Nguyen v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1575
•26 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration and Citizenship [2025] FedCFamC2G 1575
File number: ADG 279 of 2022 Judgment of: JUDGE GERRARD Date of judgment: 26 September 2025 Catchwords: MIGRATION – student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal erred by failing to invite the applicants to attend a hearing before it – whether the Tribunal’s invitation letter was invalid because it failed to reference s 359A of the Migration Act 1958 (Cth) or notify the applicants that failing to respond would result in a decision being made – no jurisdictional error established – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 11.10
Migration Act 1958 (Cth), ss 357A, 359A, 359B, 359C, 360, 363A, 379A, 476 and Division 5 of Part 5
Migration Regulations 1994 (Cth), reg 4.17 and Part 500 & cll 500.211 & 500.311 in Schedule 2
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Chen v Minister for Immigration and Citizenship [2025] FedCFamC2G 1498
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
El-Tawil v Minister for Home Affairs [2019] FCA 1012
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Kaur v Minister for Immigration and Citizenship [2025] FCA 931
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 43
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Sabri Polat [1995] FCA 1204
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Multicultural and Indigenous Affairs v Jing Shan Sun (2005) 146 FCR 498
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
Singh v Minister for Immigration & Citizenship [2011] FCAFC 27
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
[Division: Division 2 General Federal Law Number of paragraphs: 80 Date of last submission: 17 July 2025 Date of hearing: 11 August 2025 Place: Adelaide Counsel for the Applicants: First applicant appeared on behalf of the applicants via videoconference with the assistance of a Vietnamese interpreter Counsel for the Respondents: Tara Rossetto Solicitor for the Respondents: Sparke Helmore ORDERS
ADG 279 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI THANH TRA NGUYEN
First Applicant
THANH VAN NGUYEN
Second Applicant
EDISON NGUYEN
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
26 SEPTEMBER 2025
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
INTRODUCTION
The applicants seek judicial review of a decision of the then Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) refusing to grant the applicants Student (Class TU) (Subclass 500) visas (the visas). As will be explained, for the applicants to succeed in this Court, they must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.
BACKGROUND
The applicants are all citizens of Vietnam (Court Book (CB) 23-25). The first and second applicants are wife and husband respectively (CB 26) and the third applicant is their minor son (CB 28).
On 26 January 2020, the first applicant applied for the visas on the basis of her enrolment in a Bachelor of Commerce degree (CB 1-22). The second and third applicants were included in that visa application as members of the first applicant’s family unit (CB 4-9). The applicants provided various supporting documents with that visa application (CB 23-47).
On 20 August 2020, the Department of Home Affairs (the Department) asked the first applicant to provide more information in relation to her visa application, including evidence of enrolment and confirmation of overseas student health cover (CB 49-56).
On 1 October 2020, the Department again asked the first applicant to provide more information in relation to her visa application (CB 57-62).
On 28 October 2020, the applicants provided the Department with a “notification of changes in circumstances” form in which the first applicant advised that she was “still waiting” for a response from the University of South Australia and would “try to email … the information as soon as possible” (CB 63).
On 9 December 2020, the Department again asked the first applicant to provide more information in relation to her visa application (CB 64-69).
The first applicant again notified the Department that she was still having difficulties obtaining confirmation of her enrolment from the University of South Australia and would try to provide the information as soon as possible (CB 70-71).
On 9 January 2021, the Department again asked the first applicant to provide more information in relation to her visa application (CB 72-78).
The first applicant provided a similar response to the Department (indicating that she was having difficulties obtaining confirmation of her enrolment from the University of South Australia) (CB 79).
On 8 February 2021, the Department invited the first applicant to comment on information in relation to her visa application (CB 80-82). Relevantly, the Department’s invitation stated as follows (CB 80):
Provider Registration and International Student Management System (PRISMS) indicates that the Confirmation of Enrolment (CoE) (AF09A679), which you have provided with your visa application, was cancelled on 22 May 2020.
As such, I have concerns that you are not enrolled in a course of study and may not meet the criteria in clause 500.211 of the Migration Regulations.
On 5 March 2021, the first applicant advised that she had not been aware that her enrolment had been cancelled by the University of South Australia and was in the process of obtaining a new Confirmation of Enrolment (CoE)(CB 83).
On 6 April 2021, the first applicant provided the Department with a new CoE and confirmation of health insurance for the applicants (CB 84-86).
On 10 November 2021, the Department invited the first applicant to comment on information in relation to her visa application (CB 87-89). Relevantly, the Department’s invitation stated as follows (CB 87):
Provider Registration and International Student Management System (PRISMS) indicates that the Confirmation of Enrolment (CoE) C374F647, which you have provided on 6 April 2021, was cancelled on 08 August 2021.
As such, I have concerns that you are not enrolled in a course of study and may not meet the criteria in clause 500.211 of the Migration Regulations.
On 6 December 2021, the first applicant advised the Department that she was “waiting to see [her] lawyer” and would provide a response soon. She also requested an extension of time within which to provide that response (CB 90).
On 8 December 2021, the Department confirmed to the first applicant that she had been granted an extension of time within which to respond until 6 January 2022 (CB 91).
On 24 January 2022, a delegate of the Minister refused to grant the applicants the visas (CB 98-103). The delegate was not satisfied that the first applicant satisfied the criterion set out in cl 500.211 in Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) because there was no evidence of enrolment in an acceptable course of study (CB 100). The delegate also found that, as a result, the second and third applicants did not satisfy cl 500.311 in Schedule 2 of the Regulations (CB 101-102).
On 9 February 2022, the applicants applied to the Tribunal for review of the delegate’s decision (CB 104-111). In that review application, the first applicant asked that the Tribunal send all correspondence to her as the “review applicant” and provided the Tribunal with an email address to enable them to do so (CB 107 & 109).
On 10 February 2022, the Tribunal asked the first applicant to provide a copy of her current CoE by 24 February 2022 (CB 115).
On 14 February 2022, the first applicant provided the Tribunal with a CoE dated 30 March 2021 relating to a Bachelor of Business (Accounting) degree (CB 116-117).
On 2 June 2022, the Tribunal notified the first applicant that, due to the COVID-19 pandemic, she may be invited to attend a hearing “in person, or by telephone/video if the Tribunal considers it appropriate”. The first applicant was also asked to provide a phone number within seven days (CB 118).
On 18 July 2022, the Tribunal asked the first applicant to provide a telephone number upon which she could be contacted (CB 119).
On 19 September 2022, the Tribunal again asked the first applicant to provide a telephone number upon which she could be contacted (CB 120).
On 20 September 2022, the first applicant provided the Tribunal with a mobile phone number and advised that she “prefer[red] to have the hearing in person” rather than by telephone (CB 121-122).
On 29 September 2022 (at 9.23am), the Tribunal acknowledged receipt of the first applicant’s telephone number and advised that the applicants’ case had been deemed appropriate for a video hearing and information would be provided in that regard in due course (CB 126).
Later that same day (being on 29 September 2022 at 10.55am), the Tribunal invited the applicants to comment on or respond to information in relation to their review application (the “Tribunal’s invitation letter”) (CB 123-125). The Tribunal’s invitation letter relevantly stated (CB 124-125):
The Tribunal has obtained information about you concerning your study history in Australia. The particulars of the information are set out in the Provider Registration and International Student Management System (‘PRISMS’) record dated 15 September 2022 that is enclosed with this letter. Specifically, your attention is drawn to the following information contained in that PRISMS record:
The particulars of the information are;
•Your most recent enrolment in a Bachelor of Business (Accounting) was marked cancelled by the course Provider on 8 August 2021 due to you notifying cessation of studies. According to the PRISMS record, you have not been enrolled in any other registered course of study since that time. You are not enrolled in any course now.
The information is relevant to your review because the information suggests that you are not currently enrolled in a course of study. This, in turn, indicates you do not meet the primary criteria for the grant of a student visa under clause 500.211 of Schedule 2 of the Migration Regulations 1994 (Cth) ('the Regulations'). This was the ground on which your application for this student visa was refused. This is a time of decision criterion which means at the time the Tribunal makes its decision on your application you must be currently enrolled in a registered course of study to be eligible to be granted a student visa.
If the Tribunal relies on the information above in making its decision, it may determine that you do not meet the primary criteria for the grant of a student visa. This may be the reason, or part of the reasons, for the Tribunal affirming the decision not to grant you a student visa.
…
Your comments or response should be received by 13 October 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
…
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
No response was provided by the applicants to the Tribunal’s invitation letter by the due date (being by 13 October 2022) (CB 137 at [11]).
On 14 October 2022, the Tribunal notified the applicants that, because they had not responded to the Tribunal’s invitation letter, they had “lost any entitlement” they might have otherwise had to appear at a hearing before it (CB 127-128).
Later that same day (being on 14 October 2022), the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 133-139).
On 17 October 2022, the first applicant advised the Tribunal that she did not know about the hearing and asked for a “new hearing” (CB 129).
On 18 October 2022, the applicants were notified of the Tribunal’s decision (by email) (CB 130-132 & 140-142).
Later that same day (being on 18 October 2022), the Tribunal confirmed receipt of the first applicant’s email dated 17 October 2022 and advised that, once a decision had been made, the Tribunal had “no power to take any further action on the review” (CB 143-144).
On 26 October 2022, the applicants lodged an application for judicial review with this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by identifying the visa under review, noting that the applicants applied for the visa on 6 February 2020. The Tribunal observed that the applicants’ visas had been refused by a delegate of the Minister on 24 January 2022 and that they had lodged their applications for review with the Tribunal on 9 February 2022. The Tribunal also noted that the first applicant was the primary visa applicant and that, in order for her to be granted the visa, she needed to meet the primary criteria set out in Part 500 of Schedule 2 in the Regulations (listing the visa criteria applicable in that regard). The Tribunal also explained that the visa criteria listed were “time of decision” criteria and needed to be met at the time of its decision (at [1]-[6]).
The Tribunal identified that the issue before it was whether the first applicant met the enrolment requirements set out in cl 500.211 in Schedule 2 of the Regulations (at [9]).
The Tribunal outlined that it had written to the first applicant on 29 September 2022 (pursuant to s 359A of the Act) inviting her to comment on information it had obtained from the Provider Registration and International Student Management System (PRISMS) indicating that the first applicant was not enrolled in any registered course of study. The Tribunal noted that the applicants were provided with 14 days within which to respond to that information and were informed that, if they did not respond within that time (or seek an extension of time within which to do so), they would lose any entitlement they might otherwise have had to appear before the Tribunal at a hearing. The Tribunal noted that the applicants failed to respond to that invitation and did not seek an extension of time within which to do so (at [10]-[11]).
The Tribunal explained that, by operation of s 359C(2) of the Act, because the applicants had failed to respond to an invitation to comment (sent pursuant to s 359A of the Act), the Tribunal could proceed to make its decision without taking any further action to obtain information from the applicants. The Tribunal also noted that, by operation of ss 360 and 363A of the Act, the applicants were no longer entitled to appear at a Tribunal hearing (citing Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 (Hasran)) and, on that basis, it had proceeded to determine the review application based on the material before it (at [12]).
The Tribunal recorded that cl 500.211 in Schedule 2 of the Regulations required “that a student visa application be founded on evidence of the applicant being enrolled in ‘a course of study’” and explained the relevant definitions in that regard. The Tribunal stated that producing evidence of a current enrolment in a course of study was a “critical first step towards obtaining a student visa” and noted that enrolment continued to be of legal significance once a student visa was issued. The Tribunal explained that it therefore needed to be presented with evidence that the first applicant was currently enrolled in a registered course of study and that, without such evidence, the visa could not be granted (at [14]-[18]).
The Tribunal stated that the PRISMS report obtained on 15 September 2022 indicated that the first applicant was not enrolled in a registered course of study. The Tribunal also confirmed that a further check of the PRISMS database on 14 October 2022 revealed that the first applicant’s enrolment status remained unchanged. On that basis, the Tribunal found that the first applicant did not meet the criteria set out in cl 500.211 in Schedule 2 of the Regulations because she was not currently enrolled in a registered course of study. Because the first applicant failed to meet the primary criteria, the Tribunal also found that the second and third applicants failed to meet cl 500.311 in Schedule 2 of the Regulations (at [19]-[22]).
The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicants the visas (at [23]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 26 October 2022 contained three grounds of review as follows (without alteration):
1.The Second Respondent committed a jurisdictional error in contravention of s 360(1) of the Migration Act 1958 by failing to invite us to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
2.The Second Respondent, in reaching its aforesaid decision, committed a jurisdictional error by acting in a manner that was grossly inconsistent with its own assurance contained in its email referred to in paragraph 8 of this Affidavit that it was going to schedule a video hearing via Microsoft Teams for us. The Second Respondent had not withdrawn its assurance for a video hearing before it proceeded to make a decision to deprive us of the right to natural justice, noting that we relied on the Second Respondent's aforesaid assurance and were waiting for a hearing to be scheduled so that we could appear before it to give evidence and present arguments in support of our review application.
3.The Second Respondent committed a jurisdictional error by failing to state in its letter dated 29 September 2022 that its request for a response to the information outlined therein was made under s 359A and that if we failed to give the comments or response before the deadline it would proceed to make a decision on the review under s 359C(2).
The applicants also filed an affidavit with that judicial review application, annexing copies of the Tribunal’s decision and relevant notification letter. That affidavit (affirmed by the first applicant) also outlined some of the procedural history of this matter and repeated the grounds of review contained in the applicants’ judicial review application (as outlined above).
The first applicant appeared before the Court on 11 August 2025 (by video link) without legal representation but with the assistance of a Vietnamese interpreter. The Court confirmed with the first applicant that she had received a copy of the Court Book and the Minister’s written submissions.
The Court also noted that the third applicant in the proceeding was still a minor (being born in April 2017). On that basis, the Court explained to the first applicant that, because the third applicant is still a minor, it is appropriate for a litigation guardian to be appointed on his behalf. The first applicant agreed to herself and her husband (the second applicant) being appointed the litigation guardians for their son and the Court made orders (pursuant to r 11.10(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules), as were in force at the time of the hearing in this matter) accordingly – including dispensing with the requirement to file any affidavit in that regard (pursuant to r 11.10(2) of the Rules).
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 26 October 2022 (the affidavit being taken as read and in evidence at the hearing on 11 August 2025), a Court Book numbering 145 pages (marked as Exhibit 1 at the hearing) and written submissions filed on behalf of the Minister on 17 July 2025.
The first applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Kaur v Minister for Immigration and Citizenship [2025] FCA 931 at [10]. Accordingly, at the hearing of this matter, the first applicant was invited to tell the Court what she believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal’s decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the first applicant that this was not an exhaustive list and she should attempt to tell the Court why she said the Tribunal had fallen into error.
Interpretation issues at the hearing and adjournment
Unfortunately, during the course of the first applicant explaining to the Court what she thought the Tribunal had done wrong, the first applicant raised an issue with the interpreter assisting her at the hearing. After further questioning, it appeared that the applicant was not satisfied with the level of interpretation being provided. To ensure that the applicant was afforded procedural fairness and could properly participate in the hearing, the Court stood the matter down for almost an hour and arranged for a new interpreter to attend the hearing to assist the applicant.
When the hearing recommenced (with the assistance of the new interpreter), the Court determined that, given the interpretation issues raised by the applicant, it would start the hearing afresh (including again explaining to the first applicant the need to appoint a litigation guardian for her son, confirming she had received the Court Book and the Minister’s submissions, admitting the first applicant’s affidavit into evidence and taking her through the powers of the Court and the types of errors that often occur in matters of this type).
The first applicant confirmed that she could understand the new interpreter and no further interpretation issues arose during the hearing. The first applicant did, however, seek a one hour adjournment of the hearing approximately 40 minutes after recommencing on the basis of health issues. The Court considered it was appropriate to do so and adjourned the hearing to ensure that the first applicant was afforded procedural fairness and had every opportunity to raise any concerns she might have had with the Tribunal’s decision or the approach taken by it in this matter.
Against this background, the first applicant told the Court that she was very surprised that the Tribunal had sent two emails on 29 September 2022 and that she had not clearly seen the second email. When asked by the Court whether she had not received it or whether she simply had not read the second email, the first applicant told the Court that the emails were sent 28 minutes apart and the first asked for information about her course enrolment and the second “promised” that the Tribunal would hold the hearing via Microsoft Teams.
The first applicant stated that she had been “very surprised” to receive the email from the Tribunal on 14 October 2022 stating that the applicants had lost their entitlement to the hearing because it “was the opposite of what [they] were told” in the email received on 29 September 2022. She also reiterated that she had not known that she needed to provide information or she would not have a hearing and that, if she had known that, she would have sought an extension of time from the Tribunal to get a CoE.
At the end of the hearing, the first applicant stressed that the email regarding the request for more information was the first email received and the second email stated that there would be a video hearing. Further, the second email from the Tribunal was very clear, stating that the Member had considered the applicants’ case to be appropriate for a video hearing and that the time of the hearing and further information would be provided. On that basis, she was expecting to have a hearing and, had that email not been sent, she would have arranged for a CoE from the University of South Australia and sent the confirmation within the required time or sought an extension of time within which to do so.
The first applicant’s oral submissions relate to the concerns raised in the applicants’ grounds of review and will be addressed with those grounds by the Court below.
CONSIDERATION
As outlined above, the application for judicial review contained three grounds asserting jurisdictional error. Noting that the applicants were unrepresented in this matter, the Court has endeavoured to interpret the applicants’ grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).
Grounds one and two
Grounds one and two essentially allege that the Tribunal erred by failing to invite the applicants to attend a hearing before it and that, by failing to do so, the Tribunal’s actions were “grossly inconsistent with its own assurance” (that there would be a Tribunal hearing which would take place by video).
The Minister submitted that:
(a)the Tribunal was correct to find that it could not invite the applicants to attend a hearing before it once the applicants failed to respond to the Tribunal’s invitation letter (sent pursuant to s 359A of the Act), citing the decision in Hasran;
(b)nothing in s 360 of the Act or the Tribunal’s email correspondence could change the legal effect of the well-established principles outlined in Hasran (which are binding on this Court);
(c)the correspondence from the Tribunal to the applicant (being the Tribunal’s email sent on 29 September 2022 at CB 126) was simply a response to the first applicant’s email requesting an in-person hearing and was not any assurance that there would be a video hearing;
(d)the Tribunal could not have known at the time of sending that email that the applicants would not respond to the Tribunal’s invitation letter; and
(e)to the extent that the applicants’ suggest that the Tribunal’s “assurance” gives rise to an estoppel, that cannot succeed because the Tribunal had no power to invite the applicants to attend a hearing.
The Court agrees for the reasons that follow.
As explained by this Court recently in Chen v Minister for Immigration and Citizenship [2025] FedCFamC2G 1498, the Tribunal’s procedural fairness obligations were set out in Division 5 of Part 5 of the Act (as was in force at the time of the Tribunal’s decision in this matter), which provided an exhaustive statement of the natural justice hearing rule (s 357A of the Act and Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [66]). One of the statutory obligations was contained within s 359A of the Act which required that the Tribunal must give to the applicants clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review; ensure that the applicants understood why it was relevant, and the consequences of it being relied upon; and invite the applicants to comment on the information.
The Tribunal invited the applicants, pursuant to s 359A of the Act, to comment on information that the first applicant was not enrolled in any course of study. That invitation was sent to the applicants by email to the nominated email address in their review application. The Tribunal’s invitation letter clearly set out the particulars of the information relied upon and the consequences of failing to provide information in response. The applicants did not respond to that invitation (or seek an extension of time within which to respond to the invitation) by the due date (being 13 October 2022) or at all.
There are clear statutory consequences which follow from a failure to respond to an invitation under s 359A of the Act. Those consequences were explained by the Full Court of the Federal Court in Hasran as follows:
27.Here, the appellant’s failure to respond to the Tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.
28.This was because the appellant was invited by the Tribunal’s letter under s 359A to comment or respond to the information stated in the Tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the Tribunal.
29.The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing.
As such, the Tribunal was correct to find that the applicants were not entitled to appear at a hearing before it. The Tribunal’s invitation letter validly invited the applicants to provide information in accordance with s 359A of the Act as it gave clear particulars of information that would be the reason (or part of the reason) for affirming the decision for review, ensured the applicants understood why the information was relevant to the review, and invited the applicant to comment on or respond to it. As outlined above, the Tribunal’s invitation letter stated as follows (CB 124-125):
The Tribunal has obtained information about you concerning your study history in Australia. The particulars of the information are set out in the Provider Registration and International Student Management System (‘PRISMS’) record dated 15 September 2022 that is enclosed with this letter. Specifically, your attention is drawn to the following information contained in that PRISMS record:
The particulars of the information are;
•Your most recent enrolment in a Bachelor of Business (Accounting) was marked cancelled by the course Provider on 8 August 2021 due to you notifying cessation of studies. According to the PRISMS record, you have not been enrolled in any other registered course of study since that time. You are not enrolled in any course now.
The information is relevant to your review because the information suggests that you are not currently enrolled in a course of study. This, in turn, indicates you do not meet the primary criteria for the grant of a student visa under clause 500.211 of Schedule 2 of the Migration Regulations 1994 (Cth) ('the Regulations'). This was the ground on which your application for this student visa was refused. This is a time of decision criterion which means at the time the Tribunal makes its decision on your application you must be currently enrolled in a registered course of study to be eligible to be granted a student visa.
If the Tribunal relies on the information above in making its decision, it may determine that you do not meet the primary criteria for the grant of a student visa. This may be the reason, or part of the reasons, for the Tribunal affirming the decision not to grant you a student visa.
…
Your comments or response should be received by 13 October 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
…
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
Despite the opportunity provided to the applicants, they failed to respond to the Tribunal’s invitation letter within the prescribed timeframe.
In failing to respond to the Tribunal’s invitation letter, the effect of s 359C of the Act is that, if an applicant is invited to give information under s 359A but fails to do so, the Tribunal may make a decision on the review without taking any further action. The Tribunal was thus not obliged to invite the applicants to attend a hearing pursuant to s 360 of the Act as this obligation ceased due to the applicants failure to respond to the Tribunal’s invitation letter. The Tribunal was thus precluded from inviting the applicants to attend a hearing, such that it proceeded in the only manner it could have, by making a decision on the papers (see Hasran at [25]).
Whilst the Tribunal had no power to convene a hearing, it nevertheless could take further steps to obtain information and it was required to comply with procedural fairness obligations. The Court considers that the Tribunal did so here by obtaining a further search of the PRISMS database on the day of its decision (the results of which indicated that the first applicant’s enrolment status remained unchanged and she was still not enrolled in a registered course of study) (Minister for Immigration and Multicultural and Indigenous Affairs v Jing Shan Sun (2005) 146 FCR 498 at [49]).
The Court does not consider that there was any error in the Tribunal’s approach in this matter. In circumstances where the first applicant failed to satisfy the enrolment criterion at the time of its decision, the Tribunal made the only decision open to it by affirming the delegate’s decision (El-Tawil v Minister for Home Affairs [2019] FCA 1012).
Grounds one and two do not disclose any jurisdictional error on the part of the Tribunal.
Ground three
Ground three suggests that the Tribunal’s invitation letter was invalid because it failed to reference s 359A of the Act and did not notify the applicants that a failure to respond to the invitation letter would result in the Tribunal proceeding to make a decision pursuant to s 359C of the Act.
The Minister submitted that the applicants’ assertions had no merit because:
(a)the Tribunal was only required to put “information” to an applicant and legislation (or principles emerging from case law) did not constitute information (citing Minister for Immigration and Ethnic Affairs v Sabri Polat [1995] FCA 1204 at [401] and Singh v Minister for Immigration & Citizenship [2011] FCAFC 27 at [47]-[48]) and the Tribunal put to the applicant information obtained from the PRISMS database for comment (CB 124-125);
(b)the Tribunal put the applicants on notice of the consequences of failing to respond to the Tribunal’s invitation letter (CB 125); and
(c)the Tribunal’s invitation letter complied with the relevant legislative provisions.
The Court agrees for the reasons that follow.
As explained by the Court above, s 359A of the Act required the Tribunal give the applicants clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. At the time of the Tribunal’s decision, s 359A of the Act relevantly provided as follows:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
The Court is satisfied that the Tribunal’s invitation complied with the relevant legislative requirements. In particular, the Tribunal’s invitation letter:
(a)gave the applicants clear particulars of the information the Tribunal considered would be the reason, or part of the reason for affirming the decision under review (as required by s 359A(1)(a) of the Act) as follows (CB 124):
The Tribunal has obtained information about you concerning your study history in Australia. The particulars of the information are set out in the Provider Registration and International Student Management System (‘PRISMS’) record dated 15 September 2022 that is enclosed with this letter. Specifically, your attention is drawn to the following information contained in that PRISMS record:
The particulars of the information are;
•Your most recent enrolment in a Bachelor of Business (Accounting) was marked cancelled by the course provider on 8 August 2021 due to you notifying cessation of studies. According to the PRISMS record, you have not been enrolled in any other registered course of study since that time. You are not enrolled in any course now.
(b)explained why that information was relevant to the review and the consequences of it being relied on in affirming the decision under review (as required by s 359A(1)(b) of the Act) as follows (CB 124):
The information is relevant to your review because the information suggests that you are not currently enrolled in a course of study. This, in turn, indicates you do not meet the primary criteria for the grant of a student visa under clause 500.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). This was the ground on which your application for the student visa was refused. This is a time of decision criterion which means at the time the Tribunal makes its decision on your application you must be currently enrolled in a registered course of study to be eligible to be granted a student visa.
If the Tribunal relies on the information above in making its decision, it may determine that you do not meet the primary criteria for the grant of a student visa. This may be the reason, or part of the reasons, for the Tribunal affirming the decision not to grant you a student visa.
(c)invited the applicants to comment on or respond to that information (being that the first applicant was not enrolled in a registered course of study) (as required by s 359A(1)(c) of the Act);
(d)put the applicants on notice that, should they not respond to the invitation, they might lose the right to a Tribunal hearing as follows (emphasis in original) (CB 125):
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
(e)gave the applicants 14 days within which to respond (being the prescribed period set out in reg 4.17(4) of the Regulations as was in force at the time of the Tribunal’s decision) (as required by s 359B(2) of the Act); and
(f)was sent to the applicants’ by email (a valid method of notification specified in s 379A of the Act) at the last known email address provided by the applicants in connection with their Tribunal review (as required by s 359A(2)(a) of the Act).
For the reasons outlined above, ground three does not identify any jurisdictional error on the part of the Tribunal.
The Court asked counsel for the Minister at the hearing of this matter whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention. There were none.
It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision. The Court is satisfied that, even adopting the broad approach referred to in [58] of these reasons, that no jurisdictional error is apparent.
CONCLUSION
The application for review has failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application for judicial review is dismissed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 26 September 2025
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