Dhillon v Minister for Immigration, Citizenship, and Multicultural Affairs
[2024] FedCFamC2G 524
•11 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhillon v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] FedCFamC2G 524
File number(s): ADG 143 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 11 June 2024 Catchwords: MIGRATION – Judicial Review Application – decision of Administrative Appeals Tribunal – citizen of India – refusal of student visa – where no enrolment in a course – where no confirmation of enrolment provided – where different dispositive issue at time of Administrative Appeals Tribunal hearing from time of delegate’s decision – where oral reasons for decision given on day of Administrative Appeals Tribunal hearing – where applicant requested written reasons for decision – where written reasons for decision not provided within prescribed time limitation – whether material jurisdictional error Legislation: Migration Act 1958 (Cth) ss 359A, 360, 360A, 368D, 474, 476
Migration Amendment (Protection and Other Measures) Act 2015 (Cth) s 17
Migration Regulations 1994 (Cth) reg 4.27B, Sch 2, cll 500.211, 500.212
Cases cited: Dhawan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1335
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144
FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383
Gadapa vMinister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 606
Jalla v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 541
Kapali vMinister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 643
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 117
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Moussa v Minister for Home Affairs & Anor [2019] FCCA 1187
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
Patel & Anor v Minister for Immigration & Anor [2020] FCCA 2832
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350
Wangchuk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 220
Yammani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 87
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submission/s: 29 May 2024 Date of hearing: 29 May 2024 Place: Adelaide Applicant: In person (by Microsoft Teams) Counsel for the First Respondent: Ms G Ellis (by Microsoft Teams) Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 143 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANDEEP SINGH DHILLON
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
11 JUNE 2024
THE COURT ORDERS THAT:
1.The originating application filed on 7 April 2020 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 Lucev
INTRODUCTION
This application filed in the Adelaide Registry of this Court (then the Federal Circuit Court) on 7 April 2020 is an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application relates to the Administrative Appeals Tribunal (“Tribunal”) making oral and written decisions (“Oral Tribunal Decision” and “Written Tribunal Decision” respectively) on 10 March 2020 and 5 May 2020 respectively which affirmed a 3 November 2017 decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant the applicant, Mr Mandeep Singh Dhillon (“Mr Dhillon”) a Student (Temporary) (Class TU) Subclass 500 visa (“Student Visa”).
BACKGROUND
The background to the matter is as follows:
(a)Mr Dhillon is a 39 year-old citizen of India, who first arrived in Australia almost 15 years ago on 27 June 2009 as the holder of a student visa which expired in October 2011: Court Book (“CB”) 64 and 66;
(b)Mr Dhillon’s stay in Australia was extended by his being granted three further student visas in September 2011, March 2013 and June 2015 respectively: CB 66;
(c)between the date of Mr Dhillon’s arrival in Australia on 27 June 2009 and the expiry of Mr Dhillon’s fourth student visa in September 2017, Mr Dhillon:
(i)undertook a Certificate III in Horticulture, a Certificate IV in Horticulture, a Diploma of Horticulture, a Diploma of Management, and a Diploma of Business CB 9, 24-27, 29-34 and 67;
(ii)attempted, but did not complete, two other vocational courses: CB 67; and
(iii)failed to commence other courses that had formed the basis of the grants of the earlier student visas: CB 43;
(d)on 2 September 2017 Mr Dhillon applied for a fifth student visa: CB 1 (“Fifth Student Visa Application”), and it is that application that is the subject of the Judicial Review Application;
(e)in support of the Fifth Student Visa Application, Mr Dhillon stated that he:
(i)proposed to undertake an Advanced Diploma of Business with an expected completion date of 26 October 2018: CB 1, 7 and 43; and
(ii)would return to India on completion of the course: CB 7;
(f)on 3 November 2017 the Delegate refused to grant the Student Visa to Mr Dhillon on the basis he did not satisfy the genuine temporary entrant criterion (“GTE Criterion”) under cl 500.212(a) of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”), which relevantly requires the Minister to be satisfied that an applicant intends genuinely to stay in Australia temporarily;
(g)on 22 November 2017 Mr Dhillon applied to the Tribunal for review of the Delegate’s Decision: CB 46-47;
(h)on 13 January 2020 the Tribunal wrote to Mr Dhillon and invited him to provide information about the enrolment criterion for the Student Visa set out in cl 500.211(a) of Sch 2 to the Migration Regulations: CB 54-57 (“Tribunal Information Invitation Letter”), accurately summarising the effect of the enrolment criterion as follows:
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; …
(i)Mr Dhillon responded to the Tribunal Information Invitation Letter, and relevantly:
(i)wrote “Yes” when asked whether he had a current Confirmation of Enrolment (“COE”) in a registered course of study: CB 66;
(ii)set out the history of study he had undertaken in Australia: CB 67; and
(iii)stated that he wished to complete an Advanced Diploma of Business (the same course he had nominated in the Student Visa application when he lodged it in September 2017): CB 67 and 70;
(j)on 18 February 2020 the Tribunal sent a letter to Mr Dhillon inviting him to a hearing before the Tribunal on 10 March 2020 (“Tribunal Hearing Invitation Letter” and “Tribunal Hearing” respectively);
(k)in the Tribunal Hearing Invitation Letter the Tribunal advised Mr Dhillon that:
(i)it had “considered the material before us but we are unable to make a favourable decision on this information alone”: CB 73;
(ii)he was “invited to appear … to give evidence and present arguments relating to the issues in your case”: CB 73; and
(iii)was requested “that any additional documents or information that you may wish to rely on during the hearing be provided to us by 3 March 2020”: CB 74;
(l)it does not appear that any further information or documents were provided to the Tribunal by Mr Dhillon prior to the Tribunal Hearing; and
(m)on 10 March 2020 Mr Dhillon attended the Tribunal Hearing: CB 80.
ORAL AND WRITTEN TRIBUNAL DECISIONS
At the conclusion of the Tribunal Hearing the Tribunal made the Oral Tribunal Decision to affirm the Delegate’s Decision: CB 79.
On 6 May 2020 the Tribunal provided to the parties the Written Tribunal Decision dated 5 May 2020: CB 83-87. It is not in dispute that the Written Tribunal Decision accurately reflects the Oral Tribunal Decision. In the Written Tribunal Decision the Tribunal set out its reasons and decision as follows at CB 86-87 at [6]-[14] (reproduced without alteration):
6.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The criteria for a subclass 500 student visa are set out in part 500 of schedule two to the migration regulations. To be eligible for this visa, the applicant has to satisfy all of the primary criteria which are set out in clauses 500.211 to 500.218.
7.The issue that was before the delegate was whether the applicant met the criterion in clause 500.212, being the genuine temporary entrant criterion. However, the issue at now is whether at the time of this decision, the applicant meets the enrolment requirements for a student visa set out in clause 500.211.
8.The Tribunal has had regard to some documentation that was provided to it by the applicant. Those documents are the delegate's decision and the submissions made in response to a request under section 359 2 of the Act. The Tribunal has not relied on any other documents in reaching this decision.
9.The applicant gave evidence that at the time of the delegate's decision, he was enrolled in an advanced diploma of business. He further gave evidence that at some stage after his visa was refused, the educational institution, being Durban College, advised that he was unable to continue studying if he did not have a visa.
10.On that basis, he said he stopped studying within a few months of the delegate's decision and had not been able to re-enrol. He said that he had applied to other colleges but received the same answer at each place, which was that without a visa, they would not enrol him.
11.The Tribunal explained that the effect of clause 500.211 is that he must satisfy clause 500.211 (a) which means that if he's not enrolled in a course of study at the time of this Tribunal's decision, that will become the new dispositive issue in this matter and his application must fail.
12.The applicant asked how he could continue to study if the AAT would not allow him a visa and the colleges would not allow him to enrol without one. The applicant was advised that it is not for the AAT to dictate how the colleges conduct their enrolment but it is clear that without such enrolment, it is not open to the AAT to grant the applicant a visa.
13.The applicant's evidence, which the Tribunal accepts, was that he is not enrolled in any course. The Tribunal finds that the applicant does not meet clause 500.211 (a). The applicant has not claimed, nor sought to demonstrate that he meets clause 500.211 b, c, or d and there is no evidence to suggest that he meets any of those alternatives.
14.The applicant, therefore, does not meet clause 500.211 of schedule two to the migration regulations at the time of this decision. And for these reasons, the decision under review must be affirmed.
JUDICIAL REVIEW APPLICATION
Grounds of review
The Judicial Review Application contains the four grounds of review which are set out at [10] (ground 1) and [17] (grounds 2, 3 and 4) below.
Affidavit
Mr Dhillon filed an affidavit dated 7 April 2020 (filed with the Judicial Review Application) which did no more than annex:
(a)a copy of pages from his passport;
(b)a Tribunal “Outcome of Review” document confirming that the Oral Tribunal Decision had been made and had affirmed the Delegate’s Decision; and
(c)a copy of the Delegate’s Decision.
Litigation history
Given that more than four years have passed since the Judicial Review Application was filed in the Adelaide Registry of the then Federal Circuit Court on 7 April 2020 it is appropriate that the Court briefly note the relevant litigation history of the Judicial Review Application, which is as follows:
(a)at a first Court date on 14 May 2020 orders were made by a Registrar of the Court (“Registrar’s Orders”) which provided for Mr Dhillon to file any amended Judicial Review Application by no later than 20 July 2020 and an outline of submissions by no later than 28 days prior to the final hearing, but the Registrar’s Orders did not set a date for a final hearing;
(b)Mr Dhillon did not file any amended Judicial Review Application by 20 July 2020, or at all;
(c)for reasons which are not apparent from the Court’s electronic court file the matter was not, at any time prior to March 2024, listed for final hearing;
(d)in February 2024 the matter was allocated to the docket of the presently presiding Judge, and a directions hearing was held on 4 March 2024;
(e)at the directions hearing on 4 March 2024 orders, including the following order, were made:
2.Set aside Orders 2 to 8 of the Orders of Registrar Carlton of 14 May 2020 and order in lieu that:
(a) the Applicant file and serve the following by 4 April 2024:
i.any amended originating application with particulars of the grounds of that amended application;
ii. any further affidavits;
iii. a supplementary Court Book, if any;
iv. written submissions.
(b)the First Respondent file and serve any amended response, affidavits and written submissions by 3 May 2024;
(c)the matter be listed for final hearing before Judge Lucev at 10:00am on 29 May 2024 in the Adelaide Registry.
(f)the matter was heard on 29 May 2024 at a hearing in the Adelaide Registry of the Court with both Mr Dhillon and the Minister’s Counsel appearing by videolink;
(g)albeit that Mr Dhillon did not file any materials he was permitted to make oral submissions (consistent with authority to the effect that even where there are un-particularised grounds of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (“DQQ17”) at [9] per Colvin J. In this respect DQQ17 is regularly applied by this Court. Two recent examples are FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383 at [8(j)] per Judge Lucev and FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144 at [25]-[26] per Judge Ladhams).
CONSIDERATION
Material jurisdictional error
For present purposes it suffices to observe that the Court may set aside a decision of the Tribunal upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. To constitute jurisdictional error an error must be material in the requisite sense explained in MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA [(2019) 264 CLR 421] to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The Court’s role is not to review the merits of a Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1.
Ground 1 – consideration
Ground 1 of the Judicial Review Application is as follows (reproduced without alteration):
1.Administrative Appeals Tribunal made Jurisdictional error by not providing written decision.
Section 368D(1), (2), (3), (4) and (7) of the Migration Act provides as follows:
Tribunal's decisions given orally How and when oral decisions are taken to have been made
(1)A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.
Statement in relation to oral decision
(2) If a decision on a review is given orally, the Tribunal must:
(a) make an oral statement that:
(i) describes the decision of the Tribunal on the review; and
(ii) describes the reasons for the decision; and
(iii) describes the findings on any material questions of fact; and
(iv)refers to the evidence or any other material on which the findings of fact were based; and
(v) identifies the day and time the decision is given orally; or
(b) make a written statement that:
(i) sets out the decision of the Tribunal on the review; and
(ii) sets out the reasons for the decision; and
(iii) sets out the findings on any material questions of fact; and
(iv)refers to the evidence or any other material on which the findings of fact were based; and
(v) records the day and time the decision is given orally.
(3)The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally.
Written statement to be provided on request of applicant
(4)If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the Tribunal must:
(a) reduce the oral statement to writing; and
(b)within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:
(i)to the applicant by one of the methods specified in section 379A; and
(ii)to the Secretary by one of the methods specified in section 379B.
…
Validity etc. not affected by procedural irregularities
(7)The validity of a decision on a review, and the operation of subsection (3), are not affected by:
(a)a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or
(b) a failure to comply with subsection (4), (5) or (6).
Section 368D of the Migration Act was inserted into the Migration Act by s 17 of the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) with effect from 18 April 2015, with the previous s 368D being repealed. The new s 368D puts beyond doubt that an oral decision of the Tribunal is taken to be made and becomes final on the day that it is made, and that the Tribunal becomes functus officio at the time an oral decision is made.
The Oral Tribunal Decision is thus taken to have been made by the Tribunal, and notified to Mr Dhillon, on the day and at the time it was given: Migration Act, s 368D(1).
It appears that on 11 March 2020 Mr Dhillon requested that the Tribunal provide a written copy of the Oral Tribunal Decision: CB 84. Mr Dhillon’s request was made within the 14 day time limit under reg 4.27B of the Migration Regulations for requesting that the Tribunal provide a written copy of the Oral Tribunal Decision. The time limit of 14 days after receipt of the request by the Tribunal for the provision of a written decision by the Tribunal as set out in s 368D(4)(b) of the Migration Act was thus engaged. That time limit expired on 25 March 2020. In providing the Written Tribunal Decision to Mr Dhillon on 6 May 2020 the Tribunal did not comply with the 14 day time limit in s368D(4)(b) of the Migration Act. That is, however, of no real moment and reveals no error because s 368D(7)(b) of the Migration Act provides that the validity of the Oral Tribunal Decision is not affected even if 368D(4) of the Migration Act was not complied with by the Tribunal. The Oral Tribunal Decision therefore remains valid even though the Written Tribunal Decision was provided to Mr Dhillon outside the prescribed time limit: Gadapa vMinister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 606 at [54] per Judge Kendall; Kapali vMinister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 643 at [71] per Judge Kendall.
The Court notes that there is no denial of natural justice or other error merely because an oral decision is made: Yammani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 87 at [30] per Judge Ladhams; Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 117 at [42] per Judge Given.
Ground 1 fails to establish material jurisdictional error in either the Oral Tribunal Decision or the Written Tribunal Decision for the reasons set out at [13]-[15] above, and because, in any event, the Tribunal did provide a written decision by way of the Written Tribunal decision: CB 83-87.
Grounds 2 to 4 – consideration
Grounds 2, 3 and 4 of the Judicial Review Application are as follows (reproduced without alteration):
2.Administrative Appeals Tribunal made Jurisdictional error by not considering my previous and current study record. Previously I have done certificate III in English Proficiency, Certificate III in Horticulture (Wholesale Nursery), Diploma of Horticulture, Certificate IV in Business, Diploma of Management, Diploma of Marketing, Advanced Diploma of Marketing, Diploma of Business
3.Administrative Appeals Tribunal made Jurisdictional error not consider my social ties to my home country
4.Administrative Appeals Tribunal made Jurisdictional error by not considering my financial ties to my home country.
Grounds 2, 3 and 4 are misconceived. The matters referred to in grounds 2, 3 and 4 are relevant to the GTE Criterion. The Tribunal did not have to consider the GTE Criterion under cl 500.212 of Sch 2 to the Migration Regulations. That is because the Tribunal found that Mr Dhillon did not have a valid COE at the time of the Oral Tribunal Decision. Mr Dhillon was therefore unable to satisfy the enrolment criterion in cl 500.211(a) of Sch 2 to the Migration Regulations which is an essential criterion necessary for the grant of the Student Visa. Once the Tribunal was satisfied that Mr Dhillon did not have a valid COE at the time of the Oral Tribunal Decision and was therefore unable to satisfy the enrolment criterion, the Tribunal was not required to consider whether Mr Dhillon satisfied other applicable criteria, such as the GTE Criterion the subject of grounds 2, 3 and 4: Patel & Anor v Minister for Immigration & Anor [2020] FCCA 2832 at [50] per Judge Kendall; Moussa v Minister for Home Affairs & Anor [2019] FCCA 1187 (“Moussa – FCCA”) at [16] per Judge Driver. As was explained in Moussa – FCCA at [16] per Judge Driver:
… it was irrelevant, insofar [as] clause 500.211 was concerned, whether Mr Moussa genuinely intended to study, had previously studied and/or had ceased studying on account of the delegate’s decision.
It is otherwise relevant to observe that the Tribunal had put Mr Dhillon on notice of the dispositive issue in the Tribunal’s review, that is whether he was enrolled in a course of study for the purposes of the enrolment criterion in cl 500.211(a) of Sch 2 to the Migration Regulations, by:
(a)setting out the requirements of cl 500.211(a) of Sch 2 to the Migration Regulations in the Tribunal Information Invitation Letter, and thereby affording Mr Dhillon the opportunity to provide evidence in relation to that issue: CB 56; and
(b)telling Mr Dhillon at the Tribunal Hearing that the enrolment criterion in cl 500.211(a) of Sch 2 to the Migration Regulations would be the dispositive issue and eliciting information from him in relation to that issue: CB 86-87 at [9]-[12].
There are many, many judgments of the federal courts dealing with applicants for a student visa without a COE at the time of decision by the Tribunal, and who therefore failed to meet the relevant criteria in the Migration Regulations to be enrolled in a course of study. Reference to just a few of these judgments will suffice for present purposes.
In Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350 (“Singh – FCA 2019”) at [29]-[31] per Banks-Smith J the Federal Court observed that:
29.Before me, the appellant said that he did not have a certificate of enrolment because he wished to await the grant of a visa before incurring the costs of enrolment. He also said he wanted a second chance to continue his studies, as he came to Australia for that purpose.
30.Whilst I can well understand the appellant’s desire to continue studies in Australia, the matters he has raised do not comprise a basis for finding appellable error on the part of the primary judge.
31.It is clear that the Tribunal properly understood its task. It ascertained that the appellant had failed to provide evidence of enrolment at the date of its decision and applied the relevant definition, as required for the purpose of considering whether the criterion for the subclass 500 visa was met. It applied the definition correctly. Accordingly, no jurisdictional error on the Tribunal’s part is disclosed and the primary judge did not err in dismissing the review application.
In Dhawan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1335 (“Dhawan”) at [58] per Judge Kendall (followed in Wangchuk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 220 (“Wangchuk”) at [18]-[20] per Judge Lucev) this Court (the then Federal Circuit Court) observed that:
... it was not relevant why the applicant was not enrolled. It was only relevant whether he was enrolled. Hence, the fact that he was not allowed an opportunity to explain “why” is of no consequence.
Mr Dhillon submitted that following the Delegate’s Decision refusing to grant him the Student Visa he was unable to obtain a further COE. That may be true, but it is not material. In Singh-FCA 2019 the Federal Court held that the Tribunal correctly applied the relevant definition to the fact that there was no COE for the purpose of finding that the student visa criterion was not met, and there was therefore no jurisdictional error in the Tribunal decision: Singh-FCA 2019 at [31] per Banks-Smith J. In Jalla v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 541 (“Jalla”) at [21] per Judge Laing this Court said that:
[21]At the hearing of this matter, the applicant additionally submitted that he had been unable to obtain a COE because he did not have a visa. He submitted that this placed him in an untenable position, as he was unable to obtain a visa without a COE and the universities that he approached would not give him a COE without a visa. However, even if this was the case, the Tribunal had no power to waive the requirements of cl 500.211. If the applicant was unable to meet those requirements, the Tribunal was obliged to refuse his application for the Visa.
and, as the Court has otherwise observed: Dhawan at [58] per Judge Kendall and Wangchuk at [18]-[20] per Judge Lucev, what matters, for the purposes of meeting the relevant criteria, is whether Mr Dhillon had a COE, not why he did not have one.
It is not in dispute that Mr Dhillon was not enrolled in a course of study for the purposes of the enrolment criterion in cl 500.211(a) of Sch 2 to the Migration Regulations at the time of the Tribunal Hearing and the Oral Tribunal Decision. Mr Dhillon did not therefore meet the criteria in cl 500.211(a) of Sch 2 to the Migration Regulations for the grant of the Student Visa, and there was no error, let alone jurisdictional error, in the Tribunal’s finding affirming the Delegate’s Decision to refuse Mr Dhillon the Student Visa.
Having regard to the matters set out at [18]-[24] above, the Court finds there is no material jurisdictional error established by grounds 2, 3 and 4 of the Judicial Review Application.
Jurisdictional error otherwise
The Court is cognisant that Mr Dhillon was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 (“Ludgero”) at [26] per Judge Lucev.
The Court notes that the Tribunal complied with the procedural fairness obligations imposed on it by the Migration Act because:
(a)the Tribunal Hearing Invitation Letter properly invited Mr Dhillon to attend the Tribunal Hearing in accordance with ss 360 and 360A of the Migration Act: CB 73, and Mr Dhillon attended the Tribunal Hearing: CB 80; and
(b)the Tribunal’s obligations under s 359A of the Migration Act were not engaged because the information it relied on in coming to the Oral Tribunal Decision was provided by Mr Dhillon, and thus fell within the exception in s 359A(4)(b) of the Migration Act.
In the Court’s view, there is nothing otherwise in the materials before it which might give rise to an argument that the Tribunal made a material jurisdictional error in the Oral Tribunal Decision or the Written Tribunal Decision. Indeed, in circumstances where Mr Dhillon was not enrolled in a course of study for the purposes of the enrolment criterion in cl 500.211(a) of Sch 2 to the Migration Regulations at the time of the Tribunal Hearing and the Oral Tribunal Decision it is hard to see how any error by the Tribunal might be material for the purposes of establishing material jurisdictional error.
CONCLUSION AND ORDERS
The Court has concluded that Mr Dhillon has failed to establish that the Oral Tribunal Decision or the Written Tribunal Decision are affected by material jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application filed on 7 April 2020.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 11 June 2024
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