KOLAN v Minister for Immigration

[2016] FCCA 341

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOLAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 341

Catchwords:
MIGRATION – Application for student visa – whether the applicant was denied procedural fairness because of the conduct by the Tribunal Member during the hearing – whether applicant denied opportunity to give evidence and present arguments – whether Tribunal’s refusal to grant an adjournment was unreasonable in a legal sense – whether the Tribunal decided the review on the basis of the class of Indian students  studying in the vocational education and training sector without having regard to the applicant’s personal circumstances – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.347, 348, 349, 360, 363

Migration Regulations 1994 (Cth), cl.572.222 of sch.2, cl.572.223 of sch.2, cl.572.231 of sch.2

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Border Protection v Pandey and Ors [2014] FCA 640
Minister for Immigration and Citizenship v MZXPA [2008] FCA 185
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZLUD v Minister for Immigration and Citizenship [2009] FCA 549
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Applicant: ANIRUDH REDDY KOLAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1654 of 2014

Judgment of: Judge Jones

Hearing date: 7 October 2015

Date of Last Submission: 7 October 2015

Delivered at: Melbourne

Delivered on: 19 February 2016

REPRESENTATION

Solicitors for the Applicant: Self-Represented

Counsel for the Respondents: Ms Gangemi

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.

2. The application for judicial review filed on 19 November 2014 be dismissed.

3. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1654 of 2014

ANIRUDH REDDY KOLAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This decision concerns an application for judicial review of a decision of the (then) Migration Review Tribunal (“the Tribunal”) dated 2 July 2014, affirming a decision of a delegate of the (then) Minister for Immigration and Citizenship dated 12 December 2011, refusing to grant the Applicant a Student (Temporary) (Class TU) visa (“the visa”).

Background

1. The Applicant is a 29 year old male citizen of India (CB 1), who first arrived in Australia on 1 August 2009 as the holder of a Student visa (CB 57, [14]). On 5 October 2011, the Applicant applied for a further Student visa (CB 57 at [14]). Following the refusal to grant the visa, the Applicant applied to the Tribunal for review of the delegate’s decision, and on 1 August 2013, the Tribunal affirmed the decision under review (“the first Tribunal’s decision”) (CB 54-59).

2. On 29 August 2013, the Applicant applied to this Court for judicial review of the first Tribunal’s decision. On 20 March 2014, the Federal Circuit Court set aside the first Tribunal’s decision, by reason of a reasonable apprehension of bias on the part of the first Tribunal, and remitted the matter for reconsideration (CB 60-61).

3. On 2 July 2014, the Applicant appeared before a differently constituted Tribunal to give evidence and present arguments. At the end of the hearing, the Tribunal gave an oral decision affirming the delegate’s decision on the basis that the Applicant did not satisfy the requirements of cl.572.222 of sch.2 to the Migration Regulations 1994 (“the Regulations”) (CB 75-76).

Tribunal Decision

1. At the hearing, the Applicant was informed that he was required to satisfy two criteria for the grant of this subclass 572 visa. Firstly, the Applicant was required to satisfy the Tribunal that he was currently enrolled in, or the subject of a current offer of enrolment in, a registered course of study: cl 572.222 of sch.2 to the Regulations. Secondly, the Applicant was required to satisfy the Tribunal that he was a genuine Applicant for entry and stay as a student: cl 572.223(2)(a)(ii) of sch.2 to the Regulations.

Clause 572.222

1. It is apparent on the face of the Decision Record, that at the time of the Tribunal decision, the Applicant was not currently enrolled in a registered course of study (CB81 at [12]). The Applicant gave evidence that he had previously been enrolled in registered courses of study which he had completed. It is also apparent that the Applicant had not provided the previously constituted Tribunal, or the present Tribunal, with documentary evidence of this study (CB 80 to 81 at [9] to [10]).

2. The Tribunal then enquired of the Applicant whether he was seeking an extension of time to submit documents. The Applicant confirmed that he was.

3. The Tribunal set out in its Decision Record, the questions the Member asked, and the responses of the Applicant, with respect to the existence or otherwise of an offer of enrolment (CB 81 at [12] to [13]):

   “12…Asked whether he has a current offer of enrolment in a registered course, the applicant stated “yes”. Asked when he obtained this offer of enrolment in a registered course, the applicant asked the Tribunal what it meant. The Tribunal noted that the applicant had indicated he was not currently enrolled in a registered course. The applicant confirmed that this was correct. Asked whether he has a current offer of enrolment in a registered course, the applicant again stated “yes” in response to this question. The Tribunal asked the applicant when he obtained this offer, noting that it intended to ask him to provide this evidence. At this point, the applicant claimed that he has not enrolled anywhere yet but he could get enrolment; he was just waiting for his hearing.

   13.    The Tribunal noted that in response to its questions the applicant had said he was not currently enrolled but he had twice told the Tribunal he has a current offer of enrolment in a registered course.  The Tribunal again noted that it intended to ask the applicant to provide that evidence as support for his claim that he has a current offer of enrolment in a registered course. Asked again when he obtained an offer of enrolment in a registered course, the applicant stated that he has not opted into any enrolment for a course. Asked whether he has an offer from a college, the applicant claimed that he was just waiting for the Tribunal. The Tribunal noted that it was starting to become concerned that the applicant may be being evasive.  Asked again whether he has approached a college and been given a letter that is an offer for him to be enrolled in a registered course of study, the applicant stated that he went to the college and met a guy, a lecturer, who told him to first go to the Tribunal and get a decision; if the Tribunal allowed him to study, this guy said he was ready to enrol him.”

4. The Tribunal then sets out a record of its questions, regarding steps the Applicant had taken to enrol in and undertake study in registered courses. The responses given by the Applicant, to the Tribunal, for an explanation of his failure to study, is recorded as being the Applicant’s belief that he could not study without a Student visa (CB 82 at [15] to [16]).

5. The Tribunal then sets out in its Decision Record, the concerns it had regarding the Applicant’s evidence, which it informed the Applicant about. The Tribunal’s observations about its experience in reviewing applications for study in the vocational and education sector, are impugned by the Applicant in his grounds for judicial review. The extract from the Decision Record is as follows (CB 82 at [17]):

   “The Tribunal noted that:

   ·   It only decides student cases and has decided hundreds of such cases, most of which involved Indian students who study in the Vocational Education and Training Sector.  It, therefore, knows a lot about that sector and the colleges that operate within it, including the Brighton Institute and Acumen College and is aware that both of these colleges readily and routinely issue CoEs to students who do not hold a student visa;

   ·   Many students whose visa applications are refused by the Department want to continue studying and, in fact, do so while they are waiting for their Tribunal decisions;

   ·   Many students attend their Tribunal hearings having continued to study whilst on a Bridging visa, as the Applicant had previously done albeit not continuously;

   ·   The applicant’s claims that the Brighton Institute was not happy to enrol him because he did not hold a visa and they told him to wait until he received his Tribunal decision, and Acumen College would not enrol him and had told him to come back when he finished at the Tribunal, were both completely at odds with the Tribunal’s knowledge and experience of those colleges and of other Indian students’ experiences with those colleges;

   ·   The Tribunal may, therefore, have difficulty accepting that both of these colleges were unwilling to give the Applicant a CoE.

Extension of Time

1. The Tribunal informed the Applicant that the first issue of concern, in deciding whether to grant an extension of time for him to provide documentation, was the fact that, although he had been asked to do so by the previously constituted Tribunal in 2013, he had not submitted any evidence of any courses that he had studied (CB 83 at [19]).

2. The Tribunal informed the Applicant that, before deciding whether to give the Applicant an extension of time to submit documentation, it would consider whether he is a genuine Applicant for entry and stay as a student (for the purposes of cl.572.223(2)(a)(ii) of sch.2 to the Regulations) as this was a relevant factor in deciding whether to grant an extension of time. (CB 83 at [19])

3. There is then set out in the Decision Record, the evidence given by the Applicant with respect to his study history (CB 83 to 85 at [21] to [30]).

4. Following the record of this discussion, the Tribunal summarised its concerns as follows (CB  86 at [32] to [33]):

   “32.  The Tribunal noted that:

   ·   The applicant’s study history in Australia caused the Tribunal concern.  He claims that he came here almost 5 years ago to study and for no other reason.  However in that time, he has only managed to complete a 1 year Certificate III in Printing & Graphic Arts and a completely unrelated course, a 6 month Advanced Diploma of Management, 3 years later.  He also started and abandoned some studies and he had several study gaps;

   ·   The applicant’s attempts to explain his study history and his study gaps, had not, thus far, alleviated the Tribunal’s concerns about whether he is a genuine applicant for entry and stay as a student or the Tribunal’s concerns about the applicant’s credibility or his study history in Australia. 

   33.    Asked whether there was anything else he wished to say about his study history in Australia before the Tribunal decided whether or not to give him an extension of time, the applicant acknowledged that he had study gaps but he wanted another opportunity because he was going through a lot of mental tensions because of the visa problems.  Asked whether he had seen an Australian psychiatrist, the applicant indicated that he had not.”

5. The Tribunal then made the following findings which were fatal to the Applicant’s application for an extension of time (CB 86 at [34]):

   ·     The applicant had been on notice for a long time that his study history was of concern, given that the delegate’s decision was made in December 2011 to refuse his application for a student visa, partially because of his concerns about the applicant’s study history in Australia and, specifically, because the applicant had a lengthy study gap in 2010/2011;

   ·     Notwithstanding this, the applicant’s study history did not improve and, it may fairly be argued, deteriorated given that the applicant had a 15 month study gap after the visa was refused and, more recently, another study gap of approximately 10 months;

   ·     The applicant had not adequately explained his study gaps or his overall study history to the Tribunal’s satisfaction and the Tribunal was inclined towards the view that the applicant was not a genuine applicant for entry and stay as a student;

   ·     On that basis, the Tribunal had decided to refuse the applicant’s request for an extension of time to submit documentation because it did not wish to falsely raise the applicant’s hopes of a favourable outcome by granting him an extension of time to obtain a CoE and other documents.

6. The Tribunal informed the Applicant at the hearing, that it proposed to decide the review application that day. The Applicant was asked whether there was any reason why he considered the Tribunal should not make a decision on that day. The Applicant responded, asking for an extension of time, one more chance to prove himself and said that he is a genuine student by studying without any study gap problems. The Tribunal refused this request, on the basis that the Applicant had already had a long time to establish that he is a genuine Applicant for entry and stay as a student, but had not done so (CB 86 at [35]).

7. The Tribunal went on to find that it was not satisfied that the Applicant was a genuine Applicant for entry and stay pursuant to cl.572.223(2)(a)(ii) of sch.2 to the Regulations, and refused the Applicant’s request for additional time to submit documentation (CB 87 at [38]).

8. On the basis of the evidence before it, the Tribunal found that the Applicant did not satisfy cl.572.222(1) of sch.2 to the Regulations, as he had not given the Minister a Certificate of Enrolment (CB 87 at [39]). As there was no evidence that the Applicant satisfied the requirements for any other subclass of visa within the same visa class, the decision under review was affirmed (CB 87 at [40]-[41]).

Judicial review

1. The Applicant has specified three grounds of review in his application filed on 14 August 2014. The first ground is that the Tribunal failed to give the Applicant procedural fairness and natural justice. The second ground is that the Tribunal failed to conduct a review, and the third ground is that the Tribunal erred in not considering the power under ss. 348 and 349 of the Migration Act 1958 (“the Act”). Each ground contains various particulars which in many cases overlap.

2. At the proceedings before the Court, as the Applicant was self-represented, I explained to him the nature of judicial review proceedings and its difference to merit review proceedings conducted by the Tribunal. I explained that the function of the Court is to examine the decision of the Tribunal and decide whether there had been jurisdictional error, or, as I put it to him, “serious legal mistake.”

3. It should be noted that the material before the Court included a Supplementary Court Book, provided by the Minister, which contains a transcript of the Tribunal hearing (SCB).

Ground One

1. The Applicant’s first ground of review is as follows:

   The Tribunal failed to give the Applicant procedural fairness and natural justice.

   Particulars

   a.    a.  The Tribunal member was “interrogating” the applicant and making remarks that most Indians do not normally hold a valid CoE was unreasonable and wrong in law.

   b.    b.  The Tribunal has failed to give an opportunity to the applicant to be heard in accordance with the regulations.

   c.     c.  The Tribunal refused to grant an adjournment to allow the applicant to produce documents.

   d. d. The Tribunal failed to give or offer the applicant an opportunity to provide evidence that he was in compliance with the Regulations and instead was asking the wrong questions.

   e.    e.  The Tribunal made a mistake in law by finding that the applicant was not ‘enrolled in” a course.

   f.   f.   The Tribunal made a mistake by referring to cases brought by Indians and generalising.

   g.    g.  The Tribunal failed to accord the applicant procedural fairness.

2. I asked the Applicant to explain to the Court why he said that the Tribunal failed to give him procedural fairness and natural justice.

3. He gave the following reasons:

   a)The Tribunal Member did not allow him to explain the "whole scenario." Rather, she asked a series of questions which he was expected to answer. He said the Tribunal kept changing the question before he completed his answers. He believed this way of conducting the hearing did not enable him to present all the evidence;

   b)The Tribunal Member did not grant him an extension of time to provide relevant documents, such as academic transcripts of his previous study;

   c)He did not tell the Tribunal Member he was not enrolled in a course of study. He later clarified in his submission that he had not given the Tribunal evidence of his enrolment;

   d)The Tribunal Member made comments about what most Indian students do without considering his particular circumstances.

4. It is appropriate to first dispense with, what appears to be an ongoing issue for the Applicant; namely, whether at the time of the Tribunal decision he was enrolled in a course of study or he was subject of a current offer of enrolment. The Tribunal found that the Applicant was not enrolled in a course of study and there was no offer of enrolment at the time of its decision. Particular e) of Ground One asserts that this finding was a mistake in law.

5. Turning to the SCB, at T4 the Member commences by referring to the requirements of cl.572.231 of sch.2 to the Regulations. She points out that, when the Applicant was invited to the hearing, he was invited to provide all documents. At line 17, she stated:

   “We haven't received any documents from you and there's no evidence before me that you're currently enrolled in or the subject of a current offer of enrolment in a registered course of study.”

6. The Applicant then referred to previous courses he had enrolled in 2009 to 2011.

7. There then followed the following exchange (T7 to T11):

   MS HUBBLE:   Are you currently enrolled in a registered course?

   MR KOLAN:   No.

   MS HUBBLE:   No.  Do you have a current offer of enrolment in a registered course?

   MR KOLAN:   Yes.

   MS HUBBLE:   And what - when did you get that offer of enrolment in a registered course?

   MR KOLAN:   I mean, I didn't get (indistinct) what - what do you mean like?

   MS HUBBLE:   What I'm asking is I've asked you if you're enrolled in a registered course.

   MR KOLAN:   At the moment - - -

   MS HUBBLE:   And you said, no, you're not.

   MR KOLAN:   No.  No.

   MS HUBBLE:   Do you have a current offer to be enrolled in a registered course?

   MR KOLAN:   Yes.

   MS HUBBLE:   Okay.  When did you obtain that, because I'm going to ask you to provide that evidence.

   MR KOLAN:   I mean, I think (indistinct)

   MS HUBBLE:   No.  I know.

   MR KOLAN:   But I didn't get the enrolment, I was just waiting for the (indistinct)

   MS HUBBLE:   No, no.  No, no.

   MR KOLAN:   Yes.

   MS HUBBLE:   Please listen to the question.

   MR KOLAN:   Yes.

   MS HUBBLE:   I've asked you if you're enrolled and you've said you're not.  I've asked you do you have a current offer of enrolment in a registered course and twice you have told me that you do, so I'm going to ask you to provide that evidence as proof that you do have a current offer of enrolment in a registered course, and I'm asking you when did you obtain an offer of enrolment in a registered course?

   MR KOLAN:   I haven't (indistinct) course.

   MS HUBBLE:   You don't have an offer from the college?

   MR KOLAN:   I mean, I was just waiting for them.  What do you (indistinct)

   MS HUBBLE:   I'm asking you - please try to answer the question.  I think there's a concern in my mind that you're - I know you're smiling at me but I'm actually starting to be concerned that you're being evasive.  So please try to answer the question because I'm concerned about what's happening here.  I'll ask you again.

   MR KOLAN:   Yes.

   MS HUBBLE:   It's not a difficult question. 

   MR KOLAN:   I'm sorry - I'm really sorry that I can't understand.

   MS HUBBLE:   All right.

   MR KOLAN:   Like, I'm not trying to (indistinct)

   MS HUBBLE:   All right.  Just try to focus on the question.  You've told me that you're not currently enrolled in a course of study.

   MR KOLAN:   Yes, that's true.

   MS HUBBLE:   Have you approached a college and been given a letter that is an offer for you to be enrolled in a course of study?

   MR KOLAN:   Yes.  I understand your question now (indistinct)

   MS HUBBLE:   Well, it's a very simple question.

   MR KOLAN:   But I was confused with it before.  I thought (indistinct)

   MS HUBBLE:   You were confused.

   MR KOLAN:   Yes.

   MS HUBBLE:   Okay.  all right.

   MR KOLAN:   But, yes, I do now, so - - -

   MS HUBBLE:   Yes.

   MR KOLAN:   I went to the college and they said just go to the MRT, just go to the decision.  I met with the - I met the guy who's a lecturer in the college and he said go to the MRT (indistinct).  Once you wait for them if they allow you to study I am ready to (indistinct)

   MS HUBBLE:   Okay.  Did you say to any college, "Please enrol me.  I'd like to be enrolled in a registered course"?

   MR KOLAN:   Yes.

   MS HUBBLE:   And did anyone say, "Yes, we're prepared to", or did someone say, no?

   MR KOLAN:   Well, couple of college - I mean, there was a college - I don't remember the name but (indistinct)

   MS HUBBLE:   You don't remember the name of the college?

   MR KOLAN:   No, I remembered the name - the first college it was Brighton Institute. He said he was not really - he was not really - I mean, interested - he was not really happy to give me the enrolment but the (indistinct)

   MS HUBBLE:   Why is that?

   MR KOLAN:   I'm not sure about that because he asked me which visa are you in.  I just - I told him that I'm just waiting for a Migration hearing on 2 July and that college they said - - -

   MS HUBBLE:   So, slow down, please.  What course did you ask him about at Brighton Institute?

   MR KOLAN:   The course which I - which I was enrolled before (indistinct)

   MS HUBBLE:   No, no.  You said I approached Brighton Institute.

   MR KOLAN:   Yes.

   MS HUBBLE:   But it is not really happy to give me enrolment.

   MR KOLAN:   Yes.

   MS HUBBLE:   What was the course that you were asking about?

   MR KOLAN:   Certificate IV automotive.

   MS HUBBLE:   Okay.  And what was his name?

   MR KOLAN:   (indistinct)

   MS HUBBLE:   Okay.  And when did you approach him?

   MR KOLAN:   Maybe a month ago.

   MS HUBBLE:   And he said, "I'm not going to give you enrolment."?

   MR KOLAN:   He said like (indistinct) was not really interested.  He even said that he's (indistinct) but he said just wait for the decision because you don't - you don't hold any visa.

   MS HUBBLE:   Okay.  Did you approach any other college?

   MR KOLAN:   Yes.

   MS HUBBLE:   And what was that college?

   MR KOLAN:   Acumen College.

   MS HUBBLE:   Pardon.

   MR KOLAN:   Acumen College.

   MS HUBBLE:   Acumen College.

   MR KOLAN:   Yes.

   MS HUBBLE:   And what course did you want to study there?

   MR KOLAN:   Same course (indistinct)

   MS HUBBLE:   Certificate IV in Automotive.

   MR KOLAN:   Yes.

   MS HUBBLE:   And did you ask to be enrolled?

   MR KOLAN:   Yes.  They said come back when you’re finished your MRT decision and we’re ready to give you the CoE (indistinct)

   MS HUBBLE:   Sorry?

   MR KOLAN:   He said he's going to (indistinct) offer.

   MS HUBBLE:   Okay.

   MR KOLAN:   Offer it.

   MS HUBBLE:   So he wouldn't give it to you before?

   MR KOLAN:   No.

   MS HUBBLE:   He said, "No, I'm not giving it to you."  Okay.  Any other colleges?

   MR KOLAN:   No.

1. I am satisfied, having regard to the evidence given by the Applicant in that exchange, that at the time of the Tribunal’s decision, the Applicant was not enrolled in a registered course of study, nor was he subject to a current offer of enrolment for a registered course of study.

2. The Applicant does not expressly state that the conduct of the Tribunal member amount to apprehended bias on the Member’s part. His argument, as I apprehend it, is that the questioning foreclosed his opportunity to give evidence and present arguments. This is what it appears particulars a), b), d), f) and g) to Ground one, as well as particulars e) and f) of Ground 2, are directed to.

3. In SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship[2013] FCAFC 80 (“SZRUI”), the Full Court considered in detail the extent to which a robust exchange or running commentary by a Tribunal Member, can give rise to apprehended bias. Flick J (with whom the majority concurred) stated at [21]:

   A denial of procedural fairness on the part of an administrative tribunal, such as the Tribunal, may result in jurisdictional error justifying an order that a decision be set aside: cf. Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [17], [2000] HCA 57; 204 CLR 82 at 91 per Gaudron and Gummow JJ. See also: [2000] HCA 57 at [169] to [170], 204 CLR at 143 per Hayne J.

4. Although the judgment in SZRUI was concerned with the question whether the Appellant was not afforded procedural fairness, because of apprehended bias, the focus of the Court was on the interaction between the Tribunal Member and Applicant, as evidenced by a transcript of the proceedings. Many of the observations regarding the conduct of administrative decision-makers, in my opinion, are relevant to this complaint by the Applicant.  

5. Allsop CJ observed that the entitlement of an Applicant to an apparently fair and dispassionate hearing does not mean that robust, vigorous questioning is not permitted [4].

6. Flick J relevantly said at [33] to [35]:

   33.    Common to all bases upon which an argument as to a reasonable apprehension of bias is advanced for resolution is the concern of the reviewing court to ensure that a balance is struck between justice being seen to be done and the need to ensure that such arguments are not too readily accepted. A balance must be struck between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration. An initial assessment that claims lack substance may prove to be ultimately well-founded; equally, however, there remain cases where an initial assessment may prove to be ill-founded and misconceived.

   34.    Where that balance is to be struck in any given case necessarily depends upon a myriad of circumstances, including the legislative context in which a decision is made and the ability of a claimant to adduce evidence or to substantiate claims being made. In the present legislative context, those circumstances include the inquisitorial function entrusted to the Tribunal and the recurring need to resolve in many cases questions as to the credibility of the claimant.

   35.    In the circumstances of the present case it is concluded that the Appellant has established that a reasonable bystander might conclude that the Tribunal member might not be open to persuasion. A reasonable apprehension of bias, it is thus concluded, has been made out. This conclusion has been reached because:

   a.    the exchanges that occurred went well beyond a mere expression of reservation as to whether what the Tribunal member was being told should be accepted – the exchanges exposed the Tribunal member expressing a concluded view before the entirety of the hearing had even concluded that she “[did not] believe any of that” and that she “[did not] believe what you’ve told me about this Muslim girl” and that she “[did not] believe ... that you’ve been pursued by the YCL”;

   b.    the fact that those exchanges expressing a concluded view as to what the Tribunal member was saying should not be “believed” were not confined to an isolated instance but were repeated throughout the hearing;

   c.     the manner in which some of the questioning proceeded conveyed or was capable of conveying an overall assessment as to the evidence being given by the Appellant – the Appellant being told on at least two occasions not to be “silly”; and

   d.    the Appellant when asking “[w]hat else can I say” was told by the Tribunal member that she did not “know what you can say because I don’t believe ... what you’ve told me...”.

7. The Applicant complains that he was confronted with a series of questions, and I infer from this that he was not thereby permitted to present his case in an open ended fashion.

8. It must be borne in mind that the Tribunal has an inquisitorial function, which necessitates the Tribunal member engaging in questions which are directed to both the elucidation of evidence from the Applicant and the identification of possible deficiencies or weaknesses in the Applicant’s case. As the Courts have recognised, the expression of tentative views or concerns by a decision-maker regarding the Applicant’s evidence, may well be an integral part of providing the Applicant with the opportunity to deal with any deficiencies or concerns.

9. In Minister for Immigration and Citizenship v MZXPA [2008] FCA 185, Sundberg J commented on the function of the Tribunal in conducting a review. His Honour stated at [14]-[15]:

   14.    An informed and instructed hypothetical person would also know that the Tribunal is an inquisitorial body, and is not required uncritically to accept an applicant’s claims: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596. It is required under the Act, in performing its review function, to consider whether or not it is satisfied that an applicant meets the criteria for a protection visa. If not so satisfied, it must refuse to grant the visa. See Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 at [16]–[18]. The Tribunal is accordingly required to assess the probative value of evidence put before it by an applicant. Where the Tribunal perceives weaknesses in that evidence, it is entitled vigorously to test that evidence: Re Refugee Review Tribunal; Ex parte H(2001) 179 ALR 425.

   15. Accordingly, under the Act, the expression of a preliminary view, even on a critical matter, does not establish bias.

10. I have read the whole of the transcript. There is no doubt that the Tribunal Member conducted the hearing by directing a series of questions to the Applicant on matters that were relevant to her decision; such as, the existence or otherwise of evidence of enrolment or offer of enrolment in a course of registered study, the history of the Applicant’s study gaps in his study, and the reasons for that.

11. I can see no evidence that the Member prevented the Applicant from giving a full explanation to her questions. For example, when asked about the reasons for the five month gap in his study in 2011, the Applicant gave evidence that he was sick before he left for India and continued to be ill after he returned to Australia. The series of questions which follow from this evidence were merely questions to the Applicant, directed to obtaining further evidence of the nature of his illness and his medical treaters: see SCB T19 to T23.

12. It is also clear the Tribunal Member put to the Applicant her concerns regarding his evidence, its implausibility or inconsistencies. For example, in relation to the Applicant’s explanation as to why he was not currently enrolled in a course of study, there followed the following exchange (SCB at T12, line 35 to T13, line 5):

    MS HUBBLE:   I asked you did know whether you could study without a student visa and you said, no, I don't think so.

    MR KOLAN:   Yes.

    MS HUBBLE:   But you did study and you have completed the course.

    MR KOLAN:   Yes.

    MS HUBBLE:   So you know that you can study without a student visa.

    MR KOLAN:   Yes.

    MS HUBBLE:   Right.  So you've actually just changed your evidence…

13. The Tribunal Member put to the Applicant her concerns regarding his evidence in relation to his history of study as follows (SCB at T 30, line 25 to T 31, line 15):

    MS HUBBLE:   Okay.  All right.  I have to say to you, Mr Kolan, that your study history in Australia causes me great concern.  You say that you came here almost five years ago just to study and for no other reason and in that time you've managed to complete a Certificate III in Printing and Graphic, you say, which is a one-year course, and you've manage to complete a completely unrelated course, an Advanced Diploma of Management, three years later and that was a six-month course, and you started and abandoned some other studies, but you've also had several study gaps that I've identified and although you've sought to explain those gaps and you sought to explain your study history what you have said to me thus far hasn't alleviated my concerns about whether you are a genuine Applicant for entry and stay as a student.

    I have concerns about your credibility for the reasons I indicated to you earlier and you've also changed your evidence on at least one occasion during the hearing and I've got concerns about your study history.  So is there anything else that you want to say about that issue before I decide whether or not to give you an extension of time?

    MR KOLAN:   Which - which ones?

    MS HUBBLE:   Your study history.  The issues I've just been talking about.  Is there anything else you want to say about those issues before I make a decision about whether or not to give you an extension of time?

    MR KOLAN:   (indistinct) I have the study gaps.  I do agree with that and I will ask - just want to ask you for the (indistinct)  That's it.  I can only tell - - -

    MS HUBBLE:   Okay.

    MR KOLAN:   Because I was going through a lot of mental - mentally -  mental tensions because of the visa problems.

    MS HUBBLE:   Okay.  Have you seen an Australian psychiatrist or anything like that?

    MR KOLAN:   No.

14. I am satisfied that the Tribunal Member informed the Applicant of her concerns regarding his study history. He had already given evidence that he went to India in January 2011, but ceased studying in November 2010 because he was ill, he went to India for treatment of this illness (described by him as gastric problems), that by February 2011 he was quite well and returned to Australia in March 2011, but did not commence studying until August 2011 because he had health problems. The Tribunal Member fairly informed the Applicant of her concerns, and provided him with an opportunity to respond to this. He responded referring again to his health issues.

15. Having considered the transcript of the hearing before the Tribunal, I am satisfied that the Applicant was provided with an opportunity at the hearing to be heard and provide evidence.

16. The next aspect of the Applicant’s claim is the Tribunal’s reference to her experience in dealing with applications for review which involve citizens of India seeking student visas.

17. This claim is referred to in particular c) of Ground One and particular b) of Ground Two (see below).

18. The Tribunal Member’s reference to her experience in dealing with applications for review involving Indian citizens applying for the grant of student visas, follows the Applicant’s evidence that he was informed that he should wait for the decision of the Tribunal before enrolling in a course of study, and his evidence about his knowledge regarding his capacity to study without a student visa. The Tribunal Member says (SCB at T13, line 10):

    “…What you need to be aware of is I only decide student cases and I've decided hundreds and hundreds  and hundreds of them.  Most of those cases have been from students from India and most of those cases have been students from India who study in the vocational education and training sector, so I know a lot about the vocational education and training sector and I know a lot about the colleges that operate in those sectors.  I know about Acumen College and I know about the Brighton Institute.

    MR KOLAN:   Yes.

    MS HUBBLE:   And I know that they readily and routinely give CoEs to students who do not hold a student visa.  See, what you need to understand is a lot of students whose applications are refused by the Department of Immigration want to continue studying and they do continue studying while they're waiting for the Tribunal to make a decision and a lot of those students come to me for their hearings having continued to study whilst they're on a bridging visa, as you have previously done, albeit not continuously.

    So when you indicate to me that I went to the Brighton Institute and they said they're not really happy to give me enrolment and they said wait for the MRT decision and you don't hold a visa, and when you say to me I went to Acumen College and they said come back when you finish at the MRT and they wouldn’t give you enrolment that is completely at odds with my knowledge and experience of those colleges and of Indian students' experiences with those colleges.  So when you say that both of those colleges refused to give you a CoE I may have difficulty accepting that.  No response?

    MR KOLAN:   No response.  Thinking about it.

    MS HUBBLE:   All right.  Well, flowing on from that, seeing that you haven't responded, is that - that claim that you've just made raises concerns in my mind about your credibility or your believability.  So I just want to put you on notice that I've got concerns about your believability or credibility.  All right”. 

19. In this extract the Member was informing the Applicant of the following:

    a)her experience in deciding cases of students from India who study in the vocational education and training sector and her consequent knowledge about the vocational education and training sector;

    b)her particular knowledge of the two colleges the Applicant had referred to, arising from her experience as a Tribunal Member;

    c)based on her experience, her awareness that those colleges routinely give CoEs to students who do not hold a student visa;

    d)based on her experience and acquired knowledge of the sector, she had difficulty accepting the Applicants evidence that both colleges refused to give him a CoE.

20. The Tribunal member then proceeded to ask the Applicant if he had any response to this. He answered in a non-responsive way, stating that he was just thinking.

21. In my view there is nothing unremarkable about this passage. The Tribunal Member’s observations do not give rise to jurisdictional error. The Member was entitled to rely on her own knowledge or personal experience to inform her view of relevant issues, provided that the Applicant had an opportunity to address the matters raised with the Member: see SZLUD v Minister for Immigrationand Citizenship [2009] FCA 549 at [78]-[79].

22. The Tribunal Member relied on her experience as an administrative decision-maker, alerted the Applicant to her doubts about his evidence, and gave him an opportunity to respond. In my view there is nothing improper about this approach.

23. It is evident from the extract that the Tribunal was not, as the Applicant asserts in his particular a) to Ground One, “making remarks that most Indians do not normally hold a valid CoE.” Nor can it be said as is asserted in particular b) to Ground Two that the Tribunal “proceeded to make a decision by considering cases “involving Indian cases” as a starting point.” It is evident from the transcript and the Decision Record, that the Tribunal paid particular regard to the Applicant’s individual circumstances, such as his study history and his reasons for having significant gaps in that history. All the Tribunal did was to inform the Applicant, that based on her experience, which she was entitled to rely on, she was concerned with his evidence about his reasons for not engaging in study whilst on a bridging Visa.

24. The next aspect of the Applicant’s claim that he was denied procedural fairness, is that the Tribunal unreasonably refused him an extension of time in which to provide the Tribunal with relevant documentary evidence.  This claim is raised in particulars c) and g) of Ground one. This claim requires the Court to consider whether the Tribunal’s refusal to grant the Applicant an extension of time was unreasonable in a legal sense.

25. Section 363(1)(b) of the Act provides that the Tribunal may adjourn the review from time to time. The discretion in s.363(1)(b) of the Act is to be read in conjunction with s.360(1) of the Act, which provides that the Tribunal must provide the Applicant with an opportunity to give evidence and present arguments.

26. The principles relating to unreasonableness in the context of a Tribunal refusing requests for adjournments by Applicants, were helpfully summarised in Minister for Immigration and Border Protection v Pandey and Ors [2014] FCA 640 at [41], Wigney J stated:

    “The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh[2014] FCAFC 1 (Singh). The relevant principles may be summarised 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].

1. I have respectfully adopted these principles in deciding whether the decision of the Tribunal to refuse the adjournment, was legally unreasonable.

2. Having first dealt with the question as to whether the Applicant was enrolled in or subject to an offer of enrolment in a registered course of study, the Tribunal member then informed the Applicant during the hearing that she would first consider whether he was a genuine student. Towards the end of the hearing she said this to the Applicant (SCB, starting at T31, line 18):

   MS HUBBLE:   I think you've been on notice for a long time that your study history was of concern.  The delegate made a decision in December of 2011 to refuse your application for a student visa and that was partially because of the delegate's concerns about your study history in Australia and specifically because you had a lengthy study gap in 2010/2011. 

   Notwithstanding that you've been on notice since then about concerns about your study gap and you're aware that it formed the basis of one of the reasons for refusing the student visa, notwithstanding that, your study history in Australia did not improve and it may be argued fairly that, in fact, it deteriorated.  You had another study gap of a significant period of time and, in fact, the 15-month study gap after the visa was refused and you've had since another study gap, so another 10-month study gap, I think, or thereabouts, approximately 10 months, and you haven't explained those study gaps, or you haven't adequately accounted for your study history to my satisfaction and I do have concerns about you being a genuine applicant for entry and stay as a student and, in fact, I'm inclining towards the view that you're not a genuine applicant for entry and stay as a student.

   So I've decided to refuse your request for an extension of time to get further documentation because I don't wish to falsely raise your hopes of a favourable outcome.  If I give you an extension of time to go off and get a CoE you might think, oh, well, that's good news, I'm going to be successful but, ultimately, because I'm not satisfied that you're a genuine applicant for entry and stay as a student I don't wish to raise your hopes of a successful outcome when that is clearly not going to be the case on the evidence before me.

   So I'm refusing your request for an extension of time to obtain a CoE and I'm going to make a decision today on the issue of clause 572.231 because there's - well, in fact, I think I'll make the decision on the basis of clause 572.222 and that is that you haven't given a certificate of enrolment.  That was one of the pieces of evidence that you were invited to provide by the previous Tribunal Member back in July of 2013.  You were specifically asked to provide a certificate of enrolment as required by clause 572.222, and my hearing invitation asked you to provide any other additional documents that you wished to rely on by 25 June.

   So clause 572.222 says that the applicant gives to the minister a certificate of enrolment relating to the applicant undertaking a course of study, the provider of which is not a suspended education provider.  So I'm proposing to make a decision today in relation to that clause.  Is there anything else you wish to say in relation to that issue or any reason why you consider I should not make a decision today?

   MR KOLAN:   Can I just ask for the extension, just - - -

   MS HUBBLE:   For the extension.

   MR KOLAN:   I'm just asking for one more chance to prove myself as a genuine student.  I can study without any gap from now.

   MS HUBBLE:   Sorry?

   MR KOLAN:   (indistinct)

   MS HUBBLE:   One more chance to prove myself as a student.  So - you're speaking very softly - so I can study - - -

   MR KOLAN:   So I can study from - - -

   MS HUBBLE:   From now.

   MR KOLAN:   From now.

   MS HUBBLE:   Okay.  I'm going to refuse again that request.  I think you've had a long time to prove yourself as a student and I don't think you've done so.  So, I'm sorry I'm refusing that request and I've decided to affirm the Delegate's decision on the basis that you don't meet the requirements of clause 572.222.  So I've just made an oral decision and that means your review application has been unsuccessful and what will happen next is that I'd like you to wait outside and one of the Tribunal officers will prepare some paperwork for you to confirm that a decision has been made.”

3. The Tribunal’s reasons set out in its Decision Record for refusing to grant the Applicant an adjournment were:

   a)the fact that although he had previously been asked to do so by the previously constituted Tribunal in 2013, he had not submitted any evidence of any courses that he had studied (CB 83 at [19]); and

   b)the reasons that arose out of its consideration of whether the Applicant satisfied cl.572.223(2)(a)(ii) of sch.2 to the Regulations. These reasons included the fact that the Applicant had been on notice since December 2011 that his study history was of concern, and that his study history had worsened, with two additional long study gaps after the visa application was refused. The Tribunal was not satisfied that the Applicant had adequately explained his study gaps, or his overall student history, and formed the view that the Applicant was not a genuine Applicant for entry and stay as a student, refusing the Applicant’s extension request accordingly (CB 86 at [34], see above at [15]).

4. I am satisfied that the reasons given by the Tribunal disclose an evident and intelligible justification for its decision. Given the evidence before the Tribunal, its findings and its concerns as to the Applicant’s credibility, there was, in my opinion, nothing arbitrary or capricious about the Tribunal decision. I am satisfied that the Tribunal’s decision to refuse to grant the Applicant further time to submit documentation in support of his case was not unreasonable in a legal sense.

5. I am satisfied that no jurisdictional error is raised by Ground One.

Ground Two

1. The Applicant’s second ground of judicial review is as follows:

   The Tribunal failed to conduct a review of the Applicant’s application.

   Particulars

   a.    The Applicant refers to and repeats the particulars at paragraph 1 above.

   b.    The Tribunal failed to consider the applicant’s circumstances and proceeded to make a decision by considering cases “involving Indian cases” as a starting point.

   c.     The Tribunal made an error by not considering his study gaps.

   d.    The Tribunal failed to consider that the applicant was away in India for 3 months for medical reasons.

   e.    The Tribunal made an error by not allowing the applicant to present his case.

   f. The Tribunal did not conduct a hearing of the matter as contemplated under the Act

   Particulars a), b), e) and f) to this Ground have been dealt with under Ground One.

2. Particulars c) and d) are directed to the treatment by the Tribunal of the gaps in the Applicant’s study. It is plain that the Tribunal considered the Applicant’s study gap in some detail. Having read the transcript of the Tribunal hearing, I am satisfied that the Tribunal has accurately set out  in its Decision Record the Applicant’s evidence (CB 84 to 86 at [23] to [31]):

   23.    The Tribunal noted that the applicant had accounted for 1½ years out of the almost 5 years he had been here, having completed a 1 year course in 2010 and then not having completed any other courses for 3 years until completing a 6 month course in September 2013. Asked why he had not completed any other studies since coming to Australia to study, the applicant claimed that after finishing his course in 2010, he enrolled at the same college in a Diploma of Business Management, which he started in September 2010 but then he went back to India in January 2011. Asked when he stopped studying, the applicant claimed that he stopped studying in November 2010 because he was really sick; that is why he went back to India. The Tribunal noted that the applicant had not returned to India until 2 months after he stopped studying. Asked why, if he was really sick as claimed, he did not return to India earlier than this, the applicant claimed that there was an idea of his parents coming to Australia but later they changed their mind and asked him to go back to India. Asked what was wrong with him, the applicant claimed that he had high blood pressure and unstable blood sugar; he is a diabetic. Asked whether he was admitted to hospital in Australia in November 2010, the applicant claimed that he did. Asked what happened when he saw the doctor in November 2010, the applicant claimed that he just went for a general checking and after that he went back to India to have better treatment. The Tribunal suggested that if the applicant was so sick he could not study, presumably there was a need for some urgent medical treatment or intervention but the applicant had just said he had a general check, which did not sound like he was very sick. The applicant claimed that he was sick and then becoming better; he was frequently getting sick and so he just went to India.

   24.    The Tribunal noted that the applicant had previously produced to the Tribunal a letter, dated 8 February 2011, from Dr Ramakrishna. Asked whether this was his regular doctor, the applicant confirmed that it was. Asked what Dr Ramakrishna was treating him for, the applicant claimed that he was checking his health. Asked what medical condition Dr Ramakrishna was treating him for, the applicant claimed that he was having some gastric problems as well. Asked what sort of gastric problem, the applicant claimed that he had a gas problem.

   25.    The Tribunal noted that the applicant had also previously produced a blood test, which indicates that both his haemoglobin and his blood glucose were in good control. The Tribunal noted that this report, dated 27 February 2011, suggests that the applicant was quite well in February 2011. Asked whether he agreed, the applicant agreed.

   26.    Asked when he returned to Australia, the applicant claimed that he came back on 3 March 2011. Asked when he recommenced studying, the applicant claimed that he started in August 2011. The Tribunal noted that this was a 5 month study gap. Asked why he did not start studying earlier, the applicant claimed that he took a break for a couple of months; he was still not 100% to go to college because his health was not good at that time. Asked whether he saw an Australian doctor, the applicant responded “no”. He then claimed that he had a whole bunch of medical certificates from India but he lost them. The Tribunal noted that it did not make sense to the Tribunal why the applicant would not study for 5 months, given that he was on a Student visa and meant to be studying, because the medical evidence he had submitted indicated that by February 2011 the applicant was doing quite well. Although the Tribunal paused, the applicant made no comment. The Tribunal then indicated it may be concerned about his study gap because it may not be consistent with the applicant being a genuine applicant for entry and stay as a student. The applicant again elected to make no comment.

   27.    Asked what the commenced studying in August 2011, the applicant claimed that he started a Certificate III in Automotive at BIT. Asked how long he studied for, the applicant claimed that he studied for a couple of months and then his visa was rejected. Asked when he stopped studying, the applicant claimed that he thinks they cancelled his CoE because of his visa rejection. The Tribunal noted that the applicant had since studied at BIT and the Tribunal’s experience was that BIT generally do not cancel a student’s CoE if either their Student visa application is refused; if a student is studying at the time of the refusal decision they generally just continue studying, pending the outcome of their review application. The applicant elected to make no comment.

   28.    Asked when he stopped studying at BIT, the applicant claimed that he stopped after his visa was rejected in December 2011. Asked when he next studied after December 2011, the applicant claimed that it was in March 2013. The Tribunal noted that this was a 15 month study gap. The applicant claimed that he was not holding any visa so he was not yet confident to study. The Tribunal suggested that the applicant knew he could study. The applicant confirmed this, but claimed he was not 100% sure because some people said you cannot study while you are at the Tribunal and one immigration agent told them they could not study. Asked whether his immigration agent had told him this, the applicant said that it was not his agent; just one of the migration agents. Asked whether he had any evidence that paid another migration agent for a consultation, the applicant indicated that he did not. The Tribunal noted that, on that basis, it may have difficulty accepting that the applicant saw another migration agent who told him he could not study.

   29.    Asked whether he contacted the Department to enquire as to whether he could study after his Student visa was refused in December 2011, the applicant claimed that he did not. The Tribunal expressed surprise that the applicant would not contact the Department to enquire about his ability to study, in light of his claim that he came here to study and for no other reason. The applicant claimed that this was a mistake. The Tribunal noted that the applicant’s failure to make this simple enquiry was of concern to the Tribunal.

   30.    The Tribunal noted that the applicant had a hearing with the previously constituted Tribunal in July 2013, at which he had already started an Advanced Diploma of Management. Asked what made him decide to commence an Advanced Diploma of Management in March 2013 after not having studied for 15 months, the applicant claimed that he was waiting for his Tribunal decision.  He had applied for the Certificate III in Automotive and he thought maybe he should continue the studies in business management he had discontinued and then maybe he could do automotive once he finished this.

   31.    Asked whether he had studied since completing his Advanced Diploma in September 2013, the applicant confirmed that he had not. Asked why not, the applicant claimed that he had applied to the Federal Circuit Court about his rejection by the Tribunal. Asked why that would affect his ability to study, the applicant claimed that he never knew when he would get a decision. The Tribunal noted that the applicant had a hearing before the Federal Circuit Court in February 2014 and he was successful but he had not since enrolled to study. The applicant claimed that they said to him they were sending him back to the Tribunal and to just wait for the Tribunal decision. Asked whether the Court had told him this, the applicant claimed that when he received the Court’s decision on 20 March 2014 a lady, Melissa, does not know her position but she was the one who had been in touch with him about the Court, told him to just wait for the Tribunal decision.

3. Having set out the evidence, the Tribunal then proceeded to set out its reasons and findings regarding the gaps in the Applicant’s study (see [14] to [15] above).

4. It is evident that the Tribunal did consider the fact that the Applicant was away in India for medical reasons.

5. The Tribunal took into account the Applicant’s explanation of his study history and associated study gaps, but was not satisfied that the Applicant’s explanations were adequate. The Tribunal was entitled to accept or reject, or give such weight to the evidence proffered as it considered appropriate in the circumstances: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].

6. In my opinion, the Applicant simply disagrees with the weight the Tribunal gave to his evidence, and its credibility findings regarding his evidence. The Applicant is simply asking the Court to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.

7. I am satisfied that no jurisdictional error is raised by ground Two.

Ground Three

1. The Applicant’s third ground of judicial review is as follows:

   That the Tribunal erred in not considering its power under section 348 and 349 of the Act.

   g.    The Applicant refers and repeats the particulars at paragraph (1) and (2) above.

   h. The Tribunal did not conduct a hearing of the matter as contemplated under the Act.

2. Section 348(1) of the Act required at the relevant time that if an application is properly made under s.347 of the Act for review of an MRT-reviewable decision, the Tribunal must review the decision. Section 349(1) of the Act deals with the powers of the Tribunal.

3. When asked what he wanted to say to the Court in relation to this ground, the Applicant referred to his submissions which are set out at [23] above. I agree with the Minister’s submission at [37]:

   “A fair reading of the Tribunal decision shows that the Tribunal understood and identified the relevant issues in the matter. At the hearing, the applicant was provided with the opportunity to give evidence and present arguments on the relevant issues, namely whether he had provided evidence of current enrolment and if he satisfied cl 572.223(2)(a)(ii). While the applicant sought the opportunity to put on further evidence, the Tribunal determined not to exercise the discretion in s 363(1)(b) to adjourn the review for this to occur. The first respondent submits that there was no denial of procedural fairness in the Tribunal’s conduct of the review.”

4. I am satisfied that no jurisdictional error is raised by ground three.

Conclusion

1. For the reasons set out in this judgment the application for judicial review is dismissed, with costs.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  19 February 2016