Chhetri v Minister for Immigration and Citizenship [2025] FedCFamC2G 1709

1. By their application filed on 22 February 2021, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 18 January 2021 (Decision) concerning the first applicant's application for a Student (Temporary) (Class TU) visa (visa application).
2. The dispositive issue in the Tribunal was whether the first applicant satisfied the genuine temporary entrant criterion, as required for a student visa pursuant to clause 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) (genuine temporary entrant criterion). The Tribunal was not satisfied of this and so affirmed the decision of the Minister's Delegate dated 29 August 2019, which refused the visa application on the same basis.
3. The second applicant is the first applicant's husband, whose visa application is ancillary to the first applicant's visa application.
4. The applicants seek that the decision of the Tribunal be quashed and that "AAT to overturn decision; student visa to be granted; and clause 500.212 not appropriate as [the first applicant is a] genuine student". I enquired with the applicants whether they also intended to seek a writ of mandamus and understood their response to be that they did mean to do this and the application was taken to have been thus amended. The Minister seeks that the application be dismissed with costs.

1. The applicants rely on their application and affidavit both filed on 22 February 2021. The Minister relies on his response filed 1 March 2021, Court Book filed 21 April 2021, written submissions filed on 23 September 2025, and a Supplementary Court Book filed on 29 September 2025. The Court Book (CB) and the Supplementary Court Book (SCB) have been marked as Exhibit R1 and Exhibit R2 respectively. In these Reasons, references to the Court Books are styled CB and SCB followed by the page number.

1. Section 476(1) of the Migration Act 1958 (Cth) (Act) confers power on this Court to undertake judicial review of migration decisions where a writ of mandamus or prohibition, or an injunction is sought against a Commonwealth officer, subject to the limitations imposed by s 476(2). This Court's power to review the Tribunal's decision is limited to review for judicial error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. The Court is not permitted to undertake a review of the merits of the application for a visa: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54].
2. Clause 500 of Schedule 2 to the Regulations sets out the criteria for the grant of subclass 500 student visas.

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. In considering whether the applicant satisfies the genuine temporary entrant criterion, the Tribunal is to apply Ministerial Direction No. 69 "Assessing the genuine temporary entrant criterion for Student visa and Student Guardian applications" (Direction). The Direction addresses various factors which guide the decision-making process relating to the genuine temporary entrant requirement.
2. It is well settled that the attribution of what weight should be applied to the evidence is a matter for the Tribunal: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ, so long as the Tribunal applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-292 per Kirby J. Further, the Tribunal was not required to uncritically accept the applicants' claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437.

1. The first and second applicants are citizens of Nepal.
2. The first applicant arrived in June 2014 on a Student Dependant (Class TU subclass 573) visa by which she was permitted to provide spousal support to the second applicant while he undertook study leading to a Bachelor of Professional Accounting. The second applicant arrived in Australia about eight months prior to the first applicant on a student visa.
3. At the time of the Tribunal's Decision, since arriving in Australia, the first applicant travelled to Nepal to visit family from 17 April 2018 to 1 May 2018 but had not otherwise departed Australia.

1. The Provider Registration and International Student Management System (PRISMS) record for the first applicant (accessed on 7 August 2020) records that the applicant had been or was enrolled in courses of study as follows:

Due to complete 7 November 2021 - currently studying

Due to complete on 19 July 2020 - enrolment cancelled on 10 October 2019

1. On 7 March 2019, the first applicant applied to the Department of Home Affairs (as it was then known) for a student (subclass 500) visa (visa application). The applicant subsequently included an undated statement in support of her application addressing the genuine temporary entrant criterion.
2. On 3 May 2019, a Delegate of the Minister requested more information from the applicants relating to the genuine temporary entrant criterion, financial capacity, relationship to the source of funds, and overseas student health cover. The Delegate set out his concerns relating to whether the applicant satisfied the genuine temporary entrant criterion, as recorded in the "Request Detail" located at CB41 to CB42. I note that the "primary applicant" was described as "Manpreet Kaur", which is incorrect. The Delegate's concerns were as follows:

Genuine temporary entrant criterion

The Primary applicant (P/A) (Manpreet Kaur) first arrived in Australia on 2 June 2014 as the holder of a Student Dependant (Class TU subclass 573) Visa, this visa was approved so that the could provide spousal support to their husband; SHRESTHA, SAROJ (the secondary applicant (S/A)) while they undertook study in a package of courses leading to a Bachelor of professional Accounting.

It is noted that the secondary applicant's last three enrollemtn were cancelled for serious breach of section 19 of the Education Services for Overseas Students (ESOS) Act 2000; Unsatisfactory course progress and non payment of fees, of further concern is the available information indicates the S/A has not heled a valid enrolment in a register course of study since 5 September 2018 and has not academically progressed since the completion of an Associated Degree of Business in July 2016.

In this application the applicants appear to have modified their roles of primary and secondary in an effort to facilitate a further stay in Australia until July 2020. The P/A has enrolled in a General English course of 16 months duration at the Australian Ideal College. The circumstances leading up to this application are highly irregular in that;

• the P/A has remained onshore for a period of almost 5 years before displaying any interest to undertake study;

• the P/A's record indicates a significant number or employment verification checks against their name, which indicates a level of English proficiency that they can actively seek and engage in employment in Australia;

• the S/A behaviour has led to the cancellation of consecutive enrolments for reason including Unsatisfactory course progress, and they have remained in Australia without study for a period that exceed 5 months; and

• neither applicant has provided sufficient explanation for the substantial shift in their roles, why the P/A was unable to undertake study prior to this application, or why the S/ A is unable to complete their previous enrolled courses.

I find these factors diagnostic of their efforts to facilitate a long-term migration and residence in Australia and that the applicants are using the student visa as a means of maintaining de facto residence.

Considering the information available namely; the lack of any evidence to support their intention in a career, the undocumented and rapid change in the applicants education, the failure to adhere to the migration regulations during the period of the secondary applicants previous visa, as well as the significant alteration in education expectation of both applicants have raised concerns about the their Genuineness to continue to remain in Australia temporarily.

In order to meet the Genuine Temporary Entrant criteria the applicant is required to demonstrate that they intend to remain in Australia on a temporary basis and will return at the end of their stay. Considering the aforementioned facts, the time already spent in Australia and the potential circumstances, there are concerns the applicants is using the student visa as a means of maintaining de facto residence.

The applicant's must provide details of the how this course will help with their future. Provide an explanation regarding;

• What are both applicants intention and why have they made this application to change their study preferences, given both applicants can study simultaneously without the need to forego their own education expectations; without sufficient explanation or clear career plan? Please provide a reason for their sudden change in personal circumstances.

• What changes in their circumstances have motivated the applicants to modify their roles of primary and secondary applicants, given this course at this time was a viable option at the time of the Primary applicant's initial arrival in Australia?

• What other steps have the applicants taken to help you achieved their goals upon the return to their Homeland?

• What changes in their circumstances are preventing the applicant from returning to their homeland with the skills they have already obtained to start this restaurant business, given the demonstrated lack of commitment and/or academic progress over the past two years by the Secondary applicant?

• It is also observed that the applicants have made significant changes in their education pathways. Given these recent change it is unclear what the applicants true career objective are please explain the reasons for enrolling in these courses?

• The length of time both applicants have spent in Australia raises concerns of their limited ties to the home country and therefore do not intend to remain temporarily, please outline the applicants ties that act as an incentive to return to their home country at the end of the proposed stay.

• What changes in your circumstances prevented the secondary applicant from completing the Bachelor degree?

• I find it difficult to reconcile to the fact that having gone through the efforts to gain an enrolment in their preferred course in a Bachelor degree that the secondary applicant did not academically progress in these studies. The statement and the efforts undertaken by both applicant to enrol in unrelated courses are conflicting to their initial stated career goals and will not benefit their occupational skill or career trajectory, Please comment why the applicants are pursuing further study in Australia that does not appear to add benefit or value to their stated career pathway.

• What are the secondary applicant's intentions if they are to remain in Australia during the period of proposed study?

• How does the secondary applicant propose to support and contribute to this joint career goal?

Provide evidence of your ties to your home country or usual country of residence that shows that you have significant incentives to return home at the end of your stay in Australia.

This may include evidence of financial, family or social ties.

1. By an undated submission provided to the Department (but after 29 May 2019), despite the reference to "Manpreet Kaur", the first applicant addressed the matters raised in the request for information about the genuine temporary entrant criterion as follows:

My husband came to pursue higher studies (Class TU subclass 573) Visa which he was properly studying then I came in 2014 to support him emotionally and being a wife, I have to stand by him.

I always wished to be with him in every step of life through tough times and happy times that's why I came here. You have mentioned I have been here 5 years and I just wanted to pursue study now. Yes, the decision was made little late as we make up our mind to return as my husband was having problems coping up with study and some personal tension back in country but then we decided we have been here long time but haven't achieved anything. I always wanted to improve my English which was always the hinderance in my progress I only got small jobs due to my poor English. Even being here long time I wasn't improving English as it seems important that coursework is very much needed to improve English

Yes, my husband made silly mistakes in Life and he is totally out of sorts he has good study background but only around 2 years he was out of track and couldn't concentrate in studying he wants to only support me as a loyal husband through my intention to gain knowledge. As English is must in communication in most country and also in Nepal.

I am the youngest daughter in family and my mother wants me to improve English academically before coming back to Nepal. My husband just want to be with me and support me emotionally and help me to grow in what I am pursuing.

With the base knowledge of English this will lead me to start new ventures as saying goes without language knowledge cannot be gained.

I wish immigration to consider my stay over the period with my beloved husband so than we can continue to focus on beautiful future ahead. I am extremely sorry that I can't express my full genuiness as my English is poor so I wish immigration to give my concern and ask me again for other genuineness before coming into decision. We will be very thankful to you

1. The applicants also provided to the Department:

(a) a "Completion Letter" from South Metropolitan TAFE in Western Australia stating that the second applicant completed an Associate Degree of Business between January 2014 and June 2016; and

(b) a copy of the second applicant's Notification of Results for a Bachelor of Professional Accounting from the Holmes Institute. That document records that the course commenced on 10 July 2017 and was expected to end on 31 December 2018. The enrolment status was "cancelled". The Notification records several subjects with an "exemption" grade. Of the subjects which were undertaken, all but one was either graded as "NA" (Non-Attempt), "NR" (No Result), "NX" (Failed to attempt supplementary assessment). One subject achieved a credit result.

1. On 17 June 2019, the Delegate refused the visa application on the basis that the first applicant had not satisfied clause 500.215 of the Regulations as to evidence of adequate health insurance. The second applicant's application was consequently refused pursuant to clause 500.311 of the Regulations (First Delegate's Decision).
2. On 5 July 2019, the applicants sought to review the First Delegate's Decision in the Tribunal. On 2 August 2019, the Tribunal remitted the visa application to the Department on the basis that clause 500.215 of the Regulations was satisfied.
3. On 29 August 2019, the Department refused the visa application on the basis that the first applicant did not satisfy the genuine temporary entrant criterion. The second applicant's application was consequently refused pursuant to clause 500.311 of the Regulations (Second Delegate's Decision).

1. On 18 September 2019, the applicants sought to review the Second Delegate's Decision in the Tribunal.
2. On 23 September 2019, the Department issued a certificate and notification regarding the Tribunal's discretion to disclose an allegation about the applicants under s 376 of the Act.
3. On 15 July 2020, the Tribunal invited the applicants to attend a telephone hearing on 14 August 2020 to give evidence and present arguments in their case. The invitation identified that the Tribunal may assess whether the applicant is a genuine applicant for entry and stay as a student, and that the Direction was relevant to that assessment.
4. On 12 August 2020, the first applicant emailed a Response to hearing invitation to the Tribunal. In that document, the first applicant stated that both applicants would be appearing at the hearing, that neither applicant required an interpreter, and that there was no issue that may affect their ability to participate or take part in the hearing.
5. On 14 August 2020, the first applicant emailed a screenshot of her program for a Certificate IV in Commercial Cookery for Term 3 of 2020 (6 July to 11 September 2020) and a document that appears to be a summary of progress in the same course for Term 2 of 2020. The screen shots indicate that the Certificate IV course led to a Diploma of Hospitality Management.
6. On 14 August 2020, the applicants appeared by telephone before the Tribunal and gave oral evidence. The first applicant's oral evidence was summarised by the Tribunal at paragraphs 17 to 39 and then 42 of the Decision. The second applicant's oral evidence was summarised at paragraphs 43 to 45.
7. No submissions were made by the applicants at the judicial review hearing to cast doubt on the accuracy of the summary concerning the second applicant's oral evidence, for which reason I accept that the summary at paragraph 43 to 45 is accurate. However, submissions were made about the correctness of the Tribunal's finding that the first applicant had not completed the General English Course, noting paragraph 21 of the Decision which referred to the course being "cancelled", whereas the first applicant told the Tribunal that she completed the course (as recorded at paragraph 20 of the Decision). After an exploration of paragraphs 20, 21 and 25 of the Decision no error in the summary of the first applicant's evidence was pressed.
8. The effect of the first applicant's oral evidence was that:

(a) She completed her secondary education in Nepal in 2010 or 2011, studied Business Management at high school and has no tertiary qualifications. She worked in her brother's clothing business for two years prior to coming to Australia.

(b) In response to being asked when she first wanted to study, the first applicant said that she came to Australia to support the second applicant while he studied and, when he finished, she would continue with her studies.

(c) She enrolled in an English course in 2019 and a Certificate IV in Commercial Cookery course in May 2020, which was due to conclude in July 2021. She would return to Nepal after this. The first applicant said that she completed the English course and was not enrolled in any further courses.

(d) After being provided with the information in the PRISMS record, the first applicant said that she did not finish the English course as it was a 19-month course and thought she completed it in six months. The applicant explained the seven-month break in study between the English course and the Certificate IV in Commercial Cookery course on the basis that she was looking for a good college. She said she did not mention the Diploma of Hospitality Management as she thought it was part of the Certificate IV in Commercial Cookery course.

(e) She had an interest in cookery and kitchens since childhood and would like to work in the hospitality field. She has been working as a cleaner since arriving in Australia. The COVID-19 pandemic had impacted the amount of work she could get, including attempts to find work in a restaurant for the purpose of gaining relevant experience.

(f) As to her plans, the first applicant said that she intended to return to Nepal to open her own bar or restaurant with the support of her family who own property there.

(g) As to the value of the course to her future, the first applicant said that it was a "skills based" course and that hospitality is very important to the way of life in Nepal as it is everywhere. She said that if she gets certificates and experience from Australia, she would be able to open a business in Nepal, and that an international degree is very useful and helpful.

(h) The first applicant was not sure of the income she may receive in Nepal as a result of obtaining the qualifications from her current study.

(i) She wished to study in Australia as the education in Nepal is not good, and Australia is known for its good education.

(j) As to her personal ties, the first applicant's mother and brothers live in Nepal as well as extended family. She said she had two "cousin brothers" in Sydney and one "cousin sister".

(k) There were no civil or political issues which would prevent her returning to Nepal, nor had she been previously refused a visa and had no outstanding visa applications.

(l) When asked why she had only returned to Nepal once in 2018, the first applicant said that every time she and the second applicant tried to return, there was something they needed to finish, also citing an earthquake in 2017 and COVID-19-related travel restrictions. She said that she keeps in contact with her family in Nepal everyday by video calls and Skype.

(m) The first applicant knew that she and the second applicant has made some mistakes and the second applicant "could not make his studies" but she really wanted to finish the commercial cookery course so that she could learn something that will be helpful to her in Nepal.

(n) When asked about the apparent reversal of roles of the applicants to extend their stay in Australia, the first applicant said she understood the concern but that was not the reason she was studying. She said she just wanted to study in Australia and "grab some knowledge".

(o) When asked why she was in Australia for five years before starting the General English course, and why she did not pursue such a course in Nepal, the first applicant said that the second applicant was studying at the time.

(p) When the general nature of her responses as to the value of the course to her future was raised with the first applicant, she again provided general responses "stating that she is studying so she can learn something for her future so she can survive", citing better opportunities in hospitality and tourism in Nepal. The first applicant stated that she could do better if she gains "the opportunity" in Australia and stated that she could get a career as a chef.

1. The effect of the second applicant's oral evidence was that:

(a) When he and the first applicant arrived in Australia, the plan was for him to complete his studies and then for the first applicant to study. He said there were many reasons he could not complete his university course, so he and the first applicant decided that the first applicant would commence studying. When she finished the Hospitality Management Course in 2022, they would return to Nepal to open their own business.

(b) His sister and brother-in-law live in Sydney on temporary visas. He said he had two cousins in Australia. He has worked in fast food for almost a year and had worked in a bar, as a kitchen hand, and as a cleaner since arriving in Australia.

1. On 18 August 2020, the Tribunal wrote to the applicants about two matters raised at the hearing, being the non-disclosure certificate issued by the Department pursuant to s 376 of the Act and, an anonymous allegation that the applicants had breached the work conditions on their respective visas in Perth approximately two years earlier. The applicants were invited to comment on or respond to that information by 1 September 2020. They were also asked about this at the hearing, and in both cases were unsure about the allegations and unaware of a breach of their working conditions.
2. On 31 August 2020 and 1 September 2020, the applicants wrote to the Tribunal requesting an extension of time to comment on or respond to the information. The Tribunal granted an extension of time until 16 September 2020.
3. On 16 September 2020, the applicants wrote to the Tribunal and provided details for flights from Perth to Sydney on 8 August 2017 and 27 August 2017, a statutory declaration by both applicants dated 16 September 2020, and a response to the information set out in the 18 August 2020 letter.
4. On 18 January 2021, the Tribunal affirmed the Second Delegate's Decision. The Minister's written submissions conveniently summarised the effect of the Tribunal's Decision, which I adopt in these Reasons:
   1. Value of course to applicant's future. The Tribunal found the applicant's oral evidence was "of a general nature" which indicated she had not undertaken research into how she could use her proposed qualifications in her home country. In relation to the applicants' evidence that they intended to open a restaurant/bar, the Tribunal found there was "no evidence of any plans" or that their intention was more than an idea (CB 172, [51]).
   2. The Tribunal nevertheless accepted that the proposed studies were relevant to the applicant's stated business plan and found they were consistent with her existing level of education. The Tribunal accepted that qualifications in commercial cookery and hospitality may improve the applicant's employment opportunities in Nepal, especially in the hospitality industry (CB 172, [52]).
   3. The Tribunal found there was insufficient evidence regarding the remuneration the applicant could expect to receive in Nepal compared with Australia. However, given the applicant did not have existing qualifications, the Tribunal accepted that her proposed studies were likely to be of some value to her future (CB 172, [53]).
   4. Circumstances in applicant's home country. The Tribunal made no adverse findings regarding the applicant's stated reasons for not undertaking study in her home country (CB 173, [54]).
   5. The Tribunal accepted that the applicant's parents and extended family living in Nepal may have provided "some incentive" for her to return (CB 173, [55]). However, the Tribunal had concerns that the applicant had only returned to her home country on one occasion for 17 days in 2018 since her arrival in Australia on 2 June 2018 and found that her travel history indicated that her personal ties to Nepal were "unlikely to act as a significant incentive" to return. The Tribunal found the applicant's evidence that she contacted her family through video calls added little weight to her claim that her personal ties were an incentive to return. The Tribunal took into account the COVID-19 pandemic and recent earthquakes in Nepal, but nevertheless found that her return to Nepal once in over six years to be relevant to her incentives to return (CB 173, [56]).
   6. The Tribunal found there was no evidence that the applicants owned any property, but noted that their evidence that the applicant's family had property, which they would use to assist the applicants with their business plan. The Tribunal also considered the applicant's work history and her previous employment for two years in a business owned by her brother in Nepal. The Tribunal found there was insufficient evidence regarding the applicant's economic circumstances, and made no adverse findings in relation to that factor (CB 173, [57]). 27. The Tribunal accepted there was no evidence of any military service commitments, political or civil issues which would prevent the applicant on returning. The Tribunal found there was insufficient evidence regarding the applicant's circumstances in her home country relative to others and made no adverse findings regarding these factors (CB 173, [58]).
   7. Applicant's potential circumstances in Australia. The Tribunal found the presence of the applicant's husband in Australia and the fact that they had both worked steadily since arriving in Australia indicated that she had ties in Australia that presented as incentives to remain (CB 174, [62]).
   8. The Tribunal found that: the evidence indicated the applicant was using the Student visa program to circumvent the intentions of the migration program and maintain ongoing residence in Australia; she and her husband had "swapped roles" in order to continue living in Australia; and she had enrolled in courses of study principally to maintain ongoing residence for the applicants in Australia. In support of this conclusion, the Tribunal took into account the applicant's enrolment record, particularly her enrolment in a General English course on the day she applied for her visa, and the evidence that the second applicant had difficulty completing his studies. The Tribunal reasoned that the applicant's evidence concerning her reasons for enrolling in the course was "general in nature" and did not indicate a level of research into potential roles or opportunities in her home country (CB 174, [63]-[64]).
   9. The Tribunal found that the applicant's evidence (that she was expecting to complete her studies in July 2021) was inconsistent with the information contained in PRISMS which indicated her courses were not due to complete until May 2022 (CB 174, [65]). The Tribunal accepted the applicant may have been nervous given evidence over the phone and made some allowances but found that she had responded to the Tribunal's questions without hesitation or apparent difficulty prior to the inconsistency being raised with her. The Tribunal found that the applicant raised concerns about her difficulty participating in a hearing by telephone, as an attempt to explain incorrect information (CB 174, [66]).
   10. The Tribunal found the applicant was not candid about her enrolment in the General English course or the cancellation of the enrolment until information from her PRISMS records were put to her. The Tribunal found the applicant's responses to questions about her expected course completion date were not consistent the level of knowledge which could be expected from a genuine student, nor were they consistent with someone who had made genuine plans to return to her home country (CB 174-175, [67]).
   11. The Tribunal found the applicant's own evidence that she was not enrolled for more than seven months between October 2019 and May 2020 indicated that she was not a genuine student who wished to complete her qualifications and progress academically (CB 175, [68]).
   12. The Tribunal found there was no evidence the applicant had entered into a relationship of concern and made no adverse findings regarding that factor (CB 175, [69]).
   13. Immigration history. The Tribunal accepted that the applicant had not previously been refused a visa and that there was "no compelling evidence" that she had breached her visa conditions. The Tribunal expressly stated that it had not taken the information contained in the anonymous report into account when assessing the applicant's circumstances as a whole (CB 175, [70]).
   14. As the applicant had arrived on 6 June 2014, had been granted two further Student visas as a dependent and associated Bridging visas and applied for the visa approximately one week before her previous visa was due to cease, the Tribunal found that it appeared the applicant had commenced studying for the purpose of the visa application, not due to any genuine interest. The Tribunal found the applicant and second applicant had swapped roles as the primary visa holder to secure a further visa (CB 175, [71]).
   15. Whilst the Tribunal recognised that that a genuine temporary entrant's intentions may change over time (CB 175-176 [72]), the Tribunal was concerned about the applicant's failure to complete her General English course and the gap of over seven months when she was not enrolled. Considering the evidence as a whole, the Tribunal found the applicant had enrolled for the purposes of obtaining a visa and was not satisfied the applicant's primary purpose for remaining in Australia was study. The Tribunal gave weight to the applicant's circumstances that the Student visa was for the purpose of maintaining residence (CB 175-176, [72]).
   16. The Tribunal found there were no other relevant matters and confirmed that it had considered all information provided by the applicant (CB 176, [73]).
   17. The Tribunal found, on the balance that the applicant was not a genuine temporary entrant and did not satisfy cl 500.212(a) and affirmed the decision under review (CB 176, [74]-[80]).

1. On 22 February 2021, the applicants filed this application for judicial review in this Court alleging three Grounds:
   1. Clause 500.212 met as I am genuine temporary entrant.

2. Physical condition and COVID-19 situation neglected.

1. How genuineness was calculated? As I was always good student and studying properly.

1. The second applicant submitted he and the first applicant were genuine students, that the first applicant was willing to study from the time she arrived in Australia, that the first applicant came to Australia to support the second applicant. There were many reasons why the second applicant could not complete his studies. The second applicant referred to paragraph 22 of the Decision and said that the first applicant was studying English at the time she made the visa application, and after studying for a semester, the college asked her to sit an examination. He submitted that the first applicant was nervous when she gave evidence at the Tribunal hearing. The second applicant conceded that there was no error that he could find in the Decision but nevertheless pressed Ground One of the application.
2. The Minister relied on his written submissions as follows:
   1. Ground one alleges that cl 500.212 is met as the applicant is a genuine temporary entrant. Ground three states "How genuineness was calculated? As I was always a good student and studying".
   2. The Tribunal correctly noted that the primary criteria for the visa was in cl 500.211 to cl 500.218 ([8]). The Tribunal set out cl 500.212 (CB 166, [14]). Cl 500.212(a) require the applicant to be a genuine temporary entrant. The Tribunal also noted that in considering cl 500.212 it must have regard to Direction No.69 but that the factors should not be used as a "checklist" (CB 166, [15]-[16]). 42. The Tribunal considered the factors in Direction No. 69 (CB 167-176, [17]-[73]). The Tribunal ultimately candied that the applicant was not a genuine temporary entrant with reference to the applicant's circumstances in her home country, her potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters (CB 176, [74]).
   3. To the extent that these grounds take issue with the Tribunal's finding that the applicant was not a genuine temporary entrant or the Tribunal's approach, the Minister submits that the Tribunal was not required to uncritically accept the applicants' claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253.
   4. Further, it appears that this ground is an attempt an impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272, and the Tribunal followed

1. I turn to my consideration. Ground One asserts that the applicant satisfied the genuine temporary entrant criterion rather than identifying, or otherwise enabling me to discern, a jurisdictional error. On its face, Ground One invites an impermissible merits review of the visa application: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54].
2. In circumstances where the applicants are self-represented, it is appropriate that I review the decision of the Tribunal in a manner that is alert to legal error.
3. Paragraphs 14 to 16 of the Decision correctly identify the need for the first applicant to satisfy the genuine temporary entrant criterion, and that the Direction is to be used as a guide in this regard.
4. Paragraphs 17 to 42 of the Decision are an account of the first applicant's evidence, and paragraphs 43 to 45 summarised the second applicant's evidence. Although the second applicant made submissions about the Tribunal's finding that the first applicant did not complete the General English course, such submissions were not pursued when the totality of the Decision on that issue, namely paragraphs 20 to 25, were read in context.
5. Paragraphs 51 to 63 of the Decision recognisably traversed the factors set out in the Direction.
6. Paragraphs 51 to 53 addressed the value of the course to the applicant's future and thus engaged clause 12 of the Direction. The Tribunal found the first applicant's evidence to be general in nature and that there was no evidence that her plans or intention to open a bar or restaurant were "any more than an idea at this stage". The Tribunal also found that there was insufficient evidence regarding the remuneration that the first applicant could expect to receive in her home country or a third country, compared to Australia, using the qualification to be gained from the proposed course of study. These findings were open to be made on the first applicant's oral evidence which is recorded at paragraph 27, 29, 30, 31 and 39 of the Decision. Nevertheless, the Tribunal made a finding that was beneficial to the applicant in relation to the value of the commercial cookery course to the first applicant's future for the reasons set out at paragraph 52 and 53 of the Decision. I am satisfied that this analysis was logical and rational, and based on findings which were open on the evidence.
7. Paragraphs 54 to 58 of the Decision addressed the "Circumstances in her home country" and thus engaged clauses 9 and 10 of the Direction. Paragraphs 59 to 69 of the Decision addressed the "Applicant's potential circumstances in Australia" and thus engaged clause 11 of the Direction.
8. I am satisfied that the concerns expressed at paragraph 56 of the Decision were open on the evidence. The time that the applicants had been in Australia, their travel history since that time, and contact with family in Nepal were correctly cited by reference to the evidence given by the first applicant in the visa application (see CB13) and in the oral evidence as summarised at paragraphs 17, 33, 35, 37 and 44 of the Decision. The Tribunal took account of the impact of the COVID-19 pandemic and the travel restrictions that entailed, and an earthquake in Nepal since the applicants arrived in Australia, when assessing the applicant's circumstances in her home country including her personal ties and whether those ties serve as a significant incentive to return to Nepal. Paragraphs 57 and 58 of the Decision respectively engaged clause 9(c), (d) and (e) of the Direction, and correctly recorded that there was no evidence about the matters to which those subparagraphs relate.
9. As to the first applicant's potential circumstances in Australia, the Tribunal set out an account of the relevant facts at paragraphs 59 to 61 of the Decision. The content of those paragraphs is based on:

(a) uncontroversial facts as to the duration of the applicant's time in Australia and visa history;

(b) the applicants' work histories as provided by them in their oral evidence; and

(c) the first applicant's study history based on the PRISMS record and the first applicant's oral evidence (including after she had time to consider the information in the PRISMS record).

1. I am satisfied that the Tribunals' analysis of the applicant's circumstances in Australia is logical and rational, and open on the evidence. The Tribunal made an allowance for the fact that the first applicant was nervous when answering questions about her enrolment. The adverse credit finding as to the first applicant's evidence about her study history was open to the Tribunal, having regard to the inconsistent evidence given by the first applicant, and corrected by her once presented with the information in the PRISMS record.
2. Paragraphs 70 to 72 address the first applicant's immigration history, which recognisably engaged clauses 13 and 14 of the Direction. The factual findings concerning the applicants' travel and visa history and the gap of about seven months in study were open on the evidence (including the PRISMS record) or were otherwise uncontroversial. I am satisfied that the Tribunal's analysis of that evidence, including the inference that the first applicant was using the student visa program to maintain residence in Australia by applying for the subject visa a week before her then student visa expired, was rational and logical, and open to it on the evidence.
3. As demonstrated by paragraph 49 of the Decision (read in the context of paragraphs 47 and 48), nothing turned on the anonymous report and non-disclosure certificate concerning the alleged breach of visa conditions. The Tribunal gave no weight to the information and did not consider it relevant to its assessment of whether the applicant satisfied the genuine temporary entrant criterion, being the only dispositive issue.
4. I am satisfied that paragraphs 74 and 75 of the Decision demonstrate that the Tribunal appreciated that it was required to evaluate, on balance, whether the first applicant satisfied the genuine temporary entrant criterion.
5. Grounds One fails.

1. The second applicant submitted that at the time of Tribunal hearing, the COVID-19 pandemic was occurring, and no one was allowed to travel. The reference in Ground Two to the "physical condition" means the inability to travel during the pandemic. The second applicant maintained that the Tribunal said that "we are not a genuine student" but they "had been studying" and "COVID changed the whole situation". When pressed to articulate what legal error is asserted by Ground Two, the second applicant conceded that there was no error but nevertheless pressed the Ground.
2. The Minister relied on his written submissions as follows:

46. Ground two states "Physical condition and covid-19 situation neglected".

1. To the extent that this ground argues that the Tribunal failed to consider the applicants' physical conditions or the COVID-19 pandemic, the Minister submits that this contention fails on the facts.

2. The Tribunal is required to consider each claim that the applicant either expressly made or which could be said to clearly arise from the available materials: NABE (No 2) v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1, [60] (NABE).

3. It its clear from the Tribunal's decision record that the Tribunal considered the impact of the COVID-19 pandemic. The Tribunal considered the applicant's evidence that she had not had much work and that she was unable to find work in a restaurant for some experience due to the COVID-19 pandemic (CB 168-169, [28]). The Tribunal also considered that the applicants could not travel due to COVID-19 and took this into account when considering their return to their home country for visits (see [35] and [56]).

4. Further, there is no evidence before the Court that either applicant made a claim in relation to "physical condition".

51. Accordingly, ground two cannot succeed.

1. I turn to my consideration. Paragraph 35 of the Decision addressed the effects of the COVID-19 pandemic on the applicants as follows:
   1. The Tribunal noted the applicant had returned to Nepal only once since arriving in Australia, which was for a period of 14 days in 2018. When questioned whether there were any reasons for this, she stated that she and her husband tried to go, but every time they tried there was something they needed to finish. She stated that there were always some reasons, and that in 2017 it was the earthquake and that her family didn't want her to travel because it was very dangerous, and now they can't travel because of COVID-19. She stated that she keeps in contact with family in Nepal every day by video calls and Skype.
2. At paragraph 56 of the Decision, in the context of considering the applicant's circumstances in her home country, the Tribunal addressed the first applicant's travel history. The Tribunal correctly found that the first applicant had only returned to Nepal once since arriving in Australia for a period of seventeen days in 2018. The second applicant had departed Australia on only one occasion, also in 2018 for twenty days. The Tribunal said:

... The Tribunal has also had regard to the applicant's reasons for not travelling more frequently to Nepal, and has given some latitude in relation to travel after February 2020 due to the COVID-19 pandemic, as well as recent earthquake events in Nepal, but nevertheless considers her return to Nepal only once within a period of over 6 years to be relevant to assessing her incentives to return to her home country.

1. Having regard to the foregoing, I am satisfied that the Tribunal considered the applicants' claim that their travel to Nepal had been impacted by COVID-19. It was open to the Tribunal to find that the one return trip to Nepal in six years, notwithstanding the pandemic and earthquake, were relevant to the assessment of incentives to return to Nepal. In other words, the Tribunal did not accept that the COVID-19 pandemic was a complete answer to why the applicants' travel history was limited to one return visit each since 2014. This was an evaluation of weight, which is a matter for the Tribunal.
2. Ground Two fails.

1. The second applicant submitted that "from the moment we decided that we are here from our homeland, we need something for both of ourselves... The goal is to study together and support each other". He said that the "whole intention to stay was to study", that the first applicant has been studying", "[the Tribunal] need[s] to look at it in a way which depends on our future moving forward" and "to get something worthwhile, we need to finish our studies".
2. The Minister relies on his submissions relating to Ground One in response to Ground Three.
3. Ground Three is a restatement of Ground One and invites an impermissible merits review. My consideration relating to Ground One is otherwise reiterated in relation to Ground Three.
4. Ground Three fails.

1. For the reasons given, no jurisdictional error has been demonstrated. The application filed on 22 February 2021 must be dismissed.

1. At the conclusion of the hearing of the substantive application, I invited prospective submissions as to costs subject to the outcome of the application.
2. In the event the application was dismissed, the Minister sought his costs fixed in the sum of $6,100. His legal representative submitted that costs follow the event and, if the Minister is wholly successful, the ordinary principle should apply, that the costs sought are reasonable in that they are below the scale of costs for such matters, and the sum reflects the work undertaken. The applicant asked whether the sum could be discounted but otherwise made no cogent submissions.
3. Costs are discretionary. The Minister has been wholly successful and has been put to cost. The sum sought by him is reasonable both in terms of it being below the scale sum for final hearing matters and as it reflects the work undertaken. I note that the Minister filed a response and written submissions, prepared the Court Book and appeared at the final hearing and other case management listings.
4. I am satisfied that costs of and incidental to the proceedings should be awarded in favour of the Minister fixed in the sum of $6,100.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw.