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

Street J heard an application for judicial review brought by an Indian citizen who had applied for a student visa. The applicant's visa was refused by a delegate of the Minister on the grounds that the delegate was not satisfied he was a genuine applicant for entry and stay as a student. The applicant sought review of this decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed the delegate's decision, finding that the applicant had not provided evidence of current enrolment in a registered course of study, a requirement for the visa.

The applicant sought judicial review on two grounds, alleging jurisdictional error. First, he contended that the Tribunal denied him procedural fairness under section 359 of the *Migration Act 1958* (Cth) by failing to consider his circumstances and reasons for not being enrolled, and by not allowing him further time to provide evidence of enrolment. Second, he argued the Tribunal made jurisdictional error under section 361(3) of the Act by failing to have regard to his circumstances and by not giving him an opportunity to provide proof of enrolment.

Street J considered the Minister's submissions that the Tribunal had considered all material before it, including the applicant's reasons for not being enrolled, as contained in his written response. The court noted that the applicant had consented to the matter being determined without a hearing. Under section 360(2)(b) and (3) of the Act, this consent meant the applicant was not entitled to appear before the Tribunal. Therefore, any potential error by the Tribunal in relation to the applicant's entitlement to a hearing was immaterial, as the applicant had waived that right.

The application for judicial review was dismissed.