FEDERAL CIRCUIT COURT OF AUSTRALIA
MEHMOOD & ANOR v MINISTER FOR IMMIGRATION & ANOR	[2014] FCCA 1005	

Catchwords: 
MIGRATION – Judicial review – Migration Review Tribunal – temporary student visa – husband and wife – applicable course of study – whether student enrolled – whether student has current offer of enrolment – whether jurisdictional error.	

Legislation:
Migration Act 1958 (Cth), ss.116, 348, 349, 414, 415, 474, 476
Migration Legislation Amendment Regulation 2013 (No. 1) (Cth), Sch.3, cl.2
Migration Regulations 1994 (Cth), reg.2.43(2)(b)(ii)	

Ahamed v Minister for Immigration & Anor [2010] FMCA 566
Cheng v Minister for Immigration & Citizenship [2011] FMCA 461 
Diamant & Ors v Minister for Immigration & Anor [2014] FCCA 21
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
SAAZ v Minister for Immigration & Multicultural Affairs [2002] FCA 791
Singh & Anor v Minister for Immigration & Anor (2011) 190 FCR 552; [2011] FCAFC 27
Singh v Minister for Immigration & Anor [2012] FMCA 707	

First Applicant:	Azhar Mehmood	

Second Applicant:	ALIYA MUBASHIR	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Migration Review Tribunal	

File Number:	PEG 362 of 2013	

Judgment of:	Judge Antoni Lucev	

Hearing date:	29 April 2014	

Date of Last Submission:	29 April 2014	

Delivered at:	Perth	

Delivered on:	28 May 2014	

REPRESENTATION
For the First and Second Applicants:	The First Applicant in person	

Counsel for the First Respondent:	Mr B Dube	

Solicitors for the First Respondent:	Sparke Helmore	

For the Second Respondent:	Submitting appearance, save as to costs	

Solicitors for the Second Respondent:	Sparke Helmore	

ORDERS
(1)	That the application be dismissed.

FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Perth	
PEG 362 of 2013
Azhar Mehmood	
First Applicant

ALIYA MUBASHIR	
Second Applicant

And

Minister for Immigration & Border Protection	
First Respondent
Migration Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
Introduction
1.	The applicants are husband and wife, and make an application to this Court under s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the second respondent, the Migration Review Tribunal, made on 8 November 2013. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration & Border Protection dated 24 November 2011 to refuse to grant a Student (Temporary) (Class TU) visa to the Applicants.
Factual and procedural background
2.	The First Applicant is citizen of Pakistan.
3.	On 9 September 2011 the First Applicant lodged an application for a Student Visa, in which the Second Applicant was included as a member of his family unit.
4.	The Delegate’s Decision on 24 November 2011 refused to grant the First Applicant a Student Visa. The First Applicant filed an application for review of the Delegate’s Decision with the Tribunal on 9 December 2011.
5.	On 7 August 2013 the Tribunal invited the First Applicant to appear at a hearing on 20 September 2013, and to provide, amongst other things, a certificate of enrolment showing that he was currently enrolled in an acceptable course of study.
6.	The Applicants attended the hearing on 20 September 2013 and gave evidence.
7.	The Tribunal Decision is relatively short, and its consideration of the claims and evidence can be reproduced in full:
	CONSIDERATION OF CLAIMS AND EVIDENCE
	16.	The issue before the delegate was whether the applicant met the criterion in cl.572.22. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.
	17.	With limited exceptions not relevant to this case, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an 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, and is of a type specified under r.1.40A for the subclass at the time of application.
	18.	Included in the Tribunal’s letter inviting the applicant to a hearing, he was invited to provide the following:
	A certificate of enrolment as required by cl.572.222, or evidence that you are currently enrolled in, or are the subject of a current offer of enrolment in a registered court as set out in cl.572.231.
	19.	The applicant has given evidence that he is not presently enrolled in any course and the last time he was enrolled in a registered course was in November 2011. He also told the Tribunal that the last time he was studying was in September or October 2011. When asked why he is not presently enrolled, he said that he was waiting on this review. He was asked if he had obtained any advice as to whether he could continue to study. He said that the Department told him he should wait for the Tribunal to review the decision to refuse his visa application. When asked if he obtained any advice other than from the Department, the applicant indicated he had not.
	20.	The Tribunal also noted the delegate’s decision statement which was provided by the applicant. In that statement the delegate notes that the applicant provided Certificates of Enrolment (CoEs) for a Certificate IV in Small Business Management commencing from 3 July 2011 and a Diploma of Business with his application for a new student visa on 9 September 2011. The delegate also noted that these were cancelled in October 2011 by the provider for non-payment of fees. The applicant provided another CoE for a Diploma of Hospitality commencing from 1 November 2011.
	21.	There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 517.232, 572.231, 573.231, 574.231 and 575.231 are not met.
	22.	Furthermore, there is no evidence that the applicant meets the criteria for a either Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Class TU visa. The applicant is neither supported by the AusAID or Defence Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.
	23.	For these reasons, the decisions under review must be affirmed.
	DECISION
	24.	The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Application for judicial review
8.	The Applicants filed an application for judicial review in this Court on 5 December 2013. On 22 January 2014 a Registrar of this Court made orders which permitted the Applicants to file and serve an amended application, and any affidavit containing further evidence and written legal submissions and a list of authorities by certain dates. The Applicants did not file any amended application, any affidavit or affidavits, legal submissions or list of authorities in accordance with the 22 January 2014 orders, or at all.
9.	The grounds of the application for judicial review are as follows:
	The Second Respondent committed jurisdictional errors in that it:
	1.	Adopted and affirmed a decision of a delegate of the Minister for Immigration which was itself affected by jurisdictional error and accordingly of no effect in law; and
	2.	took into account irrelevant considerations.
	Particulars of Jurisdictional Error of the delegate of the Minister for Immigration and Citizenship
	The delegate of the first respondent in his decision on 8 November 2013
	(a)	the Tribunal erred in wrongly concluding that at the time primary visa applicant held his last substantive visa he was not enrolled in a registered course in the period 3 July 2011 to 1 November 2011;
	(b)	failed to properly address the statutory question posed by regulation r.2.43(2)(b)(ii) that included “(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control”;
	(c)	failed to undertake any proper, genuine or realistic inquiry to:
	(i)	the ‘all of the facts of the case in total’ to ascertain whether the primary visa applicant satisfied the requirements of clause 572.231 of Schedule 2 to the Migration Regulations 1994 including due consideration of the enrolment and or an offer of enrolment at the time of application; and
	(ii)	failed to apply the relevant statutory criteria objectively to the applicant’s situation and circumstances.
10.	At the hearing of the application for judicial review the First Applicant appeared for the Applicants and made submissions in relation to the application for judicial review. Those submissions were limited to propositions that the First Applicant:
a)	was enrolled in an applicable course in the period from July to November 2011 but due to a system error his enrolment was cancelled; and
b)	did not re-enrol in any course because when he went to the Department of Immigration: 
i)	he was not told he could continue to study;
ii)	he was told to wait for the Tribunal Decision;
iii)	no one guided him as to what would occur; and
iv)	he did not realise that a Tribunal hearing would take so long to be scheduled.
The Court notes that the application for review of the Delegate’s Decision was made on 9 December 2011 and not heard until 20 September 2013, with the Tribunal Decision then being delivered on 8 November 2013.
Consideration of the grounds of the application for judicial review
Adopting and affirming the Delegate’s Decision – ground 1
11.	Ground 1 is misconceived. Firstly, the Tribunal did not “adopt” the Delegate’s Decision. Secondly, and in any event, the task of the Tribunal was to hear the Student Visa application afresh, and unrestrained by the matters before the Delegate The Tribunal was empowered to arrive at its own decision, which included its decision to affirm the Delegate’s Decision. The Tribunal’s function on its review of the Delegate’s Decision was, under ss.348 and 349 of the Migration Act, to determine the correct or preferable decision on the material put before the Tribunal. By reference to the analogous provisions applicable to the Refugee Review Tribunal, namely ss.414 and 415 of the Migration Act, the Federal Court in SAAZ v Minister for Immigration & Multicultural Affairs observed as follows:
	19. The meaning of “review” in s 414(1) of the Act must be seen in the context of the Act as a whole.  See per Toohey J in Australian Telecommunications Commission v Colpitts (1986) 67 ALR 301 at 309.  In my judgment, that context indicates that the review which the Tribunal is directed to undertake is one involving it standing in the shoes of the delegate of the respondent and considering afresh the application for a protection visa.  An analysis of the relevant provisions clearly shows that intention.
	20. Section 415 contains the powers of the Tribunal upon review.  It is expressly empowered to exercise all the powers and discretions conferred on the primary decision-maker.  It may affirm, vary or set aside the decision.  Section 418 ensures that, once an application for review is made to the Tribunal, the Tribunal receives from the Secretary of the Department all relevant documents considered by the primary decision-maker.  But the Tribunal is not directed to conduct its review restricted to the material before the primary decision-maker.  Divisions 4 and 5 of Pt 7 of the Act contain very detailed provisions as to procedures which it must follow.  The applicant for review, and the Secretary, may give the Tribunal written arguments.  The applicant for review may submit to the Tribunal a statutory declaration in relation to “any matter of fact that the applicant wishes the Tribunal to consider”.  The Tribunal is empowered to seek “any information that it considers relevant”, and then to “have regard to that information in making the decision on the review”:  s 424.  It must give to the applicant particulars of any information that would be a reason for affirming the decision under review and to invite comments upon that information, provided that the information is specifically about the applicant or another person:  s 424A.  Generally, the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review:  s 425.  The applicant is entitled to request the Tribunal to give consideration to obtaining oral evidence from other persons:  s 426.  To ensure those powers may be adequately exercised by the Tribunal, it is empowered to take evidence on oath, to summons persons to give evidence or to produce documents, and to procure any investigations or medical examinations that it considers necessary with respect to a review:  s 427.  Section 430(1) provides:
	“(1)	Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)	sets out the decision of the Tribunal on the review; and
(b)	sets out the reasons for the decision; and
(c)	sets out the findings on any material questions of fact; and
(d)	refers to the evidence or any other material on which the findings of fact were based.”

	As can be seen, it contemplates that the “Tribunal’s review” would involve the Tribunal making findings on material questions of fact and referring to the evidence or other material upon which those findings of fact were based.  Finally, I note s 65(1) which directs the Tribunal, if it is the relevant decision-maker, to grant the visa if it is satisfied the criteria for the grant of a visa are met, and to refuse the visa if it is not so satisfied.
	21 In my judgment, that constellation of provisions indicates that the Tribunal’s function by its review was to determine the correct or preferable decision on the material before the Tribunal in relation to the application for a protection visa 
12.	SAAZ has been relied upon by this Court’s predecessor, the Federal Magistrates Court, for the proposition that the Tribunal is required to determine matters anew or afresh on the material put before the Tribunal. The Court’s task under s.476(2) of the Migration Act is to judicially review the Tribunal Decision for error. The Court therefore has no jurisdiction to review the Delegate’s Decision, about which the Applicants now appear to complain.
13.	The question therefore arises whether the Tribunal reviewed afresh the Delegate’s Decision in this matter. In the Court’s view, the Tribunal did so. The Tribunal identified the issue to be determined, which was a different issue to that determined by the Delegate, and invited the Applicants to make submissions with respect to that issue. The Tribunal went on to consider the evidence of the First Applicant that he was not presently enrolled in any course, and that his last enrolment in a registered course was in November 2011. Having considered the First Applicant’s evidence, the Tribunal arrived at the inevitable conclusion that there was no evidence before the Tribunal that the First Applicant was now enrolled in, or had a current offer of enrolment in, any applicable course of study, and that for those reasons the Delegate’s Decision must be affirmed. The Tribunal Decision to affirm the Delegate’s Decision is a decision expressly within the power conferred upon the Tribunal by s.349(2)(a) of the Migration Act.
14.	In the above circumstances this ground of the application for judicial review discloses no jurisdictional error by the Tribunal.
Irrelevant considerations – ground 2
15.	The taking into account of an irrelevant consideration by an administrative decision-maker may be a jurisdictional error if it affects the exercise or purported exercise of a power by an administrative decision-maker thereby resulting in a decision exceeding or failing to exercise the authority and powers given under the relevant statute. In this case none of the relevant considerations are particularised in the grounds of application for judicial review, and none were particularised in oral submissions at hearing. That lack of particularisation is sufficient to dismiss this ground.
16.	Whether or not there was jurisdictional error in the Delegate’s Decision, as is asserted by the Applicants, is irrelevant, for reasons set out above, to the task of the Court which only has jurisdiction to determine whether or not there was jurisdictional error in the Tribunal Decision. In any event, the particulars provided of alleged jurisdictional error by the Delegate in the Delegate’s Decision would not have helped the applicant in this case because:
a)	particular (a) is irrelevant to the question now to be decided by the Tribunal which relates to whether or not the applicant was enrolled, or had a confirmation of enrolment, in an applicable course of study at the time of the Tribunal Decision, that is, as at 8 November 2013. Thus the First Applicant’s enrolment situation in the period 3 July 2011 to 1 November 2011 is irrelevant for the Tribunal’s purposes;
b)	particular (b) is also irrelevant because reg.2.43(2)(b)(ii) of the Migration Regulations 1994 (Cth) applied to decisions in relation to the cancellation of visas by the Minister under s.116(1) of the Migration Act, and not an application for a visa as is the case here. The issue of “exceptional circumstances beyond the visa holder’s control” does not therefore arise in this case; and
c)	in relation to particular (c) whether or not the Delegate undertook a proper, genuine or realistic inquiry does not assist the Applicants, even if the Delegate failed to do so, because the review by the Tribunal considers the Student Visa application afresh. Thus whether the Delegate has failed in relation to any matter is irrelevant because the Tribunal undertakes the task of considering whether the relevant criteria for the Student Visa have been met, and it is only that assessment by the Tribunal which is susceptible to judicial review by this Court.
17.	For the above reasons there is nothing in ground 2 which establishes jurisdictional error on the part of the Tribunal.
Matters raised at hearing
18.	As to the two matters raised at the hearing of the application for judicial review before the Court, both fail to give rise to any jurisdictional error.
19.	In relation to the first matter, that is that the First Applicant’s course enrolment was cancelled in 2011, that was irrelevant to the question to be decided by the Tribunal which was whether or not the First Applicant was enrolled or had a current offer of enrolment in an applicable course of study as at the time of the Tribunal Decision.
20.	As to the second matter, there is a lack of particularity as to the alleged advice re non-enrolment pending the Tribunal Decision: when it was given, where it was given, the precise nature of the inquiry made, and the precise nature of any advice given in response to such an inquiry. In any event, advice given by the Department does not constitute jurisdictional error by the Tribunal even if incorrect advice is given.
Conclusions and orders
21.	The Court has concluded that:
a)	none of the grounds of judicial review have been made out by the Applicants; and
b)	the Applicants have failed to establish jurisdictional error in the Tribunal Decision.
22.	It follows from the above conclusions that:
a)	the Tribunal Decision is a privative clause decision under s.474 of the Migration Act, and, therefore, not otherwise challengeable; and
b)	the application must be dismissed.
The Court will make an order to that effect.
23.	The Court will hear the parties as to costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate:  

Date: 28 May 2014