Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 993
•8 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 993
File number: MLG 1114 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 8 October 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to give the applicant adequate notice of, and a sufficient opportunity to address, a critical issue in the review – whether the Tribunal asked itself the wrong question or misconstrued the statutory requirements – whether the Tribunal acted unreasonably in refusing the applicant’s request for an adjournment – no jurisdictional error – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 18B
Migration Act 1958 (Cth) ss 360, 363, 476, 477
Migration Regulations 1994 (Cth) Sch 2, cll 572.223, 572.231
Cases cited: Abbas v Minister for Immigration [2019] FCCA 2577
Anderson v The Council of the City of Lismore (2011) 185 LGERA 239; [2011] NSWSC 1058
Giakou v Minister for Immigration [2020] FCCA 2575
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; [1990] HCA 22
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of hearing: 18 October 2023 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Dr J Harkess Solicitor for the Applicant: Australian Migration Lawyers Counsel for the First Respondent: Mr N Dour Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1114 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
8 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application 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 LADHAMS:
INTRODUCTION
The applicant is a non-citizen who applied for a student visa. A delegate of the Minister refused to grant the applicant a student visa and that decision was affirmed by the Administrative Appeals Tribunal (Tribunal) on 4 April 2018. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant raises three grounds of application which broadly assert that the Tribunal:
(a)failed to give the applicant adequate notice of and a sufficient opportunity to give evidence in relation to a critical issue, namely, whether he met the enrolment criterion;
(b)asked itself the wrong question or otherwise misconstrued the statutory requirements in determining whether the applicant met the enrolment criterion; and
(c)acted unreasonably by refusing the applicant’s request for an adjournment.
For the reasons explained below, I have found that that the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant first arrived in Australia in February 2009 as the holder of a student visa. On 2 April 2015 the applicant applied for a further student visa.
On 15 May 2015 the delegate refused to grant the visa because the applicant did not satisfy the requirements of cl 572.223 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.
On 4 June 2015 the applicant applied to the Migration Review Tribunal for merits review of the delegate’s decision.
On 25 July 2016 the Tribunal invited the applicant to attend a hearing on 10 August 2016. The invitation letter requested copies of all documents the applicant intended to rely on to establish that he met the visa criteria.
The applicant attended a hearing before the Tribunal on 10 August 2016 and on 1 September 2016 the Tribunal purported to affirm the delegate’s decision on the basis that the applicant did not meet the genuine temporary entrant criterion. The applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision, and the Court quashed the Tribunal decision and remitted the matter to the Tribunal for reconsideration.
On 15 March 2018 the Tribunal invited the applicant to attend a hearing to be held on 4 April 2018. The invitation letter requested the applicant provide all documents he intended to rely on, including copies of a current Certificate of Enrolment (COE) or documents that showed the applicant was currently enrolled in a course or had an offer of enrolment in a registered course. The letter also indicated that the Tribunal would assess whether the applicant intended genuinely to stay in Australia temporarily.
The applicant attended a hearing before the Tribunal on 4 April 2018 with his representative. After the applicant gave evidence and presented arguments, the Tribunal made an oral decision affirming the delegate’s decision. The Tribunal published its reasons in writing on 5 April 2018.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal recorded that, while the issue before the delegate and the Tribunal as previously constituted was whether the applicant met the genuine temporary entrant criterion in cl 572.223 in Sch 2 to the Regulations, the issue was now whether the applicant met the enrolment requirements for a student visa. The Tribunal recorded that it explained this to the applicant and his representative at the hearing and they confirmed that they both understood the issue.
The Tribunal noted that the applicant explained at the hearing that he was not currently enrolled to study and had not been enrolled to study since late 2016 when he was undertaking an Advanced Diploma of Business. While the applicant told the Tribunal he had been unable to obtain a COE because he was on a bridging visa, he also said that there were no conditions on his bridging visa preventing him from studying. The Tribunal was not satisfied that the applicant was prevented from obtaining a COE or letter of offer to study.
The Tribunal acknowledged the applicant’s submission that he had been able, and would still be able, to obtain a COE for the remaining units of his Advanced Diploma of Business but had not done so because he wanted to pursue a Bachelor’s degree instead. The Tribunal considered it was peculiar that the applicant had not been able to provide the Tribunal with a COE or letter of offer to study in circumstances where the applicant claimed that he could have done so.
The Tribunal then considered a request made by the applicant for further time to obtain and provide a COE or letter of offer to study. The Tribunal declined this request in circumstances where the applicant had been put on notice of the need to provide a current COE or offer of enrolment in the hearing invitation sent on 15 March 2018.
The Tribunal considered there was no evidence before it that the applicant was enrolled in or had a current offer of enrolment in any applicable course of study, and therefore found that the applicant did not meet the enrolment requirements in Sch 2 to the Regulations for any of the relevant types of student visas. Accordingly, the Tribunal affirmed the delegate’s decision.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 27 April 2018. The application was made within 35 days of the date of the Tribunal decision was made, as required by s 477(1) of the Migration Act.
The applicant relies on an amended application filed on 20 September 2023 which raises the following three grounds (particulars and footnotes omitted):
1.The Tribunal made a jurisdictional error because it failed to act in accordance with:
(a)its obligation under s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’);
(b) the requirements of s 360 of the Migration Act 1958 (Cth) (‘the Act’);
(c)the principles laid down by the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (‘SZBEL’);
(d)the general requirement of cl 8.2 of ‘President’s Direction, Conducting Migration and Refugee Review’, being a direction of the President of Tribunal issued on 30 June 2015 pursuant to section 18B of the AAT Act (‘the President’s Direction’); and
(e)the principles laid down by the High Court of Australia in Haoucher v Minister of State for Immigration and Ethnic (1990) 169 CLR 648 (‘Haoucher’),
which, in combination, obliged the Tribunal to give the Applicant adequate notice and a sufficient opportunity to give evidence in relation to a critical issue, namely whether the Applicant met the requirements of cl 570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) for the grant of a student visa (collectively, ‘the enrolment criterion’), and the Tribunal failed to adhere to that obligation thereby denying the Applicant procedural fairness.
…
2.The Tribunal made a jurisdictional error because it asked itself the wrong question or otherwise misconstrued the regulatory requirements in determining whether the Applicant met the enrolment criterion in that:
(a)the question that the Tribunal was obliged to ask, in accordance with the language used in the Regulations, was whether there was evidence that ‘[t]he applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study…’ (emphasis added);
(b)the Tribunal departed from the language of the Regulations and instead asked itself, incorrectly, whether there was evidence of ‘the applicant’s Certificate of Enrolment or current letter of offer to study’ (emphasis added);
(c)the Tribunal proceeded to determine the applicant’s case on the basis that it was an essential legal requirement that evidence of an offer of enrolment must be produced to the Tribunal in documentary form; and
(d)the Tribunal failed to appreciate that the Applicant’s own oral evidence given at the Tribunal hearing on 4 April 2018 was capable of establishing that he was the subject of ‘a current offer of enrolment’ and that the law did not require the Applicant to produce evidence of such an offer in documentary form,
resulting in the Tribunal failing to engage with the Applicant’s unchallenged evidence to determine whether his oral evidence demonstrated that he was the subject of a current offer of enrolment.
…
3.The Tribunal made a jurisdictional error because it failed to act in accordance with its obligation under s 2A of the AAT Act and the principles laid down by the High Court of Australia in Minister for Immigration v Li (2013) 249 CLR 332 which, in combination, obliged the Tribunal to consider exercising its discretion to adjourn the hearing and determination of Applicant’s review application in a reasonable manner in circumstances where:
(a)the Applicant had assumed, prior to the hearing, that the hearing of his review application would concern only the issue of whether he met the genuine temporary entrant criterion;
(b)the Applicant had made a request for additional time as a result of becoming aware in the course of the hearing, for the first time, that the enrolment criterion was now the critical issue in relation to his review application;
(c)the Applicant needed additional time to obtain enrolment documentation from an education provider to demonstrate that he could meet the enrolment criterion;
(d)the Tribunal implicitly accepted that the Applicant would be able to obtain such documentation;
(e)the Applicant had not made a previous request to adjourn the hearing of his review application following its remittal from the Federal Circuit Court;
(f)there was no demonstrated urgency requiring the Tribunal to dispose of the Applicant’s case immediately,
and the Tribunal failed to grant the Applicant’s request for an adjournment to obtain enrolment documentation, and acted unreasonably in doing so, such as to deny the Applicant procedural fairness.
…
The evidence before the Court comprises:
(a)a court book filed on behalf of the Minister on 11 June 2019;
(b)an affidavit of Simrat Kaur Roopra filed on behalf of the applicant on 20 September 2023; and
(c)an affidavit of the applicant filed on 20 September 2023, save for those parts of the affidavit that were not read[1] following objections.
GROUND 1
[1] Those parts of the affidavit that were not read were the whole of paragraphs 9, 10, 11, 17 and 19 and part of paragraph 16.
Applicant’s submissions
As can be seen from the ground, in submitting that the Tribunal had an obligation to put the applicant on notice of the dispositive issues and give him a sufficient opportunity to give evidence in relation to those issues, the applicant relies on:
(a)s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which provides that the Tribunal must pursue the objective of providing a mechanism of review that is (a) accessible; (b) fair, just, economical, informal and quick; (c) proportionate to the importance and complexity of the matter; and (d) one which promotes public trust and confidence in the decision-making of the Tribunal;
(b)s 360 of the Migration Act, which requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review;
(c)the High Court’s judgment in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL), and in particular, the requirement that, where the Tribunal identifies a dispositive issue that was not considered by the delegate, the Tribunal must adequately notify the applicant of the issue and give the applicant an adequate opportunity to give evidence or make submissions in relation to the issue;
(d)cl 8.2 of a practice direction made by the President of the Tribunal under s 18B of the AAT Act on 30 June 2015 relating to the conduct of migration and refugee reviews under the Migration Act (Tribunal Direction), which provides a ‘general rule’ that where the Minister or delegate has made an adverse decision on a particular criteria or issues, the Tribunal should restrict its review to those matters;
(e)the High Court’s judgment in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; [1990] HCA 22 (Haoucher), which the applicant relied on for the propositions that:
(i)where an administrative decision-maker has in place a published policy relating to their decision-making process, a person would be reasonably expected to see that policy as providing a critical reference point in determining how their case would be dealt with;
(ii)where the decision-maker proposes to depart from the policy, procedural fairness requires the decision-maker to afford the person a reasonable opportunity to know and address the circumstances that take their case outside the policy and to make submissions as to why it should not be departed from; and
(iii)if a person is not given such opportunity, the policy would be ‘little more than an empty ritual and the policy would be little more than an empty statement and the policy statement mere rhetoric’.
The applicant submitted that in this case the Tribunal was obliged to:
(a)give the applicant adequate notice and sufficient opportunity to understand why the Tribunal did not assess the genuine temporary entrant criterion in circumstances where it had expressly stated in the hearing invitation that the only issue to be addressed was whether the applicant met the genuine entrant criterion;
(b)give the applicant adequate notice and sufficient opportunity to obtain and give evidence that would establish the Tribunal’s satisfaction that he met the enrolment criterion;
(c)afford the applicant a reasonable opportunity to understand and address the circumstances that took his case outside cl 8.2 of the Tribunal Direction, such that the genuine temporary entrant criterion was no longer to be assessed and the enrolment criterion would be assessed instead; and
(d)afford the applicant a reasonable opportunity to make submissions as to why the Tribunal Direction should not be departed from.
The applicant submitted that the Tribunal’s request in its letter dated 15 March 2018 for documents relating to the applicant’s past and present studies, including current enrolment documents, did not constitute adequate notice of the enrolment criterion being a critical issue that was to be addressed at the hearing scheduled for 4 April 2018, given that:
(a)the Tribunal requested the documents for the expressed purpose of making a decision ‘as quickly as possible’;
(b)the Tribunal expressly stated that it would be assessing whether the applicant met the genuine temporary entrant criterion at the upcoming hearing (and provided a copy of Ministerial Direction No 53, which was relevant to this issue), and did not expressly state that it would also be assessing the enrolment criterion; and
(c)the documents requested, including current enrolment documents, would have been relevant to the assessment of whether the applicant met the genuine temporary entrant criterion, noting that the Tribunal must have regard to the value of the course to the applicant’s future in accordance with Ministerial Direction No 53, in particular, cl 12.
The applicant submitted that in the absence of a clear statement to the effect that the Tribunal requested the documents also for the purpose of determining whether the applicant met the enrolment criterion, the applicant was entitled to infer that the request was made for the purpose of the Tribunal assessing whether the applicant met the genuine temporary entrant criterion only, and any ambiguity in the Tribunal’s invitation letter ought to be resolved in the applicant’s favour because the absence of enrolment documentation was apparently fatal when the Tribunal came to consider the enrolment criterion, whereas it would have been only one consideration if the genuine temporary entrant criterion was considered.
The applicant submitted that it should have been evident to the Tribunal that he may have been operating on the assumption that the Tribunal would only be considering whether he met the genuine temporary entrant criterion when he corresponded with the Tribunal in late March 2018, and between 28 March 2018 and 4 April 2018 the Tribunal had the opportunity to make it clear that the enrolment criterion would also be assessed at the upcoming hearing but failed to do so. The applicant submitted that, by informing him only on the day of the hearing that the dispositive issue would be whether he met the enrolment criterion, he was not given a fair opportunity to gather evidence that would have satisfied the Tribunal that he met the enrolment criterion. The essence of the applicant’s submission on this point was articulated in the reply submissions of Counsel for the applicant:
So when it made the explicit statement for the first time at the hearing, it needed to give the applicant a chance to go and gather the relevant evidence to satisfy that criterion, rather than proceeding immediately to make a determination on the basis of the absence of that evidence.
The applicant also submitted that the Tribunal did not afford him an opportunity to argue why cl 8.2 of the Tribunal Direction should be departed from. Counsel for the applicant described the Tribunal Direction as ‘quintessentially and prototypically a policy of the kind that was considered in Haoucher’ and also referred to the policy considered in Anderson v The Council of the City of Lismore (2011) 185 LGERA 239; [2011] NSWSC 1058 (Anderson). Counsel for the applicant submitted that there was no notice at all of the Tribunal Direction or the intention to depart from it, which is a different question to being given an opportunity to address the enrolment criterion, and it appears that the Tribunal member was not aware of the Tribunal Direction. In reply to the submissions advanced by Counsel for the Minister about the Tribunal Direction (see below), Counsel for the applicant submitted that cl 8.2 adds an additional obligation to SZBEL and is a different source of authority by which Tribunal members are bound. It does not displace SZBEL but is rather a parallel concurrent obligation. Whereas SZBEL refers to dispositive issues, the Tribunal Direction refers to statutory or regulatory criteria, which is something quite different. To find that cl 8.2 does not add anything would amount to a finding that the clause is meaningless, which is the kind of reasoning frowned upon in Haoucher.
Minister’s submissions
The Minister referred to relevant parts of the hearing invitation and submitted that the invitation adequately put the applicant on notice of the dispositive issues in his case when read objectively, fairly and as a whole. It did not state that the only issue the Tribunal would consider was whether he met the genuine temporary entrant criterion. The Minister also referred to the transcript of the Tribunal hearing, which revealed that the Tribunal explained that the enrolment criterion was a time of decision requirement and that the applicant confirmed that he was on notice of this requirement. The Minister submitted that the applicant’s submission that he was entitled to infer that the request for documents in the hearing invitation was for the purpose of assessing the genuine temporary criterion only was therefore misplaced.
The Minister submitted that the Tribunal did not make an error of the type identified in SZBEL. The Minister submitted that in the present case, the applicant was put on notice of the issue in writing by the hearing invitation dated 15 March 2018 and orally at the hearing on 4 April 2018, and specifically:
(a)the hearing invitation contained more passages directed to the enrolment criterion than the one sentence directed to the genuine temporary entrant criterion; and
(b)the applicant was asked at the hearing about whether he had a COE or letter of offer, and both the applicant and his representative made submissions on the issue of the enrolment criterion.
The Minister also referred to the Tribunal decision, in which the Tribunal records that it explained to the applicant and his representative that the genuine temporary entrant criterion was an issue in the previous decision, however, the Tribunal had to first consider whether the applicant met the visa criterion of a COE or letter of offer. The Minister submitted that therefore, and contrary to what was not done in SZBEL, the Tribunal put the applicant on notice of the issue that was dispositive on review and gave the applicant an opportunity to make submissions on that issue, and the applicant did so. The Minister referred to Abbas v Minister for Immigration [2019] FCCA 2577 as an example of another case in which a hearing notice requesting documents from the applicant and oral advice at the hearing was sufficient to avoid the error in SZBEL.
The Minister submitted that the Tribunal did not make any error in respect of departing from the Tribunal Direction. The Minister submitted that the Tribunal was required to assess whether the applicant satisfied the criteria for the grant of the visa and was to do so in accordance with the requirements set out in the Regulations and the Migration Act and common law requirements, which the Tribunal did, and in doing so the Tribunal also complied with the requirements of the Tribunal Direction. In his oral submissions, Counsel for the Minister also referred to s 18B(2) of the AAT Act, which provides that a failure by the Tribunal to comply with a direction made under s 18B does not invalidate anything done by the Tribunal. Counsel for the Minister submitted that the Tribunal is not bound by policies and the Tribunal’s obligations in the present case are enshrined in the Migration Act. Counsel for the Minister submitted that, in any event, the Tribunal afforded the applicant the opportunity to comment through the invitation letter and the hearing. Counsel for the Minister submitted that Anderson does not assist the applicant as it is dealing with a completely different statutory scheme, without the exhaustive obligations imposed on the Tribunal by the Migration Act. Counsel for the Minister submitted that the Court should not accept a submission which would see the Tribunal Direction, Haoucher and Anderson, ‘by a sidewind’, displace the obligation in s 360 of the Migration Act and the obligation in SZBEL.
In response to the applicant’s submission that it ought to have been evident to the Tribunal that the applicant may have been operating on the assumption that the Tribunal would only be considering the genuine temporary entrant criterion, the Minister submitted that the hearing invitation brought the issue of the enrolment criterion to the applicant’s attention, as did the Tribunal at the hearing, and the Tribunal is not required to make the applicant’s case for him.
Resolution
There is no dispute between the parties that the dispositive issue before the delegate was that the applicant did not meet the genuine temporary entrant criterion and that the Tribunal affirmed the delegate’s decision because the applicant did not meet the enrolment criterion. There is also no dispute that the Tribunal advised the applicant at the hearing that the dispositive issue was now whether the applicant met the enrolment criterion. The main dispute between the parties appears to relate to whether the notice given to the applicant was sufficient to give him a meaningful opportunity to present evidence and submissions in relation to the new dispositive issue. A second issue relates to whether the Tribunal was required to give the applicant notice that it intended to depart from the Tribunal Direction.
To properly consider these issues, it is appropriate to have regard to both the hearing invitation and the transcript of the Tribunal hearing.
The hearing invitation of 15 March 2018 relevantly provided:
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. …
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily.
While the hearing notice did not expressly state that the Tribunal would assess whether the applicant met the enrolment criterion, it did, or ought to have, put the applicant on notice that he needed to provide a copy of a current COE and documents that showed that he was at that time enrolled in a course or had an offer of enrolment in a registered course of study, and that these were requirements for the grant of a student visa. The hearing invitation also put the applicant on notice that changes in the applicant’s circumstances may be relevant. I do not accept the applicant’s submission that the hearing invitation should be interpreted in a way that suggested that only the genuine temporary entrant criterion would be considered by the Tribunal or that it was ambiguous in any way. It clearly stated that having a COE, or being enrolled in a course or having an offer of enrolment were requirements for the grant of a student visa and requested that he provide evidence to show he met these requirements.
The transcript of the hearing before the Tribunal shows that the applicant told the Tribunal he did not have a COE. After questions and answers addressing the reasons for this, the following exchange took place between the Tribunal and the applicant:
Mr Singh, the problem I have is that a current Certificate of Enrolment or a Letter of Offer is a requirement for the grant of a student visa?---Yes.
And it is a time of decision requirement. So that is today. I consider that you would have been on notice of this requirement?---Yes.
Back when you received the hearing invitation to attend today’s hearing?---Yes.
After further discussion about the hearing invitation and the applicant’s explanations for not having a COE, the Tribunal further explained to the applicant:
So the reason your visa was refused and the issue at your last tribunal hearing was genuine temporary entrant - whether you satisfy that criteria. I haven’t even looked at that (indistinct) hearing and I don’t propose to for the simple fact that you do not meet the enrolment requirements for the grant of a student visa, so I am inclined to affirm this decision because you do not meet the enrolment requirements for the grant of a student visa at the time of the decision, which is today.
Is there anything you wanted to say about that?
These are just examples of some of the occasions at the hearing when the Tribunal discussed with the applicant the need to have a current COE or offer of enrolment to satisfy the requirements for the grant of a student visa.
Even if there was any doubt about whether the hearing notice put the applicant on notice that the enrolment criterion would be considered by the Tribunal (which I have not accepted), there can be no doubt that the Tribunal put him on notice of this at the hearing.
I am satisfied that the Tribunal discharged its obligations under s 360 of the Migration Act and SZBEL.
Section 360 of the Migration Act relevantly required the Tribunal to invite the applicant to appear before the Tribunal ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’. The High Court in SZBEL considered the similar requirement in s 424 of the Migration Act and said at [35]:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
When the Tribunal’s comments at the hearing are considered in conjunction with the hearing invitation, the applicant was on notice of the issue that the Tribunal ultimately considered to be dispositive, and had been requested to provide evidence in relation to that issue over two weeks prior to the hearing. I do not accept that the applicant was not given a proper opportunity to give evidence and present arguments in relation to the dispositive issue.
In advancing this ground, the applicant referred to the submission that he provided to the Tribunal on 28 March 2018 and suggested that this demonstrated that he thought only the genuine temporary entrant criterion would be considered. The applicant said in his submission (which was an email to his representative which was then forwarded to the Tribunal):
I Davinder Singh came to Australia in Feb 2009 and have a good study record. After my MRT refusal I went to Federal Court because I wasn't satisfied with AAT’s decision and I’m a genuine temporary entrant. Federal court also found error and took decision in my favour. I have been waiting very long now because it’s been 3 years since I had my student visa refusal. I want to pursue further studies so I can do my bachelors but it’s very hard and stressful with all this because I can’t concentrate on studies properly. Most of the universities and colleges don’t even want to enrol me in bachelors because of my MRT situation and my current Bridging visa. I think I’m a genuine temporary entrant and hope you consider the same and will take decision in my favour.
While it may be accepted that the applicant believed that the genuine temporary entrant criterion would be considered, I am unable to conclude from this email that the applicant believed that only the genuine temporary entrant criterion would be considered. In any event, there was no additional obligation on the Tribunal, after receiving this correspondence, to expressly advise the applicant ahead of the hearing that it would consider the enrolment criterion. The Tribunal’s notice to the applicant at the hearing, in addition to the information in the invitation letter, were sufficient to discharge the Tribunal’s procedural fairness obligations in this regard.
The Tribunal Direction was made under s 18B of the AAT Act, which provides:
(1)The President may give written directions in relation to any or all of the following:
(a) the operations of the Tribunal;
(b) the procedure of the Tribunal;
(c) the conduct of reviews by the Tribunal;
(d) the arrangement of the business of the Tribunal;
(e) the places at which the Tribunal may sit.
(1A)Before the President does so, the President must consult the head of any Division to which the direction would apply.
(2)A failure by the Tribunal to comply with a direction does not invalidate anything done by the Tribunal.
(3) If the Tribunal deals with a proceeding in a way that complies with the directions given under this section, the Tribunal is not required to take any other action in dealing with the proceeding.
(4)Without limiting subsection (1), directions may deal with matters relating to the provision of documents under sections 37 and 38AA, including any or all of the following matters:
(a)documents that are or are not required to be lodged under paragraph 37(1)(b) and subsection 38AA(1);
(b)documents that are or are not required to be lodged under subsection 37(1AAB) for the purposes of second reviews;
(c)lodgement of documents for the purposes of subsection 37(1AB);
(d) lodgement of additional copies of documents;
(e)documents that are to be given to other parties under subsection 37(1AE).
The stated intention of the Tribunal direction is to facilitate ‘accessible, fair, just, economical, informal, quick and proportionate conduct of reviews’: cl 1.1 of the Tribunal Direction. This is consistent with s 2A of the AAT Act. The Direction primarily addresses matters of procedure.
Clause 8.2 of the Tribunal Direction provided:
As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.
Insofar as the applicant’s ground is based on the failure of the Tribunal to notify the applicant of the intended departure from the Tribunal Direction, the applicant relies on Haoucher and Anderson. Both parties have advanced their submissions to the Court on the premise that the Tribunal Direction is a policy document and that the principle discussed in Haoucher applies. It is not immediately apparent to me that a direction made under s 18B of the AAT Act should be equated to government policy, but in circumstances where neither party raised that issue, I will proceed on the assumption, without deciding, that the principles in Haoucher may apply to the Tribunal direction.
In Haoucher, the applicant sought review of a decision by the Minister to deport him as a result of his criminal conviction. The statutory regime at the time allowed the Tribunal, on review, to make recommendations to the Minister but not to substitute its own decision for that of the Minister. The Minister was not bound by the Tribunal’s recommendation but there was a published policy that the Minister would only depart from the Tribunal’s recommendation if there were exceptional circumstances or strong evidence to do so. The Tribunal made a recommendation that was favourable to the applicant and the Minister departed from that recommendation without informing the applicant of the exceptional circumstances or strong evidence that it proposed to rely on or that it otherwise intended to depart from the policy, which was not binding. A majority of the High Court found that, in so doing, the Minister denied the applicant procedural fairness.
In Anderson, Brereton J considered a ‘rates and charges hardship’ policy of a council which was to provide assistance to ratepayers who were experiencing financial hardship in paying the rates and charges. His Honour held that the policy created a legitimate expectation that the council would not sell a pensioner ratepayer’s property under the relevant legislation other than in exceptional circumstances, so that, if it proposed to do so, the council was obliged to first afford the ratepayer an opportunity to know and address the alleged exceptional circumstances that were suggested to take the ratepayer outside the policy and to make submissions as to why the policy should not be departed from.
I have considered the principle and the application of the principle in Haoucher and Anderson but I do not accept that the Tribunal Direction, or any common law procedural fairness obligation, required the Tribunal to do anything more than it did in the present case, taking into account the statutory context in which the decision was made. Pursuant to s 18B(2) of the AAT Act, any decision by the Tribunal to consider the enrolment criterion, additional to or instead of considering the genuine temporary entrant criterion, could not invalidate the Tribunal decision. The Tribunal Direction at cl 8.2 simply referred to a ‘general’ position and the Tribunal Direction said nothing about the circumstances in which the Tribunal would depart from that position (save for one example in cl 8.3 relating to bridging visas, which has no application in the present case). The Tribunal did not need to expressly refer the applicant to cl 8.2 of the Tribunal Direction, distinct from or separately to its obligation to put the applicant on notice that it intended to consider a different issue to that considered by the delegate. I do not accept simply from the failure to refer to the Tribunal Direction that the Tribunal was not aware of it.
The Tribunal otherwise did, in substance, exactly what the applicant said it should do. It put the applicant on notice at the hearing that although the issue considered by the delegate was whether he met the genuine temporary entrant criterion, the issue that the Tribunal would now consider was whether he met the enrolment criteria. The Tribunal told the applicant that it was inclined to affirm the delegate’s decision because he did not meet the enrolment requirements and invited the applicant to comment on that. In so doing, the Tribunal in effect told the applicant that it intended to depart from the ‘general rule’ in the Tribunal Direction.
Ground 1 is not established.
GROUND 2
Applicant’s submissions
The applicant submitted that the Tribunal will fall into jurisdictional error if it identifies the wrong issue or asks itself the wrong question, which is to be determined by reference to the statute from which the Tribunal’s statutory power is sourced and any relevant common law principles which might inform the correct questions.
Counsel for the applicant submitted that the Tribunal in the present case should have asked ‘What is capable of constituting a current offer of enrolment?’. In advancing this submission, the applicant relied on Giakou v Minister for Immigration [2020] FCCA 2575 (Giakou) at [23] for the proposition that wrongly misconstruing the expression ‘a current offer of enrolment’ and failing to ask what is capable of constituting a ‘current offer of enrolment’ can amount to the Tribunal asking itself the wrong question, giving rise to jurisdictional error.
The applicant referred to the oral evidence given at the Tribunal hearing that he spoke to Accumen College and was told ‘we can give you a COE’ in relation to an advanced diploma course, and that he had applied to enrol in a Bachelor’s course at three colleges, including Holmes College, and was told by Holmes College that ‘we will see next week, we will give you the COE at the moment we can’t take that’. The applicant submitted that the Tribunal failed to consider and engage with the oral evidence the applicant gave at the hearing, which was evidence potentially demonstrating that the applicant was the subject of a current offer of enrolment (conditional or otherwise) in a course of study that is a principal course for the purposes of the Regulations.
The applicant further submitted that the Tribunal erroneously assumed that, because the applicant had produced no documentary evidence of his communications with Holmes College, he had given no evidence of being the subject of a current offer of enrolment with Holmes College. However, neither the evidence of the applicant presented to the Tribunal at the hearing nor any offer made by an educational provider was required to be in documentary form. The applicant submitted that had the Tribunal asked itself the correct question the Tribunal could have contemplated that the applicant’s oral evidence demonstrated that he may be the subject of a current offer of enrolment. By focusing on whether there was a written offer, the Tribunal failed to appreciate the legal meaning of ‘offer of enrolment’.
Minister’s submissions
The Minister submitted that by ground 2 the applicant seeks impermissible merits review.
The Minister submitted that, contrary to the applicant’s submissions about his oral evidence, the transcript of the Tribunal hearing shows that the applicant’s oral evidence was that he did not enrol in a course because he was waiting for his Federal Court application to be resolved as he wanted to do a Bachelor’s degree and not another diploma, and that he was on a bridging visa and some education providers would not make an offer in such circumstances but he was ‘pretty sure they will provide for me a COE’. Further, the transcript shows that the applicant’s representative indicated to the Tribunal that there was no COE or letter of offer but that one could be obtained.
The Minister submitted that the transcript of the Tribunal hearing was consistent with the Tribunal reasons, which state that the applicant gave evidence that he was not currently enrolled in a course of study and had not been enrolled since late 2016 when he was undertaking an Advanced Diploma of Business and that education providers had found the fact that he was on a bridging visa undesirable. The Tribunal had regard to the applicant’s and his representative’s submissions about his enrolment but ultimately was not satisfied that the applicant had a COE or was subject to a current letter of offer.
The Minister submitted that the applicant’s submission is entirely speculative in that it proceeds on the basis of what the applicant’s oral evidence potentially indicated and seeks to impugn the Tribunal’s factual findings on this basis. The Minister submitted that the applicant’s oral evidence that ‘we can give you a COE’ was not supported by evidence of a current letter of enrolment and was overtaken by subsequent statements from the applicant and his representative that confirmed or clarified that the applicant could obtain a letter of enrolment if given more time. The Minister submitted that the Tribunal’s conclusion that there was no evidence before it that the applicant had a COE or letter of offer was reasonably open on the materials and submissions before the Tribunal, particularly once the Tribunal was requested to consider, and subsequently refused, the applicant’s request for an extension of time within which to obtain a COE or letter of offer. Further, the weight to be given to the applicant’s submissions was a matter for the Tribunal as part of its fact-finding function.
Resolution
It is well-established that the Tribunal may make a jurisdictional error if it identifies the wrong issue or asks itself the wrong question.
In the present case, the Tribunal found that the applicant did not meet the enrolment criterion for any of the types of student visa. Relevantly for the type of visa the applicant applied for, cl 572.231 provided:
If subclause 572.223(1A) does not apply:
(a)the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b)the principal course is of a type that was specified for Subclass 572 visas by the Minister in a legislative instrument:
(i)made under regulation 1.40A; and
(ii)in force at the time the application was made.
Clause 572.223(1A) applies in circumstances where the ‘applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student’. As noted above, the applicant did not have any confirmation of enrolment in the present case.
In Giakou, upon which the applicant relies, Judge Heffernan said at [23] (footnotes omitted):
In addition to the evidence of the applicant and the submissions of his migration agent as to the conversations with Mr Amir, the Tribunal had before it the following information from the telephone inquiry it had made with Mr Amir: “… He (Mr Amir) confirmed that enrolment could be obtained on review of the visa decision.” That information is not referred to in the decision record of the Tribunal. It was significant information because it corroborated the information provided by the applicant’s migration agent. I accept the submission of Mr Jacobi that the inference from the reasoning of the Tribunal must be that it did not regard as sufficient to meet the criterion of being ‘subject to a current offer of enrolment’ the undertaking of a course with both the knowledge and approval of the relevant institution which had indicated its willingness to re-enrol the applicant and to award the qualification for undertaking the course if he received a favourable visa decision, having accepted his payment of fees. In the context of those matters, which it did not appear to reject, the weight given to the PRISMS entry and the undisputed fact that his previous enrolment had been cancelled suggests not simply that it preferred to give greater weight to that information but rather, that it failed to ask itself what was capable of constituting ‘a current offer of enrolment’. Neither of those matters had obvious relevance to that question, as they related to a previous and not a current state of affairs. The brief reasoning of the Tribunal on this aspect suggests that the Tribunal took the view that the PRISMS entry, being silent on the question of a current offer of enrolment and recording that the applicant’s previous enrolment had been cancelled, was dispositive of that question. In my view, that amounts to a misconstruction of the term ‘the subject of a current offer of enrolment’ and a jurisdictional error by the Tribunal by reason of asking itself the wrong question or failing to ask the correct question. I find jurisdictional error has been made out with respect to ground two.
The crux of the applicant’s submission in relation to this ground is that the Tribunal asked itself the wrong question by focusing on whether there was documentary evidence of the applicant’s enrolment, rather than considering the possibility that the applicant had an oral offer of enrolment.
The following evidence given at the Tribunal hearing is relevant to the consideration of this ground:
Do you have a current certificate of enrolment for you?---No.
Why is that?---… Because I was having issues because they are not providing the COA a because of my bridging visa going on because I applied for few colleges which was - that was for my bachelors and they refused, they said, “We are not taking the risk of giving the COE the for bridging the students, they were asking “Why you are on bridging visa?” because I went to (indistinct) and they said to me, “We’re not sure like what are you going to do, but if we provide you a COE we are not even sure that if you going to finish your course, if you’re going to study, so we can’t raise a COE any, like the admission, we can give you promise to - apply for (indistinct) and like we will wait for your decision and then we can provide you with a COE.
So when is the last time he studied?---My advanced diploma was the end of 2016 when - after the MRD and I applied for Federal.
What kind of bridging visa are you on? Do you have any condition saying that you are not allowed to study?--- No, it’s – I am allowed to study. It’s bridging visa A. When I applied for temporary as well, in (indistinct) and they said - they were just making the excuse that “We don’t have the COE at the moment, so we will see like probably next week, or we (indistinct) or maybe just waiting for what’s going to happen here.
But you’ve had over a year to get a COE?---Yes, but I was going to - I was getting the diploma COE but I didn’t want to do like just keep doing the diploma, I wanted to do bachelors.
So what happened to your Advanced Diploma in 2016? Did you finish that?---I finished five subjects, I had eight, so I had - - -
So what happened to that enrolment?--- It was finished and they were asking me to do the three subjects again because I submitted the assignments but they didn’t clear it, I wasn’t competent in three subjects. They said, “What you have to do is now you have to get another COE. We can give you another COE and then you can do the - finish the course.” So I just didn’t want to - because I was going to - I was planning to do Bachelors of Business and it was the same subjects, so I was thinking to do rather than getting the COE for diploma I would get the certificate for the bachelors and I can complete, my bachelors, like rather than just keep going with the diploma.
…
… The other thing I couldn’t got to get my COE, I still can’t get it because I spoke to my college as well, the advanced diploma, they were saying that “We can give you the COE” but the problem is that they want to get the diplomas here, that’s why I got refused last time as well.
…
But, I mean, what you are telling me is that could’ve actually had a COE for the advanced diploma?---For the diploma.
You could have actually finished it?---Yes, because I didn’t want to - - -
And if you finished it you could’ve got a COE for a bachelors. There’s nothing to stop - you could have finished your advanced diploma by now?--- Yes, I know, because the problem, I didn’t want to just enrolling in the diploma as well, the only issue because - because - - -
…
I applied - I applied three colleges, Cambridge and Kent. I called them as well. I said, “This is my situation is and I need the COE, I want to start my studies.” They said, “We can’t help you, and there is an issue in the way.” And then I applied at (indistinct) I’m just waiting, it’s in my emails at home. They said, “We will see next week, we will give you the COE at the moment we can’t take that”.
Although the Tribunal member at the hearing and the Tribunal in its reasons often referred to the need to provide a COE or a letter of offer, the Tribunal also at times referred to the need to have an offer of enrolment and in its reasons referred to the requirement for the applicant to be enrolled in, or be the subject of a current offer of enrolment in, a course of study. It is not apparent to me from a review of the Tribunal’s reasons and the transcript as a whole that the Tribunal understood that an offer of enrolment could only be in documentary form, as opposed to ordinarily being evidenced in documentary form. In any event, it is difficult to discern from the applicant’s evidence as a whole any assertion that he had a current oral offer of enrolment. His evidence refers to his previous college, with whom he studied an advanced diploma, having previously told him they would give him a COE, but the applicant not wishing to pursue that course and complete the remaining units. The applicant then gave evidence of approaching other colleges, but his evidence suggests that one college was waiting to see. The applicant’s evidence is at times confused, but on balance falls short of the applicant saying that he had an oral offer of enrolment.
The Tribunal in its written reasons summarised the evidence given by the applicant at the hearing. It concluded at [16] of its reasons that there was no evidence before the Tribunal that the applicant was now enrolled in, or had a current offer of enrolment in, any applicable course of study. This finding was not limited to documentary evidence and is consistent with the interpretation of the applicant’s oral evidence set out above, which is that it falls short of asserting that he had a current oral offer of enrolment. I do not accept that the Tribunal failed to consider whether the applicant had an offer of enrolment, or that it asked itself the wrong question or otherwise misconstrued the statutory requirements.
Ground 2 is not established.
GROUND 3
Applicant’s submissions
The applicant submitted that the Tribunal refused to grant an adjournment to obtain further evidence that could demonstrate that he met the enrolment criterion in the following circumstances:
(a)the applicant had assumed, prior to the hearing, that the hearing of his review application would concern only the issue of whether he met the genuine temporary entrant criterion;
(b)the Tribunal informed the applicant that it had not begun to consider the genuine temporary entrant criterion, and was therefore focused on the issue of whether he met the enrolment criterion;
(c)the Tribunal’s statement in this regard represented a clear departure from the statement it had made in the invitation letter to the effect that it would be assessing the genuine temporary entrant criterion;
(d)the Tribunal’s statement also represented a clear departure from cl 8.2 of the Tribunal Direction;
(e)the Tribunal member was apparently not aware of cl 8.2 of the Tribunal Direction and did not engage with it;
(f)the applicant had requested an extension of time because he had become aware in the course of the hearing, for the first time, that the enrolment criterion was now the critical issue in relation to his review application;
(g)the applicant needed additional time to obtain enrolment documentation from an education provider to demonstrate that he could meet the enrolment criterion;
(h)the Tribunal implicitly accepted that the applicant would be able to obtain such documentation, or alternatively did not challenge his suggestion that he could obtain such evidence;
(i)the applicant had not made a previous request to adjourn the hearing of his review application following its remittal from the Federal Circuit Court; and
(j)there was no demonstrated urgency requiring the Tribunal to dispose of the applicant’s case immediately.
The applicant submitted that the Tribunal’s decision to immediately make an oral decision on the basis that the applicant did not meet the enrolment criterion, without granting an adjournment, was unexpected, confusing, not fair or just, a disproportionate response to the applicant not having enrolment documentation at the commencement of the hearing, underpinned by the Tribunal’s apparent desire to dispose of the applicant’s case quickly and without regard to the particular circumstances of his case, and not conducive to promoting public trust and confidence in the decision-making of the Tribunal. In these circumstances, the applicant submitted that the decision not to grant an adjournment was unreasonable in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li).
In his oral submissions, Counsel for the applicant referred to each of the cases cited by the Minister and submitted that they could each be distinguished.
Minister’s submissions
The Minister submitted that the Tribunal’s decision not to grant an adjournment for the applicant to be given an extension of time to provide a COE or letter of offer was not unreasonable in all the circumstances.
The Minister submitted that the Tribunal at the hearing discussed the enrolment criterion with the applicant and asked him when he had applied for a COE, to which he responded ‘last month’, following which the Tribunal noted the applicant had over a year to apply for a COE. While the Tribunal had ‘sympathy’ for the applicant, it noted that he did not meet the enrolment criteria.
The Minister referred to relevant parts of the transcript and submitted that the Tribunal considered the exercise of its discretion to grant the applicant an extension of time but decided against it because the applicant had over a year to obtain a COE or letter of offer and also because the applicant was put on notice of these requirements from at least 15 March 2018. The Minister submitted that the Tribunal was not under an obligation to afford every opportunity to an applicant to present their best possible case. The Minister noted that the Tribunal’s written reasons were consistent with the transcript and showed that the Tribunal provided an evident and intelligible justification.
The Minister submitted that at the time of the adjournment request, the Tribunal had a range of decisions that were reasonably open to it, and the Tribunal provided an intelligible and evident justification for the exercise of discretion not to adjourn the hearing and to refuse the extension of time. The Minister submitted that the Tribunal’s decision was not arbitrary or capricious or a decision that was without common sense or plainly unjust, and was not a decision that no reasonable decision-maker could have arrived at or a decision that fell outside the range of possible, acceptable outcomes.
Resolution
The Tribunal had a discretion, conferred by s 363(1)(b) of the Migration Act, to ‘adjourn the review from time to time’. The Tribunal was required to act reasonably in the exercise of this discretion: Li at [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88]-[91] (Gageler J). The Tribunal’s decision in this regard may be unreasonable if it ‘lacks an evident and intelligible justification’: Li at [76] (Hayne, Kiefel and Bell JJ).
It is appropriate to commence consideration of this ground by reference to the reasons given by the Tribunal. The Tribunal gave reasons for not giving the applicant additional time to obtain and provide evidence in relation to the enrolment criterion at [15] of its reasons, where it said:
The applicant and his agent requested further time to be able to obtain and provide a Certificate of Enrolment or letter of offer to study. However, the Tribunal requested, in the hearing invitation dated 15 March 2018, that the applicant provide all documents that he intends to rely on to establish that he meets the criteria for the visa. The first document requested was a copy of his current Certificate of Enrolment or an offer of enrolment as required for the grant of a student visa. The Tribunal considers that the applicant has been on notice of the enrolment requirements, at the very least, since this time and is not satisfied that the applicant has presented any convincing reason why he should be given further time to do so.
This is consistent with the following exchange during the course of the Tribunal hearing:
MEMBER: And I hear what you are saying, but as I explained before, I am still inclined to affirm the decision?---And if you give me a chance like if I show them that I have been here today, they will definitely they will provide me the offer letter or COE.
Mr Singh, you have had a lot of time to get a COE. You’ve had over a year to get one and - - -
REPRESENTATIVE: Today the circumstances have changed because he had (indistinct) happen (indistinct words) will follow, or simply - I am not saying they will give (indistinct) possibly they may not do that - I’m not sure. That’s - (indistinct).
MEMBER: Well, I’m not satisfied yes, and I am not satisfied that that warrants an extension of time in the circumstances.
It can be seen from the matters raised by the applicant in his submissions that some of the matters relied on by the applicant in advancing this ground overlap with some of the matters that I considered in the context of ground 1. It is clear from the Tribunal’s reasons for declining to grant the adjournment that one of the matters relied on by the Tribunal was that the applicant had already had an opportunity to provide evidence that he met the enrolment criterion. As I found in the context of ground 1, the invitation to attend the hearing put the applicant on notice that evidence that he held a current COE or was enrolled in a course or had an offer of enrolment was a requirement for the grant of a student visa. The applicant had confirmed at the hearing that he was aware of this requirement. It was open to the Tribunal to have regard to the earlier opportunities the applicant had to obtain evidence that he met the enrolment criteria.
I am satisfied that the Tribunal provided an evident and intelligible justification for not granting the applicant additional time. The applicant’s evidence at the hearing was that he was not enrolled in a course of study, did not have a COE or a letter of offer and I have found in addressing ground 2 above that he did not claim to have an oral offer in relation to a course of study. The applicant was seeking additional time so that he could, in effect, enrol in a course of study or seek an offer to meet one of the mandatory requirements for the grant of a student visa. While other decision-makers might have been willing to give the applicant additional time to take steps so that he could meet the criteria for the student visa, in circumstances where the Tribunal was satisfied that the applicant had already had that opportunity and provided an evident and intelligible justification for not giving him a further opportunity after the hearing, I do not find that the Tribunal acted unreasonably in the manner described in Li.
Before leaving this ground, I note that both Counsel in their oral submissions referred to other cases assessing unreasonableness, and relied on those cases by way of analogy or distinction. Given that unreasonableness is a fact specific inquiry, I have not found it necessary to address those cases in this judgment. It is sufficient to note that, in my view, none of those cases persuaded the Court to reach a conclusion different to the one that I have reached in this matter.
Ground 3 is not established.
CONCLUSION
In circumstances where I have found that the applicant has not established jurisdictional error in the Tribunal decision, the application to this Court must be dismissed.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 8 October 2024
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