Maharjan v Minister for Immigration and Citizenship [2026] FedCFamC2G 103

Note: The form of the order is subject to the entry in the Court's records.

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

1. The first applicant (applicant) arrived in Australia in 2009 on a Student (Subclass 572) visa. In 2017, she applied for a Student (Temporary) (Class TU) (Subclass 500) visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act). She is married to the second applicant, who sought a visa as a member of the first applicant's family unit. It is common ground that if the first applicant's application fails in this Court, so does that of her husband, so her claims are the focus of this judgment.
2. The applicant approaches this Court for the second time in relation to a visa refusal by the then Administrative Appeals Tribunal (Tribunal). In May 2022, a judge of this Court, having found jurisdictional error, remitted the matter for reconsideration. The Tribunal reconsidered the matter and delivered a further adverse decision in 2023, from which an application to this Court is now brought.
3. In summary, notwithstanding the careful arguments put on behalf of the applicant, for the reasons which follow, no jurisdictional error has been established and the application will be dismissed with costs.

1. The relevant criteria for the visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The primary criteria must be satisfied by at least one applicant in a family unit, and the issue in this case is whether the applicant satisfies cl 500.212(a), which provides:

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) ... ; and

(iv) any other relevant matter ...

1. It can be seen that there are two mandatory relevant considerations in determining the ultimate issue of whether the applicant intends genuinely to stay in Australia temporarily, namely, the applicant's circumstances and the applicant's immigration history.
2. The Tribunal, like delegates of the Minister, must have regard to relevant Ministerial Directions - in this case, Direction No. 69 made under s 499 of the Act. Of significance in this matter is its clause 12, "Value of the course to the applicant's future", which provides:

Value of the course to the applicant's future

1. Decision makers should have regard to the following factors when considering the value of the course to the applicant's future:
   1. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
   2. relevance of the course to the student's past or proposed future employment either in their home country or a third country; and
   3. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

1. Following a further hearing at which the applicant gave evidence, the Tribunal concluded that it was not satisfied that the applicant "intends genuinely to stay in Australia temporarily." Consequently, it was not satisfied she was a genuine applicant for entry and stay as required by cl 500.212, and so the criteria for the grant of the visa were not met by the applicant or, of course, by her dependent, and the decision to refuse the visa by the delegate of the Minister was affirmed in relation to both the principal applicant and the second applicant.
2. The Tribunal's key reasons were the following:

(a) The applicant was a 37-year-old citizen of Nepal who first arrived on a student visa in 2008 in Australia for the purpose of studying a Master of Business Administration course (Tribunal decision at [7]).

(b) As part of the application, the applicant submitted evidence of previous courses completed, including a Bachelor's degree in Business Studies in Nepal prior to arriving in Australia, and then completing, in date order (at [8]):

(i) a Certificate III in Accounting;

(ii) a Diploma of Accounting;

(iii) an Advanced Diploma of Accounting;

(iv) a Certificate III in Business;

(v) a Diploma of Business;

(vi) an Advanced Diploma of Business; and

(vii) a Master of Professional Accounting.

(c) Her evidence was that members of her family were involved in the Nepalese education sector, and that by completing the Master of Business Administration at the Holmes Institute in Australia, she would have more opportunities for employment in Nepal (at [8]). Subsequently, she enrolled in a Diploma of Banking Services Management, but without a substantive visa she was unable to continue that course (at [13]). She said she did not wish to depart Australia "on a bad note", and while she was awaiting further review, she enrolled in a Diploma of Community Services, having already completed a Certificate III in Individual Support (at [13]). Additionally, she undertook a Diploma of Leadership and Management between 2018 and 2019 (at [13]).

(d) Her evidence was that she had many "ups and downs" and four miscarriages before having a child in 2022 (at [13]). Her concern was that if she departed Australia with a "bad reputation" caused by not completing the courses, her, and her child's future, would be adversely affected, whereas course completion would bring her a "bright future" (at [13]).

(e) Her evidence was that the Diploma of Community Service "perfectly blends" her motives of career progression and of serving the community in Nepal, including by working in the education sector where her cousins and other members of the family worked (at [13]).

(f) The Tribunal then moved to consider the ultimate question, namely, did the applicant intend genuinely to stay in Australia temporarily.

1. The Tribunal was cautious as to the weight it could place on the applicant's family ties in her home country (at [20]). Although her parents and her husband's parents live in Nepal, the applicant has not returned to that country since 2016.
2. In relation to economic ties, while the Tribunal acknowledged that the applicant's family in Nepal appear to enjoy a comfortable standard of living, including owning their own properties, the applicant herself did not have strong personal, economic or employment ties to her home country (at [21]).
3. The Tribunal maintained its concerns that the applicant had an incentive to remain in Australia, given her partner and child are here with her, and it considered she did not appear to be motivated to use her qualifications to expand on her employment and experience, but rather had a desire to build her family in Australia (at [23]).
4. The Tribunal questioned the applicant as to the value of her study and why she desired additional qualifications in community services. Her answer was that having begun the course, she wished to finish, and that she wished to give back to the community in Nepal (at [24]).
5. Significantly for this case, the Tribunal doubted the applicant was continuing to study for career progression and considered instead that she was regressing in her study level, finding that her choice of courses demonstrated a lack of career pathway without a reasonable explanation (at [24]). The Tribunal questioned how her proposed course would assist in her potential career (at [25]). While the applicant said she intended to use the qualification to undertake volunteer work, she did say that she had not previously done that work in Nepal or Australia. The Tribunal also suggested to her that she already had qualifications enabling her to volunteer. The Tribunal did not accept the applicant's response that "now she had started her course, she wanted to continue to learn it." The Tribunal then said this:

[25] ... When questioned as to whether she was using the ongoing enrolment at the Vocational Education and Training level for the purposes of extending her stay in Australia, the applicant stated that she believed that she could complete the qualification and get a little bit more of an idea about community; her knowledge was currently only at the general level. The Tribunal is not satisfied on the evidence of the applicant that her proposed studies are relevant for any proposed future employment. As the applicant intends to use her studies for volunteer work, it also follows that the Tribunal is not satisfied that it would assist with the remuneration that she could expect to receive in her home country. The Tribunal was not persuaded as to the value of the proposed qualification for the applicant. [emphasis added]

[26] If the applicant is granted the visa, it will extend her period of stay in Australia to approximately 15 years. Other than the length of time the applicant has already spent and is now proposing to spend in Australia, the Tribunal has no other concerns about the immigration history of the applicant. It is accepted that she has not previously applied for a permanent visa and there is no evidence that the applicant has been refused or had a visa considered for refusal in Australia or elsewhere. It is acknowledged that a visa refusal may impact on the ability of the applicant to return to Australia in the future, in that she may be subject to a ban on applying for a future visa under s 48 of the Act for approximately three years. As to the applicant's child, he was not born when she applied for the visa and he is not included in the review application. He has not been and will not be the subject of any visa refusal.

[28] The Tribunal accepts that the applicant has family ties in Nepal, a stated regard for her home country and some other personal circumstances favourable to the granting of the visa. On balance, the Tribunal is not satisfied that these personal circumstances in her home country offer a significant incentive for her to return. It places greater weight on her circumstances in Australia, the length of her past and proposed stay, concerns relating to her career pathway, her ongoing enrolment at the diploma level, the regression of her studies and the lack of demonstrated value of the proposed courses to the applicant's future. Having considered the evidence provided of the applicant's circumstances overall, and other matters the Tribunal considers relevant, including those in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student. This is because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily. [emphasis added]

1. Three interrelated grounds are set out in the amended application:

(a) First, that the Tribunal made a jurisdictional error by failing to have regard to the two mandatory considerations in cl 500.212(a) of the Regulations - the applicant's circumstances and immigration history, in particular:

(i) the circumstances relating to the length of time the applicant had been in Australia;

(ii) the effect of the first Court decision in 2022; and

(iii) the changes that had occurred since 2022, especially the desire to undertake voluntary and community work in Nepal;

(b) By reason of those failures, the decision was legally unreasonable (citing such cases as Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 by Crennan and Bell JJ; Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 by Gordon J; and by Wheelahan J in ELN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 931); and

(c) That there was a jurisdictional error in relation to Ministerial Direction No. 69, although it is fair to say that, under pressure of argument, this also became a particular of legal unreasonableness "by stating that it [the Tribunal] was not satisfied that volunteer work would assist with remuneration expected to be received in Nepal and further failing to consider in relation to 12(c) of the Ministerial Direction that it is design [sic, designed] for the purpose of comparison with Australia and that volunteer work does not receive remuneration either."

1. There are two broad topics which are said to raise a jurisdictional error in the grounds:

(a) Matters other than the issue of "voluntary work/employment";

(b) Voluntary work/employment.

Matters other than the issue of "voluntary work/employment"

1. In argument on grounds 1 and 2 (other than in relation to the issue of voluntary work, to which I will come) the applicant submitted that there was jurisdictional error, when in paragraph 26 of the reasons, the Tribunal said that if the visa were granted, it would extend the applicant's stay in Australia to 15 years (although it had no other concerns about the immigration history of the applicant), as this did not have explicit regard to the hiatus of between five and six years between:

(a) the original adverse decision of the Minister's delegate to refuse the visa in December 2017; and

(b) the earlier decision of this Court setting aside the decision of the Tribunal affirming the delegate's decision in May 2022; and

(c) a further decision of the Tribunal affirming the decision of the delegate was delivered in March 2023.

1. The applicant does not submit that one simply deducts those some six years so that the applicant's period of stay is only nine years, but she does say that the explanation for the six-year hiatus is a matter which was necessary for the Tribunal specifically to advert to, and it did not, such that these matters did not receive active intellectual consideration.
2. In proceedings for a constitutional writ under s 476 of the Act, such a submission must not be accepted too easily. As the plurality of the High Court said in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17:

[26] Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker. [citations omitted]

1. Further, as a Full Court said in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107:

[48] ... a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof.

1. Finally, when reading a Tribunal decision, there is importance guidance to be found in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47], where French, Sackville and Hely JJ said:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. [emphasis added]

1. Applying these authorities, I do not accept the submissions of the applicant on this point. The Tribunal was well aware of the procedural hiatus, referring to the earlier decision and this Court's quashing of it. Also, it was factually correct for the Tribunal to find that the grant of the visa would extend the applicant's stay in Australia to 15 years at [26], and weight was to be placed on "the length of her past and proposed stay".
2. It could not be suggested that either the "6 year hiatus", or the fact that the applicant had four miscarriages followed by the birth of her son, were not matters the Tribunal had regard to, as both were cited by the Tribunal at [13], nor were they matters that, if resolved in a particular way, would be dispositive. They were encompassed in the general findings of the Tribunal as to "the length of her past and proposed stay", that is, the pattern and length of the stay in Australia.
3. As to the second matter, the Tribunal specifically considered at [23], and apparently accepted, the applicant's evidence that fertility treatment in Australia was superior to that available in Nepal so that "she now has a son and considered that she was correct to pursue treatment in Australia". However, having weighed that factor, the Tribunal then said:

[23] ... The Tribunal maintains its concerns that the applicant has an incentive to remain in Australia given that her partner and child are with her ... she seems to have a desire to build her family in Australia.

1. These matters were thus rationally mentioned and considered by the Tribunal along the way to determining the ultimate issue, namely, whether she intended genuinely to stay in Australia temporarily. Given the matters were not determinative of the ultimate issue, the consideration just mentioned amounted to active intellectual consideration by the Tribunal on matters going to the merits, where their weight was a matter for the Tribunal rather than this Court. Nor was any basis put forward asserting that this approach was manifestly unreasonable. These grounds (paragraphs 5 and 6 in the amended application) must fail.

1. In the amended application at [7], it is put that there was a:

... jurisdictional error in relation to Ministerial Direction No. 69 by treating it as a checklist rather than a guide to making decisions on the balance.

Particulars

(a) The [Tribunal] treated aspects of the Ministerial Direction in an unrealistic and literal manner by stating that it was not satisfied that volunteer work would assist with remuneration expected to be received in Nepal and ... failing to consider in relation to 12(c) of the Ministerial Direction that it is design[ed] for the purpose of comparison with Australia and that volunteer work in Australia does not receive remuneration either.

1. Relatedly, the applicant contended that paragraph 25 of the Tribunal's decision, which, given the language in paragraph 26 could only go to the applicant's circumstances rather than the applicant's immigration history, discounted to nothing the applicant's intention to use her study for voluntary work, as the Tribunal said it was:

... not satisfied that it would assist with the remuneration that she could expect to receive in her home country.

1. It was submitted that this misunderstood clause 12(c) of the Ministerial Direction, set out above, the important words being "remuneration the applicant could expect to receive in the home country ... compared with Australia, using the qualifications to be gained from the proposed course of study." As voluntary employment has the same remuneration, that is to say, no remuneration, in Australia or elsewhere, it therefore should not be treated as an adverse factor.
2. The approach was also said to demonstrate unreasonableness amounting to jurisdictional error. On analysis, the ground lacks persuasive force.
3. Paragraph 25 of the Tribunal's decision relevantly states:

(a) " ... The applicant stated that there were many communities not doing well in her home country and she thought that she could do some good; she thought that she could do a not for profit or something".

(b) " ... it was [the applicant's] intention to use the qualification to undertake volunteer work".

(c) " ... she had not previously volunteered for her community in Nepal; [nor had she] joined any community organisations in Australia".

(d) "The Tribunal did not accept ... that now she had started her course she wanted to continue to learn it".

(e) "When questioned as to whether she was using the ongoing enrolment at the Vocational Education and Training level for the purposes of extending her stay in Australia, the applicant stated that she believed that she could complete the qualification and get a little bit more of an idea about community; her knowledge was currently only at the general level. The Tribunal is not satisfied on the evidence of the applicant that her proposed studies are relevant for any proposed future employment. As the applicant intends to use her studies for volunteer work, it also follows that the Tribunal is not satisfied that it would assist with the remuneration that she could expect to receive in her home country. The Tribunal was not persuaded as to the value of the proposed qualification for the applicant". [emphasis added]

1. The ground's assumption that the Tribunal misconstrued the Direction is not made out. Nowhere does the Tribunal say it considers Ministerial Direction paragraph 12(c) not to apply to voluntary work. The Tribunal makes three findings in the impugned paragraph:

(a) As to the finding: "The Tribunal is not satisfied on the evidence of the applicant that her proposed studies are relevant for any proposed future employment," that does not entail making the asserted finding in relation to Ministerial Direction paragraph 12(c), especially given the High Court's direction in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that the Tribunal's reasons are not to be read "minutely and finely with an eye keenly attuned to the perception of error." Rather, this conclusion follows from the cumulative factual findings leading up to this statement, especially in the same paragraph, none of which suggest that voluntary work can simply be disregarded.

(b) As to the finding: "As the applicant intends to use her studies for volunteer work, it also follows that the Tribunal is not satisfied that it would assist with the remuneration that she could expect to receive in her home country," this is an additional conclusion, as is made clear by the word "also". As the Minister correctly submits, this is not a conclusion based solely on the applicant's "claimed interest in volunteering work". Rather, it included the following: that the applicant provided no evidence as to her cousin's Nepalese business nor any offer of employment, nor did she:

[24] ... assert at the hearing that it was her intention on return to Nepal to work for this business.

(c) There is no indication that the Tribunal wrongly used the Directions as a checklist. Given the failure of the Tribunal to find she actually intended to complete the course (see 30(d) above), the alleged error, even if established, is of doubtful materiality.

1. The Tribunal's findings overall were that the applicant's education was regressing, not progressing, and that the new qualifications did not add value, thus at [28] "the lack of demonstrated value of the proposed courses to the applicant's future." There is ample evidence supporting that conclusion. The weight to give to the relative factors were matters for the Tribunal. There is an evident and intelligible justification for all of the Tribunal's findings. There is also no basis for any finding of unreasonableness.
2. Ground 3 also must fail, as must the application.

(1) The application be dismissed.

(2) The applicants pay the first respondent's costs fixed in the sum of $9,097.93.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.