Bandaru v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 913
•19 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bandaru v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 913
File number: MLG 434 of 2023 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 19 September 2024 Catchwords: MIGRATION LAW – application for judicial review –Student visa – whether the Tribunal committed a jurisdictional error in refusing to grant an extension of time for applicant to obtain a confirmation of enrolment – no confirmation of enrolment held at the time of Tribunal hearing – Tribunal’s decision to refuse adjournment has an evident and intelligible basis – no legal unreasonableness – application dismissed with costs Legislation: Migration Act 1958 (Cth), s 363(1)(b)
Migration Regulations 1994 (Cth) cls 500.211 and 500.212
Cases cited: Ding v Minister for Home Affairs [2019] FCA 1036
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of last submission/s: 11 June 2024 Date of hearing: 11 June 2024 Place: Melbourne The Applicant: The applicant appeared in person Counsel for the First Respondent: Ms K McInnes Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 434 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAI TEJA BANDARU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application is dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 1 February 2023, wherein the Tribunal affirmed a decision of a delegate of the first respondent (‘Minister’) not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa (‘the visa’).
BACKGROUND
The applicant is an Indian citizen and arrived in Australia in March 2018.[1]
[1] Court book at pages 17 and 51.
Application for the visa on 4 December 2021
On 4 December 2021, the applicant lodged an application for the visa (‘visa application’).[2] In the visa application, the applicant records that he studied a Masters degree in Australia from February 2018 to November 2019, and that he was the previous holder of a student visa that expired on 9 November 2021.[3]
[2] Court book at pages 1-16.
[3] Court book at pages 9-10.
On 20 December 2021, the applicant received notification from the Department of Home Affairs (‘the Department’) that his visa application was refused.[4] The Department’s decision record provides that the delegate was not satisfied that the applicant met the ‘genuine temporary entrant criterion’ in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). That is, the delegate did not consider that the applicant intends genuinely to stay temporarily in Australia.
[4] Court book at page 22.
Application for review by Tribunal on 9 January 2022
The applicant sought review of the delegate’s decision by the Tribunal by application made on 9 January 2022. The applicant represented himself in the proceedings before the Tribunal.
By letter dated 6 September 2022, the Tribunal invited the applicant to provide further relevant supporting information in support of his application for a visa. The applicant provided information in response to this request.[5] In response to a question about the applicant’s current and proposed study, the applicant said:[6]
I came in Australia to do master in IT. I took admission in ATMC affiliated with University of sunshine coast. I completed 3 semesters and enrolled for 4th semester. Unfortunately, due to COVID problem I couldn’t pay the fee to college and therefore they cancelled my COE. I was depressed due to COVID and financial hardship. I couldn’t study 4th semester however I had to pay the fee to USC which I didn’t use for my study. They refused to give me admission again. After that ATMC and USC separated and due to that I had to continue my study with USC but USC refused to give admission. Unfortunately ATMC couldn’t do anything in this situation and I found myself in trouble. I didn’t have much time. My visa was about to expire. Therefore I took admission in Diploma of leadership management and applied for the extension of student visa, which was refused.
I want to complete Diploma of leadership management and after that remaining part of Master of IT course. I have plan to return to my home country. My parents want me to return only after completion of master degree.
[5] Court book at pages 42-43.
[6] Court book at page 53.
It appears on the material that the applicant completed and returned this form, attaching a Confirmation of Enrolment (‘CoE’) and a letter from ANZ Bank confirming his account balance as at 30 September 2022.[7]
[7] Court book at pages 49-61.
In response to a question about his future plans, the applicant said:[8]
After completion of course I will be looking for job in India and USA as my brother is in USA.
[8] Court book at page 56.
By letter dated 22 December 2022, the applicant was invited to attend a hearing before the Tribunal scheduled for 30 January 2023.[9] Prior to the hearing, the applicant submitted a number of documents to the Tribunal, including a ‘Statement of Purpose’ in which the applicant explained his reasons for coming to Australia and his education pathway. In this document, the applicant set out in some detail how it came to be that he did not complete his initial course, and how he came to be enrolled in a “Diploma of Leadership and Management”. Relevantly, the applicant further stated:
I also finished studying my diploma in “Leadership and Management” on 22/12/2022. I have then applied for admission for my Masters (to finish my final semester) in Melbourne Institute of Technology. The College has accepted my application and has sent me a conditional offer letter to show it to AAT … as proof of admission. The condition from the College was, if I get a positive outcome at my AAT hearing the College is ready to give me an unconditional offer letter/admission to finish my final semester.
My main plan of coming to Australia was to study my Masters, and go back to my country to achieve a good job position for myself while staying close to my parents. All this has been so overwhelming and a big lesson for me. I never had a gap in my academic career until now. And I feel bad for my mistake of not withdrawing in the semester I couldn’t study.
[9] Court book at page 63.
The applicant also submitted his academic records and health insurance information to the Tribunal.[10] Also prior to the hearing before the Tribunal, on 27 January 2023, the Tribunal provided the applicant with a copy of his Provider Registration and International Student Management System (‘PRISMS’) report and Movement Record.[11]
[10] Court book at pages 77-115.
[11] Court book at pages 116-118.
On the scheduled hearing date, correspondence was received by the Tribunal from a registered migration agent indicating their availability to attend the hearing and attaching an ‘Appointment of Representative’ form.[12] The hearing was subsequently adjourned to occur by telephone the following day. This was done at the direction of the Tribunal.[13] On the adjourned date, the applicant and his representative attended by telephone.
[12] Court book at pages 119-122.
[13] Court book at pages 124 and 128.
Shortly after the conclusion of the Tribunal hearing, the Tribunal delivered an oral decision affirming the delegate’s refusal decision.[14]
[14] Court book at page 139.
TRIBUNAL’S REASONS
A written record that the Tribunal had made an oral decision was provided to the applicant by letter dated 1 February 2023. By email dated 3 March 2023, the applicant’s representative requested a copy of the Tribunal’s written reasons for decision. By letter dated 8 March 2023, the Tribunal refused to provide written reasons on the basis that the request for such reasons was not received within 14 days of the date of the oral decision. However, ultimately a transcript of the Tribunal’s decision was ultimately provided. The transcript of the oral decision and reasons given by the Tribunal on 31 January 2023 is produced at pages 148 to 155 of the court book.
The Tribunal commenced its reasons by setting out the relevant background to the matter and confirming the nature of the visa applied for. The Tribunal also records that at the commencement of the hearing, the applicant was asked whether he agreed to the hearing being conducted by telephone, which he did. The hearing was conducted remotely in circumstances where the Tribunal as constituted was located in Queensland, and the applicant was located in Victoria. The Tribunal also noted that the applicant’s representative ‘actively participated’ in the hearing and the Tribunal recorded its satisfaction that the applicant was ‘given a fair opportunity to give evidence and present arguments’ at the hearing before it.[15]
[15] Tribunal decision and reasons dated 31 January 2023 at page 2, lines 8 to 35.
The Tribunal then set out its reasons for concluding that the decision under review should be affirmed. The Tribunal member noted that the issue before it was whether the applicant is enrolled in an approved course of study pursuant to cl 500.211 of the Regulations.[16] Notably, the Tribunal noted that this was different to the issue upon which the delegate considered and determined the matter.
[16] Tribunal decision and reasons dated 31 January 2023 at page 3, lines 1 to 3.
The Tribunal set out the requirements of cl 500.211, namely that the visa applicant is enrolled in a course of study, as defined. Relevantly, the Tribunal member said:
The PRISM database is the principal means by which registered course providers comply with legislative requirements raising to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a confirmation of enrolment, COE, for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of schedule of ‘The Regulations’.
… Producing evidence and current enrolment is a critical first step towards obtaining a Student visa. Such evidence shows that the applicant has, prior to the tribunal making its decision, entered into a legally binding contract with a registered course provider. … An enrolment therefore represents a present and operating commitment by the applicant to complete a course of study. It is persuasive evidence of a tangible and immediate need for a Student visa.
… If clause 500.211 is not met, there is no administrative utility in the tribunal proceeding to consider any further primary criteria.
The Tribunal member then noted that in September 2022, the Tribunal had written to the applicant on more than one occasion noting the need for the applicant to show that he was enrolled in a registered course of study and that he had a current CoE.
The Tribunal also noted that the applicant conceded in the hearing on 31 January 2023, that he did not hold a current CoE.[17] The Tribunal recorded the applicant’s statement that he believed that the conditional offer of enrolment from the Melbourne Institute of Technology was sufficient, in circumstances where the offer was conditional upon him receiving a positive result from the Tribunal.
[17] Tribunal decision and reasons dated 31 January 2023 at page 5, lines 13 to 14.
The Tribunal then addressed the application for an adjournment made by the applicant’s representative, to allow time for an unconditional CoE to be obtained from the relevant educational institution. The Tribunal considered the request for an adjournment but ultimately declined that request. It accepted that the applicant did not appreciate that the conditional offer was not sufficient. It also accepted that the applicant was confused about the issue and thought that the conditional offer would be sufficient for the Tribunal to consider the dispositive issue before the delegate, namely, whether the applicant satisfied the genuine temporary entrant criterion.
Whilst being sympathetic to the applicant’s situation, the Tribunal ultimately considered that the applicant was aware that he had to provide a CoE, did not do so and, whilst he may be confident that if given time, he could do so, there was no guarantee that this was the case.
The Tribunal therefore concluded:
… while acknowledging and being sympathetic to the applicant’s case, [the tribunal] considers that finality in decision-making is required and considers that in all the circumstances the tribunal has allowed the applicant sufficient time to provide evidence, which he knew he had to provide by way of a COE.
The Tribunal concluded that the applicant had been provided with sufficient time to obtain and provide a CoE which he knew was required to obtain a visa and therefore declined to grant the adjournment request.
In those circumstances, and absent a valid CoE at the time of decision, the Tribunal concluded that the applicant did not satisfy the requirements of cl 500.211 of the Regulations.
The Tribunal also considered whether it could act on the conditional letter of offer absent a CoE. It referred to the decision of the Federal Court in Ding v Minister for Home Affairs [2019] FCA 1036 (‘Ding’) at [43], which stated that even if there were an offer of enrolment, it would be difficult to see how that could satisfy a mandatory requirement for proof of enrolment.
For each of these reasons, the Tribunal affirmed the decision under review.
PROCEEDINGS IN THIS COURT
On 15 March 2023, the applicant filed an application for judicial review in this court, together with an affidavit affirmed by him on 7 March 2023 annexing a copy of the Tribunal’s letter dated 1 February 2023 confirming that an oral decision was made to affirm the delegate’s refusal decision.
In his application, the applicant set out the following grounds of review:
1.Decision was not taken in a fair manner. AAT conducted hearing on 31/01/2022 over the phone. I attended hearing over the phone. AAT wanted Confirmation of Enrolment to fulfil the requirement of visa. The college gave me a conditional offer letter that had condition if I receive a satisfactory outcome in AAT hearing the college will give me admission. The college believed the conditional offer letter would be enough as proof of admission. The AAT did not consider offer letter as COE. I requested a week time to submit the COE. College wanted a request from AAT to issue the COE. I assured the AAT member that as soon as the college will know that AAT is ready to approve the visa, they would have issued the COE. The AAT refused to give me time. If AAT would have given me some time, COE would have been issued by the college and I would have submitted the COE to AAT. Unfortunately AAT refused to give me a week time and refused to grant me visa. AAT decided the case on 31/01/2022. AAT affirm the decision and said Tribunal is not satisfied that the applicant did not meet the requirements of student visa. They didn’t give me a week to submit the COE. I don’t see my fault in this case.
2.The AAT has affirmed my case and didn’t give me chance to submit COE to satisfy the requirement of COE. I am a genuine student and my study progress is very good. I have genuine intention to study and complete my chosen course. I really need student visa to complete my study.
3.I request federal court to intervene in this matter and advise AAT to give me chance of another hearing or remit my application to Department of Home Affairs.
4.AAT should have given me chance to submit the COE (confirmation of enrolment).
Notwithstanding orders permitting him to do so, no amended application was filed by the applicant. The applicant did however file written submissions on 22 March 2024 and a further affidavit on 26 March 2024, affirmed the same day. In his written submissions, the applicant sets out the background circumstances to his application to the Tribunal. In essence, the applicant stated that after completing three semesters of his course, he felt homesick and stressed and decided to take a break from study for a semester. When he went to re-enrol, he experienced some difficulties, he says arising from a change in the relationship between the College he was studying at and the affiliated university.
As a result, the applicant then had to find another university in which to enrol to complete his final semester of his Masters program. He experienced some difficulties and given that his then current visa was due to expire, on advice, he applied for and was accepted into a Diploma of Leadership and Management in December 2021.
The applicant said that the Department refused his student visa and he sought a review by the Tribunal. The applicant stated that he attended the Tribunal hearing with a conditional offer to study at the Melbourne Institute of Technology. The applicant further said:
At the AAT hearing, the decision has been affirmed because I do not hold a COE, my new registered migration agent and the college were sure and confident that AAT would consider the offer letter as admission. The condition that said if I get a positive outcome the college is willing to provide me admission, the college put this condition in my offer letter because when my registered migration agent applied for the college admission, I already have the AAT (Administrative Appeals Tribunal) hearing date which is 30th January 2023. Hence the college decided to wait for the outcome, and hence my registered agent and college thought that the offer letter with that condition will be considered as admission. Since they are registered migration agents and registered colleges in Australia, I believe that they know what they are doing.
… If I had the COE, maybe I would have bene granted a visa to complete my masters.
In the hearing my representative … and I have requested the AAT member to grant me a week of time as we know that we would be able to get the COE from the college. My migration agent was confident we will get the COE for sure. …
As a successful academic student, I think that AAT should have given me a week time to submit the COE, considering giving me a week time is not any wrong step according to the law I believe, the AAT member just chose to not give me time because I didn’t had COE, and acted as per LAW. An academic student is not a criminal to not grant me a week of time so he can get the COE. The decision was not taken in a fair manner. I assured the AAT member that we will definitely get the COE within a week.
…
… I do not think it is right to destroy a student’s dream just because he did not have a COE because his migration agent misguided him. I think FCFCA should consider my situation and let me finish my masters.
…
Hearing on 11 June 2024
The matter came before me for hearing on 11 June 2024. The applicant represented himself before me at the hearing and counsel appeared for the Minister.
At the commencement of the hearing, I identified the relevant material before the court and confirmed that the applicant was in receipt of not only his own material but also the material filed on behalf of the Minister. The applicant further confirmed that he sought to rely upon a bundle of documents sent to my Chambers, which the Minister did not oppose to the court having regard to. These documents were marked as ‘Exhibit A’.
I then addressed the applicant about the role of the court in an application of judicial review, namely to consider whether there has been a jurisdictional error in the way that the Tribunal considered his application. I also explained to the applicant that it was not the role of the court to determine whether he should be granted a visa or to consider the merits of his visa application.
Applicant’s oral submissions
After identifying the grounds raised in the applicant’s application for judicial review, I invited the applicant to make any submissions in support of those grounds. Those submissions reflected the applicant’s submissions filed earlier with the court and also the grounds of review in his application.
The applicant stated that at the time of the Tribunal hearing, he was in receipt of an offer letter which set out that if he was successful before the Tribunal, he would receive a CoE. He emphasised that the only barrier to him receiving a CoE was the condition requiring a positive outcome before the Tribunal.
The applicant submitted that if he had been given an extension of one week by the Tribunal, he ‘definitely would have gotten the CoE, for sure’. I understood the basis of the applicant’s claim that in refusing to grant him an extension of time within which to obtain an unconditional CoE, the Tribunal made a jurisdictional error.
The applicant further stated that he trusted his agent and the college that the offer letter would be sufficient for the Tribunal’s purpose and that he himself believed this, despite acknowledging that the CoE was important for the Tribunal hearing. He further confirmed that his purpose in coming to Australia was to study a Masters degree and that he cannot leave without finishing it.
The applicant also briefly addressed the ‘genuine temporary entrant’ criteria, stating that the only reason he is still residing in Australia is to study his Masters, having only two months remaining of this course.
For completeness, I note that this matter was initially listed for a summary dismissal application before a judicial registrar. By order dated 5 April 2024, that application was dismissed and the substantive application for judicial review was listed before me on 11 June 2024.
The applicant’s written submissions referred to above were filed in relation to the summary dismissal application. However, I have referred to them in some detail as they reflect the substantive submissions made by the applicant in these proceedings.
GROUNDS OF REVIEW
I will turn now to consider the grounds of review raised in the applicant’s application.
Paragraphs 1 and 4
By paragraphs 1 and 4 of the application, the applicant essentially asserts that in refusing to grant an adjournment to allow him to obtain an unconditional CoE, the Tribunal made a jurisdictional error; namely, that its refusal to grant an adjournment was legally unreasonable.
The applicant submitted that had the Tribunal granted the adjournment, it would have provided him with sufficient time to obtain an unconditional CoE. As noted by the written submissions filed by the Minister, the Tribunal’s decision does not record that the adjournment sought was for one week. There is therefore no evidence before this court as to the length of the adjournment sought. Notwithstanding this, for the following reasons, the length of the adjournment sought would not lead me to a different conclusion in any event.
The way in which the Tribunal handled the applicant’s request for additional time to obtain an unconditional CoE must be viewed in context. That context includes that on 6 September 2022, the Tribunal wrote to the applicant requesting information from him, including that he was enrolled in a registered course of study. The applicant provided his then current CoE in respect of the Diploma of Leadership and Management course he was undertaking, which provided a start date of 15 December 2021 and an end date of 13 December 2022.
On 22 December 2022, the Tribunal invited the applicant to attend a hearing by telephone which was initially scheduled for 30 January 2023. In that hearing invitation, the applicant was requested to provide all documents upon which he would rely by 23 January 2023. In addition, that hearing invitation also contained the following:
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 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
2.…
In addition, on 27 January 2023, the Tribunal wrote to the applicant providing a copy of the applicant’s PRISMS report, including the current COE, and the applicant’s movement record. That email correspondence to the applicant also contained the following:
Please ensure that you are familiar with the attached documents prior to the hearing scheduled … as the Member may refer to these documents during the hearing. …
(Emphasis in original)
The applicant’s PRISMS report showed that the applicant had completed his Diploma of Leadership and Management and the dates in respect of which the CoE was in force. It was apparent from the PRISMS records that the applicant did not have a current CoE as at the date on which he was invited to attend the Tribunal hearing. It ought to have been apparent to the applicant from at least 22 December 2022, that he did not meet the requirements of cl 500.211 of the Regulations and that unless he obtained a CoE, that he would not meet that mandatory requirement.
I accept that the Tribunal determined the issue on the basis of a different issue than that before the delegate. However, it is not surprising that when the delegate considered the applicant’s application, the delegate did not focus on the applicant’s CoE, as at that time he did have a current CoE. Rather, the delegate considered that the applicant did not satisfy cl 500.212 of the Regulations in that he was found not to be a genuine temporary entrant. In any event, the applicant was put on notice that at the Tribunal hearing both the question of whether he had a current CoE and the question of whether he met the genuine temporary entrant criterion were live issues before the Tribunal.
As stated, at the heart of the applicant’s grounds of review in paragraph 1 and 4 of his application, is that the Tribunal erred in failing to grant him a short adjournment. Whether the applicant specified that he sought an adjournment of one week, or whether he was silent on the length of the adjournment sought, is not determinative. It is clear that he was seeking a relatively short adjournment to allow him to remedy the error in obtaining a conditional rather than an absolute CoE.
It is uncontroversial that the Tribunal has the power to grant an adjournment. Section 363(1)(b) of the Migration Act 1958 (Cth) relevantly provides:
(1)For the purpose of the review of a decision, the Tribunal may:
…
(b) adjourn the review from time to time;
…
This is a discretionary power and as such must be exercised within the bounds of legal reasonableness.
A similar question arose in Minister for Immigration and Citizenship v Li [2013] HCA 18 (‘Li’). In Li, French CJ (as he then was) said, at [20]:
… A reasonable opportunity to present an applicant’s case with respect to a time of decision criterion will extend to the opportunity to obtain evidence of the necessary fact or to obtain the necessary opinion or assessment. …
His Honour then went on to consider whether the refusal to grant an adjournment was legally unreasonable and ultimately concluded:
31The decision of the MRT to proceed to its determination was not, on the face of it, informed by any consideration other than the asserted sufficiency of the opportunities provided to the first respondent to put her case. … There was in the circumstances, including the already long history of the matter, an arbitrariness about the decision, which rendered it unreasonable in the limiting sense explained above.
Also in Li, the plurality (Hayne, Kiefel and Bell JJ), identified the issue before the court in the following terms:
47… The question which arose for the Tribunal was whether its review ought to be adjourned in order to afford Ms Li the opportunity to put forward the second skills assessment once TRA’s review of it was completed. The Tribunal is given the power and discretion to determine that question by s 363(1)(b). The Minister accepts that the discretion is not at large and that it must be exercised according to law. The law requires that its exercise be reasonable. How that legal standard may be tested will be discussed later in these reasons. …
The plurality went on to add:
66This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
67… The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.
…
80The decision to refuse the adjournment request was explained by the Tribunal on the bases that: (a) Ms Li had been provided with enough opportunities to present her case; and (b) the Tribunal was not prepared to delay the matter any further. The reference to delay was not further explained by the Tribunal. The only significant delay would appear to be attributable to the Tribunal, which took some nine months to contact Ms Li after the lodgement of her application. In any event, what pressing need for a conclusion of the review was the Tribunal adverting to, a need which would have to be weighed against the object of s 360? The position of the Tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another. It may be accepted that the Tribunal is to act with some efficiency, as is stated in s 353(1) of the Migration Act, but such a consideration would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5.
…
82 It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that ‘enough is enough’, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.
83The purpose of s 360(1) has already been referred to. It is to provide an applicant for review the opportunity to present evidence and arguments “relating to the issues arising in relation to the decision under review”. The question which remained in issue when the Tribunal made its decision was the satisfaction of a visa criterion by a complying skills assessment. Although the Tribunal could not be expected to assume that the second skills assessment, when reviewed, would favour Ms Li, it did not suggest that there was no prospect of the second skills assessment being obtained, or that the outcome could not be known, in the near future. In these circumstances, it is not apparent why the Tribunal decided, abruptly, to conclude the review.
His Honour Gageler J (as he then was) stated:
100… the requirement for the MRT to act reasonably is not exhausted in every case where an applicant before the MRT is given a reasonable opportunity to give evidence, provide information and present arguments in relation to the decision under review. Reasonableness can require more. Thus, while it has been held that the MRT has no general duty to make inquiries, it has been accepted 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”. The touchstone is reasonableness in the performance of the duty to review.
101The Minister … is correct to submit that the MRT has no general duty to adjourn a review because a review applicant believes that the passage of time will allow a visa criterion to be met. But a failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review.
…
105“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.
…
124No reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment.
Whether a decision to refuse an adjournment is legally unreasonable will ultimately depend on the facts in each particular case.
In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (‘Singh’), the Full Court of the Federal Court had to consider a similar issue, namely whether the Tribunal’s refusal to adjourn a hearing to give the applicant a further opportunity to submit a IELTS test, was legally unreasonable. In concluding that it was, the Full Court in Singh said:
43 … There is, as the High Court said in Li … at [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ, and at [88] per Gageler J, a presumption of law that Parliament intends an exercise of power to be reasonable. …
44In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgements identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process … However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ … calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”.
…
49… It might be said there is a different kind of balancing required as between the statute’s exhortation to the tribunals to discharge their functions in ways which are “fair, just, economical, informal and quick” … and “according to substantial justice and the merits of the case” … and the interests of the individual applicants. However, the entire function of a review under Pt 5 or Pt 7 of the Act … is to make the correct or preferable decision in respect of an individual applicant or application … In reality, no tension exists between provisions like ss 353 and 420, which are facultative rather than restrictive … and the manner in which these tribunals are required to perform their functions and exercise their powers …
50A further control on the manner in which these tribunals may exercise discretions reposed in them is the interaction between their obligations of procedural fairness in the conduct of a review, and the standard of legal reasonableness. In some circumstances, an exercise of power which is said to be legally unreasonable may overlap with an alleged denial of procedural fairness because the result of the exercise of power may affect the fairness of the decision-making process. That will commonly be the case where the exercise of an adjournment power is under review, because refusing an adjournment may deny a person an opportunity to present her or his case …
Ultimately, in Singh, the Full Court concluded that the Tribunal gave no active consideration to the adjournment request and, absent such consideration, concluded that the refusal was legally unreasonable.
Applying these principles to the case before the court, a central consideration in determining whether to grant the applicant the visa he sought was whether the applicant had a CoE at the time of decision. At the time that he applied for the visa, the applicant did have a current CoE. Thus, that was not an issue before the delegate. However, by the time his application for review came for determination, he had completed the course in respect of which the then CoE had been granted and that CoE had expired. The applicant had sought to enrol in a program to allow him to complete his Masters but had not yet obtained a CoE in relation to that course. The applicant explained how that came about.
He was notified of the tribunal hearing on 22 December 2022. He obtained a CoE from a university, albeit a conditional one. One of the conditions was that he obtained a positive outcome from the Tribunal on his visa application. The circularity of this condition was not explored in circumstances where he could not possibly obtain a positive outcome with a conditional CoE. But in any event, he attended the Tribunal hearing with a conditional CoE. When it became apparent that this could not satisfy the mandatory criterion in cl 500.211, he sought an adjournment to allow him to obtain an unconditional CoE from the educational institution. Both he and his representative indicated to the Tribunal that they were of the view that this would be provided.
Indeed in its reasons, the Tribunal acknowledged that there was ‘no real reason’ why the educational institution should not provide a CoE. The Tribunal went on to say ‘…nevertheless, between himself and his client, the applicant, the best they could put it was that they would try their utmost to get a COE and they ought be given the time for doing that’.[18]
[18] Tribunal decision and reasons dated 31 January 2023 at page 5, lines 32 to 34.
The Tribunal also records that the applicant advised that although he was on notice from 22 December 2022 that he required a current CoE, he believed that the conditional offer he had received was sufficient.
The Tribunal understood that it had a discretion to grant an adjournment. It also understood that it was required to exercise that discretion reasonably. The Tribunal also noted that in circumstances where the delegate had refused the applicant’s visa on the basis that it formed the view that he was not a genuine temporary entrant, the applicant thought, albeit incorrectly, that the conditional offer would be sufficient, given that he understood the review would focus on the genuine temporary entrant criterion.
The Tribunal also noted that the applicant’s representative was confident that the institution would provide a current CoE and if that did not transpire that the applicant would be able to secure a current CoE from another institution.
Having identified the applicant’s situation in these terms, the Tribunal then noted that it was not prepared to grant an adjournment in the following circumstances:
(a)in considering whether to exercise its discretion to adjourn, it needed to weight factors both for and against the request;
(b)notwithstanding the confidence of the applicant and his representative, a CoE may not ultimately be provided;
(c)the applicant was aware of the hearing date and was aware that he needed to provide a current CoE but did not do so;
(d)the applicant found himself in a situation whereby he did not have a current unconditional CoE;
(e)prior to the hearing, the applicant had been provided a copy of his PRISMS record which made it clear that he did not, on the basis of that record, hold a current CoE and that that could be a basis for refusing the applicant’s visa application;
(f)there was a need for finality in decision making; and
(g)the Tribunal had provided the applicant with sufficient time to provide the necessary evidence to establish that he met the criterion for the grant of a visa.
It is also relevant that the Tribunal considered whether he could have regard to the conditional CoE, but concluded by reference to the approach in Ding that that could not satisfy a mandatory requirement of proof of enrolment.
Ultimately, the Tribunal concluded that it was not appropriate in the circumstances to exercise its discretion to grant an adjournment. Having come to this view, the only conclusion open to the Tribunal was that the applicant did not meet the requirements of cl 500.211 and therefore the grounds for the issue of the visa not satisfied.
Whilst a different decision maker may well have come to a different conclusion, there was an evident and intelligible basis for the conclusion reached by the Tribunal. In those circumstances and applying the principles in Li and Singh, this is not a case in which the Tribunal’s reasoning could be said to be legally unreasonable.
For these reasons, the primary grounds of review are not made out.
Paragraph 2
By paragraph 2, the applicant addresses the ‘genuine temporary entrant’ issue, contending that he has a genuine intention to study and complete his chosen course.
As the criterion in cl 500.211 were not met, the Tribunal was not required to and did not consider whether the applicant met the genuine temporary entrant criteria.
This does not give rise to any error.
Ground 3
Ground 3 is a request by the applicant of the court to intervene and ‘advise AAT to give me [a] chance of another hearing’. This ground does identify a proper ground of review.
CONCLUSION
For each of these reasons, the applicant has not made out any jurisdictional error on the part of the Tribunal.
As the applicant has not been successful in his application for review, the application ought be dismissed with costs.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 19 September 2024
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