that the applicant's proposed study offered no apparent value to her future and it was likely that the applicant's purpose in engaging in further study was to maintain ongoing residence in Australia and circumvent the migration process (at [31]).
15. The Tribunal made no adverse finding about the applicant's migration history.
16. The Tribunal concluded as follows:
    1. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
    2. As the primary applicant is found not to meet clause 500.212(a), the dependant applicant does not satisfy cl 500.311. Accordingly, no further enquiry is required with regards to the dependant applicant.
    3. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

1. Ground 1 in the applicant's application for judicial review stated as follows (as per original):
   1. The decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), was affected by jurisdictional error in that the Tribunal failed to engage with a clearly articulated and substantial claim, particularly by the applicant's husband, regarding why the applicant began studying in Australia after completing his studies and why the applicant could not study in their home country, among other reasons.

Particulars

1. Section 499(2A) of the Migration Act 1958 bound the Tribunal to comply with Direction 69 as a direction made under s 499(1).
2. Clause 9(a) of Direction 69 required decision-makers applying the genuine temporary entrant criteria in cl 500.212(a) of the Migration Regulations 1994 to consider applicants' circumstances in their home country and, in doing so, to have regard to (inter alia) the applicant's reasonable reasons for not undertaking study in their home country or region if a similar course was already available there, allowing for any reasonable motives established by the applicant.
3. Clause 9(b) of Direction 69 required decision-makers applying the genuine temporary entrant criteria in cl 500.212(a) of the Migration Regulations 1994 to consider applicants' circumstances in their home country and, in doing so, to have regard to (inter alia) the extent of applicants' personal ties to their home country (e.g., family) and to consider whether those circumstances would serve as a significant incentive to return to their home country.
4. Clause 12 of Direction 69 required decision-makers applying cl 500.212(a) of the Migration Regulations 1994 to have regard to the value of the course to the applicant's future.
5. Clause 16 of Direction 69 required decision-makers applying cl 500.212(a) of the Migration Regulations 1994 to have regard to any other relevant information provided by the applicant.
6. In the applicant's husband's statement to the Tribunal (CB:121-122) and his oral evidence during the hearing, he made a clearly articulated claim that the applicant had no intention of staying in Australia beyond the duration of the enrolled course. He stated that the applicant was encouraged to pursue further studies in Australia after he had completed his own studies and that she enrolled "especially due to difficulty caused by her age" - suggesting, among other reasons, that studying in Australia was a better option.
7. In the applicant's husband's statement to the Tribunal (CB:121-122) and his oral evidence during the hearing, he made substantial claims about the importance of returning to Nepal to support and look after their children and aging parents. He also explained how the course would benefit the applicant and outlined their plans after she completed her education, addressing the value of the course to her future.
8. The Tribunal failed to engage with these claims regarding a significant incentive to return. Nor did it acknowledge that the applicant had a reasonable reason start her studies and to study and complete the course in Australia.

1. The Tribunal had an obligation to respond to any substantial, clearly articulated argument relying upon established facts: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 (Dranichnikov) at 1092 [24], and to read, identify, understand and evaluate the representations made by the applicants: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1) at 598 [24] per Kiefel CJ, Keane, Gordon and Steward JJ. What is necessary to discharge that obligation in a given case will depend on the nature, form and content of the representations. The extent of engagement required in any particular case will depend upon the length, clarity and degree of relevance of the representations: ibid, at 599 [25]. In considering whether the Tribunal has discharged its obligations it is critical to bear in mind the limited role of the Court in reviewing the exercise of administrative discretion, and not to substitute the Court's own view for that of the decision-maker: ibid at 600 [26].

1. Ground 1 alleges that the Tribunal had failed to engage with a clearly articulated and substantial claim, which addressed matters the subject of the Direction. It is convenient to identify the different elements of the applicants' alleged claim to facilitate consideration of the decision. The claim was comprised of three elements:

(1) the applicant's husband encouraged her to pursue further studies in Australia after he had completed his own studies, and she enrolled "especially due to difficulty caused by her age" - with study in Australia a better option because of the applicant's age (age difficulties);

(2) the importance to the applicants of returning to Nepal to support and look after their children and aging parents (the family responsibilities); and

(3) the benefits of the course to the applicants' plans after she completed her education (the applicants' business plans).

1. The claim was said to have been articulated by the second applicant both through his "Statement of Purpose" provided to the Tribunal on 9 October 2020 in advance of the Tribunal hearing, and through his oral evidence to the Tribunal. In the event, the Court has no evidence of the content of the second applicant's evidence to the Tribunal, save that which is apparent on the face of the Tribunal's decision record.
2. So far as the claim was articulated in the second applicant's Statement of Purpose, that document narrated how the second applicant had obtained a law degree in Nepal, been admitted to that profession, and been employed in an administrative officer role with the Nepalese government. It described how he had undertaken an MBA and a further graduate certificate in Australia, and intended to run his own business in Nepal using the skills he had obtained through his study.
3. Turning to the question of his wife's intended study, the second applicant stated (in his Statement of Purpose) that he held a strong belief there was no age limit to education, and after he completed his study he had encouraged his wife to undertake further study, which he regarded as important for her to get back to work and to gain self-esteem and respect from society, their family and children. He expressed his desire that she be independent and earn a good income, develop her English skills, and his view that her studies in business would support their aspirations to have a business in the future.
4. The subject of Ground 1 was not a "substantial, clearly articulated argument relying upon established facts", as was the case in Dranichnikov. Rather Ground 1 refers to a series of factual assertions made by the second applicant about their intentions and purpose, all of which were said to inform the question whether the applicant was a genuine applicant for entry and stay as a student. There is no authority in support of the proposition that the Tribunal must deal with every assertion of fact before it. The Tribunal was not obliged to mention every piece of evidence in its decision: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46].
5. The factual assertions the subject of Ground 1, and the manner in which the Tribunal addressed them, are dealt with in turn below.

1. The particulars of the ground above include that the applicant's husband said that she enrolled "especially due to difficulty caused by her age" - which was said to support the conclusion that studying in Australia was a better option. That claim does not appear (in terms) in the second applicant's Statement of Purpose, and there is no evidence that the second applicant articulated that claim at the hearing.
2. The first applicant raised the issue of age in her submission to the Tribunal dated 9 October 2020. The applicant recounted how she had always been passionate towards her studies but could not continue her studies after completing her School Leaving Certificate as there were so many family commitments and responsibilities when she got married early. The applicant recounted how her exposure to different people from around the world in Australia had sparked her interest in undertaking further study, and how as a consequence of her studies in English she had already improved her English skills. She stated:

...at my age if I go back to doing diploma level in Nepal, I could not survive and study and complete the course. There is no way I could have done these studies back home, however, Australia has no discrimination as to age and studies and am equally respected as other young student in college.

1. At [18] of the Tribunal's reasons, it commenced to address the applicant's circumstances in her home country. It then recorded the following:

Reasons for not studying in home country

• The colleges in Nepal do not offer specialisation and the learning approach is theory based.
• It is difficult for older people to study in Nepal
• Australian education is highly valued in Nepal
• She would like to start a business in tourism where English language proficiency will be of benefit.

1. The Tribunal (at [19]) addresses the paragraph headed "Reasons for not studying in home country", as follows:
   1. The Tribunal is unable to accept that applicant's assertion about study in her home country as compared to study in Australia, it is a claim made without supporting evidence. The applicant has not provided specific details establishing benefits to be gained by studying the proposed course in Australia as opposed to studying in her home country considering the financial outlay and disruption required to study in Australia.
2. That paragraph contains the entirety of the Tribunal's consideration of the matters listed in [18] under the heading "Reasons for not studying in home country", as the Tribunal then moves on at [20] to address her family ties in Nepal, and the economic incentive she had to return to her home country, two of the other headings within [18].
3. The Tribunal went on at [22] to address the applicant's potential circumstances in Australia. Under that heading the Tribunal recorded the following:

The applicant is enrolled inexpensive, short vocational courses. She has not attempted to study prior to the expiry of the secondary applicant's visa. The Tribunal has concerns that this is an indication of using the visa program to circumvent the migration program. The Tribunal raised this concern with the applicant and she responded that; she was only allowed to study on a dependent visa for three months and that she did not apply for her own study visa because she had to support her husband at the time.

1. The Tribunal went on in that paragraph to record that:

The applicant provided general information about the education provider but nothing that related specifically to her chosen course or particular circumstances.

1. The Tribunal went on at [23], to express concern that the applicant was using the student visa program to circumvent the intention of the migration program, concluding that there was "no objectively reasonable explanation" for the applicant and her husband to have "swapped roles". The Tribunal went on at [25] and [26], to say:
   1. The Tribunal has a concern that the applicant has no [presumably "now"] decided to study after not having done so since 1998 and that this is an indication that the enrolment in a course is not for the genuine purpose of academic progression. This concern was raised with the applicant and she stated that; she married very young and after her marriage she had children. She did not do study due to having children. She stated that once she came to Australia, she decided that it would be good to study.
   2. Considering the circumstances as a whole, the Tribunal does not accept the applicant's explanation as to her reason to return to study and considers that the enrolment in a course of study in Australia is for the purpose of using the student visa program to circumvent the usual migration processes.
2. The Tribunal noted the applicant's explanation as to why she had decided to return to study, but was not persuaded that the applicant was genuine in so doing. It reached that conclusion because the applicant sought to do only short vocational courses, had not sought to study whilst her husband had undertaken his study, and had little knowledge of her chosen course. The timing of the applicant's decision to study, once her husband's visa was coming to an end, also caused the Tribunal concern.
3. The Tribunal does not, in terms, deal with the applicant's claims that age discrimination in Nepal prompted her to undertake her studies in Australia. However, there was no error by the Tribunal in failing to do so. The Tribunal was not persuaded about a prior question; namely, whether the applicant was genuine about wishing to study at all. In those circumstances, it was not necessary for the Tribunal to separately address the question whether it was preferable for the applicant to study in Australia because of her age. That question would only have required determination had the Tribunal accepted the applicant's motivation to study was genuine.

1. To the extent this ground is advanced by reference to the claims about the importance to the applicants of returning to Nepal to support and look after their children and aging parents, that was not articulated in the second applicant's submission. The claims were advanced by the applicant in her submission to the Tribunal of 9 October 2020 under the heading "Potential Circumstances". The applicant stated that she and her husband wanted to support their parents in their old age and have their parents witness their success, and spoke of her difficulty in being separated from her children and her desire to be reunited with them.
2. The Tribunal recorded, at [18], under the heading "Personal ties to home country" that the applicant's parents, siblings and children live in Nepal. The Tribunal addressed the applicant's family circumstances at [20] as follows:
   1. The Tribunal acknowledges that the applicant's family reside in Nepal, specifically her children, however the Tribunal finds that these family ties do not present as a significant incentive for the applicant to return to her home country particularly considering the time she has spent onshore, the further proposed time she has spent onshore and the fact that she has with her, her husband in Australia as a secondary visa applicant.
3. The Tribunal concluded its consideration of the circumstances in the applicants' home country at [21] as follows:
   1. The Tribunal finds that the applicant has strong economic incentive to remain in Australia due to their strong working history in Australia. The applicant's ongoing employment presents as an incentive to remain in Australia as does that of the secondary applicant.
4. The Tribunal acknowledged the applicant's claims about her desire to return to Nepal to connect with her family, but having regard to the time she had spent in Australia and the economic incentive presented by her employment here, was not persuaded that the applicant's circumstances in Nepal presented a strong incentive for her to return. In reaching that conclusion about the applicant's intentions, the Tribunal gave greater weight to what the objective evidence about the applicant's conduct informed it, than it gave to the applicant's claims. The weight to be given to those matters was for the Tribunal to determine, and in its approach to the evaluation of the applicant's evidence the Tribunal employed conventional reasoning that was open to it. The Tribunal did not fail to engage with the case advanced by the applicant/s, their claims, or any of the evidence by adopting that approach.

1. The final aspect of the first ground is the claim that the second applicant had explained how the course would benefit the applicants and their plans for after the applicant completed her education and addressed the value of the course to the applicant's future, but that the Tribunal failed to address that claim.
2. The second applicant had written in his submission about his desire for his wife to undertake further studies, thereby build her self-esteem and respect, and join him in his aspirations to run a business in Nepal.
3. The Tribunal records, at [23] and following, its concern arising from the fact that after the second applicant had completed his studies, the applicant sought a visa in her own right. The Tribunal also recorded its concern (at [25]) that the applicant had decided to study after last studying in 1998, and its concern that the enrolment was not for the genuine purpose of academic progression. The Tribunal records that the applicant explained that she married and had children whilst young and because of those responsibilities did not undertake any study at that stage but decided to do so once she came to Australia.
4. The Tribunal did not accept that explanation (at [26]). It did so "considering the circumstances as a whole". The Tribunal focussed upon the applicant's explanation of her desire to study. It did not specifically address the second applicant's explanation.
5. Whilst it is understandable that the second applicant is disappointed by the Tribunal's failure to accept, or refer specifically, to his reasons for wishing his wife to undertake further study, the Tribunal was required ultimately to be satisfied of the applicant's intentions. It was not obliged to refer expressly to each aspect of the (subjective) evidence of the second applicant about those intentions.
6. It is clear from [4] of the Tribunal's decision that it heard evidence and argument from both applicants at the hearing. The Tribunal expressly stated (at [6]) that it made reference to such evidence and other information as it found material. The Tribunal was not obliged to make reference to every single argument or piece of evidence before it. The inference to be drawn in circumstances where the Tribunal did not explicitly and in terms address the second applicant's statement in any part of its reasons is that the Tribunal did not regard it as material to its conclusion.
7. The Tribunal addressed the value of the course to the applicant's future at [27] and following of its reasons. It set out there the applicant's plans to seek employment and to start a business with the second applicant. At [29], the Tribunal observed:
   1. The Tribunal is unable to accept that the course is of value as the applicant has not provided detailed or compelling evidence as to her plans or goals against which to assess this fact.
8. The Tribunal addressed the applicant's claims about their future business plans. It was not persuaded that those claims demonstrated the value of the proposed study as it considered that the evidence did not, in a detailed or compelling way, connect the applicant's proposed study to the implementation of those plans.
9. The Tribunal had the considerable advantage of having both applicants appear before it and had the opportunity to question the applicants and hear them give evidence and present their arguments. It is not for the Court to undertake an assessment of those claims and to determine whether or not they are persuasive, nor to make an assessment, based upon the applicants' written statements, whether their claims should have been accepted. The question for this Court is whether the Tribunal dealt with the case advanced by the applicants in a manner that was consistent with the proper exercise of its statutory authority to review the decision of the delegate. The Tribunal was cognisant of the question it had to answer, of the matters it was compelled by the Direction to take into account, and of the circumstances and claims of the applicant and her husband. It did not neglect to deal with those claims.
10. The Tribunal did not err in the manner alleged.

1. Ground 2 in the applicant's application for judicial review stated as follows (as per original)
   1. The Tribunal fell into jurisdictional error by failing to ask the Applicant to expand on or explain their account, despite not accepting it or finding otherwise, and by reaching a conclusion that was not open to it based on the known materials.

Particulars

1. The Tribunal at [18] noted the reasons for the applicant not studying in her home country, as well as the applicant's personal ties to her home country.
2. The Tribunal, at [19] suggested that it was unable to accept the applicant's assertion regarding studying in her home country.
3. The Tribunal at [20] found that the family ties did not present a significant incentive for the applicant to return to her home country.
4. The Tribunal at [22] noted the applicant's response as to why she started studying after several years and just before the expiry of her dependent visa.
5. The Tribunal, at [25] raised concerns about the reasons for her current study, indicating at [26] that it did not accept her explanation.
6. The Tribunal at [27] noted the employment and business prospects of the course.
7. The Tribunal at [30] suggested that it was unable to conclude that there was a specific reason for the applicant's completion of this course that would assist in career progression or remuneration.
8. The Tribunal's concerns were addressed by the applicant in her evidence.
9. The Tribunal did not seek further clarification or explanation of the applicant's response and/or reached a conclusion that was not open to it.

1. The applicant's submissions in support of this ground (at [31] to [35] of the Applicant's Submissions) are advanced on the premise that the Tribunal raised a number of concerns with the applicant and allowed her to respond. However, the ground also appears to proceed on the basis that once the applicant had responded to the Tribunal's queries, the Tribunal was bound to either accept that response or to inform the applicant that it did not accept such response.
2. Although the applicant claimed not to be contending for an entitlement to a "running commentary" of the type disapproved by the High Court at [48] in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, it is difficult to see how the applicant's argument is not a demand for precisely such a process. Failure to afford such a process, if proven, could not demonstrate jurisdictional error.
3. So far as this ground proceeds on the basis of an allegation of a failure by the Tribunal to conduct the hearing in any particular way, it must fail for lack of evidence to make it out. The applicant has not tendered a transcript of the Tribunal hearing, despite the affidavit of Mr Acharya of 20 March 2025 (that is, about four weeks prior to the hearing) indicating the applicant's intention to obtain such transcript. The evidence before the Court does not provide a satisfactory basis to reach any conclusion about the extent of engagement by the Tribunal with the applicant during the course of the hearing.
4. So far as the applicant contends that the Tribunal reached conclusions that were not open to it, that argument appears to be premised on the mere existence of evidence of the applicants that is contrary to the Tribunal's conclusions, namely, the evidence of the applicant about her study plans, and those of both applicants about their business plans. The existence of such evidence did not foreclose the Tribunal from making findings contrary to that evidence. The Tribunal was not obliged to accept the applicant's evidence, and as the discussion above demonstrates, the Tribunal was not persuaded by that evidence.
5. The applicant has not demonstrated jurisdictional error by this ground.

1. Ground 3 in the applicant's application for judicial review stated as follows (as per original)
   1. The Tribunal failed to discharge its duty due to a logically incoherent and incorrect imputation of the legal test and factual conclusions.

Particulars

1. The Tribunal at [13] states, "She is currently enrolled in a Diploma of Business scheduled for completion in January 2021 and has a future enrollment in an Advanced Diploma of Business scheduled for completion in January 2022."
2. The Tribunal made its decision on 4 March 2021, by which time the Applicant had already completed the Diploma and was enrolled in the Advanced Diploma.
3. In considering matters under "Applicant's circumstances in their home country," the Tribunal concluded at [21] that "the applicant has a strong economic incentive to remain in Australia due to their strong working history in Australia. The applicant's ongoing employment presents an incentive to remain in Australia, as does that of the secondary applicant." This consideration should not have been placed under this topic.
4. The Tribunal at [22], under "Primary and secondary applicants' relationship of concern," states that "the applicant's spouse is included in the visa application as a dependent person," as if having a dependent is a concern under the criteria being considered.
5. The Tribunal at [22] states that "the applicant is enrolled in inexpensive, short vocational courses," while discussing financial outlay and the disruption required to study in Australia at [19].
6. The Tribunal at [28] reaches an ultimate conclusion about the temporary stay aspects without properly considering all relevant factors.
7. The Tribunal at [30] suggests that it was unable to conclude that there was a specific reason for the Applicant's completion of this course that would assist in career progression or remuneration.
8. The Tribunal at [34] does not accept the Applicant's claim to be those of a genuine temporary entrant.
9. The Tribunal at [35] states that an applicant who is a genuine temporary entrant in Australia must demonstrate circumstances that evidence a genuine intention to remain temporarily as a student.
10. There is an improper imputation of a documentary evidence requirement to the criteria.

1. The Tribunal made an error of fact at [13] of its decision where it described the applicant as "currently enrolled" in her Diploma of Business. That description was correct at the time of the Tribunal hearing in October 2020. By the time of the Tribunal's decision, that had been overtaken by events. The applicant had completed her Diploma of Business, had her qualification issued on 11 January 2021, and had sent that diploma to the Tribunal on 10 February 2021.
2. To the extent the Tribunal made an error in recording the state of the applicant's enrolment, it was not material. The Tribunal had recorded the applicant's enrolments correctly and did not express any doubt that the applicant was enrolled. Rather, the Tribunal's view (at [23]) was that the enrolment was for the purpose of prolonging the applicants' stay in Australia for a purpose other than to study and progress academically. The completion of the course did not contradict that conclusion, and the applicant had not made any further submission to the Tribunal that it should draw any conclusion from the fact that the applicant completed the Diploma in which she was enrolled. In those circumstances, although the Tribunal failed to avert to a factual change since the time of the hearing, that did not have the consequence that the Tribunal failed to address any aspect of the applicant's case. The error was not one that was material in the sense that it deprived the applicant of the realistic possibility of a different outcome, and was not jurisdictional in character.

1. The applicant further contends, at [71] to [77] of her written submissions, that the Tribunal made a series of logically incoherent statements.
2. This aspect of the applicant's argument seems to contend that the Tribunal referred to matters that were not appropriate to the subject headings it adopted in its decision.
3. For example, the applicant criticised the Tribunal because under "Applicant's circumstances in their home country", it made a finding about the incentive for the applicant to remain in Australia.
4. The Tribunal was not in error in doing so. Clause 9(c) of the Direction, under the heading "the applicant's circumstances in their home country" directed decision-makers to have regard to:
   1. economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant's circumstances relative to the home country and to Australia;
5. The applicant also criticised the Tribunal's entry at [22] as follows:

Primary and secondary applicants relationship of concern

• The applicant's spouse is included in the visa application as a dependent person.

1. At cl 11(d) of the Direction, the Tribunal was directed to have regard to:
   1. whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
2. The Tribunal set out its concern about the applicants' relationship at [23]. That was a concern that the applicants had "swapped roles" (between being the principal applicant and holding the dependent student visa). Although that issue was not comprehended in cl 11(d) of the Direction, the Tribunal was not limited by the Direction and was expressly mandated, by cl 500.212(a)(iv) of sch 2 of the Regulations to have regard to "any other relevant matter". There was no error in the Tribunal's recording the relationship between the applicant and second applicant and taking account of their visa history.
3. The applicant has not demonstrated jurisdictional error by this part of her argument.
4. The applicant finally submits, at [78] to [87] of her written submissions, that the Tribunal engaged in a "legally incorrect imputation". The applicant contended that [35] of the Tribunal's decision reflected the Tribunal imposing an improper requirement upon the applicant that she provide documentary evidence to substantiate all of her claims. That reading of [35] is rejected. That paragraph stated as follows:
   1. The Tribunal considers that an applicant who is a genuine temporary entrant in Australia for the purpose of studying and to progress academically will be able to demonstrate circumstances that evidence a genuine intention to remain temporarily as a genuine student.
5. The expectation that an applicant be able to "demonstrate circumstances that evidence a genuine intention" was not an expectation that the applicant would provide documentary evidence to corroborate all claims. That is not the plain meaning of [35], nor is it to be implied from the paragraph. An expectation that an applicant be able to "demonstrate" something is one that an applicant will be in a position to display or show their genuineness, whether by documentary or oral evidence, through their demeanour, by employing logic or argument, by reference to accepted facts, or by any combination of those things. The Tribunal did not import any requirement for documentary materials; rather it required the applicant to show that she satisfied the criterion for the grant of the visa. The applicant's argument in this regard is rejected.
6. The Tribunal did not fall into jurisdictional error in any of the ways alleged in this Ground.

1. As the applicant has not demonstrated that the Tribunal decision is affected by jurisdictional error the application must be dismissed.
2. The applicant is to pay the first respondent's costs. I will hear the parties on the quantum of those costs.

I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.