Memon v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 517
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Memon v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 517
File number(s): PEG 262 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 29 June 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider relevant facts or circumstances – whether the Tribunal took into account irrelevant considerations – whether the Tribunal’s decision is illogical or irrational – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), cl 500.211 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 24 June 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms C Allen Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 262 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABDUL WAHEED MEMON
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
29 JUNE 2022
THE COURT ORDERS THAT:
1.The application 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 KENDALL:
BACKGROUND
The applicant is a citizen of Pakistan (Court Book (“CB”) 2-3). He arrived in Australia on 1 February 2017 as the holder of a student visa.
On 18 September 2019, the applicant applied for a Student (Class TU) (Subclass 500) visa (the “visa”) (CB 1-19). The applicant was assisted by a migration agent (CB 5-6 & 20-24) and indicated that he was enrolled to study a Master of Management Information System course (CB 10).
On 4 November 2019, the Department of Home Affairs (the “Department”) requested that the applicant (through his representative) provide further information in support of his application (CB 27-34). The applicant was advised as follows (CB 32):
Evidence of enrolment - expired Confirmation of Enrolment (COE)
Your application included a Confirmation of Enrolment (COE) that was cancelled due to non-payment of fees. Provide evidence that you are currently enrolled in a registered course of study provided by a registered provider. This is normally demonstrated by providing a current and valid Confirmation of Enrolment (COE).
No response was received from the applicant or his representative.
On 19 December 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 39-40). The delegate determined that the applicant was “not enrolled in a (CRICOS) registered course of study” and thus did not satisfy cl 500.211 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 40).
On 7 January 2020, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 41-42). In that application, the applicant indicated that the same migration agency was assisting him in relation to the Tribunal review (CB 42).
On 3 February 2020, the Tribunal wrote to the applicant’s representative requesting further information (CB 47). Specifically, the Tribunal stated that:
In order to assist the Tribunal to process your application for review, the following information is requested:
•a copy of a current Certificate of Enrolment (CoE) as required for the grant of a student visa
Please provide this information by 17 February 2020.
On 14 February 2020, the applicant’s representative wrote to the Tribunal requesting an extension of time within which to provide the Tribunal with that requested information
(CB 48-49). The applicant’s representative advised as follows (CB 48):
Please be advised that Mr Memon has already applied to Edith Cowan University (ECU) to be considered for re-enrolment. ECU has advised him that he has to wait further as they are still in the processing of application stage.
Could you please allow for an extension of time for Mr Memon to provide AAT with the Confirmation of Enrolment (CoE) document.
On 10 September 2021, the Tribunal invited the applicant (through his representative) to attend a hearing before it on 28 September 2021 (CB 52-56). That correspondence asked that the applicant provide further information, as follows (CB 55):
Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a NAATI accredited translator.
In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211 (a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.
On 27 September 2021, the Tribunal advised the applicant (through his representative) that the hearing was postponed “due to circumstances beyond [its] control” (CB 61-63).
On 22 October 2021, the Tribunal invited the applicant (through his representative) to attend a rescheduled hearing before it on 9 November 2021 (CB 64-68). That correspondence again requested that the applicant provide further information, as follows (CB 67):
Please provide all documents you intend to rely on to support your case by 2 November 2021. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.
In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.
On 9 November 2021, the applicant attended a hearing before the Tribunal. His representative, however, did not attend (CB 74-76). The Tribunal made an oral decision at that hearing which affirmed the delegate’s decision (CB 80).
On 7 December 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
On 28 February 2022, the Tribunal produced written reasons for its decision (CB 84-86). On 1 March 2022, the Tribunal provided a copy of those reasons to the applicant (through his representative) (CB 81-83).
TRIBUNAL’S DECISION
The Tribunal’s written decision is three pages in length and spans 14 paragraphs.
The Tribunal began by identifying the type of visa that the applicant had applied for (at [1]). It confirmed that an oral decision was made at the hearing before it on 9 November 2021 (at [2]).
The Tribunal explained that the delegate had refused to grant the visa as the applicant did not meet cl 500.211 in Schedule 2 of the Regulations because he failed to provide evidence of current enrolment at the time he lodged his visa application (at [3]-[4]).
The Tribunal continued:
5. Reading from the decision, it states:
On 4 November 2019 correspondence was sent to the applicant requesting him to provide evidence that they were enrolled in an approved course of study. A recent search of department records confirms that to date the applicant has not submitted any information or evidence of a valid confirmation of enrolment.
The Provider Registration and International Student Management System PR/SMs also indicates that the applicant is currently not enrolled in any Commonwealth Registered Institution and Courses for Overseas Students (CR/COS) registered course.
It is considered that the applicant has been afforded ample time to present any further documentation in support of their application. As the applicant is not enrolled, the applicant does not satisfy Regulation 500.211 for the grant of a student visa.
The Tribunal then identified the relevant visa criterion (making specific reference to the requirements of cl 500.211 in Schedule 2 of the Regulations) (at [6]).
The Tribunal continued:
7.A course of study is defined as a full time registered course. You have today told the Tribunal that the circumstances were that you came here and studied two ELICOS courses before enrolling in a Project Management course. You failed two units that were actually called 'project management' which caused you some depression.
8.You then enrolled in a Master of Management Information Systems. You say your father lost a construction business in Pakistan. There is no evidence to support that claim but that is what you say - which meant that you were unable to pay the fees and you say the last time you did any study was in September 2019 which is more than two years ago.
The Tribunal then outlined the applicant’s evidence that he had spoken to an education provider who had said that he would be enrolled if he was granted a new visa (at [9]). The Tribunal noted that the applicant had claimed that he had a migration agent who he was in contact with on a regular basis and, as such, the Tribunal expected the applicant to “understand the rules and requirements” of his visa (at [10]).
The Tribunal continued:
11.The primary decision made this matter perfectly plain. What it says is you haven’t provided evidence of enrolment. It included the requirement of 500.211 that you are enrolled in a course of study, so you have been on notice of this requirement since at least this decision was made almost two years ago. I believe you have had plenty of time and opportunity to provide the evidence that you are enrolled and eligible for the grant of a visa but have failed to do so.
As the applicant was not enrolled in a course of study, the applicant did not satisfy cl 500.211 in Schedule 2 of the Regulations and was thus not eligible for the grant of the visa (at [12]).
On the basis of the above, the Tribunal affirmed the decision refusing to grant the applicant the visa (at [13]-[14]).
PROCEEDING IN THIS COURT
The application for judicial review filed by the applicant on 7 December 2021 provides as follows (without alteration):
The Second Respondent, in making its oral decision (or purported oral decision) of 9 November 2021 to affirm the decision of the delegate of the First Respondent to not to grant the Applicant a Student (Temporary) (Class TU) visa committed jurisdictional error in that it illogically and unreasonably:
1.Failed to genuinely consider all material facts and circumstances presented by the applicant at the hearing to assess that the applicant has been a genuine student and intended complete his Master in Management Information Systems degree course at the Edith Cowan University.
2. Took into account irrelevant considerations.
The applicant also filed an affidavit, sworn on 30 November 2021 and filed on 7 December 2021 which attached a copy of the Tribunal’s decision. The affidavit also states:
4.I respectfully submit that as soon as I am served and provided with a copy of the Reasons for the Decision and a copy of the Court Book, I will be consulting and instructing a lawyer to represent me in these proceedings. Upon my lawyer’s advice, I will also be filing an amended application with further supporting affidavit.
On 15 March 2022, procedural orders were made giving the applicant an opportunity to file an amended application, any supporting affidavits and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The matter was initially listed for a final hearing on 13 June 2022. Prior to the hearing, the applicant contacted Chambers requesting an adjournment on medical grounds. The Court considered it appropriate to adjourn the matter and re-listed the matter for final hearing at 10.00am on 24 June 2022.
The applicant appeared at the re-listed hearing before this Court on 24 June 2022 without legal representation. The Court confirmed with him that he had a copy of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 7 December 2021, a Court Book numbering 87 pages (marked as Exhibit 1), written submissions filed by the Minister on 25 May 2022 and the affidavit of service of Grace Marie Mickle, affirmed and filed on 7 June 2022.
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain to the Court what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that it could only address the issue of jurisdictional error on the part of the Tribunal. The Court stressed that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, however, the Court often sees the following categories of error:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that it cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is limited to determining if the Tribunal made a material error in arriving at the decision it had on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Unfortunately, the applicant’s oral submissions did not address the issue of jurisdictional error. In the circumstances, the Court is left to scrutinise the applicant’s grounds of review as articulated. Noting that the applicant prepared his application for judicial review without legal assistance, however, the Court will (in its duty to him as a self-represented litigant) read the applicant’s grounds of review as broadly as possible and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
CONSIDERATION
For ease of reference, the applicant’s “grounds of review” provide:
The Second Respondent, in making its oral decision (or purported oral decision) of 9 November 2021 to affirm the decision of the delegate of the First Respondent to not to grant the Applicant a Student (Temporary) (Class TU) visa committed jurisdictional error in that it illogically and unreasonably:
1.Failed to genuinely consider all material facts and circumstances presented by the applicant at the hearing to assess that the applicant has been a genuine student and intended complete his Master in Management Information Systems degree course at the Edith Cowan University.
2. Took into account irrelevant considerations.
Arguably (again, noting the principles in MZAIB), the applicant’s grounds raise the following three issues:
(a)Issue 1: whether the Tribunal failed to consider relevant facts or circumstances;
(b)Issue 2: whether the Tribunal took into account irrelevant considerations; and
(c)Issue 3: whether the Tribunal’s decision is illogical or irrational.
Issue 1: whether the Tribunal failed to consider relevant facts or circumstances
Insofar as the applicant claims that the Tribunal failed to consider relevant facts or circumstances, this fails on a factual level.
The Tribunal expressly considered the applicant’s claims and evidence provided at the Tribunal hearing as follows:
7.A course of study is defined as a full time registered course. You have today told the Tribunal that the circumstances were that you came here and studied two ELICOS courses before enrolling in a Project Management course. You failed two units that were actually called 'project management' which caused you some depression.
8.You then enrolled in a Master of Management Information Systems. You say your father lost a construction business in Pakistan. There is no evidence to support that claim but that is what you say - which meant that you were unable to pay the fees and you say the last time you did any study was in September 2019 which is more than two years ago.
9.You say you have spoken to the education provider who has said if you are granted a new visa they will enrol you and you say it is your wish to study this Master of Management Information Systems and there is availability of a course next February.
10.You claim to have a migration agent that you say you have been in regular contact with and therefore I expect that you would understand the rules and requirements.
Unfortunately, the evidence provided did not assist the applicant. The dispositive issue before the Tribunal (and before the delegate) was whether the applicant satisfied cl 500.211 in Schedule 2 of the Regulations.
At the time of the Tribunal’s decision, the legislation provided that:
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;
(b)if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c)if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;
(d)if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.
The applicant was required to be enrolled in a course of study at the time of the Tribunal’s decision: cl 500.211(a) in Schedule 2 of the Regulations. The applicant was not enrolled in any course of study. Any additional information provided by the applicant, including information to support the applicant’s claim that he was a “a genuine student and intended complete his Master in Management Information Systems degree course at the Edith Cowan University”, was thus irrelevant to the question the Tribunal was required to answer.
The sole issue for the Tribunal to determine here was whether the applicant was enrolled in a course of study. He was not. The Tribunal made the only decision available to it on the evidence before it.
No error arises in relation to issue 1.
Issue 2: whether the Tribunal took into account irrelevant considerations
The applicant has not detailed which “irrelevant considerations” were taken into account by the Tribunal.
A ground which alleges that there has been a “failure to take into account a relevant consideration” can only be made out if there is evidence that a decision-maker failed to take into account a consideration which he was bound to take into account in making a decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.
As outlined above, cl 500.211 in Schedule 2 of the Regulations requires that, at the time of decision, the applicant be enrolled in a course of study. The Tribunal here was thus bound to take into account evidence in relation to whether the applicant had a current enrolment.
While the Tribunal acknowledged the applicant’s circumstances and evidence provided at the hearing (as outlined above), in circumstances where the applicant was not enrolled in a course of study, that was the only issue the Tribunal was required to consider. It did so.
No error arises in relation to issue 2.
Issue 3: whether the Tribunal’s decision is illogical or irrational
To the extent that the applicant is alleging that the Tribunal’s conclusion in this matter was illogical or irrational, the Court disagrees.
As articulated by the High Court in SZMDS at [130]-[131], the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or 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 illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The sole issue for the Tribunal to consider in this matter was whether the applicant was enrolled in a course of study. The Tribunal requested that the applicant provide information in that regard on three separate occasions.
On 3 February 2020, the Tribunal wrote to the applicant’s representative (by email) requesting further information (CB 47). Specifically, the Tribunal stated that:
In order to assist the Tribunal to process your application for review, the following information is requested:
•a copy of a current Certificate of Enrolment (CoE) as required for the grant of a student visa
Please provide this information by 17 February 2020.
On 14 February 2020, the applicant’s representative wrote to the Tribunal requesting an extension of time within which to provide the Tribunal with the requested information
(CB 48-49). The applicant’s representative advised that (CB 48):
Please be advised that Mr Memon has already applied to Edith Cowan University (ECU) to be considered for re-enrolment. ECU has advised him that he has to wait further as they are still in the processing of application stage.
Could you please allow for an extension of time for Mr Memon to provide AAT with the Confirmation of Enrolment (CoE) document.
On 10 September 2021, in its correspondence inviting the applicant to attend a hearing
(CB 52-56), the Tribunal requested that the applicant provide the following information (CB 55):
Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a NAATI accredited translator.
In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211 (a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.
On 22 October 2021, in its correspondence inviting the applicant (through his representative) to attend a rescheduled hearing (CB 64-68), the Tribunal requested that the applicant provide further information as follows (CB 67):
Please provide all documents you intend to rely on to support your case by 2 November 2021. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.
In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.
No further information was provided by or on behalf of the applicant.
The applicant was on notice of the determinative issue prior to the Tribunal hearing and was invited, on multiple occasions, to provide the Tribunal with any documents confirming his enrolment. Further, this was the same issue dispositive to the application before the delegate: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.
The applicant was aware that he could provide additional material to the Tribunal but failed to do so. Further, despite the Tribunal hearing taking place nearly two years after the applicant’s representative requested further time to obtain a confirmation of enrolment, at the time of the hearing and the Tribunal’s decision, neither the applicant nor his representative had provided the Tribunal with any confirmation of enrolment.
As outlined above, the Tribunal gave the applicant ample opportunity to provide evidence to confirm that he was enrolled in a course of study. The applicant chose not to do so.
The Tribunal ultimately found that the applicant did not satisfy cl 500.211 in Schedule 2 of the Regulations and thus could not meet the requirements for the grant of the visa. The Tribunal’s finding in this regard was open to it. It cannot be said that the Tribunal acted capriciously in making its finding in that regard.
No error arises in relation to issue 3.
CONCLUSION
The application for judicial filed by the applicant on 7 December 2021 fails to identify any jurisdictional error. The Court has otherwise failed to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 29 June 2022
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