Kanyan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, an Indian citizen, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the delegate's refusal to grant him a Student visa. The applicant had applied for a Student visa proposing to study a Bachelor of Tourism and Hospitality Management. The delegate initially refused the visa on the grounds that the applicant was not a genuine applicant for entry and stay as a student. The applicant sought review of this decision by the AAT.

The primary legal issues before the Court were whether the AAT constructively failed to exercise its jurisdiction or acted with procedural unfairness, and whether the AAT failed to exercise its jurisdiction by not reviewing the decision in relation to clause 500.212 of the Migration Regulations 1994 (Cth) and by not obtaining meaningful consent from the applicant to decide the review without a hearing. The applicant also contended that the AAT was required to invite him to a hearing, despite his consent to a decision on the papers, and that his obligations under section 359A of the Migration Act 1958 (Cth) were not enlivened by the information he provided.

Street J found that the AAT did not err in deciding the application on the papers, as the applicant had expressly consented to the Tribunal deciding the review without a hearing. The Court held that the AAT was entitled to proceed on the materials before it, and that the applicant's consent meant the Tribunal no longer had the power to permit an oral hearing. Furthermore, the Court determined that the AAT's obligations under section 359A were not enlivened by the applicant's response to the invitation for information, particularly as the applicant himself confirmed he was not enrolled in a registered course. The Court also found that the applicant was adequately notified that satisfaction of clause 500.211 (enrolment in a registered course) was an issue on review, and that his consent to a hearing-less decision was effective.

The application for judicial review was dismissed.