Gadapa v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 606
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gadapa v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 606
File number: MLG 298 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 2 August 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the applicant was denied an opportunity to make claims or provide documents to the Tribunal – whether the Tribunal failed to provide written reasons for its decision – whether the Tribunal failed to consider the applicant’s “exceptional circumstances” – whether the Tribunal took into account irrelevant considerations – whether the material filed by the applicant (by way of affidavit) identifies any jurisdictional error on the part of the Tribunal – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 368D, 476
Migration Regulations 1994 (Cth), cll 573 and 573.223 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 29 July 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms S Moxey Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 298 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VISHAL GADAPA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
2 AUGUST 2022
THE COURT ORDERS THAT:
1.The application 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 KENDALL:
BACKGROUND
The applicant is a citizen of India (Court (“CB”) 1). He arrived in Australia in August 2013 as the holder of a student visa (CB 47). That visa was valid until 30 August 2015 (CB 47).
Since arriving in Australia, the applicant has held either a student visa or an associated bridging visa (CB 47). PRISMS records indicate that the applicant has not completed any courses since arriving in Australia and, further, that he did not undertake any study between 20 December 2014 and 12 July 2015 (CB 48).
On 26 August 2015, the applicant applied for a Student (Temporary) (Class TU) (Subclass 573) visa (the “visa”) (CB 1-8). Attached to that application were copies of the applicant’s passport, educational records and an Overseas Student Confirmation-of-Enrolment (“CoE”) for a Master of Business Administration (“MBA”) course which commenced on 13 July 2015 and was due for completion on 31 December 2016 (CB 9-15)
On 3 September 2015, the then Department of Immigration and Border Protection (the “Department”) requested that the applicant provide further information addressing the genuine temporary entrant criterion (CB 20-30).
No response was provided by or for the applicant.
On 6 June 2016, the Department again requested that the applicant provide information addressing the relevant genuine temporary entrant criterion, evidence of previous studies and information regarding his academic activities for the period from 20 December 2014 to 12 July 2015 (CB 31-36).
In response, the applicant provided a CoE for an MBA course (which commenced on 4 January 2016 and was due to be completed on 31 December 2016), correspondence containing the applicant’s unit results as at 14 December 2013 and a copy of the applicant’s Overseas Student Health Cover card (CB 37-41).
On 2 August 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 45-50). The delegate determined that the applicant did not satisfy the genuine temporary entrant criterion prescribed in cl 573.223 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 49).
On 19 August 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 51-52).
On 14 December 2017, the Tribunal invited the applicant (via email) to attend a hearing scheduled to take place on 11 January 2018 (CB 56-64). The invitation letter also requested that the applicant provide additional information, as follows (CB 58):
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
On 11 January 2018, the applicant appeared before the Tribunal. He was assisted at that hearing by an interpreter in the Telugu language (CB 73-75).
At the hearing, the applicant provided the Tribunal with a completed “Student Visa – GTE Questionnaire” form (CB 76-81). On page one of that form, the applicant selected “no” in relation to whether he had a current CoE (CB 76).
The Tribunal made an oral decision at the hearing which affirmed the delegate’s decision refusing to grant the applicant the visa (CB 84). A written record of that decision was provided to the applicant on 19 February 2018 (CB 85-89).
On 6 February 2018, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s written decision (dated 19 February 2018) is three pages in length and spans 11 paragraphs.
The Tribunal began by identifying the type of visa the delegate had refused on 2 August 2016 (at [1]) and confirmed that it had made an oral decision on 11 January 2018 (at [2]).
The Tribunal noted that the applicant had applied for the visa on 26 August 2015, explained that the visa class contained a number of sub-classes and noted that the relevant subclass was generally determined by the type of course in which an applicant was enrolled (or had an offer of enrolment for) (at [3]).
The Tribunal then outlined the reasons for the delegate’s refusal of the applicant’s visa, noting that the delegate had not been satisfied that the applicant was a genuine student or that he genuinely intended to stay in Australia temporarily. The Tribunal also acknowledged that the applicant had provided the Tribunal with a copy of the delegate’s decision record in that regard (at [4]).
The Tribunal then stated:
5.You also completed a questionnaire just prior to the hearing which you’ve signed and dated, in which you provided a history of your studies in Australia and information concerning your visa status. You appeared by yourself without a migration agent.
The Tribunal further explained that, while the issue before the delegate was whether or not the applicant was a genuine temporary entrant, the issue before the Tribunal was whether or not the applicant met one of the primary requirements for the grant of the visa – that is, having a current CoE (at [6]).
The Tribunal continued as follows:
7. It is a mandatory criterion for all sub-classes of the Class TU visa, except sub-class 580. You have confirmed you are not the subject of visa sub-class 580, (you have nodded your head), which is to do with a guardian of a student in Australia, or applying to come to Australia. So it is a mandatory criterion that the application give to the Minister and now to the Tribunal a CoE which relates to the undertaking a course of study, unless a failure of electronic transmission has prevented an education provider from sending a CoE, and the applicant needs to travel urgently, or if the application was made on form 157E, which form may only be validly used if the application is used whilst outside Australia and is subject to a highest assessment level of class 1.
8.The mandatory criterion is contained in classes 570.222, class 572.222, and class 573.222, and their equivalents for each alternative sub-class. In the hearing today the applicant has been informed that it is the mandatory criteria that a CoE has to be both current and valid, and an expired CoE or a cancelled CoE is insufficient to meet these requirements. Mr Gadapa, the Tribunal sent you an invitation on 14 December 2017 to attend this hearing, which you accepted. In that invitation you were requested to provide a copy of your current CoE to the Tribunal at least seven days before the scheduled date of the hearing.
The Tribunal ultimately found as follows:
9.As discussed and confirmed by you, you do not have a current CoE and as such have not provided that to the Tribunal. At today’s hearing you were again requested to provide to the Tribunal a current CoE. You have not done so. In your sworn evidence before the Tribunal you confirmed that you were last enrolled in a course in the MBA course, which you half completed in 2016. You have further confirmed in your sworn evidence that you are not currently enrolled, nor do you have an offer of enrolment, in any course of study in Australia. Accordingly there is no evidence before me that you are now enrolled in or have a current offer of enrolment in any applicable course of study. Therefore the current enrolment prerequisite for all student visa sub-classes is not met.
On the basis of the above, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [10]-[11]).
APPLICATION IN THIS COURT
The application for judicial review filed by the applicant on 6 February 2018 contains 11 “grounds of review” as follows (without alteration and excluding footnotes):
1.I am filing an application under s.476 of the Migration Act 1958 seeking review (“Judicial Review Application”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal, The Tribunal Decision affirmed a decision made on 11th January 2018 by a delegate of the first respondent, the Minister for Immigration & Border Protection to refuse Student visa (573 Subclass) under the Migration Act 1958.
2.The Main reason behind the Immigration and Tribunal Decision was Genuine Temporary Entrant criterion which is under Minister Direction No 53, as case officer and a tribunal member consider that I did not meet the legal requirement in clause 573.223(l)(a) in Schedule 2 of the Regulations.
3.I have applied for the review at Melbourne registry, I have given some reasons and wanted to explain the exceptional circumstances to the tribunal, but I did not have opportunity to the tribunal, claims and documents have not been regarded by tribunal which is jurisdictional error, tribunal has given the oral decision on very day of the hearing. But tribunal hasn't made any written decision yet.
4.I am bringing the tribunal decision to FCCA on the ground of review was that “The Tribunal decision (oral decision) made on 11th January 2018 is affected by Jurisdictional Error. The Tribunal did not take consider my exceptional circumstances and took account of irrelevant considerations. The hearing seems to me that the Tribunal did not comply according to law.”
5.I was waiting for the tribunal hearing and I had lots of hope on my case where I would have chances to tribunal member listen my case properly to give justice. But the conduct of hearing did not go what I have expected.
6.In the consideration of a my visa application, under the s 65, if case officer has been satisfied is that the application may not be granted unless the criteria for the particular visa applied for have been satisfied, but case officer and tribunal member has regarded my previous history. According to previous history I have enrolled, paid fee, studied and failed. End of the visa has been cancelled because of my academic progress.
7.I wasn't enrolled in any course during the period “20 December 2014 and 12 July 2015” because of exceptional circumstances “I could not get the admission in any master’s program in any university”. There were SVP & NON-SVP regulations in affect. This situation has been explained to the Immigration and tribunal clearly as this was my mistake.
8.Delegate did not explicitly inquire whether I am breached of cl.573 of Sch 2 to the Regulations, likewise tribunal did, this is the reason I am not happy with delegate decision.
9.Therefore I seek the review by requesting the Federal circuit court to intervene this matter to assess my 573 visa cancellation.573 visa is important to me where I can achieve some education in Australia.
10.I am applying Judicial Review at Federal circuit court within 35 days according to Migration Act 1958 related to federal circuit court regulations.
11.Therefore, I am requesting the federal circuit court to consider my situation under exceptional circumstances where I request the Judge and court see in this matter under natural justice principles by accepting my judicial review application.
On 16 February 2022, the applicant filed an affidavit (deposed by him on 16 February 2022) annexing a Diploma of Business dated 9 March 2020, an Advanced Diploma of Business dated 24 October 2021 and a CoE for a Graduate Diploma of Management (Learning) which commenced on 28 February 2022 and is due to be completed on 13 August 2023. This material will be discussed below.
On 23 February 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were filed by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 6 February 2018, a Court Book numbering 89 pages (marked as Exhibit 1), the applicant’s affidavit deposed and filed on 16 February 2022, written submissions filed by the Minister on 15 July 2022 and an affidavit of service of Samantha Liddy affirmed and filed on 18 July 2022 (the “Liddy affidavit”).
The applicant appeared before this Court on 29 July 2022. He appeared without legal representation and was assisted by an interpreter in the Teluga language. The Court confirmed with him that he had received a copy of the Court Book, the Minister’s written submissions and the Liddy affidavit.
The Court noted that the application for judicial review filed by the applicant only seeks relief by way of an order quashing the Tribunal’s decision. It does not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act is not properly invoked. The Minister was agreeable to the applicant “orally amending the application to rectify the oversight”. The Court explained this issue to the applicant and, with his agreement, made an order amending the application for judicial review to include seeking a writ of mandamus.
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions akin to this matter, they most commonly include (but are not limited to) the following types of “mistakes”:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 (“Singh”) at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that his main concern was that he was unable to continue his studies at the relevant time due to personal issues and was concerned that the Tribunal did not take this into account when making its decision.
This issue is discussed below when considering grounds 4, 7 and 8 of the applicant’s judicial review application.
CONSIDERATION
Grounds of review
Grounds 1, 2, 5, 6, 9, 10 and 11
These grounds narrate, in a broad sense, the background and procedural history of the applicant’s matter. They do not allege any error by the Tribunal and they do not establish any jurisdictional error on the part of the Tribunal.
Grounds 1, 2, 5, 6, 9, 10 and 11 are, accordingly, dismissed.
Ground 3
By ground 3, the applicant alleges that he did not have an opportunity to make claims or provide documents to the Tribunal. The applicant also claims that the Tribunal had not “made any written decision yet”.
To the extent that the applicant claims that he did not have an opportunity to advance his claims or provide relevant documents to the Tribunal, this fails on a factual level.
As outlined above, on 14 December 2017 the Tribunal invited the applicant (via email) to attend a hearing scheduled to take place on 11 January 2018 (CB 56-64). The invitation letter also asked the applicant to provide additional information, as follows (CB 58):
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
The applicant did not provide any information to the Tribunal in the lead up to the hearing.
On the day of the hearing, the applicant completed a “Student Visa – GTE Questionnaire” form which was provided to the Tribunal at the hearing (CB 76-81). In response to the first question contained in that form, the applicant answered “no” when asked whether he had a current CoE (CB 76).
There is no evidence before this Court to suggest that the applicant provided (or even attempted to provide) any further documents to, or make any further claims before, the Tribunal.
The issue before the Tribunal was whether, at the time of the Tribunal’s decision, the applicant held a current CoE confirming his enrolment in an approved course of study.
The applicant here did not hold a current CoE. The Tribunal confirmed this in its written reasons as follows:
9.As discussed and confirmed by you, you do not have a current CoE and as such have not provided that to the Tribunal. At today’s hearing you were again requested to provide to the Tribunal a current CoE. You have not done so. In your sworn evidence before the Tribunal you confirmed that you were last enrolled in a course in the MBA course, which you half completed in 2016. You have further confirmed in your sworn evidence that you are not currently enrolled, nor do you have an offer of enrolment, in any course of study in Australia. Accordingly there is no evidence before me that you are now enrolled in or have a current offer of enrolment in any applicable course of study. Therefore the current enrolment prerequisite for all student visa sub-classes is not met.
As outlined by the Tribunal, the applicant provided evidence confirming that he did not hold a current CoE. Further, the applicant confirmed that he was not currently enrolled in, and did not have an offer of enrolment for, any course of study in Australia. Indeed, the applicant advised the Tribunal that he was last enrolled in a course of study (which he only half completed) in 2016.
The Tribunal had regard to the applicant’s evidence (both his oral evidence and evidence given by way of the completed “Student Visa – GTE Questionnaire” form). The Tribunal expressly considered that evidence (at [9] in its written reasons outlined above) and made its decision based on the evidence provided by the applicant.
No error arises in this regard.
In relation to the suggestion that the Tribunal failed to provide written reasons, the Court notes that, at the time the applicant filed his application for review in this Court (being on 6 February 2018), the Tribunal had not yet provided its written reasons. It did so on 19 February 2018.
No error arises in this regard.
The Tribunal made its decision orally. It is empowered to do so under s 368D(1) of the Act, which provides:
368D 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.
The Tribunal provided an oral decision on 11 January 2018 at 15.47 (CB 84).
In circumstances where a decision is made by the Tribunal orally, the applicant may request a written statement of reasons be provided pursuant to s 368D(4) of the Act, which provides:
368D Tribunal’s decisions 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.
The Tribunal reduced its oral statement to writing on 19 February 2018 (CB 87-89) and provided a copy of those written reasons to the applicant via email on 19 February 2018 (CB 85-86).
There is no evidence before the Court to suggest that the applicant requested that the Tribunal provide a written statement of reasons and it is thus not possible for the Court to ascertain if the written reasons were provided within the requisite 14 day timeframe. However, even if the written reasons were provided by the Tribunal outside of the 14 day time period, such a procedural irregularity would not result in invalidity to the Tribunal’s decision: s 368D(7) of the Act.
No error arises in relation to provision of written reasons by the Tribunal.
Ground 3 is, accordingly, dismissed.
Grounds 4, 7 and 8
Grounds 4, 7 and 8 allege that the Tribunal failed to consider the applicant’s “exceptional circumstances and took [into] account … irrelevant considerations”.
In relation to the “exceptional circumstances” which the applicant alleges that the Tribunal failed to accommodate, the applicant says that during the period 20 December 2014 to 12 July 2015 he “could not get … admission in any masters program in any university” because “[t]here were SVP & NON-SVP regulations in affect”. Further, the applicant suggests that the Tribunal failed to enquire as to whether the applicant had breached cl 573 in Schedule 2 of the Regulations.
The applicant has not specified which irrelevant considerations were taken into account by the Tribunal.
To the extent that the applicant is concerned that the Tribunal failed to consider his “exceptional circumstances”, it is correct that the Tribunal did not do so. However, this does amount to an error in and of itself.
As outlined above, the question for the Tribunal in this matter was whether the applicant met the mandatory criterion requiring him to hold a current enrolment or offer of enrolment. In that regard, the Tribunal considered the applicants oral evidence (given at the hearing) and his written evidence (in the form of the “Student Visa – GTE Questionnaire” form) provided to the Tribunal on the day of the hearing. On the applicant’s own evidence, he was not enrolled in any approved course of study.
There is no evidence to suggest that the applicant provided (or attempted to provide) any information to the Tribunal outlining any “exceptional circumstances” or, indeed, any personal issues of the sort raised before this Court. Further, even if the applicant had provided such information to the Tribunal, it would not have assisted him.
The requirement that an applicant be enrolled in an approved course of study is mandatory. The Tribunal has no discretion to waive this requirement or take into account any exceptional circumstances. As outlined above, the only question that the Tribunal was required to answer was whether or not the applicant was currently enrolled in (or had an offer of enrolment for) an approved course of study. The applicant was not.
In those circumstances, the Tribunal made the only decision open to it and there is no evidence before the Court that the Tribunal failed to take into account relevant considerations or that the Tribunal took into account irrelevant considerations.
No error arises in relation to grounds 4, 7 or 8.
Applicant’s affidavit
On 16 February 2022, the applicant deposed and filed an affidavit. That affidavit stated:
1.I applied for judicial review of a decision made by the Administrative Appeal Tribunal, the applicant is in process.
2.I would like to update few documents to my application. I have completed Diploma of Business and Advance Diploma of Business which I would like to update to my application.
3.I am currently studying Graduate Diploma of Management learning at Victorian Academy of Commerce and Technology Startups, I would like to update my COE to my application.
Annexed to that affidavit was a Diploma of Business dated 9 March 2020, an Advanced Diploma of Business dated 24 October 2021 and CoE for a Graduate Diploma of Management (Learning) which commenced on 28 February 2022 and is due to be completed on 13 August 2023.
The documents annexed to the affidavit post-date the Tribunal’s decision (being 11 January 2018). As such, it was not material that was before the Tribunal.
An application for judicial review is, ordinarily, confined to the material that was before the Tribunal: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145. Further, any new evidence should not be permitted for the purpose of showing a finding of fact was wrong or to better support an applicant’s claims and evidence.
Here, the documents were not before the Tribunal and the purpose for which the applicant seeks to provide them to the Court is, in effect, to engage in merits review. The applicant, it appears, wishes to rely the material to show that he is now enrolled in a course of study.
Unfortunately, even if the Court could consider the documents, they would not assist the applicant. The applicant was required to be enrolled in a course of study at the time of the Tribunal’s decision. The fact that he is now enrolled in a course of study is irrelevant.
The annexures to the affidavit have no weight and do not identify any jurisdictional error on the part of the Tribunal.
CONCLUSION
The application for judicial review (filed by the applicant on 6 February 2022) and the applicant’s affidavit (deposed and filed by the applicant on 16 February 2022) fail to identify any jurisdictional error. The Court is otherwise unable to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 2 August 2022
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Legitimate Expectation
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Natural Justice & Procedural Fairness
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