Bui v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm the refusal of a Student (subclass 500) visa to the applicant, a citizen of Vietnam. The delegate of the Minister had initially refused the visa on the basis that the applicant did not meet the Genuine Temporary Entrant criterion. The applicant sought review of this decision by the Tribunal.

The primary legal issues before the Federal Circuit Court of Australia were whether the Tribunal had denied the applicant procedural fairness by failing to seek further information or documents from her, and whether the Tribunal's finding that the applicant was not enrolled in a registered course of study at the time of its decision was made without evidence. The applicant also sought to raise new grounds of review concerning the Tribunal's refusal to grant an extension of time to respond to a section 359 invitation, citing COVID-19 concerns, and the alleged unreasonableness of this refusal.

Street J considered that the applicant's request for an extension of time was made after the deadline for providing information had passed. Consequently, section 359C(1) of the Migration Act 1958 (Cth) permitted the Tribunal to make a decision without further action to obtain information. The Court noted that the applicant had not provided evidence of current enrolment, and the Tribunal's finding on this point was based on the information before it, including the fact that the applicant's proposed course had elapsed and no further evidence of enrolment was provided. Furthermore, the Court found that even if an error had occurred, it was not material, as the applicant was not enrolled in a registered course of study at the time of the Tribunal's decision, meaning she could not have satisfied the primary criteria for the visa regardless of any procedural error. The application was dismissed.