Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 684
•16 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 684
File number(s): MLG 3532 of 2020 Judgment of: JUDGE JOHNS Date of judgment: 16 May 2025 Catchwords: MIGRATION – judicial review – refusal of student visa – application under s 476 of the Migration Act 1958 (Cth) – Tribunal determined application on the basis of cl.500.211 (lack of enrolment in a course of study) rather than cl.500.212 (genuine temporary entrant) – whether failure to consider cl.500.211 constituted jurisdictional error – whether Tribunal failed to afford the Applicant procedural fairness Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) cl 500.211 of Schedule 2, 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) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
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
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Munir v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1184
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 24 April 2025 Place: Melbourne Applicant: Applicant appeared in person Counsel for the First Respondent: Mr T Noonan Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3532 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRAITON AND MULTICULTURAL AFFAIRS
First Respondent
ADMINSTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
16 MAY 2025
THE COURT ORDERS THAT:
1.The Applicant’s application for judicial review filed on 30 September 2020 is 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 JOHNS
INTRODUCTION
Before this Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (as the Minister was then called) (Delegate), to refuse to grant the Applicant a Student (Subclass 500) visa (Student Visa).
This proceeding was brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application was filed within the 35-day time period prescribed under that section of the Act.
For the reasons that follow, this Court has determined that no jurisdictional error arises from the Tribunal’s decision.
The application for judicial review is, accordingly, dismissed.
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issue in dispute
The primary issue is whether the Tribunal committed a jurisdictional error in affirming the decision of the Delegate refusing the Applicant a Student Visa.
The application for a visa
The Applicant is an Indian national who arrived in Australia on 30 April 2007. When he arrived, the Applicant held a Student (Subclass 573) visa (valid from 24 March 2007 to 31 August 2013).[1]
[1] Court Book (CB) 50 – 51.
Since arriving in Australia, the Applicant has also held the following visas:
·Temporary Graduate (Subclass 485) visa, valid from 27 January 2011 for one year, and
·Temporary Work (Skilled) (Subclass 457) visa, valid from 28 May 2016 to 28 June 2019.[2]
[2] CB 22, 52.
In his Student Visa application, the Applicant disclosed that he also previously applied for a Skilled Independent (Residence) (Subclass 885) visa.[3]
[3] Ibid.
After arriving in Australia, the Applicant attended the Melbourne Institute of Tourism and Hospitality[4] and completed:
(a)a Certificate III in Hospitality on 2 September 2008; and
(b)an Advanced Diploma of Hospitality Management on 3 July 2009.
[4] CB 20.
On 26 June 2019, the Applicant lodged an application for a Student Visa to undertake a Diploma and Advanced Diploma of Leadership and Management from an Australian education institution.[5] In support of his application, the Applicant submitted a statement expressing his intention to pursue a leadership role at a multinational hospitality company.[6] He stated that the proposed study would provide him with necessary communication, organisational, and leadership skills to achieve that goal.[7]
[5] CB 10 – 27.
[6] CB 34 – 37.
[7] Ibid.
In his Student Visa application, the Applicant noted that his mother and siblings reside in India, but that he had travelled back only once since his arrival in 2007, spending a total of 28 days in India in 2016.[8] He had been unemployed since 2018 and indicated he intended to seek employment in the hospitality sector in India after completing his studies.[9] The application also disclosed that the Applicant was in a spousal relationship with an Australian citizen.[10]
[8] Ibid; CB 28.
[9] n7.
[10] CB 16.
Decision by the delegate
On 15 August 2019, the Delegate refused to grant the Applicant the Student Visa.[11] The Delegate was not satisfied that the Applicant met the requirement in cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), namely that the Applicant must be a genuine temporary entrant. In coming to this decision, the Delegate considered that:
(a)the Applicant’s history of visa applications and limited travel to his home country since arriving in Australia evidenced an intention to remain in Australia,
(b)the Applicant’s course enrolments were obtained shortly before the expiry of his Temporary Work (Skilled) (Subclass 457) visa, and appeared to be motivated by visa eligibility rather than a genuine desire to study,
(c)the Applicant had not demonstrated a clear link between his proposed study and future career goals,
(d)the Applicant had not provided sufficient evidence of economic and family circumstances in India which would indicate an intention to return, and
(e)the Applicant’s spouse, an Australian citizen, and his long residence in Australia were likely to reduce his incentive to leave Australia after the completion of his studies.[12]
[11] CB 44 – 53.
[12] Ibid.
By operation of s 476(2)(a) of the Act, this Court has no power to review the decision of the Delegate.
Application to the Tribunal
On 3 September 2019, the Applicant applied to the Tribunal for review of the Delegate’s decision.[13]
[13] CB 54 – 55.
On 12 May 2020, the Tribunal issued a written invitation under s 359 of the Act (s 359 Letter) inviting the Applicant to provide information addressing both:
(a)cl 500.211 of the Regulations (the Enrolment Requirement), and
(b)cl 500.212 of the Regulations (the Genuine Temporary Entrant Criteria).[14]
[14] CB 62 – 63.
The Tribunal wrote,
… you will need to provide sufficient information to satisfy us that you meet both of these visa requirements, and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student.
The s 359 Letter stated that if the Applicant did not respond, the Tribunal may proceed to make a decision without inviting the Applicant to a hearing. The Tribunal wrote
…If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain 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.[15]
[15] CB 63.
The Applicant did not respond to the s 359 Letter. Consequently, the Tribunal did not hold a hearing and proceeded to determine the matter on the papers.
On 7 September 2020, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the Student Visa.[16] At the time the Tribunal made its decision, the Applicant was no longer enrolled in a course of study.[17] The Applicant conceded the same before me during the hearing.[18]
[16] CB 72 – 76.
[17] Exhibit #R2 – Affidavit of Sophie Alexandra Ward sworn on 10 April 2025.
[18] Transcript pg. 21.
TRIBUNAL’S DECISION
The Tribunal’s decision is three pages long and spans 21 paragraphs.[19]
[19] CB 73 – 76.
The Tribunal began by confirming that the Applicant was seeking a review of a decision by the Delegate to refuse the Applicant a Student Visa.[20]
[20] CB 74 at [1].
The Tribunal then summarised the Delegate’s decision. The Tribunal noted that the Delegate made its decision on the basis that the Applicant did not satisfy the Genuine Temporary Entrant Criteria.[21]
[21] CB 74 at [2] – [3].
The Tribunal correctly stated that the criteria for the grant of a Student Visa set out in Part 500 of Schedule 2 to the Regulations. For the Tribunal, the Enrolment Requirement was of key consideration.
The Tribunal noted that on 12 May 2020, it had issued the Applicant the s 359 Letter which:
(a)required the Applicant to provide information addressing both the Enrolment Requirement and the Genuine Temporary Entrant Criteria,[22] and
(b)explained in that letter that if the Applicant failed to respond within the prescribed timeframe, it may make a decision on the review without holding a hearing.[23]
[22] CB 74 at [6].
[23] CB 74 at [8].
The Tribunal found that the Applicant did not respond to the s 349 Letter and did not provide any evidence of a current enrolment.[24]
[24] CB 74 at [9].
The Tribunal noted that, while the Applicant was enrolled in a course at the time of lodging his application and when the Delegate made his decision, the Applicant had not submitted any information to the Tribunal (despite a request for the same) to satisfy the Tribunal that the Applicant remained enrolled in a course of study at the time of its decision.[25]
[25] CB 75 at [15].
In the above circumstances, the Tribunal found that the Applicant was not enrolled in a course of study and, consequently, concluded that the Enrolment Requirement was not satisfied.[26] Noting that all the primary criteria must be met for a visa to be granted, the Tribunal did not proceed to consider the remaining criteria, including the Genuine Temporary Entrant Criteria.
[26] CB 75 at [16] – [17].
Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Applicant the Student Visa.
PROCEEDINGS IN THIS COURT
The application
On 30 September 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. The Applicant seeks orders that the decision of the Tribunal be quashed and that the matter be remitted back to the Tribunal for it to be determined according to law.
To obtain assistance from this Court, the Applicant must show that the Tribunal has fallen into jurisdictional error.
The Applicant lists eight grounds of alleged error. The Applicant’s grounds of review, extracted from his initiating application (without alternation), are as follows:
(1)I seek judicial review of the decision of Administrative Review Tribunal. AAT has made a jurisdictional error in considering my review application.
(2)Decision of Department of Home affairs was related to the criteria of provisions of class TU 500.212. The department was not satisfied that clause 500.212 was met. This provision talks about the genuineness's of the applicant. The tribunal made an error and did not consider all my circumstances in relation to the visa refusal.
(3)Under that provision I have no bad immigration history with Australia. My intention to study here is genuine and I can prove that. Also, I have family back in my home country.
(4)The student visa was refused because the minister was not satisfied that criteria 500.212 is met.
(5)The tribunal did not consider my case under clause 500.212. The tribunal made an error and did not do any discussion about the Genuine Temporary Entrant criteria. Instead, the tribunal only based its decision under clause 500.211 which was never mentioned in original decision record by the department. Hence tribunal makes a jurisdictional error as a result, destroying the validity of Tribunal's decision.
(6)The Tribunal has made an error by not considering my case under clause 500.212 due to which it was refused.
(7)This is an error of law, and I request for an Order that the decision of the tribunal, be quashed.
(8)I request the respected registrar of the federal circuit court to intervene in this matter and revert the matter back to the AA T for a fair hearing.
Case management
On 17 March 2025, a Registrar of the Court issued an Order (Registrar’s Order) listing the matter for hearing before me on 24 April 2025 at the Melbourne Registry of this Court.
The Registrar’s Order amended the name of the:
(a)First Respondent to ‘Minister of Immigration and Multicultural Affairs’, and
(b)Second Respondent to ‘Administrative Review Tribunal’.
The Registrar’s Order also directed the:
(a)Applicant to file any amended application, written submissions, and further evidence by 4 April 2025, and
(b)Respondent to file any written submissions and further evidence in response by 11 April 2025.
The Applicant did not comply with the Registrar’s Order. The First Respondent (Minister) did comply with the Registrar’s Order and on 11 April 2025 filed written submissions and an Affidavit of Sophie Alexander Ward from the Australian Government Solicitor.
The materials before the Court are as follows:
(a)the application for judicial review dated 30 September 2020,
(b)a response filed by the Minister on 14 October 2020,
(c)a Court Book numbering 76 pages (marked as Exhibit R1),
(d)an outline of written submissions filed by the Minister on 11 April 2025, and
(e)the Affidavit of Ms Ward which had annexed to it a document which was not before the Tribunal but which the Minister considered should properly be before the Court on this judicial review application. That document contained enrolment data from the Provider Registration and International Student Management System (PRISMS) relating to the Applicant which showed that the Applicant was not enrolled in course of study at the time of the Tribunal’s decision. This has been marked as Exhibit R2 in these proceedings. The Applicant did not challenge the accuracy of the PRISMS data.
The judicial review hearing
At the hearing on 24 April 2025, the Applicant appeared before the Court without legal representation. He was assisted by a Punjabi translator. The Minister was represented by the Australian Government Solicitor and appeared by Mr T Noonan of Counsel.
The Court confirmed with the Applicant that they had received a copy of the Court Book and the Minister’s written submissions.
To assist the Applicant, the Court explained[27] that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that for migration decisions of this sort, types of jurisdictional error most commonly include the following categories:
(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 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].
[27] Transcript P-6 at [20].
It was also explained to the Applicant that this Court cannot review the merits of the Tribunal’s decision or grant the Applicant the visa they seek. Rather, it was explained, 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.
The explanations provided to the Applicant were interpreted. Based on the Applicant’s responses I am confident they properly comprehended the scope and purpose of the hearing.
Noting that the Applicant was unrepresented, the Court gave the Applicant an opportunity to elaborate on his grounds of review and to outline any other concerns he might have with the Tribunal’s decision. 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].
Before this Court, the Applicant made submissions in support of the grounds set out in their application. Those submissions are considered below.
The Minister made submissions consistent with the outline of written submissions filed by the Minister on 11 April 2025.
After the Minister made their submissions, the Court invited the Applicant to respond to what the Minister’s representative had said. The Applicant made further submissions which have also been considered below.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the Applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the Applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. ...
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. ... Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
CONSIDERATION
At the hearing before the Court, the Applicant was invited to make submissions about:
(a)why they believe the Tribunal made a jurisdictional error; and
(b)each of the eight grounds of application.
To the extent that the Applicant made submissions in relation to the specific grounds, they are summarised below in the context of considering each of the grounds. To the extent that the Applicant made more general submissions, those submissions largely invited the Court to engage in impermissible merits review of the Tribunal’s decision. As this Court explained to the Applicant at the hearing, the Court cannot consider for itself whether the Applicant meets the criteria for a Student Visa. To the extent that the Applicant’s submissions invite the Court to engage in merits review, they do not establish jurisdictional error in the Tribunal’s decision.
The Minister submitted that the decision of the Tribunal was not affected by jurisdictional error. I incorporate (without repetition) paragraphs 10 to 35 of the Minister’s outline of submissions.
The grounds of review asserted by the Applicant will now be addressed in turn.
Ground 1
1. I seek judicial review of the decision of Administrative Review Tribunal. AAT has made a jurisdictional error in considering my review application.
The first sentence of the ground is descriptive of what the Applicant seeks. The second sentence is a bold statement about error that it otherwise not supported by particulars. The Registrar’s Order provided the Applicant with an opportunity to amend his application and provide written submissions. The Applicant did neither. As presently drafted, without particularisation, ground 1 does not disclose a proper ground of review. At the hearing, the Applicant made no submissions elaborating on this ground. Accordingly, ground 1 is dismissed.
Ground 2
2. Decision of Department of Home affairs was related to the criteria of provisions of class TU 500.212. The department was not satisfied that clause 500.212 was met. This provision talks about the genuineness's of the applicant. The tribunal made an error and did not consider all my circumstances in relation to the visa refusal.
Sentences one and two of the ground are directed to the decision of the Delegate, not the Tribunal. As the Court explained to the Applicant during the hearing, it does not have jurisdiction to review the Delegate’s decision.[28] The third sentence is descriptive of 500.212.
[28] Migration Act 1958 (Cth), s 476(2)(a).
The fourth sentence is an allegation against the Tribunal. The contention is that the Tribunal “made an error and did not consider all of [the Applicant’s] circumstances in relation to the visa refusal”. At the hearing three times the Court asked the Applicant what he meant by this statement. He responded,
·“Actually, I’m in Australia for 18 years, so at that time, I had only option left was student visa, and so I applied for student visa at that time, and they just refusal.”[29]
·“Because they didn’t consider my, you know, like my situation.”[30]
·“Like, I mean, you know, I already saw a really hard time in Australia you know, and this was only my last option to stay in Australia, so that’s why.”.[31]
[29] Transcript P-10 at [15].
[30] Transcript P-10 at [25].
[31] Transcript P-10 at [30].
The Court then asked the Applicant if he wanted to address anything further in respect of this ground, and he replied “No”.[32] Consequently, the Court does not know what it is alleged the Tribunal did not consider.
[32] Transcript P-10 at [35].
Therefore, this ground, to the extent that it is directed to the conduct of the Tribunal, lacks specificity and fails to identify any act or omission which could amount to a jurisdictional error. Ground 2 is therefore dismissed.
Ground 3
3. Under that provision I have no bad immigration history with Australia. My intention to study here is genuine and I can prove that. Also, I have family back in my home country.
At the hearing, I asked if the Applicant wanted to say anything further in respect of this ground. The Applicant submitted that he had been in Australia since 2007, had completed his prior studies, and had family support in India. He stated that he had spent half of his life in Australia and did not want to return to India.[33]
[33] Transcript P-11 at [5].
Substantively, ground three and the Applicant’s oral submissions made to the Court are merit arguments about the Genuine Temporary Entrant Criteria. Merit arguments are not relevant to and do not disclose the existence of jurisdictional error on the part of the Tribunal. Accordingly, ground 3 is dismissed.
Ground 4
4. The student visa was refused because the minister was not satisfied that criteria 500.212 is met.
The Applicant made no further submissions in respect of this ground at the hearing.[34]
[34] Transcript P-11 at [30].
This ground is descriptive of the Delegate’s decision and is not directed at the Tribunal’s decision. Consequently, ground 4 is dismissed.
Grounds 5, 6, 7 and 8
5. The tribunal did not consider my case under clause 500.212. The tribunal made an error and did not do any discussion about the Genuine Temporary Entrant criteria. Instead, the tribunal only based its decision under clause 500.211 which was never mentioned in original decision record by the department. Hence tribunal makes a jurisdictional error as a result, destroying the validity of Tribunal's decision.
6. The Tribunal has made an error by not considering my case under clause 500.212 due to which it was refused.
7. This is an error of law, and I request for an Order that the decision of the tribunal, be quashed.
8. I request the respected registrar of the federal circuit court to intervene in this matter and revert the matter back to the AAT for a fair hearing.
In essence the Court understands that these grounds, when considered together, contend that the Tribunal fell into jurisdictional error because it considered only the Enrolment Requirement and not the Genuine Temporary Entrant Criteria (which is what the Delegate had considered).
When I asked the Applicant if he wished to elaborate on these grounds, the Applicant told the Court that these grounds had been drafted by his migration agent and that he could not elaborate on them.[35]
[35] Transcript P-12 at [5].
During the hearing, the Minister submitted that the Tribunal was entitled to determine the matter by reference to the Enrolment Requirement (cl.500.211) and no procedural unfairness arose by the Tribunal’s failure to consider the Genuine Temporary Entrant Criteria (cl.500.212). The Minister correctly submitted that the Tribunal had issued an invitation under s 359 of the Act, requesting the Applicant to address both cl.500.211 and cl.500.212. After the Tribunal received no response from the Applicant, it made its decision by reference to cl.500.211.[36]
[36] Transcript P-13 – P-14.
The Court accepts the Minister’s submission. Clause 500.2 of Schedule 2 of the Regulations requires that all the primary criteria in cl.500.211 to cl.500.218 be met by the Applicant at the time of the decision. After finding that cl.500.211 was not satisfied by the Applicant, it was not required to proceed further. The Court is further satisfied that no procedural unfairness occurred because the s 359 Letter gave clear notice of the Enrolment Requirement, and the Applicant was invited to provide evidence that he was enrolled in a course of study prior to the Tribunal’s decision. The Applicant submitted nothing additionally to the Tribunal. That is a matter for him.
The sending of the s 359 Letter also cures any criticism that the Applicant makes that the Tribunal determined the matter without a hearing. The Applicant was properly put on notice that this would occur if he filed no material in the Tribunal.
To the extent that the Applicant is taken to have contended that it was not open to the Tribunal to affirm the decision of the Delegate on a different basis than the Delegate, for the reasons explained in Munir v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1184 at [36]-[39], that contention is wrong.
Accordingly, grounds 5 - 8 are dismissed.
Other matters raised before the Court
At the hearing on 24 April 2025, the Applicant acknowledged that he was not enrolled in a course of study in September 2020 and sought to justify his non-enrolment.[37] The Applicant appeared to contend that he could or should only be enrolled in a course of study if he held a study visa and, since he did not hold a student visa in September 2020, this justified or explained why he was not enrolled in a course of study.[38] However, in light of the statutory scheme which includes cl.500.211 and, which does not bar or prevent a person from enrolling in a course of study without holding a student visa, this contention does not establish a possible jurisdictional error on the Tribunal’s decision.
[37] Transcript P-21 at [15].
[38] Transcript P-21 at [25].
DISPOSITION
For the reasons set out above, this Court is satisfied that the Tribunal’s reasons were not affected by jurisdictional error.
Accordingly, the application for judicial review is dismissed. The Court will hear the parties on costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 16 May 2025
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