Karki v Minister for Immigration and Citizenship [2026] FedCFamC2G 314

1. The first applicant (applicant) is a Nepalese citizen. She is married to the second applicant, who is also a Nepalese citizen. The applicant applied for a subclass 500 student visa with her husband as the second applicant. It was common ground that if the first applicant was unsuccessful, the second applicant would also fail. In the decision challenged under the amended application to this Court, the then Administrative Appeals Tribunal (Tribunal) focused on the question of whether the applicant "intends genuinely to stay in Australia temporarily" within the meaning of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), bearing in mind also Direction No. 69 (Direction 69), given by the Minister and binding on the Tribunal by operation of s 499(2A) of the Migration Act 1958 (Cth) (Act).
2. The applicant particularly contends that the Tribunal committed the same error as was identified by Allsop CJ in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros), discussed below, however, for the reasons which follow, I conclude it did not, and that the other grounds put forward by the applicant also fail, so that the application should be dismissed with costs in a fixed sum.

1. The applicant arrived in Australia in September 2007 and held a variety of student visas. In 2017, she applied for a subclass 500 student visa. At all relevant times, cl 500.212 of Schedule 2 to the Regulations governed the grant of that visa and provided an applicant must be:

"... 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. An earlier decision to refuse the visa was set aside by Judge Riley in 2022. I refer to it further below. There was then another hearing before the Tribunal, which in July 2023 affirmed the decision not to grant the applicants' student visas.
2. By the amended application, which abandoned grounds 1, 2, 3 and 5, the applicant asserted that jurisdictional error in the Tribunal's decision arose in three ways:

(a) By misapplying cl 500.212(a) of the Regulations by treating Direction 69 as a checklist, so that the essential question as to intention raised by the provision was not answered (the checklist error) (Ground 7);

(b) By misconstruing cl 500.212(a) of the Regulations, departing from the proper construction as stated in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (the Eros error) (Ground 6); and

(c) Certain conclusions and factual findings were unreasonable and irrational (Ground 4).

1. The applicant focused on the following key findings of the Tribunal:

"90. The applicant has now been in Australia for over 15 years on temporary visas and within her first two years here attained something which in 2023 she has declared remains an unmet priority goal for her, namely an Australian qualification. Since attaining a Certificate III in Financial Services (Accounts Clerical) in 2009 the applicant has made little further academic progress. Whilst she has for a considerable portion of time since 2012, held visas as a secondary applicant of her husband's visas and had restrictions on her ability to study during these periods, the Tribunal is aware the applicant had the option of applying for Student visas in her own right as a primary visa applicant, which would have enabled her to complete the sort of vocational diploma course in which she has now, for the third time, enrolled.

1. In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including that the applicant has recently enrolled in a Diploma of Leadership and Management, which is due to finish in July 2024. The Tribunal accepts the proposed course of study could enhance the applicant's employment or business opportunities in her home country. In the view of the Tribunal it would be difficult, when considering a course such as a Diploma of Leadership and Management, to find other than that it has the potential to enhance an applicant's future prospects given the range of vocational arenas it may have relevance for. The Tribunal also accepts the vocational nature of this course is consistent with the applicant's previous education levels. Her evidence is that she has previously, both in her home country and during her time in Australia, commenced but failed to complete study at a higher education sector undergraduate level.
2. The Tribunal accepts the applicant has family ties in Nepal, but does not consider these ties to be stronger than her ties to her husband, who is residing with her in Australia, as he has since 2008, and as he will continue to as a secondary applicant if they are granted the current visa applications.
3. The Tribunal is not satisfied the applicant has economic ties which serve as an incentive for her to return to Nepal and the Tribunal is satisfied the applicant and her husband's employment in Australia provide her with an incentive to maintain her residence in Australia for economic reasons.
4. The Tribunal is not satisfied the applicant has adequately explained gaps in her studies whilst she has held Student visas as the primary applicant, or why she has elected to not at other times seek a Student visa as a primary applicant, in order to achieve the academic qualifications she contends are of such ongoing importance to her. In particular, the Tribunal is not persuaded by the applicant's explanation for why she did not complete a Diploma of Leadership and Management in the period since her visa application was refused in 2017, as it was open for her to do so.
5. The Tribunal acknowledges the applicant's wish to return to Nepal as a 'winner' and positive role model for other women in Nepalese society. Given she has an Australian qualification and has worked for a major Australian company for over 12 years and been promoted into supervisory roles, the Tribunal has difficulty understanding why the applicant would not feel that she has achieved a lot during her time in Australia.
6. For the cumulative reasons outlined I do not accept the applicant has on 30 June 2023 enrolled in a further Diploma of Leadership and Management for the reasons she claims, but rather is using the Student visa program as a pathway to maintain her residence in Australia.
7. Based on what is evidenced of the applicant's circumstances overall, including her immigration and study history, her economic circumstances in Australia and other matters the Tribunal considers relevant, including in respect of Direction No 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
8. 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." [emphasis added]

1. The applicants' attack on the reasons focused in particular on paragraph 96, especially the expression, "pathway to maintain her residence in Australia". The applicant says, in context, what the Tribunal meant by the use of that phrase was that she would be extending her stay in Australia for the period of the course of study which was to finish in July 2024, and that fact is not rationally capable of leading to the ultimate conclusion that there was no intention genuinely to reside temporarily in Australia. It is here that it is said that the facts are close to those dealt with by Allsop CJ in Eros (considered below). The Minister replies that taking this approach is not to read the language fairly and in context; rather, the "pathway" statement goes to the Tribunal's finding that there is an intention by the applicant to misuse the visa program by circumventing its intention.
2. The applicants also point to the reasoning in the Tribunal which led to another asserted error: they say when the Tribunal came to consider the claims and evidence of the applicant, the Tribunal used Direction 69 as a checklist, rather than assessing whether, on balance, the applicant satisfies the statutory requirement in cl 500 of Schedule 2 to the Regulations. The Minister rejects this.

1. As to Direction 69, true it is that the Tribunal does consider many of the topics listed in it, specifically:

(a) "The extent of the applicant's personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country": Tribunal reasons [48] to [57];

(b) "Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country, including consideration of the applicant's circumstances relative to the home country and to Australia": Tribunal reasons [58] to [60];

(c) "Evidence that the Student visa program is being used to circumvent the intentions of the migration program": Tribunal reasons [65] to [77];

(d) "Whether the Student visa is being used to maintain ongoing residence": Tribunal reasons [78] to [79]; and

(e) The "[c]onclusion upon genuine temporary entrant criterion assessment" at paragraphs 90 to 98, set out above.

1. The respondent Minister says that it is significant that the Tribunal, far from using Direction 69 as a checklist diverting it from answering the single issue of relevance under cl 500.212(a), instead weighed some positive findings in favour of the visa applicant (eg, at [91], [95]) against a large number of negative findings, all cogent, intelligible and based on uncontested facts, which notably include, as the Minister put in his submissions, the following:

"[22] ...

(a) In the 15 years that the First Applicant has resided in Australia, she has failed to obtain a desired qualification despite asserting that obtaining such an Australian qualification was a priority goal for her: D [90], [94]. Rather, numerous enrolments were cancelled and there were large gaps of time in which the First Applicant undertook no studies.

(b) In 2009, the First Applicant enrolled in Bachelor of Business (Accounting) degree which was shortly cancelled for non-payment of fees: D [15]. The Tribunal rejected an elbow injury in 2011 and a family death in 2015 as matters that could logically explain the discontinuation of that degree in 2009: D [68].

(c) From May 2011 to March 2017, she decided to not undertake any studies and instead stayed in Australia as a secondary applicant to her husband's student visas, in circumstances where there was no impediment to undertaking her own studies if she genuinely wanted to complete Australian qualifications: D [69]-[70].

(d) From March 2017, the First Applicant enrolled in a Diploma of Leadership and Management three times, and each enrolment coincided with her visa application (March 2017) or notice that the merits review for the visa application had been listed for a Tribunal Hearing (September 2019 and June 2023) and then each enrolment was soon cancelled for non-commencement: D [71]-[75].

(e) The pattern of evidence in subparagraphs (b) to (d) above cumulatively led to the conclusion that the Applicant was using the student visa program to circumvent the program's intentions and enrolled in courses she never intended to complete in order to maintain ongoing residence in Australia: D [77], [79].

(f) In relation to the wish to return to Nepal as a "winner", the First Applicant has already obtained an Australian qualification (a Diploma of Accounting completed in 2009: D [14]) and has worked for a major Australian company for over 12 years and was promoted to supervisory roles: D [95].

(g) The Applicants' economic circumstances include that they were both on good incomes from stable employment in Australia and earning more than any comparable work in Nepal, and this was a significant incentive to not return to their home country: D [60], [93]."

1. In my view, the Tribunal was well aware of the significance, but also the limitations, of the Ministerial Direction. It said so in terms:

"37. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion."

1. Although it considered many, if not most, of the topics in the Direction (consistently with Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 at [11], [13] and [15]), at no stage did the Tribunal lose sight of the ultimate question it needed to answer. Bearing in mind the High Court's admonition about the way in which Tribunal or decision-maker reasons are to be read (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), the position is as submitted by the Minister. This ground fails.

Ground 6 - Applicant "using the ... visa program as a pathway to maintain ... residence in Australia"

1. The applicants refer to the decision of Judge Riley in their earlier case where the Tribunal's first decision was set aside and specifically rely on what her Honour said in paragraphs 15 and 16:

"[15] The applicants relied on Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061, where Allsop CJ said:

1. The proper approach to the application of the clause requires an appreciation of the relationship between the disaggregated elements of cl 500.212 in subcll (a), (b) and (c), and the whole question requiring evaluation in the chapeau. There are many considerations that may be relevant to assessing whether someone is genuine in his or her intention to stay temporarily for subcl (a) or whether he or she is a genuine applicant for entry and stay as a student for the chapeau to cl 500.212. Those considerations will be taken up in (a)(ii) and (iii) and especially (iv) insofar as they relate to the applicant's intention as to how long to stay; and in (b) and (c) (especially (c)) as to whether the applicant is genuine in his or her desire to be a student. But subcl (a) is concerned, as Logan J said in Saini, with the genuine intention as to length of stay, and nothing else.
2. The terms and structure of cl 500.212 require a careful treatment of three distinct criteria: the intention concerning length of stay, that is, that there is a genuine intention to stay temporarily: (a); that there is an intention to comply with any visa conditions: (b); and any other matter relevant to the subject matter, scope and purpose of the clause and grant of the underlying visa. These three considerations all feed in to form an evaluative judgment about whether the person is a genuine applicant for entry and stay as a student.
3. The clarity of structure of disaggregated elements to inform one overall evaluation demands separate attention to each element so that appropriate attention is given to relevant considerations, and so that appropriate focus is given to the relevant considerations.

...

1. ... Subclause (a) is concerned and only concerned with the intention as to length of stay. ...

[16] The applicants also relied on Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25, where the Full Court adopted the conclusion at [22] of Eros, saying that:

[22] Ultimately, the Chief Justice held (at [22]) that the Tribunal misconstrued subcl (a) which is "concerned and only concerned with the intention as to length of stay". ...

...

[31] The presently relevant criterion, cl 500.212, requires satisfaction of a single state of affairs. It contains one sentence. The conjunction "because" connects the chapeau with subcl (a), implying a relationship of cause and effect: Pearce DC, Statutory Interpretation in Australia (9th ed, LexisNexis Australia, 2019) (at [12.11]). The conjunction "and" also marries subcll (a), (b) and (c), each of which is connected back to the chapeau by the combined conjunctive effect of the terms "because" and "and". Further, each of subcll (a)(i)-(iv) and (b)(i)-(ii) is connected to its parent and, by extension, to the chapeau, by way of a colon or the conjunction "and". This creates a waterfall effect, brought to a close by the full stop at the end of subcl (c). The combined effect of "because" ,"and" and the use of colon unites each composite part of cl 500.212, giving rise to "a whole idea or conception: 'a genuine applicant for entry and stay as a student'": Eros (at [8]). This reading is supported by the verb "is" in the chapeau, which encapsulates a single state of being.

...

[35] In summary, the authorities may be distilled into the following four mutually inclusive propositions:

(1) An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 of the Regulations if they satisfy subcll (a) and (b), in the light of "any other relevant matter" pursuant to subcl (c): Inderjit (at [31]); Eros (at [8]-[9]); Sanjel (at [18]).

(2) Subclauses (a), (b) and (c) address separate matters and require separate analyses: Eros (at [14]-[15]); Vidiyala (at [28]).

(3) It follows that if an applicant fulfils the criterion in subcl (a), a decision-maker must proceed to subcl (b) in order to exercise their jurisdiction properly: Eros (at [22], [30]-[33]).

(4) An applicant is not a genuine applicant for entry and stay as a student if they fail to satisfy subcl (a), regardless of their satisfaction of subcl (b), and vice versa: Sanjel (at [18]); Vidiyala (at [28]). If a decision-maker is satisfied that an applicant does not meet the criterion in either subcl (a) or (b), they need not proceed further. The decision-making process is complete because the applicant has failed to establish an essential element of the "whole idea or conception" contained in cl 500.212: Eros (at [8])."

1. The applicants also rely on what was said by Allsop CJ in Eros at paragraph 22:

"What the Tribunal appears to have done in its reasoning is to raise doubts about the primary purpose or motivating purpose of staying in Australia (to be with her family, now specifically her daughter) and treat it as relevant to the meaning of "temporary stay". Of course, those matters could be so relevant. If they informed a finding that Ms Eros intended to stay indefinitely in Australia (as the discussion in [19] hinted at, but without any conclusion) then plainly she would not genuinely intend to stay temporarily in Australia. But no such finding was made. The concern in the last sentence of [30] is not a finding. It is an expression of a concern. Subclause (a) is concerned and only concerned with the intention as to length of stay. The finding is not that she genuinely intends to stay indefinitely but for a defined, relatively short period related to an apparent desire to be near her daughter and to study. There is no finding (though there are hints) that Ms Eros is not a genuine applicant to stay as a student. To make that finding the Tribunal would have to deal with other considerations beyond the intended length of stay, and evaluate her evidence including the fact, if it is the case, as it appears to be, that Ms Eros has dutifully undertaken the various courses that she has enrolled in, and, if it be the case, that she genuinely wants to do the courses."

1. In my view, the Tribunal did not make an "Eros error". It properly reasoned as follows:

(a) The Tribunal found that the applicant is not a genuine applicant for entry and stay as a student as she failed to satisfy cl 500.212(a) of Schedule 2 to the Regulations. That being so, it was not necessary to consider subcll (b) or (c)-"Eros" is complied with;

(b) Having weighed the different factors under the Direction and come to factual conclusions as to which there is no challenge, the Tribunal then, in paragraphs 90 to 98, came to its conclusion upon the "genuine temporary entrant criterion assessment", which itself again indicates that it is properly reminding itself of that ultimate question;

(c) It sets out factors in favour of the applicant, but then essentially finds that these are outweighed by other matters (eg, at paragraphs 93 and 94) and then refers back to all of its reasons in [96]: "For the cumulative reasons outlined";

That then leads to the ultimate conclusion at paragraph 97.

(d) The use of the expression, "using the Student visa program as a pathway to maintain her residence", is unremarkable as it relates directly back to the findings on the issue of whether the visa program was being used to circumvent the intentions of the migration program, thus: "[77] For these cumulative reasons, any one of which may in and of itself not be sufficient to warrant the following finding, the tribunal finds there to be a pattern of evidence that the Student visa program is being used by the applicant to circumvent the intentions of the migration program".

1. There is no jurisdictional error in that approach. This ground fails.

1. Finally, as to the suggestion that the ultimate conclusion was unreasonable given the applicant's enrolment in the Diploma of Leadership and Management course, which would have concluded in July 2024, that fact is but one of many facts considered under the relevant Direction 69 factors. The length of the course, noting the number of courses undertaken and the long stay of the applicant in Australia, was not relevant, given the finding that the program was being used "as a pathway" to maintain the applicant's residence, which, as I have explained, directly follows from the conclusion in paragraph 77. The matters quoted from paragraph 22 of the Minister's submissions, set out above at [10], also support that conclusion.
2. The Minister submits that whether the challenge is based on asserted unreasonableness or irrationality, it is not for this Court, undertaking judicial review, to assess for itself what it considers to be reasonable or rational, but rather this Court is to look at the quality of the administrative decision and determine whether it is unintelligible or lacking in logical connection between evidence and reasons. That submission is correct. As Hayne, Kiefel (as her Honour then was) and Bell JJ said in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (citations omitted):

"[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

...

[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification."

(On this point, see also Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135] and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [12], noting also Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [47] and Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [35].)

1. There is self-evidently a rational, reasonable basis for all of the ultimate conclusions (as I have explained above), which are neither lacking in logical connections between evidence and reasons, nor unintelligible. This ground fails.
2. It follows that none of the grounds set out by the applicants have been made out, and the application must be dismissed with costs. The Minister seeks a costs order well below the scale amount. I am satisfied, given the amount of work put into the matter, that the amount sought is entirely justified and appropriate.

1. The Orders of the Court will be:
   1. The application be dismissed.
   2. The applicants pay the first respondent's costs fixed in the sum of $5,400.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.