Mohammed v Minister for Immigration and Citizenship [2025] FedCFamC2G 860

(a) The Response filed 23 July 2019;

(b) The Minister's Outline of Submissions filed 22 May 2025; and

(c) The List of Authorities filed 4 June 2025.

1. Both parties relied on the Court Book.
2. The Application contains three (3) grounds of review (Grounds of Review):
   1. The Tribunal did not give me enough time to acquire a COE (certificate of enrolment). (Ground 1).
   2. Personal problems were not taken into account. (Ground 2).
   3. The hearing was rushed and I did not get enough time to present my case properly (Ground 3).

1. The Applicant did not file written submissions.
2. The Applicant made oral submissions during the Hearing.
3. The Applicant stated that when the Tribunal Hearing commenced, he was asked by the Member whether he had a "current enrolment" or a CoE and he replied "no". The Applicant said that the next thing the Tribunal told him was that if he did not possess a current CoE, that the Tribunal could not give you a visa. The Applicant stated that he tried to get a CoE from different educational organisations but couldn't.
4. In relation to Ground 2 ("Personal Problems were not taken into account"), the Applicant submitted that at the time of the Tribunal Hearing, he was going through a separation from his former partner. The Applicant stated that he did not mention this information during the Tribunal Hearing as the question was not put to him.
5. In relation to Ground 3 ("The hearing was rushed and I didn't get enough time to present my case properly"), the Applicant submitted that the hearing time was less than 15 minutes and that there were a number of other applications before the Tribunal at the same time.

1. The Minister submits that the Tribunal did not err on any of the above grounds and that the Applicant fails to establish jurisdictional error.

1. The Minister submits that the Applicant was given multiple opportunities to provide evidence of enrolment in a course of study and did not do so.
2. On 15 April 2019, the Tribunal invited the Applicant in accordance with s 359(2) to provide evidence of his enrolment.
3. On 29 April 2019, the Applicant did not respond to this request and in his written response he indicated that his most recent enrolment was in August 2017, and this course was not completed.
4. On 15 May 2019, the Tribunal invited the Applicant to attend a hearing in accordance with s 360. The Applicant was invited to provide a copy of his current CoE or any other evidence of enrolment.
5. At the Tribunal Hearing, the Applicant was given the opportunity to provide evidence of his enrolment in a course.
6. The Minister submits that the Tribunal was not required to put the Applicant on notice of the dispositive issues in the review in advance of the hearing and the Applicant was provided ample opportunity to address the issue during the hearing.[20]
7. The Applicant was clearly on notice from the Tribunal's letters dated 15 April 2019 and 15 May 2019 that it was a requirement for the grant of the Visa that he be enrolled in a registered course of study.
8. For the reasons above, the Minister submits that this ground discloses no error.

1. The Minister submits that the Migration Act and Regulations do not afford a decision maker any discretion in respect of the primary consideration in cl 500.211 of the Migration Act. The Tribunal's Decision that the Applicant did not meet the threshold requirement was correct, and the Tribunal is bound by s 65 to refuse to grant a Visa. The Minister further submits that it was not open to the Tribunal to exercise any discretion in respect of the Applicant's 'personal problems'.
2. The Minister submits that this ground discloses no error.

1. The Minister notes that the Tribunal Hearing went for 15 minutes and when asked, the Applicant did not provide evidence and confirmed that he was last enrolled in August 2017.
2. The Minister submits that there is no evidence before the Court to suggest that the Applicant requested an adjournment or any further time to provide evidence to the Tribunal.
3. The Minister asserts that it was reasonable for the Tribunal to proceed to make a decision on 3 June 2019 in circumstances where the Applicant was put on notice both prior and during the hearing of the requirement that he be enrolled and provide evidence.
4. The Minister submits that this ground discloses no error.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[21]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The Court neither consider the merits of the decision nor remakes it.[22] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[23]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[24] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[25] Different kinds of error may overlap.[26] The categories are not closed.[27]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[28] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[29] It has been described as an "undemanding" standard.[30]

1. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
2. The criteria that the Applicant was required to satisfy for the grant of a Student visa (Subclass 500) are set out in cl 500.211 to 500.218 in Schedule 2 of the Regulations.
3. Clause 500.211 of Schedule 2 of the Regulations provides:
   1. the applicant is enrolled in a course of study;
   2. 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;
   3. if the applicant is a Foreign Affairs student-the applicant has the support of the Foreign Minister for the grant of the visa;
   4. if the applicant is a Defence student-the applicant has the support of the Defence Minister for the grant of the visa.

1. It is convenient to commence with consideration of Ground 3.

The hearing was rushed and I did not get enough time to present my case properly.

1. The Tribunal's "Migration Hearing Record" records that the hearing went for 15 minutes. The Applicant submitted that the hearing took less than 15 minutes.[31]
2. The requirement of procedural fairness is a fair hearing and not a fair outcome.[32] Hence, the enquiry is directed to the Tribunal's processes and not its decision.[33] The test is essentially practical; the law's concern being to avoid practical injustice.[34]
3. In determining the requirements of procedural fairness, it is of "critical importance" to consider the statutory framework within which the decision-maker exercises power.[35]
4. Section 360 of the Migration Act provided (at the date of the Tribunal's Decision):
   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:

1. the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or 2. the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

1. subsection 359C(1) or (2) applies to the applicant. 2. If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
2. The question that arises under Ground 3 is whether the Applicant was given an adequate opportunity "to give evidence and present arguments relating to the issues arising in relation to the decision under review".
3. The requirement of procedural fairness is not measured empirically. Whether the applicant here was given an adequate opportunity requires consideration of the conduct of the hearing in the context of the "the issues arising in relation to the decision under review".
4. The difficulty confronting the Applicant was that the requirement of cl 500.211(a) was a mandatory requirement for the grant of a Visa. In circumstances where the Tribunal was not satisfied that the Applicant was enrolled in a course of study, a matter confirmed by the Applicant (at [11] and again at the Hearing before me), there was no decision open to the Tribunal other than to confirm the Delegate's Decision. In these circumstances, the "issues arising in relation to the decision under review" did not extend beyond the question of enrolment. No other issues arose in relation to the decision under review.
5. I am not satisfied that jurisdictional error is made out by reference to Ground 3.

The Tribunal did not give me enough time to acquire a COE (certificate of enrolment).

1. The Minister's written submissions in relation to Ground 1 appear to be directed to a different, but related question, namely whether the Applicant was given an opportunity to address the question of enrolment. As the Minister points out, the Applicant had multiple opportunities to provide evidence of enrolment in a course of study.
2. However, the complaint in Ground 1 is that the Tribunal did not give the Applicant "enough time to acquire a CoE". When read with what is recorded in the Tribunal's Decision (at [11]), the implication from Ground 1 is that the Tribunal ought to have adjourned the hearing to allow the Applicant time to enrol in a course of study.
3. The question that is raised by Ground 1 is whether it was unreasonable for the Tribunal not to have adjourned the hearing in the following circumstances:

(a) On 9 September 2017, the Applicant applied for a student visa;

(b) On 15 January 2018, the Delegate refused the Applicant's Application;[36]

(c) On 2 February 2018, the Applicant applied to the Tribunal to review the Delegate's Decision;[37]

(d) On 15 April 2019, the Tribunal wrote to the Applicant advising relevantly:[38]

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 registered course of study; and

a genuine applicant for entry and stay as a student.

Accordingly, you are now invited to give, in writing, 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.

(e) On 15 May 2019, the Tribunal wrote to the Applicant advising relevantly:[39]

In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible: 1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.

(f) On 15 May 2019, the Tribunal invited the Applicant to attend a hearing on 3 June 2019;[40]

(g) At some point prior to the Tribunal Hearing, the Applicant ceased to be enrolled in a course of study;

(h) On 3 June 2019, the Applicant attended the Tribunal Hearing;

(i) At the Tribunal Hearing:

(i) There was no evidence that the Applicant was enrolled in a course of study (at [11]);

(ii) "In [the Applicant's] sworn evidence before the tribunal, [he] confirmed that [he was] last enrolled in August 2017 and that [he is] not currently enrolled in a course of study in Australia." (at [11]); and

(iii) There is no evidence that the Applicant sought an adjournment.

1. In Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, French CJ stated (at [76]):

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

(emphasis added) (footnotes omitted)

1. In my opinion, having regard to the circumstances that I have set out above, it was not unreasonable for the Tribunal to proceed in the manner that it did, and continue to hear the Applicant's Application for review on 3 June 2019. The approach taken by the Tribunal did not "lack an evident and intelligible justification".
2. I am not satisfied that jurisdictional error is made out by reference to Ground 1.

1. The "personal problems" referred to in Ground 3 were, according to the Applicant, depression, as a result of him going through a separation. He said that he did not mention this during the Tribunal Hearing because he was not asked the question.
2. The requirement in cl 500.211(a) that "the applicant is enrolled in a course of study" is a mandatory one. In circumstances where the cl 500.211(a) requirement was not satisfied, the Tribunal was bound by s 65 of the Migration Act to refuse the visa.
3. In the circumstances set out above, I do not consider that the Tribunal was in error by not taking into account the Applicant's depression when making its decision. Nor was the Tribunal in error by not seeking information from the Applicant concerning his personal circumstances. As I explain above, the Tribunal's approach, including not seeking information from the Applicant, was not unreasonable in all of the circumstances.
4. I am not satisfied that jurisdictional error is made out by reference to Ground 2.

1. As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[41] the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $5,400 being an amount less than the scale amount.[42] I am satisfied that costs ought to follow the event,[43] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[44]

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 5 June 2025, Order 3.

[20] AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494.

[21] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

[22] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) Allson CJ, Besanko and O'Callaghan JJ at [17].

[23] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].

[24] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

[25] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 (LPDT) at [3].

[26] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].

[29] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[30] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).

[32] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [25].

[34] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 per Gleeson CJ at [37].

[41] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [113].

[42] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.

[43] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[44] Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172.