Ghaffar v Minister for Immigration & Anor (No.2)

The applicant, a citizen of Pakistan, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his Student (Subclass 573) visa application. The applicant had applied for a further student visa after his initial visa expired, but the delegate refused the application due to concerns about his ability to meet the genuine temporary entrant criterion and satisfactory course progress. The applicant then applied to the Tribunal for a review of this decision.

The primary legal issue before the Federal Circuit Court was whether the applicant's explanation for his failure to attend a rescheduled hearing before the Tribunal was satisfactory, and consequently, whether the Tribunal erred in proceeding to make a decision on the review without further action or dismissing the application. The applicant had requested two adjournments, citing illness, but the Tribunal refused the second request, finding the medical certificate insufficient and that the applicant had not demonstrated why he could not participate in a telephone hearing.

Emmett J held that the Tribunal did not commit jurisdictional error. The Court reasoned that the Tribunal was entitled to refuse the second adjournment request given the lack of detail in the medical certificate and the applicant's failure to explain how his alleged illness would prevent him from participating in a telephone hearing. The Court noted that the applicant had been repeatedly advised of the importance of providing a current certificate of enrolment and that he failed to do so. In these circumstances, the Tribunal exercised its discretion under section 362B of the Migration Act 1958 (Cth) to make a decision on the review without further action, finding that the applicant could not satisfy the requirements for a student visa, particularly the need for a confirmation of enrolment.