ATRI v Minister for Immigration
[2018] FCCA 2339
•23 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATRI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2339 |
| Catchwords: MIGRATION – Student visa – applicant not currently enrolled in course of study – grounds of review not made out – Tribunal’s use of records in PRISM database – whether information in database was information that would be the reason or part of the reason for affirming the decision under review – whether information exempt for operation of s 359A(1) by reason of exemption provided by s 359A(4)(b) that information was information that the applicant gave for the purposes of review – construction of s 359A contended for would defeat object and purpose of obligation to provide information – obligation to provide information not complied with – availability of relief – applicant could not have demonstrated that he had been enrolled in course at time of decision – inutility of relief – application refused. |
| Legislation: Acts Interpretation Act 1901 (Cth), s 15AA Migration Act 1958 (Cth), ss 29, 30, 31, 65, 359A, 359AA, 360, 476 Migration Regulations 1994 (Cth) Sch 2 cl 573.22, 573.222, 573.223, Sch 5A |
| Alcan (NT) Alumina Pty Ltd v Commissioners of Territory Revenue (NT) (2009) 239 CLR 27 Arefin v Minister for Immigration and Border Protection [2016] FCCA 658 BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 HFM043 v The Republic of Nauru [2018] HCA 37 Kaur v Minister for Immigration and Border Protection (2016) 245 FCR 296 Kiran v Minister for Immigration [2016] FCCA 2021 Minister for Immigration and Citizenship v SZIZO [2009] HCA 37 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Mushke v Minister for Immigration and Border Protection [2016] FCCA 897 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Shahi v Minister for Immigration and Citizenship [2011] HCA 52 Shrestha v Minister for Immigration and Border Protection [2018] HCA 35 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZUXO v Minister for Immigration and Border Protection [2016] FCA 1399 |
| Applicant: | KANAV ATRI |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 116 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 26 June 2017 |
| Date of Last Submission: | 26 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 August 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Brown |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 21 January 2016 be dismissed.
The applicant pay the costs of the first respondent fixed at $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 116 of 2016
| KANAV ATRI |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 21 January 2016, judicial review is sought of a decision of the then Migration Review Tribunal (Tribunal) made on 5 January 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (Act).
Background
The applicant is a male Indian national aged 29 years.
On 24 April 2012, the applicant was issued a second Student (Temporary) (Class TU) visa. On 3 October 2013, the Department of Immigration and Border Protection gave notice to the applicant of its intention to consider cancellation of the visa.
On 25 February 2014, the Department gave notice that it would not cancel that visa with the result that the applicant’s current visa would remain valid until 15 March 2014.
On 14 March 2014, the applicant applied for a third Student (Temporary) (Class TU) visa in which he stated that he had previously studied in Australia for an Associate Degree in Engineering from 2008-2011. He further stated that he intended to complete a Batchelor of Business (Accounting) at Cambridge College and then to leave Australia in February 2017. A certificate of enrolment, created on 24 February 2014, indicated that the tuition fee payable for this course of study was $46,500.
On 18 March 2014, the Department wrote to the applicant requesting that he supply documentary evidence of his ability to meet the financial capacity requirements of his visa application, together with documentation satisfying the criteria stipulated by Sch 5A to the Migration Regulations 1994 (Regulations).
On 23 April 2014, the applicant requested an extension of time within which to provide such evidence. In the event, the applicant did not provide the evidence requested of him at any stage.
On 29 May 2014, a delegate of the Minister refused the visa application upon the substantive ground that the applicant did not meet the criteria stipulated by cl 573.223 of Sch 2 to the Regulations. In particular, the applicant did not satisfy the English language proficiency requirements stipulated by Sch 5A to the Regulations.
The decisional record stated that as the applicant had failed to provide the requested documents, the delegate could not be satisfied that the applicant met the criteria in cl 573.223(2) of Sch 2 of the Regulations and as a result his visa application must be refused.
On 18 June 2014, the applicant applied to the then Migration Review Tribunal for a review of the delegate’s decision.
On 25 June 2014, the applicant lodged a submission with the Tribunal explaining the circumstances in which he had not responded to the request made on 18 March 2014 for the provision of information. In addition, the applicant supplied a number of documents.
On 1 December 2014, the Tribunal wrote to the applicant inviting him to appear at a hearing scheduled for 14 January 2015, where he might give evidence and present arguments relating to the decision under review. The letter requested that the applicant furnish an array of documents, including a copy of his certificate of enrolment for his course of study.
By letter dated 28 October 2015, the Tribunal invited the applicant to attend a further hearing scheduled for 5 January 2016 before a differently constituted Tribunal. The letter stated in part:
Additionally, please provide this information at least 10 working days before the hearing so that a decision can be made as quickly as possible:
(1) A copy of your current certificate of enrolment (COE) as required for the grant of a student visa. (Emphasis in original)
Thus the applicant was afforded more than twelve months’ notice of the requirement that he provide a copy of his current COE and, by two requests, reminded that he should do so.
A document created on 24 February 2014 and updated on 30 May 2014 identified that the applicant had enrolled at Cambridge International College in a Bachelor of Business (Accounting), with a course start date of 24 March 2014 and a course end date of 25 December 2016.
Included in the documents available to the Tribunal at the second hearing was a record obtained from the Provider of Registration and International Student Management System (PRISMS). This contained a course history of the education that had been undertaken by the applicant in Australia from 27 June 2007 to 24 March 2016. Relevantly, the PRISMS data indicated that:
a)the applicant had been enrolled, but cancelled his enrolment, in five courses of study between 30 June 2009 and 24 March 2014;
b)the applicant’s enrolment in the Bachelor of Business (Accounting) had been cancelled for non-payment of fees;
c)the cancellation of his enrolment in the Bachelor of Business (Accounting) occurred on 1 July 2015.
On 4 January 2016, the applicant wrote to the Tribunal seeking to adjourn the hearing scheduled to take place on 5 January 2016.
On the same date, the Tribunal sent the applicant an email, advising that it was not prepared to postpone the hearing and stated in part:
…the Tribunal is not prepared to postpone tomorrow’s hearing. You were advised of this hearing over 2 months ago and therefore you have had a very long period in which to gather ALL of the requested and necessary evidence.
If you wish to travel to see your parents you should do so . . . after the completion of the hearing at 5pm tomorrow.
On 5 January 2016, the Tribunal conducted a hearing which was attended by the applicant who gave evidence to the Tribunal. On that date, it announced its decision to affirm the decision under review. On the same date, the Tribunal wrote to the applicant, confirming that an oral decision had been given and provided a written record of the outcome of the review and informed the applicant that he could request a written statement of the decision and that reasons be provided.
The decision of the Tribunal made on 5 January 2016 was that:
The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.
The reasons of the Tribunal are stated in nine paragraphs and relevantly, the Tribunal’s decision and reasons were as follows:
(1)-(2) . . .
(3)The issue before the delegate was whether the applicants (sic) satisfied the Schedule 5A requirements. However the issue now before the Tribunal at the time of decision, is whether the applicant meets the enrolment requirements for a student visa.
(4)With limited exceptions the 570, 571, 572, 573 and 574 visas all require that at the time of decision an applicant must be enrolled in, or be at the subject of a current offer of enrolment in a course of study that is a principal course, and is the type specified under r.1.40A for the subclass at the time of the application.
(5)There is no evidence before the Tribunal that [the applicant] is an eligible higher degree student as defined in the Regulations or an eligible university exchange student or an eligible non-award student for the purposes of Subclass 575.
(6)There is no evidence before the Tribunal that the applicant is now enrolled or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.
(7)There is no evidence that the applicant meets the criteria for either a Subclass 576 ((AusAID) or (Defence Sector) or subclass 580 (Student Guardian) Visa, the remaining subclasses of Class TU. …
(8)For these reasons, the decision under review must be affirmed.
Decision
(9)The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (class TU) visa. (Emphasis added)
The Tribunal published its reasons on 15 February 2016.
Procedural History
On 21 January 2016, the applicant filed an application for judicial review of the Tribunal’s decision. By his application, the applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the decision of the Tribunal made on 5 January 2016.
The applicant affirmed an affidavit in which he restated his grounds of review and exhibited a copy of the Tribunal’s decision. In addition, the applicant exhibited a document entitled ‘Grounds of Application’.
By a Response filed on 29 January 2016, the Minister contended that the application for judicial review should be dismissed on the ground that the Tribunal’s decision was not affected by jurisdictional error.
On 21 June 2016, orders were made, by consent, that the application be listed for hearing. By this order, the applicant was afforded an opportunity to file an amended application, any additional grounds of review, together with any further affidavits and written submissions in support of his application. The applicant did not do so.
However, the ‘Grounds of Application’ exhibited to the applicant’s affidavit may be treated as particulars of the grounds of review.
Judicial review
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2); Plaintiff S157/2002 v Commonwealth.[1]
[1] (2003) 211 CLR 476.
Subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to travel to, enter or remain in Australia: s 29. A visa to remain in Australia for a specified period is one form of temporary visa: par 30(2)(a). By sub-s 31(3), the Regulations may prescribe criteria for a specified class. Certain criteria for a student visa are those set out in Part 573 of Sch 2 of the Regulations.
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[2] Minister for Immigration and Citizenship v SZMDS.[3] If the criteria for the grant of a protection visa are satisfied, the decision-maker must grant the application. If not so satisfied, the visa application must be refused.
[2](2004) 78 ALJR 992, [37]-[38].
[3](2010) 240 CLR 611, [40], [102].
By para 65(2)(b) of the Act, the decision-maker is required to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied.[4]
[4]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
As the applicant was self-represented on the hearing of the application for judicial review, I have re-examined the Reasons, his visa application and the other materials comprising the Court Book.
Ground 1 – decision ‘out of jurisdiction’
As the Grounds of Application exhibited to the applicant’s affidavit repeated the grounds of review in the application, it is sufficient to address the matter by reference to the exhibit. Ground 1 stated:
The decision made by MRT was out of their jurisdiction:
My student visa subclass 573 was refused by DIAC on the grounds that I was not (sic) unable to provide the financial documents and the English language proficiency document on time. On my first MRT hearing on the 15/01/2015, I was requested by the case officer to provide all the missing documents which I did and despite that, I was requested to attend a second hearing after a long gap of 9 months scheduled for 10/01/2016 with a new case officer as the member dealing my case was no longer available. MRT at this time refused to grant me a VISA, not because of the financial documents which was the main cause of my VISA refusal but for not having a current COE [certificate of enrolment] which was not required during that period as I was not a holder of a student Visa but was instead on bridging visa A. I wasn’t sure if I was going to be granted a student visa by the MRT hence decided to wait until the decision was made and I was asked to get a COE as in case if it was refused my tuition and semester fee was non-refundable.(Emphasis added)
The particulars to Ground 1 identify two complaints: (1) delay in the conduct of the application; (2) the decision to not enrol in his course of study was made by reason that the tuition fees were non-refundable.
The Minister accepted that there were circumstances in which an undue delay in decision-making could constitute procedural unfairness, citing NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 (“NAIS”). In NAIS, the Court held, by majority, that procedural fairness amounting to jurisdictional error could occur by reason of delay in the making of a decision upon a merits review of an administrative decision. In that appeal, a Tribunal had conducted hearings in 1998 and again in 2001 but had not made a decision until 2003. Gleeson CJ, with whom Kirby J agreed, held that in the circumstances of that case, the delay created a real and substantial risk that the Tribunal’s capacity to assess the applicants’ evidence and evaluate their claims was impaired such that they had been denied a fair hearing. Callinan and Heydon JJ held that a denial of procedural fairness could spring from both the denial of an opportunity to present a case and the denial of the opportunity to consider it. Gummow J was not prepared to infer that the delay in or of itself had impaired the Tribunal’s ability to fulfil the function of reviewing the decision. Hayne J, dissenting, considered that as it was not possible to say when or how the Tribunal had made its assessment of the evidence, it could not be said that the Tribunal had not received the evidence in a way that it could be fairly assessed.
The reasoning in NAIS has been frequently accepted by later authority: see, e.g. Shahi v Minister for Immigration and Citizenship [2011] HCA 52, [28] (French CJ, Gummow, Hayne and Bell JJ); Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, [45] (per curiam); Minister for Immigration and Citizenship v SZIZO [2009] HCA 37, [24] (French CJ, Gummow, Hayne, Crennan and Bell JJ).
The delay complained of in this case was nine months. Further, in this case the Tribunal invited the applicant to attend a second hearing and made an oral decision at that hearing. There was no relevant delay in the period between the hearing and the decision. For that reason, it could not be said that the Tribunal’s ability to make an assessment of the application was impaired by reason of any delay. The Tribunal’s decision was grounded upon a finding that the applicant had no current enrolment in a course of study. Any delay in the matter did not create a risk that the Tribunal’s capacity to assess the applicant’s evidence or evaluate his claims had been or would be impaired.
As concerned the second complaint, the applicant explained his non-enrolment in his accounting degree at Cambridge College and the cancellation of his enrolment in that course on 1 July 2015 as being attributable to his decision not to do so by reason that the tuition fees were non-refundable.
The applicant had been put on notice by letters dated 28 October and 1 December 2014 respectively that he was required to provide to the Tribunal a copy of his current certificate of enrolment and evidence of current enrolment as required for the grant of a student visa. The applicant provided no such evidence to the Tribunal, and for that reason it was open to the Tribunal to find that the applicant did not satisfy this requirement of his visa application.
Clause 573.22 of the Regulations concerns the subject Criteria to be satisfied at the time of decision and comprises cll 573.221 – 571.234. Subject to exceptions which are not presently material, the applicant was required by para 573.222(1) to provide the Minister with a certificate of enrolment relating to his course of study.
The applicant was invited to attend before the Tribunal to give evidence and present arguments relating to the decision under review. He was requested on two occasions to produce his current certificate of enrolment. The Grounds of his Application demonstrate that the applicant consciously decided not to maintain his enrolment in his proposed course of study as he knew his tuition fees would be non-refundable if he was unable to complete his study. The applicant had not established the factual circumstance relevant to the criteria applicable to his visa and so the Tribunal could not be satisfied that the criterion prescribed by para 573.222(1) was met. By operation of para 65(2)(b), the Tribunal was obliged to affirm the decision to refuse the visa application.
Ground 1 is rejected.
Ground 2 – error by delegate
The Grounds of Application exhibited to the applicant’s affidavit stated:
Error made by my Case Officer at DIBP:
I was advised by my case officer at DIBP that I will need to show the financial documents for 24 months as I am on assessment level 4. Where as I was never on assessment level 4 but have always been on assessment level 3. As per my assessment level financial requirements for me were only 12 months and not 24 months. The case officer accepted that the finances requested on 18/03/2014 were calculated taking assessment level 4 into consideration which was incorrect. He accepted that I was on AL3 and as such required to provide evidence for funds for the first 18 months. As my tuition fee is a part of an education loan this created a lot of misunderstanding which ultimately delayed the process.
As the delegate’s decision to refuse the visa application was a decision that was reviewable under Part 5 of the Act, it was a primary decision within the meaning of para 476(3)(a). The Federal Circuit Court has no jurisdiction to review a primary decision: para 476(2)(a).
The Minister further submitted that the error was one that had been made and corrected before the delegate reached a decision. In this regard, I was taken to a letter dated 18 March 2014 from the Department of Immigration and Border Protection to the applicant which stated that the applicant was required to provide evidence of his financial capacity to support himself to level AL4. By an email dated 9 April 2014, the applicant contended that the relevant level of financial capacity which he was required to meet was not AL4, but instead AL3. The applicant requested that the delegate consider that aspect further. On the same date, the delegate responded to the applicant, conceding that the reference to meet a financial capacity requirement at level AL4 was incorrect and further stated:
You are AL3 and as such you are required to provide evidence of funds for first 18 months . . .
The Minister correctly submitted that the complaint with respect to the error in the financial capacity classification played no part in the delegate’s decision. In any event, the delegate’s decision is a primary decision in respect of which this court has no jurisdiction.
Ground 2 is rejected.
Ground 3 – delegate’s failure to respond to email
Ground 3 of the application stated:
No Response of email sent to the Case officer regarding documents pending.
The Grounds of Application exhibited to the applicant’s affidavit stated:
No response from the case officer regarding an extension of date to provide documents:
After all the misunderstanding created because of an incorrect and misleading email regarding the financial documents by my case officer and other family related issues which couldn’t be ignored I requested my case officer to grant me an extension on the date to provide all the documents that he requested. There was no response from his side and the only email I received after was the one with my student visa refusal.
For the reasons stated in [43] above, the Federal Circuit Court has no jurisdiction to in respect of the matter complained of.
Ground 3 is rejected.
Compliance with s 359A
The Minister drew attention to a matter that was not raised by the applicant but had been identified and ought to be considered by the Court. The Minister submitted that although it was not referred to in the Reasons, the Tribunal had, in fact, considered information contained in the PRISMS record when determining that the applicant was not currently enrolled or subject to a current offer of enrolment.
By s 359A(1), subject to sub-s (2) and (3), the Tribunal was obliged to give the applicant clear particulars of any information that it considered would be the reason, or a part of the reason, for affirming the decision under review. This obligation is not absolute and is not engaged, for example, where an applicant is given such particulars orally by the Tribunal in the course of a hearing and invited to comment upon it: s 359AA. Section 359AA applies where an applicant has been invited pursuant to s 360 to appear before a Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. By s 359AA(1), the Tribunal may orally give an applicant clear particulars of such information. If it does so, the Tribunal must comply with para 359AA(1)(b)(i)-(iv) which contain a series of cumulative obligations to be observed by the Tribunal.
Before the Tribunal hearing, the applicant was not given the PRISM records. However, he was given a s 360 invitation and did appear before the Tribunal. While information contained in the PRISM’s records was put to the applicant in the course of the hearing, it was not submitted that the Tribunal had complied with the cumulative obligations cast upon the Tribunal by para 359AA(1)(b)(i)-(iv).
The Minister produced a supplementary court book, being a transcript of the proceedings before the Tribunal, from which it is apparent that the applicant had been questioned at some length in relation to his enrolment in particular education courses. In the course of his evidence, the applicant said that he was still studying at Cambridge College. Questioned further, the applicant admitted that he did not have evidence that he was currently engaged in study.
On further questioning, the applicant also agreed that, by reason of non-payment of fees, his enrolment at Cambridge College had been cancelled with effect from 1 July 2015. He also confirmed that in the eight year period he had been living in Australia he had completed only one year’s study in a two year course.
The transcript records the applicant’s explanation for having not provided the documents in response to the requests of the Tribunal. While accepting that he had not provided the documents requested of him, he stated that:
I just read the first page where there was, like, the invitation for the hearing and that it was 2 pm. I did not scroll down, I did not read it. That was my bad.
The last hearing – when I was invited for last hearing and when they asked for the documents I submitted all the documents on time, I even replied, that I will be attending the hearing remember, this time I do not know what happened, I was just, I did not even scroll down . . .
This evidence stands in contrast with the two requests for the applicant to supply his current certificate of enrolment.
It is plain that the Tribunal raised with the applicant information that was derived from PRISMS, including that his enrolment in the Bachelor of Business (Accounting) had been cancelled on 1 July 2015.
A failure to put PRISMS records to an applicant may constitute a failure to provide information within the meaning of, and so breach the requirements of, s 359A: Kaur v Minister for Immigration and Border Protection (2016) 245 FCR 296 (“Kaur”). In Kaur, Perry said at [44]:
The fact that the evidentiary material was used by the Tribunal as, in effect, “proof of a negative”, that is in support of its finding that there was an absence of evidence in the appellants’ favour, did not exempt the Tribunal from complying with s 359A and affording the appellants an opportunity to comment on the adverse evidentiary material.
As here, the PRISMS records in Kaur were concerned with proof that the applicant was not enrolled in any course of study.
Whether the circumstances of similar cases engage ss 359A-359AA is a fact specific inquiry: BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, [24]; SZUXO v Minister for Immigration and Border Protection [2016] FCA 1399 [31]-[33].
The circumstances of Kaur make plain that the failure to provide the PRISMS records, or to invite the applicant to comment on or respond to those records occurred because the applicant had not appeared at the Tribunal and so, had not been given clear particulars of those records or offered an opportunity to comment on them. The facts of Kaur are entirely distinguishable from the present case. Here the information contained in the PRISMS records was raised directly with the applicant and he was afforded an opportunity to comment on it. He in fact did so. The applicant’s candid response was that he had not paid the fees because those fees were non-refundable. His enrolment in his further course had been cancelled with effect from 1 July 2015.
The Minister properly accepted that, as the PRISMS records constituted information that was specifically about the applicant and was not given to the Tribunal by him personally but had been accessed by the Tribunal itself, those circumstances engaged an obligation under s 359A(1) to invite the applicant to comment on or respond to, that information. As noted, it was not submitted that the Tribunal had complied with the cumulative requirements of para 359AA(2)(i)-(iv). Instead, it was submitted that the obligation to provide the applicant with clear particulars of that information was not engaged as the exception created by s 359A(4) of the Act applied having regard to the evidence which was given to the Tribunal. Sub-section 359A(4) reads:
(4) This section does not apply to information:
(a) . . .
(b)that the applicant gave for the purpose of the application for review; or
(ba)-(c) . . .
It was submitted that a number of decisions in this Court have held that para 359A(4)(b) applies in cases where a visa applicant has admitted or confirmed that they do not hold a current certificate of enrolment.
I was referred to Arefin v Minister for Immigration and Border Protection [2016] FCCA 658 (“Arefin”) where Driver J at [27] distinguished Kaur on the basis that the Tribunal had not relied upon the information contained in the PRISMS database but had instead relied upon the applicant’s admission that she had no current certificate of enrolment. Without questioning the correctness of that conclusion, the decision does not stand as authority for the proposition advanced. In particular, the scope or operation of para 359A(4)(b) was not raised before his Honour. The issue presented in this case was not discussed.
I was also referred to Mushke v Minister for Immigration and Border Protection [2016] FCCA 897 (“Mushke”) where Harland J at [16]-[17], in an ex tempore decision, accepted a submission as set out at [62] above. Again, no consideration was given to para 359A(4)(b).
My attention was not, however, drawn to the later decision in Kiran v Minister for Immigration [2016] FCCA 2021 (“Kiran”) in which Kaur, Arefin and Mushke were considered. That Kiran was not referred to in the Minister’s written submissions may be explained by the fact that those submissions post-dated that decision by a matter of days. In Kiran, Lucev J held:
In this case it is not apparent as to whether the Tribunal had regard to the PRISMS records of the cancellation of the first applicant’s enrolments, but, in any event, it is immaterial given the first applicant’s confirmation at the Tribunal Hearing that she was not currently enrolled in a course and had no current confirmation of enrolment.
Nothing in the reasoning of his Honour indicates that the holding was reached on the basis that the information contained in the PRISMS database was exempt from the operation of s 359A(1) or was information that fell within the ambit of para 359A(4)(b).
None of Arefin, Mushke or Kiran appear to have been the subject of further consideration. Kaur has been cited on many occasions.
Although the Tribunal discussed the information contained in the PRISMS database with the applicant in general terms at the hearing, it was not submitted that there had been strict compliance with each of the distinct requirements enumerated in para 359AA(b)(i)-(iv). The matter before me proceeded on the basis that the avenue which denied the application of s 359A(1) was that the ‘information’ was exempted from its operation by para 359A(4)(b).
In my opinion, it would be a significant step to read the scope of the para 359A(4)(b) expansively so as to exempt information falling squarely within s 359A(1) merely because an applicant had later admitted or conceded to knowing or holding the same information. The clear purpose of s 359A(1) is to impose a mandatory obligation on a Tribunal to give the applicant clear particulars of any information that it considered would be the reason, or a part of the reason, for affirming the decision under review. By contrast, the work to be done by para 359A(4)(b) is to exempt from s 359A(1) an obligation to disclose to an applicant, information that the applicant has himself or herself given to the Tribunal for the purposes of the review.
In my opinion, the circumstance that the same information might fall within both s 359A(1) and the exemption in para 359A(4)(b) should not be permitted to distract attention from the distinct nature of those provisions. Sub-section 359A(1) imposes a significant obligation on a Tribunal to give an applicant clear particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision under review. To give the phrase ‘would be’ in s 359A(1) a prospective operation would mean that the obligation was engaged immediately upon a Tribunal holding information that answered the description of information that would be the reason, or a part of the reason, for affirming the decision under review. It would subvert the object and purpose of s 359A(1) to give the phrase ‘would be’ a construction that meant the obligation was not engaged where a Tribunal later found itself able to conclude that the information did not meet the requisite description only by reason that it had, by then, recourse to the same information from some other source. If, for example, the same information later emerged from the applicant’s evidence, this would, as the argument ran: (1) obviate the need to use the information derived from the original source; (2) retrospectively remove an obligation under s 359A(1) that had crystallised at the moment the Tribunal obtained that information. In my opinion, once the obligation imposed by s 359A(1) is engaged, it would be contrary to the purpose and object of that provision to read the exception in par 359A(4)(b) as disengaging what is a presently existing mandatory obligation. It would also apparently have a correlative effect upon the parallel obligations that are imported by s 359AA.
It would also be contrary to the objects and purposes of the Act if the Tribunal could be placed in a position where, in effect, it could suspend the making of decisions on whether to: (a) disclose the information to an applicant; (b) ensure that the applicant understood why it was relevant; (c) allow the applicant the opportunity to comment upon and respond to it, until all the evidence was in. An applicant is to be afforded an opportunity to present evidence and make arguments in relation to the decision under review. These opportunities may be diluted where information which would be the reason or a part of the reason to affirm the decision under review was held by a Tribunal but not supplied and not made the subject of an invitation for comment or response by the applicant until after the Tribunal hearing.
The task of statutory construction is to ascertain the meaning of the words as employed in that statute: HFM043 v The Republic of Nauru [2018] HCA 37, [24] (Kiefel CJ, Gageler and Nettle JJ). I decline to construe para 359A(4)(b) as giving the exemption which it contains the wide effect which was contended for in this case. Instead, a broad construction of the mandatory obligation contained in s 359A(1) is to be preferred. Such a construction would best achieve, and harmonise, the objects and purposes of the Act: see s 15AA, Acts Interpretation Act 1901 (Cth); Alcan (NT) Alumina Pty Ltd v Commissioners of Territory Revenue (NT) (2009) 239 CLR 27, [47]; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, [69].
It follows that I consider the Tribunal did not discharge its several obligations to the applicant in relation to the PRISMS records conformably with the mandatory obligations imposed by s 359A(1).
Inutility of relief
Despite the error on the part of the Tribunal identified above, the grant of relief may be denied on discretionary grounds where it would be inutile to do so: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, [28]-[29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [88] (Kirby J), [91] (Hayne J).
In the present context, Kaur is instructive as to the consequence of a failure to comply with s 359A. Perry J concluded that the applicant would be denied relief because it would have been pointless to do so in circumstances where the appellant could not have satisfied the statutory criteria for the grant of a Student visa: Kaur at [6], [45]-[47]. A similar conclusion was reached by Lucev J in Kiran, [30]-[31].
I also accept that in this case, notwithstanding a want of compliance with s 359A(1), there would be no utility in the grant of relief. The applicant could not have established the factual circumstance required by reg 573.222(1) that he be currently enrolled in a course of study. His Grounds of Application confirm that he could not have complied with that criterion: cf Shrestha v Minister for Immigration and Border Protection [2018] HCA 35, [10], [30].For that reason, the Tribunal could not have been satisfied that the criteria for the grant of the visa were met and so would have been obliged to refuse the visa application in accordance with para 65(2)(b).
Conclusion
I have rejected each of Grounds 1-3 as advanced by the applicant. Although I have concluded there has been a want of compliance with s 359A(1), for the reasons stated in [74]-[76] above, the application should be dismissed.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Date: 23 August 2018
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