Thummala v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 828
Federal Circuit and Family Court of Australia
(DIVISION 2)
Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828
File number: MLG 609 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 10 October 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred by failing to afford the applicants procedural fairness – whether the Tribunal erred by failing to enquire about the “reasons behind the enrolment cancellation” – whether the Tribunal erred by failing to consider the first applicant’s evidence regarding the cancellation of his enrolment and his “exceptional reasons” or circumstances – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 358, 359, 359AA, 359A, 360, 476
Migration Regulations 1994 (Cth), cll 572.223 and 572.231 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759
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 Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 196
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 14 September 2022 Place: Perth Applicants: First applicant in person Counsel for the First Respondent: Mr S Kovacs Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 609 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUNIL REDDY THUMMALA
First Applicant
PARNITHA GADDAM
Second Applicant
SHREYAN REDDY THUMMALA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
10 OCTOBER 2022
THE COURT ORDERS THAT:
1.The application (as orally amended on 14 September 2022) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 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 KENDALL:
Background
The first applicant is a citizen of India (Court Book (“CB”) 1 & 57-58). He arrived in Australia in September 2008 as the holder of a student visa (CB 86). He has maintained temporary visas or associated bridging visas since that time (CB 21).
The second applicant is also a citizen of India (CB 3 & 55-56). She is the wife of the first applicant (CB 2). The third applicant is the first and second applicants’ son. He was born in Victoria, Australia in July 2016 (CB 72).
On 27 October 2015, the first applicant applied for a Student (Temporary) (Class TU) (Subclass 572) visa (the “visa”) (CB 1-9). The second applicant was included in that application as part of the first applicant’s family unit (CB 2). Following his birth, the third applicant was added as a dependent in that visa application (CB 66-76 & 84).
On 30 October 2015, the then Department of Immigration and Border Protection (the “Department”) asked the first applicant to provide more information in relation to his visa application (CB 15-33). Relevantly, he was asked to provide information addressing the genuine temporary entrant criterion set out in cl 572.223(1)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 19).
On 22 November 2015, the first applicant provided additional documents to the Department (via email) in support of his visa application (CB 34-59).
On 21 September 2016, the first applicant provided the Department with a copy of the third applicant’s birth certificate, a letter from a medical clinic and supporting documents (CB 71-77).
On 27 October 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 84-90). The delegate was not satisfied that the first applicant met the requirements set out in cl 572.223(1)(a) in Schedule 2 of the Regulations. Specifically, the delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily (CB 89). The delegate found that the second and third applicants also failed to meet the criteria for the grant of the visas (CB 89).
On 12 November 2016, the applicants applied to the Administrative Appeal Tribunal (the “Tribunal”) for a review of the delegate’s decision (CB 91-93).
On 29 January 2018, the Tribunal emailed the applicants inviting them to attend a hearing before it scheduled for 21 February 2018 (CB 121-136). That invitation letter asked the applicants to provide further information, as follows (CB 123):
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.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.
On 13 February 2018, the first applicant sent the Tribunal a completed “response to hearing invitation form” (via email) (CB 139-142). No further materials were provided to the Tribunal.
On 21 February 2018, the first applicant appeared before the Tribunal to give evidence and present arguments (CB 144-147).
At the hearing, the first applicant gave the Tribunal a completed “Student Visa – GTE Questionnaire” form (CB 148-153). On page one of that form, the first applicant selected “no” in relation to whether he had a current CoE (CB 148).
The Tribunal made an oral decision at the hearing (on 21 February 2018) affirming the delegate’s decision refusing to grant the applicants the visas (CB 156).
On 26 February 2018, the Tribunal reduced its oral decision to a written statement of its decision and reasons (CB 162-164). A copy of those written reasons was provided to the applicants via email on 26 February 2018 (CB 160-161).
On 13 March 2018, the applicants filed an application for judicial review of the Tribunal’s decision in this Court (CB 168-174). The first applicant affirmed and filed an affidavit in support of that application (CB 175-202). That application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
the Tribunal’s decision
The Tribunal’s decision is three pages in length and spans 16 paragraphs.
The Tribunal began by explaining the nature of the application before it – noting that the applicants had applied for the visas on 27 October 2015. The Tribunal explained that a delegate of the Minister had refused to grant the visas on 27 October 2016 because the delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily (and, as such, did not satisfy cl 572.223(1)(a) in Schedule 2 of the Regulations) (at [1]-[3]).
The Tribunal confirmed that the first applicant had appeared at a hearing before it on 21 February 2018 and that the Tribunal had delivered its decision at the end of that hearing (at [4]-[5]).
The Tribunal then stated:
7.The issue before the delegate was whether the applicant met the criterion in c1.572.223. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.
The Tribunal outlined the relevant regulatory provisions which required (for most subclasses of a TU Class visa) that, at the time of decision, an applicant be enrolled in (or be the subject of a current offer of enrolment for) an eligible course of study (at [8]).
The Tribunal continued:
9.The decision record states the applicants most recent enrolment in Certificate IV in Retail Management was cancelled for non-payment of fees on 5 October 2016 with the provider noting the applicant’s last date of study was on 19 November 2015. The applicant's Diploma of Retail Management enrolment was also cancelled on 5 October 2016. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore c1.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.
10.The tribunal inquired if the applicant had a current confirmation of enrolment or current offer of enrolment in a principal course of study. The applicant responded no Member.
11.The Tribunal put to the applicant do you understand that not having a Confirmation of Enrolment means that you don't meet a mandatory Visa condition and the Tribunal can affirm the decision? The applicant responded yes Member.
12.The applicant was asked on several occasions if they had any further comments or further submissions to make to the Tribunal about this issue. The applicant did not make or offer any further submissions to the Tribunal.
On the basis of the above, the Tribunal affirmed the decisions refusing to grant the applicants the visas (at [14]-[16]).
Application to this Court
The application for judicial review filed by the applicants on 13 March 2018 (CB 168-174) contains 12 “grounds of review”, as follows (without alteration) (CB 171-173):
1.I am filing an application under s.476 of the Migration Act 1958 seeking review (“Judicial Review Application”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal, The Tribunal Decision affirmed a decision made on 21 February 2018.
2.I believe that the Tribunal made a finding that was error in jurisdictional fact in considering that the application has been refused by Immigration officer under the 572.223 but there was college administration mistake behind the E-coe cancellation but it wasn't considered by immigration officer and also tribunal did not discuss regarding the 572.223. straight away tribunal gone on the regulations and affirm not to grant the 572 visa because of I did not E-coe.
3.My outcry was that I had previously held E-coe at the time of the student visa application, a student visa was lodged validly and all of sudden college administration has cancelled E-coe without any warning me, this was the main cause behind the visa refusal by Immigration officer. Issue has been occurred by college administration causing the visa refusal and affected my wife and child. When we have brought this matter to tribunal it was wrong of the AAT not to require me to establish or explain exceptional reasons in not having E-coe but I have studied and completed my studies the AAT has fallen into error in its characterisation of the my application as I have never studied in Australia, this time I am fighting with Education provider because of the mistake of college administration caused the visa refusal.
4.My argument the tribunal should have discussed behind the E-coe cancellation and college administration errors before tribunal discuss the 572.223 criterion as student must have E-coe to meet the student visa. If immigration officer doesn’t regard and tribunal doesn't look in to, who will do the justice to the victims like in Australia.
5.I would like to request the honourable Judge to see whether Immigration officer and respected tribunal did explicitly inquire reasons behind the enrolment cancellation.
6.I would like explain in the court that how the Tribunal made a finding that was error in jurisdictional fact as the immigration and tribunal failed to take into consideration the fact “college administration made administration error and covering themselves further college is threatening me send us to India”.
7.Taking the administration error of college administration I was thinking to bring the college to tribunal but I did not think that tribunal also expect to have E-coe and doesn't discuss about the issue of education provider. It was my lack of knowledge but if it is explained to me at the stage of time of the visa refusal or tribunal hearing, I should have changed my thoughts and mend myself at least I would have had a enrolment and should have had proper discussion at tribunal. Now this opportunity have been missed.
8.The AAT did identified all of the matters that I have raised and I wanted to raise at the tribunal hearing to make out the relevant exceptional reasons that I was bound to demonstrate if my application was to be successful.
9.I did not want to stay in Australia with my family without studying Australia, due to problems with my own understanding, that college made a mistake , and that college would be responsible where immigration officer or tribunal would sue the college but here it has been happened differently and became victim. Now I have realised and bring proper evidence and proper arguments to court to explain to honourable judge in this regarding.
10.Therefore, I seek the review by requesting the Federal circuit court to intervene in my 572 visa refusal which has been done by Immigration officer and also affirmed by tribunal member.
11.I am applying Judicial Review at Federal circuit court within 35 days according to Migration Act 1958 related to federal circuit court regulations.
12.Therefore, I am requesting the federal circuit court to consider my situation under exceptional circumstances where I request the Judge and court see in this matter under natural justice principles by accepting my judicial review application.
In support of the application for judicial review, the first applicant affirmed and filed an affidavit (also on 13 March 2018) annexing the Tribunal’s decision, the delegate’s decision (and notification of that decision) and various identification documents for the applicants (CB 175-202). That affidavit also states (without alteration) (CB 177):
Requesting the Federal Circuit Court of Australia registrar to accept my application for judicial review:
1.I am applying Judicial Review at Federal circuit court under the s.476 of the Migration Act 1958 related to federal circuit court regulations, this application is to be considered that I am applying on my own because of I could not hire solicitor as I am not able to find solicitor with my affordable costs.
2.I am submitting the Decision record of Immigration, Tribunal Decision, do the submission by taking help from solicitor.
3.My visa has been refused unjustly, my family become victims by college administrator, I would like to education provider to court.
4. My claims and all documents are genuine, and I will take full responsibility.
5.I have taken the advice form solicitors as solicitors have given me hope that honourable judge may look in to the case where I can get the decision in my favour I am bringing the application to FCCA with lot of hopes.
6. I hope me and my family will have justice at FCCA with his/her honour.
On 20 February 2019, procedural orders were made by Registrar Luxton in the then Federal Circuit Court of Australia giving the applicants an opportunity to file any amended application, evidence and written submissions (CB 206-207). Unfortunately, no further materials were provided by or on behalf of the applicants.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicants on 13 March 2018, a Court Book numbering 208 pages (marked as Exhibit 1), written submissions filed by the Minister on 29 August 2022 and the affidavit of Stuart James Kovacs affirmed and filed on 6 September 2022 (the “Kovacs affidavit”).
The first applicant appeared before this Court without legal representation. The first applicant explained that he would be speaking on behalf of his wife and son at the hearing. The Court confirmed with him that he had received copies of the materials before the Court (as outlined above).
The Court noted that the application for judicial review filed by the applicants only seeks relief by way of an order quashing the Tribunal’s decision. It does not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act is not properly invoked. The Minister was agreeable to the first applicant orally amending the application to rectify the oversight. The Court explained this issue to the first applicant and made an order amending the application for judicial review to include seeking a writ of mandamus.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions akin to this matter, they most commonly include (but are not limited to) the following types of “mistakes”:
(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 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; 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].
It was also explained to the first applicant that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visa that they seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant explained that he and his family had experienced a difficult period while waiting for the Department to make a decision in relation to his visa application. Further, he had been “unable to focus” on his studies (because he had to take care of his family) and the college consequently cancelled his enrolment. The first applicant pleaded with the Court to “consider his case on compassionate grounds” and to give him one more chance to complete his studies. He emphasised that he is still “passionate about his studies” and wants an opportunity to finish what he had started.
To the extent that the first applicant raised concerns about his “compassionate” or “exceptional” circumstances, this issue will be discussed below. Unfortunately, the first applicant’s concerns above otherwise amount to no more than a request for impermissible merits review.
Consideration
The applicants’ “grounds of review” (and the contents of the applicants’ affidavit) are somewhat vague and lack particulars. Unfortunately, the first applicant’s oral submissions did not assist in this regard. While there is certainly jurisprudence to the effect that “a failure to particularise a ground of review” can warrant the dismissal of an application on that basis alone (WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]; upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969), this Court's preferred approach is to be mindful that, where applicants are unrepresented and may not have adequate knowledge or the ability to prepare for and understand what is required of them, the Court read their grounds of review as broadly as possible and, when doing so, remain astute to the possibility of legal error in the Tribunal's decision. Any concerns identified should then be scrutinised and raised with the Minister: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Upon review of the applicants’ “grounds of review” and the material before it, the Court considers the applicants to be raising three main issues in need of consideration:
(1)whether the Tribunal erred by failing to afford the applicants procedural fairness;
(2)whether the Tribunal erred by failing to enquire about the “reasons behind the enrolment cancellation”; and
(3)whether the Tribunal erred by failing to consider the first applicant’s evidence regarding the cancellation of his enrolment and his “exceptional reasons” or circumstances.
It is noted that the Minister adopted a similar approach in written submissions filed in this Court on 29 August 2022.
Issue 1: whether the Tribunal erred by failing to afford the applicants procedural fairness
To the extent that it is suggested that the Tribunal failed to afford the applicants procedural fairness, the Court disagrees.
As per the principles detailed in Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] (and set out by this Court in its decision of Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 196 at [43]), the Act requires the Tribunal to:
(a)give the applicant the opportunity to provide documentation which he or she wishes the Tribunal to consider, including the opportunity to provide written statements and arguments relation to any aspect of the decision under review: s 358 of the Act;
(b)seek information it considers relevant to a review and then have regard to that information: s 359 of the Act;
(c)invite the applicant to give evidence and present arguments about any aspect of his or her case: s 360 of the Act; and
(d)give the applicant, orally or in writing, clear particulars of information that the Tribunal considers would have be the reason for affirming the decision under review: ss 359AA and 359A of the Act.
The Tribunal invited the applicants to appear at a hearing before it on 21 February 2018 (CB 121-136). As outlined above, that invitation letter provided as follows (CB 123):
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.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.
This request put the applicants on notice about what would be assessed by the Tribunal and what information was required of them.
As outlined above, the applicants did not provide any information relating to the first applicant’s enrolment in a registered course of study.
The applicants did not provide any further information to the Tribunal in the lead up to the hearing (save for completing the hearing invitation form (CB 139-142)).
At the hearing, the first applicant completed a “Student Visa – GTE Questionnaire” form (CB 148-153).
Further, it is noted that, at the hearing, the Tribunal assessed whether the first applicant met the enrolment requirements for the visa. The first applicant was also asked if he did, in fact, have a current confirmation of enrolment or current offer of enrolment. The first applicant responded “no” to that question. The first applicant was then asked if he understood that he did not meet the visa requirements and was asked if he had any further comments or submissions in that regard. This is set out in the Tribunal’s written reasons as follows:
10.The tribunal inquired if the applicant had a current confirmation of enrolment or current offer of enrolment in a principal course of study. The applicant responded no Member.
11.The Tribunal put to the applicant do you understand that not having a Confirmation of Enrolment means that you don't meet a mandatory Visa condition and the Tribunal can affirm the decision? The applicant responded yes Member.
12.The applicant was asked on several occasions if they had any further comments or further submissions to make to the Tribunal about this issue. The applicant did not make or offer any further submissions to the Tribunal.
On the basis of the above, the Tribunal determined that the first applicant (and by extension, the second and third applicants) did not meet the requirements for the grant of the visas.
The Tribunal’s findings were ultimately made on the first applicant’s own evidence (provided under oath) that he was not enrolled in a registered course of study.
The Court is satisfied that the Tribunal afforded the applicants procedural fairness and no error arises in this regard.
Issue 2: whether the Tribunal erred by failing to enquire about the “reasons behind the enrolment cancellation”
The applicants arguably suggest that the Tribunal failed to enquire in relation to the reasons surrounding the cancellation of the first applicant’s enrolment.
In this regard, the Court notes that the duty imposed on the Tribunal is to conduct a review: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. Although the Tribunal has some powers under the Act to obtain information, it does not have a general duty to make its own enquiries in order to make an applicant’s case or investigate an applicant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 (“SGLB”) at [43].
Further, it is well established that the Tribunal is under no obligation to investigate or conduct an inquiry to determine whether an applicant’s case might be “better put” or supported by additional evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]; SGLB at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
Here, the issue before the Tribunal was whether the first applicant was enrolled in, or was the subject of an offer of enrolment in an approved course of study. This was a mandatory “time of decision” criterion which the first applicant was required to meet (as set out in cl 572.231 in Schedule 2 of the Regulations). In that regard, the Regulations provided as follows:
572.231
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.
The Tribunal here relied on the first applicant’s own evidence at the hearing (both orally and in writing in the form of the completed “Student Visa – GTE Questionnaire” form) that he was not currently enrolled in a registered course of study and did not hold an offer of enrolment. Ultimately, the Tribunal considered that information and the material before it and made the only decision open to it.
There was no requirement for the Tribunal to consider (or to obtain) information relating to why the first applicant was not enrolled in a course of study (or why his enrolment had been cancelled). The sole question before the Tribunal was whether or not the first applicant was enrolled in a course of study. He was not.
No error arises in relation to issue 2.
Issue 3: whether the Tribunal erred by failing to consider the first applicant’s evidence regarding the cancellation of his enrolment and his “exceptional reasons” or circumstances
The applicants claim that the Tribunal failed to consider the first applicant’s evidence. In this regard, the applicants say that the “college administration made administration error and covering themselves further college is threatening me send us to India”. Further, the applicants claim that the Tribunal failed to take into consideration the “relevant exceptional reasons” that the first applicant was “bound to demonstrate if [his] application was to be successful”.
As the Minister correctly submits (at [14] in written submissions filed in this Court on 29 August 2022), there is no evidence before the Court to suggest that the applicants raised with the Tribunal the fact that the first applicant’s enrolment had been cancelled “due to an administrative error” or that the applicants provided (or attempted to provide) any evidence in that regard to the Tribunal (either prior to or at the hearing of this matter). Further, even if any such information had been provided, it would not have assisted the applicants.
The requirement that an applicant be enrolled in an approved course of study is mandatory. The Tribunal has no discretion to waive that requirement or to take into account any exceptional circumstances. The sole question the Tribunal was required to answer was whether or not the first applicant was currently enrolled in (or had an offer of enrolment for) an approved course of study. The first applicant was not enrolled in an approved course of study. Nor did he have an offer of enrolment in a course of study.
In those circumstances, as outlined above in relation to issue 2, the Tribunal made the only decision open to it. There is no evidence before the Court to suggest that the Tribunal failed to take into account any evidence or any relevant considerations.
No error arises in relation to issue 3.
Conclusion
The application for judicial review filed by the applicants on 13 March 2018 fails to identify any error on the part of the Tribunal. The Court has otherwise been unable to identify any jurisdictional error in the Tribunal’s decision.
The application (as orally amended on 14 September 2022) is, accordingly, dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 October 2022
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