Rani v Minister for Home Affairs [2021] FCCA 1649 (23 July 2021)

Last Updated: 23 July 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

Rani v Minister for Home Affairs [2021] FCCA 1649

File number(s):	MLG 1968 of 2018
Judgment of:	JUDGE BLAKE
Date of judgment:	23 July 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) Subclass 572 visa –whether the Tribunal failed to provide the Applicant a meaningful hearing as required by s 360 of the Migration Act 1958 (Cth) – whether the Tribunal failed to comply with s 359AA of the Migration Act 1958 (Cth) – no jurisdictional error – Application dismissed.
Legislation:	Migration Regulations 1994 (Cth) sch 2 cl 572.223(1)(a) Migration Act 1958 (Cth) ss 359AA, 360 Federal Circuit Court Rules 2001 r 13.03(c)(1)
Cases cited:	Ibrahim v Minister for Immigration [2018] FCA 2087 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 Minister for Immigration v WZARH (2015) HCA 40 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 MZYFH v Minister for Immigration [2010] FCA 559; (2010) 188 FCR 151
Number of paragraphs:	53
Date of hearing:	25 May 2021
Place:	Melbourne
Counsel for the Applicants:	Mr McBeth
Solicitor for the Applicants:	Clothier Anderson Immigration Lawyers
Counsel for the Respondents:	Mr Yuile
Solicitor for the Respondents:	Clayton Utz

ORDERS

		MLG 1968 of 2018
BETWEEN:	RITU RANI First Applicant PARVEEN KUMAR MALHAN Second Applicant NOOR MALHAN Third Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	23 JULY 2021

THE COURT ORDERS THAT:

1. The Application filed on 9 July 2018 be dismissed.
2. The Applicants pay the First Respondent's costs of the proceeding fixed in the sum of $4,480.

REASONS FOR JUDGMENT

JUDGE BLAKE:

INTRODUCTION

1. The Applicants seek review of a decision of the Administrative Appeals Tribunal ('Tribunal'). The decision was delivered orally by the Tribunal on 4 June 2018 and a written statement of reasons was subsequently issued by the Tribunal dated 13 August 2018 ('Decision'). In the Decision, the Tribunal affirmed the decision of a delegate of the Minister ('Delegate') not to grant the First Applicant a Student (Temporary) (Class TU) Subclass 572 visa ('Visa').
2. For the reasons that follow, I have decided to dismiss the application for review.

BACKGROUND

3. The First Applicant is the primary applicant for the Visa. The Second Applicant and the Third Applicant are dependents of the First Applicant and are Secondary Applicants for the Visa. In these reasons, I refer to the First Applicant as the 'Applicant'.
4. The Applicant through her then representatives Asia Pacific Education Consultants Pty Ltd applied for the Visa on 29 April 2016.
5. On 28 October 2016, the Department wrote to the Applicant and informed her that her application for the Visa had been refused (Court Book 124). The Applicant was advised that she did not meet the requirements of the Migration Regulations 1994 (Cth) ('Regulations'). Specifically, the Applicant was advised that she did not meet the requirements set out in clause 572.223(1)(a) of Schedule 2 to the Regulations because the Delegate was not satisfied that the Applicant intended to genuinely stay in Australia temporarily having regard to her circumstances and immigration history (Court Book 134).
6. The Applicant sought a review of the Delegate's decision on or around 15 November 2016 (Court Book 143).
7. The Tribunal wrote to the Applicant on 8 May 2018. In that letter, the Tribunal invited the Applicant to a hearing before it on 4 June 2018. Further and significantly in the circumstances of the present matter, in the letter, the Applicant was asked to provide, among other things, 'a copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa' and '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' (Court Book 157).
8. On 31 May 2018, the Applicant sent an email to the Tribunal. The Applicant requested an adjournment of the hearing on the basis that her daughter was unwell (Court Book 171).
9. On Friday, 1 June 2018, the Tribunal sent an email to the Applicant that attached a letter. The Tribunal refused the adjournment application because the supporting evidence submitted by the Applicant did not cover the date of the hearing. The Tribunal did, however, offer the Applicant the opportunity to attend any hearing by telephone. The Applicant was also reminded of the need to provide a copy of her current Certificate of Enrolment, and documents that showed her currently enrolled in a course or having an offer of enrolment in a registered course (Court Book 176-177).
10. The Applicant subsequently telephoned the Tribunal and made a further request for an adjournment on the basis that her daughter was unwell. That request was also refused. Ultimately, the hearing proceeded on 4 June 2018 with the Applicant attending by telephone, and being assisted by an interpreter. The Tribunal proceeded to dismiss the application for review.
11. The Applicant filed her application for review in this Court on 9 July 2018. It is not presently necessary to recite all of the events that occurred in this Court, save to note that the Applicant filed with the leave of the Court an Amended Application for review dated 29 April 2021.
12. A Court Book was ultimately filed by the Minister. The Applicant filed written submissions on 3 May 2021 and relied on her affidavits of 9 July 2018, 7 January 2021, and 1 March 2021, and an affidavit from her solicitor of 21 December 2021. The Minister filed written submissions on 19 May 2021.

THE DECISION OF THE TRIBUNAL

13. The decision of the Tribunal is of relatively short compass and may be summarised as follows:

(a) At paragraphs [1]-[5] of the Decision, the Tribunal set out the background to the application for the Visa.
(b) At paragraph [6] of the Decision, the Tribunal recorded that the delegate had refused to grant the Visa because the delegate was not satisfied that the Applicant was a 'genuine student who intends genuinely to stay in Australia temporarily'.
(c) At paragraphs [7]-[8] of the Decision, the Tribunal noted that the hearing was conducted by telephone and with the assistance of an interpreter.
(d) At paragraph [9] of the Decision, the Tribunal noted the issue before the delegate. The Tribunal stated that the issue before it 'now is whether at the time of this decision you met the enrolment requirements for a student visa'.
(e) At paragraph [10], the Tribunal summarised the Regulations as requiring, inter alia, that the 'applicant must be enrolled in or be the subject of a current offer of enrolment in a course of study that is a principal course'.
(f) In paragraphs [11]-[13] of the Decision, the Tribunal recorded that the Applicant had been asked on 8 May 2018 to provide a copy of her Certificate of Enrolment and also that she had been asked to provide the Certificate of Enrolment during the hearing. The Tribunal recorded that she had not produced that document, noted her further evidence that she had last been enrolled in a course in late 2016 and her sworn evidence that she was not currently enrolled in, nor did she have any offer of 'enrolment in any course of study in Australia'.
(g) In paragraphs [14]-[15] of the Decision, the Tribunal records that there is no evidence before it that the Applicant is now enrolled or has an offer of enrolment in an applicable course of study, and that the current enrolment prerequisite for all student Visa subclasses is not met.
(h) At paragraph [16] of the Decision, the Tribunal concludes that the decision under review should be affirmed.

GROUNDS OF REVIEW

14. There are two grounds of review in the Amended Application.
15. The first ground of review is as follows:

The Tribunal failed to provide the applicant a meaningful hearing as required by s 360 of the Migration Act 1958 (Cth)(‘the Act’).
Particulars
(a) The Tribunal put adverse information to the applicant and asked her whether she required more time to respond.
(b) The applicant replied that she required more time to respond.
(c) The Tribunal then immediately refused to provide the applicant an opportunity to provide a meaningful response and proceeded to make a decision.
(d) The applicant requested an opportunity to have the interpreter explain the situation, but was not provided with a meaningful opportunity for that to occur.
(e) The applicant was not provided a meaningful opportunity to give evidence and present arguments as required by s 360 of the Act.

16. The second ground of review is as follows:

The Tribunal failed to comply with s 359AA of the Act.
Particulars
(a) The Tribunal failed to ensure that the applicant understood why the information put to the applicant for comment was relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review, as required by s 359AA(1)(b)(i) of the Act.
(b) The Tribunal failed to give the applicant a meaningful opportunity to comment on or respond to the information as required by s 359AA(1)(b)(ii), (iii) and (iv) of the Act.

17. Each of section 359AA and section 360 of the Migration Act 1958 (Cth) ('Act') set out obligations that the Tribunal is required to comply with.
18. Section 359AA(1) of the Act provides as follows:

(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so-the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

19. Section 360 of the Act provides as follows:

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

20. In Ibrahim v Minister for Immigration [2018] FCA 2087 at [75] , Wigney J stated as follows in respect of section 359AA of the Act:
    75. Seventh, it is readily apparent that the purpose of the disclosure required by s 359AA is to enable the applicant to “comment on or respond to the information”: s 359AA(1)(b)(ii), (iii) and (iv). It must follow that the particulars of the information that are provided must be sufficient to enable the applicant to “meaningfully” respond or comment: SZNKO at [23], [27].
21. In MZYFH v Minister for Immigration [2010] FCA 559; (2010) 188 FCR 151, Bromberg J commented on the policy and purpose of provisions such as section 359AA (although Bromberg J was commenting on section 424AA and 424A.). Bromberg J stated:
    34. As the Full Court said in SZMCD at [71]-[72], the same policy and purpose underpins s 424AA as that which underpins s 424A. Relevantly, the policy and purpose is that the Tribunal should be compelled to:

(a) put the visa applicant on fair notice of critical matters of concern to the Tribunal;
(b) ensure that the visa applicant understands the significance of those matters to the decision under review; and
(c) give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.

22. It may be seen from the above that section 359AA and section 360 of the Act contain important, mandatory obligations.
23. Under the grounds of review, the Applicant takes issue with the manner in which the Tribunal conducted the hearing and in particular, whether the Tribunal's conduct of the hearing contravenes each of section 359AA and section 360 of the Act. In order to assess these matters, it is necessary to have regard to the Transcript of the hearing before the Tribunal on 4 June 2018 (‘Transcript’). A copy of the Transcript of the hearing before the Tribunal was before the Court. It is relevant to note the following from the Transcript. First, after raising some preliminary matters with the Applicant, the Tribunal queried with the Applicant whether she was enrolled in a course of study. The full exchange is set out below:

MEMBER EDGOOSE: Mrs Rani, are you currently enrolled in a course of study?
MS RANI: No
MEMBER EDGOOSE: Do you understand this is - do you have a - so you're not enrolled in a course of study. As this is required by the mandatory criteria in clause 572.231.
MS RANI: Yes. I know that. Because when I applied my student visa, then I got that section C, which means I can't study, I applied it for my study life but it (indistinct) way. I do (indistinct) I'm not study, but I want to enrol.
MEMBER EDGOOSE: And when were you last enrolled in a course of study?
MS RANI: In 2016. About two years - - -

24. Second, subsequent to the exchange above, the Tribunal put to the Applicant, inter alia, that she is not currently enrolled in a course of study and invited the Applicant to respond. The full exchange in respect of this point, as well as the Applicant's request for time and the Tribunal's response are set out in the Transcript as follows:

MEMBER EDGOOSE: Now, I have some information before me today - - -
MS RANI: Okay.
MEMBER EDGOOSE: - - - that confirms that you're not currently enrolled in a course of study.
MS RANI: Yeah.
MEMBER EDGOOSE: Under 359AA, it's a section of an Act, 359AA, I put to you some information that I've taken from your PRISMS' record.
MS RANI: Thank you.
MEMBER EDGOOSE: And PRISMS is the provider of registered of international students management system. And it tracks - - -
MS RANI: Okay;.
MEMBER EDGOOSE: - - - information based on information reported by Australian education providers. And I have a copy - - -
MS RANI: Okay
MEMBER EDGOOSE: - - - of a PRISMS report, dated 17 November 2017.
MS RANI: Okay.
MEMBER EDGOOSE: And it shows - states that you're - you have been enrolled in 25 courses during the almost nine years you've been in Australia.
MS RANI: Yeah.
MEMBER EDGOOSE: PRISMS showed that many of these course you've enrolled in have the same course title or name, and hence are repetitive or overlap.
MS RANI: Yeah.
MEMBER EDGOOSE: PRISMS show 14 of the courses you enrolled are recorded as being cancelled. PRISMS shows - - -
MS RANI: (indistinct)
MEMBER EDGOOSE: - - - seven of the courses you enrolled have been cancelled. Now, you may have been enrolled package courses and as soon as one course - - -
MS RANI: Yeah.
MEMBER EDGOOSE: - - - of a lower level was cancelled, the ones not finished, the ones in the further courses, such as a Certificate IV or diploma, were also cancelled.
MS RANI: But - - -
MEMBER EDGOOSE: This information is relevant because it shows that you have not started or cancelled or not completed all your courses you have enrolled in since March 2017 or earlier, as indicated by you today. It indicates a lack of academic progress, that in the absence of other explanation is not consistent with you intending to live in Australia temporarily.
MS RANI: But I took only - I gave my valid (indistinct) and I work in (indistinct) as well. I provided them the certificate (indistinct) that certificate, everything (indistinct) and I explained to - everything to Colin.
MEMBER EDGOOSE: We have nothing before us today at the tribunal.
MS RANI: Oh.
MEMBER EDGOOSE: The tribunal relies on this information in making its decision, it may lead me to provide you - believe that you are not a genuine student, and that you do not meet clause 572.223. If the tribunal so finds, this information would be a reason, or part of the reason, for me to affirm the decision of the decision of the Department in your case, and refuse your application for a student visa.
MS RANI: Okay.
MEMBER EDGOOSE: Do you have any comment to make on - or respond to that information? I invite you to. You may seek additional time to comment on or respond to that information. If you do not - if you do want additional time, I'll consider your request and will grant you a reasonable amount of time to consider the information I have given to you and to consider your response to that information. Do you understand this? And do you require more time? Or do you wish to respond and comment now?
MS RANI: I need some time.
MEMBER EDGOOSE: Mrs Rani, considering today that you are not currently enrolled in a course of study, the tribunal is not going to go grant you more time.
MS RANI: Okay.
MEMBER EDGOOSE: You have not been enrolled in a course of study for approximately two years, as you mentioned earlier.
MS RANI: Yeah.
MEMBER EDGOOSE: Do you understand that not having CoE means that you don't meet a mandatory visa condition and the tribunal can affirm the decision?
MS RANI: Can I talk to the interpreter so she can explain (indistinct)
MEMBER EDGOOSE: Do you understand that not having a confirmation - - -
MS RANI: Yeah. Actually, I am (indistinct) may I talk to the interpreter so she can explain it better, so - - -
MEMBER EDGOOSE: Yes. I'm just going to say the question again so the interpreter knows the question.
MS RANI: Okay. Thank you.
MEMBER EDGOOSE: Do you understand that not having a confirmation of enrolment, a CoE, means that you do not meet a mandatory visa condition and the tribunal can affirm the decision?
MS RANI: Okay.
MEMBER EDGOOSE: Is there anything else - would you like to say anything about this issue?
MS RANI: No, I already explained, so - if I haven't studied (indistinct) so how can I study? I applied it, but it's refused.

25. Turning then to the circumstances of the present matter, there is little doubt that the Tribunal sought to engage section 359AA of the Act. So much is apparent from the Transcript at page 5, line 22 and what then follows. The first issue for consideration is whether the requirements of section 359AA(1) have been met.
26. The Applicant submits that there has been non-compliance by the Tribunal with the requirements contained within section 359AA(1) of the Act in the following ways. It is submitted that when regard is had to the Transcript (set out above), it becomes clear that the Applicant could not understand the particulars that were being put. Further, the Tribunal refused to grant the Applicant more time to respond when the Applicant asked for more time and as such, the particulars given to her were not 'clear'. Further, it is submitted the Transcript reveals that the Applicant did not understand the relevance of the adverse information to the review. Additionally, while an offer for the Applicant to have more time to respond was made, the offer of that time was illusory given the Tribunal immediately refused to grant the Applicant the additional time she requested.
27. Consideration of the Applicant's submissions above must begin with a review of the Transcript and the context in which the Tribunal considered the matter. As noted earlier, the Decision of the Tribunal was that the Applicant did not meet the requirements in the Regulations because she was not currently enrolled in a course of study, nor could she produce an offer of enrolment. The significance of the Applicant having evidence of enrolment or an offer of enrolment was first drawn to her attention in a letter from the Tribunal dated 8 May 2018. It was a matter that the Tribunal re-emphasised with the Applicant in writing on 31 May 2018 and on 1 June 2018 when the Applicant requested an adjournment. The Applicant was therefore clearly aware of the importance of these documents to her application for the Visa well in advance of her attendance at the hearing.
28. It is then necessary to turn to the hearing itself. Counsel for the Applicant sought to make much of the fact that there were language difficulties that confronted the Applicant. The Applicant, however had the benefit of an interpreter with her. Moreover, it is clear, that the Applicant understood English such that she did not need an interpreter for all of the hearing (the Transcript page 2, lines 26 - 35).
29. The Transcript then discloses that one of the first questions of substance asked by the Tribunal was whether the Applicant was currently enrolled in a course of study. I have set out the complete record (which occurs on page 3, line 26 of the Transcript) of this exchange above. The Applicant's answers were unequivocal. She stated she had not been enrolled in a course of study for about two years. Further, she unequivocally understood that enrolment in a course of study was a mandatory criteria that she needed to satisfy. Nothing in the Transcript discloses that the Applicant in any way misunderstood what was being asked of her or the significance of what was being discussed.
30. It was against this background that the Tribunal sought to put information to the Applicant that had been obtained from her Provider Registration and International Student Management System (‘PRISMS’) record. There are two aspects to the information obtained from the PRISMS record that were put to the Applicant. First, information was put to the Applicant that she was not currently enrolled in a course of study. Second, information was put to the Applicant concerning, among other things, the number of courses she had been enrolled in and whether or not those courses had been completed. In respect of these matters, it is important to note the following. First, the Applicant had already given evidence to the Tribunal that she was not enrolled in a course of study, and that she understood that the mandatory criteria in the Regulations required her to be enrolled in a course of study. Second, the Applicant was aware that the question of whether she was enrolled in a course of study (or had an offer to enrol), and the issue of whether she was a genuine student who genuinely intended to stay in Australia temporarily, were matters of importance to her application. She was aware of the former given the content of the letters from the Tribunal dated 8 May 2018, 31 May 2018 and 1 June 2018, and because she had freely acknowledged her lack of enrolment in a course earlier in the hearing. She was aware of the latter because it was the reason why the Delegate refused to grant the visa.
31. The Applicant points to the Transcript at page 3 lines 32 - 40, page 7 lines 32 - 42 and page 8 lines 10 - 14 and asks the Court to accept against the background outlined above that the Applicant did not understand what was occurring or what was put to her. I do not accept those submissions. I am satisfied that the Applicant clearly understood what was being put to her and its significance for her application before the Tribunal. I am satisfied that the Applicant was given 'clear particulars' of information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review, consistent with the obligation contained within section 359AA(1)(a) of the Act.
32. I am also satisfied that the Tribunal complied with the obligation contained in section 359AA(1)(b)(i) of the Act. I am satisfied about this for reasons which I have already set out in my finding in respect of section 359AA(1)(a) of the Act. Further, as the Transcript discloses, the Tribunal explained to the Applicant how the information was relevant and the consequences of the information being relied on. The Tribunal also took particular care to restate the question for the interpreter when the Applicant asked that this be done: see Transcript page 7, line 41 to page 8, line 8. This restatement of the question occurred in circumstances where the Applicant had indicated she understood English.
33. The Transcript also makes clear that the Tribunal invited the Applicant to comment on or respond to that information, advised the Applicant of her rights to seek additional time and considered her request for more time.
34. The Applicant sought to take issue with the Tribunal immediately refusing the Applicant's request for more time. The Applicant submitted that the offer made to her by the Tribunal of more time to respond was illusory and an empty offer given the Tribunal's immediate rejection of the request.
35. It is not difficult to think of situations or cases in which a tribunal or court immediately refusing a request for more time to respond to adverse information, without more, may be suggestive of a failure by that tribunal or court to consider reasonably whether additional time should be granted. Ultimately however, whether there has been such a failure will depend on all of the circumstances of the matter. In the present matter, the circumstances are such that I am unable to accept the submission of the Applicant that the Tribunal’s offer to the Applicant of more time, and its immediate refusal to grant more time, constituted a breach of section 359AA(1)(b)(iv). The circumstances that lead me to this conclusion are these. First and self-evidently, there is nothing in section 359AA(1)(b)(iv) that requires the Tribunal to grant an applicant more time or that stipulate that the Tribunal must not rule on the matter immediately. The Tribunal is to adjourn the review if the ‘Tribunal considers that the applicant reasonably needs additional time’.
36. In this matter, it was open to the Tribunal to consider that the Applicant did not reasonably need additional time and to rule on that matter immediately given the following circumstances. First, the Tribunal was armed with evidence directly from the Applicant that she was not enrolled in a course of study and did not have an offer of enrolment. She therefore could not meet the mandatory criteria in the Regulations. Second, the Tribunal knew that the Applicant had been clearly put on notice about the importance of this issue not just at the hearing, but prior to it. Despite having had the benefit of that notice, the Applicant had not done anything to address her situation and on her own evidence had been without enrolment for over two years. Given these matters, it was open to the Tribunal to refuse the request for additional time. Simply because the Tribunal declined the request for additional time immediately does not mean that the Tribunal did not consider the request.
37. For the above reasons, I find that the Tribunal complied with its obligations under section 359AA(1) of the Act.
38. I turn then to Ground 1. The Applicant contends that the Tribunal failed to provide the Applicant with a meaningful hearing as required by section 360 of the Act. A number of submissions were made by the Applicant under this ground. Among other things, it was submitted that the Tribunal refused to adjourn the hearing because the Applicant's daughter was sick, presented information to the Applicant in a way that was not clear, and failed to grant any more time to the Applicant to address information raised with her concerning her lack of a Certificate of Enrolment or offer of enrolment despite the Applicant indicating that she did not understand the issue.
39. As can be seen, many of the submissions advanced by the Applicant under this ground overlap with the submissions advanced under Ground 2. I have already made findings that the Tribunal presented information clearly to the Applicant, that the Applicant knew and understood what information was presented to her, that she gave clear and unequivocal evidence about the status of her enrolment and that she understood that the mandatory criteria under the Regulations required her to be enrolled in a course or to have an offer of enrolment. Further, I have found she was on notice about the significance of these matters prior to attending the hearing, and that the Tribunal considered her request for additional time prior to rejecting that request. I rely on my earlier findings in relation to the submissions advanced by the Applicant under this ground of review.
40. Insofar as it is contended that the Tribunal's decision not to grant the Applicant additional time constitutes a breach of section 360 of the Act, I reject that submission. I rely on the findings I have made above.
41. As to the Tribunal's decision to refuse the Applicant an adjournment because her daughter was sick, I did not understand the Applicant to assert that this matter was of itself sufficient to constitute non-compliance by the Tribunal with section 360 of the Act. Rather, I understood this issue to be raised as one of a number of matters relied on by the Applicant in support of the submission that section 360 of the Act was not complied with. Nevertheless, to the extent it needs to be stated, I am of the view that the Tribunal's refusal to grant the adjournment did not lead to the Applicant being denied a meaningful hearing. The decision made by the Tribunal was one that was open to it. The medical evidence submitted by the Applicant did not support an adjournment of the hearing. Further, the Applicant was accommodated by the Tribunal in that the hearing preceded by telephone, and the Applicant was assisted by an interpreter.
42. For these reasons, I am satisfied that the Tribunal complied with section 360 of the Act and that the Tribunal granted to the Applicant a meaningful hearing.
43. I have found above that the Tribunal complied with its obligations under section 359AA(1) and section 360 of the Act. Accordingly, in my view, the Tribunal has not fallen into error. That is, strictly speaking, sufficient to dispose of the matter. If, however, I am wrong in relation to my findings above, I would nevertheless have found any error not to be material.
44. The test as to whether a matter is material or not has recently been restated by a majority of the High Court of Australia in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 as follows:
    39. Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
45. Materiality is essential to the existence of jurisdictional error: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45].
46. In the present matter, as I have already noted, the mandatory criteria under the Regulations required that the Applicant 'be enrolled in, or is the subject of a current offer of enrolment, in a course of study that is a principal course'. As is evident from the Transcript which I have set out earlier, the Applicant on her own evidence was neither enrolled in a course of study nor the subject of an offer of enrolment. In those circumstances, the Tribunal could do nothing other than refuse to grant the visa.
47. The Applicant sought to address the issue of materiality in a number of ways. Pointing to the decision of the High Court of Australia in Minister for Immigration v WZARH (2015) HCA 40, the Applicant emphasised the statements at [58] that what 'must be shown by a person seeking to establish a denial of procedural fairness would depend upon the precise defect alleged to have occurred in the decision-making process'. The Applicant contended that she had lost the opportunity to show it was possible to say or do something to address the concerns, for example, she could have sought advice on her current visa status and obtained an offer of enrolment had the Tribunal granted her more time. In this respect, the Applicant submitted that the present matter resembles the circumstances that confronted the Applicant in Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 ('Li').
48. In my view, the Applicant's reliance on Li is misplaced. Li concerned unreasonableness. More significantly, however, it is clear from paragraph [38] of Li that that there was evidence of an ongoing and as yet incomplete attempt to obtain evidence about the required skills assessment in that matter. In this matter, no evidence was presented of any ongoing attempt by the Applicant to enrol in a course. The Applicant's counsel points to those parts of the Transcript which indicate that the Applicant expressed a desire to enrol (Transcript page 3, line 38). However, the Applicant did not say that she was enrolled in a course. She did not say that she tried to enrol in a course. She did not identify any particular problem that prevented her from enrolling in a course. There is nothing in the Court Book that I can see that indicates that the Applicant experienced any difficulty enrolling in a course.
49. When the circumstances of this case are considered, there was not any realistic possibility that a different decision could have been reached even if the Tribunal made an error. The Applicant had not been enrolled for a significant period of time prior to the hearing on her own evidence. This was despite the fact that she had been aware of the importance of having a certificate of enrolment or offer of enrolment from at least the time she first received correspondence from the Tribunal on 8 May 2018. It is, in my view, entirely speculative to suggest there was a realistic possibility of a different outcome in the circumstances of this case.
50. For all of the above reasons, the Application must be dismissed.
51. The Minister seeks costs in the amount of $7,467 in accordance with the scale. The Applicant contends this amount should be reduced by the amount of $4,672 because the Applicant successfully applied to have the Application reinstated at an earlier stage in the matter. In setting out their positions neither party took me to any authority or furnished detailed submissions.
52. The application to reinstate the proceedings arose because the application for review initially filed by the Applicant was dismissed under rule 13.03C(1) of the Federal Circuit Court 2001 (‘Rules’) when the Applicant failed to appear on the first court date. I found during the hearing to reinstate the matter that the Applicant had an adequate explanation for her non-attendance.
53. In these circumstances, some adjustment should be made to the costs sought by the Minister, but not to the extent sought by the Applicant. In my view, the costs sought by the Minister should be reduced by the amount set out in item 3 of Schedule 1, Part 1 of the Rules. That amount comes to $2,987. Accordingly, the Applicant should pay the Minister’s in the amount of $4,480.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated: 23 July 2021