Federal Court of Australia

Kaur v Minister for Immigration and Citizenship [2026] FCA 1644

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be taxed in the absence of an agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROFE J:

1.    Introduction

1    The appellant appeals from the decision of the Federal Circuit and Family Court of Australia (Division 2) in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 68 (PJ), delivered on 1 February 2024.

2    By that decision, the primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal)—being the predecessor of the second respondent—which was made on 14 August 2018 and by which the Tribunal affirmed a decision of a delegate of the first respondent (the Minister) to refuse the appellant the grant of a Student (Temporary) (Class TU) (Subclass 500) visa.

3    At the hearing before this Court on 20 October 2026, the appellant sought and was granted leave to rely on a further amended notice of appeal of the same date. By that iteration of the document, the appellant raises the following three grounds in support of her appeal:

(1)    Ground 1: the appellant contends that the primary judge erred in failing to find that the Tribunal failed to comply with its statutory obligations as stipulated by ss 359A and/or 359AA, and s 357A(3), of the Migration Act 1958 (Cth) (as at 14 August 2018);

(2)    Ground 2: the appellant contends that the primary judge erred in failing to find that certain findings of the Tribunal were made without evidence; and

(3)    Ground 3: the appellant contends that the primary judge erred in failing to find that the Tribunal’s decision was legally unreasonable.

4    In addition to the parties’ respective written submissions, the appellant also relies on the audio recording of the hearing before the Tribunal on 14 August 2018, and her sworn affidavit of 21 September 2026, which contains a transcribed extract of the recording.

2.    Background

5    The appellant is a national of India.

6    On 26 November 2013, the appellant was granted a Student visa (TU 573) offshore to study a Diploma of Computing and Information Technology and a Bachelor of Information Technology. She arrived in Australia on that visa on 3 December 2013. The visa was valid until 15 March 2017.

7    Between her arrival in Australia in December 2013 and March 2017, it appears that the appellant completed only a Diploma of Management.

8    On 8 March 2017, the appellant applied for the Student (Temporary) (Class TU) (Subclass 500) visa (student visa application). At the time she made the application, the appellant confirmed to the Department of Immigration and Border Protection that she held two Confirmations of Enrolment and the reason for her application was to complete a Diploma and Advanced Diploma of Business.

9    On the same day, the appellant was granted a bridging visa pending the determination of her student visa application.

10    On 1 May 2017, the appellant was notified that her student visa application had been refused. In the decision record, the Minister’s delegate stated that she was not satisfied that the appellant was a genuine temporary entrant for the purposes of study, as required by cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth). Rather, the delegate stated that it appeared the appellant was using the student visa program as a means of extending her stay in Australia.

2.1    The proceedings before the Tribunal

11    On 18 May 2017, the appellant applied to the Tribunal for review of the delegate’s decision.

12    On 17 July 2018, the Tribunal emailed the appellant, attaching a letter inviting her to attend a hearing at 9.30 am on 14 August 2018. The letter also provided information about the materials she was required to prepare and provide to the Tribunal before the hearing. The letter stated, relevantly:

What you should do within 7 days of receipt of this letter

[…]

Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator.

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.

2.    Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

3.    We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.

Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69 [sic].

In determining whether you are a genuine applicant for entry and stay as a student, we may also have regard to cl.500.212(b) of Schedule 2 to the Regulations. […]

(Bolded and italicised emphasis in original. Single underlined emphasis added by the appellant. Double underlined emphasis added by the Minister in oral submissions)

13    The appellant participated at the hearing on 14 August 2018 with the assistance of an interpreter skilled in the Punjabi and English languages.

14    At the conclusion of the hearing, the Tribunal proceeded to deliver an oral statement of reasons affirming the delegate’s decision to refuse the appellant’s student visa application. On 11 September 2018, the Tribunal provided the appellant with a written statement of reasons dated 10 September 2018 (TD) upon request by the appellant made on 20 August 2018. It is apparent that the written reasons have been adapted from the transcript of the oral reasons that were delivered.

15    In support of her application for review, the appellant had handed up various materials, including documents relating to her previous studies and enrolments, a bridging visa grant notice and medical material, which the Tribunal set out in its reasons at TD [17]–[19]:

[17]    At the hearing, you provided the following documents:

•    Statement of Attainment hygienic food practices. Tax invoice for same;

•    Letter of offer in name of applicant dated 13 August 2018 in an approved course. No fees were paid;

•    Undated and unsigned acceptance of offer and enrolment agreement in name of applicant. No receipt for payment of any fees attached;

•    COE 77D21813 for enrolment in Diploma of Management. The COE expired 8 May 2016;

•    COE 77D21C21 for enrolment in Bachelor of Business (Management). COE expired 20 May 2018;

•    Bridging visa grant notice;

•    Certificate of Graduation and Statement of Attainment Diploma of Management dated 4 August 2016;

•    […]

[18]    A Statement of Attainment in hygienic food practices and a tax invoice for the same; a letter of offer in the name of the applicant, dated 13 August 2018, in an approved course; no fees were paid.

[19]    Undated and unsigned acceptance of offer and enrolment, documentary in agreement, in the name of the applicant. There was no receipt for payment as part of the document. There was no receipt for payment of any fees attached to the document. There was no part of the document that indicated payment of any tuition fees.

(The bolded parts above were the focus of the appellant’s submissions.)

16    Amongst these materials, the appellant had handed up a “Letter of Offer” from the Vocational Training Institute dated 13 August 2018 offering her a place in an Advanced Diploma of Leadership and Management commencing on 15 September 2018, together with an “Acceptance of Offer and Enrolment Agreement” which contained terms and conditions on which the offer could be accepted (the VTI Agreement).

17    The Letter of Offer stated as follows:

In order to accept this offer, please read and sign the attached Acceptance of Offer and Enrolment Agreement and pay the initial deposit for this course within the due date mentioned in this letter. If you choose to pay more than 50% of the total tuition fee, you will be required to indicate this on Acceptance of Offer and Enrolment Agreement Document.

Once your enrolment has been confirmed, you will be advised of the Orientation date (which you must attend) for your course.

18    The Letter of Offer also indicated that the total course fee was $6,500, of which a minimum deposit of $2,000 was required.

19    The VTI Agreement was pre-filled with the appellant’s details and expressly stated that “[b]y signing this agreement, the student is accepting the Course Enrolment as outlined in this document”. However, the agreement was not signed or dated by the appellant. It also provided that “[Vocational Training Institute] shall not accept any payment prior to receiving of the signed agreement”.

20    Although the delegate had refused the student visa application because the appellant did not satisfy the genuine temporary entrant criterion in cl 500.212 of Sch 2 to the Regulations, the Tribunal identified the relevant issue before it as whether, at the time of its decision, the appellant was enrolled in a course of study as required by cl 500.211(a): TD at [8], [10]–[14].

21    The Tribunal noted that the appellant had not provided a current Confirmation of Enrolment, either before or at the hearing: TD at [15]–[16]. In considering the documents produced at the hearing, the Tribunal observed that the Letter of Offer was dated 13 August 2018, that the VTI Agreement was undated and unsigned, and that there was no receipt or other indication of payment of tuition fees. The Confirmations of Enrolment otherwise provided by the appellant had expired: TD at [17]–[20].

22    The Tribunal further recorded that the appellant had confirmed in her sworn evidence that she was not currently enrolled and did not have a valid offer of enrolment in any course of study in Australia: TD at [28]. It concluded that there was no evidence that she was then enrolled in a course of study or held a current Confirmation of Enrolment and, accordingly, that cl 500.211 was not satisfied: TD at [29]–[30]. The Tribunal therefore affirmed the delegate’s decision: TD at [33]–[36].

2.2    The proceedings below

23    On 10 September 2018, the appellant commenced proceedings in the then Federal Circuit Court of Australia. Before the primary judge, her grounds included complaints that the Tribunal had failed to consider her immigration and study history, had acted unfairly and unreasonably, and had failed to consider her intention to complete her studies. At the hearing, the appellant also contended that the Tribunal should have made further enquiries concerning her medical circumstances: PJ at [17]–[18].

24    The primary judge rejected those complaints. Her Honour held that, once the Tribunal was not satisfied that the mandatory enrolment requirement in cl 500.211(a) was met, it was unnecessary for it to consider the genuine temporary entrant criterion. Her Honour also rejected the contention that the Tribunal was required to make further enquiries concerning the appellant’s medical circumstances, because those circumstances could not alter the requirement that the appellant be enrolled in a course of study at the time of decision: PJ at [28]–[32].

25    As to procedural fairness, the primary judge held that the Tribunal had complied with its obligations under Div 5 of Pt 5 of the Act. In particular, her Honour held that the Tribunal’s failure to put the Provider Registration and International Student Management System (PRISMS) records to the appellant did not give rise to jurisdictional error, accepting that s 359A was not engaged in the circumstances: PJ at [33]–[37]. Her Honour also rejected the contention that the remaining grounds disclosed any jurisdictional error: PJ at [40]–[45]. Accordingly, the application was dismissed and the appellant was ordered to pay the Minister’s costs fixed at $6,000: PJ at [47]–[48].

3.    The appeal

26    I will now turn to consider each of the grounds of appeal advanced by the appellant.

3.1    Ground 1

27    By her first ground of appeal, the appellant contends that the primary judge erred in failing to find that the Tribunal denied her procedural fairness and failed to carry out its statutory task by failing to comply with ss 359A and/or 359AA of the Act. She also relies on the requirement in s 357A(3) that, in applying Div 5 of Pt 5 of the Act, the Tribunal act in a way that is fair and just.

28    Sections 359AA and 359A of the Act as at 14 August 2018 provided the following:

359AA    Information and invitation given orally by Tribunal while applicant appearing

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 360:

(a)    the Tribunal may orally 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 that is under review; and

(b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

[…]

359A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

[…]

(4)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)     that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

[…]

29    The obligations imposed by ss 359A and 359AA of the Act attach to “information” that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. Section 359AA applies where the Tribunal orally gives an applicant clear particulars of such information during the applicant’s appearance before it. Section 359A imposes an obligation to give clear particulars of relevant information in writing, subject to the exclusions in that section.

30    The appellant identifies two matters which she submits the Tribunal was required to put to her. First, the Tribunal relied on the proposition that no fees had been paid to the Vocational Training Institute, and on the absence of a receipt evidencing payment, without raising those matters with her or affording her an opportunity to respond. The appellant submits that the absence of a receipt was not information that she had provided and therefore did not fall within the exception in s 359A(4)(b). The appellant emphasises the distinction between the Tribunal’s statement at TD [17] that “[n]o fees were paid” and its separate phrasing later on in that paragraph that “[n]o receipt for payment of any fees [was] attached”. She submits that the former was a positive finding of fact, rather than merely an observation that the documents did not contain evidence of payment, and that the Tribunal had neither raised that proposed finding with the appellant nor given her an opportunity to respond to it.

31    Secondly, the appellant submits that the Tribunal failed to put to her adverse information derived from the PRISMS records concerning her enrolment status. She contends that the PRISMS records, which were dated 6 August 2018, preceded the Vocational Training Institute’s Letter of Offer dated 13 August 2018 and therefore could not establish whether she was enrolled with that provider at the relevant time.

32    The appellant further submits that, assessed in the circumstances of the review as a whole, the Tribunal did not act fairly and justly as required by s 357A(3) of the Act. She relies in particular on the fact that she had been enrolled in a course of study when she applied for review on 18 May 2017, and that the delegate’s decision, and subsequently the Tribunal’s invitation of 17 July 2018, concerned whether she was a genuine applicant for entry and stay. By the time the review was heard on 14 August 2018, more than a year had passed since the application for review. Against that background, and given that the appellant was unrepresented and required an interpreter, she submits that the Tribunal was required to raise with her its concerns regarding the payment of fees and the PRISMS information and afford her an opportunity to respond. Moreover, the appellant contends that although the Tribunal had requested a current Confirmation of Enrolment or other documents showing current enrolment, the applicable visa criterion, being cl 500.211(a) of Sch 2 to the Regulations, required the appellant to be enrolled in a course of study and did not prescribe that enrolment could be established only by a Confirmation of Enrolment or documentary evidence. She submits that her oral evidence was capable of establishing that criterion.

33    In support of this contention, the appellant draws attention to the following passages in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [10] (per French CJ) and [58]–[59] (per Hayne, Kiefel and Bell JJ):

[10]    […] The word “review” “has no settled pre-determined meaning; it takes its meaning from the context in which it appears”. As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. […]

[…]

[58]    […] what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review. The act of the Tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.

[59]    A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.

(Footnotes omitted.)

34    The appellant relies on those observations to submit that the requirement in s 357A(3) that the Tribunal act in a way that is fair and just informs the performance of the Tribunal’s statutory duties under Div 5. She submits that, in the circumstances of the present review, the Tribunal’s failure to put the matters identified above to her both was unfair and constituted a failure to comply with ss 359A and/or 359AA.

35    On the other hand, the Minister submits that neither matter disclosed any denial of procedural fairness or breach of ss 359A or 359AA of the Act.

36    As to the payment of fees, the Minister submits that the Tribunal did not rely upon information extraneous to the material provided by the appellant. Rather, the deficiency was apparent on the face of the appellant’s own documents. The Letter of Offer, which was dated the day before the Tribunal hearing, stated that acceptance of the offer required the attached agreement to be signed and an initial deposit of $2,000 to be paid. The VTI Agreement provided to the Tribunal was unsigned and undated, and there was no evidence that the required deposit had been paid. On the Minister’s case, the absence of evidence of payment was therefore a deficiency in the appellant’s own evidentiary material, rather than separate “information” which the Tribunal was required to put to her under s 359A or s 359AA. The Minister submits that the Tribunal’s references to the absence of payment were observations identifying that deficiency, rather than independent adverse information or positive findings derived from another source.

37    The Minister further submits that, if the relevant “information” for the purposes of s 359A was the need for a current Confirmation of Enrolment or other evidence of enrolment, the Tribunal’s hearing invitation had clearly identified that issue and invited the appellant to provide responsive material. Alternatively, if the relevant information was that payment was required before enrolment could be confirmed, that information appeared in documents supplied by the appellant and was therefore within the exclusion in s 359A(4). The Minister also submits that s 359AA was not engaged because the Tribunal had not orally given the appellant adverse information of the kind contemplated by that provision.

38    As to the PRISMS records, the Minister submits that the Tribunal’s decision did not rely upon the absence of an active Confirmation of Enrolment in PRISMS as a basis for affirming the delegate’s decision. Accordingly, the asserted failure to put that material to the appellant did not disclose the alleged error. It is the Minister’s position that the Tribunal affirmed the decision under review because it was not satisfied that the appellant was enrolled, not because of the existence or contents of the PRISMS records.

39    The Minister also disputes the appellant’s characterisation of the Tribunal’s hearing invitation. The invitation did not represent that the only issue before the Tribunal was whether the appellant was a genuine applicant for entry and stay. Rather, it requested all documents relied upon to establish that the visa criteria were satisfied, directed the appellant to have regard both to the delegate’s reasons and to any change in her circumstances, and specifically requested a current Confirmation of Enrolment or other documents demonstrating current enrolment in a course of study. The issue of current enrolment was thereby identified well before the hearing and there was no unfairness in requiring the appellant to establish that she satisfied the applicable visa criteria.

40    Finally, the Minister submits that the fact that the Tribunal hearing occurred more than a year after the review application had no bearing on the applicable visa requirements or the correctness of the Tribunal’s decision. The hearing invitation clearly stated that copies of current enrolment information were to be provided.

41    I do not accept that the primary judge erred in failing to find that the Tribunal denied the appellant procedural fairness or failed to comply with ss 359A or 359AA of the Act.

42    The Tribunal’s reference to the absence of evidence that fees had been paid did not engage ss 359A or 359AA of the Act. The Letter of Offer and VTI Agreement were provided by the appellant and identified the steps relevant to acceptance of the offer, including the requirement for the VTI Agreement to be signed and for the initial deposit to be paid. In observing that there was no evidence of payment, the Tribunal was assessing the sufficiency of the material provided by the appellant. Although the expression “[n]o fees were paid”, read in isolation, might suggest a positive finding, it must be read in the context of the Tribunal’s description of the documents provided at the hearing and its repeated references to the absence of a receipt or other evidence of payment. In that context, the Tribunal was identifying that the appellant’s documents did not demonstrate that payment had been made. The absence of evidence of payment was not itself separate adverse information which the Tribunal was required to put to her.

43    Nor did the primary judge err by failing to find a breach in relation to the PRISMS information. The Tribunal’s reasons do not indicate that the PRISMS records were relied upon as the reason, or a part of the reason, for affirming the delegate’s decision. Rather, the Tribunal concluded, on the material provided by the appellant and her evidence at the hearing, that she had not demonstrated that she was currently enrolled. The onus was on the appellant to satisfy the Tribunal that she was currently enrolled, which she failed to do. The failure to put the PRISMS information to the appellant therefore does not establish a breach of ss 359A or 359AA.

44    The appellant’s reliance on s 357A(3) does not lead to a different conclusion. The hearing invitation expressly requested a current Confirmation of Enrolment or other documents showing that the appellant was currently enrolled in a course of study. She was therefore on notice that her current enrolment was an issue for the Tribunal. While the appellant was unrepresented, required an interpreter and the hearing occurred more than a year after she applied for review, those circumstances do not establish that the Tribunal acted unfairly in assessing the material she provided to establish her current enrolment. It follows that the primary judge did not err in failing to find that the Tribunal acted otherwise than fairly and justly in the conduct of the review. Ground 1 is not established.

3.2    Ground 2

45    By her second ground of appeal, the appellant contends that the primary judge erred in failing to find that the Tribunal made two findings for which there was no evidentiary basis. Relying on Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–6 (per Mason CJ) and Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [38] (per Sundberg, Emmett and Finkelstein JJ), the appellant submits that an error of law may arise where a decision depends upon a factual finding for which there is no evidence.

46    First, the appellant submits that there was no evidence to support the Tribunal’s statement that “[n]o fees were paid” to the Vocational Training Institute. Secondly, she challenges the Tribunal’s finding that she had “[…] confirmed in her sworn evidence […] that she was not currently enrolled and did not have a valid offer of enrolment in any course of study in Australia”. The appellant relies in this respect on her evidence at the hearing that she was enrolled with the Vocational Training Institute and that the course was to commence in September, together with the Letter of Offer dated 13 August 2018 which she had provided to the Tribunal. She submits that the primary judge repeated or adopted the Tribunal’s conclusion that she had conceded that she was not enrolled, notwithstanding that her recorded evidence before the Tribunal was to the opposite effect. The appellant also submits that it is unclear whether the audio recording of the Tribunal hearing was before the primary judge.

47    The appellant emphasises that the Tribunal’s statements at TD [17] that “[n]o fees were paid” and that no receipt was attached were different propositions. She submits that the unsigned status of the VTI Agreement was not evidence that no fees had in fact been paid, and that the Minister impermissibly seeks to recast the Tribunal’s positive finding as an observation about a deficiency in the evidence.

48    As to enrolment, the appellant relies on her translated response to the Tribunal’s proposition that she was not currently enrolled, namely that she was enrolled with the Vocational Training Institute and that her course would commence in September. She submits that this was affirmative oral evidence of enrolment. Her subsequent statement that a Confirmation of Enrolment would be issued in a couple of weeks did not withdraw or contradict that evidence but responded to the Tribunal’s statement that the document before it was only a letter of offer.

49    The Minister disputes that either matter gives rise to an error of law. As to the payment of fees, the Minister submits that the Tribunal did not make an affirmative finding that the appellant had not paid any fees. Rather, its observation was that neither the Letter of Offer nor the VTI Agreement contained evidence of payment. In circumstances where those documents indicated that payment of a deposit was required to accept the offer, the Minister submits that the Tribunal was entitled to conclude that the material before it did not establish enrolment. The Minister submits that the impugned statements were observations made while the Tribunal was listing and evaluating the documents before it. Those documents required both signature and payment before enrolment would be confirmed, but the agreement was unsigned and undated and contained no evidence that the required deposit had been paid.

50    As to the Tribunal’s statement concerning the appellant’s sworn evidence, the Minister submits that it must be understood in the context of the exchange at the hearing. In particular, the Minister draws attention to the following exchange, as extracted in the appellant’s affidavit:

INTERPRETER: So I am actually in the course in the vocational institute. I’m enrolled and it’s starting in September

TRIBUNAL MEMBER: No that’s a letter of offer. That is not enrolment

INTERPRETER: So I’ve spoken to my agent and they suggested that the [Confirmation of Enrolment] will be issued in a couple of weeks[’] time

TRIBUNAL MEMBER: Fine. Thank you.

(Emphasis added by the Minister.)

51    The Minister submits that the exchange could not be read by isolating the appellant’s statement that she was enrolled from what followed. On the Minister’s analysis, when the Tribunal challenged that statement by observing that the document was a letter of offer rather than evidence of enrolment, the appellant did not maintain that the formal requirements for enrolment had already been completed. Instead, she referred to the anticipated future issue of a Confirmation of Enrolment and then asked for an opportunity to complete her studies. The Minister characterises that course of answers as implicitly accepting the Tribunal’s proposition that she was not then enrolled.

52    The Minister further submits that the Tribunal’s reference at TD [28] to the absence of a valid “offer” of enrolment was an erroneous expression of a reference to a valid Confirmation of Enrolment. On that construction, the Tribunal recorded that the appellant did not have a current Confirmation of Enrolment, a matter which was not disputed.

53    In reply, the appellant maintains that the Minister’s reading of the exchange was neither fair nor faithful to the words used. The appellant’s express evidence was that she was enrolled and that her course would begin in September. The Tribunal’s response, “No that’s a letter of offer”, was directed to the status of the document rather than to the truth of her oral evidence. Her reference to the future issue of a Confirmation of Enrolment was consistent with, rather than a retreat from, her assertion that she was enrolled. The appellant also contends that it was not open to alter the language actually used by the Tribunal by treating “offer of enrolment” as though it meant “Confirmation of Enrolment”.

54    I do not accept that the primary judge erred in failing to find that either of the Tribunal’s impugned findings was made without evidence.

55    The Tribunal’s statement that “[n]o fees were paid” must be read in context. The documents before the Tribunal identified payment of the initial deposit as a step required to accept the offer, but contained no evidence that payment had been made. In context, the Tribunal was recording the absence of evidence of payment, rather than making an affirmative finding that the appellant had in fact paid no fees. That construction is supported by the Tribunal’s associated references to the absence of a receipt and the absence of any indication in the documents that tuition fees had been paid. That observation was open on the material before it.

56    Similarly, the Tribunal’s statement that the appellant had confirmed that she was not currently enrolled must be understood in the context of the exchange at the hearing that is set out above. Although the appellant stated that she was enrolled, she also stated that her Confirmation of Enrolment would be issued in a couple of weeks. The Tribunal was entitled to consider that evidence together with the documents before it, which did not establish that the steps required to accept the offer had been completed.

57    I accept that the Tribunal’s statement that the appellant had “confirmed” that she was not enrolled was imprecise. The appellant had expressly asserted that she was enrolled. However, an imprecise description of her evidence does not, without more, establish that the Tribunal’s ultimate conclusion was made without evidence. The Tribunal was required to assess that assertion against the Letter of Offer, the unsigned and undated VTI Agreement, the requirement for an initial deposit, the absence of evidence that the deposit had been paid and the appellant’s evidence that a Confirmation of Enrolment would be issued only in the future.

58    While the Tribunal’s statement that the appellant had confirmed that she was not currently enrolled was expressed broadly, its conclusion that current enrolment had not been established was open on the evidence before it. The Tribunal was not required to accept the appellant’s oral assertion that she was enrolled, in light of the documentary material and her further evidence concerning the anticipated issue of a Confirmation of Enrolment. The primary judge therefore did not err in failing to find that the Tribunal’s conclusion was unsupported by evidence. Ground 2 is not established.

3.3    Ground 3

59    By ground 3, the appellant contends that the primary judge erred in failing to find that the Tribunal’s decision was legally unreasonable. Legal unreasonableness does not admit of exhaustive definition, given the variety of circumstances in which administrative decisions are made: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [2]–[3] (per Allsop CJ). The standard of legal reasonableness is determined by reference to the proper construction of the statute conferring the relevant power: Li at [67] (per Hayne, Kiefel and Bell JJ). The assessment is informed by the terms, scope and policy of the statute and the fundamental values of the common law tradition: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59] (per Gageler J), quoting Stretton at [9] (per Allsop CJ).

60    The appellant submits that the Tribunal acted unreasonably in concluding that no fees had been paid to the Vocational Training Institute and that she had confirmed in her sworn evidence that she was not currently enrolled and did not have a valid offer of enrolment. She relies on her evidence that she was enrolled with the Vocational Training Institute and that her agent had advised her that a Confirmation of Enrolment would be issued within a couple of weeks, as well as on the Letter of Offer dated 13 August 2018 which she had provided to the Tribunal. In those circumstances, the appellant submits that the Tribunal also acted unreasonably in determining the review immediately, rather than allowing an opportunity for the question of her enrolment to be clarified, particularly given that the Letter of Offer had been issued only the day before the hearing.

61    The appellant identifies three matters said to establish unreasonableness. First, the Tribunal made the findings challenged under ground 2 despite the absence of evidence supporting them. Secondly, it did not give the appellant an opportunity to respond to its proposed finding that no fees had been paid, particularly where the Letter of Offer was dated only one day before the hearing and the PRISMS records pre-dated that letter. Thirdly, the Tribunal reasoned illogically or irrationally by concluding that the appellant was not enrolled when her express oral evidence was that she was. The appellant submits that those errors, considered together, made the Tribunal’s immediate determination of the review legally unreasonable and that the primary judge erred in failing so to find.

62    The Minister submits that the appellant’s disagreement with the Tribunal’s reasoning does not establish legal unreasonableness: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34] (per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). For the reasons advanced in response to the preceding grounds, the Minister submits that it was not unreasonable for the Tribunal to observe that the material provided by the appellant contained no evidence of payment, where payment was required by the terms of the documents upon which she relied. Nor was it unreasonable, having regard to those documents and the appellant’s evidence that a Confirmation of Enrolment had not yet been issued, for the Tribunal to treat her evidence as confirming that she was not then enrolled.

63    The Minister further submits that it was not unreasonable for the Tribunal to determine the review immediately. The appellant had been instructed to provide her written material seven days before the hearing but instead produced documents dated the day before the hearing which, on the Minister’s case, did not establish that she was enrolled. Taken together with her evidence that she did not yet have a Confirmation of Enrolment, the Minister submits that the material established that she was not enrolled as at the date of the hearing and that the outcome therefore followed inevitably. On that basis, there was nothing unreasonable in the Tribunal proceeding to determine the review when it did. On the Minister’s submission, it follows that if grounds 1 and 2 fail, there is no remaining error or feature of the Tribunal’s reasoning capable of supporting the legal unreasonableness ground.

64    The complaints concerning the Tribunal’s treatment of the evidence of payment and enrolment largely repeat the matters raised under ground 2 above. For the reasons already given, the Tribunal’s conclusions on those matters were open on the material before it. They do not establish legal unreasonableness.

65    The remaining question is whether the primary judge erred in failing to find that it was legally unreasonable for the Tribunal to determine the review when it did. I do not consider that the primary judge so erred. The appellant had been asked to provide a current Confirmation of Enrolment or other documents demonstrating current enrolment. The Letter of Offer did not itself establish that the offer had been accepted or that the appellant was enrolled, and her evidence was that a Confirmation of Enrolment would be issued at a later time.

66    The Letter of Offer was dated the day before the hearing, but the timing of that document did not require the Tribunal to adjourn the review or defer its decision. The document stated that acceptance required the attached agreement to be signed and the initial deposit to be paid. The material before the Tribunal did not establish that either step had occurred. Nor did the appellant expressly request an adjournment or identify further evidence that she could provide within a specified period to establish that those requirements had already been satisfied.

67    In those circumstances, it was open to the Tribunal to determine the review on the material before it. The prospect that further evidence of enrolment might become available did not require the Tribunal to defer its decision. Its decision to proceed was not legally unreasonable, and the primary judge did not err in failing to conclude otherwise. Accordingly, the third ground of appeal must also fail.

4.    Disposition

68    For the reasons given above, none of the appellant’s grounds has been established. The appeal should therefore be dismissed with costs.

Associate:

Dated:    30 October 2026