Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1067
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1067
File number(s): ADG 240 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 21 December 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of India – Student Temporary (class TU) Subclass 500 visa – visa application refused – whether enrolled in a course of study at time of decision – whether decision not to adjourn unreasonable - whether jurisdictional error Legislation: Education Services for Overseas Students Act 2000 (Cth) Pt 2, Div 3
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Migration Act 1958 (Cth) ss 360, 474, 476
Migration Regulations 1994 (Cth) reg 1.03, Sch 2, cll 500.111, 500.211, 500.212
Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 107
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Montero v Minister for Immigration and Border Protection [2014] FCAFC 170; (2014) 315 ALR 222
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Wahab v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 181
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 3 November 2022 Date of hearing: 3 November 2022 Place: Perth Applicants: First Applicant in person by phone via CISCO Webex and on behalf of the Second Applicant Counsel for the First Respondent: Ms C Calabrese by phone via CISCO Webex Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs , ORDERS
ADG 240 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARDEEP KAUR
First Applicant
KARAMDEEP SINGH GREWAL
Second Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
21 DECEMBER 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read "Minister for Immigration, Citizenship and Multicultural Affairs".
2.The originating application filed on 4 July 2019 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 LUCEV
Introduction
Before the Court is an application for judicial review filed on 4 July 2019 (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”), by the applicants, Ms Hardeep Kaur (“Ms Kaur”) and Mr Karamdeep Singh Grewal (“Mr Grewal”). Mr Grewal is Ms Kaur’s husband. For convenience, the Court will only refer to Ms Kaur in the remainder of these Reasons for Judgment as Mr Grewal’s visa status is dependent upon Ms Kaur’s visa status.
The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made orally on 13 June 2019 and in writing to Ms Kaur on 18 June 2019. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Home Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) affirming the Delegate’s Decision not to grant Ms Kaur a Student Temporary (class TU) subclass 500 visa (“Student Visa”).
The Tribunal Decision appears in the Court Book (“CB”) at 113-116.
Background
The relevant background to the matter is as follows:
(a)Ms Kaur is a citizen of India and arrived in Australia in 2008 on a Student Visa: CB 114 at [8];
(b)the Student Visa application the subject of this Judicial Review Application was lodged on 22 December 2016: CB 10-29;
(c)on 25 May 2017 the Delegate’s Decision was to refuse Ms Kaur’s application for a Student Visa: CB 75-85;
(d)on 10 June 2017 Ms Kaur applied to the Tribunal for review of the Delegate’s Decision: CB 86-87;
(e)on 17 May 2019 the Tribunal invited Ms Kaur to attend a hearing before the Tribunal on 13 June 2019 (“Tribunal Hearing”), to provide Ms Kaur with the opportunity to give evidence and present arguments relating to the issues arising in Ms Kaur’s review application to the Tribunal: CB 93-95;
(f)Ms Kaur attended the Tribunal Hearing on 13 June 2019 and was represented by a migration agent. The Tribunal Hearing took just under 30 minutes: CB 107-109;
(g)at the Tribunal Hearing an oral decision was made affirming the Delegate’s Decision not to grant Ms Kaur a Student Visa; and
(h)on 18 June 2019 the Tribunal Decision was put into a written statement: CB 113-116, which was provided to Ms Kaur on 19 June 2019: CB 110-116.
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)set out the background to the review: CB 114 at [1]-[2];
(b)identified that the issue before the Delegate was whether Ms Kaur met the genuine temporary entrant criteria in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 114 at [7];
(c)distinguished that the issue presently before the Tribunal was whether, at the time of the Tribunal Decision, Ms Kaur met the enrolment requirements for a Student Visa: CB 114 at [7];
(d)noted that Ms Kaur arrived in Australia in 2008 and at the time of the Tribunal Decision had been residing in Australia for around 11 years. During this time Ms Kaur had studied: CB 114 at [8]:
(i)a course in English;
(ii)a Diploma of Community Welfare;
(iii)a Certificate IV in Business;
(iv)an Advanced Diploma of Management;
(v)a Diploma of Marketing; and
(vi)an Advanced Diploma of Marketing;
(e)identified that for the purpose of this Student Visa application Ms Kaur intended to study a Graduate Diploma of Strategic Leadership at Ironwood College (“Graduate Course”): CB 114 at [9];
(f)accepted Ms Kaur’s evidence that at the time of the Delegate’s Decision Ms Kaur was enrolled in the Graduate Course and that Ms Kaur believed that it would take her longer than six months to complete the remaining 5 units: CB 114 at [10]-[11];
(g)noted Ms Kaur’s evidence that upon receiving the Delegate’s Decision to refuse her Student Visa, Ms Kaur immediately withdrew from the Graduate Course as she was upset by the refusal and was confused as to what would be the best course of action to take. Ms Kaur decided that she would wait to re-enrol in the Graduate Course while her application for review of the Delegate’s Decision was being determined. Ms Kaur did not complete any study in the meantime: CB 115 at [12]-[15];
(h)accepted that Ms Kaur was not currently studying and was not enrolled in any course at the time of the Tribunal Decision: CB 115 at [16]-[17];
(i)noted that Ms Kaur:
(i)agreed that there had been ample time for her to complete the Graduate Course between the time of the Delegate’s Decision and the Tribunal Hearing: CB 115 at [18]; and
(ii)stated that she was too upset to study for more than a year after the Delegate’s Decision: CB 115 at [19];
(j)noted Ms Kaur’s evidence that she was no longer too upset to study, but now did not want to begin studying until she had obtained her Student Visa: CB 115 at [20];
(k)said that it had explained to Ms Kaur that:
(i)in order for her receive a Student Visa, one of the conditions required Ms Kaur to be enrolled in a relevant course at the time of the Tribunal Decision; and
(ii)although the Delegate’s Decision was based on a failure to meet the criteria set out in cl 500.212 of Sch 2 to the Migration Regulations, as Ms Kaur was now not enrolled in a relevant course of study, the Tribunal would base its decision on that basis instead: CB 115 at [21]-[22];
(l)noted that it had offered Ms Kaur a short break to speak to her representative, and that upon reconvening Ms Kaur:
(i)advised the Tribunal that she had been advised previously by her representative to enrol again, however, due to Ms Kaur feeling upset, she did not re-enrol and her study was to finish in six months: CB 115 at [23]-[24]; and
(ii)stated that she could arrange enrolment in one day: CB 115 at [25];
(m)noted that Ms Kaur had sufficient time prior to the Tribunal Hearing to enrol in a course of study and that Ms Kaur had cancelled her enrolment around two years prior to the Tribunal Hearing and could have enrolled in this time, and that Ms Kaur acknowledged this fact and that her representative had advised her to enrol but that she had not taken that advice: CB 115 at [26];
(n)had regard to the alternatives contained in cl 500.211(b)-(d) of Sch 2 to the Migration Regulations, but noted that these alternatives did not apply to Ms Kaur’s circumstances: CB 115 at [27]-[28];
(o)accepted Ms Kaur’s evidence that she was not enrolled in any study or any “course of study” for the purposes of cl 500.211(a) of Sch 2 to the Migration Regulations: CB 115 at [29]; and
(p)affirmed the Delegate’s Decision not to grant Ms Kaur a Student Visa: CB 116 at [30]-[33].
Judicial Review Application
Litigation History
The Judicial Review Application was filed in the Adelaide Registry of this Court (then the Federal Circuit Court of Australia) on 4 July 2019. Given that more than three years have passed since then it is appropriate to set out the litigation history of the matter, which is as follows:
(a)on 15 August 2019 a Registrar of this Court made consent orders listing the matter for a directions hearing on 18 June 2021 and programming the matter for final hearing on a date to be advised;
(b)on 3 January 2020 the parties were sent a Notice of Adjournment from the Adelaide Registry of this Court advising that the directions hearing on 18 June 2021 had been vacated and was adjourned to a date to be fixed;
(c)in early May 2022 the matter was docketed to the presiding Judge in the Perth Registry;
(d)on 18 May 2022 the parties were notified of a directions hearing before the presiding Judge on 24 May 2022;
(e)at the directions hearing on 24 May 2022 there was no appearance by Ms Kaur, and orders (“May 2022 Orders”) were made adjourning the directions hearing to a further directions hearing on 15 June 2022 at 12.30pm AWST/2.00pm ACST and noting that the matter may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) if Ms Kaur did not appear at the adjourned directions hearing on 15 June 2022;
(f)on 15 June 2022 the parties attended the adjourned directions hearing where orders (“June 2022 Orders”) were made:
(i)for Ms Kaur to file and serve any further amended originating application, further affidavits, and an outline of submissions by 26 September 2022;
(ii)for the Minister to file and serve any amended response, affidavits in reply, and an outline of submissions by 10 October 2022; and
(iii)programming the matter for hearing by videolink on 3 November 2022 at 11.00am AWST/1.30pm ACDT before Judge Lucev,
and noting that the matter may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the GFL Rules if Ms Kaur did not appear at the final hearing;
(g)on 15 June 2022 the Chambers of the presiding Judge emailed the parties a copy of the June 2022 Orders and a Notice of Listing advising that the matter was listed for final hearing by videoconference on 3 November 2022;
(h)Ms Kaur filed no submissions nor other documents pursuant to the June 2022 Order; and
(i)on 29 September 2022 the Minister filed an outline of submissions pursuant to the June 2022 Orders.
Grounds
The Judicial Review Application contained the following 2 grounds (reproduced unaltered):
1. Administrative Appeal Tribunal made Jurisdictional Error by not considering my previous study and progression in my study. Previously I have done Diploma of Community Welfare, a certificate 4 in Business, an Advanced Diploma of Management, a Diploma of Marketing, and an Advanced Diploma of Marketing and now I was perusing Graduate Diploma of Strategic Leadership at Ironwood College, Adelaide.
2. Administrative Appeal Tribunal made Jurisdictional Error by not considering our social and economic circumstances in my home country. Our son, parents and siblings are living in our home country. We have enough finances to settle in our home country.
Ms Kaur’s Submissions
Ms Kaur did not file written submissions or other documents in support of her Judicial Review Application: see [6(h) above].
In oral submissions at hearing - at Transcript, p 3- Ms Kaur submitted that she:
(a)“did the courses on proper way”; and
(b)she still had six to seven units left in order to complete her studies and requested the Court grant her the Student Visa (notwithstanding that the Court had previously and then further explained to her that it was not the Court’s role to grant or not grant her the Student Visa).
Minister’s Submissions
The Minister submitted that:
(a)the grounds raised by Ms Kaur complain that the Tribunal erred by failing to consider relevant considerations about the Ms Kaur’s circumstances as a genuine temporary student;
(b)Ms Kaur had misconceived the reasons set out in the Tribunal Decision. The Tribunal concluded that Ms Kaur did not meet cl 500.211 of Sch 2 to the Migration Regulations at the time of Tribunal Decision and it was therefore not required to consider the other visa criteria, such as the genuine temporary entrant criterion or the consequences of a refusal to grant the Student Visa;
(c)section 360(1) of the Migration Act requires that the Tribunal must invite Ms Kaur to appear before it to give evidence and present arguments relating to the issues arising in relation to the Delegate’s Decision and that Ms Kaur was given notice of the dispositive issue at the hearing, and given a chance to address this issue before the Tribunal Decision was made: CB 115 at [21]-[22] and [26];
(d)in response to the Tribunal’s questions in relation to enrolment, Ms Kaur gave evidence that she was not currently enrolled: CB 115 at [16] and [26]; and
(e)once the Tribunal found that Ms Kaur was not enrolled in a registered course of study, it was bound to affirm the Delegate’s Decision and had no discretion to waive this mandatory enrolment criteria: citing Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 107 at [45] per Griffiths, White and Bromwich JJ.
Requirement for jurisdictional error
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Consideration - grounds 1 and 2
It is unnecessary to address the grounds of the Judicial Review Application individually. Ms Kaur asserts that the Tribunal erred by not considering her previous study and progression in her study. Ms Kaur claims further that the Tribunal did not consider her social and economic circumstances in her home country. Those grounds are not relevant to the criteria to be applied at the time of the Tribunal Decision which were as follows:
500.2--Primary criteria
Note: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
Clause 500.211(a) of Sch 2 to the Migration Regulations therefore relevantly required Ms Kaur to be “enrolled in a course of study” at the time of the Tribunal Decision. “Course of study” is relevantly defined in cl 500.111 of Sch 2 to the Migration Regulations as a “full-time registered course”. “Registered course” is defined in reg 1.03 of the Migration Regulations as a course of education or training provided by an institution, body or person that is registered under Div 3 of Pt 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students.
Ms Kaur gave evidence at the Tribunal Hearing that she was not then enrolled in a course of study: CB 115 at [16]. Ms Kaur therefore did not meet the relevant criteria under cl 500.211(a) of Sch 2 of the Migration Regulations at the time of the Tribunal Decision. It follows that the Tribunal did not make a jurisdictional error in determining that:
(a)Ms Kaur was not enrolled in any course of study at the time of the Tribunal Decision;
(b)Ms Kaur did not meet the criteria for the grant of the Student Visa; and
(c)the Delegate’s Decision should be affirmed.
Jurisdictional error otherwise
The Court is cognisant that Ms Kaur was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev.
At hearing the Court queried - at Transcript, p 4 - whether the Tribunal Decision might be legally unreasonable because there had been no adjournment to allow Ms Kaur the opportunity to enrol when she said that she could arrange an enrolment in one day: CB 115 at [25]. The Minister submitted - at Transcript, p 4 - that there was no unreasonableness in not adjourning the Tribunal Hearing in circumstances where Ms Kaur had:
(a)had ample time to enrol in a course; and
(b)been advised by her representative to enrol in a course, but had not done so.
In certain circumstances legal unreasonableness, may constitute jurisdictional error: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [63]-[76] per French CJ, Hayne, Kiefel, Bell and Gageler JJ. Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J.
The relevant principles in relation to legal unreasonableness are conveniently summarised by the Federal Court in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g)There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h)The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i)It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
The Tribunal plainly considered Ms Kaur’s statement that she could arrange an enrolment in one day, observing at CB 115 at [26] that:
(a)Ms Kaur had had “ample time to enrol [in a course] before this hearing”;
(b)Ms Kaur had cancelled her enrolment in the Graduate Course about two years prior to the Tribunal Hearing, and could have enrolled in a course in that time, a fact that Ms Kaur acknowledged; and
(c)Ms Kaur’s representative had advised her to enrol in a course but she had not taken that advice.
The cancellation of enrolment by Ms Kaur in the Graduate Course, referred to at [19(b)] above, must also be considered in light of the Tribunal’s earlier undisputed finding that Ms Kaur immediately withdrew from the Graduate Course following the Delegate’s Decision: see [5(g)] above, and albeit that for some time she had no longer been too upset to study, she decided to await the outcome of her Student Visa application: see [5(j)] above.
The Court notes that there was no corroborating evidence that Ms Kaur could arrange an enrolment within one day.
In making the decision not to adjourn the Tribunal Hearing the Tribunal was obviously aware of the matters set out at [19]-[20] above which were relevant to its consideration as to whether or not to adjourn the Tribunal Hearing. In particular it is relevant that Ms Kaur chose to withdraw from her studies, and was advised by her own representative of the need to enrol in a course but chose not to. The Court also notes that it was Ms Kaur’s responsibility to be aware of the conditions attaching to the Student Visa: Montero v Minister for Immigration and Border Protection [2014] FCAFC 170; (2014) 315 ALR 222 at [23] per Flick J; see also Wahab v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 181 at [42] per Judge Kendall, a matter of which it can be inferred the Tribunal would have been well aware. Further, and although there did not need to be, it is not evident that there was any actual request by Ms Kaur, who was represented before the Tribunal, for an adjournment to allow for Ms Kaur to make further enquiries concerning her enrolment.
The fact that a differently constituted Tribunal might have made a different decision as to whether or not to adjourn the Tribunal Hearing is, in the circumstances, immaterial. If probative evidence can give rise to different processes of reasoning and if reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be unreasonable, simply because one conclusion has been preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [35] per Gummow ACJ, Heydon, Crennan, Kiefel and Bell JJ. Having regard to the matters referred to above it was open to, and entirely reasonable for, the Tribunal to decide not to adjourn the Tribunal Hearing on the basis of Ms Kaur’s uncorroborated statement that she could arrange an enrolment in a day (which may be contrasted, for example, with Li where there was a skills assessment awaiting finalisation: Li at [3] per French CJ). Alternatively, in the circumstances set out above, the decision by the Tribunal not to adjourn was not so unreasonable as to constitute a failure to review: Li at [100]-[102] per Gageler J; Pandey at [41(h)] per Wigney J, nor was it in any sense arbitrary, capricious or plainly unjust: Li at [28] per French CJ and [110] per Gageler J; Pandey at [41(c)] per Wigney J.
It follows from the above that the Tribunal Decision was not vitiated by jurisdictional error by reason of legal unreasonableness.
Otherwise, in the Court’s view, there is nothing in the materials before it which indicates that the Tribunal made a jurisdictional error in the Tribunal Decision.
Conclusion and Orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application filed on 4 July 2019.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 21 December 2022
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