Jalla v Minister for Immigration and Citizenship [2025] FCA 1482

1. The appellant is a male citizen of India who arrived in Australia on 19 October 2014 as the holder of a student visa. That visa expired on 30 August 2016. On 22 September 2016, he lodged an application for the visa.
2. On 6 December 2016, a delegate of the Minister refused to grant the appellant the visa on the basis that the appellant did not satisfy the genuine temporary entrant criterion under cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth).
3. On 24 December 2016, the appellant applied to the Tribunal for review of the delegate's decision. On 22 February 2018, he attended a hearing before the Tribunal. At the hearing, the Tribunal raised the requirement for the appellant to provide a current Confirmation of Enrolment (COE). In response, the appellant sought an adjournment for two to three days to obtain funds and a current COE. The Tribunal granted him additional time until 5 March 2018 to obtain any further documents on which he sought to rely. That is, the Tribunal gave the appellant more than twice as much time as he had sought to obtain a current COE.
4. On 6 March 2018, immediately after the expiry of the additional time allowed by the Tribunal, the appellant sent an email to the Tribunal stating the following (errors in original):

Hello sir/madam,,

My name sasidhar reddy Jalla ,, My case number

[ 1622344 ] I attended to tribunal on Feb 22nd regarding my student visa .. but tribunal member gave me time till March 5th to get offer letter from universities .. I've applied universities Already,,I'm waiting for their response to send me offer letter ... I think it will takes more time but Tribunal member gave me time till March 5 th only ... but I need more time to submit offer letter, I've tried to call tribunlal number but unexpectedly I didn't... I called today and spoke with one of member they gave me this email .....I'm sure I will get,,please kindly accept my request .

Thank You...

1. It is therefore apparent that the appellant did not have any current enrolment for which he could have obtained a COE, being the reason he gave for seeking more time. Presumably he thought that if he was able to enrol, then he would be able to get a COE which reflected that. It is apparent that he was never enrolled at any time when the proceeding was before the Tribunal and there is no evidence before this Court that he has been enrolled since then.
2. On 9 May 2018, the Tribunal affirmed the delegate's decision. It is convenient to reproduce the primary judge's summary of the Tribunal's decision:

[8] The Tribunal summarised the background to the matter at [1]-[9] of its decision. It noted that the applicant had been unable to provide the Tribunal with an updated COE at the time of the hearing on 22 February 2018.

[9] The Tribunal stated that it had put to the applicant that it had written to him on 15 January 2018, requesting that he provide a COE. The Minister accepts that this was in error, as no such request had been made by the Tribunal. In any event, the Tribunal noted the applicant's response at hearing that he did "not have the money to pay the fees": [8].

[10] The Tribunal observed that the applicant had "sought an adjournment stating that he needed 2 or 3 days to obtain funds and obtain his [COE]". Additional time had been granted until 5 March 2018. On 6 March 2018, the applicant was stated to have written to the Tribunal "advising that he had applied to the university but he needed more time": [9].

[11] The Tribunal stated (at [12]-[14]):

1. The Tribunal confirmed with the applicant that he received a letter from the Tribunal advising him to come to a hearing and that letter requested that he provide a copy of his Confirmation of Enrolment or other documents to show he is currently enrolled in a course of study.

2. The applicant sought additional time to obtain a Confirmation of Enrolment. The Tribunal granted the applicant 2 weeks to provide a Confirmation of Enrolment. On 6 March 2018 the applicant sought additional time. To date, no Confirmation of Enrolment has been provided to the Tribunal. The Tribunal is of the view that the applicant has had sufficient time within which to obtain a Confirmation of Enrolment and he has not done so, so the Tribunal has decided to proceed to make its decision.

3. As the applicant has not provided a Confirmation of Enrolment the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

[12] On the basis of these findings, the Tribunal found that the criteria for the grant of the Visa were not met and affirmed the Delegate's decision (at [15]-[17]).

1. On 13 June 2018, the appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court.
2. On 5 July 2022, the appellant appeared at a hearing before the primary judge.
3. On 8 July 2022, the primary judge dismissed the judicial review application with costs.

1. The appellant advanced one ground of review before the primary judge:

I do not agree with the Tribunal decision as it is affected by error of law.

1. At the hearing, the appellant submitted that the Tribunal denied him procedural fairness by not putting its request for the appellant's current COE in writing. The primary judge explained why that submission could not be accepted as follows:

[16] At the hearing, the applicant submitted that the Tribunal denied him procedural fairness by not putting to him in writing its request that he obtain an updated COE. However, the Migration Act 1958 (Cth) (Act) contemplates only limited circumstances in which the Tribunal is required to give notice of an issue in writing. The procedural fairness obligations of the Tribunal are limited by the Act: s 357A. They did not include any obligation upon the Tribunal to request an updated COE from the applicant in writing. I find that the applicant was sufficiently on notice of this issue, for the purposes of s 360 of the Act, from the Tribunal requesting this evidence from him at hearing.

[17] I accept that the Tribunal's reasons erroneously refer to having requested in writing that an updated COE be provided prior to the hearing before the Tribunal. However, I agree with the Minister's submission that the materiality of this error is not apparent in circumstances where the Tribunal nonetheless:

(a) allowed the applicant nearly two weeks after the hearing in order to obtain a COE, despite the applicant only requesting two or three days; and

(b) did not decide the matter for more than two months after the applicant's further email requesting "more time" in order to obtain a response "from universities".

1. The appellant also submitted that the Tribunal ought to have responded to his email dated 6 March 2018 seeking "more time" to obtain a COE. While the primary judge acknowledged that it "would have been preferable" for the Tribunal to have responded to the appellant's email, so that he could know whether his request had been granted and how much additional time was available, her Honour ultimately accepted that:

[19] ... it was reasonably open to the Tribunal to proceed in the manner that it did. Whilst the Tribunal did not expressly grant the applicant's second request for additional time, it nonetheless allowed a substantial period after receiving the request before making its decision. This was in circumstances where the applicant had originally indicated that he would only need days in order to obtain a COE, had not specified the additional period sought and had not followed up with the Tribunal regarding his request for over two months.

[20] In these circumstances, I accept that it was reasonably open to the Tribunal to consider that it had afforded sufficient time to the applicant, more than two months after the last request for "more time" had been received. I find that this case falls within the area of "decisional freedom" referred to in Minister for Immigration and Citizenship v Li [2003] HCA 18; 249 CLR 332 at [28], [66] and Minister for Immigration and Border Protection v Pandey [2014] FCA 640; 143 ALD 640 at [51]- [55].

1. The primary judge also considered the appellant's submission at the hearing that he had been unable to obtain a COE because he did not have a visa. The primary judge found that even if this was accepted, the Tribunal had no power to waive the requirements of cl 500.211 of Sch 2 of the Migration Regulations and was obliged to affirm the delegate's decision to refuse the grant of the visa. As noted below, there was no challenge to that conclusion. Nor could there have been.

1. The grounds of appeal advanced by the appellant are (verbatim):
   1. I do not agree with the judgment of Judge Laing dated 8 July 2022 as I continue to believe that the Tribunal denied me procedural fairness.
   2. On 6 March 2018 I sent an email to the Tribunal which appears in page 1, point 6 of the reasons for judgment and I do believe that the Tribunal as well as the Judge of the Federal Circuit Court ignored my email or failed to respond to it.
   3. I continue to believe that the Tribunals decision as it is affected by an error of law and there is a denial of procedural fairness by not putting to me in writing that the Tribunal requested that I should obtain an updated Confirmation of Enrolment (CoE)
   4. I explained during my hearing why I was unable to obtain a CoE because I did not have a visa but I continue to say that the Tribunal failed to request CoE in writing which would have helped me to get it from Universities.
2. The above grounds of appeal may be characterised as follows:

(a) Ground 1 alleges a denial of procedural fairness by the Tribunal but contains no particulars.

(b) Ground 2 alleges that the Tribunal failed to consider or respond to the appellant's email dated 6 March 2018 and that the primary judge failed to consider this error.

(c) Ground 3 alleges a denial of procedural fairness by the Tribunal in not putting its request for an updated COE to him in writing. This mirrors the submission put before the primary judge to the same effect.

(d) Ground 4 alleges that the Tribunal acted unreasonably by not requesting a COE in writing, in circumstances where the appellant had explained that he could not obtain a COE without a visa and, he asserts, a written request from the Tribunal would have helped him to obtain a COE.

1. The Minister furnished written submissions in accordance with the procedural orders made by the Court.
2. The appellant has not furnished any written submissions, as directed. At the hearing of his appeal, he confirmed that he had received the Minister's written submissions and largely repeated the substance of what he had said to the primary judge, maintaining his ground of review before her Honour, and his grounds of appeal in this Court. Two additional features emerged following questions that I posed to the appellant:

(a) The first additional feature is that, when I pointed out that he had not furnished any evidence from any university about not being able to get a COE unless he had a visa, he accepted that was true but said that the universities had refused to provide anything in writing as to what they were telling him.

(b) The second additional feature was that I said, in substance, that I did not think that his oral submissions about what the universities had told him made any sense, because the barrier to obtaining a COE was being enrolled at a university, and the reason he had given for not being enrolled was that he did not have the funds necessary to pay the enrolment fees. His response was a little unclear, but he seemed to deny that he had attributed non-enrolment to not being able to pay the enrolment fee.

1. Ground 1 does not identify, much less establish any denial of procedural fairness by the Tribunal. Nor does it allege any error on the part of the primary judge. As such, this ground cannot succeed.
2. Ground 2 does not identify, much less establish that there was any error, let alone jurisdictional error, in the Tribunal not responding to the appellant's 6 March 2018 email. The primary judge's treatment of this and related issues addressed at [14] above was entirely appropriate and devoid of any discernible error. Ground 2 fails.
3. Ground 3 also fails to identify any error, let alone jurisdictional error, in the Tribunal not putting the request for the COE in writing. The primary judge's treatment of this and related issues addressed at [13] above was also entirely appropriate and also devoid of any discernible error. Ground 3 fails.
4. In relation to ground 4, regard should be had to what took place before the Tribunal. Before the Tribunal, the appellant stated in his written submissions that:

I wanted to study on Bridging visa after submission of AAT application, but my financial institution not agreed to issue funds due to indefinite visa status. At the same time, Immigration declined to give work rights after AAT application and I could not afford to Pay Master's Degree Fee. But My financial institute ready to pay if my student visa is granted.

1. At the Tribunal hearing, the appellant explained that he commenced an Advanced Diploma but "did not obtain the money from his parents to pay his fees". When asked about the Tribunal's request for a COE, he stated that he did not "have the money to pay the fees". Given these statements, there was no evidence to support the appellant's claim that his visa status was the determinative reason for his inability to obtain a COE, as opposed to a lack of funds to enable him to enrol, as he had expressly indicated. On the available evidence, the appellant could not get a COE, because there was no enrolment able to be the subject of such a certification.
2. In relation to the appellant's assertion that a written request from the Tribunal would have assisted him in obtaining a COE, putting to one side the absence of any identified legal or other basis for the Tribunal being required to furnish such a request in writing, there was no evidence that provision of such a request in writing was ever sought by him. It was not requested in his written submissions to the Tribunal, it was not apparently raised at the Tribunal hearing, and it was not mentioned in his subsequent email dated 6 March 2018 requesting a further adjournment. The appellant also did not adduce any evidence to support this assertion, for example, in the form of correspondence with universities. In the absence of such evidence, ground 4 cannot be sustained, especially in light of the existing evidence indicating that the difficulty in obtaining a COE was due to the appellant's lack of funds to enable him to enrol.
3. In any event, as the primary judge found, the Tribunal had no power to waive the requirements of cl 500.211 of Sch 2 to the Migration Regulations. In circumstances where the appellant could not satisfy those requirements, there was only one decision open to the Tribunal regardless of why the COE could not be obtained, namely, to affirm the decision under review.
4. Accordingly, I accept the Minister's submission that this ground does not disclose any error in the primary judge's decision. Ground 4 therefore fails as well.

1. As all of the grounds of appeal have failed, the appeal must be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.