Al Mamun v Minister for Immigration

[2016] FCCA 1777

FEDERAL CIRCUIT COURT OF AUSTRALIA

AL MAMUN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1777

Catchwords:
MIGRATION – Refusal of visa – long-time student in Australia – questions of Tribunal’s proper consideration of material – the nature of the task of review – duty to make reasonable inquiry – very brief reasons of Tribunal in relation to consideration of student’s evidence of financial capacity – failure adequately to weigh evidence in relation to financial capacity and in relation to health insurance.

Legislation:

Migration Act 1958 (Cth), ss.65, 353, 353(1)(b), 357A, 359, 359(2), 359AA(1)(a), 359AA(1)(b), 368(1)

Migration Regulations 1994 (Cth), Sch.2 & 5A, cls.572.223 & 225

Cases cited:

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant: MD ABDULLAH AL MAMUN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 213 of 2014

Judgment of: Judge Neville

Hearing date: 12 August 2015

Date of Last Submission: 11 December 2015

Delivered at: Canberra

Delivered on: 15 July 2016

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant: Self represented

Solicitor/Advocate for the Respondents: Mrs A Ryan

Solicitors for the Respondents: Clayton Utz, Canberra

ORDERS

1. A writ of certiorari issue to bring in to this Court the decision under review, whereupon that decision is to be quashed;

2. A writ of mandamus issue, directed to the Administrative Appeals Tribunal, to determine the matter according to law;

3. The First Respondent to pay the Applicant’s costs as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

MLG 213 of 2014

MD ABDULLAH AL MAMUN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By Application, filed 10^th February 2014, the Applicant sought review of, and Orders quashing, the decision made by the then Migration Review Tribunal (“the Tribunal”), now the Administrative Appeals Tribunal, made on 7^th January 2014.

2. The matter was commenced in the Melbourne Registry of this Court.  By an Application in a Case, filed 10^th March 2015, the proceeding was transferred to the Canberra Registry of the Court.

3. The decision now challenged was in relation to the answer given by the Tribunal to the question it posed for itself, at [14] of its very brief reasons, as follows:

   The issue in the present case is whether the Applicant meets the time of decision criterion in cl.572.223(2)(a)(i) relating to financial capacity.

4. The Tribunal answered that question in the negative.  It affirmed the decision of the Delegate, made on 11^th January 2012, to refuse to grant the Applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (“the Act”). The visa was refused because it was said the Applicant did not provide the evidence required to demonstrate that he was a genuine student, and in particular, that the financial requirements” under Schedule 5A of the Migration Regulations (“the Regulations”) had been met.

5. In my view, for the reasons that follow, in exercising its proper function under the Act to weigh evidence and to review, this decision was jurisdictionally flawed because it failed (a) to apply correctly the provisions of cl.572.223 (and cl.572.225 regarding satisfying the Minister in relation to “evidence of adequate arrangements in Australia for health insurance during the period of the Applicant’s intended stay in Australia”) of Schedule 2 of the Migration Regulations, (b) to have proper regard to the evidence placed before it at the hearing and/or (c) to make reasonable inquiry in the light of that evidence regarding the Applicant’s “financial capacity” for the purposes of Schedule 5A of the Regulations.

6. Accordingly, the relief sought by the Applicant should be granted.  Writs should issue so that the decision of the Tribunal is brought into this Court and quashed; the matter should be remitted to the Tribunal to determine the matter according to law.  The Applicant should also have an Order whereby his costs, either as agreed or taxed, should be paid by the Minister.

The Tribunal’s Decision

1. The Applicant raises no claim about the remarkable brevity of the Tribunal’s reasons.  I simply observe that, in total, the decision relevantly occupies only 18 paragraphs.  In such short compass, it is difficult to see how the Tribunal properly carried out its statutory function to weigh evidence and give due consideration to it against the claims made by the Applicant.[1]

   [1] Generally, see the Full Federal Court decision in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 especially at [49] and [50] discussed later in these reasons.

2. In pars.1-3, the Tribunal outlined the nature of the Application before it.  In pars.4-13, it set out what it said were the claims and the evidence.  For example, at par.8, it set out in full a letter sent to the Applicant, dated 26^th September 2013, in which the Tribunal noted a number of particulars it sought from the Applicant regarding, for example, the course in which he was enrolled for study.  That letter made no reference to what might be called generally “financial issues.”

3. The Tribunal then recorded information received from the Applicant regarding course of study for which he had enrolled, and that he had met the relevant English language requirements.

4. At pars.12 and 13, the Tribunal set out what transpired at the hearing.  Those paragraphs, in full, are as follows:

   12. The Applicant attended a hearing with the Tribunal on 27 November 2013. The Schedule SA requirements were discussed with him. The Tribunal indicated to the Applicant that he had not provided evidence that he met the financial capacity requirements to undertake his intended study. The Applicant stated that he would provide the necessary evidence. He was asked to provide it by 2 January 2014. The Tribunal did not receive a submission from the Applicant by the morning of 6 January 2014 and it proceeded to make a decision. However, later on the same day, before the decision was notified, a submission was received from the Applicant and the Tribunal decided to recall the decision so that the information could be considered.

   13. The Applicant provided three documents without a cover letter or any explanation. He submitted an Online Payment Receipt for health insurance which was issued to him on 6 January 2014. The document does not indicate the period of insurance. He submitted copy of a bank statement issued by the Rupali Bank Limited in Dhaka on 23 December 2013, which indicated that from 1 July 2011 until 30 June 2012, a person named Nazmul Ahsan, had balances ranging from 1653972 and 4892817 taka with the bank. The Applicant submitted a copy of his IELTS result dated 5 June 2010.

5. It is apt here simply to note that the Tribunal did not set out any record from the Transcript of the hearing held on 27^th November 2013.  At the hearing before this Court, the Minister did not provide a copy of the Transcript of the hearing before the Tribunal; but the Applicant fortunately did.  It makes for some interesting reading; it is discussed later in these reasons.[2]

   [2] The Court has obtained its own copy of the transcript of the proceedings before the Tribunal.

6. The Tribunal’s findings were set out in pars.14-18.  Again because of their brevity, and for the sake of completeness, they are set out in full, thus:

   14. Having regard to the Applicant's current proposed course of study, the relevant subclass in this case is Subclass 572. The criteria for the grant of this visa are set out ill Schedule 2 to the Regulations. The issue in the present case is whether the Applicant meets the time of decision criterion in cl.572.223(2)(a)(i) relating to financial capacity.

   15. The delegate refused to grant the visa because the Applicant did not provide the evidence requested from him to demonstrate that he satisfied the financial capacity requirements. The same issue ·arose before the Tribunal and the matter was discussed with the Applicant at the hearing and in a letter prior to the hearing. The Applicant's response bas been to submit a bank statement without comment. There is no apparent evidence from that statement or any other source that the Applicant had access to those funds or that he now has access to funds for the purposes of undertaking further study. The Tribunal has formed the view that the Applicant has had sufficient time and opportunity to provide the evidence required from him regarding his ability to satisfy the financial capacity requirements and it finds that he has not provided sufficient evidence to indicate that he does satisfy those requirements.

   16. The Tribunal further finds that for the Applicant to satisfy the requirements of being a genuine Applicant for entry and stay as a student, it must be satisfied that the Applicant will have access, while holding the visa, to the funds demonstrated or declared in accordance with the Schedule SA requirements relating to financial capacity. The Tribunal is not satisfied by the evidence provided by the Applicant that he meets the financial capacity requirements of Schedule 5A.

   17. On the basis of the above, the Applicant bas not given evidence in accordance with the Schedule SA requirements for Subclass 572 and assessment level 4, and therefore does not satisfy cl.572.223(2)(a)(i). As the Tribunal is not satisfied the Applicant will have access to the relevant funds, cl.572.223(2)(a)(iii) is not met.

   18. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 572 visa are not met. As explained earlier in these reasons, the subclass of student visa that may be granted is determined by the Applicant's principal course. As there is no evidence the Applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.

The Applicant’s Submissions

1. In his Application, filed 10^th February 2014, the Applicant’s then lawyers stated (under the heading Grounds of Application):

   The Tribunal affirmed the delegate’s decision to refuse the Applicant’s Application for a VET Sector (subclass 572) visa on the basis that the Applicant had not provided sufficient evidence to indicate that he satisfied the “financial capacity requirements.”  In making its decision, the Tribunal found that the Applicant had submitted a bank statement in the name of Nazmul Ahsan “without comment.”  However, it was apparent from the Applicant’s earlier Student visa Applications, all of which the Tribunal had access to on his Departmental files, that Nazmul Ahsan was his brother and so met the definition of an “acceptable individual” under Schedule 5A and, further, that he made his funds available to his brother, the Applicant.  The “insufficiency” of this evidence was the sole basis of the Tribunal’s decision yet it had abundant information available to it establishing the identity and nature of the financial support to which the Applicant had access.  In failing to take account of this relevant information, the Tribunal committed jurisdictional error.

2. The Applicant’s submissions came in the form of two letters, which were received respectively on 7^th August and 11^th December 2015.  Their contents are very similar.  Summarised, in response to nominated paragraphs of the Tribunal’s decision, the Applicant submitted as follows.

3. In relation to par.12 of the Tribunal’s reasons, this referred, among other things, to the Applicant’s late provision of further evidence.  By reference to the transcript of the hearing (p.19 “point 35”),[3] the Applicant noted that the Tribunal member advised the Applicant that he would not be back in his office until 6^th January 2014, and that the Applicant could submit the further evidence on that date.  The Applicant further said that he advised the Tribunal that he would be submitting the evidence sought by midday on 6^th January, but the reply he received (I assume automated) was that the recipient of the email was out of the office at that time.

   [3] Transcript (27^th November 2013); hereafter “T” followed by the page number.

4. Par.13 of the reasons referred to the Applicant providing certain documents but without “a cover letter or explanation”.  The documents included confirmation of an online payment for health insurance, albeit that the period of insurance, the Tribunal said, was not specified.

5. Again by reference to the transcript of the hearing (T19), the Applicant said that the Tribunal Member advised him only to submit “three papers.”  He also said that the information he provided went further than what was sought or requested by the Tribunal in relation to financial information, and in particular bank statements.  The Applicant said that the Tribunal wanted bank statements only for six months but he provided them for one year; he also said that he had bank statements for the full period from 2010 until 2015.

6. In relation to par.15 of the reasons regarding demonstrable financial capacity, the Applicant said that the Department of Immigration (“the Department”) already held information which confirmed that the bank statements the Applicant provided were from his brother’s bank, and that, for example, he obtained a visa from the Department on 6^th June 2009 using bank statements from the same account that had now recently been rejected.

7. Regarding his health insurance, the Applicant said that the Tribunal already had details of such cover for one year, but that he provided a further six months cover for the remainder of his study.

8. Finally, the Applicant averred that during the hearing, the Tribunal was told repeatedly about the Applicant’s brother’s bank statement; the Applicant asked rhetorically, or noted, that the Tribunal never advised him that he needed “to prove [the] relationship with my brother.”

The First Respondent’s Submissions

1. The First Respondent’s primary submissions, filed 22^nd October 2015, relevantly at par.25 and following (by reference to the Applicant’s ‘ground of review’ as set out in his Application), said:

   [25] That is, the sole ground of review put forward by the Applicant appears to be a claim that the Tribunal ought to have made inquiries, beyond those that were made of the Applicant, or that the Tribunal ought to have known about the identity of the person in whose name the funds were held and the nature of the financial support that the Applicant was being provided with.

   [26] First it should be observed that there is no general obligation on the Tribunal to inquire, or to initiate inquiries or to make an Applicant’s case for him.  This is the case except in the limited circumstances where a failure to make some inquiry is about an obvious fact, the existence of which is easily ascertained.[4]

   [27] While it may be the case that the person named on the Bank Statement is the Applicant's brother, and while a brother of the Applicant can be an 'acceptable individual', the Minister contends that it was for the Applicant to advance whatever evidence or argument he wished to advance to demonstrate that he had access to those funds for the purposes of meeting the relevant visa criteria for his application to meet the requirements of clause SA40S(2) of schedule SA to the Regulations (see Prasad v MIEA ( 1985) 6FCR 155 at 169-170).

   [28] Having regard to the circumstances of this matter, the Minister contends that this is not a case where such an obligation on the Tribunal to initiate additional inquiries existed. The Minister makes this contention on the basis of the following.

   [29] First, given that clause SA40S(2)(aa) of schedule SA to the Regulations, which applied to the Applicant, required that the relevant funds be held 'for at least the 6 months immediately before the date of the [Visa] application' and given that the Bank Statement provided by the Applicant only evidenced funds held as of l July 201 1 (being approximately 6 weeks prior to the date on which the Applicant applied for the Visa), the Tribunal's decision to affim [sic: “affirm”] the decision under review was the only decision open to it even if the Applicant had demonstrated that the funds belonged to his brother.

   [30] Second, there was no evidence before the Tribunal to demonstrate that the bank statement was from a person who was an 'acceptable individual' for the purposes of satisfying the visa criteria. As in the ordinary conduct of these matters, the Tribunal did not have access to the visa Applicant's previous visa applications which were not the subject of the application to the Tribunal.

   [31] Third, when providing the bank statement the Applicant did not provide any covering letter or context outlining his relationship with the owner of the account.

   [32] Fourth, the Tribunal found that the Applicant was given sufficient time and opportunity to provide the evidence required from him to demonstrate that he satisfies the financial capacity requirements, and failed to do so.

   [33] In those circumstances the Minister contends that there was no duty on the Tribunal to make inquiries of the identity and relationship of the owner of the account listed on the Bank Statement, in the sense considered by the High Court in MIAC v SZIAJ & Anor (2009) 259ALR 429 (SZIAI) at [25].

   [4] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25].

2. In his Further Submissions in relation to matters arising out of the transcript of the hearing before the Tribunal, and after again noting the requirements regarding any “inquiry” by the Tribunal by reference to the High Court’s comments in SZIAI, the First Respondent said:

   [3] … the Minister contends that there was no obligation on the Tribunal to have made further inquiries as to Nazmul Ahsan’s identity where it was not explained by the Applicant or apparent on the face of the evidence….

   [5] The Tribunal found that the Applicant had been given sufficient time and opportunity to provide the evidence required and had failed to do so, in circumstances where the Tribunal had requested the materials twice from the Applicant and had warned him that he needed to provide those materials by 2 January 2015, or it would make its decision.  The Minister submits that the Tribunal was acting well within its jurisdiction to proceed to decision and was under no obligation to pursue the Applicant for further clarification or for further material (Liu v Minister for Immigration & Anor [2015] FCCA 714 at [37]). As such, the Tribunal's decision to affirm the decision under review was a decision which was clearly open to it as the Applicant had not supplied evidence of sufficient funds from an acceptable source for the six months period required.  This was the case whether or not the Tribunal was aware of Nazmul Ahsan’s identity …

   [6] Further, the evidence provided by the Applicant (see the Minister's earlier submissions, paragraph [20]) did not demonstrate that the Applicant otherwise met the relevant Visa criteria.  In particular the evidence did not establish that the Applicant had adequate health insurance requirements in place for the period of the Applicant's intended stay (clause 572.225 of schedule 2 of the Regulations), the cover only extending until October 2015 (CB 213). The deficiencies in the Applicant's health insurance evidence had been expressly raised at the hearing (see pages 7 and 17 of the transcript).

   [7] Having given the Applicant sufficient time and opportunity to provide the correct evidence, both with respect to his financial capacity and the health insurance requirements, the Tribunal's decision to affirm the decision under review was a decision which was clearly open to it.

   [8] In those circumstances  the Minister  contends that there was no duty on the Tribunal  to make inquiries of the identity and relationship  of Nazm ul  Ahsan  ( MIAC  v SZIAI & Anor (2009) 259 ALR 429 (SZIAI) at [25]). This was not a critical fact…

1. Before turning to a consideration of the claims and submissions, it is important to set out in a little detail parts of the transcript of the hearing before the Tribunal.

The Tribunal Hearing

1. In considering the detail of the hearing before the Tribunal on 27^th November 2013, I remind myself of relevant provisions regarding the conduct of such hearings.

2. Section 353 of the Migration Act 1958 (“the Act”) prescribes the way in which the Tribunal is to operate, namely by not being bound by “technicalities, legal forms or rules of evidence,” and [s.353(1)(b)] “shall act according to substantial justice and the merits of the case.”[5]

   [5] See the general comments by the High Court in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (especially the comments by French CJ and Kiefel J at [18] – [19]) in relation to the power conferred on the reviewing Tribunal under the Migration Act (in that case, the Refugee Review Tribunal, but which is relevantly the same for the Migration Review Tribunal). This “power” conferred by the Act “is to be exercised having regard to the requirement imposed on the Tribunal, in the discharge of its core function of reviewing Tribunal decisions…”

3. Section 357A provides an exhaustive statement of the natural justice hearing rule, while s.359 permits the Tribunal to “get any information that it considers relevant,” and if it does so, “the Tribunal must have regard to that information in making the decision on the review.” Section 359(2) further permits the Tribunal to “invite, either orally (including by telephone) or in writing, a person to give information.”

4. Section 359AA(1)(a) provides that if an Applicant is appearing before the Tribunal because of an invitation to do so (pursuant to s.360), 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.”

5. Section 359AA(1)(b) sets out the specific and mandatory responsibilities of the Tribunal, when giving the particulars referred to, among other things, to ensure that “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 …” The same section requires the Tribunal to invite the Applicant to comment on or to respond to the information.

6. Section 368(1) details what must be contained in the written statement of the decision of the Tribunal. Among other things, the Tribunal must set out the findings on any material questions of fact, and refer to the evidence or any other material on which the findings of fact were based.

7. By way of summary, the following matters were canvassed in the course of the hearing before the Tribunal:

   (a)Beginning at T4 & 5, the Applicant provided the Tribunal with documents confirming his “medical covers”.  In doing so, he confirmed to the Tribunal that that medical insurance started from 26^th November 2013.  In response to a question from the Tribunal, the Applicant confirmed that he had medical insurance at the time that his Application was lodged, but his paperwork for this was not provided – which was why he provided details of the new medical insurance coverage.  The issue of medical insurance was briefly addressed again at T 7 & 8;

   (b)At T 7 and 16, the Applicant confirmed that he had been a student in Australia for 6 years, and that he had obtained various qualifications (copies of various diplomas from TAFE are part of the Court Book 190 ff; the Applicant’s academic transcript includes information from the South Western Sydney Institute (TAFE) from 2007 and 2008);

   (c)At T 14, 17 and 18, there was discussion about whether the Applicant had obtained the requisite IELTS score (copies of it are located twice in the Court Book at CB 46 and 215).  The Applicant otherwise said that he satisfied the regulatory requirements because of having completed certain courses that were conducted in English (e.g. a diploma in computer networking).  Erroneously, at T 19, the Tribunal referred to “the English” [requirement] as being a ground upon which the Delegate based her decision to refuse the Applicant’s visa Application.  The Delegate’s decision, at CB 59 – 64, made no mention of the Applicant’s failure to satisfy English language requirements; it only referred to lack of evidence in relation to financial support and health insurance.  In this respect regarding what the Delegate decided, the Tribunal was misleading in the information it gave to the Applicant;

   (d)At T 15, 16 and 19, the Tribunal commented on the action of the Department, for example, in “throwing everything” at the Applicant, and how “the mood in the Department” changes at times.  It is apposite, indeed important, here to observe that, in my view, the Tribunal should not be commenting, in the course of a hearing or at all, on the conduct or disposition of the Department towards a particular Applicant or otherwise.  Among other things, it might be said that the Department has a certain and adverse disposition towards the Applicant which is now being communicated to him by the Tribunal.  I make no finding in this regard but simply note the Court’s concern about the Tribunal’s inappropriate conduct in the course of the hearing in making such comments.  In my view, such comments, in an otherwise discursive and sometimes rambling hearing, could only have added to an element of imprecision if not confusion, particularly to a non-native English speaking Applicant.  Not only were the comments unprofessional, they were apt, as I have said, to distract and to confuse in a hearing which was less than methodical or orderly;

   (e)At T 8, 9, 11, 12-13 and 18, there was extended discussion about the Applicant’s financial documents he had provided.  The Applicant confirmed that the documents, which confirmed his financial support, came from his cousin but through his brother’s account.  Of particular note is the following exchange (T11 - 13) (emphasis added):

   MR AL MAMUN:   The bank account that I have given you is something like this.

   MR JACOVIDES:       Right.  But it is not a valid source, so you are – there will have to be a requirement that, if you send me something from Bangladesh or from another source, they are going to have to have that money before your application was lodged.  So that’s a complication as well.  The only way you can overcome that is to provide – is if you are able to get a loan from a reputable company either here or there to say that money is available for you for the purpose of your study.

   MR AL MAMUM:       Okay.

   MR JACOVIDES:   Because then you bypass the requirements that the money had to be there at the time of application, et cetera, et cetera.

   MR AL MAMUN:   Because my brother sends $10,000 to my cousin's account.  I gave you the evidence.

   MR JACOVIDES:  He is going to have to send it back.

   MR AL MAMUN:   Only to send it.

   MR JACOVIDES:    He is going to have to send it back if you decide to - look, I feel uncomfortable giving you - I cannot give you advice on what you need to do.  I mean, but I am just telling you that you probably need to get some legal advice on how to proceed, okay?  I now [sic] that is expensive and a lot of students are reluctant to do that.  However, unless you know what you need to provide to satisfy the requirements, you are just going to give me a lot of stuff and then, in the end, I am going to say it is not relevant and you cannot have the visa.  Let me just look at the legislation that existed at the time.

   Yes, so the legislation that existed at the time of your application said that if you are going to be giving a money deposit from an acceptable individual which your brother would be, he had to have had that money six months   immediately before the date of the application. So he is going to have to show - I mean, that is the trouble with this application taking so long. He is going to have to show that around March of 2011 he had $31,000 in his bank account. You know? If you are able to get a loan to cover that amount, you do not have to satisfy that requirement.

   MR AL MAMUN:   Can I give you this evidence?

   MR JACOVIDES:  What is it?

   MR AL MAMUN:    That's my brother's bank account before - -

   MR JACOVIDES:    What currency is this?

   MR AL MAMUN:   That's Bangladeshi currency.

   MR JACOVIDES:   This is from which bank, HSBC?

   MR AL MAMUN:   HSBC, yes.

   MR JACOVIDES:  That's a good bank.  I do not know how many - - -

   MR AL MAMUN:    That's $65 now - 65 taka, one dollar, one Australian dollar.

   MR JACOVIDES: So 347,000 takas, approximately how much is that in dollars? Is that like 50,000?

   MR AL MAMUN:    50,000 .

   MR JACOVIDES: This is January - yes, you would have to get it - if this is going to be the source of your financial - - -

   MR AL MAMUN:    Yes, that - - -

   MR JACOVIDES:    What you will have to do is you will have to work six months back from the date of application and get a statement backdated to then - not     backdated, saying whenever it is, 25 August 2011, your nominated acceptable person had that much  money in the bank.

   MR AL MAMUN:    Okay.

   MR JACOVIDES: If he gets a loan for 31,000 or whatever, the calculations end up being depending on when the visa is granted, if it is granted, et cetera.   He does not have to prove anything like that.

   MR AL MAMUN:     Okay.

   MR JACOVIDES: I am not going to keep these.

   MR AL MAMUN:    Yes.

   MR JACOVIDES:    Because  probably need to repackage them and present them in a way that they help your case. Okay?

   MR AL MAMUN:     Okay.

   MR JACOVIDES: Anyway, if he had 50,000 in January 2009 and he kept on having that in the bank in 2011, you can go that way.

Consideration & Disposition

1. For the purposes of the current Application to Review, pre-eminent authority clearly establishes the following principles:

   (a)A Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. Yusuf at [69].[6]

   (b)A Tribunal’s reasons are required to disclose its process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given.  MZYTS at [50].[7]

   (c)In certain, defined and limited circumstances, there can arise a duty for a Tribunal to make relevant inquiry, notably where the inquiry is an obvious one, and also where such inquiry about a material fact is easily ascertained.  SZIAI at [25].[8]

   [6] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

   [7] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.

   [8] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

2. In broad terms, and in the light of the Tribunal’s reasons, the evidence from the Transcript of the hearing before the Tribunal, and the principles to which I have just referred, in my view there are four areas of inquiry that are required in order to consider and dispose properly of the current Application:

   (a)the conduct of the hearing before the Tribunal, the evidence given by the Applicant before it and the Tribunal’s consideration of it;

   (b)the adequacy of the Tribunal’s reasons in the sense of disclosing the Tribunal’s process of reasoning and its process of properly “weighing the evidence”;

   (c)the Tribunal’s responsibility to make reasonable inquiry; and

   (d)the Tribunal’s application of cl.572.223 regarding satisfaction of adequate health insurance.

3. The matters comprehended by (a) and (b), in my view, may more appropriately be considered in the light of the acknowledged statutory responsibility of the Tribunal properly to consider the evidence before it, and to ensure that matters reasonably raised by the Applicant are addressed, accepting that a Tribunal is not required to detail and consider each and every aspect of an Applicant’s claim.[9]

   [9] See, for example, the comments by the High Court in Yusuf at, among other places, [68].

4. Earlier in these reasons I outlined certain matters that are plainly recorded in the transcript of the hearing before the Tribunal.  Among other things, I recorded particular instances where the Applicant raised with the Tribunal his financial support as coming from his cousin via his brother’s bank account.  It is clear that the Applicant provided the Tribunal with relevant details of that account; it is also demonstrably clear that the Tribunal did not keep that material (although it acknowledged that the bank from which the information came was “a good bank” - HSBC), and gave advice about the Applicant providing the financial advice in proper and or better form – and gave a time-frame within which this was to occur.  However, in the Tribunal’s decision, there is nothing except passing reference to the discussion that took place, and clearly no outline or “weighing” of it, during the hearing and the information that was then provided by the Applicant.  At [15] of its reasons, the Tribunal simply stated (speaking of the financial capacity of the Applicant):

   The same issue arose before the Tribunal and the matter was discussed with the Applicant at the hearing and in a letter prior to the hearing.  The Applicant’s response has been to submit a bank statement without comment.  There is no apparent evidence from that statement or any other source that the Applicant had access to those funds or that he now has access to funds for the purposes of undertaking further study.  The Tribunal has formed the view that the Applicant has had sufficient time and opportunity to provide the evidence required of him regarding his ability to satisfy the financial capacity requirements and it finds that he has not provided sufficient evidence to indicate that he does satisfy those requirements.

5. What is also of some concern is that among the documents provided to the Court in relation to the current Application are what are described as “DIAC case notes – various”, which are found at CB 50-59.  Among those Departmental records is a note, dated 6^th October 2011 (CB 56-57).  It records, among other things, that the Applicant “Meets 5A “Eng lang proficiency”, and “Meets 5A “financial capacity”.  The same notes also record that the Applicant is [still] required to show what I assume to be funding requirements to meet a sum of $32,700 for tuition fees and cost of living.  I mention these matters for two reasons.

6. First, these records confirm that the Applicant had a history of study and liaison with the Department, based on transcript records since 2007 and 2008, and from Departmental notes, since 2011, in relation to the same kinds of requirements that were before the Tribunal in November 2013.  It is unclear from the Transcript whether the Tribunal either was aware of them and or relevantly had been provided with the Applicant’s documented history with the Department.  Given how the Tribunal asked the Applicant during the so-called hearing in November 2013 about his IELTS results, it would seem reasonably clear that the Tribunal either did not have the Departmental file and or that it had not been read.  I should also observe that, accepting that the Tribunal is not bound by rules of evidence and the like, the transcript of the November 2013 hearing, compared to many others that have been read over the years, was discursive and often (in my view) somewhat rambling to the point of being mis-leading because a non-native English speaking person might be confused by what was accepted, what was not accepted, and what further matters required attention.  Often-times, the Tribunal seemed to agree with the Applicant, but then later back-tracked.  It resembled, in a number of respects, like either a committee meeting and or the Tribunal meeting with a client to whom it was, at times, giving advice.  In the Court Book, there is no evidence or record that the Tribunal wrote to the Applicant to confirm what was required of him and the time frame within which information was required.[10]

   [10] At CB 210, there is a note by the Tribunal, after the hearing concluded, which records that the Applicant is to provide “information … in writing by 2 January 2014.”

7. Secondly, the records in the Court Book, without knowing if they are the complete records but presuming that they are not and only a sample of what was/is deemed relevant to the current Application, at least suggest that relevant records were not difficult to obtain from the Department regarding the Applicant.  If this be the case, and it seems a more than reasonable inference that it is, then in my view, those records should have been made available to the Tribunal, and or the Tribunal should have made an inquiry of the Department for them.  Either way, there is no reference in the Tribunal’s very brief reasons that the Tribunal (a) considered any relevant Departmental records, and or (b) made such inquiry about them.  In my view, in accordance with authority, such an inquiry arose out of the matters traversed with the Applicant during the hearing in November 2013.

8. In SZIAI, at [25], the High Court said (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (internal citations omitted; emphasis added):

   Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

9. In my view, the principles set out by the High Court in SZIAI regarding “failure to make inquiry” are on display here.  The issues of financial capacity and health insurance (among other things) were canvassed over a period of time during the hearing with the Applicant.  As earlier noted, in my view, there is no reference or indication in the Tribunal’s very brief reasons that the Tribunal (a) considered the records of the Department (which presumably would have been easily obtained if not already with the Tribunal), and or (b) made any relevant inquiry about them. 

10. Contrary to the First Respondent’s submissions, the central criterion upon which the Tribunal made its decision was the Applicant’s lack of financial capacity, making this a critical fact to the outcome of the Application.  Moreover, the Tribunal seemed at times (e.g. see par.14 of its reasons) to conflate the separate requirements of financial capacity and health insurance.  And indeed, ultimately, the Tribunal made no formal decision in relation to health insurance.

11. Failure to make such inquiry, in my view, further led to the Tribunal not “weighing” the evidence which the Applicant put before the Tribunal either in November 2013 and or in the documents later put before it.  In relation to both dimensions of the Applicant’s evidence, the Tribunal dismissed it all as either a document provided without comment, and or that the Applicant had had sufficient opportunity to provide evidence in proper form.  There was little or no “weighing” of evidence at all.  It was a blanket dismissal.

1. The same comments may be made in relation to the information provided by the Applicant during the hearing, and in early January 2014, regarding health insurance.  Again there was no reference in the Tribunal’s reasons to the discussion with the Applicant, or to the information provided, during the hearing, and subsequent to it, by the Applicant.  In this regard, I simply note that at CB 213, there is a copy of a receipt, dated 6 January 2014, from Medibank, which has written on it the Applicant’s case number before the Tribunal.  In the light of the discussion with the Tribunal in November 2013 and the advice given to the Applicant at that time, in my view, as difficult as it regularly is in dealing with self-represented litigants, and given what I consider to have been a quite discursive “hearing” that rambled across a range of matters, the Tribunal at least had a case reference number provided with the documents in early January 2014, as well as the transcript from the hearing on 27^th November 2013 with which it could, so to speak, “join the dots.”  In my view, it made no relevant attempt to do so.

2. Moreover, at the hearing before the Tribunal, the Applicant was specifically directed by the Tribunal not to provide any further unnecessary documents which, given the discussion at the hearing, could reasonably include any cover letter of explanation.

3. In circumstances where both bank statements and information regarding health insurance were required by the Tribunal, again I note that it is concerning that there is no evidence of these documents (or this evidence) being requested from the Applicant by the Tribunal in writing after the conclusion of the hearing.

4. In any event, in its reasons, again there was no reference to the earlier discussion and the advice given by the Tribunal to the Applicant at the hearing.  The Tribunal’s reasons do not disclose any “weighing” of the evidence on 27^th November 2013 with the subsequent evidence, limited as it was, in early January 2014.

5. As the Full Court said in MZYTS, at [50]:

   … The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given.

6. Certainly, to borrow a description of Robertson J’s in SZRKT, at [119] (admittedly in a different context), in the Tribunal’s exercise of its statutory obligations to form the requisite state of satisfaction in relation to the Application before it, there was no “nuanced approach” to the questions and evidence before it.[11]

   [11] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.

7. In MZYTS, at [49], the Full Court said (emphasis added):

   … Representing as it does what the Tribunal itself considered important and material, what is present – and what is absent – from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf at [10], [44], [69].

8. In the current matter, in my view, it is very much what is absent from the Tribunal’s reasons that founds the success of the Application.

9. In sum, in my view, the Tribunal failed to form the requisite state of satisfaction (one way or the other) required for the purposes of the review because it (a) failed to make inquiry of the Department regarding the student visa history (including financial and health insurance history) of the Applicant (such inquiry being, in my view, both obvious and easily ascertained), and (b) failed to weigh one piece of evidence against another (namely, the Applicant’s evidence before the Tribunal in November 2013, his documentary evidence in January 2014, and the documentary evidence available from the Departmental file).  The Tribunal’s reasons proceed more by way of declaratory statements than a weighing of evidence; and notably, there is no reference anywhere in its reasons to the wide-ranging discussion between the Tribunal and the Applicant on 27^th November 2013.  A passing reference to matters having been “discussed with the Applicant at the hearing”, without more, is, in my view, insufficient.  The “content” of those discussions, even somewhat summarily stated, should have been outlined in its reasons.  Without it the Court has no way of knowing precisely how the Tribunal came to form the view that it did.  The Court may be able to guess at that process; but that is not what Courts should have to do, nor should they ever do so.  The Tribunal’s reasons, as the High Court and the Full Court of the Federal Court have made clear many times, need to outline the evidence relied upon by the Tribunal, and the reasoning process undertaken in arriving at its decision.  Proper process in conformity with its statutory obligations “to form a state of satisfaction (one way or the other) required for the purposes of the review” (MZYTS at [46]) was not followed by the Tribunal in relation to this Application.

10. For these reasons, the Applicant should have the relief he seeks by way of (a) a writ of certorari to bring the decision of the Tribunal into this Court in order for it to be quashed and (b) a writ of mandamus for the Tribunal to determine the matter according to law.  There should also be an order for costs in the Applicant’s favour, either as agreed or taxed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:     15 July 2016