Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1721
•29 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1721
File number: PEG 395 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 29 July 2021 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to assess relevant information – whether the Tribunal acted unreasonably – whether the Tribunal should have adjourned the hearing to allow the applicant time within which to enrol in a course of study – no jurisdictional error – application dismissed Legislation: Federal Circuit Court of Australia Act 1999 (Cth), Part 6 of Division 5
Migration Act 1958 (Cth), ss 116, 359, 363, 476
Migration Regulations 1994 (Cth), cl 500.212 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (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
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24; (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 70 Date of hearing: 21 July 2021 Place: Perth Applicant: Appeared in person Counsel for the First Respondent: Ms E Tattersall Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 395 of 2020 BETWEEN: MANINDERJIT SINGH SANDHU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
29 JULY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
An overview of the background relevant to this matter is provided in written submissions filed by the Minister in this Court on 25 June 2021 at [1] to [14]. Having reviewed the Court Book in detail, it is clear that the summary provided is accurate. The Court adopts it as its own. With some alteration, that summary provides as follows.
Background
By application filed on 31 December 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 10 December 2020. That decision affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”).
The applicant is a citizen of India (Court Book (“CB”) 2). On 4 August 2018, he applied as a subsequent entrant for a Student (Subclass 500) visa (the “subsequent entrant visa”). That application was made based on his marriage to the primary visa holder, Ms “K”. On 21 January 2019, Ms K notified the department that her relationship with the applicant had broken down. On 28 June 2019, the applicant was erroneously granted the subsequent entrant visa and, on 5 July 2019, arrived in Australia as the holder of that visa (CB 51-52, 78 & 88).
On 6 August 2019, the applicant applied in his own right for the temporary student visa the subject of these proceedings (CB 1-19). That application was made on the basis of his enrolment in a Certificate III in Light Vehicle Mechanical Technology (course end date 2 August 2020) and a Certificate IV in Automotive Mechanical Diagnosis (course end date 5 September 2021) (CB 22-23).
On 28 August 2019, the Subsequent Entrant Visa was cancelled pursuant to s 116(1)(aa) of the Migration Act 1958 (Cth) (the “Act”) because the applicant’s relationship with Ms K had broken down (CB 52, 78 & 99-106).
On 4 September 2019, the Ministerial delegate refused to grant the temporary student visa (CB 28-31). The delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia and therefore found that he did not meet cl 500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”).
On 10 September 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 32-33). He was represented by a registered migration agent.
On 22 September 2020, the Tribunal wrote to the applicant and invited him to provide information about the course(s) of study he was undertaking and his entry and stay in Australia as a student pursuant to s 359 of the Act (CB 39-40). The invitation recorded that, as he had applied for the visa on the basis of undertaking a course of study in Australia, it was a requirement for him to be enrolled in a registered course of study and that he be a genuine applicant for entry and stay as a student. The invitation contained a link to a Request for Student Visa Information questionnaire (the “questionnaire”) and asked that the applicant provide the information in the questionnaire by 6 October 2020. The invitation also attached a copy of Ministerial Direction 69 (“Direction 69”) (CB 41-45).
On 6 October 2020, the applicant provided a completed questionnaire (CB 48-59) and attachments (CB 60-66) to the Tribunal. In the questionnaire, the applicant ticked “No” to question 14, which asked: “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?” (CB 53). Immediately beneath that question was a note which read:
Note: Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.
The applicant also confirmed that he did not complete the Certificate III in Light Vehicle Mechanical Technology and had never started the Certificate IV in Automotive Mechanical Diagnosis (CB 53).
On 16 October 2020, the applicant was invited to attend a hearing before the Tribunal scheduled to take place on 10 December 2020 (CB 69-71). On 7 December 2020, the applicant gave a written submission to the Tribunal which addressed the delegate’s decision (CB 77-87) and which provided supporting material (CB 88-108). The applicant claimed that he was not currently enrolled because he did not have study rights included on his bridging visa and his application for study rights had been refused (CB 79-80 & 107).
On 10 December 2020, the applicant appeared before the Tribunal with his representative to give evidence and present arguments. He was assisted by an interpreter in the Punjabi language (CB 112-115).
The Tribunal affirmed the delegate’s decision in an oral decision (CB 118). On 11 December 2020, the applicant’s representative requested written reasons for the Tribunal’s decision (CB 119). The Tribunal reduced its oral decision to writing and provided the written decision to the applicant on 29 January 2021 (CB 122-129).
On 31 December 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s written reasons are 6 pages long and span 37 paragraphs.
The Tribunal began by identifying the type of visa under review. It then summarised the delegate’s decision (at [1]).
The Tribunal noted that it had explained its role to the applicant and had given him an opportunity to inform the Tribunal if he had “changed his mind” about proceeding with the hearing (noting that the applicant’s representative was not in attendance with him) (at [2]-[5]). With the applicant’s consent, the hearing proceeded without the applicant’s representative (at [5]).
The hearing was held via telephone with the assistance of an interpreter in the Punjabi language (at [5]). In this regard, the Tribunal noted that the applicant had agreed to proceed by telephone and did not raise any issues about the interpretation services provided during the Tribunal hearing (at [5]).
The Tribunal then noted that it had informed the applicant that the Tribunal had sent a letter to his migration agent on 22 September 2020, advising the applicant that he would need to provide sufficient information to satisfy the Tribunal that he was enrolled in a registered course of study and that he was a genuine temporary entrant (at [6]-[7]).
The Tribunal continued:
8. The letter also said that the information should be received by 6 October 2020. It indicated that if no information was received the tribunal could make a decision on a review without taking any further action. But anyway, as I said, you did respond. The importance of that letter, or the relevance of that letter, is that certainly as far back as 22 September 2020 you, through your representative, were put on notice that the requirement to be enrolled in a registered course of study was a ‘live issue’ for the tribunal in conducting its review.
9. It is fair to say that the determinative issue for the delegate, in this instance, was not enrolment. The determinative issue [for the delegate] was whether you are a genuine applicant for entry and stay as a student. For reasons I will explain the tribunal is entitled to ‘switch’ the determinative issue from one of being a genuine applicant to the issue of current enrolment in a registered course of study.
The Tribunal then outlined the following chronology (at [10]-[12]):
10. It is helpful I think to set out the background in some chronological order to your particular case. I have seen two Confirmation of Enrolment forms from the Department of Education. The first relates to your enrolment in a Certificate III in light vehicle mechanical technology. That course was to start on 5 August 2019 and end on 2 August 2020 just gone. You did enrol. It appears that you were enrolled on or about 5 August 2019, that date has some relevance for reasons I will explain soon.
11. I have also seen a Confirmation of Enrolment for a Certificate IV in automotive mechanical diagnosis. That course was to start on 7 September 2020 and end on 5 September 2021. Again, it appears that that enrolment occurred on or about 5 August 2019. I should say that the enrolments were with the same college, being Macallan College.
12. You applied for this student visa on 6 August 2019. So that is where this relevance of 5 August on the enrolments comes into being. That is, that you enrolled on 5 August 2019 and the next day you then applied for the student visa. The decision was made on 4 September 2019 to refuse it.
The Tribunal then identified that it had taken into account the fact that the applicant held a bridging visa (granted 25 October 2019) – one of the conditions of which required that the applicant not study (at [13]-[14]).
The Tribunal acknowledged that there was also a delegate’s decision dated 28 August 2019 which cancelled the applicant’s original Student Subsequent Entrant (subclass 500) visa under s 116 of the Act (at [15]).
The Tribunal acknowledged that it had two documents before it from the Provider Registration and International Student Management System (PRISMS) (at [16]). Those documents indicated that the applicant’s enrolment in the Certificate III in light vehicle mechanical technology was cancelled on the basis that he did not hold a student visa and his enrolment in the Certificate IV in automotive mechanical diagnosis was cancelled because the applicant held a bridging visa that did not grant him study rights (at [16]-[17]).
The Tribunal then summarised the applicant’s written submissions (dated 6 October 2020) which addressed whether the applicant was currently enrolled in a registered course of study (at [18]-[20]). The Tribunal considered this to be a “live issue” for consideration on review (at [21]).
The Tribunal then outlined the evidence and submissions that it had before it, including evidence given by the applicant at the hearing (at [22]-[27]). The Tribunal noted that the evidence and submissions related to whether the applicant was a genuine temporary entrant and did not address, in any detail, “the issue as to enrolment” (at [25]-[26]).
The Tribunal then considered whether the applicant was enrolled in a relevant course of study at the time of its decision as follows:
28.I raised the issue with you that I had information that indicated to me that you were not currently enrolled in a registered course of study in Australia and that I was aware that there had been two courses cancelled. Now, under section 359AA of the Migration Act where an applicant is appearing before the tribunal because of an invitation under section 360, which is your situation, I may give orally to you clear particulars of any information that I consider would be the reason, or a part of the reason, for affirming the decision under review. I had formed the view that the information to the effect you were not enrolled in a registered course of study would be information that would form the reason, or a part of the reason, for affirming the decision under review. I gave you particulars of that information in what I considered to be clear way informing you of it.
29. I then, as far as was reasonably practicable, explained why that information was relevant to the review and I sought confirmation as to whether you understood why it was relevant to the review. The information is relevant to the review because the criteria for a subclass 500 student visa are set out in part 500 of schedule 2 to the regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Of course, you are the only applicant.
The Tribunal continued:
30. Clause 500.211 relevantly requires that at the time of this decision you are enrolled in a registered course of study; clause 500.211(a) applies. You have never claimed to meet any of the alternative criteria in clause 500.211. A ‘course of study’ is relevantly defined in clause 500.111 of the Regulations as a full time registered course. ‘Registered course’ is defined by regulation 1.03 of the regulations as a course of educational training provided by an institution, body or person that is registered under division 3 of part 2 of the Education Services for Overseas Students Act 2000 to provide the course to overseas students.
31. So, the situation was you were not in a position, for reasons I have already explained, to provide enrolment evidence to the tribunal such as a copy of a current Confirmation of Enrolment certificate. So, I consider that the consequences of the information being relied upon in affirming the decision under review was explained as clearly as practicable to you. There are no indications you did not understand that.
The Tribunal, noting that it had invited the applicant to comment on or respond to information that would be the reason (or a part of the reason) for affirming the decision under review, summarised the applicant’s submissions in that regard as follows (at [32]-[34]):
32. I indicated to you that I must orally invite you to comment on or respond to the information and you did. You outlined those unfortunate circumstances you had experienced that I have already outlined concerning your relationship with your wife breaking down and the consequence of that was the cancellation of your visa connected to her visa and I accept that as very unfortunate.
33. You understood that the determinative issue for me had ‘turned’ in the sense of initially being whether you are a genuine temporary entrant as a student, being the reason the decision was refused, to now being one of your enrolment situation. I listened to what you had to say. You outlined to me {in response to the section 359AA requirements} your marriage, your enrolments that you had paid fees for, that you had anticipated studying, you could not get study rights under your bridging visa and that caused you a great deal of problems.
34. I asked what you had done after the courses were cancelled through Macallan College and you indicated you had not tried to enrol in other courses. The reason for that was you had already paid the fees to Macallan. I advised you that you could seek additional time to comment or respond to this information as required by section 359AA. You indicated to me you did not want any more time and of course it was shortly thereafter that I commenced giving this decision.
The Tribunal then concluded as follows:
35.I have taken into account your comments and your explanations. Unfortunately, that does not and cannot change the position that I face now and that is you are a person without any current enrolment in a registered course of study. Therefore clause 500.211 is not met as at time of decision. Given those findings the tribunal finds that the criteria for the grant of a subclass 500 student visa are not met. You do not claim to meet the criteria for a subclass 590 student guardian visa.
On the basis of the above, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa (at [36]-[37]).
PROCEEDINGS IN THIS COURT
The application on for judicial review filed by the applicant contains seven “grounds of review” as follows:
1.I am the applicant and received a Tribunal refusal of Student SC500 visa on 11 December 2020 which was refused on 4 September 2019. My Student Depended (SC 500) was cancelled on 28 August 2019 which effected the status of my student visa application and I ended up applying BVE 050 with conditions 8101 and 8207.
2.I am not satisfied with AAT decision which is totally unreasonable and have not considered my circumstances in the home country and my genuine intentions to study.
3.I was unable to continue my study as I did not have study rights as my previous visa (Student Dependent) was cancelled on 28 August 2019 which effected my student visa application therefore Macallan College cancelled in the absence of study rights.
4.I applied study rights twice which was refused by the Deparment of Home Affairs.
5.Tribunal did not give me a fair chance to take a further course and disregarded my application for appeal.
6.I request the authroties to review my application as I have genuine intentions to study.
7.I have strong financial, family, and social background in the home country India and I would return to the home country after completing mycourse. My supporting documents wer disregarded by the Tribunal member.
The affidavit affirmed and filed by the applicant on 31 December 2020 was in identical terms to the application for judicial review outlined above.
The applicant was given an opportunity to file an amended application, any further affidavit evidence and written submissions. No further materials were filed.
The materials before the Court thus include the application for judicial review dated 31 December 2020, a Court Book numbering 129 pages (marked as Exhibit 1) and written submissions filed by the Minister on 25 June 2021.
On 31 May 2021, the applicant emailed the Court to advise that he had moved to Melbourne. On 1 June 2021, the Court granted the applicant leave to appear the hearing via Microsoft Teams pursuant to Part 6 of Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth) and on 8 July 2021, counsel for the Minister was also granted leave to appear via Microsoft Teams.
The applicant appeared without legal representation. He was assisted by a Punjabi interpreter. The Court confirmed that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review in his application for judicial review and to outline any other concerns that he might have with the Tribunal’s decision (as per the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]).
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (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) HCA 24; (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 at [131]; Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].
It was also explained that this Court 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 restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
In this context, the applicant was asked to explain to the Court what he thought the Tribunal “did wrong”. In effect, the applicant stressed that he thought it was unfair for the Tribunal to expect him to have enrolled in a course of study when his temporary visa prohibited him from studying. He also advised the Court that, whilst he was not enrolled in a course of study at the time of the Tribunal hearing, he was now enrolled in a course of study.
The issues raised by the applicant in oral submissions are addressed below when addressing the applicant’s “grounds of review” as a whole.
CONSIDERATION
As the applicant is self-represented, the Court has assessed all articulated grounds of review broadly to ensure that, to the extent that possible legal error is identified, it can be scrutinised: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. The Court has also considered for itself whether any error arises in the Tribunal’s decision.
The Court notes the Minister’s submissions in relation to the applicant’s grounds of review which, relevantly, provide:
26 The applicant’s primary complaint appears to be that the Tribunal failed to consider that his enrolments at Macallan College were cancelled because he did not have study rights on his bridging visa, meaning that he was “unable to continue [his] study”. He also complains that the Tribunal did not consider his circumstances and supporting documents.
27 These complaints are misguided for several reasons.
28 First, the Tribunal repeatedly referred to the fact the applicant’s bridging visa did not have study rights, which resulted in the cancellation of his enrolments at Macallan College: CB 126, [14]; CB 127, [16]-[17]; CB 129, [33]-[34]. However, it correctly found that this explanation could not change the fact that the applicant was without any current enrolment in a registered course of study at the time of its decision, meaning that cl 500.211 was not met: CB 129, [35].
29 Second, whilst it may have been the case that the applicant was “unable to continue [his] study” without study rights whilst he was on the bridging visa, cl 500.211 did not require that the applicant was presently studying at the time of the Tribunal’s decision. Rather, it required that he was enrolled in a course of study at the time of decision. There was nothing preventing the applicant from enrolling in a course of study at the time of decision. Indeed, he was required to have done so for the grant of the visa and the fact that he did not was fatal to his application.
30 The Tribunal recorded that it asked the applicant what he had done after his courses at Macallan College were cancelled and he indicated he had not tried to enrol in other courses as he had already paid fees to Macallan College: CB 129, [34].
31 Accordingly, and contrary to the claim that the Tribunal “did not give [him] a fair chance to take a further course”, the applicant was aware of the requirement to be enrolled at the time of the Tribunal’s decision but chose not to do so as he did not want to pay more course fees.
32 Third and furthermore, the Tribunal was correct to find that the applicant was aware that the requirement to be enrolled was a “live issue” for the Tribunal “certainly as far back as 22 September 2020” when he was sent the invitation to provide information (CB 126, [8]). It was also correct to find that the questionnaire had also expressly put him on notice of the requirement and that his lack of enrolment may be a reason for affirming the decision: CB 127, [20]-[21]. Additionally, the decision record also shows that the Tribunal put the applicant’s lack of enrolment and potential consequences to him under s 359AA of the Act at hearing: CB 128-129, [28]-[34].
33 Insofar as the applicant’s complaint is that he should have been granted an adjournment to obtain enrolment, whilst s 363(1)(b) of the Act empowers the Tribunal to adjourn the review from time to time, there is no legal obligation to consider the exercise of this discretionary power. The decision record, which is the only evidence before the Court of what happened at the Tribunal hearing, does not suggest that the applicant, at any time, sought an adjournment or otherwise requested further time to provide additional information. …
The Court accepts the Minister’s submissions in this regard and, for the reasons that follow, does not accept that the Tribunal has fallen into error.
The applicant argues that the Tribunal failed to assess information – relevantly, his circumstances in his home country and his genuine intentions to study. Further, although not particularised, it is arguable from what the applicant has said in oral submissions to the Court that his main concern here is that it was unreasonable for the Tribunal to proceed as it did in circumstances where his bridging visa did not allow him to study.
It is correct that the Tribunal did not assess the applicant’s “circumstances in his home country and his genuine intentions to study”. However, the Tribunal was not required to do so. These issues were not relevant to the sole issue before the Tribunal. That issue was whether the applicant was enrolled in a registered course of study at the time of the Tribunal’s decision.
In so far as the applicant believes the Tribunal’s approach in this regard was “unreasonable”, the Court disagrees.
“Unreasonableness” can occur in circumstances where a decision is made that is so devoid of plausible justification that no reasonable person could have taken that course: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [28] per French CJ. It can also occur when a decision has been made that “lacks an evident and intelligible justification”: Li at [76].
As was explained by Bell and Crennan JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”), the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it made on the material before it (at [133]).
In Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 the Full Court of the Federal Court further explained:
[65]… The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
In this matter, the Tribunal informed the applicant on 22 September 2020 that it is a requirement for the grant of the visa that the applicant be enrolled in a registered course of study and that he be a genuine applicant for entry and stay as a student (CB 39). The Tribunal invited the applicant to provide information to satisfy these two requirements in the “Request for Student Visa Information form” (CB 39). The applicant, through his migration agent, responded on 6 October 2020 (CB 46-66). The applicant answered “No” in response to the question “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?” Underneath this question, the form noted as follows (CB 53):
Note: Not being enrolled in a registered course of study may be a reason, or part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.
The Tribunal in its reasons for decision stated (emphasis added):
8. The letter also said that the information should be received by 6 October 2020. It indicated that if no information was received the tribunal could make a decision on a review without taking any further action. But anyway, as I said, you did respond. The importance of that letter, or the relevance of that letter, is that certainly as far back as 22 September 2020 you, through your representative, were put on notice that the requirement to be enrolled in a registered course of study was a ‘live issue’ for the tribunal in conducting its review.
9. It is fair to say that the determinative issue for the delegate, in this instance, was not enrolment. The determinative issue [for the delegate] was whether you are a genuine applicant for entry and stay as a student. For reasons I will explain the tribunal is entitled to ‘switch’ the determinative issue from one of being a genuine applicant to the issue of current enrolment in a registered course of study.
The applicant had been on notice since 22 September 2020 he was required to be enrolled in a registered course of study and that this could be a reason or part of the reason for the Tribunal affirming the decision under review.
In written submissions to the Tribunal dated 7 December 2020, the applicant stated as follows with respect to his enrolment status (CB 79-80):
18. Maninderjit Confirmation of Enrolment (CoE) was cancelled by Macallan College due to not having the study rights.
19. On 10 October 2019, Maninderjit applied to the Department of Home Affairs for permission to study.
20. On 25 October 2019, the delegate refused the request for the permission to study, and the condition ‘8207- No Study’ was reimposed on his further Bridging E visa grant.
The Tribunal, in its reasons, stated that these submissions did not appear to address the issue of enrolment in any particular detail (at [25]).
At the Tribunal hearing on 10 December 2020, the applicant was reminded that a lack of current enrolment in a registered course of study could be the reason, or part of the reason, for the Tribunal affirming the decision under review. The Tribunal’s summary of how it approached this issue is as follows:
28. I raised the issue with you that I had information that indicated to me that you were not currently enrolled in a registered course of study in Australia and that I was aware that there had been two courses cancelled. Now, under section 359AA of the Migration Act where an applicant is appearing before the tribunal because of an invitation under section 360, which is your situation, I may give orally to you clear particulars of any information that I consider would be the reason, or a part of the reason, for affirming the decision under review. I had formed the view that the information to the effect you were not enrolled in a registered course of study would be information that would form the reason, or a part of the reason, for affirming the decision under review. I gave you particulars of that information in what I considered to be clear way informing you of it.
29. I then, as far as was reasonably practicable, explained why that information was relevant to the review and I sought confirmation as to whether you understood why it was relevant to the review. The information is relevant to the review because the criteria for a subclass 500 student visa are set out in part 500 of schedule 2 to the regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Of course, you are the only applicant.
The Tribunal outlined the evidence before it – all of which indicated that the applicant understood that the issue for the Tribunal was whether he was enrolled in a course of study, as follows:
31. So, the situation was you were not in a position, for reasons I have already explained, to provide enrolment evidence to the tribunal such as a copy of a current Confirmation of Enrolment certificate. So, I consider that the consequences of the information being relied upon in affirming the decision under review was explained as clearly as practicable to you. There are no indications you did not understand that.
32. I indicated to you that I must orally invite you to comment on or respond to the information and you did. You outlined those unfortunate circumstances you had experienced that I have already outlined concerning your relationship with your wife breaking down and the consequence of that was the cancellation of your visa connected to her visa and I accept that as very unfortunate.
33. You understood that the determinative issue for me had ‘turned’ in the sense of initially being whether you are a genuine temporary entrant as a student, being the reason the decision was refused, to now being one of your enrolment situation. I listened to what you had to say. You outlined to me {in response to the section 359AA requirements} your marriage, your enrolments that you had paid fees for, that you had anticipated studying, you could not get study rights under your bridging visa and that caused you a great deal of problems.
The Tribunal advised the applicant that he could seek additional time to comment on this information. The applicant declined the opportunity to do so (at [34]). The Tribunal also noted that the applicant had indicated that he had not tried to enrol in other courses after his course through the Macallan College had been cancelled (at [34]).
On the basis of the evidence before it the Tribunal concluded as follows:
35. I have taken into account your comments and your explanations. Unfortunately, that does not and cannot change the position that I face now and that is you are a person without any current enrolment in a registered course of study. Therefore clause 500.211 is not met as at time of decision. Given those findings the tribunal finds that the criteria for the grant of a subclass 500 student visa are not met. You do not claim to meet the criteria for a subclass 590 student guardian visa.
The applicant was not enrolled in a course of study at the time of the Tribunal’s decision. The applicant had not taken any steps to remedy this issue. The applicant had been on notice from September 2020 until the hearing in December 2020 that he was required to be enrolled in a registered course of study in order to satisfy the requirements for the grant of the visa. He had not done so and there was no material before the Tribunal to suggest that further evidence in that regard was forthcoming.
While the Court is sympathetic to the applicant’s situation, he gave evidence to the Tribunal that he was not, at the time of the Tribunal’s decision, currently enrolled in a registered course of study (at [33]). He therefore failed to satisfy cl 500.211 of the Regulations. The Tribunal could not remedy the fact that the applicant was not currently enrolled in a registered course at the time of its decision.
It was irrelevant that the applicant was unable to continue his studies as the applicant only needed to be currently enrolled in a registered course of study to be granted the study visa. The applicant was not enrolled.
In these circumstances, it cannot be said that the Tribunal’s conclusions were “lacking in evident and intelligible justification”. The Tribunal’s findings were open to it and the approach taken by the Tribunal when assessing the evidence before it was entirely sound.
While not entirely clear, the applicant also appears to suggest that the Tribunal should have adjourned the hearing to allow him further time to apply to study in another course.
While the Tribunal does have the discretionary power to adjourn the review from time to time pursuant to s 363(1)(b) of the Act, it is noted here that the Tribunal advised the applicant that he could seek additional time to comment on or respond to the information that he was not enrolled in other courses. The applicant advised that he did not want “more time” (at [34]).
The applicant had been on notice for quite some time that he was required to be enrolled in a registered course of study at the time of the Tribunal’s decision. In the application for the student visa made by the applicant on 6 August 2019, he was asked whether he held a Confirmation of Enrolment (CB 1). Additionally, in an invitation to provide information to the Tribunal dated 22 September 2020, the applicant was informed that one of the requirements for the grant of the visa is that the applicant be enrolled in a registered course of study. That invitation also advised that this may be the reason (or part of the reason) for the Tribunal affirming the decision under review (CB 39 & 43). At the hearing on 10 December 2020, the Tribunal gave the applicant an opportunity to seek an adjournment but he did not do so (at [34]). The applicant had had more than 12 months (from 27 November 2019, being the date his enrolments were cancelled (CB 109) to 10 December 2020, being the date of the Tribunal’s decision) to enrol in a registered course of study but did not avail himself of this opportunity.
In these circumstances, it cannot be said that it was unreasonable for the Tribunal not to adjourn to allow the applicant more time within which to enrol in a course of study.
CONCLUSION
The applicant’s application for judicial review dated 31 December 2020 has failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 29 July 2021
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