Wahab v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 181
•15 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Wahab v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 181
File number(s): PEG 69 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 15 February 2021 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where the applicant was not enrolled in a Bachelors level course – where Tribunal considered relevant considerations – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 116, 476
Migration Regulations 1994 (Cth), Condition 8202
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 75 Date of hearing: 29 January 2021 Place: Perth Applicant: Appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 69 of 2020 BETWEEN: ABDUL WAHAB
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
15 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION
The applicant is a citizen of Pakistan. On 21 February 2018, he was granted a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (Court Book (“CB”) 3). He was enrolled to study a Diploma of Science (Engineering Studies) and a Bachelor of Engineering (Civil) Honours.
On 25 September 2019, the then Department of Home Affairs sent the applicant a Notice of Intention to Consider Cancellation (the “NOICC”) (CB 3-8). The NOICC stated that it appeared that the applicant’s enrolment had been cancelled and that, as such, he was in breach of Condition 8202 of his visa. The applicant was also advised that the relevant visa was being considered for cancellation pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (the “Act”).
On 14 October 2019, the applicant responded to the NOICC (CB 9-10). He indicated that his mother was suffering from health issues when he first arrived in Australia and that he was suffering from home sickness – all of which, he explained, caused him to “lack concentration and focus”. He also advised that he had “changed to a different course but did not like it” and had then enrolled in a Diploma and Bachelor of Community Services.
On 30 October 2019, a delegate of the first respondent (the “Minister”) cancelled the applicant’s visa (CB 24-37). The delegate found that a ground for cancellation existed and that there were no reasons to exercise the discretion not to cancel the visa.
On 28 November 2019, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 38-39).
The applicant attended a hearing before the Tribunal on 22 January 2020 (CB 48-50). Further supporting documents were provided to the Tribunal by the applicant, including submissions prepared by his representative (CB 52-93).
On 23 January 2020, the Tribunal affirmed the delegate’s decision to cancel the visa (CB 97-102).
On 27 February 2020, the applicant sought judicial review of the Tribunal’s decision in this Court pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 6 pages long and spans 24 paragraphs.
The Tribunal began by identifying the type of visa being considered for cancellation, detailing the delegate’s decision and confirming that the applicant had appeared before the Tribunal (at [1]-[3]).
The Tribunal noted that the issue in the case before it was whether the applicant had breached Condition 8202 and, if so, whether the Tribunal should cancel his visa (at [5]).
The Tribunal then summarised Condition 8202. It explained that Condition 8202 requires that the applicant remain enrolled in a course which, when completed, will give him a qualification at the same level as, or a level higher than, the qualification in which he was enrolled when granted the visa (at [6]).
The Tribunal continued:
7. The delegate’s decision dated 29 October 2019 records the reasons for cancellation of the applicant’s student visa. The applicant’s visa was granted on 21 February 2018 in relation to a Diploma of Science (engineering studies) and a Bachelor of Engineering (civil) honours course, which would provide a level 7 qualification. The Provider Registration and International Student Management System (“PRISM”) indicated that the applicant’s enrolment in the bachelor course was cancelled on 20 November 2018 and the applicant’s enrolment in the diploma course was cancelled on 12 November 2018. On 10 September 2018 the applicant enrolled in a Certificate II course in security operations which was completed on 14 September 2018; he further enrolled in a Diploma of Business commencing on 17 December 2018, and this enrolment was cancelled for non-payment of fees on 10 April 2019. Prior to the Diploma of Business enrolment being cancelled, the applicant enrolled in a series of vocational courses in mechanical and automotive technology. The highest AQF level of this course package was AQF level 5 (diploma), which would provide a level 5 qualification. At the hearing, the applicant affirmed that the Bachelor of Engineering enrolment was cancelled on 20 November 2018 and the Diploma of Science enrolment was cancelled on 12 November 2018. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course at the same level as or higher than the registered course in relation to which his visa was granted. Accordingly, the applicant has not complied with condition 8202(2)(b).
The Tribunal then explained that, having found a ground for cancellation existed, it had to consider whether to exercise the discretion to cancel the visa (at [8]). In this regard, the Tribunal noted that it had had regard to the matters in the Minister’s Department’s Procedural Instruction guide (at [9]).
The Tribunal first considered the purpose of the applicant’s travel and stay in Australia and whether the applicant had a compelling need to travel to or remain in Australia. It noted that the applicant had travelled to Australia with the intention to study a Diploma of Science followed by a Bachelor of Engineering (which he would complete in 2021). It further noted that the applicant had provided no evidence about whether he had a compelling need to travel or remain in Australia (at [10]).
In relation to the applicant’s extent of compliance with his visa conditions, the Tribunal noted that the applicant had confirmed that he had not been enrolled in an equivalent course since 20 November 2018 (at [11]).
While the applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa, the Tribunal accepted that cancellation of the applicant’s visa would cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship in the form of disappointment or embarrassment from not completing the course. The Tribunal gave this factor a “little weight” in the applicant’s favour (at [12]).
When considering the circumstances in which the cancellation arose, the Tribunal found:
13. The applicant said that he commenced the diploma course but did not complete it. After 15 days, he returned to Pakistan because his mother was ill. He said that he obtained a deferral of the course at that time. He returned from Pakistan after approximately three months. He said that he re-enrolled in the Bachelor of Engineering course when he returned. The Tribunal drew the applicant’s attention to page 5 of the delegate’s decision dated 29 October 2019 as follows: “upon his return to Australia three months later, the visa holder chose not to re-enrol in his engineering studies but completed a four day certificate II level course in security operations”. The applicant asserted that this statement was incorrect. The applicant said that he had no proof of re-enrolment. The applicant’s migration agent was invited to clarify this point. The migration agent in response, although it was not clear, appeared to assert that the applicant had re-enrolled in the diploma course but not the bachelor level course. At all events there is no documentary corroboration of the assertion by the applicant that he re-enrolled in the bachelor level course. The Tribunal prefers the account of the facts by the delegate in the decision dated 29 October 2019 on this point. The Tribunal asked the applicant why the COE was cancelled on 20 November 2019, to which he said “because I did not study, I have some personal problems, I had no friends, I was confused, I did not know what to do, I did not pay the fees”. He did not elaborate. The Tribunal enquired as to why the COE in the diploma course was cancelled on 12 November 2018, to which he said “the same reason”. The applicant then added “I did not pay the fees, because I was not feeling comfortable at the time, I did not like Perth, I had no friends”. The Tribunal asked what happened then, to which he said “I saw a doctor, I explain things to him, I went to Sydney, that is why did not pay the fees in Perth”.
14. The Tribunal enquired as to whether the applicant had thereafter enrolled in other courses, to which he said he enrolled in a Diploma of Business in January 2018 but did not complete it, a Certificate II and a Certificate IV course “automotive” which he did not complete, and a Diploma of Community Services which is due to commence on 30 November 2020. In further questions from the Tribunal, he conceded that he had also enrolled in and completed a Certificate II course in security operations on 14 September 2018. The Tribunal asked whether the applicant had enrolled in any bachelor level course at the cancellation of the Bachelor of Engineering course on 20 November 2018. In response he said that he had enrolled in a Bachelor of Community Services on “October 2019” which will start on 7 February 2022 and will be completed on 31 December 2023.
15. The Tribunal enquired as to when the applicant had received notice of intention to consider cancellation of his visas, to which he said “on 25 September 2019”. The Tribunal observed that a few days after receiving the notice, he enrolled in the Bachelor of Community Services course, to which he said “when I receive the notice it came to my knowledge that I was breaching a condition”. The Tribunal asked why the applicant had not maintained enrolment in a bachelor level course, to which he said “I recently turned 18, I was not aware of that thing, I was not aware of breaching the condition”.
16. The applicant’s migration agent was invited to make any submissions. The migration agent said that when his client entered Australia in February 2018, he was not aware of any conditions and that the breach of the visa condition was because of a lack of knowledge. The applicant’s migration agent had also filed, on the morning of the hearing, a short submission dated 22 January 2020. The migration agent did not draw the Tribunal’s attention to any particular part of the submissions during the hearing. The written submissions of the migration agent have been taken into account. The Tribunal notes that paragraph 5 contains the only reference to the reasons for the cancellation of the applicant’s enrolment in the bachelor level course as follows: “after returning from Pakistan, he was depressed, finding it difficult to concentrate and maintain his focus on studies. He did not have any friends or acquaintances in Perth. His parents helped him to find some friends from his home town in Sydney and he decided to move there from Perth”. This is broadly consistent with the applicant’s evidence although, as with the applicant’s evidence, is vague and lacking in detail. The Tribunal notes that neither the migration agent nor the applicant refer to or rely upon any medical opinion or evidence in relation to depression.
17. To the extent that the applicant has given any evidence about the reasons for the cancellation of his bachelor’s course enrolment, it appears that it related to lack of friends, or other similar matters, and perhaps as a consequence that he did not pay the tuition. This is not a convincing reason for not persisting with studies in the Tribunal’s view. In the Tribunal’s view, it is incumbent on a student to diligently apply themselves to the completion of their particular studies. As to why the applicant did not maintain a bachelor level enrolment thereafter, he said that he was not aware of the condition. In the Tribunal’s view, it is incumbent on a foreign student holding a student visa to be familiar with and comply with the terms and conditions of the student visa. It is not a convincing reason to say that the student was unaware of important conditions of the study visa. In all the circumstances, the Tribunal is not convinced that the reason for not maintaining the requisite level of study enrolment was beyond the control of the applicant.
As the Tribunal had no evidence in relation to the past and present behaviour of the applicant towards the Department, the Tribunal gave this factor no weight (at [18]). It also noted that no evidence was given in relation to whether any consequential cancellations would result and gave this factor little weight (at [19]). There was also no evidence provided in relation to any international obligations or family, business or other ties the applicant may have to Australia. The Tribunal also gave those factors no weight (at [21]-[22]).
The Tribunal accepted that there might be legal consequences as a result of the cancellation. However, the Tribunal determined that these consequences were intended by Parliament when enacting the legislation and, accordingly, gave those consequences little weight (at [20]).
Considering the circumstances as a whole, the Tribunal concluded that the visa should be cancelled and affirmed the delegate’s decision (at [23]-[24]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed 27 February 2020 contains three “grounds of review” as follows:
1. The applicant’s non compliance of visa condition 8202(2)(b) occurred due to changes of different providers which was beyond his control. The associated extenuating circumstances have not been considered by the Tribunal.
2. The member of the Tribunal appears to unfamiliar with the educational system of universities especially for package programs. He was of the view that a student has to be enrolled both in Diploma and Bachelor at the same time whereas on the contrary this is not the case.
3. On the hearing, the applicant presented current CoE for both diploma and Bachelor Degree program but it was not taken into account and Tribunal pressed on cancellation of the visa rather than looking into associated compelling and compassionate circumstances.
The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of submissions. No further materials were filed.
The materials before the Court thus include the judicial review application filed 27 February 2020, a Court Book numbering 102 pages (marked as Exhibit 1), a document confirming service of the Minister’s written submissions (marked as Exhibit 2) and an outline of written submissions filed by the Minister dated 1 October 2020.
The applicant appeared before this Court without legal representation. The Court confirmed that he had received a copy of the Court Book and the Minister’s submissions.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now 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 applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa. 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 applicant told the Court that that during the Tribunal hearing the Tribunal “kept asking why [he] kept enrolling in the Diploma and not enrolling in the Bachelors course”. The applicant “explained to the Tribunal that [he] had to complete the Diploma before [he] could complete the Bachelor’s degree but the Tribunal did not appear to accept this”. The Court will address this submission below when it addresses ground 2.
The applicant also stated that the Tribunal implied that his confirmation of enrolment was cancelled because he had not paid his fees. This concerned him because “there were other circumstances that occurred”. The Court will consider this issue below when addressing ground 1.
In reply submissions, the applicant handed up a document to the Court (Exhibit 3). The Minister objected. Exhibit 3 is a letter of offer from “Acknowledge Education for a Diploma of Community Services and a Bachelor of Community Services”. The letter is dated 24 September 2019. The Court will consider Exhibit 3 below.
CONSIDERATION
Ground 1
Ground 1 provides (without alteration):
The applicant’s non-compliance of visa condition 8202(2)(b) occurred due to changes of different providers which was beyond his control. The associated extenuating circumstances have not been considered by the Tribunal.
Ground 1 fails on the facts.
At no time was it ever put to the Tribunal that the applicant failed to comply with Condition 8202 as a result of changes by the education providers. The reasons the applicant advanced for his not remaining enrolled were:
…because I did not study, I have some personal problems, I had no friends, I was confused, I did not know what to do, I did not pay the fees… I did not pay the fees, because I was not feeling comfortable at the time, I did not like Perth, I had no friends…I saw a doctor, I explain things to him, I went to Sydney, that is why did not pay the fees in Perth…
…
he was not aware of any conditions and that the breach of the visa condition was because of a lack of knowledge.
None of the materials before the Court indicate that the applicant advised the delegate or Tribunal that there were “changes” made by the different providers (which the Court understands to be the education providers).
Further, the Provider Registration and International Student Management System (PRISMS) indicates that the reasons for “variation” to the applicant’s courses (i.e., the reasons he stopped being enrolled in certain courses) were as follows:
(a)he notified the education provider he wished to cease studies;
(b)he had not paid the course fees;
(c)he had not commenced studies;
(d)he had advised the education provider that he wished to study with another education provider; and
(e)he changed the course which he was enrolled in.
It is clear from the applicant’s own evidence to the Tribunal (and the relevant documentary material) that the applicant’s “non-compliance” did not occur “due to changes of different providers which was beyond his control”.
Accordingly, ground 1 fails on a factual level.
More generally, the Court notes that the Tribunal’s findings (that the circumstances in which the breach occurred were matters that were within the applicant’s control) are entirely sound.
The Tribunal’s findings are detailed and make extensive reference to the applicant’s own evidence (at [13]-[15]). The Tribunal notes that the applicant’s evidence and submissions are “vague” and “lacking in detail” (at [16]) and refers to the lack of evidence that the applicant provided in support of his mental state (at [16]) (to support his statement that he was depressed).
A critical paragraph in the Tribunal’s decision provides as follows:
17. To the extent that the applicant has given any evidence about the reasons for the cancellation of his bachelor’s course enrolment, it appears that it related to lack of friends, or other similar matters, and perhaps as a consequence that he did not pay the tuition. This is not a convincing reason for not persisting with studies in the Tribunal’s view. In the Tribunal’s view, it is incumbent on a student to diligently apply themselves to the completion of their particular studies. As to why the applicant did not maintain a bachelor level enrolment thereafter, he said that he was not aware of the condition. In the Tribunal’s view, it is incumbent on a foreign student holding a student visa to be familiar with and comply with the terms and conditions of the student visa. It is not a convincing reason to say that the student was unaware of important conditions of the study visa. In all the circumstances, the Tribunal is not convinced that the reason for not maintaining the requisite level of study enrolment was beyond the control of the applicant.
It cannot be said that a reasonable decision-maker could not have concluded that “a lack of friends” and “an ignorance of one’s visa conditions” did not constitute an adequate explanation for breaching the conditions of a visa. The Tribunal’s findings in this regard were not arbitrary, capricious or unjust. It was, on the contrary, entirely sound.
The applicant has not identified which “associated extenuating circumstances” were not considered. On the evidence, it is clear that all of the circumstances (or explanations) that the applicant put to the Tribunal relevant to a non-compliance were addressed by the Tribunal. Ultimately, the Tribunal was not convinced that these “extenuating circumstances” were outside of the applicant’s control or supported by evidence.
Before this Court, the applicant referred to the “non-payment of fees”. He suggested that the Tribunal “focussed” on this. This is incorrect. The “non-payment of fees” was considered in the context of the circumstances surrounding the visa cancellation. The applicant himself offered this evidence to the Tribunal. There is no error in the Tribunal referencing this in its decision and taking it into account when assessing why the visa was cancelled.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
The member of the Tribunal appears to unfamiliar with the educational system of universities especially for package programs. He was of the view that a student has to be enrolled both in Diploma and Bachelor at the same time whereas on the contrary this is not the case.
Before this Court, the applicant stated that the Tribunal did not understand that he was enrolled in a Diploma course and needed to complete the Diploma before completing the Bachelors course.
The applicant appears to be referring to the following paragraph in the Tribunal’s decision:
13…He said that he re-enrolled in the Bachelor of Engineering course when he returned. The Tribunal drew the applicant’s attention to page 5 of the delegate’s decision dated 29 October 2019 as follows: “upon his return to Australia three months later, the visa holder chose not to re-enrol in his engineering studies but completed a four day certificate II level course in security operations”. The applicant asserted that this statement was incorrect. The applicant said that he had no proof of re-enrolment. The applicant’s migration agent was invited to clarify this point. The migration agent in response, although it was not clear, appeared to assert that the applicant had re-enrolled in the diploma course but not the bachelor level course. At all events there is no documentary corroboration of the assertion by the applicant that he re-enrolled in the bachelor level course…
It is important to understand that the ground for cancellation was non-compliance with Condition 8202(2)(b). That Condition provides:
(2) A holder not covered by subclause (1):
…
(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
…
What is critical in the passage the applicant takes issue with is that there was no evidence that the applicant had re-enrolled in the Bachelor course. In order to meet Condition 8202(2)(b) the applicant had to maintain enrolment in a Bachelor level course.
This is critical. The applicant conceded that he had not been enrolled in a course of this sort since 20 November 2018 and until the time the NOICC was issued. He was, therefore, in breach of Condition 8202.
The Tribunal was correct when it determined that, in order to maintain the visa, the applicant needed to be enrolled in a Bachelor course at all relevant times. He had not been enrolled in a Bachelor course for nearly one year at the time the NOICC was sent.
Whether or not the Tribunal misunderstood how an education provider “packages” courses is immaterial. The fact that a person can undertake a Diploma without being enrolled in a Bachelor course is neither here nor there. It was a requirement of the applicant’s visa that he be enrolled in a Bachelor course. By his own admission he was not.
To the extent that the applicant’s submissions to this Court suggest that he was enrolled in a Bachelors level course, the evidence before the Court, and the Tribunal, demonstrates that he was not.
It appears that Exhibit 3 was produced to support the applicant’s claim that he needed to be enrolled in, and complete, a Diploma level course in order to progress to a Bachelors level course.
Exhibit 3 states:
Students with a package of courses, must complete each course before progressing to the next one.
The period in which the Tribunal considered that the applicant had not complied with Condition 8202 was from 20 November 2018. Relevantly, that was the date that the applicant’s enrolment in a Bachelor’s course ceased (noting that his enrolment in the Diploma level course had ceased the week prior). Relevantly, from 20 November 2018 until the time after the NOICC was issued, the applicant was not enrolled in a Diploma or a Bachelor level course. He was only enrolled in Certificate level courses (none of which had a “Bachelor” level course progression).
Put another way, in the period in question (from 20 November 2018 until 25 September 2019) the applicant had no enrolment in a Diploma or Bachelor level course during this period.
The Tribunal was under no misapprehension when determining whether the applicant was in breach of his visa conditions.
Ground 2 is, accordingly, dismissed.
Ground 3
Ground 3 provides:
On the hearing, the applicant presented current CoE for both diploma and Bachelor Degree program but it was not taken into account and Tribunal pressed on cancellation of the visa rather than looking into associated compelling and compassionate circumstances.
The Tribunal did take into account the applicant’s enrolment in the Diploma and Bachelor of Community Services (at [14]-[15]).
The Tribunal noted that the applicant had enrolled in this course shortly after receiving the NOICC. It recorded the applicant’s evidence that it was only when receiving the NOICC that he realised he was breaching a condition of his visa (and then took steps to re-enrol).
Further, the Tribunal expressly noted (at [10]) that the applicant had not provided any evidence that there was a compelling need to travel to or remain in Australia.
The Tribunal noted that the applicant might suffer some hardship (which may be what the applicant is referring to as compelling and compassionate circumstances) and gave that factor some weight.
The Tribunal took into account the applicant’s evidence and circumstances. It considered that evidence and weighed it accordingly. The Tribunal concluded that the visa should be cancelled. There was no error in that finding of a sort that this Court can address.
Ground 3 is, accordingly, dismissed.
Exhibit 3
At the hearing, the applicant handed up a document which the Court marked as Exhibit 3. It does not appear that it was before the Tribunal.
The Minister objected to the Court receiving Exhibit 3 as the document was not before the Tribunal. The Minister submitted that if the applicant wished to provide the document to the Tribunal he could have done so (noting it was dated prior to the Tribunal’s decision). The Minister submitted that it is not open to the applicant to now argue that the Tribunal should have considered something in the document when he did not put the document before the Tribunal.
The Court agrees with the Minister’s submission.
An application for judicial review is, ordinarily, limited to the material that is before the Tribunal: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145. Further, any new evidence should not be permitted for the purpose of showing a finding of fact was wrong or to better support an applicant’s claims and evidence.
Here, Exhibit 3 was not before the Tribunal and the purpose for which the applicant seeks to provide it to the Court is, in effect, to engage in merits review. The applicant wishes to rely on it to explain why he was not enrolled in a Bachelor’s course.
Exhibit 3 has no weight and does not identify any jurisdictional error.
CONCLUSION
The application for judicial review has not identified any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 15 February 2021
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