Gao v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 657
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gao v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 657
File number: SYG 478 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 17 August 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred by proceeding to make a decision without any statement from the applicant – whether the Tribunal acted unreasonably in not exercising its discretion to adjourn the hearing – whether the Tribunal failed to adhere to its procedural fairness obligations – whether the applicant is now currently enrolled in a course of study – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 360, 360A, 362B, 363, 368, 379A, 425, 425A & 476
Migration Regulations 1994 (Cth), reg4.21 and cll 500.211, 500.212 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 & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Verma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 32
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 15 August 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms A Meaney Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 478 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HUILONG GAO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
17 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 China (Court Book (“CB”) 2). He arrived in Australia in March 2014 as the holder of a student visa. That visa enabled the applicant to study a Master of Business Administration (“MBA”) course and was valid until 25 July 2016 (CB 22).
The applicant’s study history showed that the applicant never commenced the MBA course. His enrolment was cancelled on 28 February 2015. Further, the applicant was not enrolled in any course of study from 25 July 2014 to 15 February 2015 and from 1 March 2015 to 16 August 2015 (CB 22).
On 18 July 2016, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”) (CB 1-14).
On 8 September 2016, the then Department of Immigration and Border Protection (the “Department”) asked the applicant to provide further information addressing the genuine temporary entrant criterion (CB 17-24).
On 5 October 2016, the applicant responded to that invitation as follows (CB 25-26):
It is true that I was granted the student visa in March, 2014 and I arrived in Australia in the same month. At that time, my English was very very poor and I relied on all the information provided by the education agent. After I first arrived in Australia, it was hard for me to live and study alone with limited English. I asked my education agent that was it possible for me to delay the opening date of school term because more time was needed for me to adapt to the environment and make full preparations before studying. My education agent promised me and said that it was not a problem and he would ask the school to give me more time before studying. But, he did not specify the date. Then I tried many times to contact the agent for the opening date. He did not give me any answer and said it was ok for me to begin the school until I was totally prepared.
It was really hard for me to open my bank account, recognize the road signs, learn to take train and bus, and even order dishes in the restaurant all by myself. When I thought I prepared well for school, I just could not contact my education agent any more. I did not know how to make international calls so I had to contact him by the online chat, but received no replies. I tried and failed to contact the school because I was not familiar with the education system and could not find the right person to communicate with this matter.
To be honest, I did not fully understand the visa conditions and even did not know I have violated the conditions. I now realized that it is really important that may matter my visa and my future. So I have tried to ask my friend to help me apply for another school and enroll in another course.
Could you please kindly give me more time to be enrolled in the school? Once I get the CoE, I will send it to you as soon as possible.
On 24 October 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 31-34). The delegate determined that the applicant did not satisfy the genuine temporary entrant criterion set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 34).
On 10 November 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 35-36).
On 7 December 2017, the Tribunal invited the applicant (via email) to attend a hearing which was scheduled to take place on 19 January 2018 (CB 40-52). The invitation letter also requested that the applicant provide additional information, as follows (CB 42):
In addition, please provide the following information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994, as is required for the grant of a student visa.
2.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.
3.We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.
We request that you provide the written statement and other evidence to us at least 7 days before the hearing date.
No response was provided by or for the applicant.
On 12 January 2018, the Tribunal sent the applicant an SMS hearing reminder message which read (CB 53):
Reminder – Your AAT hearing is on 19/01/18. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
On 18 January 2018, the Tribunal sent the applicant a further SMS hearing reminder message which read (CB 53):
Reminder – Your AAT hearing is on 19/01/18. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
The applicant did not attend the scheduled hearing on 19 January 2018 (CB 54-56) and the Tribunal affirmed the delegate’s decision refusing to grant him the visa (CB 59-62).
On 23 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 decision is four pages in length and spans 21 paragraphs.
The Tribunal began by identifying the type of visa the delegate had refused (at [1]), noting further that the applicant had applied for the visa on 18 July 2016 (at [2]).
The Tribunal then outlined the reasons for the delegate’s refusal, 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 (at [3]).
The Tribunal explained that the applicant’s visa had been refused on 24 October 2016, that the applicant had applied to the Tribunal for review of that decision on 10 November 2016 and that a hearing invitation had been sent to the applicant on 7 December 2017 (at [4]).
The Tribunal continued:
5.The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before his hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.” The applicant was informed he should provide a copy of his current Certificate of Enrolment (COE). The applicant did not respond to the hearing invitation or provide the Tribunal with documentary information in support of his application prior to the hearing. Prior to the hearing, the applicant did not provide a COE. Nor did he provide a written statement addressing the matters in Direction 69.
The Tribunal noted that the applicant had not responded to the hearing invitation, did not appear at the hearing and did not provide any explanation for his non-appearance, nor request any adjournment (at [6]).
The Tribunal then set out the criteria for the grant of the visa and identified that the issue in this matter was whether the applicant was currently enrolled in a course of study and whether the applicant was a genuine temporary entrant (as required by cll 500.211 and 500.212 in Schedule 2 of the Regulations respectively) (at [8]).
The Tribunal detailed the applicant’s background and family history (at [9]) and the conflicting evidence (in the applicant’s visa application) regarding the applicant’s family members and the funding for his stay in Australia (at [9]-[10]).
The Tribunal confirmed that on 7 December 2017, it had invited the applicant to attend a hearing but that the applicant had neither responded to the hearing invitation, nor engaged with the Tribunal in any meaningful way – for example, he did not provide any material in support of his application (at [11]).
The Tribunal had regard to the delegate’s decision (at [12]), noting that the delegate had a number of concerns relating to the genuine temporary entrant criteria (at [13]). In particular, the Tribunal explained that the applicant had enrolled in multiple courses which were cancelled (resulting in a significant gap in study between 24 July 2014 and 17 August 2015) and that the only course the applicant had completed between 2014 and 2016 was a general English course (at [14]).
The Tribunal continued:
15.Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
16.‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
17.The applicant was invited, in writing, to provide information in support of his application, it was clearly that he needed to provide a COE. There is no evidence that has been provided to the Tribunal that the applicant is currently enrolled in a course of study or has received an offer of enrolment.
The Tribunal was not satisfied that, at the time of its decision, the applicant was enrolled in a course of study as required by cl 500.211 in Schedule 2 of the Regulations (at [18]). As the applicant did not meet that “threshold criterion”, it was not necessary for the Tribunal to make findings against cl 500.212 in Schedule 2 of the Regulations (the genuine temporary entrant criterion) (at [19]).
On the basis of the above, the Tribunal affirmed the decision refusing to grant the applicant the visa (at [20]-[21]).
APPLICATION IN THIS COURT
The application for judicial review filed by the applicant on 23 February 2018 contains three “grounds of review” as follows (without alteration):
1. AAT made a decision without my statement.
2. I felt the decision is not fair to me.
3. I want to continue my study in Australia.
On 23 February 2022, the applicant filed an affidavit (affirmed by him on 17 February 2022) annexing copies of the Tribunal’s decision and the delegate’s decision.
On 19 March 2018, procedural orders were made by Registrar Cho of this Court giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions and on 2 March 2022, further orders were made by Registrar van der Westhuizen of this Court giving the applicant a further opportunity to file written submissions. Unfortunately, no 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 23 February 2018, a Court Book numbering 62 pages (marked as Exhibit 1), written submissions filed by the Minister on 1 August 2022 and an affidavit of service of Sophie Caroline Roberts affirmed and filed on 4 August 2022 (the “Roberts affidavit”).
The applicant appeared before this Court on 15 August 2022. He appeared without legal representation and was assisted by an interpreter in the Mandarin language. The Court confirmed with him that he had received a copy of the Court Book, the Minister’s written submissions and the Roberts 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 his 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 has fallen 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 & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 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, and after hearing from Ms Meaney for the Minister, the applicant stated (in effect) that he did not receive the invitation to attend the hearing before, the Tribunal should have given him an opportunity to attend, he did not receive any text message on his phone advising of the hearing and it appears that any correspondence that was sent to an email address “set up” by his migration agent (and not to his personal email address). The applicant also stressed that he was, in fact, enrolled in a course of study and, in that regard, gave the Court his student number and the name of the relevant educational institution.
These concerns, to the extent that they address the issue of jurisdictional error on the part of the Tribunal will be addressed below.
CONSIDERATION
Grounds of review
Ground 1
For ease of reference, ground 1 states:
1. AAT made a decision without my statement.
The Tribunal here did proceed to make a decision without any statement from the applicant. It was empowered by s 362B of the Act to do so.
This Court has previously outlined the circumstances in which the Tribunal can make a decision without any input from an applicant in its decision of Verma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 32. The Court’s analysis in that matter applies equally here and is repeated below.
At the time of the Tribunal’s decision, s 362B of the Act relevantly provided:
362B Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.
In order for s 362B of the Act to apply, the Tribunal was required to invite the applicant to appear at a Tribunal hearing (pursuant to s 360 of the Act).
Here, the Tribunal wrote to the applicant on 7 December 2017 (via the email address provided by him in his application for review filed with the Tribunal (CB 36)) and invited him to attend a hearing (CB 40-52).
In order for that invitation to be a valid invitation, it needed to comply with s 360A of the Act.
At the time of the Tribunal’s decision, s 360A of the Act provided:
360A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(5) The notice must contain a statement of the effect of section 362B.
The invitation letter sent to the applicant by the Tribunal in this matter relevantly provided (CB 41-42):
Date: 19 January 2018
Arrive By: 11:00 am (NSW time)
Arrive by this time and report to the reception counter.
Time: 11:30 am (NSW time)
Your hearing is scheduled to start at 11:30 am and is one of several cases to be heard in the following two hours.
Location: Level 6, 83 Clarence Street, SYDNEY NSW 2000
Interpreter: Mandarin
Please advise us at least 7 days before the hearing if you require an interpreter for a different language.
Bring: Your passport or other document that proves your identity.
…
If you are not able to attend the hearing, you need to advise me as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
As noted above, the invitation letter also sought additional information from the applicant as follows (CB 42):
In addition, please provide the following information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994, as is required for the grant of a student visa.
2.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.
3.We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.
We request that you provide the written statement and other evidence to us at least 7 days before the hearing date.
The Tribunal’s invitation in this matter:
(a)notified the applicant that the hearing was scheduled to take place at 11.30am (NSW time) on 19 January 2018 at the Tribunal’s Sydney registry: s 360A(1) of the Act;
(b)was sent via email to the last email address provided to the Tribunal by the applicant in connection with the review (CB36) (as required by ss 379A(5)(b) and (d) of the Act): s 360A(2)(a) of the Act;
(c)gave the applicant more than the prescribed period of notice for the hearing. The prescribed period in matters of this sort is 14 days (see reg 4.21 of the Regulations). Here, the notification was sent to the applicant 43 days prior to the hearing date: s 360A(4) of the Act; and
(d)included a statement (as per s 362B of the Act) which notified the applicant that, in the event that he did not appear at the hearing, the Tribunal might make a decision without taking any further action to allow him to appear before it or dismiss the application without any consideration of the application: s 360A(5) of the Act.
The Court is satisfied that the hearing invitation complied with s 360A of the Act and that the applicant was thus validly invited to attend the Tribunal hearing. Unfortunately, the applicant did not appear at that hearing (scheduled to take place on 19 January 2018) (CB 54-56).
Upon the applicant’s failure to appear at the scheduled hearing, s 362B of the Act empowered the Tribunal to be able to either make a decision in relation to the application based on the material before it (s 362B(1A)(a) of the Act) or dismiss the application without any further consideration (s 362B(1A)(b) of the Act).
In this matter, the Tribunal opted to produce a written statement pursuant to s 368 of the Act (CB 59-62) and “make a decision on the review without taking any further action to enable to … enable the applicant to appear before it”. The Tribunal had the power to do so under to s 362B(1A)(a) of the Act. There was nothing unfair or unreasonable in the Tribunal doing so. It was expressly empowered by s 362B of the Act to proceed as it did.
Further, the Court does not consider that the Tribunal acted unreasonably in not exercising its discretion to adjourn the hearing pursuant to s 363(1)(b) of the Act.
A copy of the Tribunal’s case notes indicates that two text messages were sent to the applicant to remind him of the hearing (on 12 January 2018 and 18 January 2018) (CB 53). The applicant now says that he did not receive those text messages.
There is no evidence before the Court to suggest that the text messages failed or that the Tribunal had any reason to believe that the applicant did not receive them. The Tribunal used the phone number provided by the applicant (CB 36 and CB 53). While no phone calls were made to the applicant on the day of the Tribunal hearing, in circumstances where ss 360 and 360A of the Act were complied with and the hearing invitation sent to the applicant was valid, the Tribunal was under no further obligation to consider if there was any other way to notify the applicant of the hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39] per Spender, French and Cowdroy JJ (in relation to ss 425 and 425A of the Act).
In the circumstances of this matter, it cannot be said that the Tribunal acted unfairly or unreasonably in proceeding as it did or by not adjourning the hearing to a later date.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
2. I felt the decision is not fair to me.
The applicant has not identified why he believes that the decision was “not fair”.
Insofar as the applicant suggests that the Tribunal failed to adhere to its broad procedural fairness obligations, the Court disagrees.
The Court notes that, in this matter:
(a)the applicant was invited to appear at a hearing before the Tribunal to give evidence and present arguments (CB 40-52): s 360 of the Act;
(b)the applicant failed to appear at that hearing (and did not seek an adjournment or contact the Tribunal to advise that he was unable to attend) (CB 54-56);
(c)as outlined above in relation to ground 1, once the applicant failed to attend the hearing, the Tribunal was empowered by s 362B of the Act to proceed to make a decision in the matter without inviting the applicant to attend any further hearing;
(d)there is no evidence before the Court to suggest that the Tribunal was biased or displayed any prejudgment;
(e)in circumstances where the applicant did not provide any material to the Tribunal in support of his application or engage with the Tribunal in any meaningful way, the Tribunal made its decision based on the limited evidence before it (as it was legislatively authorised to do); and
(f)based on the limited information before it, the Tribunal made findings that were entirely open to it (as was the Tribunal’s decision to proceed to decide the matter rather than adjourn the matter to a later date).
The Court is satisfied that the Tribunal complied with its procedural fairness obligations and no error arises in relation to ground 2.
Ground 3
Ground 3 states:
3. I want to continue my study in Australia.
By “ground 3”, the applicant simply states that he wishes to remain in Australia and continue his studies. Unfortunately, this does not raise any issue of jurisdictional error of the sort that this Court can address.
Ground 3 is, accordingly, dismissed.
Other
In oral submissions to the Court, the applicant stressed that he was, in fact, enrolled in a course of study and, in that regard, gave the Court his student number and the name of the relevant educational institution.
There is no evidence before the Court that any evidence of this sort was before the Tribunal or that the Tribunal had any reason to believe that it was forthcoming.
The Court cannot engage in an impermissible merits review and assess material that was not before the Tribunal at the relevant time. That, regrettably, is what the applicant now seeks.
CONCLUSION
The application for judicial review (filed by the applicant on 23 February 2022) fails to identify any jurisdictional error. The Court is otherwise unable to identify any error on the part of the Tribunal.
The application (as amended) is, accordingly, dismissed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 17 August 2022
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