Chen v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 511
•6 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chen v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 511
File number(s): BRG 99 of 2022 Judgment of: JUDGE EGAN Date of judgment: 6 June 2024 Catchwords: MIGRATION LAW – Whether the Tribunal was affected by any alleged fraud on the part of the third-party migration agent – whether the Tribunal had acted unreasonably in failing to adjourn the hearing before it so as to allow further time for the applicant to resolve a dispute with a university – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss. 65, 334, 360
Migration Regulations 1994 (Cth), sch 2, cl. 500.212
Cases cited: CKL21 v Minister for Home Affairs (2022) 293 FCR 634
Minister for Home Affairs v DUA16 & Anor [2020] HCA 46
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v CPA16 (2019) FCAFC 40
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Mudiy v Minister for Home Affairs [2023] FCA 1402
SZHVM v Minister for Immigration and Citizenship & Anor (2008) 170 FCR 211
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 3 May 2024 Date of hearing: 28 February 2024 Place: Brisbane Counsel for the Applicant: Mr M. Amerena Solicitor for the Applicant: Stephens & Tozer Solicitors Counsel for the First Respondent: Mr B. McGlade Solicitor for the First Respondent: Minter Ellison Solicitor for the Second Respondent: Administrative Appeals Tribunal ORDERS
BRG 99 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MIN CHEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
6 JUNE 2024
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 2 February 2024 be dismissed.
2.The Applicant pay the First Respondent's costs of and incidental to the Application for Review fixed in the amount of $8371.00
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 EGAN
Introduction
The Applicant is a citizen of the Peoples’ Republic of China who applied for a Student (Temporary) (Class TU) visa on 2 May 2019 pursuant to the provisions of s. 65 of the Migration Act 1958 (‘the Act’).
On 3 January 2020, a delegate of the Minister refused to grant the visa on the ground that the Applicant did not satisfy the requirements of cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). Clause 500.212 relevantly provided as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student:
(a) having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
(b) because the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) because of any other relevant matter.
On 23 January 2020, the applicant applied for review of the decision of the delegate by the Administrative Appeals Tribunal (‘the Tribunal’).
On 31 January 2022, the Tribunal handed down a decision adverse to the applicant on the papers regarding the application for review of the decision of the delegate.
Relevant matters leading up to the making of the decision on the papers were as set out in [4] – [21] of the reasons of the Tribunal as follows:
4.A Confirmation of Enrolment (COE) which the applicant provided to the Tribunal in support of the review confirms that on 14 February 2020 he enrolled in a Bachelor of Nursing at the Torrens University, a course which (according to the COE) was due to commence on 17 February 2020 and to finish on 5 December 2021.
5.On 5 August 2021 the Tribunal sent to the applicant a Sec 359 (2) letter inviting him to provide information to satisfy the Tribunal that he was enrolled in a registered course of study and that he met the GTE criterion. The applicant was given until 19 August 2021 to provide this information. The letter also stated that if the Tribunal did not receive the information by that date, or within such extended period as may be allowed for that purpose, the Tribunal could reach a decision on the review without taking any further action to obtain the information and that, in that event, he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present his case.
6.On 19 August 2021 the Tribunal received, among other documents, a completed Response Form from the applicant in answer to the Sec 359(2) Request. In this Form the applicant stated that he did not complete the Bachelor of Nursing, accepted that he was no longer enrolled in that course, accepted that he did not have a current enrolment in any other registered course of study and consented to the Tribunal deciding the review without a hearing.
7.On 12 October 2021 the Tribunal obtained a PRISMS record which, among other things, confirmed that the applicant’s enrolment in the Nursing course at Torrens had been cancelled on 14 April 2021 when he informed Torrens that he had ceased studies in that course and that he was not, as at the date on which the search was undertaken, enrolled in any other registered course of study.
8.Although it was strictly unnecessary to do so in circumstances where the applicant had accepted that he was no longer enrolled in a course of study, on 22 October 2021 the Tribunal sent a further letter to the applicant pursuant to Sec 359A of the Act inviting him to comment in writing on the information in the PRISMS record concerning his non-enrolment. The letter stated that the Tribunal could rely on that information in the review and that, in so doing, it could result in a finding that he was not currently enrolled in a course of study and was thus, in that event, not entitled to the visa. He was given until 5 November 2021 to provide his comments and response to the information in the PRISMS record but was also informed that he could ask for more time.
9.On 4 November 2021 the applicant’s authorised representative, Ms Diane Chen (the agent), sent an email to the Tribunal in which she stated that the applicant had been trying to re- enrol in his course at Torrens and she attached a copy of his correspondence with that provider to substantiate that claim. A further four (4) weeks was also sought by her in which to respond to the Sec 359A letter.
10.By a letter to the agent dated 4 November 2021 the Tribunal granted that request and extended the time within which to respond to the Sec 359A letter to 3 December 2021.
11.The agent responded within that extended time by sending a further email on 2 December 2021 in which she indicated that the applicant was unable to provide a COE at that time and to sort out the issues with Torrens which apparently stemmed from overdue tuition fees for that course.
The Tribunal’s approach to the issues on the review
12.Having consented in his Response Form to the Tribunal reaching a decision on the review without a hearing, the applicant has lost his right to a hearing by virtue of Sec 360(2)(b) of the Act and indeed, by virtue of the combined operation of Secs 360(3) and 363A, the Tribunal has no power to permit him to appear; see Hasran v MIAC [2010] FCAFC 40.
13. The Tribunal will thus proceed to determine the review on the papers.
14.The criteria for the grant of a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. In this case the primary criteria in cl.500.211 to cl.500.218 must be satisfied by the applicant. Clause 500.211 relevantly requires that at the time of this decision the applicant be enrolled in a registered course of study (cl.500.211(a)) as he does not claim to meet any of the alternative criteria in cl.500.211.
15.‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
16.Although it is clear from the delegate’s decision that the applicant was at that time enrolled in other registered courses and that the issue before her was thus whether the applicant met the GTE criterion in cl.500.212 at that time, the issue before the Tribunal in the circumstances of this case, as they currently exist, is whether the applicant is enrolled in a registered course of study. If he is not so enrolled the Tribunal need not determine whether he meets the GTE criterion at the time of this decision.
17.Enrolment in a registered course of study is of course a mandatory requirement under the Regulations.
The application to postpone the review
18.To the extent that the agent’s email of 2 December 2021 may be regarded as an application to postpone the review until such time as he resolves his fee dispute with Torrens and (by inference) secure re-enrolment in that or another course, the Tribunal declines to do so.
19.The applicant has had ample time to sort out his fee issue with Torrens or, if he could not do so, to secure enrolment in another registered course of study. The fact that he has given no indication in his correspondence as to when the Tribunal could expect him to produce a current COE for that or any other course obviously does nothing to warrant a postponement.
20.Although the applicant has provided the Tribunal with other documents in the form of a Psychiatrist’s Report dated 1 June 2020 and other associated medical evidence which he had apparently provided to Torrens at about that stage to support an application for a temporary (5 month) relaxation of the Nursing course requirements on medical grounds, it is equally apparent from this and other evidence, including his Personal Statement dated 18 August 2021, that he was no longer relying on his asserted medical condition to explain the eventual cancellation of his enrolment in that course in April 2021. Certainly, his agent’s correspondence with the Tribunal towards the end of that year does not assert that his mental condition in or about June 2020 had anything to do with the cancellation in April 2021. Rather, at least according to this correspondence, it had come about because of a dispute about the payment of tuition fees.
21.In any event, whatever ongoing significance the applicant’s mental condition might have to his current enrolment status, the Tribunal is quite unable to accede to an application to postpone the review until such time as he gets his house in order and secures an enrolment.
On 4 March 2022, the applicant filed an Originating Application for Review of the decision of the Tribunal.
At the hearing before the Court, the applicant relied upon the grounds of review as set out in an Amended Application for Review filed on 2 February 2024, as follows:
Ground 1
1.A jurisdictional error arose because the applicant’s consent for the Tribunal to decide the review without the applicant appearing before it under s 360(2)(b) of the Migration Act 1958 (Cth) was procured by the migration agent committing a fraud on the Tribunal’s procedure where the migration agent acted on illegitimate, unreasonable or improper grounds.
Particulars
a.On 19 August 2021, the migration agent pressured the applicant to tick the box on the M17 Form indicating that the applicant would not attend the hearing so that the migration agent avoided criticism for their own conduct in submitting the applicant’s personal statement to the Tribunal knowing the applicant’s personal statement had been drafted by the migration agent and not reviewed by the applicant; and further and alternatively,
b.On 19 August 2021, the migration agent knowingly misled the applicant by stating to the applicant that the applicant’s participation in a hearing would prejudice the prospects of a successful outcome.
c.The migration agent’s conduct in each a. and b. herein was in breach of each of the Code of Conduct for Registered Migration Agents (the relevant edition current from 18 April 2017) clauses 2.1(a) and (b), 2.9, 2.15(a), 2.23.
d.The migration agent’s conduct in b. herein was a criminal offence under s 334 of the Migration Act 1958 (Cth).
e.It should be inferred that the migration agent’s conduct in each a. and b. herein was for self-protection against either or both:
i.an administrative sanction under s 303 of the Migration Act 1958 (Cth) by the Migration Agents Registration Authority for each of the migration agent’s breaches of the Code of Conduct identified in subparagraph c. herein;
ii.the migration agent’s own unlawful conduct in contravention of s 334 (1) or (2) of the Migration Act 1958 (Cth).
Ground 2
2.The Tribunal’s decision at paragraphs [18] and [19] of its reasons not to grant the applicant an adjournment was a jurisdictional error.
Particulars
a.It was unreasonable for the Tribunal to have expected the applicant to have resolved his dispute with Torrens University by December 2021 or alternatively by January 2022;
b.It was unreasonable for the Tribunal to have expected the applicant to have secured “enrolment in another registered course of study” if he could not have promptly resolved his fee dispute with Torrens University;
c.The Tribunal ought to have acted reasonably by proceeding on a course which provided the applicant more time to obtain his confirmation of enrolment. This required the Tribunal to allow the applicant adequate time to negotiate with Torrens University, prior to the applicant taking the drastic but last remaining option open to him and paying Torrens University the disputed fees under protest; further and alternatively,
d.The Tribunal ought have acted reasonably by writing back to the applicant’s migration agent’s correspondence dated 2 December 2021 seeking clarification or confirming some further deadline by which the applicant had to produce his confirmation of enrolment.
Ground 1 was a claim that the migration agent engaged by the applicant had pressured the applicant “ … to tick the box on the M17 Form indicating that the applicant would not attend the hearing so that the migration agent avoided criticism for their own conduct in submitting the applicant’s personal statement to the Tribunal …”.
It was asserted that the migration agent had knowingly misled the applicant, and that such conduct was not only in breach of the Code of Conduct for Registered Migration Agents, but that it also constituted a criminal offence. On those bases, it was asserted that a jurisdictional error had occurred in that the Tribunal had handed down its reasons in circumstances where the applicant’s consent for the Tribunal to decide the review, without the applicant appearing before it, had been procured by the fraud of the migration agent.
As was submitted on behalf of the first respondent, there was a heavy burden of proving fraud on an applicant who seeks to set aside an otherwise blameless decision of the Tribunal by reason of the alleged fraud of a third party. [1]
[1] SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at [51] per Allsop CJ
(with whom Mortimer J agreed).
In SZHVM v Minister for Immigration and Citizenship & Anor (2008) 170 FCR 211 at [52] – [53], Middleton J said as follows:
52.“In this appeal, even accepting that the evidence suggests that the appellant’s negative response to the hearing invitation was procured by her purported agent’s coercion, this does and did not amount to dishonest conduct. The appellant’s account of her conversation with Mr Marzukie on the morning of the hearing, demonstrating his refusal to take her and his direction that she mind his child in circumstances where she was unable to contact or reach the Tribunal on her own or to otherwise manage independently if she refused his direction, may give rise to an argument that might be characterised as duress. However, duress, while perhaps actionable on other grounds, does not amount to material dishonesty of another which conveys a false impression to the decision-maker such as to make the conduct complained of cognisable as fraud upon the Tribunal under the principles set forth in SZFDE.
53. In Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [30]- [33] it was made clear that even if an act or omission of a migration agent misleads the applicant, and even directly affects the discharge of the Tribunal’s statutory duties in a manner adverse to an applicant, it does not mean that the acts are to be characterised as dishonest or a fraud on the Tribunal. The Full Court made the following comments at [32]:
We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent’s acts or omissions vis-à-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly affects the Tribunal’s discharge of its imperative statutory functions in a manner which is adverse to a person seeking Tribunal review can in turn be characterised as a "fraud on the Tribunal".
The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that affects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.”
The decision of the Tribunal could not be said to have been induced, or in any way affected by, the actions of the applicant’s migration agent. In Minister for Home Affairs v DUA16 & Anor [2020] HCA 46 at [14] – [15] and [18] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ, it was held as follows:
“[14]In SZFDE v Minister for Immigration and Citizenship, this Court held that a decision of the Refugee Review Tribunal was correctly set aside in circumstances where a rogue had perpetrated a fraud on a family of applicants by falsely representing that he was a solicitor and a migration agent and dissuading the applicants from attending the Tribunal hearing. The fraud was also perpetrated on the Tribunal, whose decision to proceed in the absence of the applicants might not have been made if it had known about the misconduct. This Court emphasised that the appeal required "close attention to the nature, scope and purpose of the particular system of review" rather than reliance upon maxims such as "fraud unravels everything". The rogue's fraud stultified the operation of the legislative scheme to afford natural justice to the applicants
[15]The insistence by this Court in SZFDE that a ground of review for fraud requires a focus upon the manner in which the fraud adversely affected the operation of the particular system of review, and therefore the statutory functions and powers of the Tribunal, was appropriate because grounds of judicial review arise by implication from the statute which provides the jurisdiction to make the decision. Just as it is usually implied that a decision will be invalid if a decision-maker exercises their powers fraudulently, so too it will usually be implied that a decision will be invalid if a decision-maker is defrauded in the exercise of statutory powers. The implication requires that some aspect of the operation of the legislative scheme be affected by actual fraud or dishonesty, not merely negligence. As this Court said in SZFDE, "there are sound reasons of policy" why an administrative decision is not vitiated merely by bad or negligent advice or some other mishap that leads to detriment to an applicant.
…
[18]In this Court, the Minister correctly submitted that, as a ground of judicial review, fraud must affect a particular duty, function, or power of the Authority. It is not sufficient to assert that fraud might be said to affect the process of decision-making in some abstract sense.”
The Court accepts the submission made on behalf of the First Respondent that there was a clear distinction to be made between the challenges made to decisions where the relevant bad faith or improper purpose was on the decision-makers own part, as opposed to decisions where the relevant fraud was committed by a third-party migration agent.
There was no evidence before the Court to suggest that a reasonable decision maker in the position of the Tribunal would have been alerted to any possible fraud, or the exercise of duress, on the part of the applicant’s migration agent. Nothing in the evidence adduced at the hearing before the Court suggested otherwise. There were inconsistencies in the applicant’s oral evidence which did not meet any threshold for the setting aside of the Tribunal’s decision. The Court adopts as correct, in relation to each respective submission, those assertions as to matters of fact and law as set out in [23] – [83] inclusive of the first respondent’s consolidated outline of submissions filed on 26 April 2024, insofar as those submissions relate to the interplay between the oral evidence of the applicant, and the other evidence filed on behalf of the applicant.
To the extent that the migration agent provided what might be considered to have been bad advice to the applicant, that is not enough to constitute a fraud on the Tribunal justifying the setting aside of its decision.
The Court further accepts the submission made on behalf of the first respondent that any alleged error was immaterial, in the sense that even if the applicant had appeared before the Tribunal there was no realistic possibility that the Tribunal would have arrived at a different decision. The Court accepts the submission made on behalf of the first respondent that there was no evidence before the Court to support the submission that had the applicant appeared before the Tribunal he:
“ … might have clarified with the Tribunal the status of his fee dispute with Torrens University and informed the Tribunal that he had in fact had the money to pay Torrens University if the dispute could not be resolved … ”.There being only speculation as to whether or not the applicant might have so clarified his position was a matter of pure conjecture upon which a Court should not act for the purpose of assessing the materiality of the alleged fraud. [2]
[2] CKL21 v Minister for Home Affairs (2022) 293 FCR 634 at [74] per Moshinsky, O’Bryan and Cheeseman
JJ and Minister for Immigration and Border Protection v CPA16 (2019) FCAFC 40 at [32(6)] per Yates, Murphy and Moshinsky JJ.
In any event, it was not in dispute that the applicant did not have a current certificate of enrolment at the relevant time of the decision. There is no merit to Ground 1.
As to Ground 2, it was asserted that the refusal of the Tribunal to adjourn the hearing before the Tribunal was legally unreasonable, in that the Tribunal ought to have allowed the applicant more time to negotiate with Torrens University before proceeding to determine the application for review. There was no merit to such claim.
In Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [66] and [76] it was held per Hayne, Kiefel and Bell JJ as follows:
“[66]This 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.
…
[76]As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The test for a finding of legal unreasonableness has been held to be stringent. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] – [11], Kiefel CJ said:
“[10]In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11]Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”
The Tribunal dealt with the question of adjourning the hearing before it at [18] – [23] of its reasons as follows:
The application to postpone the review
[18]To the extent that the agent’s email of 2 December 2021 may be regarded as an application to postpone the review until such time as he resolves his fee dispute with Torrens and (by inference) secure re-enrolment in that or another course, the Tribunal declines to do so.
[19]The applicant has had ample time to sort out his fee issue with Torrens or, if he could not do so, to secure enrolment in another registered course of study. The fact that he has given no indication in his correspondence as to when the Tribunal could expect him to produce a current COE for that or any other course obviously does nothing to warrant a postponement.
[20]Although the applicant has provided the Tribunal with other documents in the form of a Psychiatrist’s Report dated 1 June 2020 and other associated medical evidence which he had apparently provided to Torrens at about that stage to support an application for a temporary (5 month) relaxation of the Nursing course requirements on medical grounds, it is equally apparent from this and other evidence, including his Personal Statement dated 18 August 2021, that he was no longer relying on his asserted medical condition to explain the eventual cancellation of his enrolment in that course in April 2021. Certainly, his agent’s correspondence with the Tribunal towards the end of that year does not assert that his mental condition in or about June 2020 had anything to do with the cancellation in April 2021. Rather, at least according to this correspondence, it had come about because of a dispute about the payment of tuition fees.
[21]In any event, whatever ongoing significance the applicant’s mental condition might have to his current enrolment status, the Tribunal is quite unable to accede to an application to postpone the review until such time as he gets his house in order and secures an enrolment.
A consideration of the evidence and finding on the review
[22]It is clear from his own documents that the applicant accepts that his enrolment in the Nursing course at Torrens was cancelled prior to 19 August 2021 and, absent any evidence from him to the contrary, it is reasonably clear that he is not enrolled in any other registered course of study at the time of this decision.
[23]In addition to that evidence the Tribunal is entitled to and does rely on the information in the PRISMS record as evidence of the fact that the applicant is not currently enrolled in a registered course of study.
A Tribunal is not required to consider each and every idiosyncrasy on the part of each and every applicant, in minute detail, before arriving at a decision as to whether a matter should be adjourned or not. The Tribunal in the instant matter properly recognised that the applicant had had more than enough time to get his affairs in order so as to bring and prosecute his review application. The applicant failed to do so. The decision of the Tribunal not to adjourn the hearing before it was not unreasonable. In Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42], Wigney J held as follows:
“[41]The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. 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: Li at [100]-[102].
(i) 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 or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) 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: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
[42]The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”
There was no persuasive evidence before the Tribunal that the applicant would have been able to resolve his issues with Torrens University, either at all, or in a timely manner. That absence of evidence was significant. In the context of an applicant having failed to obtain a particular statutory declaration from a psychologist in support of a claim that he was a victim of family violence, in Mudiy v Minister for Home Affairs [2023] FCA 1402 at [75] - [77], O’ Brien J said as follows:
“[75]The appellant suggested at the Tribunal hearing that he had encountered difficulties with his former lawyers. However, the appellant engaged a new migration agent a little more than one month after he filed his application for review with the Tribunal. The new migration agent represented the appellant throughout that process and appeared at the hearing.
[76]It was in that context that the appellant’s representative made a request at the hearing for additional time to remedy the deficiency. As discussed above, although the request was not expressed clearly, the purpose of the request for additional time was to enable the appellant time to try and arrange for Ms Bartlett’s notes (of her sessions with the appellant) to be provided to another psychiatric or psychologist to “reassess whether ... any family violence has occurred”. That request was refused.
[77]In my view, the Tribunal’s refusal of the request for an adjournment was not legally unreasonable. There was no material before the Tribunal to suggest that, if an adjournment were granted, the appellant would be able to remedy the deficiency in his visa application by obtaining the required statutory declaration.”
On the question as to whether the Tribunal had a duty to inquire, the first respondent correctly relied upon Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [1] it was said per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ as follows:
[1]The functions, powers and duties of the Refugee Review Tribunal (the Tribunal) are set out in Pt 7 of the Migration Act 1958 (Cth). When the Tribunal receives a valid application for the review of an “RRT-reviewable decision” under the Migration Act, it must review that decision. The class of “RRT-reviewable decisions” includes decisions by delegates of the Minister for Immigration and Citizenship (the Minister) refusing the grant of protection visas. In the exercise of its review function, the Tribunal may obtain such information as it considers relevant. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
130.“ In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135.On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 6 June 2024
0
13
2