Butt v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 980
•3 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Butt v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 980
File number: SYG 177 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 3 October 2024 Catchwords: MIGRATION LAW – JUDICIAL REVIEW – Administrative Appeals Tribunal – subclass 573 visa –
failure to comply with Condition 8202 – applicant’s adjournment application dismissed – Tribunal did not engage with procedure in s 359AA – The PRISMS record fell under exception in s359A(4)(b) and Tribunal not obliged to put information to applicant under ss359A, 359AALegislation: Migration Act 1958 (Cth) ss 48, 116, 189, 198, 357A, 359A, 359AA, 360, 360A, 424AA
Migration Regulations1994 (Cth) Sch 8
Cases cited: Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Ethnic Affairs v Wu Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507
Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476
SZLXE v Minister for Immigration & Citizenship [2008] FCA 1312
SZNJQ v Minister for Immigration & Citizenship [2010] FCA 138
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 23 September 2024 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the Respondents: Mr Dennis, Mills Oakley Solicitor for the Respondents: Submitting appearance, save as to costs ORDERS
SYG 177 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD USAMA BUTT
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
3 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application filed on 24 January 2020 is 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 SKAROS:
By application filed on 24 January 2020, the applicant is seeking judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 23 December 2019. The Tribunal affirmed a decision of a delegate of the first respondent (the delegate) dated 30 March 2017 to cancel the applicant’s student (subclass 573) visa (the visa).
BACKGROUND
The applicant is a 30-year-old citizen of Pakistan. On 27 May 2014, the applicant was granted the visa on the basis of his enrolment in the Bachelor of Information and Communication Technology course.
On 16 March 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC). The applicant did not respond to the NOICC.
On 30 March 2017, the delegate cancelled the applicant’s visa due to his failure to comply with Condition 8202, which required him to be enrolled in a registered course of study.
On 26 April 2019, the Tribunal invited the applicant to a rescheduled hearing on 2 May 2019, which he attended.
On 23 December 2019, the Tribunal affirmed the delegate’s decision to cancel the visa. The applicant was notified of the decision by letter dated 24 December 2019.
THE TRIBUNAL’S DECISION
The first issue before the Tribunal was whether the applicant, as the holder of the visa, had breached Condition 8202 of Schedule 8 to the Migration Regulations1994 (Cth) (the Regulations).
According to records on the Provider Registration International Student Management System (PRISMS), the applicant was not enrolled in a registered course of study. The applicant did not dispute these entries. Accordingly, the Tribunal found that a ground for cancellation in s 116(1) of the Migration Act 1958 (Cth) (the Act) existed. As the ground did not require mandatory cancellation, the Tribunal proceeded to consider whether it should exercise its discretion to cancel the applicant’s visa.
The Tribunal acknowledged that there were no matters specified in the Act or Regulations which must be considered, but noted that it had regard to the Department’s Procedures Advice Manual. The Tribunal accepted that the applicant suffered from, and was impacted by, depression and loneliness during 2015. The Tribunal also accepted that the applicant had failed to complete his TAFE courses for English and, therefore, did not commence his degree. The Tribunal noted that he had not advised the University directly, or approached it at any time, concerning his difficulties or his change of plans. The Tribunal also found that the applicant had not responded to the NOICC issued by the Department within the required period.
In relation to the breach of the visa, the Tribunal noted that the applicant had relied exclusively on recommendations from educational consultants who were not qualified migration agents, and that he did not attempt to contact anyone who could have professionally assisted him and revealed an appropriate course of action. The Tribunal found that these matters were within the applicant’s control, and that he appeared not to have undertaken any concrete steps to resolve the breach of his visa.
In relation to the applicant’s purpose in travelling to and residing in Australia, the Tribunal found there was no evidence before it to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study. The Tribunal accepted that the applicant had provided a number of documents recording his efforts to re-enrol in other courses but found that none of those courses would have been compliant with the conditions of the visa. Accordingly, the Tribunal gave little weight to this consideration in the applicant’s favour.
The Tribunal found that upon cancellation of the applicant’s visa, the applicant would become an unlawful non-citizen under s 189 of the Act and be liable to be deported under s 198 of the Act. The Tribunal noted that the applicant would have limited options to apply for further visas due to s 48 of the Act, and that he would be subject to a three-year exclusion period if he applied for a visa requiring Public Interest Criterion 4013 to be met. The Tribunal found these were the intended consequences of the legislation when a visa was cancelled, and that the applicant would have a reasonable time to depart from Australia.
The Tribunal found that the circumstances of the applicant’s case did not engage any of Australia’s international obligations, and that no children would be affected by the cancellation as the applicant’s evidence and departmental records showed that the applicant did not have any children in Australia.
The Tribunal found that the applicant had not applied for protection or made any claims of being in need of protection and therefore there was no evidence before the Tribunal to suggest that his removal would lead to a breach of Australia’s non-refoulement obligations.
Ultimately, the Tribunal found that the applicant had not complied with a condition of the visa, Condition 8202 of the Regulations, and that the reasons for cancelling the visa outweighed the reasons for not cancelling the visa. Accordingly, the Tribunal concluded that the visa should be cancelled and affirmed the delegate’s decision.
APPLICATION TO THIS COURT
The application before this Court contained six grounds of review, which have been considered by the Court further below.
The applicant also filed an affidavit, affirmed on 24 January 2020, which annexed a copy of the Tribunal’s decision record. The contents of the affidavit included submissions by the applicant that he has an arguable case for relief, that there were errors in the Tribunal’s decision, that the Tribunal did not consider the facts and “assumed future benefits for his decision”.
Despite orders made by a Registrar of the Court, the applicant did not file any amended application, further evidence or written submissions.
On 11 April 2024, the Minister filed written submissions.
On 3 September 2024, the parties were notified that the matter was listed for final hearing on 23 September 2024 in person at the Parramatta Registry.
On 10 September 2024, the deponent, Thomas John Patterson, filed an affidavit on behalf of the Minister attesting to the service of the Court Book and the Minister’s submissions on the applicant, having occurred on 3 March 2020 and 11 April 2024 respectively. This Affidavit was taken as read at the hearing.
The parties appeared before the Court at the hearing on 23 September 2024. The applicant appeared in person. Mr Liam Dennis, solicitor, appeared on behalf of the Minister.
The Court Book was tendered by the Minister at the hearing and was marked as Exhibit CB.
The Affidavit filed by the applicant in support of the application included a copy of the Tribunal’s decision and notification letter. These documents were included in the Court Book, it was therefore not necessary to read them into evidence. The contents of the affidavit reflected, in part, the grounds of review in the originating application and have been considered as submissions.
Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and role and powers of the Court in judicial review proceedings.
As no amended application or written submissions had been filed by the applicant, he was invited to make oral submissions in support of the grounds of review set out in his originating application. The Minister also made oral submissions at the hearing which largely reflected those in the written submissions filed on 11 April 2024.
When invited to respond to the Minister’s submissions, the applicant requested time to obtain legal representation on the basis that he did not understand the technical issues raised about the transcript. He said he wanted to get lawyer to look at the transcript. The Court observed that he had earlier indicated that he obtained the audio record of the Tribunal hearing, alongside a transcript, and that he had sought the advice of many lawyers in Sydney and consultants but had been unsuccessful in obtaining representation. The applicant said he would like to have a lawyer with him for the technical matters to review the transcript. He said in the beginning he went to a lot of lawyers and consultants around Sydney, but now he has a friend who can help him find a lawyer.
The Court took the applicant’s request to be an oral application for an adjournment of the proceedings on the basis that he wished to obtain legal representation.
The application for an adjournment was opposed by the Minister on the basis that the application had been before the Court for over four years. The Minister submitted that the applicant had not engaged in the process before the Court and has not filed any further documents. It was further submitted that there was no utility in granting the adjournment where there was no merit in the grounds of the review.
For reasons that follow, which were explained to the applicant at the hearing, the Court decided not to adjourn the proceedings. The Court delivered ex tempore reasons and made an order dismissing the application for an adjournment.
Being mindful that the applicant was unrepresented, the Court remained alert to the possibility of error in the Tribunal’s decision. During the proceedings, the Court raised with the Minister a concern it had regarding the Tribunal’s compliance with ss 359A or 359AA of the Act. The Minister made submissions on this issue which have been considered by the Court further below.
Consideration of the adjournment application
The Court has considered the request for adjournment and the Minister’s reasons for opposing the request.
The Court accepts, as raised by the Minister, that the matter has been on foot for over four years and considers that the applicant has had ample time to obtain legal representation. The Court also notes that on 12 March 2024, Orders were made by a Registrar of this Court indicating that the matter would be listed for final hearing before a judge on a date to be advised. The applicant was provided with the opportunity to provide submissions by 28 March 2024, but did not do so. The Court was also informed by the applicant that he had sought the advice of many lawyers and consultants and to date remains unrepresented. The Court is not satisfied that if a short adjournment were to be granted that the applicant would be able to obtain representation.
The Court also notes that, on 3 September 2024, the applicant was notified by email that the matter had been listed for hearing before Judge Skaros on 23 September 2024. The applicant was, therefore, on notice that the matter was listed for final hearing. The Court considers that the applicant had ample time, since that notice, to arrange for legal representation. Further, if the Court were to grant a further hearing in this case, then the present hearing would be unable to be allocated to another applicant who may also have been waiting many years to have their matter heard.
The Court further notes that there is no right to legal representation in judicial review proceedings: Singh v Minister for Immigration, Citizenship, Multicultural Affairs [2023] FCA 571 at [19].
Having regard to these circumstances, the Court finds that it would not be appropriate to grant the adjournment sought. The applicant’s adjournment request is therefore dismissed.
Consideration of the judicial review application
The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2].
Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Grounds of review
The application made on 24 January 2020, which commenced proceedings in this Court, contained the following grounds, without alteration:
1.Arguable application for relief
2.Error of law and failed to exercise the proper procedure in relation to make decision
3.Lack and Daniel of procedural fairness
4.AAT was preoccupied and preoccupation is evident in its decision
5.Adversely affected by preoccupied decision
6.Did not consider facts which were beyond my control
Ground one
This ground merely states that the applicant has an arguable case for relief. The Court accepts, as submitted by the Minister, that this is not a proper ground of judicial review and is incapable of establishing any error on part of the Tribunal.
Grounds two and three
These grounds allege that the Tribunal failed to comply with its procedural fairness obligations and, as such, the applicant was denied procedural fairness.
When invited at the hearing to provide particulars in relation to these grounds, the applicant submitted that the Tribunal had not considered his evidence regarding various circumstances, including that he had relied on the advice of education consultants, was waiting for contact from the education provider and was unable to obtain the release letter so he could get another enrolment. The applicant’s oral submissions appear to allege that the Tribunal had failed to consider relevant evidence, being his explanations as to why he was not enrolled in a registered course of study. A review of the Tribunal’s decision record clearly indicates that the Tribunal considered the applicant’s evidence on this issue and that it had regard to that evidence in its reasons. The submissions appear to overlap with matters raised by grounds four, five and six and have been considered again further below.
The applicant has not identified which procedural obligation the Tribunal had failed to comply with and the basis on which he was denied procedural fairness.
As the applicant was unrepresented, the Court has considered for itself whether the Tribunal’s decision or processes disclose any potential failure on the part of the Tribunal to afford the applicant procedural fairness.
In respect of this matter, Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice rule: s 357A of the Act.
In compliance with ss 360 and 360A of the Act, the Tribunal invited the applicant to appear before it at a hearing to give evidence and present arguments relating to the issues in the review. The applicant sought an adjournment of the hearing, which the Tribunal acceded to. The applicant appeared before the Tribunal at the rescheduled hearing on 2 May 2019.
The evidence before the Court indicates that the Tribunal had detailed discussions with the applicant about his PRISMS record, which showed he had not been enrolled, and about matters relevant to the exercise of the discretion. A detailed account of the evidence given by the applicant was set out in the Tribunal’s decision record. There is no evidence before the Court which suggests that the applicant was not given an opportunity to provide evidence relevant to the issues arising on the review, being whether there had been non-compliance by the applicant with a condition of his visa and whether the Tribunal should exercise its discretion to cancel the applicant’s visa. There is no evidence before this Court which suggests that the hearing afforded to the applicant was not real and meaningful: Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16] per Mansfield and Selway JJ.
In respect of the obligation under s 359A of the Act, which requires the Tribunal to give the applicant clear particulars of any information that it considers would be the reason, or part of the reason, for affirming the decision under review, the Minister submitted that the applicant has not identified any information which enlivened the Tribunal’s obligations under this provision.
As to the Tribunal’s reliance on the applicant’s PRISMS record, the Minister contended that the Tribunal, in its written statement of reasons, confirmed that it had invited the applicant to comment on information that it considered would be the reason, or part of the reason, for affirming the decision under review in accordance with the procedure in s 359AA, namely the applicant’s PRISMS record which contains details about the applicant’s enrolment history. It was further submitted that, in the absence of any evidence to suggest otherwise (such as a transcript), it ought to be inferred that the Tribunal complied with its obligations under s 359AA of the Act. At the hearing, the Minister contended, in the alternative, that there was nothing in the PRISMS record that needed to be put to the applicant in circumstances where the question related to whether he was enrolled, being the very basis upon which the delegate cancelled the visa.
While the Court ultimately concluded that there was no error in the way the Tribunal dealt with the information in the PRISMS record, it was not for the reasons contended by the Minister.
Firstly, there is nothing in the Tribunal’s decision record which suggests that the PRISMS record was put to the applicant pursuant to s 359AA of the Act as contended. The Minister sought to rely on [21] of the Tribunal’s decision record in which the Tribunal stated:
At the hearing before the Tribunal, the applicant was provided with a copy of his contemporary PRISMS record dated 1 May 2019 which showed that upon coming to Australia he completed a course in Certificate III in Programming at TAFE, Granville, NSW. He also then enrolled in Certificate IV Programming at TAFE, Granville, NSW. He was unwell during the period when he was undertaking the Diploma courses and asked that they be cancelled. (An updated PRISMS record dated 18 December 2019 showed the same and no additional entries from that dated 1 May 2019).
There is no indication in that paragraph or anywhere else in the Tribunal’s decision that it had put the particulars of the information contained in the PRISMS record to the applicant pursuant to s 359AA of the Act, nor can it be reasonably inferred from the language used by the Tribunal.
The Minister submitted that there is Federal Court authority which provides that, in the absence of further evidence, if the Tribunal said it complied with its obligations, then it should be accepted that it had so complied. The Court observed that there was nothing said by the Tribunal about its compliance with s 359AA.
The Minister did not refer to any specific Federal Court authorities, however, the principle, in the context of s 424AA (the equivalent provision of s 359AA), was the subject of consideration by the Federal Court in several judgments.
In SZNJQ v Minister for Immigration & Citizenship [2010] FCA 138 at [38] (SZNJQ) per Rares J, his honour stated:
Without a transcript, it is not possible to ascertain whether or not the tribunal precisely complied with the provisions of s 424AA of the Act. That enabled it to put to the appellant orally clear particulars of any information it considered would be the reason or part of the reason for affirming the decision under review and to explain to him why that was relevant for the purposes of the review, giving him the opportunity to comment. Certainly, a reading of the tribunal’s summary of the evidence suggests that something close to that process was followed. Given that the tribunal squarely raised with the appellant the substantial difference in explanations he had given to the delegate and to it for his delayed departure I am not satisfied that there was a failure to comply with ss 424AA or 424A.
In SZLXE v Minister for Immigration & Citizenship [2008] FCA 1312 at [19] (SZLXE) per McKerracher J, his honour stated:
In the absence of a transcript of the Tribunal hearing there is no reason to doubt that the Tribunal complied with s 424AA as it stated.
In SZNJQ, the Federal Court observed that the Tribunal’s summary of the evidence suggested that it had engaged with the process in s 424AA. Similarly, in SZLXE, the Federal Court noted that the Tribunal had stated that it complied with s 424AA.
In this matter, the Tribunal did not state that it complied with s 359AA, nor can it be discerned from the decision record that it had followed anything close to that process. The Court does not accept, as contended by the Minister, that the Tribunal engaged with the procedure in s 359AA. Nor does it consider, for reasons explained below, that it was required to do so.
As to the Minister’s contention that the Tribunal was not required to put to the applicant the information in the PRISMS record because the issue of non-enrolment was the very basis upon which the visa was cancelled, the Court makes the following remarks below.
The Tribunal’s decision record indicates that it relied on information in the PRISMS record for the purposes of determining whether the applicant had complied with Condition 8202 of the visa and when considering whether to exercise its discretion to cancel the visa.
At [6] of the decision record, the Tribunal indicated that it gave the applicant a copy of his PRISMS record, and it set out (in detail) the information in those records, which indicated that the applicant had not been enrolled in a registered course of study since 2015. Based on that information, the Tribunal found that the applicant had breached Condition 8202(2) of the visa. The Tribunal again relied on the information in the PRISMS record when considering the discretion, most notably, at [33], when it found that the purpose of the applicant’s stay in Australia had ended when his enrolment in the higher education sector course was cancelled, a consideration it weighed in favour of cancelling the visa.
The Court considers that the information in the applicant’s PRISMS record, which was relied upon by the Tribunal in its reasons, was information which formed part of the reason for affirming the decision under review. Contrary to the Minister’s contention that the information did not constitute information for the purposes of s 359A because it was the very basis upon which the delegate cancelled the visa, the Court considers that the information, as relied upon by the Tribunal to affirm the decision, was of the kind to which s 359A is directed. Accordingly, unless the information fell within one of the statutory exceptions provided for in s 359A(4), the Tribunal was obliged to invite the applicant to comment on or respond to the information in compliance with s 359A or 359AA.
In addressing the issue of whether the information in the applicant’s PRISMS record fell within one of the exceptions, the Minister submitted that the record of the courses in which the applicant was enrolled, including those he had completed and those for which enrolments had been cancelled, were set out in the delegate’s decision record. Noting that the Tribunal did not indicate whether the applicant had provided a copy of the delegate’s decision record to it, the Minister relied on information in the application for review form (CB 31-32), which indicated that two documents were uploaded with the application for review to the Tribunal: the first being the notification of decision; and the second being the decision record. It was submitted that it could be inferred from this information that the delegate’s decision record had been provided to the Tribunal by the applicant in support of the application for review.
The PRISMS record shown to the applicant at the hearing, and relied upon by the Tribunal in its reasons, was dated 1 May 2019. The Tribunal also indicated that it had before it a PRISMS record dated 18 December 2019, which showed the same (and no additional) entries from that dated 1 May 2019. While both those records post-date the Department’s decision, which was made on 30 March 2017, the Court is satisfied that the particulars of the information pertaining to the applicant’s enrolment, which formed part of the Tribunal’s reasons for affirming the decision under review, was the same as that which was set out in the delegate’s decision record. The Court is also satisfied on the evidence before it that the delegate’s decision record was provided by the applicant for the purpose of the application for review. It follows that the information in the applicant’s PRISM record fell within the exception provided for in s 359A(4)(b) and the Tribunal was not obliged to put the information to the applicant pursuant to ss 359A or 359AA.
Grounds two and three do not disclose that the Tribunal failed to comply with its procedural fairness obligations or that the applicant was denied procedural fairness. It follows that no jurisdictional error has been established by these grounds.
Grounds four and five
Grounds four and five allege that the Tribunal was ‘preoccupied’ and that its preoccupation, which the applicant claims was evident in the decision, had adversely affected the applicant. In oral submissions, the applicant said there was a failure to consider the role of the TAFE Co-ordinator and the education consultant, on whom he relied for advice, and that he was blamed for ‘everything’ (which the Court took to mean his non-enrolment) rather than being given a chance to continue with his studies.
To the extent that these grounds allege that the Tribunal had failed to consider the applicant’s claims and evidence about why he ceased to be enrolled in a registered course of study, the Court considers that this has not been made out. The Tribunal’s decision discloses that it considered the evidence given by the applicant in support of his claims, including evidence that he relied on the advice of education providers. The Court accepts the Minister’s submission that the Tribunal’s decision reflects a clear engagement with the applicant’s evidence, that there is nothing to suggest that the Tribunal considered any irrelevant considerations, and that the Tribunal’s findings were open to it on the available evidence.
To the extent that these grounds allege bias, actual or apprehended, or prejudgement on the part of the Tribunal, this has not been made out. There is no evidence before the Court which suggests that the Tribunal may not have approached the matter with an open mind or had prejudged the matter. While the Tribunal made adverse findings in respect of the applicant and the purpose of his continued stay in Australia (CB 152), these findings were open on the evidence and there is nothing in the decision record which suggests that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69], [71]-[72] and [127].
Grounds four and five do not disclose jurisdictional error on the part of the Tribunal.
Ground six
Having regard to the applicant’s oral submissions, ground six appears to allege that the Tribunal failed to consider evidence relevant to why he was not enrolled, which the applicant claimed were due to circumstances beyond his control.
The applicant submitted that the Tribunal did not consider that he had been misguided by the TAFE co-ordinator and the education consultant to whom he was referred. He said he was away from home, relied on others for advice, was blamed for his situation and his visa was cancelled. The applicant said that he was told that the university would contact him and that he was waiting for contact from the consultant. He said he tried to enrol in another college, but he did not have a release letter and that this caused an issue for him as he was unable to obtain another Confirmation of Enrolment (CoE). The applicant said he informed the Tribunal of these circumstances, but said that, instead, he was blamed for the situation. He said he tried his best to get enrolment, he was young and had to rely on the guidance from education consultants.
A reading of the Tribunal’s decision record indicates that the Tribunal had regard to the evidence provided by the applicant as why he was not enrolled in a registered course of study. At [25] of its decision, the Tribunal noted that ‘the applicant had relied exclusively on recommendations from educational consultants who are not qualified migration agents’. At [32], the Tribunal also considered the documents provided by the applicant regarding his efforts to obtain enrolment from an approved education provider. Having reviewed the Tribunal’s decision, the Court is satisfied that the Tribunal expressly considered the applicant’s oral evidence and the supporting documents he provided.
The applicant’s complaint appears to be more directed towards the findings and conclusions of the Tribunal, rather than a failure on the part of the Tribunal to consider his claims and evidence. While the findings and conclusions made by the Tribunal were not entirely favourable to the applicant, there was nothing illogical or irrational in the way it considered the evidence, the factual findings it made or the conclusions it arrived at. The conclusions of the Tribunal were open on the evidence before it and for the reasons it gave.
Ground six does not establish jurisdictional error on the part of the Tribunal.
CONCLUSION
As none of the grounds establish jurisdictional error, the application for judicial review must be dismissed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 3 October 2024
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