Campos v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1143
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Campos v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1143
File number: SYG 1423 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 7 November 2024 Catchwords: MIGRATION – student visa – whether the Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth) – whether the issue was apparent from its nature or from the terms of the statute under which it was made – whether the applicant was on notice that enrolment in a registered course of study may be a dispositive issue – materiality – jurisdictional error established – application succeeds Legislation: Migration Act 1958 (Cth) ss, 65, 359, 359A and 360
Migration Regulations 1994 (Cth) cll 500.211, 500.212, 820.221 and 858.212
Cases cited: AZAADv Minister for Immigration and Citizenship (2010) 189 FCR 494; [2010] FCAFC 156
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591-592; [1994] FCA 1074
LPTD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Citizenship v Pham [2008] FCA 320
Mudiyanselage v Minister for Home Affairs [2021] FCA 1391
MZAPCvMinister for Immigration and Border Protection (2006) 273 CLR 506; [2021] HCA 17
SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; [2008] FCAFC 138
SZTIS v Minister for Immigration and Border Protection [2017] FCA 545
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 28 October 2024 Place: Parramatta Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Brett Slater Solicitors Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1423 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NICOLAS COMBARIZA CAMPOS
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1. A writ of certiorari issue quashing the decision of the Second Respondent made on 8 May 2020.
2. A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS
INTRODUCTION
By application filed on 10 June 2020, the applicant is seeking judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 8 May 2020. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) dated 12 December 2017 refusing to grant the applicant a Student (Class TU) (Subclass 500) visa (the visa).
BACKGROUND
The applicant is a citizen of Colombia. He arrived in Australia on 25 September 2009 as the holder of a Student (Class TU) (Subclass 570) visa. The applicant held four further student visas, a tourist visa, and a temporary graduate work visa which was in effect until 30 September 2017.
On 29 September 2017, a day before his graduate work visa expired, the applicant applied for the student visa that is the subject of the current proceedings, being his sixth student visa, on the basis of an enrolment in a Bachelor of Business Information Systems (the bachelor’s degree).
On 12 December 2017, the delegate refused the application. The delegate was not satisfied that the applicant intended to genuinely stay temporarily in Australia. As such, it was found that cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) could not be met.
On 14 December 2017, the applicant applied to the Tribunal for review of the decision. On 24 September 2019, the applicant was invited to provide information to the Tribunal, pursuant to s 359(2) of the Migration Act 1958 (Cth) (the Act). The invitation requested the applicant to provide information confirming that he was enrolled in a registered course of study and that he was a genuine applicant for entry and stay as a student.
On 8 October 2019, the applicant provided, inter alia, a current Confirmation of Enrolment (COE) of the bachelor’s degree.
On 21 January 2020, the applicant attended the hearing before the Tribunal with his former partner, assisted by a representative and an interpreter.
On 20 April 2020, pursuant to s 359A of the Act, the Tribunal invited the applicant to comment on or respond to information which the Tribunal may consider to be the reason, or a part of the reason for affirming the decision under review (s 359A invitation).
On 1 May 2020, the applicant’s representative requested an extension of two further weeks to obtain the required documents and respond to the s 359A invitation. The Tribunal refused to grant the extension of time.
On 4 May 2020, the applicant’s representative responded to the s 359A invitation by way of a written submission and additional evidence.
On 8 May 2020, the Tribunal affirmed the decision under review on the basis that the applicant was not enrolled in a registered course of study.
THE TRIBUNAL’S DECISION
The Tribunal set out the procedural background and the criteria in issue at [1]-[11] of its decision. The Tribunal noted that the issue in the application for review was whether the applicant was a genuine applicant for entry and stay as a student. However, at the time of the decision, the Tribunal considered the issue became whether the applicant was enrolled in a registered course of study (at [9]).
The Tribunal set out the applicant’s visa history as recorded in the decision of the delegate as follows (at [14]):
a) 10 September 2009 to 22 July 2010 - Student visa subclass TU570 - Primary visa holder;
b) 20 July 2010 to 18 May 2011 - Student visa subclass TU570 - Primary visa holder;
c) 23 May 2011 to 12 September 2011 - Student visa subclass TU570 - Primary visa holder;
d) 7 November 2011 to 15 March 2014 - Student visa subclass TU572 - Primary visa holder;
e) 17 March 2014 to 15 March 2016 - Student visa subclass TU573 - Primary visa holder;
f) 29 March 2016 to 16 April 2016 - Tourist visa subclass FA-600 - Primary visa holder; and
g) 15 March 2016 to 30 September 2017 - Graduate Work visa subclass VC-485 - Secondary visa holder.
The Tribunal confirmed that, at the time of making the visa application, the applicant was enrolled in a Bachelor’s degree. It noted that the applicant submitted further documentation shortly after the hearing, providing an additional COE confirming that the end date for his bachelor’s degree had been extended to 2 March 2020 (at [15]-[21]).
The Tribunal recorded at [23] of its decision that it had received an updated Provider Registration and International Student Management Systems (PRISMS) Report, dated April 2020. The PRISMS Report indicated that the applicant was not currently enrolled in any registered course of study. The Tribunal pursuant to s 359A of the Act, sent a letter to the applicant inviting him to comment on or respond to this new information, and explained that it may form the view that the applicant was not a genuine applicant for entry and stay as a student as required by cl 500.212, on the basis of the information (s 359A invitation).
The Tribunal recorded the applicant’s response to the s 359A invitation, through his representative dated 4 May 2020, as follows (at [26]):
The invitation letter states that the applicant is not currently enrolled in a course of study.
With respect, the Tribunal was aware of the fact that the review applicant was enrolled in three units at the time of the Tribunal hearing. The review applicant has now successfully completed his course. The review applicant is now waiting for the outcome of this review application. The review applicant has made arrangements to obtain copies of his completion letter and transcripts. We anticipate that the review applicant will obtain the documents by the end of this week.
It is respectfully submitted that the Tribunal should not be persuaded that the visa programme is being used by the review applicant to circumvent the intentions of the migration programme. On this basis, the Tribunal should be satisfied that the review applicant intends genuinely to stay in Australia temporarily in accordance with cl.500.212 and that the appropriate course of action is to set aside the decision under review and make a fresh decision in substitution for the decision under review.
The Tribunal also considered the completion letter and academic transcript for the bachelor’s degree which was submitted by the applicant on 5 May 2020 (at [27]).
The Tribunal found that, based on the evidence submitted to it, the applicant completed the bachelor’s degree on 23 February 2020 and had not enrolled in a registered course of study thereafter. The Tribunal found that the applicant’s response to the s 359A invitation confirmed that the applicant was awaiting the outcome of the Tribunal before making any further decision. The Tribunal also stated that the applicant had not provided the Tribunal with a current COE confirming his enrolment in a registered course of study from 2 March 2020 (at [29]).
Having found the above, the Tribunal was not satisfied that, at the time of its decision, the applicant was enrolled in a registered course of study. Accordingly, the Tribunal found that cl 500.211 could not be met and affirmed the delegate’s decision (at [30]-[34]).
APPLICATION TO THIS COURT
The application before this Court contains a single ground of review, which has been considered further below.
The applicant filed an affidavit, sworn on 15 October 2020 (the applicant’s affidavit). There being no objections by the Minister, the affidavit was read into evidence at the hearing.
In compliance with Orders made by a Registrar of the Court, the applicant filed written submissions on 30 July 2024 and the Minister filed written submissions on 14 August 2024.
The parties appeared before the Court at a hearing on 28 October 2024. Mr Godwin of counsel appeared for the applicant. Mr Johnson of counsel appeared for the first respondent. The parties relied on their written submissions which were orally developed at the hearing.
The Court Book, which was filed with the Court on 2 September 2020, was tendered by the Minister at the hearing and was marked exhibit CB.
The applicant sought leave to rely on an Affidavit of Ms Elyse Trotter sworn/affirmed on 25 October 2024 (the Trotter affidavit), which annexed a transcript of the Tribunal hearing. There being no objection by the Minister, the Court granted leave for the applicant to rely on that affidavit and the annexed transcript in the proceedings.
GROUND OF REVIEW
The application for judicial review set out the following sole ground of review, without alteration:
1.The Tribunal failed to comply with section 360 of the Migration Act 1958 (Cth) (the Act) in relation to the issue of whether the Applicant would be enrolled in a course at the time of the Tribunal’s decision.
Particulars
a. The Applicant was enrolled in a course of study at the time of the Tribunal’s hearing in January 2020. Satisfaction of clause 500.211 was not raised by the Tribunal in the course of the hearing. Satisfaction of clause 500.211 was not an issue before the delegate. The Tribunal determined the application on the basis that the applicant failed to comply with clause 500.211 at the time it made its decision on 8 May 2020 without inviting the applicant to a further hearing in relation to that issue.
By ground one, the applicant contends that the Tribunal had failed to comply with its obligation under s 360 of the Act.
It was contended that the applicant believed that the issue before the Tribunal was whether he satisfied the cl 500.212, being the basis upon which the delegate refused to grant the visa. It was submitted that satisfaction of cl 500.211 was not raised by the Tribunal during the hearing.
The applicant relied on SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [35] and [36]:
35.The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision maker identified as determinative against the applicant.
36. … But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to the decision.
It was also submitted that the obligation to provide a hearing was an ongoing issue and that if a new issue arises after a hearing has been held, another hearing invitation is required: SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1.
It was submitted that, although the Tribunal had issued an invitation to comment under s 359A of the Act after the hearing, it was still required to issue a further invitation under s 360 of the Act to invite the applicant to another hearing: SZTIS v Minister for Immigration and Border Protection [2017] FCA 545 at [69] per Burley J.
In relying on information in the applicant’s affidavit, in which the applicant stated that he would have enrolled in a Master of Information Technology at King’s Own Institute, Sydney, had he been informed at the hearing that his enrolment was in issue, it was submitted that if the applicant had been given a hearing he would have understood the need to obtain a further course enrolment and could have obtained such an enrolment. It was submitted that, based on this evidence, the failure to provide a hearing on a critical issue was sufficient to establish materiality: LPTD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [15].
The Minister’s submissions
The Minister submitted that the Tribunal, at [21] of its decision, indicated that it had discussed with the applicant the issue of his enrolment, including when it ended, at the hearing. The Minister submitted that, upon a proper reading of s 360 of the Act, understood in light of SZBEL, the Tribunal did not breach its obligation to invite the applicant to appear before it to give evidence and present arguments.
In respect of the Tribunal’s obligation under s 360 of the Act, the Minister also relied on the High Court’s consideration in SZBEL of what are the “issues arising in relation to a decision under review”. Relevantly, the High Court stated at [33] to [34]:
33.The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The reference to “the issues arising in relation to the decision under review” is important.
34.Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the minister’s delegate), but also to the fact that the tribunal is to review that particular decision, for which the decision-maker will have given reasons.
(Citations omitted)
The Minister also referenced [35] of SZBEL, which is extracted above as part of the applicant’s submissions, and [37] where the High Court said by way of example:
37.…If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant’s nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.
The Minister drew the Court’s attention to the High Court’s reference to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591-592; [1994] FCA 1074 (Alphaone) (as cited in SZBEL at [29]) where the Full Court of the Federal Court said:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
(Emphasis of the High Court)
The Minister submitted that the Tribunal’s obligation under s 360 of the Act did not require it to identify for the applicant any issue that is apparent from its nature or the terms of the statute under which it was made. Nor was the Tribunal required to identify any adverse conclusion that would be clearly open on the known material.
The Minister also relied on a similar analysis of Siopis J in Minister for Immigration and Citizenship v Pham [2008] FCA 320 (Pham). The facts in Pham were as follows:
·The applicant (Ms Pham), who was the first respondent in the appeal, had applied for a Spouse (Subclass 820) visa based on her marriage to an Australian citizen (Mr Burton). During the processing of that application, Mr Burton informed the Department that the relationship had ended and that he was no longer sponsoring Ms Pham for the visa. Ms Pham pursued the application on the basis that she and Mr Burton were in a genuine spousal relationship, but that the relationship had ended due to domestic violence. In support of that claim, Ms Pham provided three statutory declarations to the Department. The delegate refused to grant the visa on the basis that there had not been a genuine and continuing spousal relationship between Ms Pham and Mr Burton.
·On review before the Tribunal, solicitors for Ms Pham wrote to the Tribunal, referring to the statutory declarations and enquiring as to whether they met the evidentiary requirements in reg 1.26 of the Regulations. The Tribunal did not reply, and there was no mention of the statutory declarations at the hearing. The Tribunal subsequently sent a letter under s 359A of the Act, inviting Ms Pham to comment on information which cast doubt over her claim to have been in a genuine and continuing relationship with Mr Burton. The Tribunal dismissed Ms Pham’s application on the basis that it was not satisfied there had been a genuine and continuing spousal relationship, and that one of the statutory declarations provided by the visa applicant failed to comply with the evidentiary requirements in reg 1.26 of the Regulations.
·Ms Pham sought judicial review of the Tribunal’s decision. The Federal Magistrate found that there had been a failure by the Tribunal to consider evidence relevant to the genuineness of the spousal relationship, however, rejected Ms Pham’s contention that the Tribunal had failed to comply with s 360 of the Act as it did not raise with her the issues concerning the statutory declaration.
·The Minister appealed the decision on the basis (inter alia) that the Tribunal had affirmed the delegate’s decision on an independent ground; being that Ms Pham had not provided the evidence required in support of her claim of domestic violence and there was no error in the Tribunal’s finding on that ground.
·In her notice of contention, Ms Pham relevantly stated that the Tribunal erred in failing to notify her of any perceived deficiency in the statutory declaration. Siopis J dismissed this ground, finding that the Tribunal did not err in its identification of the relevant question concerning the statutory declaration. His Honour examined whether the Tribunal had acted in contravention of s 360 of the Act, given that the delegate had not identified any issue with the statutory declaration.
·In considering whether the principle in SZBEL applied, Siopis J found that SZBEL was distinguishable. His Honour stated:
51....The distinction lies in the fact that the first respondent chose to make a claim for a spouse visa founded on a non-judicially determined claim of domestic violence. It was, therefore, incumbent upon the first respondent to establish that the relationship with her former spouse had been genuine and continuing and to present evidence in a form which complied with the Regulations, that her former spouse had subjected her to domestic violence. As to the evidence of domestic violence, Div 1.5 of the Regulations described in detail the qualifying conditions for a statutory declaration which was to be used in support of the domestic violence claim. An essential issue, therefore, in the determination of the first respondent’s visa application was whether the statutory declarations relating to domestic violence met the requirements prescribed in the Regulations. It did not matter, therefore, that the delegate had in refusing the visa, not dealt with the domestic violence issue. If the first respondent was to succeed before the Tribunal, it was necessary for her to show that the statutory declarations satisfied the Regulations, notwithstanding that the delegate had dealt only with the genuineness of the relationship issue in refusing the visa. In other words, the nature of the claim and statute dictated that this would be an issue before the Tribunal, notwithstanding that the delegate had not dealt with the issue.
The Minister submitted that, in the present case, the applicant was required to comply with the criteria set out in Schedule 2 to the Regulations to be granted the visa: s 65 of the Act. It was submitted that compliance with cl 500.211 of Schedule 2, which required the applicant to be enrolled in a registered course of study, was not an issue about which the Tribunal was required to invite the applicant to give evidence and present arguments. It was further submitted that Tribunal did not have to raise with the applicant that his Bachelor’s degree course was coming to an end a few weeks after the Tribunal hearing as this was evidence that had been provided by the applicant to the Tribunal.
The Minister submitted that the requirement for the applicant to be enrolled in a course of study at the time of the Tribunal hearing was always in issue and did not constitute a “new dispositive issue” that arose after the hearing. This requirement constituted part of Schedule 2 to the Regulations and had to be satisfied for the grant of the visa. It was irrelevant that the applicant’s non-compliance with the Regulations came about after the hearing. The Minister draws a parallel with Pham at [53] and contends that it was not open for the applicant to assume that he would meet cl 500.211 if he ceased enrolment in a course of study because the delegate had not made a finding on the issue and the Tribunal had not discussed it at hearing.
The Minister submitted that it was obvious that the applicant had to comply with cl 500.211 for the grant of a visa, not only from the Regulations but from the Tribunal’s interactions with the applicant leading up to the hearing. The Tribunal’s interactions with the applicant were summarised by the Minister in the written submissions as follows (without alteration):
27.1On 24 September 2019, when the Tribunal sent the applicant the s 359 invitation, it expressly identified that it was a requirement for the visa that he be enrolled in a course of study and invited him to provide evidence to show he satisfied this requirement (CB 96);
27.2In the form completed by the applicant in response to the s 359 invitation, the Tribunal sought information about the ‘Main Applicant’. There were six statements which explained to the applicant that “The Main Applicant is the person seeking to satisfy the primary criteria for the visa on the basis of being enrolled in a registered course of study” (emphasis added) (CB 105-111);
27.3Critically, in both hearing invitations sent to the applicant, the Tribunal requested that the applicant provide a CoE and explained that cl 500.211 of Schedule 2 to the Regulations contained a requirement for the grant of the visa that he be currently enrolled in a course of study (CB 120-122; 159-161). Those invitations also expressly informed the applicant that it “may assess” whether he was a genuine applicant for entry and stay as a student (being the reason for the delegate’s decision, but that it “may also assess whether you [he] are [was] enrolled in a registered course of study” (emphasis added). The Tribunal also explained that if he was not enrolled in a registered course of study this “may be a reason, or a part of the reason, for the Tribunal affirming the decision under the review, even if this is not the same criteria or issue considered by the delegate” (CB 121);
27.4The applicant was alive to the fact that his Bachelor’s degree had nearly ended, and indicated to the Tribunal ahead of the hearing that he may further his studies (CB 180). Such a submission, as well as providing a current CoE to the Tribunal, suggests awareness of the requirement contained in cl 500.211; and
27.5The Tribunal’s s 359A invitation invited the applicant to comment on information which “may form the reason, or part of the reason, for affirming the decision under review” – namely that the PRISMS record indicated he was not enrolled and would not meet cl 500.211.
It was submitted that these interactions demonstrated that the applicant was on notice of the requirement to meet cl 500.211. The Minister contended that the Court cannot accept that the Tribunal failed to comply with s 360 of the Act in circumstances where it was not the function of the Tribunal to advise the applicant on the steps required for obtaining a visa.
CONSIDERATION
Section 360 of the Act required the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the review. This obligation imposes a duty on the Tribunal to give the applicant the opportunity to be heard in relation to any determinative issue and obliges the Tribunal to put the applicant on notice of any other issue it considers dispositive to the outcome of the review.
In this matter, the delegate refused to grant the visa on the basis that the applicant did not satisfy the genuine temporary entrant criterion in cl 500.212. The Tribunal refused the applicant on the basis that he did not satisfy cl 500.211 because at the time of its decision the applicant was not enrolled in a registered course of study.
The applicant contends that the Tribunal failed to comply with its obligation in s 360 of the Act because he was not given the opportunity to be heard on the determinative issue in the review.
The Minister contends that the Tribunal complied with its obligations under s 360 of the Act because:
(a)The Tribunal had discussed with the applicant the issue of his enrolment, including when it ended, at the hearing as indicated at [21] of its decision record.
(b)The obligation under s 360 of the Act did not require the Tribunal to identify for the applicant any issue apparent from the nature or the terms of the statute under which it was made or any adverse conclusion that was open to it on the known material. The requirement that the applicant be enrolled did not constitute a new dispositive issue that arose after the hearing as it was one of the requirements that had to be met for the grant of the visa: relying on Alphaone and Pham.
(c)The applicant was on notice that he had to comply with cl 500.211 because of the interactions with him leading up to the hearing, including the s 359(2) letter, the completed student visa form, the hearing invitations, the COE and the representations made to the Tribunal about the applicant wanting to further his studies and the s 359A letter.
For reasons that follow, the Court is not persuaded that the Tribunal complied with its procedural fairness obligations under s 360 of the Act.
The chronology of the events leading up to the hearing and what occurred at the hearing are important in this case. On 24 September 2019, the Tribunal sent a letter to the applicant under s 359(2) which identified the two requirements that it would be considering. The first being whether the applicant was enrolled in a course of study and the second whether the applicant was a genuine temporary entrant for stay as a student. On 8 October 2019, the applicant provided (inter alia) evidence of his enrolment in the bachelor’s degree course (a COE).
On 7 November 2019, the Tribunal invited the applicant to appear before it on 22 November 2019 “to give evidence and present arguments relating to the issues”. That hearing was rescheduled to 21 January 2020. In both hearing invitations the applicant was requested to provide (inter alia) evidence of his current enrolment. The most current COE provided to the Tribunal indicated a course end date of 2 March 2020.
The applicant appeared before the Tribunal on 21 January 2020. The applicant’s representative attended the hearing. At the time of the hearing, the applicant was enrolled in a registered course of study, and it was evident from the transcript of the hearing that the Tribunal’s interactions with the applicant related to its concerns about whether he was a genuine temporary entrant.
Where the Tribunal discussed with the applicant his enrolment (as contended by the Minister), it appears to have been for the purposes of clarifying the date on which the course would end. For example, at pages 9-10 of the transcript the Tribunal asks the applicant about why his course end date had been extended until March 2020, to which the applicant provides a response explaining that he had failed a few subjects. The interactions that take place thereafter relate to the reason for why the applicant had failed those subjects. Also, at pages 11, 20 and 26 of the transcript, the Tribunal again confirms with the applicant that the course end date is 2 March, after which it proceeds to raise concerns with him about the gaps in his studies and the length of time he had been in Australia which appear to suggest a permanent rather than a temporary purpose of stay. Of significance, as brought to Court’s attention by Counsel for the applicant, was the Tribunal’s remarks at page 26 that it would deliver a decision in due course and would have regard to the end date (2 March) of the applicant’s study in the bachelor’s degree. It further remarked that (at page 27) that it would probably have the decision to him by the end of February.
The Court accepts the applicant’s submission that such an interaction would have left the applicant (and their representative) with the impression that the Tribunal intended to finalise the review before the enrolment had ceased and that the determinative issue in the review was whether the applicant was a genuine temporary entrant.
The Tribunal was not bound to finalise the review within the timeframe it had proposed and nor was it bound to determine the review on the same issue identified by the delegate. However, it was obliged to ensure that the applicant was on notice of the dispositive issue in the review and that the applicant, as a matter of procedural fairness, had an opportunity to give evidence and present arguments (at a hearing) in respect of that issue.
While the Tribunal had discussed with the applicant his enrolment and its end date, the interactions between the Tribunal and the applicant at the hearing do not disclose that the applicant’s enrolment, including its impending end date, was dispositive to the outcome of the review. The Court is not satisfied that the Tribunal’s discussion with the applicant at the hearing about his enrolment was sufficient to discharge its obligation under s 360 of the Act.
The Court accepts that the Tribunal would not need to identify for an applicant an issue that would be apparent from the nature and terms of the Regulations: SZBEL at [29] and Pham at [51]-[54]. It is also well established that a Tribunal is not obliged to inform the applicant of any adverse conclusions it may draw that would be obviously open on the known material: Alphaone at 591-592. These were the principles that applied in Pham.
The circumstances of this case, however, are quite different (and clearly distinguishable) from those in Pham. In that case, Ms Pham was seeking to satisfy the criterion in cl 820.221(3) of Schedule 2 to the Regulations, which required her to establish that she was (and would continue to be) the spouse of Mr Burton except that the relationship between them had ceased and she had suffered domestic violence committed by Mr Burton: cl 820.211(3)(b). Having pursued the spouse visa on the basis of a non-judicially determined claim of domestic violence, it was an essential issue for Ms Pham to provide statutory declarations (as to her domestic violence claim) which met the evidentiary requirements prescribed in Division 1.5 of the Regulations. As the Court reasoned in Pham, it was ‘apparent’ from the nature of the applicant’s claim (and the terms of the Regulation that she sought to satisfy) that this remained a live issue before the Tribunal. As such, the onus was on Ms Pham to show that the statutory declarations met the evidentiary requirements in Division 1.5 for the purposes of satisfying cl 820.221(3)(b) of the Regulations. The Court does not consider the analysis by the Federal Court in Pham to be applicable in this case.
The relevant statutory provisions in this case are not analogous to the statutory provision, and the associated evidentiary requirements, that was the subject of consideration in Pham. In the present case, the issue of enrolment (cl 500.211) was an entirely different (and separate) requirement from the issue of whether the applicant is a genuine temporary entrant (cl 500.212). The fact that both requirements formed part of Schedule 2 to the Regulations (and had to be satisfied for the grant of the visa) or the fact that the applicant himself provided evidence of his enrolment to the Tribunal (which he knew would cease a few weeks after the hearing), does not mean, as contended by the Minister, that it should have been ‘apparent’ to the applicant that the requirement in cl 500.211 that he be enrolled in a registered course of study was always a live issue. The issue of enrolment was clearly a distinctly separate issue from that which the applicant had understood (and was led to believe) was the determinative issue on review.
In oral submissions, the applicant relied on Mudiyanselage v Minister for Home Affairs [2021] FCA 1391 (Mudiyanselage). In that case the delegate refused to grant the visa on the basis that the applicant did not satisfy the Public Interest Criterion 4020 (PIC 4020) for the purposes of cl 858.212(4) of Schedule 2 to the Regulations. On review, the Tribunal found that the applicant had satisfied the requirements of PIC 4020, however, it affirmed the decision under review on a different basis; namely cl 858.212(2), which required him to establish that he had an internationally recognised record of exceptional and outstanding achievement in a sport. In that case, the Minister, also relying on Pham, argued that it was obvious from the statutory regime at play that the Tribunal would be determining whether cl 858.212(2) was met. Relevantly, Collier J, having considered the facts of both cases, did not consider the approach in Pham to be on applicable. Her Honour stated that, unlike the circumstances in Pham, it appears that the principles in SZBEL may be applicable. Ultimately it was found that the Tribunal had taken steps to identify to the applicant the relevant issues, other than those the delegate had considered dispositive, specifically telling him at the hearing that he needed to explain how he satisfied the criterion of being an exceptional athlete.
The Court considers that the facts (and circumstances) of the present case are more analogous with those in Mudiyanselage and that the principles in SZBEL are applicable. Accordingly, there was an obligation on the Tribunal not only to put the applicant on notice that enrolment in a registered course of study may be a dispositive issue in the review (which it did via its pre-hearing s 359(2) letter, hearing invitation letters, and post hearing s 359A letter), but it also had an obligation under s 360 of the Act to give the applicant an opportunity to give evidence and present arguments on that issue.
The Tribunal did not invite the applicant to appear before it to give evidence and present arguments in relation to the issue of enrolment which ultimately became the dispositive issue in the review. The Tribunal’s letter to the applicant, pursuant to s 359A of the Act, inviting him to comment on or respond to the adverse information obtained from PRISMS records did not overcome a failure to accord procedural fairness at the hearing: AZAADv Minister for Immigration and Citizenship (2010) 189 FCR 494 Besanko J (Siopis J agreeing).
The Court considers that the Tribunal has not complied with its obligations to afford the applicant procedural fairness as required by s 360 of the Act.
The Court now turns to consider the issue of materiality. For an error to be jurisdictional, it must be material in the sense that, had the error not been made, it could (not would) realistically have resulted in a different decision: MZAPCvMinister for Immigration and Border Protection (2006) 273 CLR 506. The applicant submitted that if he had been given the opportunity to be heard, he would have understood that this had become a determinative issue in the review and could have obtained such an enrolment. In evidence before the Court is the applicant’s affidavit in which he deposes that he would have enrolled in a Master of Information Technology at King’s Own Institute at Sydney before his enrolment expired had he been informed at the hearing that his continued enrolment was in issue.
The Court accepts that if the applicant had been heard on the issue of enrolment, he may have provided evidence to satisfy the Tribunal that he could meet that requirement. As such, there was a realistic possibility that a different decision could have been made.
As the Tribunal’s non-compliance with s 360 was material, it follows that jurisdictional error on the part of the Tribunal has been established.
The Court will issue writs of certiorari to quash the Tribunal’s decision and mandamus to require the Tribunal to reconsider the application for review according to law.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 7 November 2024
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