Mukunga v Minister for Immigration and Anor

This matter came before Judge Vasta of the Federal Circuit Court of Australia. The applicant, Mr Mukunga, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his visa application. The AAT had decided the review without a hearing, based on the information before it, including the applicant's consent to this process.

The central legal issue was whether the AAT erred in affirming the delegate's decision that the applicant did not satisfy the requirements of a genuine temporary entrant, specifically concerning his enrolment in a course of study. The applicant had consented to the AAT deciding his review without a hearing, with the understanding that the decision would be based on the evidence before the Tribunal, and that the Tribunal might consider issues not previously addressed by the primary decision-maker. The AAT's decision was made on the basis that there was no evidence before it of the applicant's current enrolment in a course of study, and therefore, clause 500.211 of the Migration Regulations 1994 was not met.

The court considered the applicant's submission that, unbeknownst to the AAT, he had not completed his course by the expected date of 15 July 2019 and was still enrolled. The applicant argued that he would have been able to provide proof of enrolment if requested. The AAT, after making its decision, was notified by the applicant's migration agent that the applicant was still enrolled and requested reconsideration. However, the AAT declined to reopen the case, stating it had no power to take further action once a decision under the Migration Act 1958 had been made. The court accepted that, at the time of the AAT's decision, the information before it indicated the applicant had ceased enrolment on 15 July 2019, when in reality, he was awaiting a supplementary exam for which his Confirmation of Enrolment related.

The court found that the AAT's decision was based on the information before it at the time, and that the applicant had consented to the review proceeding without a hearing. The AAT's subsequent refusal to reopen the case was consistent with its understanding of its powers. Therefore, the court dismissed the application for judicial review.