Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 317
•11 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 317
File number(s): SYG 1808 of 2019 Judgment of: JUDGE GOODCHILD Date of judgment: 11 April 2024 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal (“Tribunal”) – citizen of Bangladesh – Student (Temporary) (Class TU) visa – where the delegate of the first respondent was not satisfied that the applicant genuinely intended to stay in Australia – where at the time of the hearing before the Tribunal the applicant held a current COE – where at the time of the Tribunal decision the COE was no longer current – where the determinative issue before the Tribunal was that cl 500.211 of Sch. 2 Migration Regulations (Cth) 1994 was not met – whether the Tribunal afforded the applicant procedural fairness – self represented applicant – application to reopen proceedings. Legislation: Education Services for Overseas Students Act 2000, division 3 of part 2.
Migration Act 1958 (Cth), ss.353, 357A, 359, 360, 474.
Migration Regulations 1994 (Cth), r.1.03, Sch.2, clls 500.2, 500.211, 500.211, 500.212.
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393
Kioa v West (1985) 159 CLR 550
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Matson v Attorney General (Cth) [2021] FCA
Minister for Immigration & Citizenship v SZGUR & Anor [2011] HCA 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZMBX v Minister for Immigration and Citizenship (2009) 112 ALD 475 at [21]
Wei v MIBP (2015) 327 ALR 28
Division: Division 2 General Federal Law Number of paragraphs: 95 Date of last submission/s: 7 December 2023 Date of hearing: 2 and 30 November 2023 Place: Sydney Applicant: The Applicant in person Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 1808 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SOHEL AHMED
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
11 APRIL 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 25 June 2019.
2.A writ of mandamus issue directed to the second respondent requiring the second respondent to determine the applicant’s review application according to law.
3.The first respondent pay the applicant’s costs of the application.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GOODCHILD
INTRODUCTION
1The applicant is a citizen of Bangladesh who arrived in Australia in 2004. He has been residing in Australia since that time holding either a Student visa or Student dependant visa or an associated bridging visa.
2On 15 March 2017 the applicant applied to the Department of Immigration and Border Protection for a Student (Temporary) (Class TU) visa (“visa”). On 14 June 2017 the applicant’s application was refused by a delegate of the first respondent (“Minister”). On 4 July 2017, the applicant applied for review of the delegate’s decision by the Administrative Appeals Tribunal (“the Tribunal”). On 25 June 2019 the Tribunal affirmed the decision not to grant the applicant his visa.
3The applicant has applied to this Court for judicial review of the Tribunal’s decision.
4The Court’s task in this judicial review proceeding is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.
5For the reasons explained below, I have found that the applicant has established that the Tribunal decision is affected by jurisdictional error, and I grant the application for judicial review.
LEGISLATION
6Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”) sets out the criteria for the grant of a subclass 500 (Student) visa and relevantly provides:
500.2--Primary criteria
Note: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
500.211
One of the following applies:
(a)the applicant is enrolled in a course of study;
(b)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;
(c)if the applicant is a Foreign Affairs student--the applicant has the support of the Foreign Minister for the grant of the visa;
(d)if the applicant is a Defence student--the applicant has the support of the Defence Minister for the grant of the visa.
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant's circumstances; and
(ii)the applicant's immigration history; and
(iii)if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
7The Act relevantly provides:
353 Tribunal’s way of operating
The Tribunal, in reviewing a Part 5-reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
...
357A Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
...
359 Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
...
BACKGROUND
8The applicant applied for the visa to study a Certificate III in Individual Support and a Certificate IV in Ageing Support. On this application the applicant was represented by a migration agent.
9In finding that the criteria for the grant of a Student visa were not met by the applicant, the Minister’s decision record, dated 14 June 2017, refusing the application states as follows:
I have considered your GTE submissions in its entirety. On balance I am not satisfied you are a genuine temporary entrant as a full-time student. Your failure to maintain enrolment in or completion of your initial intended studies, combined with a significant change in your program of study are of concern. I acknowledge that individuals can undertake career changes throughout their life however you have not satisfied me that such a change has significantly improved your career prospects in Bangladesh. I cannot be satisfied that you have demonstrated that the proposed qualifications would be of a greater benefit to you than the qualifications you already hold. Your behaviour is not consistent with that of a person who has invested significant time and finances in the decision to study in Australia to progress academically in the higher education sector relevant to their previous achievements and future goals.
I also note that you have enrolled in a series of relatively inexpensive unrelated causes of short duration and 15 COE’s have been cancelled for one reason or another. Taking length of time in Australia already into consideration, noting you wish to remain for an additional 25 months, raises concern of genuine temporary intentions… You have studied in a variety of fields with no clear career goal. You have not provided any details of any previous or current employment that is relevant to your studies or future career goals. I note that the highest qualification you have achieved is a Diploma in the 13 years that you have been in Australia on a Student visa and any associated bridging visa. I do not consider this to be a reasonable completion level for a student whose primary purpose for being in Australia is to study and progress academically. I also note that you have enrolled in a series of relatively inexpensive unrelated courses of short duration. Given the time you have spent in Australia, you appear to have enrolled in these new courses for the purpose of securing a further student visa to prolong your stay rather than to do to a genuine interest in studying to benefit your career outside Australia. I believe your stated goals in his application could be satisfactorily obtained in your own country of residence.
These factors indicate that you are not a genuine student. Rather, you appear to be using the Student Visa program as a means extending your stay in Australia and you do not genuinely intend to stay in Australia temporarily as a full-time student. I therefore am not satisfied you meet the requirements of clause 500.212.
10The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily and therefore found that he did not meet cl 500.212 of Schedule 2 to the Regulations.
11On 4 July 2017, the applicant applied for review of the delegate’s decision by the Tribunal.
12On 5 November 2018, the Tribunal invited the applicant to attend a hearing scheduled on 11 December 2018 in person in Sydney (“hearing invitation letter”). That hearing invitation letter relevantly requested that the applicant provide the following information at least 7 days before the hearing date:
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 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 Pastor intended studies in Australia.
…
13On 13 November 2018, the applicant, by his migration agent forwarded to the Tribunal a Signed Response to the hearing invitation letter indicating that the applicant would take part in the hearing scheduled for 11 December 2018, that his representative would NOT be attending, that the applicant would not require an interpreter and that there would be no oral evidence taken from another person.
14Prior to the hearing the applicant provided a handwritten letter to the Tribunal dated 11 December 2018. The letter reads as follows (reproduced as is):
To Administrative Appeals Tribunal
Migration & Refugee Division
Case number 1714312
Subject: Short description of my study
I, Sohel Ahmed (Dob: 01-01-1980) finished Diploma in tourism in Sep 8, 2009 from Bridge Business College. Then I got admitted in “Mis Global Institute of Technologis) […]. My subject was Cert III in Information Technology. Unfortunately this college closed down. Then I finished Diploma of management in Austech Business Institute […] on 10th December 2013. I enrolled Bachelor of Business (Accounting) in Williams Business College […]. Unfortunately this college shut down leaving us just a part of transcript on 8th July 2014. Then I enrolled in Elite Education Institute […]. My subject was Bachelor of Business (Professional Accounting). I was going good. When I finished all but 42% of my Bachelor of Business degree then suddenly I faced family problems. My wife demanded divorce. I fell in to mental stress. Then I changed my mind. I enrolled […] Cert III in Individual Support and Cert IV in Ageing Support. After few days the college Australian Harbour International College […] authority told the wouldn’t continue my first course Cert III in Individual Support. Then gave another COE[…]. I am going to finish this course IV in Ageing Support. I would be finish 10/3/2019. I got divorced so that my study is taking time. I there fore hope that I would get the chance to finish my course on 10/3/2019.
With best Regards
Sohel Ahmed (DOB - 01-01-1980)
…
15The applicant supplied a Certificate of Enrolment (CoE) with a date created of 12/10/2017 and updated 12/10/2017. There is no dispute between the parties that this CoE evidenced that the applicant was enrolled in a Certificate IV in Ageing Support with a course start date of 02/10/17 and end date of 10 March 2019.
16On 11 December 2018, the applicant appeared, unrepresented, at a hearing before the Tribunal.
17On 25 June 2019, in excess of 6 months since the date of hearing, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Student visa.
TRIBUNAL DECISION
18The Tribunal’s decision runs for two pages and spans 15 paragraphs.
19The Tribunal began by identifying the nature of the decision under review and the type of visa the applicant was seeking: [1] and [2].
20The Tribunal recorded the background circumstances of the applicant and summarised the courses that the applicant had undertaken since his arrival in Australia: [3].
21The Tribunal identified that the delegate in the case had refused to grant of the visa on the basis that the applicant did not satisfy the requirements of cl 500.211 of Schedule 2 to the Regulations because it was determined the genuine temporary entrant criteria had not been met [4].
22The Tribunal recorded, correctly, that the applicant had appeared before the Tribunal on 11 December 2018: [5].
23The Tribunal recorded, incorrectly, that the applicant was assisted in relation to the review by his registered migration agent: [6]. I take that to mean that the applicant’s application to the Tribunal was made with the assistance of the migration agent. The applicant was not assisted at the hearing by a migration agent.
24The Tribunal summarised the criteria for a Subclass 500 (Student) visa contained in clauses 500.211 – 500.218 of Part 500 of Schedule 2 to the Regulations. The Tribunal identified the issue in the present case was whether the applicant was enrolled in an approved course of study as is required for the grant of a Student Visa: [8], [9].
25The Tribunal recorded that clause 500.211 relevantly requires that at the time of the Tribunal decision the applicant is enrolled in a course of study: cl.500.211(a). The Tribunal repeats the definition of ‘Course of Study’ and identifies that ‘Registered Course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000: [10].
26The Tribunal considered the applicant’s claims and evidence as follows:
11.On 22 August 2018 the applicant was invited to attend the hearing scheduled for 18 September 2018. The invitation asked the applicant to provide a copy of a current Confirmation of Enrolment (COE) or other documents that show he is currently enrolled in courses defined in cl.500.111 of the Migration Regulations 1994. The applicant was advised that a COE is required for the grant of a student Visa. The applicant submitted a COE for a Certificate IV in Ageing Support commencing on 2 October 2017 and finishing on 10 March 2019.
12.In the Tribunal hearing introduction, the applicant was advised in order to be eligible for a Student Visa, he must be enrolled in an approved course of study at the time of the decision. During the hearing the applicant claimed he wanted to complete his studies in Aged Care because he had not been able to finish a Bachelor degree and he had plans to work in the aged care field in his home country instead. The applicant provided a written submission dated 11 December 2018 in which he asked that he be given the opportunity to finish the course he was then enrolled in. He did not indicate he had any plans for any further study in Australia. During the hearing the applicant said he had not intended to stay this long in Australia and his parents wanted him to return to Bangladesh.
13.The applicant did not provide any post hearing submissions or further evidence to demonstrate enrolment in a course of study, as at the date of this decision. Therefore, the Tribunal is not satisfied at the time of this decision, the applicant is rolled in a course of study and accordingly cl.500.211 is not met.
27The Tribunal recorded, incorrectly, that the hearing invitation letter was dated 22 August 2018. The hearing invitation letter is dated 5 November 2018.
28The Tribunal recorded, incorrectly, that the hearing was scheduled for 18 September 2018. The hearing was scheduled for 11 December 2018.
29Because at the time of decision there was no evidence demonstrating that the applicant was enrolled in a course of study, the Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa were not met, and the Tribunal affirmed the decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.
30The applicant’s Certificate IV in Ageing Support COE had expired on 10 March 2019, just over 3 months from the date of the decision.
PROCEEDINGS IN THIS COURT
31The application for judicial review filed by the applicant on 8 August 2019 contains the following grounds:
(1)The Tribunal decision was affected by erred of law, procedural fairness and jurisdictional error in relation to exercise its discretion under the Migration Act.
Particulars:
Discretion has the meaning of acting on one's own authority and judgement. In law, discretion as to legal rulings, such as whether evidence is excluded, may be exercised by a judge or tribunal member at all levels of law enforcement, which was denied in this matter.
(2)The Tribunal made erred law and denial of natural justice not to consider applicant as genuine student and tribunal was influenced by the delegates decision not to grant student visa without considering evidence before the delegate and the tribunal.
Particulars:
The tribunal failed to exercise its power to consider genuine student criteria and did not explain why the visa was refused initially by the delegate. The tribunal did not consider approved courses under the CRICOS. Tribunal failed to consider applicants genuine intention to study in Australia.
(3)The Tribunal failed to consider individual merits of sub class Student (Temporary) (class TU) Student (subclass 500) and influence by the delegates decision record not to grant student visa and failed to consider Ministerial Direction No 69.
Particulars:
The applicant is a genuine applicant for entry and stay as a student visa and the visa was grants each and following occasions after carefully consideration of the eligibility of the grant of student visa more than one occasions, which reflects that the purpose of staying Australia under sub class 500.212 in Schedule 2 of the Migration Regulations and clause 500.211 is satisfied.
2 November 2023 hearing
32The matter was listed before me for hearing on 2 November 2023.
33On 1 November 2023, the applicant emailed my Chambers as follows:
To Honourable Judge Good Child
I am Sohel Ahmed (File No: SYG1808/2019. I’m very respectful to Australian Judicial system. I am attending tomorrow’s hearing. I suppose to submit a submission on my issue. I tried my best to collect all the documents but I couldn’t collect all the documents yet. I need a bit more time. In short I want to bring one important part of my AAT decision for your kind consideration that “and 22 August 2018-in AAT hearing I was told to submit my COE, I SUBMITTED. That time the COE was valid. From then I was waiting for a decision & also was bit frustrated What to do. So I hope you would consider my case & allow me bit more time to submit all Papers together.
With best regards
34Attached to this email were 2 documents – a copy of paragraphs [11] – [15] of the Tribunal’s decision and the COE created 12/10/2017 evidencing that the applicant was enrolled in a Certificate IV in Ageing Support with a course start date of 02/10/17 and end date of 10/03/2019.
35The applicant identified 3 grounds of review of the Tribunal’s decision with a single particular within each ground. All 3 grounds were variously in a form that are meaningless or require a reconsideration of the Tribunal’s decision on its merits.
36The applicant was entitled to be assisted in clarifying and/or explaining the nature of his complaint. It has been said many times in this Court and in the Federal Court, that courts have a duty to ensure that litigants who appear in person have sufficient information about the practice and procedure of the court to ensure a fair hearing. The duty of the Court to ensure a fair hearing extends to providing sufficient guidance to a litigant-in-person to afford that litigant an opportunity to understand the nature of judicial review and to express the grounds of review with sufficient particularity for the Court to determine the true nature of the complaint about the decision-maker’s exercise (or failure to exercise) jurisdiction or power.
37The applicant appeared in person without representation. There was an appearance for the first respondent with the second respondent filing a submitting appearance, which is usual in matters such as these.
38The applicant in oral submissions before me relied upon the email and attachments that he had forwarded to my chambers the day previously and focused on the fact that he had provided the COE to the Tribunal and that he had been enrolled in a course of study at the time of the Tribunal hearing.
39The applicant confirmed at the hearing before me that he did not have a migration agent assisting at the hearing due to the cost.
40I informed the applicant that the issue in his case was that he was not enrolled at the time of the decision.
41I spent some time going through the Tribunal’s decision with the applicant. At one point there was the following exchange:
HER HONOUR: And then have a look at the first line in paragraph 12. See how it says, “at the time of decision”? The time of the decision was 25 June 2019. This enrolment goes to March 2019.
MR AHMED: Okay. At the time, actually, I had a few assignments left. So I was talking to the college to submit the left-missing assignments. Okay. And then I was planning to do the - I mean, a Diploma - Bachelor - what is called, the Diploma of… Or something like that, you know. So I was just…
42The legal representative for the first respondent submitted that regard should be had to the evidence that was before the Tribunal at the time of the decision. I was taken to paragraph 12 of the Tribunal’s decision where the Tribunal recorded that the applicant said he had not intended to stay for this long in Australia and his parents wanted him to return to Bangladesh.
43The first respondent submitted that the decision was not unreasonable having regard to the applicant’s own evidence. The first respondent took me to the hearing invitation letter, particularly the 2nd paragraph on page 48 of the Court Book. The first respondent submitted that this was dispositive of the issue. For completeness, I reproduce that portion from the Court Book below:
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 it 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 referring to Direction No. 69.
44I note that there is nothing on the face of the hearing invitation letter which alerts the reader that the criteria must be satisfied at the time a decision is made on the application – that an applicant must ensure that the currency of a COE must be maintained up to the time of the decision, even in circumstances where the date of decision is unknown.
45The reader is told to provide “information at least 7 days before the hearing date so that a decision can be made as quickly as possible”.
46On 2 November 2023, I reserved my decision.
47On 16 November 2023, the applicant emailed my chambers as follows:
For kind attention of Honourable Judge Good Child
I am Sohel Ahmed (File No: SYG1808/2019). With great respect to Australian Judicial System
I want to inform you that in my last hearing on Nov 2 you wanted to know if I have anything that showing-
“I was in the process of extending my COURSE or COE. Answer is YES”
I have attached this letter of offer for course extension & was on the process to take the extended
COE (Confirmation of Enrolment).
Also, I want to mention to you that I had a valid COE and the AAT Hearing date on 22 August 2018.
I had a specific student number: AHI00000KW both on COE and the extended offer letter as well.
I will also submit a hard copy of my extended offer letter as asap.
Besides this, I would submit my current enrollment related papers by November.
I therefore, hope you will be kind enough to consider my case.
Yours respectfully
SOHEL AHMED (DOB:01/01/1980)
(File No: SYG1808/2019).
48Attached to this email were three documents:
(a)Letter of Offer and Student Agreement dated 7/5/2019;
(b)Confirmation of Enrolment created 12/10/2017; and
(c)Tribunal’s decision in its entirety.
49I note the Letter of Offer course details extends the Certificate IV in Ageing Support from 02/10/1017 – 14/09/2019. The original end date as evidenced in the COE was 10/03/2019.
50Having regard to the above material, my Chambers sought the position of the first respondent of a re-opening of the proceedings to adduce further evidence. By email correspondence, the first respondent indicated its opposition to re-opening of the proceedings and objected to the applicant’s further material as irrelevant.
51I listed the matter before me for a hearing of the re-opening of the proceedings on 30 November 2023.
52On 29 November 2023, the applicant emailed my Chambers the following documents:
(d)Short written submissions of the Applicant dated 29/11/2023
(e)Letter of Offer and Student Agreement dated 7/5/2019
(f)Photograph of document titled Migration Regulations 1994 - Evidence of Intended Course of Study 2017/013
(g)Confirmation of Enrolment created 12/10/2017
(h)AAT’s decision in its entirety
30 November 2023 hearing
53On 30 November 2023 the applicant appeared in person without representation. There was an appearance for the first respondent.
54At the start of the hearing the legal representatives for the first respondent submitted that in the circumstances where on 2 November 2023 judgment had been reserved, the Minister opposed the matter being re-opened and addressed me at length in respect of that opposition.
55I determined to re-open the matter and indicated I would address my reasons for re-opening the matter in this judgement.
56The applicant gave evidence with respect to the reopening of the proceedings. The first respondent did not cross examine the applicant.
57On 7 December 2023, the first respondent filed and served supplementary submissions with respect to the re-opening of proceedings.
Reasons for reopening the proceedings
58As identified earlier in these reasons, after I had reserved on 2 November 2023, I received from the applicant the 2 emails (16 November 2023 and 29 November 2023) and attached documents identified at para [47] – [52] above.
59In respect of reopening the matter, the first respondent referred to the applicable principles usefully outlined by White J in Matson v Attorney General (Cth) [2021] FCA 161 at [178] – [181] as follows:
[178] The principles on which the Court acts when considering an application to reopen a matter before the delivery of judgment are settled. The overriding principle is the interests of the administration of justice having regard to the circumstances of the case: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], [26]; Brown v Petranker (1991) 22 NSWLR 717 at 729; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478; Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338; (2004) 207 ALR 483 [121]; and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468 at [48].
[179] In Bradshaw, Kenny J identified at [24] four overlapping classes of cases in which a court may grant leave to reopen: fresh evidence; inadvertent error; mistaken apprehension of the facts; and mistaken apprehension of the law. The applicant’s present application seems to be in the first and fourth of these categories.
[180] The matters bearing on the interest of justice are various. They include:
•the public interest (and the interests of the particular parties) in litigation being conducted efficiently and expeditiously;
•the public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing;
•the significance of the proposed new evidence and submissions in the context of the hearing
•the explanation for the evidence not having been led at the trial;
•the likely prejudice to the opposing party if the application is allowed;
•the potential detriment to the applying party if the application is refused; and
•any delay by an applicant in seeking leave to reopen.
[181] Regard should also be had generally to the overarching purpose of the Court’s civil practice and procedure provisions stated in ss 37M and 37N of the FCA Act.
60The first respondent made the following submissions:
(a)The public interest weighs against reopening the proceedings. There is an overarching interest in the finality of litigation including the expectation that litigants will present all evidence and submissions at one hearing, being the final hearing;
(b)The delay by the applicant of two weeks in providing further evidence weighs against the applicant;
(c)There was no explanation as to why this evidence was not lead at the hearing listed on 2 November 2023 or why the request to adduce further evidence was not made on that day;
(d)The evidence is not admissible because it is not relevant such that the lack of significance of the evidence is such that it does not warrant reopening the matter;
(e)The Letter of Offer dated 7 May 2019 and open for 28 days (4 June 2019) does not show the applicant was enrolled at the time of the decision.
(f)Section 359A of the Act has no application in this case in circumstances where the applicant provides the information himself.
(g)That the Tribunal did not need to do any more than it did by way of the s360(1) invitation to the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relations to the decision under review.
(h)That the hearing invitation letter put the applicant on notice that the applicant was required to put on a current confirmation of enrolment.
(i)That the Tribunal advised the applicant that in order to be eligible for the student visa, he must be enrolled in an approved course of study at the time of its decision.
(j)That the question is whether, on the material before it at the time, the Tribunal made its decision and what it did was reasonable.
(k)That the applicant did not give evidence of any further study – “I am going to finish this course Cert 1B in aging support. It would be finished by 10.03.2019” – the applicant makes an express submission to the Tribunal.
(l)The applicant has been put on notice that he needed to have a current confirmation of enrolment when it made its decision. Having been put on notice of the issue on review and having been invited to the Tribunal hearing been told that he needed having confirmed to the Tribunal when his course would end it was not a duty on the Tribunal to make further enquiry to confirm from the applicant whether or not he was enrolled at the time they made their decision.
In my view, in the circumstances of this case, re-opening the proceedings to allow the self-represented applicant to rely upon the further material is in the interests of the administration of justice. The applicant foreshadowed prior to the 2 November hearing that he “couldn’t collect all the documents yet. I need a bit more time”. The delay in the application to re-open is not lengthy. The respondent was not able to point to any prejudice other than the benefit of the finality of litigation. The first respondent did not seek to cross-examine the applicant in respect of the reasons why he failed to provide the documents previously. The hearing invitation letter did not put the applicant on notice that he was required to maintain the currency of the COE past the date of the hearing up until the date of the decision, which was a date unknown. Whilst the further documents do not necessarily determine the applicant was enrolled at the time, the applicant relies upon a letter of offer which suggests that there was an extension of the course from 22.04.2019 to 14.09.2019 due to course progress.
In determining to re-open the proceedings, I also regard to the fact that the applicant, who appeared on his own behalf, had a limited understanding of English. In hindsight, I should have insisted that the Court be assisted by an interpreter.
Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 recently clearly considered the applicable principles concerning the nature of this Court’s duty to ensure a fair hearing in circumstances in which a party to the proceedings is a litigant-in-person. Whilst lengthy, it bears repeating as follows:
[21] It is axiomatic that, in the exercise of judicial power, a judge is obliged to accord procedural fairness to litigants appearing before him or her and that the requirements of procedural fairness include the provision of a reasonable opportunity for litigants to present evidence and to make submissions: Boensch v Sommerville Legal [2021] FCAFC 79; (2021) 286 FCR 293 at [85] (and the authorities there cited). Courts have an overriding duty to ensure that a hearing is fair: Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at 325, 357, 362-363. This entails ensuring that the hearing is conducted fairly and in accordance with law: MacPherson v R [1981] HCA 46; (1981) 147 CLR 512 at 523, 534, 546-547. In general, a person who has not received a fair hearing is entitled to have the judgment or order resulting from that hearing set aside on appeal and to have the matter remitted to the primary court for rehearing. However, that general principle is subject to the qualification that an appellate court will not remit the matter for a rehearing if it would be futile to do so because a rehearing would inevitably result in the same outcome: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145.
[22] Where, as here, at least one party to the proceedings is a litigant-in-person additional considerations apply to the Court’s duty to ensure a fair hearing. In Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479 the Full Court, after observing that statements of general principle such as those set out in para [21] do not offer great assistance in the particular circumstances of a hearing, said:
51On the other hand, the observations of Mason J (as his Honour then was) in MacPherson at 534 that the general duty to ensure that litigants do not suffer any disadvantage from exercising their right to be self-represented, includes the obligation to ensure that they do not remain in ignorance of a fundamental principle which, if invoked, may prove advantageous to them, do offer assistance at a more granular level. The disadvantages to which Mason J referred are usually identified as a lack of knowledge (both of the law and the processes of the court) and a lack of objectivity: Tomasevic v Travaglini (2007) 17 VR 100 at [140] (Bell J).
52As acknowledged by the High Court in Neil v Nott (1994) 68 ALJR 509 at 510; 121 ALR 148 at 150, “[a] frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”. In addition, litigants-in-person commonly fail to lodge documents in the correct form, observe court formalities and procedures, understand the significance of court processes, put the relevant evidence or law before the Court; and understand the role of the Court in adjudicating the matter.
53However, whilst disadvantages exist and the Court is obliged to act to ameliorate them by giving assistance to the unrepresented litigant, its role is constrained by its concurrent duty to remain an impartial adjudicator: see, eg, Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19 at [10]. Indeed, the Court must strike a fine balance between providing assistance to a litigant-in-person, and ensuring a fair trial for all parties: Hamod v New South Wales [2011] NSWCA 375 (Hamod) at [315]; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [29]; SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 (SZRUR) at [37] per Justice Robertson (with whom Allsop CJ and Mortimer J agreed); AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 (AMF15) at [39] per Flick, Griffiths and Perry JJ.
54The assistance provided to a litigant-in-person must therefore be limited to that which is necessary to diminish the disadvantage which he or she will ordinarily suffer, and the Court should be wary to avoid placing a litigant-in-person in a position of advantage or privilege over a represented opponent. As acknowledged by Samuels JA in Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, No 146 of 1986, 16 June 1986) (Rajski) at 27, and cited with approval by the High Court in Nobarani v Mariconte (2018) 265 CLR 236 (Nobarani) at [47]:
[T]he absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
55In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person:
(a)Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: Hamod at [311]. For example, failing to explain the difference between formal sworn testimony and statements made from the bar table, and the significance of failing to file an affidavit, to enable a litigant-in-person to choose whether or not to give oral evidence, may amount to a denial of procedural fairness: SZRUR at [39]. Additionally, failing to explain the risks in not leading evidence where adverse inferences might be drawn may also constitute a denial of procedural fairness: Downes v Maxwell Richard Rhys & Company Pty Ltd (in liq) (2014) 46 VR 283.
(b) Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: MacPherson at 534. For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness: AMF15 at [47].
(c) Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: Rajski.
56The duty of the Court does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf: Hamod at [312]; Bhagwanani v Martin [1999] SASC 406; (1999) 204 LSJS 449 at [23]; Clark v New South Wales (No 2) [2006] NSWSC 914 at [13]. Nor does the duty of the Court require it to view a litigant-in-person’s case with a favourable eye. As stated by the High Court in Northern Territory v Sangare (2019) 265 CLR 164 at [27], albeit in the context of a determination on costs, “unmeritorious litigation is no less unmeritorious because it is pursued by a person who is … a litigant-in-person”.
57It seems to be well accepted that the extent of the Court’s obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon “the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case”: Abram v Bank of New Zealand [1996] ATPR 41-507 at 42,347.
[23] In SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 (at [37]), a differently constituted Full Court cited with approval passages from Hamod v New South Wales [2011] NSWCA 375 that included the following observations:
[311]Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.
[313]The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:
But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant.
[314]Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.
[315]There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:
A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSWCA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.
[316]The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.
[24] When speaking of the consequences of a failure to adequately particularise a ground of judicial review by a litigant-in-person, in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, Colvin J made the following observations with which I agree:
8The consequences of a failure to particularise a ground will depend upon the circumstances. Where a legally represented party has been afforded an opportunity to remedy the failure to comply then it is to be expected that the ground would be dismissed for failure to comply with the Rules and without any consideration as to whether there may be underlying merit.
9However, it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister's discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.
Providing this litigant, in the circumstances of this case, the opportunity of placing before the court the material he sought to rely upon both safeguarded the general duty to ensure that litigants do not suffer any disadvantage from exercising their right to be self-represented and safeguarded the applicant’s right to a fair hearing.
CONSIDERATION OF THE APPLICANT’S SUBSTANTIVE APPLICATION FOR REVIEW OF THE TRIBUNAL’S DECISION
It is the case that the Act confers on the Tribunal wide discretionary powers to investigate an applicant’s claims – however the legislation does not impose on the Tribunal a general duty to make inquiries: Minister for Immigration & Citizenship v SZGUR & Anor [2011] HCA 1 (SZGUR) at [1], [20] and Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 999 (SGLB) at [43].
The Tribunal operates in an inquisitorial, rather than adversarial, fashion (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (SZIAI) at [18]) and it has the power in conducting a review to get any information which it considers relevant. It may invite a person to provide information. It is to have regard to any information so obtained in making its decision.
There is authority for the proposition that a decision-maker's failure to make an obvious inquiry about a critical fact may be legally unreasonable or amount to a constructive failure to exercise jurisdiction and, on either basis, constitute jurisdictional error.
Nettle J (at [49]) in Wei v MIBP (2015) 327 ALR 28 usefully summarised the relevant caselaw as follows:
It does not follow, however, that there is nothing which can be done for the plaintiff. In Prasad v Minister for Immigration and Ethnic Affairs, Wilcox J held that, although it is not enough to establish jurisdictional error on the part of an administrative decision-maker that the court may consider that the sounder course for the decision-maker would have been to make further inquiries, where it is obvious that material is readily available which is centrally relevant to the decision to be made, and the decision-maker proceeds to make the decision without obtaining that information, the decision may be regarded as so unreasonable as to be beyond jurisdiction. In Ex parte Helena Valley/Boya Association (Inc), Ipp J, sitting as a member of the Full Court of the Supreme Court of Western Australia, applied Wilcox J's reasoning in Prasad in order to conclude that a local council had failed properly to apply its mind to the question which needed to be decided in determining whether to approve a planning application. In Minister for Immigration and Ethnic Affairs v Teoh, Mason CJ and Deane J expressly approved of Wilcox J's reasoning in Prasad and of its application in appropriate cases. And in Minister for Immigration and Citizenship v Le, Kenny J surveyed the course of authority following Prasad and held that it was legally unreasonable for the Migration Review Tribunal to fail to make an obvious inquiry. Based on those decisions, in Minister for Immigration and Citizenship v SZIAI, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ similarly concluded that there may be circumstances in which a merits reviewer's failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can be seen to supply a sufficient link to the outcome of review to constitute a constructive failure to exercise jurisdiction.
In SZMBX v Minister for Immigration and Citizenship (2009) 112 ALD 475 at [21], Bennett J said that Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 established three conditions: first, whether the inquiry that the Tribunal failed to make was obvious; second, whether it concerned a critical fact, the existence of which was easily ascertained; and, third, whether it supplied a sufficient link to the outcome as to constitute a failure to review.
In Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393 where the Migration Review Tribunal dismissed an applicant's review application when the applicant failed to appear at a hearing to which the applicant had been invited, Mortimer J held that in the context of the applicant's proactive approach to the pursuit of her application for review, the failure of the applicant to attend at the hearing was out of character and that so much should have been obvious to the Tribunal. Mortimer J said at [140]:
… A tribunal acting fairly, according to substantial justice and the merits of this applicant's case, would have done what this Tribunal, and its officers, had been doing with this review applicant for the past five months: telephoned or emailed her. Subsequent events, as disclosed by the evidence, demonstrate that, when those methods of communication were used with the first appellant after the Tribunal decision, she was responsive in a timely way. There is no basis to conclude she would have been otherwise if telephoned or emailed either by the Tribunal officer who filled in the ‘no response’ to hearing invitation form, or by the Tribunal member herself. In keeping with the conduct to that point, a simple telephone call or email after the ‘no response’ form was filled in would, I find, most probably have resulted in the first appellant attending the second hearing.
In Kioa v West (1985) 159 CLR 550 at 587, Mason J said this:
“In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.”
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) the High Court observed at [42]-[43] that, the obligation upon a decision maker is an obligation to reveal to the person who may be affected by the decision those issues which were “live”, including, as in the facts of that case, the assumptions that underpinned that person's account which the decision maker considered to be in issue. In SZBEL the applicant for a protection visa relied upon the occurrence of three events to support his claim. In refusing the protection visa, the Minister’s delegate did not accept the accuracy of only one of those events. Nothing in the delegate’s reasons indicated that the two other events were in issue. At the hearing before the Refugee Review Tribunal, the Tribunal did not identify those two events as important issues and did not challenge the accuracy of the other two events with the applicant. The Tribunal refused the application for review and found that the applicant’s claims, including the two claims not doubted by the delegate, were not credible.
The High Court found that the applicant was denied procedural fairness because the Tribunal did not give the applicant a sufficient opportunity to give evidence, or make submissions, about what turned about to be two of the three determinative issues in relation to the decision under review. The High Court said (at 35):
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
In February of this year, the High Court heard a matter brought in its original jurisdiction involving the construction, validity, and operation of parts of Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2. In that case the plaintiff submitted seven circumstances which supported the conclusion that the exercise of the power to refuse the grant of the visa, without the delegate making an inquiry as to the existence and status of a minor child, was legally unreasonable.
The High Court (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ) observed:
[25] The making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction [Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129; 259 ALR 429 at 436] or a legally unreasonable exercise of a particular duty or power [Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290, 321; Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at 563 –564 [26]–[27]].While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, [eg, Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169, cited in Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289 -290] these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law [Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at 563 [26], citing Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541 at 551 [11], 564 [52], 575 [89], 586 [135]].
In the proceedings before this Court, the Tribunal heard the applicant’s application for review on 11 December 2018 and made a decision on 25 June 2019, in excess of 6 months after the hearing and in excess of 3 months after the expiry of the COE the applicant was relying on to satisfy cl.500.211(a).
Nowhere on the hearing invitation was the applicant informed that there could be many months of delay between the time of the hearing and the rendering of the decision. Nor was the applicant informed that he was required to maintain the currency of his COE, despite providing a current COE at the time of the hearing.
Nowhere on the hearing invitation from the Tribunal dated 5 November 2018 is the applicant informed that in order to be eligible for a Student Visa he must be enrolled in an approved course of study at the time of the decision. What the hearing invitation letter does say is as reproduced at paragraph [44] – “…currently enrolled in a course of study as defined in… as is required for the grant of a student visa”.
Further, the determinative issue for the delegate as to why the applicant did not meet the criteria was different from the reason the Tribunal affirmed the delegates decision. The sole reason considered by the Tribunal for affirming the decision not to grant the applicant his visa was on the basis of a COE, which was ‘stale’. The Tribunal took no step to identify to the applicant that there was a dispositive issue different from that considered by the delegate. In fairness, it should have.
At paragraph [11] of the Decision, the Tribunal identify the COE and note its expiration date.
At paragraph [12] of the Decision, the Tribunal recorded that at the hearing introduction the applicant was advised that in order to be eligible for a Student visa he must be enrolled in an approved course of study at the time of the decision. There is no evidence that the Tribunal indicated to the applicant on 11 December 2018 that it may not render its decision until after 10 March 2019.
The Tribunal records that the applicant: “…did not indicate he had plans for any further study in Australia”. It is not clear if he was asked what his plans were upon completion of the course he was relying on to satisfy cl.500.211(a).
The applicant’s original visa application identified 2 COE course codes. The applicant’s statement accompanying the application indicated that he was intending to pursue Certificate III in Individual Support and Certificate IV in Ageing Support.
In the applicant’s letter to the Tribunal providing a summary of the courses he has studied in Australia, he identifies on 2 occasions that he was unable to complete study because of the colleges closing down. This letter also informs the Tribunal that the applicant faced family problems with his wife demanding a divorce and he fell into mental stress, he got divorced and his study was taking time. This letter also informs the Tribunal that he enrolled in Certificate III in Individual Support and Certificate IV in Ageing Support, but the college would not continue with the Certificate III in Individual Support.
At paragraph [12] of the Decision the Tribunal notes that the applicant said he had not intended to stay this long in Australia and his parents wanted him to return to Bangladesh.
At paragraph [13] of the decision the Tribunal notes that the applicant did not provide any post-hearing submissions or further evidence to demonstrate enrolment in a course of study, as at the date of this decision.
Clearly the decision would have significant consequences for the applicant. The applicant had explained in both his original application and the letter to the Tribunal the importance of him being able to continue his study in Australia.
The critical fact on the inquiry was whether the applicant was enrolled in a course of study at the time of the decision. The evidence that went to that critical fact was ‘stale’. It would have been easy to have ascertained the applicant’s enrolment position by seeking information from him.
The Tribunal had the power to request further information from the applicant available to it pursuant to s359 of the Act.
The Tribunal did not have to render a decision within a particular time period. The delay in the making of the decision by the Tribunal was lengthy. The Tribunal must have known that the Applicant would not have known when it was going to render its decision.
It may well be, having regard to the genuine temporary entrant criterion contained in the Regulations and the factors to be considered contained in Ministerial Direction No: 69 when assessing the genuine temporary entrant criterion that – as was assessed by the delegate - the applicant may not satisfy the genuine temporary entrant criterion. However, the applicant’s application must be determined on its merits. In my view a Tribunal acting fairly and according to substantial justice would have contacted the applicant.
Each case necessarily turns upon its own particular facts and circumstances. On the basis of the particular circumstances of this case, the failure of the Tribunal to make what was, in the circumstances, an obvious inquiry about such a critical fact - one which could have easily been ascertained - constituted jurisdictional error.
In the circumstances of this case, where there had been in excess of 6 months from the date of the hearing before the Tribunal until the date of Tribunal decision, and where, in that intervening period a previously current COE became stale, where there was no logical reason for the applicant to have known when the Tribunal decision was to be made and where personal circumstances may well have changed, it was open to the Tribunal to write to the applicant pursuant to s.359(2) of the Act inviting him to comment on the course(s) of study he was undertaking. The Tribunal failed to accord to the applicant procedural fairness.
Such failure was material, in that it could realistically have resulted in the Tribunal arriving at a different decision. As was said in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] - [46] per Bell, Gageler and Keane JJ (more recently considered and affirmed by the Hight Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [9] – [16]):
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
CONCLUSION
The applicant has established that the Tribunal decision is affected by jurisdictional error. It follows that the application to this Court is granted.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Dated: 11 April 2024
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