Bhandari v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1087
•11 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhandari v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1087
File number(s): SYG 2309 of 2020 Judgment of: JUDGE DOUST Date of judgment: 11 July 2025 Catchwords: MIGRATION – student visa – judicial review – where applicant consented to the Tribunal deciding the application for review without conducting a hearing – whether Tribunal’s invitation to applicant to provide information was liable to mislead the applicant into believing that all information had to be in writing – invitation not likely to mislead applicant – genuine temporary entrant criterion – application dismissed Legislation: Migration Act 1958 (Cth) ss 359, 359(2), 359A, 360, 360(2)(b), 360(3), 361(2), 361(2A), 363, 363(1)(b), 363A, 476
Migrations Regulations 1994 (Cth) sch 2 cls 500.211, 500.212, 500.212(a)
Cases cited: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; [2007] HCA 26
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 16 April 2025 Place: Sydney Counsel for the Applicant: Mr J R Young Solicitor for the Applicant: Mr S Thapa, Shamser Thapa & Associates Solicitor for the First Respondent: Mr M Wong, HWL Ebsworth Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2309 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SURYA PRASAD BHANDARI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
11 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The application be dismissed.
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 typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DOUST:
INTRODUCTION
This is an application for judicial review commenced on 7 October 2020 pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) in respect of a decision of the then Administrative Appeals Tribunal (now Administrative Review Tribunal) (Tribunal) made on 5 September 2020.
The Tribunal affirmed an earlier decision of a delegate of the first respondent, the (then) Minister for Immigration, Citizenship and Multicultural Affairs, now Minister for Immigration and Citizenship (the Minister), to refuse the applicant’s application for the grant of a Student (Temporary) (Class TU) (Subclass 500) visa (the visa).
The applicant had arrived in Australia in 2008, completed a course of study in 2013, and had not completed any further course of study subsequently. In particular, he had not completed the courses of study he had been enrolled in over the period from 2015 to 2019 whilst he held his two most recent student visas. As at the date of the Tribunal decision in 2020, the applicant was enrolled in a Diploma of Leadership and Management. The Tribunal considered the applicant did not genuinely intend to stay in Australia temporarily and considered the applicant sought the visa primarily to maintain residence in Australia.
The applicant proceeds upon grounds in an amended application lodged on 19 March 2025 (the amended application).
The applicant’s case is in essence this: that after the applicant consented to the Tribunal deciding his application for a review without conducting a hearing, and without the applicant having made any request that it do so, after it considered the information provided by the applicant in connection with the review, the Tribunal should have adjourned its review to afford the applicant the opportunity to provide further information in connection with the review. The applicant does not identify any information the applicant would have provided in that event.
For reasons which follow the Tribunal did not err, and the application should be dismissed.
EVIDENCE
The evidence in respect of the amended application was constituted of a court book (the court book) which was prepared by the first respondent and which contained relevant documents from the files of the Department of Home Affairs concerning the applicant’s visa application and documents from the Tribunal’s file. The court book was received into evidence at the hearing before this Court without objection by the applicant.
In addition, the first respondent tendered an additional document entitled “Information for migration review applicants”, which was referred to as having been annexed to a letter dated 11 July 2019 from the Tribunal to the applicant, a copy of which letter appeared in the court book. The document had not been produced in the court book but was received into evidence without objection.
The relevant history is set out following.
BACKGROUND
The Applicant’s History and Visa Application
The applicant, born 21 April 1981, is a citizen of Nepal who first arrived in Australia on 23 October 2008. Between 2013 and 2019, the applicant held three student visas and was enrolled in seven courses of study. He completed only a single course of study, being a General English course in 2013.
On 12 April 2019, the applicant lodged an application for the grant of a fourth student visa for the purpose of undertaking a Diploma of Leadership and Management.
On 20 June 2019, the applicant was notified by letter from a delegate of the Minister (the delegate) that his visa application had been refused. The letter annexed a copy of the decision record.
The delegate was not satisfied that the criteria for the grant of the visa had been met. The decision record referred to cl 500.212 in sch 2 of the Migrations Regulations 1994 (Cth) (the Regulations), known as the 'genuine temporary entrant criterion' which stipulates the following requirements:
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
(c) of any other relevant matter.
The delegate also referred to Ministerial direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (the Direction) which identifies factors that are to be taken into consideration when assessing visa applications of the kind that arise in the current matter.
The delegate set out a summary of the factors to be considered arising from the Direction, which include, inter alia:
(a)the applicant's circumstance in his home country;
(b)the applicant's potential circumstances in Australia;
(c)the value of the course to the applicant's future; and
(d)the applicant's immigration history.
The delegate was not satisfied that the applicant’s ties to Nepal were a strong enough incentive for him to return to Nepal following a stay in Australia for study. Whilst acknowledging the applicant’s family ties to his parents who remained in Nepal, the delegate found that the strength of those ties was outweighed by the lack of evidence of financial ties, employment or assets in his home country.
The delegate also found the applicant’s substantial period of residence in Australia outweighed any incentive he had to return to Nepal. The delegate observed that the applicant had not declared any previous employment in Australia or overseas and had not declared any study he had undertaken whilst in Australia. The delegate noted that the applicant was the holder of a student visa which was valid until 15 April 2019 and had lodged a further student visa application which would potentially extend his residence in Australia to over 11 years. The delegate expressed significant concern that the applicant’s circumstances in Australia outweighed the incentive he had to return to Nepal and that he had utilised temporary student visas as a way of maintaining ongoing residence.
The delegate noted that the applicant had not provided any evidence why he could not undertake his proposed study in his home country at less cost, nor had he provided any business plan to substantiate his claims that the course was to equip him to operate his own business.
The delegate concluded by observing that, despite the applicant’s period in Australia, he had provided no evidence of his studies, and no explanation for his failure to do so whilst having been the holder of a student visa. The delegate was not satisfied that the information provided by the applicant demonstrated that he was a genuine temporary entrant.
The Review by the Tribunal
On 8 July 2019, the applicant lodged with the Tribunal an application for review of the delegate’s decision. The application recorded that the applicant was represented by a registered migration agent.
On 11 July 2019, the Tribunal sent an acknowledgement of the application to the applicant.
On 8 May 2020, the Tribunal emailed the applicant a letter inviting the applicant to provide information in respect of his application.
The letter contained a reference to the Direction in its body and listed it as an attachment. Although not reproduced in the court book, I infer that a copy of the Direction was attached when the letter was sent to the applicant. No claim was made by the applicant that he was not aware of the Direction and/or its import.
The letter stated at the outset:
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.
(Emphasis in original)
That passage of the letter was the subject of Ground 1A of the applicant’s amended application. It is referred to hereafter as the “invitation passage”.
The letter then provided a link to complete the ‘Request for Student Visa Information’ form (the form).
The applicant completed the form electronically and submitted it to the Tribunal within the period prescribed in the invitation, that is, by 22 May 2020.
The form contained a series of sections designed to elicit information from the applicant about his personal details, whether he wished to participate in a hearing, his educational and employment experience prior to arriving in Australia, his history of travel to Australia and his home country, his visa history, his enrolment and study in Australia, his work and expenses in Australia, and his other circumstances, including his family members and their country of residence, the applicant’s contact with family members, and the applicant’s community ties in Australia and his home country.
Significantly, for the purposes of the Tribunal’s review and the matter before this Court, the applicant answered the question, “Do you and any other applicants consent to the Tribunal deciding the review without a hearing?” as follows:
Yes, I/we consent to the Tribunal deciding the review without a hearing.
The following note appeared immediately below the question (bold added, underlining in original):
Note: If you consent to us deciding your review without a hearing:
•You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.
…
•You should provide us with all the information you would like us to consider in your case. A decision will not be made until after the period for responding to this invitation has passed. Additional information may also be given at the end of this form.
…
There was a section headed “Document upload” at the end of the form.
Below that heading, the following appeared (underlining in original):
The information requested on this page relates to all applicants included in the review application.
Any additional information you wish to give in support of your application may be uploaded here. Information in a language other than English must be accompanied by a translation from a qualified translator.
If you wish to provide additional information after you have submitted this form, do not complete this form again. You may instead provide information by one of the methods on the Contact Us page of our website.
The words “Contact Us” appeared to be a link, presumably to the relevant website page.
On 7 September 2020, the Tribunal notified the applicant in a letter sent by email that it had affirmed the decision under review. The notification of decision letter attached a copy of the Tribunal’s decision record (the decision record).
The Tribunal’s reasons
After setting out the history of the application in the decision record, the Tribunal observed that 13 months had elapsed since the delegate’s decision. The Tribunal also noted that the applicant had been assisted in the review process by a registered migration agent.
The Tribunal recorded that due to the length of time that had passed since the delegate’s decision, the Tribunal, appreciating the potential for change in the applicant’s personal circumstances, had written on 8 May 2020 to the applicant requesting further information. The Tribunal expressed its satisfaction that the applicant had been properly invited to provide further information pursuant to s 359(2) of the Act, and noted that the applicant had provided information in response to the Tribunal’s request and had elected to have the matter decided without a hearing.
The Tribunal considered whether it should adjourn the review under s 363(1)(b) of the Act to allow the applicant additional time to provide further evidence to support the review application, but concluded that the applicant had a fair opportunity to provide relevant information and declined to exercise its discretion pursuant to s 363(1)(b) of the Act.
The Tribunal concluded that the decision under review should be affirmed. After setting out the statutory criteria for the grant of the visa and summarising the Direction the Tribunal considered the applicant’s claims and evidence.
The Tribunal expressed concern about the applicant’s limited academic progress over such a lengthy period, and expressed the view that the applicant’s academic progress was not that of a genuine student.
The Tribunal considered that the applicant had not provided sufficient information about how the Diploma of Leadership and Management course he proposed to undertake would assist him to obtain employment or operate his own business in Nepal.
The Tribunal considered, given the applicant’s lengthy stay in Australia (at that point, 12 years), and his desire to extend that stay, the applicant had a preference to remain in Australia, and considered it reasonable to conclude that the applicant had strong ties to the Australian community.
The Tribunal did not consider it had sufficient information about the applicant’s economic circumstances in Australia to conclude that they acted as a significant incentive for him not to return to his home country. The Tribunal was also not satisfied that the applicant’s family ties in Nepal acted as a significant incentive for him to return given the length of time he had been onshore.
Ultimately the Tribunal concluded (at [32] – [33]):
32.There is not sufficient evidence before the Tribunal, to satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily. In making this comment, the Tribunal places weight on: the length of time the applicant has been onshore for, now approaching twelve years; the limited academic progress he has made in that time; and the limited detail provided by the applicant in relation to his future goal and how this qualification will specifically assist him in his career. Taken as a whole, the information provided by the applicant in relation to their application raises questions for the Tribunal about the applicant’s true intentions in residing in Australia. The Tribunal considers that the visa is being sought primarily to maintain residence in Australia.
33.Having had regard to the applicant’s circumstances, their immigration history and all other relevant matters, the Tribunal cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 500.212.
The Tribunal concluded that the criteria for the grant of the visa were not met and determined to affirm the decision under review.
GROUNDS OF APPLICATION
At the hearing on 16 April 2025, the applicant advanced the following grounds of review, which were set out in the amended application (reproduced without alteration):
1.The Second Respondent made jurisdictional error in relation to exercise its discretionary powers under section 363 of the Migration Act 1958 in that it failed to exercise such discretionary (sic) reasonably.
1A.The Second Respondent made jurisdictional error by failing to consider an exercise of discretion and whether it was reasonably likely that an invitation to provide information at CB 126 was liable to mislead the Applicant into believing that all information had to be in writing.
1B.Further or in the alternative to 1 and 1a, the Second Respondent made jurisdictional error by failing to obtain the views of the Applicant as to whether it should adjourn the review pursuant to s 363 of the Migration Act 1958.
3.The Second Respondent failed to consider whether in the interest of fairness it should consider the exercise of discretionary powers to obtain information from the Applicant where the Second Respondent considered that the written material provided by the Applicant required elaboration or explanation or further information.
CONSIDERATION
Ground 1A
It is convenient to deal with Ground 1A first. As set out above, Ground 1A appeared in the amended application as follows:
1A.The Second Respondent made jurisdictional error by failing to consider an exercise of discretion and whether it was reasonably likely that an invitation to provide information at CB 126 was liable to mislead the Applicant into believing that all information had to be in writing.
In the applicant’s oral submissions, it was apparent that the “exercise of discretion” he referred to in the ground was the exercise of the Tribunal’s discretion under s 363 of the Act to adjourn the review. The applicant’s argument was that the Tribunal should have adjourned the review, because it should have considered it likely the applicant was misled by the 8 May 2020 letter into believing that all the information to be given to the Tribunal had to be in writing.
The applicant submitted that the invitation to provide information under s 359 of the Act (that is, the invitation passage in the Tribunal’s letter dated 8 May 2020 set out above) was objectively misleading and suggested to a reasonable recipient that all required information was required to be provided in writing. In oral submissions, the applicant contended that this had the consequence of conveying that if the invitation passage in the letter was taken up, there was no point in having a hearing.
The submission should be rejected.
There was no evidence before the Court from the applicant that he had in fact been misled by the letter. Nor is it likely such a claim would have been accepted if it had been made. The applicant was represented by a migration agent, who it may be assumed was familiar with the Tribunal’s procedures, including the entitlement in s 360 of the Act to be invited to appear before the Tribunal.
In any event, the letter was not misleading. It may be accepted that the invitation passage invited the applicant to provide comprehensive evidence as to his satisfaction of the criteria in cls 500.211 and 500.212 of sch 2 of the Regulations. The invitation passage sought all relevant information about the applicant’s course of study, something which was relevant to the applicant’s satisfaction of the relevant criterion in cl 500.211 of sch 2 of the Regulations, and about his entry and stay in Australia as a student, which was relevant to the applicant’s satisfaction of the relevant criterion in cl 500.211 of sch 2 of the Regulations.
It does not follow, either from the letter read as a whole, or as a matter of logic, that the provision of the requested information in writing would mean that there would be no opportunity to provide any further information at a Tribunal hearing, and such hearing would be of no utility.
The invitation passage should not be considered in isolation. The invitation letter and the form it linked to also contained reference to a possible hearing. The letter contained the following:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
(Emphasis added)
That paragraph refers to a possible entitlement to appear at a hearing, the existence of which was conditioned on the applicant providing the information requested by the Tribunal. That would be foregone by failing to provide the requested information. Rather than the provision of the requested information rendering a hearing otiose, it was the provision of that information which made a hearing possible.
The communications from the Tribunal to the applicant made it clear that a hearing was not simply for the purpose of providing information. The paragraph of the letter immediately above referred to an appearance before the Tribunal as an occasion for giving of evidence, as well as presenting argument.
The Request for Student Visa Information form which was linked to the 8 May 2020 letter invited the person completing it to provide information or evidence. It did not expressly facilitate the presentation of argument or submissions. The Request for Student Visa Information form contained a section headed “Hearing Information”. That section contained the note, set out above at [30] above, which made clear that a hearing afforded an opportunity to both “give evidence” and “present arguments”, as had the letter.
The capacity to present arguments was an obvious reason why an applicant receiving the letter would, notwithstanding having provided comprehensive information in support of their visa application, wish to appear at a hearing rather than to leave the matter to be determined in writing. Obviously, in the context of a Tribunal hearing, such argument or submissions might be addressed to matters of concern raised by the Tribunal member arising from the Tribunal’s consideration of the information provided in the Request for Student Visa Information form. The capacity to give evidence at such a hearing might also be exercised to provide evidence going beyond the scope of the Request for Student Visa Information form, such as evidence which came to light between submitting the form and the matter proceeding to hearing, or evidence to expand upon or clarify the information provided in the form, or evidence to demonstrate the credibility of the applicant if their genuineness had been identified as a real issue in the primary decision (as was the case here). If the review were to proceed to a hearing, that meant that the applicant would be entitled, pursuant to ss 361(2) and (2A) of the Act, to request the Tribunal to seek oral or written evidence from another person or other written material in relation to the review. Whilst such a request would not oblige the Tribunal to comply with it, the Tribunal would be obliged to consider such request.
Whether the opportunity of a hearing was likely to avail any applicant might depend upon a range of factors personal to the applicant, not least of which was the underlying merit of their claim for the visa. That was an assessment to be made by the applicant with the assistance of their representative where they had engaged one.
Fairly read, the invitation passage in the 8 May 2020 letter from the Tribunal was not likely to mislead the applicant as to the requirement to provide information, or the utility of a hearing, least of all where the applicant was represented by a registered migration agent, as the Tribunal noted at [5] of its reasons.
It was not incumbent upon the Tribunal to consider that possibility when it addressed the question whether it should adjourn the review.
The Tribunal did not err in the manner alleged in Ground 1A.
Ground 1
Ground 1 appeared in the amended application as follows:
1.The Second Respondent made jurisdictional error in relation to exercise its discretionary powers under section 363 of the Migration Act 1958 in that it failed to exercise such discretionary (sic) reasonably.
The applicant contended that when the Tribunal came to conduct its review it should have adjourned the proceeding, in exercise of its power to do so in s 363(1)(b) of the Act, and by failing to do so when it considered taking that step, it acted unreasonably.
The applicant’s submission is made in circumstances where, because of the applicant’s consent to the Tribunal deciding its review without him appearing, the applicant was, by operation of ss 360(2)(b) and (3) of the Act, not entitled to appear before the Tribunal. By the operation of s 363A of the Act, the Tribunal was not empowered to permit the applicant to appear before it. The adjournment the applicant contends the Tribunal was obliged to afford could not, in those circumstances, have been one directed to giving him an opportunity to appear before it. Rather, it would simply have enabled the Tribunal to write again to the applicant to enquire if he had anything further to provide.
Of course, the Tribunal was not obliged by s 359A to notify the applicant about the Tribunal’s subjective appraisals, thought processes, determinations, identified gaps, defects or lack of detail or specificity in the evidence or conclusions arrived at by the Tribunal in weighing that evidence: VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123 (VAF) at [24], per Finn and Stone JJ; approved in SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; [2007] HCA 26 (SZBYR) at [18] per Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ (Hayne J agreeing). Nor does any common law principle of procedural fairness oblige the Tribunal to disclose those matters by providing a ‘running commentary of its thinking’: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL) at [48]. It could not be said that there was any error by the Tribunal in failing to adjourn to advise the applicant of its preliminary views and to give him an opportunity to make submissions about them.
In those circumstances, the applicant’s ground is one that there was error by the Tribunal failing to adjourn for the purpose of enabling the applicant a further opportunity to submit evidence in writing.
Although the Tribunal was obliged to exercise the power in s 363(1)(b) of the Act reasonably, the present matter may be readily distinguished from Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li). In that matter, the High Court found that the Tribunal had erred by exercising its discretion to refuse an adjournment application made by the respondent (the applicant before the Tribunal), in circumstances where the respondent was awaiting a skills assessment from the relevant authority. In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Singh), a Full Court of the Federal Court found that the Tribunal had unreasonably exercised its discretion to refuse an adjournment where the visa applicant sought to get an English skills test re-marked, where the test was the means by which the applicant could demonstrate his satisfaction of one of the criteria for the visa, being the possession of competence in the English language.
In each instance, the applicant sought an adjournment, and there was a sound basis for the Tribunal to think that the applicant would, within a reasonable period, be in possession of evidence that might dispositively (whether or not in favour of the applicant) address one of the criteria for the grant of the visa.
There was no application for an adjournment by the applicant in the present matter.
Nor was there any reason for the Tribunal to think that the applicant was about to be in a position to provide some dispositive material in support of his application, as there had been in Li and Singh. The question whether the applicant met the “genuine temporary entrant criteria” in cl 500.212(a) of the Regulations involved the Tribunal considering evidence concerning a range of factors, and making an evaluation based on that evidence. That evaluation required the Tribunal to give consideration to, inter alia, the applicant’s long history in the country. It was unlikely there might be some additional evidence that would conclusively demonstrate the applicant’s satisfaction of the criteria.
The Tribunal considered (at [8] to [10] of its reasons) whether the applicant had been given a fair opportunity to provide relevant information already and expressed its satisfaction that he had been given such an opportunity, by reference to what was set out above in its decision, which included the Tribunal’s request for information on 8 May 2020 and the applicant’s response on 22 May 2020. That conclusion is unexceptionable in circumstances where:
(a)the applicant had, on 22 May 2020, a little more than three months prior to the Tribunal coming to publish its reasons, provided the completed Request for Student Visa Information form, which, as set out above, was directed to eliciting information relevant to the visa criteria;
(b)that form included, on its penultimate page, a link to use to provide further information after the form was submitted;
(c)the applicant had not communicated with the Tribunal to advise that any additional evidence was about to come to hand; and
(d)no claim is made by the applicant to this Court that there was further evidence that he would have provided to the Tribunal in the event it had adjourned its review to hear further from him.
The Tribunal did not err in failing to determine to adjourn its review.
Ground 1B
Ground 1B appeared in the amended application as follows:
1B.Further or in the alternative to 1 and 1 a, the Second Respondent made jurisdictional error by failing to obtain the views of the Applicant as to whether it should adjourn the review pursuant to s 363 of the Migration Act 1958.
The applicant cites the decision in Li in support of the proposition that the Tribunal was obliged to seek the view of the applicant before determining not to adjourn the review. Whilst Li is authority for the proposition that the Tribunal’s discretion to adjourn a review must be exercised reasonably, which includes that it must have an evident and intelligible justification, the applicant did not identify any passage in that decision that stood for the narrower proposition which is advanced in Ground 1B, that is, that a party’s views must be sought where the Tribunal is considering adjourning the review.
Plainly, in most circumstances where the Tribunal considers its discretion to adjourn its review, it will do so at the behest of an applicant, and in entertaining such application by the applicant, will give the applicant an opportunity to put before it reasons and/or evidence in support of such an adjournment.
There was no such application in the present matter, nor was there any good reason for the Tribunal to think that the applicant may wish to be heard in favour of the Tribunal adjourning its review. Before this Court, the applicant has not identified any submission he might have made in support of the Tribunal taking that course.
Nothing in the terms of the Act compelled the Tribunal to undertake such a consultation.
The applicant may only make out the ground if he can demonstrate that in the circumstances, the Tribunal’s decision not to hear from him in relation to the question of an adjournment rendered its exercise of the discretion in s 363(1)(b) of the Act legally unreasonable, in the sense discussed in Li.
Where the applicant had relatively recently provided comprehensive information relevant to the visa criteria, had been given the means by which to submit additional information and had not done so at the time of the review, and had given no indication that he had any further evidence to provide, or wished the Tribunal to adjourn its review, the Tribunal was not obliged to consider whether it was appropriate to adjourn its review, and was not obliged to consult the applicant on that question.
In any event, there was nothing before the Tribunal, and there is nothing before this Court, to suggest that the applicant could have identified a purpose that would have been served by such an adjournment, such as further information it could have provided, that may have been relevant to the questions before the Tribunal. Even if the Tribunal erred in failing to consult the applicant about an adjournment, there is nothing to indicate, as a matter of realistic possibility that the outcome before the Tribunal could have been different. There is no evidence that the applicant had anything in the way of any additional evidence or argument to put to the Tribunal in support of a decision to adjourn, or that in the event the Tribunal had adjourned, he had anything to put before the Tribunal that might have tipped the Tribunal’s consideration on the review in his favour.
No jurisdictional error is demonstrated by the Tribunal’s failure to give the applicant an opportunity to be heard on the question of adjourning the review.
Ground 3
Ground 3 appeared in the amended application as follows:
3.The Second Respondent failed to consider whether in the interest of fairness it should consider the exercise of discretionary powers to obtain information from the Applicant where the Second Respondent considered that the written material provided by the Applicant required elaboration or explanation or further information.
The applicant has not, in support of this ground, identified any particular piece of information the Tribunal should have requested from the applicant, or any piece of information that the applicant could have proffered that he had not already provided to the Tribunal, that might have been relevant to the issues the Tribunal came to determine. The applicant’s case in reality is that the Tribunal should have, upon realising that it was not satisfied that the applicant met the criteria for the grant of the visa, reverted to the applicant to seek further information relevant to the matters about which it had not been satisfied that the applicant met the visa criteria.
As set out above, neither s 359A of the Act nor any common law principle obliged the Tribunal to notify the applicant about the Tribunal’s subjective appraisals, thought processes, determinations, identified gaps, defects, or lack of detail or specificity in the evidence or conclusions arrived at by the Tribunal in weighing that evidence (VAF, SZBYR above), nor to provide a ‘running commentary’ of its thinking: SZBEL. It could not be said that there was any error by the Tribunal in failing to adjourn to seek elaboration from the applicant about those parts of his claim to the visa that the Tribunal considered lacking.
There may be no complaint by the applicant in the present matter that he was not on notice of the issues in the review. They had been made plain to him by provision to him of the delegate’s decision, the Request for Student Visa Information form and the Direction. To the extent the applicant’s case fell short of meeting the relevant criteria, it could not be said that was a consequence of the applicant having been denied a fair opportunity to demonstrate that he satisfied them.
No jurisdictional error is demonstrated.
CONCLUSION
The originating application should be dismissed with costs.
I will hear the parties on the question of the amount of costs.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 11 July 2025
0
9
2