Chen v Minister for Immigration and Citizenship [2025] FedCFamC2G 1498

1. On 21 November 2021, the applicant applied to the Tribunal for review of the delegate's decision (CB 58-64). In that review application, the applicant nominated a registered migration agent as his authorised representative (CB 62).
2. On 19 April 2022, the Tribunal invited the applicant, through his migration agent, to provide further information in a "Request for Student Visa Information" form by 3 May 2022 (CB 82-83). The Tribunal also provided the applicant with a copy of Ministerial Direction No. 69, 'Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications' (Direction 69) (CB 84-88). The applicant did not respond to this invitation.
3. On 2 June 2022, the Tribunal invited the applicant to comment on the fact that Provider Registration and International Student Management System (PRISMS) records indicated that he did not hold a current confirmation of enrolment for a course of study. The Tribunal gave the applicant until 16 June 2022 to respond to this invitation (CB 92-93).
4. On 14 June 2022, the applicant, via his migration agent, provided medical evidence to the Tribunal in support of why he was unable to enrol in a course of study (CB 94-98).
5. On 9 August 2022, the Tribunal affirmed the delegate's decision to refuse to grant the applicant the visa (CB 105-109).
6. On 12 September 2022, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).

1. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal began by identifying the visa under review, noting that the applicant applied for the visa on 29 September 2021. The Tribunal observed that, at the time of application, the visa contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, the Tribunal noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]).
3. The Tribunal explained that a delegate of the Minister had refused to grant the visa as the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily as a student (as required by cl 500.212(a) in Schedule 2 of the Regulations) (at [3]).
4. The Tribunal stated it was required to have regard to Direction 69 in considering whether the applicant satisfied cl 500.212(a) (at [5]).
5. However, the issue before the Tribunal was whether the applicant met the enrolment requirements in cl 500.211 (at [21]). The Tribunal set out the relevant legislative provisions in that regard (at [21]-[23]).
6. In considering the genuine temporary entrant criteria, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act as follows (at [4]):

As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

• enrolled in a course of study; and

• a genuine applicant for entry and stay as a student.

Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.

1. The Tribunal outlined that the s 359(2) letter also noted (emphasis in original) (at [6]):

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

1. The Tribunal noted the applicant was given until 3 May 2022 to provide the requested information but did not provide the information by this date, or at all (at [7]-[8]).
2. Because there was no information provided about whether the applicant was currently enrolled in a course of study, and therefore whether he satisfied cl 500.211, the Tribunal conducted a search of the applicant's PRISMS records to ascertain whether he was enrolled in a registered course (at [9]).
3. Whilst acknowledging it is possible that providers may not update PRISMS as required, the Tribunal accepted PRISMS is a reliable record of enrolments unless there is specific evidence to the contrary (at [11]). The Tribunal confirmed that a PRISMS search revealed the applicant did not hold a current confirmation of enrolment in a registered course as at 31 May 2022, being the date of the search (at [12]).
4. The Tribunal outlined that it wrote to the applicant on 2 June 2022 in accordance with s 359A of the Act to advise that a PRISMS search indicated he did not hold a current confirmation of enrolment in a course of study. The applicant was also put on notice that if the Tribunal were to rely on this information in making its decision, it may find that he is not currently enrolled in a course of study (and thus would not meet cl 500.211), and the consequence of relying on this information is that it would form the reason, or part of the reason, for the Tribunal to affirm the decision to refuse to grant the visa (at [13]).
5. The Tribunal gave the applicant until 16 June 2022 to comment on or respond to the s 359A invitation (at [14]). On 16 June 2022, the Tribunal received an email from the applicant's migration agent advising the following (at [15]):

I am writing to you in respondence of Mr Chen Hao's case. Mr Chen Hao has not been able to attend school due to bad medical condition. Mr Chen Hao has been suffering backpain caused by lumbar spine impairment for a long time, and he is currently actively coorperate with physiotherapy treatment. When his condition is getting recovered, he will be definitely going back to the school and maintain enrolment following student visa conditions.

Please find the attached medical certificates and appreciate your consideration.

1. Since that time, and as at the date of the Tribunal's decision, the applicant had not provided the Tribunal with evidence of current enrolment in a course of study (at [16]).
2. In considering the s 359(2) letter, the Tribunal confirmed that the applicant did not provide the information requested within the prescribed period. In those circumstances, the Tribunal was satisfied that s 359C of the Act applied, and pursuant to s 360(3), the applicant was not entitled to appear before the Tribunal. The Tribunal set out that the effect of s 363A is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear (at [19]).
3. The Tribunal confirmed that it raised with the applicant, in the s 359A letter, the requirement of enrolment for the grant of a student visa and referred to cl 500.211 (at [24]).
4. The Tribunal then confirmed that information obtained from the PRISMS record, which was clearly outlined and put to the applicant via the s 359A letter dated 2 June 2022, indicated that the applicant was not enrolled in a course of study and that no evidence had been provided to suggest the applicant was currently enrolled in a course of study (at [25]-[26]).
5. On the evidence, the Tribunal was not satisfied that, at the time of its decision, the applicant was enrolled in a course of study. Accordingly, the Tribunal was not satisfied that cl 500.211 was met (at [27]).
6. The Tribunal affirmed the delegate's decision not to grant the applicant the visa (at [17], [29]).

1. The application for judicial review filed by the applicant on 12 September 2022 contains two particularised grounds of review as follows (without alteration):
   1. The Administrative Appeals Tribunal ("the AAT" or "the Tribunal") misunderstood the Migration Act 1958 ("the Act") and denied my right to make oral submission in a hearing.

It is submitted that the Tribunal invited me in writing under s359 ("the s359 Letter") of the Act requested me to give information by 3 May 2022 and I did not provide the information by 3 May 2022.

Under s359C (1) of the ACT, the Tribunal MAY make a decision on the review without taking any further action to obtain the information.

However, the Tribunal DID move forward and take further action and issued an s359A letter seeking my comment. The Tribunal prescribed 16 June 2022.

I DID provide my comment on 16 June 2022 explaining why the information sought did not exist, which explains why I was not able to respond to the aforementioned s359 letter.

Then the Tribunal errored in its Decision Record dated 9 August 2022 by saying in Paragraph 19 that

"The Tribunal is of the view the applicant did not provide the information requested in the s358(2) Letter within the prescribed period." And therefore I am not entitled to a hearing.

At that time, the Tribunal already moved on from s359 and allowed me to make comment under s359A. The Tribunal did not fulfil its duty and allow me to the hearing to address my comment to the s359A Letter.

1. The Tribunal also errored in citing s363A that Tribunal does not have power to permit me to attend a hearing when I am not entitled to attend.

Under s359C (1), the Tribunal MAY make a decision on the review without taking any further action. The use of the word MAY means that the Tribunal, even if I failed to give the information before the time of giving it has passed, must still decide if any further action should be taken. However, the Tribunal swiftly avoided its duty of a hearing but to make a decision. It makes me hard to agree with the Tribunal's own words in its s359A letter that "we have not made up our mind about the information."

1. The applicant also filed an affidavit with that judicial review application on 12 September 2022, annexing copies of the delegate's decision and the Tribunal's decision.
2. The applicant appeared before the Court on 25 July 2025 without legal representation but with the assistance of a Mandarin interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister's written submissions.
3. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 12 September 2022 (the affidavit being taken as read and in evidence at the hearing on 25 July 2025), a Court Book numbering 110 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 13 September 2024.
4. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Kaur v Minister for Immigration and Citizenship [2025] FCA 931 at [10]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal's decision and/or procedure.
5. The Court also took some time to explain that it could not undertake a merits review of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

(a) 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 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 354-355);

(e) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(f) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.
2. Against this background, the applicant advised that he did not wish to make any submissions to the Court. The applicant also advised he did not wish to make any submissions in response to those made by the Minister at the hearing.

1. As outlined above, the application for judicial review contains two grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant's grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).
2. Grounds one and two allege that the Tribunal denied the applicant procedural fairness by finding the applicant was not entitled to a hearing. The applicant did not seek to expand upon his written grounds at the hearing.
3. The Tribunal's procedural fairness obligations are set out in Division 5 of Part 5 of the Act, which provides an exhaustive statement of the natural justice hearing rule (s 357A of the Act and Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [66]). One of the statutory obligations is contained within s 359 which empowers the Tribunal to obtain any information that it considers relevant. Another is contained in s 359A which requires that the Tribunal must 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 under review; ensure that the applicant understands why it is relevant, and the consequences of it being relied upon; and invite the applicant to comment on the information.
4. The Tribunal invited the applicant to provide written evidence on two separate occasions. On 19 April 2022, the applicant was invited, pursuant to s 359, to provide evidence that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. On 2 June 2022, pursuant to s 359A, the applicant was invited to comment on information that he did not hold a current confirmation of enrolment. Both of these invitations were sent to the applicant's representative by email to the nominated email address in his review application. Both invitations clearly set out the particulars of the information relied upon and the consequences of failing to provide information in response. The applicant did not respond to either invitation. Whilst the applicant's representative emailed evidence of the applicant's medical condition on 14 June 2022, this was not responsive to either invitation.
5. There are clear statutory consequences which follow from a failure to respond to an invitation under ss 359 or 359A. Those consequences were explained by the Full Court of the Federal Court in Hasran v Minister and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 at [27]- [29] (Hasran) as follows:

Here, the appellant's failure to respond to the Tribunal's letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.

This was because the appellant was invited by the Tribunal's letter under s 359A to comment or respond to the information stated in the Tribunal's letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the Tribunal.

The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing.

1. As such, the Tribunal was correct to find that the applicant was not entitled to appear at a hearing before it. The s 359 invitation was valid as it specified that the applicant could respond in writing, allowed the prescribed period of 14 days for the applicant to respond, and was given to the applicant's authorised representative by email at the nominated address.
2. The Tribunal then validly invited the applicant to provide information in accordance with s 359A of the Act as it gave clear particulars of information that would be the reason (or part of the reason) for affirming the decision for review, ensured the applicant understood why the information was relevant to the review, and invited the applicant to comment on or respond to it.
3. Despite the opportunities provided to the applicant, he failed to respond to the s 359 invitation within the prescribed timeframe, and only provided medical certificates detailing a medical condition as to why he was not currently enrolled in a course of study in response to the s 359A invitation.
4. In failing to provide information demonstrating enrolment in a course of study, the effect of s 359C of the Act is that, if an applicant is invited to give information under ss 359 or 359A but fails to do so, the Tribunal may make a decision on the review without taking any further action. The Tribunal was not obliged to invite the applicant to attend a hearing pursuant to s 360 as this obligation ceased due to the applicant's failure to respond to the s 359 invitation. The Tribunal was thus precluded from inviting the applicant to attend a hearing, such that it proceeded in the only manner it could have, by making a decision on the papers (see Hasran at [25]).
5. Whilst the Tribunal had no power to convene a hearing, it nevertheless could take further steps to obtain information and it was required to comply with procedural fairness obligations, which it did so in sending the applicant the s 359A invitation (Minister for Immigration and Multicultural and Indigenous Affairs v Sun [2005] FCAFC 201; (2005) 146 FCR 498 at [49]).
6. The Court finds that there was no error in the Tribunal's approach. Where the applicant failed to satisfy the enrolment criterion on the basis that there was no evidence of a current certificate of enrolment at the time of its decision, and where the applicant himself confirmed that he was not enrolled in a course of study, the Tribunal made the only decision open to it by affirming the delegate's decision (El-Tawil v Minister for Home Affairs [2019] FCA 1012).
7. The Court asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention. There were none.
8. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision. The Court is satisfied that, even adopting the broad approach referred to in [37] of these reasons, no jurisdictional error is apparent.

1. The application for review has failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application is dismissed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.