Elbarbari v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 562
•24 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Elbarbari v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 562
File number: SYG 64 of 2019 Judgment of: JUDGE LADHAMS Date of judgment: 24 June 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a student visa – where an earlier purported decision of the Tribunal was quashed and a writ of mandamus issued – whether the Tribunal erred by being constituted by the same member following the remittal – whether the Tribunal failed to consider the applicant’s submission – whether the Tribunal decision was affected by actual or apprehended bias – where the applicant seeks review of the factual merits of the Tribunal decision and asks the Court to take into account developments that occurred after the Tribunal decision was made – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth) Sch 2, cll 572.223, 573.223
Cases cited: AJQ16 v Minister for Immigration and Border Protection (2018) 74 AAR 249; [2018] FCA 244
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
MZAEU v Minister for Immigration and Border Protection (2017) 70 AAR 22; [2016] FCAFC 100
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15
SZUXZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 225
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 13 June 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr L Dennis Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 64 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMED ABDELFATTAH IBRAHIM ELBARBARI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
24 JUNE 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs fixed in the amount of $5,400.
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 LADHAMS:
INTRODUCTION
The applicant is a non-citizen who applied for a student visa in Australia. A delegate of the Minister refused to grant the applicant a student visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
In his written application, the applicant asserts that the Tribunal decision is affected by jurisdictional error because, after an earlier purported decision of the Tribunal was quashed by this Court and the matter remitted to the Tribunal for redetermination according to law, the Tribunal was constituted by the same member who made the earlier purported decision. The applicant also alleges that the Tribunal failed to consider his submission to the Tribunal and that the Tribunal was biased.
For the reasons explained below, the applicant has not established that the Tribunal decision is affected by jurisdictional error and the application to this Court is therefore dismissed.
RELEVANT BACKGROUND
The applicant entered Australia as the holder of a student visa in February 2008.
On 19 March 2016 the applicant applied for the student visa the subject of this judicial review application. The particular class of student visa that the applicant applied for is a Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa.
On 9 June 2016 a delegate of the Minister refused to grant the visa. The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student and therefore found that he did not meet the requirements of cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 27 June 2016 the applicant applied to the Tribunal for merits review of the delegate’s decision. The Tribunal purported to affirm the delegate’s decision on 26 May 2017 but, upon judicial review, the Federal Circuit Court quashed that decision by consent on 17 October 2017 and issued a writ of mandamus requiring the Tribunal to redetermine the review application according to law. The following note was included in the Order of 17 October 2017:
The first respondent concedes the second respondent failed to have proper regard to paragraph 9(b) of Direction 53 – Assessing the genuine temporary entrant criterion for Student visa applications, made under s 499 of the Migration Act 1958 (Cth), despite the applicant providing evidence which related to that paragraph. This included evidence in relation to his potential career opportunities, assets and sister’s medical condition.
Following the Court Order and for the purposes of the reconsideration of the application, the Tribunal was constituted by the same member who made the purported decision of 26 May 2017.
On 17 October 2018 the applicant appeared before the Tribunal to give evidence and present arguments.
On 19 December 2018 the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal considered that, having regard to the applicant’s proposed course of study at the time of its decision, it was appropriate to assess the applicant’s application against the criteria for a subclass 573 visa. The Tribunal identified that the issue for its consideration was whether the applicant met the time of decision criterion in cl 573.223(1), which provided:
The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant meets the requirements of subclause (1A) or (2).
The Tribunal identified that in considering whether the applicant satisfied the criterion in cl 573.223(1), it was required to have regard to Ministerial Direction No 53, which should not be used as a checklist but rather as a guide to decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfied the genuine temporary entrant criterion.
The Tribunal acknowledged the applicant’s evidence about his family in Egypt, including that he has a wife and two children in Egypt, brothers who needed him in the family business and a mother with diabetes and other conditions and a sister with polio, who both needed care.
The Tribunal also noted that the applicant had made previous applications for student visas and had returned to Egypt regularly during study breaks.
The Tribunal noted that the applicant presented a Confirmation of Enrolment (COE) for a Bachelor of Business beginning in February 2019 and finishing in December 2021. The Tribunal set out the applicant’s study history and described it as a concentration on vocational courses in the Business/Management sector. The Tribunal noted the applicant had been in Australia for 10 years and 10 months at the time of its decision and, in that time, he succeeded in achieving a number of certificate and diploma qualifications, but his study history was replete with cancellation of courses which had effectively prolonged his stay in Australia. The Tribunal considered that the applicant’s insistence at the hearing that he needed to do a further bachelor’s degree course to achieve his study objective must be juxtaposed with information he presented at the previous hearing which was a COE for a further vocational course. The Tribunal considered that while the applicant painted a picture of a clear need to obtain a formal bachelor’s degree, the reality was otherwise, and his certificate and diploma vocational courses could well equip him for his chosen career path in Egypt. The Tribunal was satisfied that the applicant could effectively pursue a bachelor’s course in Egypt and that he had so far spent significant time in Australia using cheaper vocational courses as a way of prolonging his stay.
The Tribunal placed maximum negative weight on the applicant’s failure to study in the period between November 2017 and October 2018 when considering his genuineness as a student. The Tribunal doubted the applicant’s intention to return home to Egypt to join the family business when this stated intention was juxtaposed with the length of time he had spent in Australia and his study history to date. The Tribunal considered that the applicant’s principal reason for remaining in Australia was to make money and found that he had a job which provided a significant incentive for him to stay a further two years in Australia.
The Tribunal noted that the applicant had spent the greater part of his adult life in Australia and proposed to stay longer in Australia. Notwithstanding that the applicant had family in Egypt, the Tribunal found he had little intention to return to Egypt based on the evidence of his life so far in Australia. The Tribunal considered that the applicant’s evidence of personal wealth in Egypt, which he relied on as evidence of his genuine desire to return to Egypt, was contradicted by the fact that when he was given the opportunity to study he preferred to work.
The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and therefore found he did not meet the requirements of cl 573.223. The Tribunal affirmed the decision not to grant the applicant a student visa.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 11 January 2019 and was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant raises the following grounds in his application (reproduced without alteration):
1.My application was remitted by the Court to the Tribunal to be considered by a different Member and the same Member who previously refused me was in charge of my case this time.
2.The Tribunal erred by not considering my case by a different Member of the Tribunal.
3.The Member of the Tribunal failed to take into account my lengthy submission and my genuine intention to obtain a formal Bachelor degree and that my intention to stay in Australia temporarily is genuine as I explained and I do believe that the Member of the Tribunal is bias and I recommend that his understanding of my situation is affected by error and my case should be remitted back to the Tribunal to be considered and constituted by a different Member.
Pursuant to an Order I made on 25 January 2024, the applicant was required to file and serve any amended application with proper particulars of the grounds of application, any further affidavits and written submissions 28 days before the hearing. The applicant did not file any documents in accordance with the Order, but he did attempt to provide documents to my Chambers by way of email. The applicant was advised that the Court did not accept for filing documents that had only been emailed to Chambers and was advised of other ways he could file his documents. There is no evidence that the applicant took any further steps to attempt to file the documents. At the hearing, I referred to the documents that the applicant provided to Chambers. I confirmed that a COE that he attached to his email was already in the evidence before the Court because it was included in the court book filed by the Minister. I also expressed the view that an affidavit the applicant had attached to an email to my Chambers really amounted to a submission in relation to errors he believes the Tribunal made. I told the applicant that he would have an opportunity to make oral submissions to the Court about any serious legal error that he believes the Tribunal made, which may extend beyond the grounds raised in his application and may include the matters that he referred to in his affidavit. The applicant’s oral submissions to the Court included reference to the matters referred to in the affidavit he attempted to file by way of an email sent to Chambers.
The Minister filed and served written submissions ahead of the hearing in accordance with the Order of 25 January 2024, and the applicant confirmed at the hearing that he had read those submissions.
THE MATTERS RAISED IN THE APPLICANT’S ORAL SUBMISSIONS
The matters raised in the applicant’s oral submissions extended beyond the matters raised in his written application.
Some of the matters raised in the applicant’s oral submissions relate to the reason he wishes to obtain a student visa and go to the merits of the Tribunal decision. In this regard, the applicant submitted:
(a)he was genuine in his intention to study for a bachelor’s degree and he provided a COE in February 2019;
(b)he hoped the Tribunal would reinstate his visa;
(c)the member of the Tribunal could see that he had finalised all his paperwork, which was all fine, and that he was studying and had paid the fees;
(d)he came to Australia based on his father’s wish because his father wanted him to obtain a bachelor’s degree from Australia and he is now holding onto his father’s wish because his father passed away in 2012;
(e)he is financially capable and well off financially and disputed the assertion in the court book that he wanted to stay in Australia to work;
(f)he goes back to Egypt every eight to nine months and has a big family in Egypt, with nine siblings and his wife and children back in Egypt;
(g)he genuinely wants to study and nothing else, and he is lawful in Australia;
(h)if he had wanted to stay in Australia for other reasons he would have applied for a different visa; and
(i)previously he was studying in Australia and the reason he has stayed so long is that when he initially arrived in Australia, he did not have the language skills and had to study several English courses and a business management course in a normal college until he was able to start his bachelor’s degree.
Some of the applicant’s oral submissions were based on the impact of the Covid-19 pandemic after the Tribunal decision. The applicant submitted that after the Tribunal rejected his application, Covid hit and the whole country was under lockdown for two and a half years. When Covid hit he did not know whether his student visa was going to be reinstated and he did not know what to do. He was waiting for the Tribunal’s action. Covid affected us all mentally and made us feel that the world had ended. After Australia opened and the airports were open again he remained because he was waiting for his interview with the Court. He was not studying during this time because he did not know what the Court was going to rule.
In relation to his ground based on bias and the matter being reheard by the same member, the applicant submitted that when he was going through the Tribunal he had a migration agent who was doing everything for him. She requested a change of member but when they went back to the Tribunal she told him the member did not change. The applicant submitted that the member asked him to prove his intention to study. The applicant was genuine and provided the COE for the bachelor’s degree and, after the Tribunal hearing, he had assumed with 100% certainty that he would be granted the visa.
CONSIDERATION OF THE APPLICANT’S GROUNDS AND ORAL SUBMISSIONS
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was recently explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
Grounds 1 and 2
Grounds 1 and 2 both assert jurisdictional error on the basis that, after the Court quashed the first purported Tribunal decision and remitted the matter to the Tribunal for reconsideration according to law, the Tribunal was reconstituted by the same member.
In considering this ground, it is appropriate to first have regard to the terms of the orders made by the Court. The order of a writ of mandamus requiring the Tribunal to reconsider the application was in the following terms:
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 9 June 2016 according to the law.
As can be seen from this, there is nothing in the Court’s order that required the matter to be reconsidered by the Tribunal differently constituted. In the absence of the Court ordering the matter to be heard by the Tribunal differently constituted, the constitution of the Tribunal is a matter for the President of the Tribunal: see, for example, AJQ16 v Minister for Immigration and Border Protection (2018) 74 AAR 249; [2018] FCA 244 at [68].
I am unable to locate any evidence in the court book, and neither party identified any evidence in their submissions, to support the applicant’s assertion at the hearing before the Court that his representative requested a different member after the matter was remitted to the Tribunal. The name of the member who was scheduled to convene the hearing following the remittal was recorded in the invitation to attend a hearing dated 4 July 2018 and in the invitation sent on 21 September 2018 after the Tribunal agreed to the applicant’s request for a postponement of the hearing. The applicant would have been able to see from this that the name of the member who would hear his matter was the same as the member who previously purported to make a decision in his matter. I accept the Minister’s submission that there is no evidence that the applicant objected to the Tribunal being constituted by this member on the remittal and that in these circumstances the applicant can be taken to have waived his right to object to the same Tribunal member hearing the matter following the remittal. As the Full Court said in MZAEU v Minister for Immigration and Border Protection (2017) 70 AAR 22; [2016] FCAFC 100 at [43]:
… it is important to note that the appellant was on notice that the same member would be hearing the matter and did not object to that member hearing the matter. The letter dated 18 November 2013 to the appellant’s solicitors and registered migration agent … gave notice of the name of the member who would be hearing the matter on the second occasion. This member named was the same member as had heard the matter on the first occasion. No objection was taken either before or at the hearing to this member hearing the matter. If this were the only basis for the apprehended bias contention, the appellant would be taken to have waived his right to object (on the ground of apprehended bias) to the same Tribunal member hearing the matter on the second occasion: Vakauta v Kelly [(1989) 167 CLR 568] at 577-578 per Dawson J; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [76] per Gummow ACJ, Hayne, Crennan and Bell JJ.
In the circumstances of this matter, I do not consider the Tribunal, following the remittal, being constituted by the same member who made the earlier purported decision gives rise to jurisdictional error for that reason alone. I consider in the context of ground 3 the applicant’s allegation of apprehended bias. To the extent that the applicant’s submissions express disagreement with the conclusion reached by the Tribunal member, they are insufficient to establish jurisdictional error. As discussed above, disagreement with a Tribunal decision does not of itself amount to jurisdictional error.
Grounds 1 and 2 are not established.
Ground 3
The applicant alleges two errors by ground 3. The applicant first alleges that the Tribunal failed to take into account his submission to the Tribunal and his genuine intention to obtain a bachelor’s degree in Australia. The second error alleged by ground 3 is that the Tribunal was biased in reaching its decision.
The Tribunal extracted the applicant’s submission in its entirety at [17] of its reasons and it can be seen from this that the Tribunal was clearly aware of the submission. The applicant addressed various issues in his submission, including his explanation for his past study history, the reason he did not study following the earlier purported Tribunal decision, the reasons he wished to study a bachelor’s degree, his family and future intentions in Egypt, his assets in Egypt, his intention to return to Egypt and that his stay in Australia was for genuine study purposes. The Tribunal considered these matters raised in the submission at various parts of the decision.
The Tribunal in reaching its decision did not accept the applicant’s intention as stated in his submission, when considered in the light of the other evidence before it. For example:
(a)the Tribunal did not accept the picture the applicant painted of the need to obtain a bachelor’s degree in the light of the number of certificates and vocational qualifications he had obtained in Australia, which could equip him for his chosen career path in Egypt;
(b)the Tribunal acknowledged the applicant’s submission about his lack of language skills when he arrived in Australia but noted that he had undertaken courses to remedy this problem with self-evident results, having a number of vocational courses;
(c)the Tribunal gave maximum negative weight to the applicant’s failure to study since 2016 and contrasted this with his insistence that he is a genuine applicant for entry and stay as a student, doubting the applicant stated intention when juxtaposed with the length of time he has spent in Australia so far and his study history to date;
(d)while the Tribunal accepted that the applicant has a wife and family in Egypt, it found that the applicant had little intention to return home, given that, at the time of the Tribunal decision, the applicant was 32 years of age and had spent the greater part of his adult life in Australia, having arrived as a 22 year old; and
(e)the Tribunal acknowledged the applicant’s evidence in relation to his personal wealth in Egypt, which he presented as evidence of his genuine desire to return to Egypt, but considered this to be contradicted by the fact that when he was given the opportunity to study, he preferred to work.
The process of reasoning adopted by the Tribunal and the preference it placed on the inferences it drew from the applicant’s conduct rather than his stated intentions in his submission were open to it on the evidence before it. That the Tribunal did not accept the applicant’s submission and his stated genuine intention to study a bachelor’s degree at face value does not mean that it failed to consider his submission or his evidence.
The applicant has not established that the Tribunal made a jurisdictional error by failing to consider his submission or his genuine intention to obtain a bachelor’s degree in Australia.
I then turn to the applicant’s allegation of bias. As I explained to the applicant at the hearing, bias is a serious allegation that must be distinctly raised and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69]. At its highest, the applicant’s allegation of bias appears to be on the basis that the same member who purported to affirm the delegate’s decision previously again found against the applicant. I treat this as an allegation of apprehended bias.
A decision may be affected by apprehended bias if a fair-minded and well-informed lay person might reasonably apprehend that the Tribunal might not have brought an impartial mind to the conduct of the review: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [17], [56]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15 at [37], [67].
A fair-minded and well-informed lay person would be aware of the jurisdictional error identified in the first Tribunal decision and would be aware that the Tribunal’s task on remittal was to determine the applicant’s application for review by deciding the matter afresh and considering the further evidence and arguments that the applicant provided to the Tribunal: see SZUXZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 225 at [35]-[37]. A fair-minded and well-informed lay person would also be aware that the applicant was afforded an opportunity, on the reconsideration of the matter, to provide further evidence and submissions, which were then considered by the Tribunal in its reasons. The opportunity to provide further submissions and evidence included the opportunity to raise new circumstances since the Tribunal previously considered the matter. One such circumstance was the applicant’s intention to study a bachelor’s degree, whereas, when the matter was previously before the Tribunal, he had intended to undertake a further vocational course. The Tribunal clearly had regard to the applicant’s new circumstances, including his stated intention to obtain a bachelor’s degree. A fair-minded and well-informed layperson would also be aware of the statutory task of the Tribunal and the criteria that the applicant must meet in order to be granted a student visa. This includes whether the applicant genuinely intends to remain in Australia temporarily, which is to be assessed based on a range of considerations and not simply whether the applicant had a COE and his stated intentions.
I have considered the applicant’s concern that the Tribunal was reconstituted by the same member and the reasons for affirming the delegate’s decision, as well as the materials before the Court more generally. I am unable to discern anything in the materials before the Court that might cause a fair-minded and well-informed lay person to reasonably apprehend that the Tribunal might not have brought an impartial mind to the conduct of the review.
The applicant has not established that the Tribunal decision is affected by apprehended bias.
Other matters raised in the applicant’s oral submissions
There are two other broad topics addressed in the applicant’s oral submissions that are not otherwise addressed in the discussion of the grounds above.
The first is the submissions that the applicant made about why he wishes to remain in Australia and why he believes he meets the criteria for a student visa. By raising these matters, the applicant is inviting the Court to review the factual merits of the Tribunal decision. As discussed above, and as explained to the applicant at the hearing, the Court has no power to do this. These matters do not allege any jurisdictional error in the Tribunal decision and do not establish any jurisdictional error in the Tribunal decision.
The other issue raised by the applicant’s oral submissions is the impact of the Covid pandemic and the uncertainty that it created for him. The Tribunal decision in this matter was made in December 2018, well before the commencement of the Covid pandemic. An assessment of whether the Tribunal decision is affected by jurisdictional error must be made based on the circumstances that existed at the time of the Tribunal decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]; Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77] (Mortimer J). Given that the Covid pandemic was not part of the state of affairs that existed at the time of the Tribunal decision, it does not give rise to jurisdictional error in the Tribunal decision.
The matters raised in the applicant’s oral submissions to the Court do not establish jurisdictional error.
CONCLUSION
The applicant has not established that the Tribunal decision is affected by jurisdictional error. It follows that the judicial review application must be dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 24 June 2024
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