Bhargav v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1003
•2 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhargav v Minister for Immigration and Citizenship [2025] FedCFamC2G 1003
File number: MLG 1806 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 2 July 2025 Catchwords: MIGRATION – student (class TU) (subclass 500) visa – where delegate refused to grant the applicant a visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – where Tribunal affirmed the delegate’s refusal – where applicant failed to satisfy cl 500.211 of the Migration Regulations 1994 (Cth) – applicant not enrolled in a registered course of study – whether applicant denied procedural fairness – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed Legislation: Migration Act 1958 (Cth) div 5, pt 5, ss 360, 476, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, div 1, pt 2, item 3
Migration Regulations 1994 (Cth) sch 2, cls 500.211, 500.212, 500.212(a)
Cases cited: AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156, 189 FCR 494
Craig v South Australia [1995] HCA 58, 184 CLR 163
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, 237 FCR 1
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of last submission/s: 8 May 2025 Date of hearing: 22 May 2025 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms S Ward Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1806 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASHISH BARGAV
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
2 JULY 2025
THE COURT ORDERS THAT:
1.The applicant’s application for judicial review filed on 11 June 2019 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $5,400.00.
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 Gostencnik
INTRODUCTION
In August 2017 a delegate of the first respondent refused the applicant a student visa. The former Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision in May 2019. Before the Court is an application under s 476 of the Migration Act 1958 (Cth) (Act) for judicial review of the Tribunal’s decision. For the reasons which follow, that application will be dismissed.
BACKGROUND
The applicant is a citizen of India who arrived in Australia on 25 April 2009 as the holder of a Student (Class TU) (Subclass 572) visa. On 15 March 2017, the applicant applied for a Student (Class TU) (Subclass 500) visa to study a Diploma of Automotive Management with Intech Institute of Technology (Intech). In the almost 8-year period between his arrival in Australia and making that visa application, the applicant completed various higher education courses and held several associated student visas.
The visa application relevant to this proceeding was made with the assistance of a migration agent and accompanied by a number of supporting documents, including: an overseas student electronic confirmation of enrolment (COE) showing the applicant was enrolled in a Diploma of Automotive Management with a course start date of 10 April 2017 and completion date of 10 April 2018; various letters, certificates and transcripts from higher education institutions recording the applicant’s completion of tertiary courses; and a written statement addressing the applicant’s reasons for studying a Diploma of Automotive Management, the relevance of that course to his career goals, and his reasons for choosing to study in Australia. In his statement, the applicant asserted that he intended to gain relevant skills and expertise, in turn enabling him to open an automotive business upon return to India.
A delegate of the Minister refused to issue the applicant a visa on 10 August 2017, because the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student, thereby failing to satisfy cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth)[1] (Regulations), and could therefore not be granted a subclass 500 visa.
[1] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.
The applicant was notified of the refusal by letter dated 10 August 2017, transmitted by email to the applicant’s migration agent. That letter enclosed a copy of the delegate’s decision record, which recorded the delegate’s consideration, assessment and findings in relation to the applicant’s claims and evidence.
The delegate noted that to be considered a genuine applicant for entry and stay as a student — cl 500.212(a) required an applicant intend genuinely to stay in Australia temporarily. Clause 500.212(a) sets out matters relevant to an assessment of whether an applicant is a genuine temporary entrant, known as the genuine temporary entrant criterion (GTE criterion). Assessing whether the applicant satisfied the GTE criterion, the decision record records that the delegate had regard to the factors in cl 500.212(a) together with the matters the delegate was directed to consider by Ministerial Direction No. 69 (Direction No 69) made in accordance with s 499 of the Migration Act 1958 (Cth) [2] (Act).
[2] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
The delegate did not accept that the applicant was a genuine temporary entrant and considered that the applicant was improperly using the student visa program to extend his stay in Australia. Consequently, the delegate refused the visa application.
TRIBUNAL PROCEEDING
The applicant applied to the Tribunal for a review of the delegate’s decision. The Tribunal acknowledged receipt of the application by letter on 23 August 2020, transmitted to the applicant by email, which letter noted that the validity of the review application had not yet been assessed and informed the applicant that if he intended to provide any material or written arguments for the Tribunal to consider, he ought do so as soon as possible. That letter also informed the applicant that the Tribunal had requested the Department provide it with all documents and files which the Department considered relevant to the application for review.
The applicant wrote to the Tribunal by email on 15 May 2018, attaching an updated COE recording the applicant’s enrolment in a Graduate Diploma of Management (Learning) with Intech, which COE indicated the Graduate Diploma course commenced on 7 May 2018 and ended on 7 May 2019. In his email, the applicant stated: “[he was] attaching [his] current COE and would like to update [his] COE, Please update in [the Tribunal’s] system.”
On 14 March 2019, the Tribunal wrote to the applicant requesting the applicant provide further information in relation to his application for review. The letter informed the applicant that to be granted a Student (Class TU) visa, it was a requirement for the applicant to be both:
(a)enrolled in a registered course of study; and
(b)a genuine applicant for entry and stay as a student.
The letter also requested the applicant complete and return a ‘Request for Student Visa Information’ form (visa information form) online for the applicant to provide “information about the course(s) of study [he was] undertaking and [his] entry and stay in Australia as a student.” The Tribunal specified that the written information requested in the form should be received by 28 March 2019. The letter also enclosed a copy of Direction No 69 for the applicant’s reference in relation to the GTE criterion. Following receipt of the letter, the applicant requested an additional five business days in which to complete and return the visa information form, which request was granted by the Tribunal on 27 March 2019. The applicant duly completed and returned the visa information form to the Tribunal, providing therein a range of information, and attaching documents which included relevantly:
(a)a COE; and
(b)a letter from Intech dated 20 March 2019 indicating that the applicant was (then) “currently studying the Graduate Diploma of Management (Learning)”.
In the visa information form, the applicant indicated that he was ‘currently enrolled’ in a Graduate Diploma of Management (Learning) with Intech, and that the Graduate Diploma course would conclude in May 2019.
On 24 April 2019, the Tribunal invited the applicant to attend a hearing scheduled on 16 May 2019 to give evidence and present arguments in relation to his application for review. The letter enclosed an ‘MR18: Information about hearings – MR Division’ factsheet and an ‘MR19: Response to hearing invitation – MR Division’ form for the applicant to complete and return. By that letter, the Tribunal requested the applicant provide three further items of information relevant to determining the review, being:
(1)a copy of his current COE or other document/s demonstrating the applicant was (then) currently enrolled in a registered course of study as defined by cl 500.212 of Sch 2 to the Regulations;
(2)documentary evidence in relation to the applicant’s past studies in Australia; and
(3)a written statement addressing the applicant’s satisfaction of the genuine temporary entrant criteria, by reference to the relevant matters set out in Direction No. 69.
On 3 May 2019, the applicant returned a completed ‘Response to hearing invitation – MR Division’ form, indicating that he would attend the hearing. By email on 14 May 2019, the applicant provided the Tribunal with documents responsive to its further request for evidence. The documents provided by the applicant included:
·written submissions addressing the GTE criterion;
·evidence of the applicant’s employment and work performance; and
·higher education course transcripts.
TRIBUNAL’S DECISION AND REASONS
The applicant attended the scheduled hearing, together with a witness, and was assisted by a Punjabi interpreter. During the hearing, the applicant provided the Tribunal with a copy of a COE.
At the hearing, the Tribunal made its decision to affirm the decision under review, and provided oral reasons for that decision to the applicant at the conclusion of the hearing. By letter dated 20 May 2019, the applicant was provided with an ‘outcome of review’ document confirming that the decision under review had been affirmed. The letter informed the applicant that he could request a written statement of reasons pursuant to the Act, and that such request for written reasons must be made within 14 days of the date of the Tribunal’s decision. The applicant so requested, and on 5 June 2019 the Tribunal provided the applicant with a written Statement of Decision and Reasons (Decision) setting out the Tribunal’s consideration of the applicant’s claims and evidence, and the Tribunal’s findings in relation thereto.
The Decision commences with an overview of the application under review at [1]–[4], and summarises at [4]–[5] the statutory conditions precedent for grant of a Student (Subclass 500) visa. The Tribunal noted that an applicant must satisfy cl 500.211 to be eligible for a subclass 500 visa, and recorded that cl 500.211 required the applicant to be currently enrolled in a registered course of study at the time of the Tribunal’s decision. At [6] the Tribunal recounted that, by its letter inviting the applicant to the hearing, it had requested the applicant provide the Tribunal with a current COE. The Tribunal noted that the invitation letter “stated that a certificate of enrolment is required for the grant of a student visa”: Decision at [6].
The Tribunal noted at [7] of the Decision that the COE provided by the applicant related to a course commencing on 7 May 2018, and ending on 7 May 2019. The Tribunal considered that, because the COE showed the applicant was enrolled in a course with a listed end-date of 7 May 2019, it could not be satisfied that the applicant was enrolled in a course of study at the time of the Tribunal hearing. The Tribunal made the express finding that the COE provided by the applicant was not current: Decision at [7].
When queried by the Tribunal whether he could produce a COE which was then current, the applicant told the Tribunal the COE he had provided was the only one he could obtain, and instead pointed to a training progress report purportedly demonstrating the applicant was part-way through completing the relevant course. The Tribunal noted receipt of the training progress report provided by the applicant, but observed that the progress report did not evince that the applicant’s enrolment in the course was current at the time of the Tribunal hearing: Decision at [7]–[8]. The Decision records that the applicant confirmed he was unable to obtain any further document or COE in relation to his (then) present course of study, but he did not provide the Tribunal with any further explanation why he did not seek a current COE: [8]–[10].
Accordingly, given the lack of evidence demonstrating that the applicant was, at the relevant time, currently enrolled in a course of study – the Tribunal was not satisfied the applicant satisfied the criteria at cl 500.212 of the Regulations, and affirmed the delegate’s decision on that basis.
CONSIDERATION
The applicant’s judicial review application filed on 11 June 2019 contains seven grounds by which he contends that the Tribunal erred, and which are reproduced below:
1.My visa application was refused by the Department of Home Affairs, formerly Department of Immigration and Border Protection on 10th August 2017 because it was determined that I was not meeting clause 500.212 of Ministerial Direction 69 and I was deemed not meeting genuine Temporary Entrant requirements. I applied for review of this decision at Administrative Appeals Tribunal (AAT) where I was scheduled for a hearing on 16th of May 2019 and the decision was affirmed, without me giving me any explanations.
2.Since I arrived in Australia in April 2009 for studies, I had committed and completed various courses of studies and have demonstrated genuineness in studying any courses I was enrolled in to. However when I decided to complete my further studies at InTech Institute of Technology, I was refused my visa. I had given explanations for undertaking the studies at the level of Graduate Diploma. Since I have had made some bad decisions in my life by undergoing hospitality studies and later on I decided to do Automotive studies. I really needed to study this course in order to get entrepreneur skills. I think both Department and AAT has made significant error in establishing the facts that I am a genuine student. I am indeed a slow learner however I have no intent to live in Australia on permanent basis. I made bad decisions in my life caused so much time in setting up my career directions.
3.Furthermore AAT has made significant error in assessing my review application since my current course was almost finished. AAT member didn’t give me any reasons or did not apply the law correctly as specified under Ministerial Directions 69 and clause 500.212. AAT failed to apply the same law as specified prior to the beginning of the hearing on 16th May 2019. Even I was given an oral decision on the same day and notified on 20th May 2019. I requested for clear explanations, then I was given written statement on 29th May 2019. I believe that AAT has made error in applying the law and justice.
4.Department of Home Affairs refused the visa application on the basis of GTE criteria and took different assessment but AAT refused on the basis that I had recently finished my course of studies and have no active enrolment in place. I was not even explained that I have had to take further enrolment for the purpose of GTE assessment. After going in depth under Ministerial Direction 69, I found that all those factors were practically possible to be assessed but AAT didn’t consider using that assessment tool. I believe it to be very unfair when applying law incorrectly.
5.I came with non-English background and took many years to progress in my studies. I changed my career pathway significantly from hospitality to automotive, and wasted a lot of years of my life time. I took so many courses to set my career directions. It is never too late and never be wrong to do any course. People get skills and always be helpful in any stage of his life. DOHA when assessing my initial visa application didn’t realise any of these facts. I found it very unreasonable when both DOHA and AAT has made significant error in finalising my visa and review application.
6.Administrative Appeals Tribunal also failed to apply procedural fairness by incorrectly assessing review application the clause 500.212, and instead my review application was refused under 500.211 instead.
7.I believe it that both DOHA and AAT erred in the application of law at the end.
Clause 500.2 of Sch 2 to the Regulations sets out the primary criteria which must be satisfied for the grant of the visa for which the applicant had applied. Clause 500.211 of the Regulations relevantly provided:
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
…
At the commencement of the hearing, I explained to the applicant that the Court cannot review the merits of the Tribunal’s decision or the applicant’s visa application. I explained that the Court’s task in undertaking a judicial review of the Tribunal’s decision is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58, 184 CLR 163 at 175. Therefore, absent identification of jurisdictional error, the Court cannot grant relief in respect of the Tribunal decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, 211 CLR 476 at [76].
I explained that jurisdictional error involved a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law ... no decision at all’ and is in that sense ‘void’”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610 at [2]. And that jurisdictional error can take many different forms and that the categories are not closed. I gave the first applicant some examples of jurisdictional error as including material errors by a decision-maker:
·misunderstanding the applicable law;
·asking the wrong question;
·exceeding the bounds of reasonableness;
·identifying a wrong issue;
·ignoring relevant material;
·relying on irrelevant material;
·failing to consider a “claim” or a relevant “integer” of a claim;
·in some cases, making an erroneous finding or reaching a mistaken conclusion;
·failing to observe some applicable requirement of procedural fairness; and
·showing actual or there is apprehended bias.
Turning to the grounds of review set out in the application.
Ground 1
By ground 1, the applicant alleges the Tribunal failed to explain the reasons for its decision to affirm the delegate’s decision.
The Decision together with the Tribunal’s ‘Migration Hearing Record’ show that the Tribunal gave the reasons for its decision orally at the conclusion of the hearing. After the hearing concluded, the Tribunal provided the applicant a record of its oral decision by letter, and invited the applicant to request a written statement of decision and reasons. The applicant made such request, and the Tribunal provided the applicant its reasons in written form, as it was required to do, on 5 June 2019. The Decision shows that the Tribunal explained its reasons for the oral decision at the hearing, including the basis on which the Tribunal determined the application, the fact the dispositive issue in the review had changed from that which was considered by the delegate – whether the applicant satisfied the GTE criterion – to whether the applicant was currently enrolled in a course of study, and the Tribunal’s assessment of the applicant’s evidence relevant to the dispositive issue. The applicant’s complaint under this ground is not substantiated by reference to the material before the Court, nor did the applicant further expound this ground at the hearing before me.
This ground discloses no jurisdictional error and fails.
Ground 2
By this ground, the applicant contends that he satisfies the GTE criterion in cl 500.212 of Sch 2 to the Regulations, and alleges the Tribunal erred in finding that he did not. The applicant’s complaint that the delegate so erred cannot be entertained in this application. The Tribunal made no finding about whether the applicant met the GTE criterion. In the circumstances it did not need to do so. As noted above, the dispositive issue in the review before the Tribunal was whether the applicant was enrolled in a course of study and thereby satisfied cl 500.211, not whether the applicant was a genuine temporary entrant in satisfaction of cl 500.212. It is also clear from the Decision that the Tribunal put the applicant on notice of the matters which the Tribunal considered dispositive in the review at the Tribunal hearing. This ground fails to engage with the reasons given by the Tribunal for affirming the delegate’s decision and fails to recognise that the GTE criterion did not form any part of the Tribunal’s assessment of the applicant’s review.
This ground discloses no jurisdictional error and fails.
Ground 3
By ground 3 the applicant contends the AAT erred by misapplying Direction No 69 and that it misconstrued cl 500.212. The applicant also restates his complaint about the absence of reasons for decision, and with which I have earlier dealt. The applicant does not articulate how the Tribunal may be said to have erred. In any event, that contention is misconceived. The Tribunal did not, neither was it required, to consider the applicant’s review by an assessment of cl 500.212 and Direction No 69. As already explained, cl 500.212 sets out a requirement that to be granted a student visa, an applicant must be a ‘genuine temporary entrant’, together with matters which must be taken into account when considering whether an applicant satisfies the criterion. Direction No 69 sets out a range of matters which must be considered, and which must inform an assessment whether an applicant is a genuine temporary entrant for the purposes of cl 500.212. Neither cl 500.212 nor Direction No 69 were relevant to an assessment whether the applicant satisfied cl 500.211, which was the dispositive issue before the Tribunal.
To the extent that this ground complains about the Tribunal disposing of the review application under cl 500.211, rather than assessing the application under the ambit of cl 500.212 and the applicant’s claims relevant to the GTE criterion — the course taken by the Minister’s delegate — that complaint does not disclose jurisdictional error. Whereas the Minister’s delegate was concerned with an assessment whether the applicant was a genuine temporary entrant, the Tribunal instead identified, correctly, that at the time of the hearing before it the issue whether the applicant satisfied cl 500.211 was live. If the applicant did not satisfy cl 500.211 — the Tribunal was entitled to decide the review on that basis, and was not required to consider whether the applicant satisfied cl 500.212.
Ground 3 does not disclose jurisdictional error and fails.
Ground 4
By this ground the applicant alleges that the Tribunal failed to explain to the applicant that, for him to satisfy the Tribunal that he was a genuine temporary entrant, he was required to provide evidence that he was then enrolled in a course of study.
To the extent that this ground conflates the separate requirements under cls 500.211 and 500.212 and suggests that the requirement to be currently enrolled is subsumed under the GTE criterion, the applicant misunderstands the statutory criteria, the way the criteria fall to be considered by a decision-maker, as well as the Tribunal’s decision and reasons therefor.
To the extent that by this ground the applicant also complains of a failure by the Tribunal to inform the applicant that the issue of his enrolment had become the dispositive issue, that contention is not accepted. At the Tribunal hearing, the Tribunal put the applicant on notice that the issue of his enrolment was the dispositive issue in the review and that without evidence of his current enrolment, he could not be granted a visa. The Decision records that the applicant was asked whether he could obtain or produce a COE demonstrating his enrolment was current at the time of the hearing. The applicant was unable to do so. At the very least, it is evident that the applicant was told in clear terms that it was a requirement for the grant of a visa that he be enrolled in a course, and he was invited to provide current evidence of enrolment to the Tribunal.
Further, the Tribunal was not, prior to the hearing, required to put the applicant on notice that the dispositive issue in the review had changed. Rather, the Tribunal putting the applicant on notice at the hearing was all that was required: AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156, 189 FCR 494 at [39]. The applicant’s attention was explicitly drawn to the dispositive issue during the hearing, and he was invited to make submissions or produce evidence addressing the Tribunal’s concerns in relation to that issue. It is also clear from a review of the material in the Court Book that the applicant was informed by the Tribunal on multiple occasions prior to the Tribunal hearing that it was a mandatory requirement for the grant of a subclass 500 visa that he be currently enrolled in a course of study, and that he should provide evidence of current enrolment by way of a current COE, or other evidence of his enrolment in a course of study, to the Tribunal.
To the extent that the remainder of this ground argues that the Tribunal ought to have considered the review application under cl 500.212, as earlier explained, that argument is misconceived.
This ground does not disclose any jurisdictional error and fails.
Ground 5
Under this ground the applicant alleges the Tribunal acted unreasonably in assessing his review application, but he does not explain how the Tribunal has so acted. The remainder of the ground appears to be directed to allegations that the applicant satisfies the GTE criterion. A decision will be legally unreasonable if it is lacking a rational foundation, or an evident or intelligible justification, or is unjust, arbitrary, capricious or lacks common sense having regard to the terms, scope and purpose of the statutory power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, 237 FCR 1 at [11]. The Tribunal gave a clear and intelligible justification for its decision — the lack of evidence of the applicant’s current enrolment and inability to obtain or produce such evidence.
This ground discloses no jurisdictional error and fails.
Ground 6
The applicant contends that the Tribunal’s disposition of the review application under cl 500.211 instead of cl 500.212 deprived him of procedural fairness. The Tribunal’s obligations to afford the applicant procedural fairness as concerns the hearing rule, are codified under Div 5, Pt 5 of the Act, and the applicant does not allege any failure by the Tribunal to comply with any of those statutory obligations. In substance, this ground is a complaint that the Tribunal affirmed the delegate’s decision by reference to cl 500.211 and did not give any weight or consideration to the applicant’s claims or evidence in relation to cl 500.212 and the GTE criterion. That complaint is misguided. The Tribunal, in exercising its function, could not have ignored the requirement in cl 500.211 that an applicant be currently enrolled in a course of study. In circumstances where there was no evidence the applicant was currently enrolled in a course as required by the Regulations, the Tribunal was bound to consider whether the applicant was currently enrolled in a course of study, and justified in deciding the review, as it did, on the basis that there was no evidence the applicant was so enrolled. In those circumstances, analysis of the applicant’s claims or evidence relevant to the GTE criterion would have no utility.
As earlier discussed, the applicant was put on notice that he was required to provide a current COE or evidence of current enrolment to the Tribunal and that such enrolment was a requirement for the grant of a visa. At the Tribunal hearing, the member put that issue to the applicant and asked whether he could produce current evidence of his enrolment. The applicant was afforded the opportunity to present new oral evidence in relation to the dispositive issue, and to produce evidence to satisfy the Tribunal in relation thereto. The applicant was unable to do so, nor is there any evidence that the applicant asked for more time to do so. The first respondent contends, correctly in my view, that the Tribunal has complied with its requirement to afford the applicant an opportunity to present evidence and arguments on the salient issue in the review, as required by s 360 of the Act. It also gave the applicant notice in advance that he needed to produce evidence of his current enrolment. It is evident that during the hearing, the Tribunal considered there were specific aspects of the applicant’s account that may be important to the decision — whether he was enrolled, and whether he could produce evidence of that enrolment — and it asked the applicant to expand and provide evidence in relation to that matter.
The applicant applied for review with the Tribunal on 23 August 2017. On 15 May 2018, the applicant provided the Tribunal with the relevant COE, which indicated that the course in which he was enrolled would conclude on 7 May 2019. The Tribunal hearing was scheduled for and held on 16 May 2019, with the decision being made on that same day. On 14 March 2019, the applicant was again invited by letter to provide the Tribunal with information, which letter stated that it was a requirement for the grant of a visa that he be enrolled in a registered course of study; a requirement the applicant then satisfied. On 24 April 2019, the Tribunal told the applicant that he should provide a current COE “as is required for the grant of a student visa”, and invited him to attend a hearing scheduled on 16 May 2019. The applicant responded to the invitation on 29 April 2019, and provided the Tribunal with further documents on 14 May 2019. Noting the above timeline, there was a period of approximately 20 months between the applicant applying for review of the delegate’s decision and the Tribunal hearing. During that period, the applicant held a COE demonstrating his enrolment was current for most of that period, including at the time the applicant was invited to attend the hearing and to provide the Tribunal with evidence. But on the day of the Tribunal’s hearing and decision, the applicant was not enrolled in a course of study. The delay between the delegate’s decision and the Tribunal’s hearing and decision had an unfortunate consequence for the applicant — he ceased to be enrolled in a course of study.
Notwithstanding, although the applicant had previously provided a COE to the Tribunal which was current at the time provided and for some period thereafter, including when the applicant was invited to attend the hearing, the applicant was on notice that current enrolment was a condition for the grant of his visa. That is, the applicant was told in advance of the hearing that he could not be granted a visa without evidence of his current enrolment in a course, and so much was also made clear to him at the hearing. The applicant was afforded the opportunity to address this issue at the hearing, and he was unable to do so. And as already noted he did not appear to request additional time to provide evidence of a current enrolment in a course of study. The applicant accepted during the hearing before me that at the time of the Tribunal hearing, he was not enrolled in any course of study and accepted that he did not request the Tribunal to allow him additional time to produce evidence of a current enrolment.
The applicant has neither made nor particularised any allegation that the Tribunal otherwise failed to comply with its statutory obligations of procedural fairness. On a review of the material in the Court Book, the Tribunal appears to have complied with its statutory obligations under Div 5, Pt 5 of the Act.
The applicant’s complaints in relation to this ground are not made out, and the ground must fail.
Ground 7
By ground 7 the applicant makes the unparticularised allegation that the Tribunal and the Minister’s delegate erred in the application of law. As already noted, complaints about the delegate’s decision cannot be entertained in this application. The ground does not otherwise disclose jurisdictional error and fails.
Jurisdictional error is not disclosed by the grounds of review advanced by the applicant. As the applicant was unrepresented before the Court, I have also reviewed the Tribunal’s decision and the material in the Court Book filed by the first respondent, with an eye to identifying jurisdictional error beyond merely dealing with the grounds of review the applicant advanced. I have not identified any arguable case of jurisdictional error.
The applicant also filed with the Court an outline of written submissions in support of his application for judicial review which recount the applicant’s circumstances relevant to his application for a visa, and makes various submissions in relation to the GTE criterion. The applicant’s submissions, directed as they are to an assessment under the GTE criterion, fail to engage with the reasons the Tribunal disposed of the applicant’s review application. The written submissions do not raise any arguable case of jurisdictional error.
Consequently, the judicial review application will be dismissed.
Costs
The first respondent sought an award of costs in the amount of $5,400.00 in the event the application failed. The amount is less than that currently fixed by item 3, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a migration matter determined at final hearing. There was no cogent reason advanced why such an order ought not be made and I consider the amount sought to be reasonable and reflective of the costs incurred by the first respondent. The applicant is to pay the first respondent’s costs fixed in the sum of $5,400.00.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 2 July 2025
0
4
3