Dhawan v Minister for Immigration & Anor [2020] FCCA 1335 (29 May 2020)

Last Updated: 29 May 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHAWAN v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1335

Catchwords: MIGRATION – Student (Temporary)(Class TU) visa – reinstatement application – where acceptable explanation – where insufficient merit in judicial review application – application dismissed.

Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 Migration Act 1958 (Cth), ss.359A, 476 Migration Regulations 1994 (Cth), cls.500.211, 500.212 of sch.2

Cases cited: Abebe v The Commonweath [1999] HCA 14; (1999) 197 CLR 510 Bains v Minister for Immigration & Citizenship [2012] FCA 649 Bala v Minister for Immigration & Border Protection [2019] FCA 600 CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (20074) [2004] HCA 32; 207 ALR 12 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant:

SAURABH DHAWAN

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 276 of 2019

Judgment of:

Judge Kendall

Hearing date:

27 May 2020

Date of Last Submission:

27 May 2020

Delivered at:

Perth

Delivered on:

29 May 2020

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Ms E Tattersall

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application in a case filed 18 April 2020 be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH

PEG 276 of 2019

SAURABH DHAWAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was first listed for hearing on 7 April 2020. On that occasion the applicant did not make an appearance. The Court dismissed the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) and ordered the applicant to pay the Minister’s costs.
2. On 18 April 2020, the applicant filed an application in a case with a supporting affidavit seeking to have the orders made on 7 April 2020 set aside.
3. On 27 May 2020, the Court heard submissions from the parties as to whether the application should be reinstated. The parties appeared by telephone.
4. The Court had before it the applicant’s application for judicial review dated 22 July 2019, an affidavit from the applicant dated 21 July 2019, a Court Book numbering 139 pages (marked as Exhibit 1), an affidavit of Georgina Roberta Ellis affirmed 18 March 2020, an outline of written submissions from the Minister dated 18 March 2020 and the application in a case and accompanying affidavit from the applicant dated 18 April 2020.

Background

5. On 22 July 2019, the applicant filed an application for judicial review in this Court seeking judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 24 June 2019. The Tribunal affirmed a decision of the first respondent (the “Minster”) to not grant the applicant a Student (Temporary)(Class TU) visa (the “visa”).
6. The applicant is a citizen of India. He first arrived in Australia on 7 August 2014 on a Higher Education Sector (TU-573) student visa (CB 76).
7. On 11 September 2016, the applicant applied for the visa the subject of this application (CB 1-35). The applicant indicated that he wished to study a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, a Diploma of Hospitality Management and a Bachelor of Business (Management).
8. On 26 October 2016, the applicant was asked by the Department of Immigration and Border Protection to provide further information (CB 37-42). In response, the applicant provided two further documents to the Department (CB 43-69).
9. On 6 December 2016, a Ministerial delegate refused to grant the applicant the visa (CB 70-77). The delegate was not satisfied that the applicant was a “genuine temporary entrant” and, accordingly, found that cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) was not met.
10. On 9 December 2016, the applicant applied for a review of the delegate’s decision at the Tribunal (CB 78-79).
11. On 13 April 2018, the applicant was invited to provide information to the Tribunal. The requested information was set out in a “Request for Student Visa Information” questionnaire (CB 84-92).
12. On 26 April 2018, the applicant provided a completed questionnaire to the Tribunal (CB 93-102).
13. The applicant attended a hearing before the Tribunal on 13 June 2018 (Ms Ellis’ Affidavit). At the hearing, the applicant provided academic documents from the Australian Technical College of Western Australia (CB 106-113).
14. On 27 May 2019, the Tribunal invited the applicant to comment on or respond to information the Tribunal had received which indicated that the applicant did not hold a current confirmation of enrolment (CB 121-122). On 10 June 2019, the applicant responded as follows (CB 127):
    • I, Saurabh Dhawan of [omitted], wish to state my current situation to the member of AAT. I am seeking approval of my student visa extension request. I have listed the reasons as follows.
    • In the previous attendance in AAT hearing, I had stated that I was not be able to receive offer/permission from any colleges to continue my study due to my current visa status. The college had given me the conditional offer letter at that time with the conditions of providing evidence/proper student visa deemed suitable for continuation of the course. The situation remains the same as my case is still pending. I tried approaching different colleges again on your latest notice, all came up with the same response with the conditional offer letter related to visa status issue.
    • I am left with the option of your decision on my pending case. If you could please issue me the respective visa, so I would complete my course/certification within the time frame and return to my home country.
15. Attached to the applicant’s statement of 10 June 2019 was a Letter of Offer and Acceptance from the Australian Technical College of Western Australia. The letter indicated that it was “conditional” and “subject to successful outcome of MRT” (Ms Ellis’ Affidavit).
16. On 24 June 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa.

Tribunal’s Decision

17. The Tribunal began by outlining the background to the application and the materials that it had before it (at [1]-[8]).
18. At [9]-[11], the Tribunal stated:
    • 9. At hearing the applicant gave the Tribunal a copy of a Letter of Offer and Acceptance from Australian Technical College, Western Australia dated 16 April 2018 in relation to his recent application for enrolment in Certificates III and IV in Commercial Cookery and a Diploma of Hospitality Management. At hearing the applicant said he had recently finished his Diploma in Social Media Marketing but was awaiting results and not currently enrolled in any course.
    • 10. Prior to making its decision the Tribunal obtained the Provider Registration and International Student Management System (PRISMS) records relevant to the applicant. On 27 May 2019 the Tribunal invited the applicant to provide a written response to the information contained in PRISMS that indicated that the applicant did not hold a current confirmation of enrolment in any course, that he was not currently studying, and did not have an enrolment to study in the future. The letter explained that if he was not currently enrolled he would not meet criterion in cl.500.211 of the Regulations.
    • 11. On 10 June 2019 the applicant provided a Letter of Offer and Acceptance from Australian Technical College, Western Australia dated 7 June 2019 in relation to his recent application for enrolment in Certificate IV in Commercial Cookery and a Diploma of Hospitality Management. The Letter of Offer and Acceptance from Australian Technical College Western Australia dated 7 June 2019 attaches a special condition that "the admission is conditional subject to successful outcome of MRT". The applicant provided a statement saying that his situation remained as it was at the time of his hearing that his college will only offer him a conditional offer fetter subject to a condition of providing evidence of his proper student visa. The applicant says he approached different colleges with the same response.
19. The Tribunal then set out the criteria to be met in order to be granted the visa. Importantly, the Tribunal outlined the relevant enrolment criterion at [12]-[15].
20. At [16]-[19], the Tribunal stated:
    • 16. The applicant’s evidence at hearing was that he was not currently enrolled in any course. The letter of offer and acceptance from Australian Technical College Western Australia dated 16 April 2018 said a CoE will be issued only if the MRT results in successful visa outcome. The Tribunal notes the subsequent letter of offer and acceptance dated 7 June 2019 is from the same institution and is also conditional on the MRT outcome.
    • 17. At the time of hearing the applicant held a current enrolment in an Advanced Diploma of Business for the period for June 2018 to June 2019. The Tribunal notes enrolment in that course was cancelled on 4 July 2018, shortly after the hearing on 11 June 2018, because of non-commencement of studies.
    • 18. The Tribunal is of the view that the applicant held a current enrolment in an Advanced Diploma of Business at the time of the hearing and does not accept the applicant’s submission that he is unable receive an (unconditional) offer/permission from any college to continue his study due to his visa status.
    • 19. The Tribunal is not satisfied that a conditional letter of offer and acceptance is evidence of enrolment in a course of study for the purposes of cl.500.211 of the Regulations.
21. In light of the above, the Tribunal affirmed the decision not to grant the applicant the visa.

Proceedings in this Court

22. As noted, the applicant did not appear on 7 April 2020. The Court attempted to contact the applicant on his mobile telephone number but was unsuccessful. As a precaution, the Court also had the matter called three times outside of the courtroom. In the circumstances, the Court dismissed the application for non-appearance.
23. The applicant now seeks reinstatement.
24. The application in a case does not identify the basis upon which the applicant seeks that the orders of 7 April 2020 be set aside. Nonetheless, the Court infers that he is referencing r.16.05(2)(a) of the Rules which allows the Court to reinstate an application if orders are made in the absence of a party.
25. The applicant’s affidavit filed with the application in a case indicates that the applicant attempted to dial into the number provided to him on two occasions. The record shows that the applicant dialled the correct number. The applicant states that he entered the guest passcode. It appears, however, that the applicant did not enter the hash key (as had been indicated in the email sent to him).
26. On 9 May 2020, the applicant emailed Chambers as follows:
    • This is to mention that at present I am going through financial hardship due to COVID19, also I am unable to engage with any lawyer so I need at least two to three months to arrange a lawyer who can represent on my behalf. I would also like to say that I have moved to adelaide, so due to closed borders I would not be able to
    • Move back to Perth for my hearing which is on 21st of may 2020. It will be highly appreciated if you give me some more time as I am going through financial hardship.
27. A response was sent indicating that the applicant should contact the Minister to obtain consent for an adjournment if that is what the applicant was seeking. Otherwise, it was explained, the matter would remain listed for hearing.
28. The matter came on for hearing of the application for reinstatement on 27 May 2020. The applicant appeared before the Court without representation. The Court asked the applicant whether he still sought an adjournment. He first indicated that he was ready to proceed and did not pursue an adjournment. During the course of the hearing, the applicant then indicated that he did want an adjournment. For reasons explained below, the Court refused that adjournment.
29. The Court explained to the applicant that the matters it generally considers in a reinstatement application include, but are not limited to:
    1. whether there was a reasonable excuse for the party’s absence from the hearing in which the substantive application was dismissed;
    2. the length of any delay in seeking reinstatement and the existence and nature of any prejudice which might flow to the Minister from reinstatement. To the extent there is any prejudice, the Court will consider the extent to which that prejudice can be mitigated by other relief such as costs; and
    100. whether the applicant has a reasonably arguable prospect of success in relation to the substantive application.

(MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530)

30. The Court will outline the applicant’s submissions, and the Minister’s submissions in response, below.

Adjournment Request

31. The applicant sought an adjournment on the basis that he is suffering financial hardship, wishes to retain a lawyer, has moved to Adelaide and cannot return to Perth for a hearing. At the hearing, the applicant reiterated that he needs an “immigration lawyer” and that it was his “right”.
32. The Court was not satisfied that it is in the interests of the administration of justice that the hearing be adjourned.
33. The Court’s reasons for denying the request for an adjournment are as follows:
    1. the applicant’s substantive application was dismissed for non-appearance on 7 April 2020. At that time the applicant had not retained a lawyer. His affidavit suggests that he was prepared to appear by himself on that occasion and without the assistance of a lawyer;
    2. there is no guarantee that the applicant will retain a lawyer, particularly given his alleged financial hardship. There is no evidence that he has sought to retain a lawyer though the applicant did state that he could not find a “competent” lawyer. The utility of an adjournment in the circumstances is not sufficiently high;
    100. contrary to the applicant’s submissions, there is also no right to legal representation in migration proceedings: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265;
    4. the applicant was able to appear by telephone from Adelaide. The Court has been conducting all hearings by audio/visual conferencing as a result of the current health crisis and has done so successfully. The applicant, again, appears to have been prepared to proceed by this method on the day of the substantive hearing. There is no need for him to travel to Perth from Adelaide;
    5. the applicant’s substantive application, at present, is dismissed and a reinstatement application should be heard quickly. If it is not, this has the effect of encouraging litigants not to attend on their court date and prolong the review process by filing an application for reinstatement at a later date; and
    6. there is currently one sitting Judge in the Perth registry of this Court. Matters have been listed until early 2021 and there is limited, if any, capacity for the Court to hear the interlocutory matter within a reasonable period. If the Court were to grant the adjournment, it would be contrary to the efficient administration of justice.
34. For these reasons, the request for an adjournment is denied.

Reinstatement Application

Explanation and Delay

35. The applicant’s explanation is that he attempted to dial into the Court, but was unsuccessful. The Minister submitted that the applicant’s evidence does not indicate on what day the applicant allegedly made the phone calls nor why the applicant did not answer when the Court contacted him or why he did not contact the Court immediately as he was asked to do if he experienced difficulties.
36. While arguably lacking in detail, the Court is prepared to accept the applicant’s explanation. The Court considers that the applicant attempted to dial into the hearing on 7 April 2020, however the applicant did not dial in as directed (by failing to enter the “hash” button). The Court is prepared to find that the applicant’s explanation is acceptable.
37. The delay in applying for reinstatement is 11 days. This is not significant. It is also the case that the applicant emailed the Registry the afternoon of the hearing stating that he had been unsuccessful when trying to dial in.
38. As the delay is not significant, it cannot be said that it caused significant prejudice to the Minister. The Minister, in any event, conceded there was no prejudice.
39. Overall, these matters weigh in favour of reinstatement.

Merits

40. The determinative factor here will be whether there is merit in the substantive application.
41. In CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 at [4]- [6], Justice Mortimer (in the context of considering the merits of an application for reinstatement) explained as follows:
    • 4. ... The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
    • 5. However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.
    • 6. The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.
42. To determine whether the substantive application has merit, the Court must assess whether any of the grounds of review in the judicial review application are “arguable”.
43. The applicant’s application for judicial review contains three “grounds” as follows:
    • 1. I, Saurabh Dhawan, Passport number [omitted] Date of Birth: [omitted] made an application for Student Visa subclass 500 on 11 Sep 2016. At the time of application I had provided all the necessary documents to my agent, relating to the further extension of student visa application. The officer did not ask for any further clarification or documents in relation to my intentions of studying hospitality and management nor did the officer bother giving me a chance to explain about the gap in my studies from Jan to Oct 2015. Numerous friends, advisors and colleagues have misguided me since my arrival in Australia. I arrived here to study Master of Information Technology, however, after consulting a few friends and classmates I was informed that this course would not lead to a better career prospects or have an advantage in the future. This led me into depression as I came to Australia to study Master of Information Technology but I was afraid about the future. Also while I was completing my Academic English Studies, Edith Cowan University, hereby addressed as ECU, imposed further studies in English program where as I was only meant to study the English program for 3 months. Coordinators at the ECU informed me that they have changed the pre-requisites for direct entry into Masters program. I have all the evidences of my arguments with ECU. I decided not to continue with the said Master’s enrolment and hence there was a gap in my studies from Jan to Oct 2015. Before I could give the explain the reason for my choice of courses and career plan, I received a notice of refusal by Department of Immigration and Border Protection on 06 Dec 2016, which stated that I did not satisfy cl. 500.212. According to the decision maker, I was unable to meet the requirements of clause 500.212 of the Migration Regulations and that rules and regulations do not support my claims and therefore they refused to grant me a visa. According to me I believe that the rule that they applied at the time of making decision on my visa application, which is cl.500.212 was clearly satisfied. With a lack of knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that I did not satisfy cl.500.212, which describes the eligibility criteria for a genuine student who intends to, study a relevant course and comply with visa conditions in Australia whereas; I strongly believe that I have satisfied the same rule. I completed my Academic English studies and Direct Entry Program according to the required time frame. I cancelled the Master’s course that I had enrolled for, as I believed that this course would not give me a better career prospect or boost my chances of employment in the future with this course. Disappointed with the decision maker’s views, I applied for a review of the same decision at the AAT. By the time AA T could hear my views and concerns, I had completed Certificate III in Commercial Cookery and I was enrolled further for Certificate IV + Diploma of Hospitality Management in Australian Technical College I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was repeatedly misguided my friends and did not have any family in Australia who would give me proper guidance for either course selection and enrolments or the risk of breaching any conditions in student visa subclass 500. At the time of hearing, the Tribunal member did not listen or understand that the college has given me a conditional offer letter and I was unable to obtain a COE for any course in any college or university. I was not given a chance to speak further and provide any explanation or make request at the Tribunal. Even at the time of AAT hearing I wasn’t provided the natural justice by the Tribunal member. I believe that this is unfair as I had completed the Diploma of Social Media Marketing and had genuine intentions to study Hospitality courses.
    • 2. After the department refused my application I applied for the review of my application at the AAT with the expectation that they would understand and consider my scenario. I was of the view that the AAT would consider the situation and help me convert the conditional offer letter into COEs’ to study in Australia. I was invited to appear in the hearing scheduled on 13 Jun 2018. I attended the hearing and the tribunal asked me to provide evidence of course enrolment. I gave an explanation about my application at the Australian Technical College for Hospitality courses and the conditional offer being placed by the college. The Tribunal member showed more concerns over my enrolments in the past and present. The member did not ask me any further questions and did not even give me a chance to speak further and explain about my conditional enrolment application at a college in Perth. I believe that I preferred to study further at a reputed college in Perth and therefore wanted the officer to grant me a chance to provide a COE. The Tribunal member at the AAT hearing did not provide procedural fairness in making a decision on my appeal application.
    • 3. The main reason behind filing this appeal application at the Federal Circuit Court is that I believe that the tribunal member at the AAT has not been fair and have not given natural justice to my particular case. I have a strong view that AAT should have considered the fact that I have always been a genuine student wishing to study in Australia to have a better future. I was left with no choice but to accept the offer from Australian Technical College despite of a condition in the offer letter. I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was enroled in different courses in the past, I now have the focus and career pathway available in Hospitality. And hence, I genuinely believe that I still satisfy the subclause 500.212. I request the Federal Circuit Court to please shed some light in my case and provide justice to me. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered as I have been a genuine student while I was on Student visa and a genuine applicant seeking the approval of my subclass 500 student visa extension. If there is anything else required to support my claims and application, please do contact me.
44. The applicant’s affidavit provided as follows:
    • I WISH TO APPLY FOR A FEDERAL CIRCUIT COURT APPLICATION FOR A REVIEW OF AAT DECISION. THE AAT DECISIONMAKER HAS NOT MADE A FAIR DECISION
45. The applicant appeared without legal representation. Noting the remarks of the Federal Court in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [9] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong”.
46. To assist the applicant, the Court explained to him what this Court “can and cannot do”. The Court explained that its task is limited to assessing whether the Tribunal fell into jurisdictional error. Further, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
    1. where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 (“Craig”) at 198;
    2. where the decision-maker ignores relevant material: Craig at 198;
    100. where the decision-maker relies on irrelevant material: Craig at 198;
    4. where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at [207]- [208];
    5. where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
    6. where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].
47. It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he now 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.
48. Against this background, the applicant submitted that the “college” did not give him the opportunity to explain why he should continue to study, it simply cancelled his enrolment. They told him that he had to have a visa before he would be properly enrolled and he went to many other colleges who told him the same thing. This is why the “conditional offer” was provided instead of a confirmation of enrolment. The Court addressed this in the context of ground 1 below.
49. The applicant’s grounds of review are lengthy. The Court has done its best to address the issues raised in the grounds of review below.

Ground 1

50. The applicant states that:
    • At the time of application I had provided all the necessary documents to my agent, relating to the further extension of student visa application. The officer did not ask for any further clarification or documents in relation to my intentions of studying hospitality and management nor did the officer bother giving me a chance to explain about the gap in my studies from Jan to Oct 2015.
51. This passage appears to take issue with the delegate’s decision and the fact that applicant did not have a chance to explain to the delegate why there was a gap in the applicant’s studies between January 2015 and October 2015. The applicant goes on to explain why there was a gap in his studies and says that that he believes that he satisfied the criteria.
52. The Court does not have jurisdiction to review the delegate’s decision: s.476(2) and (4) of the Migration Act 1958 (Cth) (the “Act”). Hence, the applicant’s explanation as to why he met the requirements of cl.500.212 at the time of the delegate’s decision is irrelevant to these proceedings.
53. The applicant also states:
    • I wish to say that I was repeatedly misguided my friends and did not have any family in Australia who would give me proper guidance for either course selection and enrolments or the risk of breaching any conditions in student visa subclass 500.
54. In relation to the applicant’s statement that he was “misguided” by friends and did not have family who could give him guidance on certain matters, the Court does not consider this to amount to an allegation of fraud as per SZFDE v Minister for Immigration & Citizenship [2007] HCA 35. Further, the applicant was represented by a migration agent before the delegate and the Tribunal. The applicant ought to have relied on his migration agent (as opposed to his friends or family) for advice or guidance. No arguable error arises in this regard.
55. The final part of ground 1 states:
    • At the time of hearing, the Tribunal member did not listen or understand that the college has given me a conditional offer letter and I was unable to obtain a COE for any course in any college or university. I was not given a chance to speak further and provide any explanation or make request at the Tribunal. Even at the time of AAT hearing I wasn't provided the natural justice by the Tribunal member.
56. The Court considers this to be an assertion that the applicant was denied procedural fairness. The applicant also made submissions to this effect at the hearing when asked by the Court what he thought the Tribunal did wrong.
57. The Tribunal specifically referred to the applicant’s conditional offer and the applicant’s claim that he was unable to obtain a confirmation of enrolment without evidence of his visa (at [9]-[11] and [16]). The Tribunal rejected this explanation (at [17]) because, at the time of the hearing (which occurred over one year prior to the Tribunal making its decision), the applicant did, in fact, hold a confirmation of enrolment (notwithstanding he was in the midst of a review with the Tribunal and did not have a visa). Hence, it was clear that the applicant could receive an unconditional offer and his visa status did not prevent him from being “confirmed” as “enrolled in a course”.
58. Further, it was not relevant why the applicant was not enrolled. It was only relevant whether he was enrolled. Hence, the fact that he was not allowed an opportunity to explain “why” is of no consequence.
59. Insofar as the applicant is suggesting that the Tribunal prevented him from giving evidence, the Court notes that the hearing lasted for more than one hour (CB 115-118). The applicant was represented by a migration agent who was present at that hearing and the Tribunal’s reasons make specific reference to the evidence the applicant provided during that hearing (at [9] and [16]). The Court is satisfied that the applicant was given a chance to present his case.
60. The applicant had a meaningful opportunity to participate in the proceedings before the Tribunal and was provided procedural fairness in accordance with div.5 of pt.5 of the Act.
61. Finally, the Court notes that, to the extent the applicant may be claiming that the Tribunal was “biased”, there is no evidence to support this assertion. An allegation of bias must be distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507. In the circumstances of this case, there is nothing to suggest that the Tribunal demonstrated actual or apprehended bias during the course of the hearing.
62. Ground 1, accordingly, raises no arguable case.

Ground 2

63. The first part of ground 2 provides as follows:
    • I was of the view that the AAT would consider the situation and help me convert the conditional offer letter into COEs’ to study in Australia.
64. The applicant, unfortunately, has misunderstood the Tribunal’s role.
65. It is not the Tribunal’s role to assist the applicant to meet the visa criterion and obtain an enrolment: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (20074) [2004] HCA 32; 207 ALR 12 at [43]. It is for the applicant to satisfy the Tribunal that he meets the relevant criterion: Abebe v The Commonweath [1999] HCA 14; (1999) 197 CLR 510 at [187].
66. Put another way, it is not for the Tribunal to grant the applicant the visa so that the conditional letter of offer can be “converted” to a confirmation of enrolment. Rather, the Tribunal has to be satisfied that there is a confirmation of enrolment. Without that evidence, the Tribunal is required to refuse the visa.
67. There is no merit in this assertion.
68. The applicant further states in ground 2:
    • The Tribunal member showed more concerns over my enrolments in the past and present. The member did not ask me any further questions and did not even give me a chance to speak further and explain about my conditional enrolment application at a college in Perth.
69. For the reasons already given above in relation to ground 1, the Court is satisfied that the applicant had an opportunity to provide evidence and advance arguments at the Tribunal hearing. Relevantly, the Tribunal specifically referred to the applicant’s evidence about the conditional enrolment application.
70. The applicant continues:
    • I believe that I preferred to study further at a reputed college in Perth and therefore wanted the officer to grant me a chance to provide a COE. The Tribunal member at the AAT hearing did not provide procedural fairness in making a decision on my appeal application.
71. Again, for the reasons given in relation to ground 1 above, the Court is satisfied that the Tribunal complied with the obligations of procedural fairness.
72. To the extent that the applicant is saying that he wanted the Tribunal to give him a “chance” to provide a confirmation of enrolment, the Court notes that the Tribunal did so:
    1. when it invited the applicant to attend the hearing, the invitation expressly stated what was required (i.e., a copy of the current offer of enrolment);
    2. when the applicant was at the hearing and it asked him about his enrolment status; and
    100. in the letter issued pursuant to s.359A of the Act advising the applicant that it appeared he was not enrolled in a course and this would be a reason for refusing the visa.
73. The applicant had a number of “chances” to provide a confirmation of enrolment. There is nothing on the materials to suggest that the applicant, or his migration agent, requested an adjournment or an extension of time in which to provide any further information or obtain an enrolment. Rather, the applicant’s position was that he could not obtain such information. Hence, there was no reason for the Tribunal to consider exercising the discretion to adjourn.
74. Ground 2 raises no arguable case.

Ground 3

75. In ground 3, the applicant states that he has a strong view that he has been denied natural justice. Again, for the reasons provided in ground 1, the Court is satisfied the applicant was provided with procedural fairness.
76. The applicant continues:
    • I have a strong view that AAT should have considered the fact that I have always been a genuine student wishing to study in Australia to have a better future... I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was enroled in different courses in the past, I now have the focus and career pathway available in Hospitality. And hence, I genuinely believe that I still satisfy the subclause 500.212.
77. While the applicant may hold “a strong view” that the Tribunal should have considered, and found him to be, a genuine student, the Tribunal was not required to do so. The Tribunal was not required to consider whether the applicant was a genuine student as it was satisfied that the applicant did not a hold a confirmation of enrolment as was required by cl.500.211(a) of the Regulations. Having failed to satisfy that criterion, the Tribunal had to refuse the visa. It did not matter whether or not the applicant was a genuine student. He did not hold a confirmation of enrolment and the visa had to be refused.
78. Ground 3 does not raise an arguable case.

Otherwise

79. The Court notes that the applicant’s affidavit makes reference to the Tribunal’s decision not being “fair”. The Court refers to its consideration relating to the obligations of procedural fairness above.
80. In its duty to the self-represented litigant, the Court has remained astute and alert to the possibility of any jurisdictional error in the Tribunal’s decision that may raise an arguable case: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. The Minister noted that in the invitation to attend the hearing, the applicant was advised that he should provide:
    • 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.

(Ms Ellis’ Affidavit)

81. The Tribunal appears to have represented to the applicant in the invitation that an “offer of enrolment” could meet the requirements of the visa. This is incorrect. Clause 500.211 of the Regulations (as it applied at the time), read as follows:
    • One of the following applies:
      • (a) the applicant is enrolled in a course of study;
      • (b) if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
      • (c) if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;
      • (d) if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.
82. It is plain from the legislation that an offer of enrolment is not sufficient.
83. While the Tribunal’s invitation misstated what was required, the Court does not consider it misled the applicant such that he was denied procedural fairness. Here, even if it could be said that the invitation was “misleading”, this did not result in the denial of a proper opportunity to be heard and it cannot be said that “but for” the statement the outcome of the proceedings might have been different: Bains v Minister for Immigration & Citizenship [2012] FCA 649.
84. Here, the Tribunal’s letter issued under s.359A made clear that what was required was a confirmation of enrolment and that, if the applicant did not hold one, he would not meet cl.500.211 of the Regulations (CB 121). In the Court’s view, even though the invitation to attend the Tribunal hearing suggested otherwise, the applicant was placed on notice that he required more than a “letter of offer” by the subsequent invitation to comment. The applicant responded to that letter. It cannot be said there was a denial of procedural fairness.
85. The Court has otherwise reviewed the Tribunal’s decision and is satisfied that no arguable error otherwise arises
86. The applicant’s application for judicial review and the applicant’s affidavit does not identify any jurisdictional error. The Court has otherwise been unable to identify any error in the Tribunal’s decision.
87. The application, accordingly, is without merit.

Conclusion

88. While an acceptable explanation, minor delay and lack of prejudice weigh in favour of reinstatement of the application, the lack of merit in the substantive application is such that the application should not be reinstated.
89. The application for reinstatement is, accordingly, dismissed.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate:

Date: 29 May 2020