Mady v Minister for Immigration and Citizenship [2026] FCA 270

1. After a delegate of the Minister refused the appellant's application for a Student (Class TU) (Subclass 500) visa, the appellant applied to the Administrative Appeals Tribunal to review that decision. The Tribunal affirmed the delegate's decision. The appellant then sought judicial review of the Tribunal's decision in the Federal Circuit and Family Court of Australia (Div 2). That application was dismissed, and the appellant now appeals to this Court.
2. The appellant appeared before both the primary judge and this Court without legal representation. He emphasised that he does not have any knowledge of the law, much less legal training. That fact should be borne in mind when considering the two grounds of appeal that he advanced before me, namely:

GROUND ONE:

The honourable court below erred to apply the correct test.

Particulars

In failing to have regard to the prognosis by the applicant's claim at paragraph 21. The Honourable court confined his reasoning and failed to regard information before it when making the decision under review.

GROUND TWO:

The AAT has failed to have regard to the full integers of the Applicant's claim.

Particulars

By misdirecting itself about the significance of the exercising natural justice rules to provide a fair trial before the court.

1. The appellant did not avail himself of the opportunity to file any written submissions in support of his appeal. He did, however, appear at the hearing and made oral submissions. Although a translator was present and available to assist him, on the whole the appellant was able to advance his case without the translator's assistance. I have, however, taken into account the fact that, although his English is very good, it is not his first language and, more than that, the subject matter of the hearing involved what would be difficult and technical concepts, even for a native speaker.
2. Fundamentally, the argument advanced by the appellant before me concerned what might be described as the fundamental justice of the decision reached by the Tribunal. I explained to the appellant that this Court, like the Court below, has no power to review the merits of the Tribunal's decision. Rather, the process of judicial review is concerned with the legality of the Tribunal's decision.
3. The errors of the primary judge for which the appellant contends, as best I can distil them from the notice of appeal, are as follows:

(a) The primary judge adopted an erroneous and excessively narrow conception of the role of the Federal Circuit and Family Court of Australia (Div 2) on an application for judicial review. As a consequence of that erroneous approach, the primary judge failed to have regard to relevant information about the appellant's case. That information was the explanation that the appellant gave to me (and to the primary judge below) about the circumstances that produced the Tribunal's decision. I will explain more about this in a moment.

(b) The primary judge ought to have found that the Tribunal failed to consider all integers of the appellant's case. In substance, I understood this to amount to much the same point as that raised under the first ground. That is to say, the appellant's fundamental complaint is that the Tribunal did not act upon the full explanation of the circumstances that the appellant explained to the primary judge (and to me).

(c) The appellant was denied procedural fairness before the Tribunal. (To the extent that the written ground of appeal could be construed as raising a contention that the appellant was denied procedural fairness by the primary judge, I did not understand the appellant in fact to make such a point.)

1. Because the appellant is unrepresented, I have not approached either the identification of error in the decision of the primary judge, or the identification of jurisdictional error in the decision of the Tribunal, solely through the lens of what might be divined from the appellant's notice of appeal and submissions. That is to say, I have, in addition, given careful consideration to whether relevant error may be identified in either decision, whether or not articulated by the appellant.

1. For reasons that are not revealed in the material before me, a period of over two years elapsed between the appellant filing his application for review with the Tribunal, and a decision being given. That fact explains why the Tribunal's decision had a different focus from that of the delegate.
2. The appellant applied for the student visa in question on 23 June 2017, on the basis of his enrolment in a diploma course at George Brown College (with an end date of 17 June 2018). The delegate refused to grant that visa on the basis that the appellant did not satisfy the genuine temporary entrant criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994.
3. Although the appellant applied to the Tribunal for review of the delegate's decision on 21 August 2017, that application remained undetermined on 22 July 2019. On that date, the Tribunal wrote to the appellant pursuant to s 359A of the Migration Act 1958 (Cth), inviting him to comment on certain information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. Relevantly that letter stated:

You made an application for a Student (Temporary) (Class TU) visa on 23 June 2017, Subclass 500 (Student) visa to undertake study in Australia.

• It is a requirement for the grant of that visa that, at the time of the decision, you are enrolled in a course of study (Clause 500.21, 500.211(a) of Schedule 2 to the Migration Regulations 1994).
• Information in the Provider Registration and International Student Management System (PRISMS) indicates your enrolment A6E99F23 on 7 March 2019 in the Advanced Diploma of Leadership and Management course at Greenwich English College Pty Limited, course start date 18 March 2019, was cancelled by Greenwich English College Pty Limited on 12 April 2019 for reason: non-commencement of studies.

This information is relevant because it indicates you are not, and since 12 April 2019 have not been, enrolled in a course of study, and therefore cannot meet clause 500.211.

1. In other words, because the Tribunal needed to be satisfied that the appellant was entitled to the visa for which he had applied at the time the Tribunal gave its decision, a new issue had arisen. Although the reason the delegate had decided to refuse the appellant's application was because he was not satisfied that the appellant genuinely intended to remain in Australia temporarily (the cl. 500.212 requirement), the Tribunal apprehended that the appellant may not even satisfy the requirement that he be enrolled in a course of study (the cl 500.211 requirement).
2. The appellant responded to the Tribunal's invitation by letter dated 5 August 2019, relevantly stating:

Thank you for your email of 22 July 2019, requesting further information. I previously provided enrolment details in a course which I did not comply with because my wife in Egypt was experience lots of problems, and I had the intention to visit her in Egypt and for this reason, I could not study and I was not sure about the outcome of my application with the Tribunal.

...

I'm pleased to inform you that I will start my studies on 26/08/2019, as my wife and new born son are fine and I submit the new CoE [confirmation of enrolment] from Alpha Institute and confirm that I am committed to continue my studies, and I am pleased to submit confirmation of enrolment and strongly hope that the Tribunal will approve my case, ASAP.

1. Accompanying that letter was a document entitled "Letter of Offer and Statement of Fees (International Students)" from the Alpha Institute, dated 2 August 2019. That letter included the following statement:

Please note: To confirm and secure place in the course/s, please sign and return the Acceptance of Offer and Written Agreement with the First Instalment payment by the due date as your deposit.

1. The "due date" was identified as being "immediately after Student Written Agreement is signed". The "Student Written Agreement" was included in the letter. The letter also said:

Please sign this agreement and return it together with your fees and the Confirmation of Enrolment (CoE/s) will be issued for you to apply for your Student Visa. Please note that the (CoE/s) will not be issued until this agreement is signed and upon receipt of your fees by the Alpha Institute.

1. The "Student Written Agreement" provided to the Tribunal was not signed by either the appellant, or on behalf of the Alpha Institute. The appellant did not provide the Tribunal with any evidence that he had paid the required fee. The appellant has something to say about this, and I will return to it in a moment.
2. But for now it is enough to observe that, in those circumstances, the Tribunal found that the appellant had not provided (as his letter had suggested) a "Confirmation of Enrolment", and said that it was not satisfied that the appellant was, in fact, enrolled in a course of study.
3. For that reason, the Tribunal found that the appellant did not satisfy the cl 500.211 requirement, and so affirmed the decision of the delegate not to grant the appellant a student visa.

1. The appellant advanced three grounds of judicial review before the primary judge (PJ [9]):
   1. The Tribunal acknowledged receiving a handwritten letter as well as evidence of enrolment and complained that the confirmation of enrolment had not been signed. Such comment is not logical and unreasonable as the intention is there and the Tribunal was sympathetic for not pursuing my previous enrolment but the true fact is I was enrolled and provided enrolment in a registered course of study but the Tribunal failed to act on it or request precisely to attend to any further requirement.
   2. The Tribunal's decision is a denial of natural justice and fairness and the reasons for refusal were made contrary to law.
   3. I ask this honourable Court find a remedy to the problem.
2. In relation to the first ground of review, the primary judge observed that cl 500.211 required the applicant to be "enrolled" in a course of study, and said (PJ at [24]):

In circumstances where [the appellant] did not have a Certificate of Enrolment that was current [the] Tribunal had no option other than to affirm the decision to refuse him a student visa. There was nothing unreasonable, illogical or irrational in the approach the Tribunal took.

1. The primary judge was satisfied that the need to prove that he was currently enrolled had been drawn to the appellant's attention, and that no error attended the Tribunal's finding of fact that the appellant was not in fact enrolled (PJ [23]-[24]).
2. In relation to the second ground of review, the primary judge observed that the appellant had not identified any particular respect in which he contended that he had been denied procedural fairness, and held that a "review of the actions taken by the Tribunal indicates that it complied with all the procedural fairness requirements set out in part 5 of the Act" (PJ [25].
3. Insofar as the third ground of review is concerned, the primary judge said (PJ [26]):

Ground three is not a proper ground of judicial review. It is not for the Court to find a solution to the problem posed by the applicant. The role of the Court is restricted to reviewing the lawfulness of the decision of the Tribunal; that is its only function. Ground three has no merit.

1. Overall, I do not consider that the primary judge erred in failing to find jurisdictional error on the part of the Tribunal.

1. The appellant's complaint that the primary judge approached the task of judicial review in an erroneous and confined way cannot be accepted. In his notice of appeal, the appellant framed his complaint by reference to the primary judge's quotation, at PJ [21], of the following passage from Djokovic v The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]:

... An application for judicial review is one in which the judicial branch of government reviews by reference to legality or unlawfulness the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision, nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. Self-evidently, no criticism can be made of the primary judge for identifying the nature of the role of the Court on judicial review in those terms. Nor can I perceive any respect in which the primary judge can be said to have acted inconsistently with that statement.
2. I understand the appellant's complaint to be as follows.
3. He had engaged an agent to assist him in enrolling in a course of study and obtaining a visa. When the Tribunal sent the request for information concerning the appellant's enrolment status, the appellant involved that agent in obtaining the information necessary for him to respond to the Tribunal's invitation. One day before the deadline to respond to the Tribunal's decision, the agent provided the appellant with the letter to which I have referred above. Because of the tight deadline, the appellant sent the letter straight on to the Tribunal. That rush explains why he did not sign it. But, he says, he had already paid the required deposit for the course to the agent. So, from his perspective, the only thing required to formalise his enrolment was for him to sign the letter. That, self-evidently, he could easily have done.
4. Thus, while I understood the appellant to accept that he was not enrolled in a course of study in a strict sense (in that no signed agreement had been provided to the college), he said that there could have been no doubt that he genuinely wished to undertake the course of study in respect of which he had an offer of enrolment, and that he could easily have attended to the "formal" requirement of signing it. In that sense, as I understood the argument, all that stood between the appellant and enrolment was a formal and easily completed step, and in those circumstances he should either have been treated as, in substance, satisfying the requirements for issuance of the visa or, at the very least, the Tribunal should have prompted him to take that remaining step before making its decision. Alternatively, it may be that the appellant was submitting that he was in fact enrolled, and that it was only a question of providing proof of that fact that remained.
5. (I interpolate that that explanation was not provided to the Tribunal. The Tribunal had before it only the appellant's response to its request for information about his current enrolment status. Those matters were conveyed to the primary judge, and to me, as an explanation for why additional material that might have produced a different outcome before the Tribunal was not provided to it.)
6. The primary judge's failure to accept that argument does not demonstrate any failure to appreciate, and to exercise, fully and appropriately the Court's function in reviewing the Tribunal's decision for jurisdictional error. There was not demonstrated to be any error in the approach by which the Tribunal made the factual findings upon which it based its decision. And having made those factual findings, the Tribunal's conclusion was the only one open to it.
7. The requirements of cl 500.211 could only be met by proving the fact of "enrolment" at the point in time of a decision on the appellant's application for his visa. To hold that the appellant was entitled to a visa on the basis that it was likely that he would become enrolled at some later point in time would have involved error. (Alternatively, to the extent that it was submitted that the true position was that the appellant was enrolled, the Tribunal's finding that he was not was plainly open to it on the evidence before it.) Furthermore, the primary judge correctly found that the Tribunal had no duty, in the circumstances, to grant an adjournment to enable the appellant to take further steps to improve his prospects of obtaining a result in his favour (PJ [22]).
8. It follows that the first ground of appeal must be dismissed.

1. I do not accept the appellant's submission that the primary judge erred in failing to find that the Tribunal did not have regard to all of the integers of his claim. In substance, I think this contention overlapped with the argument that I have considered and dismissed in relation to the first ground of appeal. That is, the Tribunal did not err in failing to take into account an explanation that was not offered to it, nor the prospect that the appellant would become enrolled in the future. The Tribunal properly had regard, on the evidence before it, to all relevant matters bearing upon the appellant's enrolment status at the time of decision.
2. To the extent that the second ground of appeal raised a contention that the appellant had been denied procedural fairness, either before the Tribunal or before the Court below, it is of no substance.
3. For the reasons given by the primary judge, the appellant was placed fully and fairly on notice of the existence and significance of the issue upon which his application ultimately failed. Furthermore, he was given ample opportunity to adduce such evidence as he was able in relation to it, and ample opportunity to advance any submission he wished to make (both in writing and at an in person hearing).
4. I have already said that I did not understand the appellant to contend that the primary judge denied him procedural fairness. But even if that understanding were not correct, however, such a contention must fail. The primary judge evidently took care to ensure that the appellant was amply informed of the nature of the jurisdiction that the appellant had invoked and the matters that he needed to address, and afforded him every reasonable opportunity to advance his case (see, e.g., PJ [10]-[14], [27]).

1. It follows that none of the arguments advanced by the appellant have persuaded me that the primary judge erred in any way in dismissing his application for judicial review. Nor has the appellant persuaded me that the Tribunal made any jurisdictional error in dealing with his application. Furthermore, I have independently considered whether the Tribunal's decision involved jurisdictional error, and I am satisfied that it did not.
2. It follows that the appeal must be dismissed with costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Owens.