Rana v Minister for Immigration and Citizenship [2025] FedCFamC2G 1263

1. Ms Kabita Rana applied for a Student (subclass 500) visa in 2019. In 2021, the Administrative Appeals Tribunal affirmed an earlier decision of a delegate of the first respondent (the minister) to refuse the visa. Ms Rana has sought judicial review of the Tribunal's decision. In her amended application filed pursuant to s 476 of the Migration Act 1958 (Cth), Ms Rana says the Tribunal's decision was unreasonable because the reasons given were unintelligible and the findings lacked any evident justification. She argued the reasons were so incomprehensible that the Tribunal failed to perform its statutory function. The applicant also criticised the Tribunal for "improperly or unreasonably assum[ing] or adopt[ing]a contention that the Applicant was using the student visa to maintain residence in Australia".
2. During the hearing in these proceedings, the applicant's case evolved somewhat. The applicant's counsel, Mr Young, said the Tribunal failed to make an express finding that the applicant intends genuinely to stay in Australia temporarily. After the parties provided oral submissions, the Court granted leave for the parties to file written submissions in relation to this issue.
3. I have decided the application for judicial review must be dismissed. I explain my reasons below.

1. Ms Rana is a citizen of Nepal. She first arrived in Australia in 2016 as a dependent on her then-husband's student visa. She subsequently separated from her husband. In June 2018, she applied for a student visa in her own right so she could undertake a general English course. She was granted the visa. On 12 June 2019, she applied for a fresh student visa so she could undertake another general English course.
2. The visa application form (reproduced in exhibit one, the court book, at pp 1ff) asks questions about the applicant's educational record. When asked (at p 11) whether she had previously studied or was currently enrolled in any studies in Australia, the applicant answered "No". That answer is difficult to square with the fact the applicant had been granted a visa in 2018 so she could enrol in a general English course.
3. The delegate wrote to Ms Rana on 17 July 2019 to ask her about information received by the minister's department: court book at pp 31ff. The letter said records available to the department confirmed Ms Rana had not successfully completed any courses despite being granted a visa. The records also showed she had been enrolled in a course but her enrolment had been cancelled because of unsatisfactory attendance. Ms Rana was invited to comment given that unsatisfactory course attendance was a breach of a condition of her existing visa.
4. Ms Rana's response was received on 13 August 2019. That response included a copy of a letter from Australian Ideal College dated 21 January 2019 (reproduced at p 28 in the court book) which confirmed the applicant "has enrolled" in a course offered by that institution in Sydney. The letter from the college was signed by a student services' officer. The letter said the course in question started on 4 June 2018 and concluded on 20 October 2019. The letter did not suggest the applicant's enrolment had been cancelled for non-attendance, or for any other reason.
5. The response to the delegate also included a letter of explanation from the applicant: court book at pp 52-53. In that letter, the applicant acknowledged she had not attended classes regularly. She explained a close relative in Nepal had experienced serious health problems. The applicant said she was unable to concentrate on her studies after receiving news of her relative's health in February 2019. She said her relative had since improved and she was ready to resume studying. She included a medical certificate describing the relative's condition: court book at p 51.
6. The delegate's decision refusing the visa is dated 29 August 2019. The decision and the statement of reasons are reproduced at pp 55ff of the court book. The delegate noted the medical certificate referring to the applicant's relative suggested he suffered a minor head injury which required him to be hospitalised for three days. The delegate was sceptical that a relatively minor injury would cause the applicant such distress that she would fail to attend her course. The delegate also said the applicant had not adequately explained why she wished to study in Australia, nor had she adequately explained the value of the proposed course to her career prospects. In the circumstances, the delegate concluded he was not satisfied the applicant intended genuinely to stay temporarily in Australia.

1. The applicant was asked to complete a 'Request for Student Visa Information' form after she filed her application for review. She was subsequently invited to attend a hearing listed for 29 April 2021. The hearing invitation dated 14 April 2021 is reproduced at pp 94ff of the court book. The hearing invitation asks the applicant to provide any additional material in support of her case. It suggests the applicant should have regard to the delegate's reasons for refusing the visa when preparing for the Tribunal hearing.
2. The hearing proceeded on 29 April 2021. The applicant and her new husband (whose own visa depended on the outcome of Ms Rana's application) attended. The hearing ran for just over half an hour.
3. The Tribunal's decision affirming the delegate's decision to refuse the visa is dated 30 April 2021. A copy of the decision and the statement of reasons is reproduced at pp 109ff of the court book.
4. The statement of reasons quotes the criteria in cl 500.212 in Schedule 2 to the Migration Regulations 1994 (Cth) that apply to applications for this type of student visa. The discussion in the body of the reasons is directed to a question derived from the requirement in cl 500.212(a) - namely 'Does the applicant intend genuinely to stay in Australia temporarily?'
5. The Tribunal commenced that discussion with a reference to Direction No 69 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', a ministerial direction issued under s 499 of the Act. A copy of that direction was provided to the applicant in January 2021. The statement of reasons summarised the effect of Direction No 69. The Tribunal went on to recount the background to the application at [11]-[12].
6. After discussing and evaluating the evidence in relation to various matters, the Tribunal made its findings. In doing so, the Tribunal repeatedly resorted (at [17], [19] and [20]) to minor variations on a standard form of words that I infer were derived from a template of some kind. At [17], the Tribunal said:

The Tribunal finds that this lends weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program and that she is not a genuine temporary entrant. [Emphasis added]

1. The Tribunal used the following (slightly different) form of words when making findings at [21], [23] and [24]: "The Tribunal finds that this also lends weight to the contention that the applicant is not a genuine temporary entrant." [Emphasis added] The Tribunal's ultimate conclusion is set out at [25].

1. I have already outlined the applicant's amended grounds of review. The applicant and the minister both provided written submissions addressing those grounds. Amongst other things, the applicant's submissions say the Tribunal's "reasoning is beyond hard to follow. It is written with long incomprehensible sentences and paragraphs. It is written without any regard to grammatical usage or clarity": at [10]. At [11], the submissions argue the Tribunal's repetition of a particular phrase suggests "the AAT plainly did not proof its own decision". The submissions then suggest (at [14]): "It is not unfair to describe the AAT's reasons as ranting in writing".
2. The oral submissions of Mr Young, counsel for the applicant, were expressed in more measured terms. Mr Young started by focusing on the language of cl 500.212 of the Regulations which sets out one of the criteria that must be satisfied by an applicant for a student visa. That clause provides:

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. Allsop CJ discussed the correct approach to cl 500.212 in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061. His Honour explained (at [8]-[9]):

8. It is important to focus on the words of cl 500.212. First, the chapeau contains a whole idea or conception: "a genuine applicant for entry and stay as a student". This expresses a criterion that will involve value judgments about the applicant and his or her genuineness to enter and stay as a student. The last, emphasised, words were the subject of submissions and debate. They should not be disconnected from the text, structure and purpose of the whole clause.

9. The expression is followed by the word "because" and a list of various matters in subcll (a)(i)-(iv), (b)(i)-(ii) and (c), to which the decision-maker looks, overall, to come to a state of satisfaction about the contents of the chapeau. A plain reading of cl 500.212 leads to the conclusion that the satisfaction as to whether the applicant is a genuine applicant for entry and stay as a student is reached by reason of the particular criteria in subcll 500.212(a), (b) and (c), and not otherwise...

1. Importantly for present purposes, his Honour went on to say (at [13]):

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 v Minister for Immigration and Border Protection [2016] FCA 858], with the genuine intention as to length of stay, and nothing else. [Emphasis added]

1. I have already explained the question the Tribunal posed to itself was set out in the heading which read: 'Does the applicant intend genuinely to stay in Australia temporarily?' That question is plainly derived from the requirement in cl 500.212(a), which forms part of a larger question set out in the chapeau: that is, whether the visa applicant is a genuine applicant for entry and stay as a student. Mr Young did not suggest the Tribunal misdirected itself in focusing on the requirement in cl 500.212(a). While Eros (and the subsequent decision of the Full Federal Court in Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25) makes clear that question is answered in service of the "whole question requiring evaluation in the chapeau", an applicant who does not intend genuinely to stay in Australia temporarily will not satisfy cl 500.212: see Dait per Jagot, Bromwich and Lee JJ at [32].
2. That said, Mr Young argued the Tribunal did not provide a focused and coherent answer to the question it (properly) asked itself. He acknowledged the Tribunal's reasons appeared to be structured around the matters raised for consideration in Direction No 69. The Tribunal does not address the matters in its reasons in the same order they are set out in the direction. That is not inevitably fatal: Direction No 69 itself warns decision-makers against using the factors referred to therein as if they were an exhaustive checklist. While the Tribunal has latitude in deciding how to proceed, Mr Young argued the Tribunal's consideration of the evidence and its findings was confused and tentative. One consequence of that unsatisfactory approach was said to be a failure by the Tribunal to make a clear finding on what Mr Young identifies as the core issue in cl 500.212(a): the applicant's intentions with respect to the length of stay.
3. Ms Robinson appeared for the minister. She defended the Tribunal's reasoning. While acknowledging an element of idiosyncrasy in the Tribunal's approach, Ms Robinson argued the substance of the Tribunal's reasoning was sound. In her oral submissions, she attempted to map the Tribunal's reasons against the matters referred to in Direction No 69. She noted the Tribunal listed its various sources of information at [13] before it proceeded to summarise at [14] the information contained in the Request for Student Visa Information form (reproduced in the court book at p 78ff). Ms Robinson argues the Tribunal's discussion of the evidence in paragraphs [15]-[24] is shaped by the matters in Direction No 69.
4. At [17] of its reasons, the Tribunal considered the applicant's written and oral explanations for wanting to study courses in Australia rather than completing courses available in Nepal. The Tribunal also recorded questioning the benefits of completing a "low-level" certificate course in leadership and management if the applicant's goal was to establish a hotel or grocery business when she already had work experience in a grocery business. (These are matters arising out of cls 9(a) and 12(a) and (b) of Direction No 69.) The Tribunal said it was concerned the applicant was unable to provide coherent oral responses to the Tribunal's questions about these matters even though the applicant addressed some of these issues in her response to the Request for Student Visa Information form. That apparent anomaly prompted the Tribunal to make an adverse credit finding, explaining (at [17]):

... In particular the Tribunal does note that the applicant had made some attempts to answer such questions via her written responses to the Tribunal. The Tribunal was concerned by this because it suggests that the applicant had significant assistance in terms of providing the written evidence prior to the hearing but was then unable to annunciate such basic advantages of her current enrolments. The Tribunal finds that the applicant has not given reasonable reasons for not undertaking such study in her home country or region as similar courses are available there as she has acknowledged. The Tribunal understands that decision-makers should allow for any reasonable motives to be established by the applicant however in this case no such motives were actually expressed. The Tribunal has considered this discussion with the applicant very carefully and finds that the applicant's responses in this regard were not credible...

1. That credit finding was apparently directed to cl 11(b) of Direction No 69, which refers to "evidence that the student visa programme is being used to circumvent the intentions of the migration programme". The Tribunal's focus on cl 11(b) is apparent in its awkwardly-worded finding at the conclusion of [17]:

The Tribunal finds that this lends weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program and that she is not a genuine temporary entrant.

1. While the wording in [17] is convoluted, it is ultimately directed to the core concern in cl 500.212(a) that was identified in Eros and Saini - namely, whether the applicant intends genuinely staying in Australia temporarily.
2. Having cast doubt on the value of the proposed course to the applicant's career at [17] of its reasons, the Tribunal re-tills essentially the same ground at paragraphs [18]-[19]. At [18], it found:

...the applicant is seeking to undertake courses that are not consistent with her current level of education and her working life experience background and that these courses will not assist the applicant to obtain employment or improve employment prospects in her home country.

1. At [19] the Tribunal doubles down on its earlier criticism of the applicant's failure to provide a satisfactory explanation of the "linkages between opening a hotel business in Nepal and studying leadership and management here in Australia...". The Tribunal found:

...this lends weight to the contention that the applicant is using the student visa to maintain residence in Australia and is not a genuine temporary entrant.

1. At [20] of the statement of reasons, the Tribunal considers the applicant's circumstances in Australia, including community and family ties here. That paragraph apparently responds to cl 11(a) of Direction No 69, although it may also refer to cl 9(b). The Tribunal concludes those matters suggest the applicant has a strong incentive to remain in Australia - which was found to "lend[...] weight to the contention that the applicant is not a genuine temporary entrant". Paragraph [21] of the reasons for decision refer to the applicant's ties to her home country which is a consideration referred to in cl 9(b) of Direction No 69. It concludes those ties do not create a strong incentive to return to Nepal. Paragraph [22] of the statement of reasons refers to "military, or political commitment issues and such like" which appears to correspond to cl 9(e) of Direction No 69. The Tribunal found there was nothing of this kind that would discourage the applicant from returning to Nepal. Paragraph [23] of the statement of reasons refers to the applicant's economic circumstances in Australia relative to Nepal. The Tribunal concludes those circumstances would provide a significant incentive not to return to Nepal. That consideration appears to correspond with cl 9(c) in Direction No 69. Paragraph [24] of the reasons deals with the applicant's migration history. The significance of an applicant's visa history is dealt with in cls 13 and 14 of Direction No 69. The Tribunal found that history suggests "the applicant is seeking to stay here on whatever visa she could obtain as a means of maintaining residence in Australia". The Tribunal added the applicant's explanation of her immigration history reflected on her credit.
2. At paragraph [25] of its reasons, the Tribunal formally answers the question it asked itself earlier. It observed:

The Tribunal has therefore considered the applicant's stay and study here in Australia, and her circumstances here and in her home country as well as other matters relevant to the necessary consideration of whether she is a genuine temporary entrant and finds that she is not a genuine applicant for entry and stay as a student as required by cl. 500.212.

1. As I have already explained, each of the Tribunal's findings includes a form of words to the effect that the particular finding "also lends weight to the contention that the applicant is not a genuine temporary entrant". Mr Young says a finding in those terms does not address the applicant's intent; he says the flaw in those individual findings is effectively repeated in [25] which does not even use the word 'intent'. That is a problem, he explained, because the focus of cl 500.212(a) is on the existence and quality of the applicant's intention to stay in this country temporarily. To put the criticism differently, Mr Young says the Tribunal does not squarely answer the question the Tribunal correctly posed for itself earlier in its reasons because it said nothing about the applicant's intentions.

THE FORM AND SUBSTANCE OF THE TRIBUNAL'S REASONS

1. In Alsheri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 242, I explained the Tribunal's role involved supplying an answer to a question derived from an enactment. In that case, the Tribunal fell into error when it failed to formulate the question correctly. In this case, the parties agree the Tribunal identified the question correctly. The dispute relates to whether the question was answered squarely and intelligibly.
2. The Court must always keep in mind the challenges that face harried decision-makers in the Tribunal. A Tribunal decision-maker must decide a large volume of cases in the knowledge there are always more - many, many more - waiting in the queue. Tribunal members are not always legally qualified. They do not have the assistance of a contradictor in most migration cases. They do not always have sufficient institutional support in the form of associates, researchers or editors to assist them in their work. While the Tribunal is intended to model good decision-making behaviour in every case, it is still an administrative decision-maker. An indifferently or poorly-written decision may yet be lawful even though it does not meet the high standards of clarity and reasoning that should be observed.
3. So much was recognised by the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 where Neaves, French and Cooper JJ said the Court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of an administrative decision-maker's statement of reasons. The Full Court observed at 287:

The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.

1. The High Court quoted the reasoning in Pozzolanic with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6. Brennan CJ, Toohey, McHugh and Gummow JJ explained (at [31]):

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

1. The over-zealous scrutiny of reasons imposes unrealistic expectations on administrative decision-makers, but it also creates the risk the Court will stray into merits' review. That is not the proper role of the Court.
2. That said, I turn back to the statement of reasons provided by the Tribunal in this case. Having asked itself the correct question, the Tribunal provided an answer at [25]. (It effectively repeated itself at [26].) I reproduced paragraph [25] above. I acknowledge the Tribunal does not use the words 'intent' or 'intention'. Therein lies the problem, Mr Young argued. In doing so, he relied on Eros which (he submitted) points to the importance of focusing on the applicant's intentions to stay temporarily. Mr Young said the failure to make a finding in those terms is a jurisdictional error. He argued the Tribunal has failed to complete its statutory function.
3. In written submissions filed after the hearing, the minister referred to decisions of this Court in Beejadhur v Minister for Immigration [2020] FCCA 2238, Wu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 797 and Cheng v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 206. Those cases discussed the extent to which the Tribunal was required to make explicit its findings about the intention to stay temporarily. Judge Kendall in Beejadhur and Wu held the Tribunal's decision did not fall into error just because the Tribunal did not make an express finding about the applicant's intentions with respect to the duration of their stay in this country, provided such a finding could be implied or inferred from the findings that were made (especially when the Tribunal's reasons are read as a whole). In Beejadhur the Court was satisfied a finding that the applicant was using the visa program to 'maintain ongoing residence' amounted to a clear (if not explicit) finding that the applicant did not intend staying temporarily: at [97]. Judge Gerrard reached the same conclusion in Cheng (at [52]).
4. The reasoning in Beejadhur, Wu and Cheng underlines the importance of looking to the substance of what was decided. In this case, the Tribunal made a finding in very similar terms to the findings made in those other cases. Specifically, the Tribunal in this case found (at [24]) the applicant's visa history "would suggest the applicant is seeking to stay here on whatever visa she could obtain as a means of maintaining residence in Australia". That finding is unequivocal, and it "lends weight to the contention that the applicant is not a genuine temporary entrant".
5. That finding - even though it uses an odd formulation of words - demonstrates the Tribunal understood it was focused on the applicant's intentions with respect to the duration of her stay in Australia. A review of the substance of the findings the Tribunal made in paragraphs [16]-[24] suggests those findings were in fact directed to the same question, even if the findings were not expressed elegantly.
6. The text of paragraph [25] hints at why the Tribunal adopted the awkward formulations that it did in relation to each of those findings. The paragraph notes the Tribunal had regard to certain matters (matters that it was required to consider pursuant to Direction No 69) that were "relevant to the necessary consideration of whether she is a genuine temporary entrant" before concluding "that she is not a genuine applicant for entry and stay as a student as required by cl. 500.212." In phrasing its findings that way, the Tribunal was at risk of conflating the immediate question posed under cl 500.212(a) (i.e., 'Does the applicant intend genuinely to stay in Australia temporarily?') with the ultimate question required under cl 500.212 (i.e., "was the applicant a genuine applicant for entry and stay as a student?"). As Eros and Dait made clear, the two questions are separate but related. A careful reading of [25] and the balance of the reasons suggests the Tribunal understood that relationship correctly. In substance, the Tribunal has made findings in response to the question it posed itself under cl 500.212(a) which are sufficiently clear, particularly in light of the findings at [24]; that conclusion dictated a negative answer to the question posed in the chapeau of cl 500.212.
7. I am satisfied the Tribunal did make an express finding the applicant did not genuinely intend to stay in Australia temporarily. This express finding had a rational basis as the Tribunal's reasons demonstrate it properly applied and referred to cl 500.212 of the Regulations and Direction No. 69 to the applicant's case. Accordingly, this ground must fail.

1. The application for judicial review is dismissed. I will deal with the question of costs. The minister has sought costs in a fixed amount of $8,371.30. Ms Robinson says that amount approximates the amount incurred by the minister in dealing with these proceedings. She says this is within the Court's scale and is an appropriate amount considering the minister incurred costs preparing for hearing with an amended application filed by the applicant a month before the hearing. The minister also incurred costs drafting and filing further written submissions in response to the applicant's further ground of review raised during the hearing. Mr Young accepted during the hearing the applicant would accept an award of costs to be made in the event the applicant was unsuccessful.
2. I am satisfied it is appropriate to make an award of costs in favour of the minister. The minister has clearly incurred costs and if this award of costs is not met by the applicant, these costs will have to be met out of public monies. I am also satisfied an award of a fixed amount of $8,371.30 is appropriate in circumstances where this amount was incurred and it is within the Court's scale.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.