Dongalen v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 838
•5 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dongalen v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 838
File number: MLG 4327 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 5 September 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider mandatory factors or relevant considerations – whether the Tribunal failed to consider the first applicant’s medical condition – whether the Tribunal erred by sending a second hearing invitation letter to the applicants’ representative, rather than to the applicants directly – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359, 360, 360A, 362B, 363, 379C, 379G, 476 & 499
Migration Regulations 1994 (Cth), cll 500.211, 500.212, 500.218 & 500.311 and reg 4.21
Cases cited: AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144
Bodige v Minister for Immigration & Anor [2018] FCCA 1841
Chumber v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 188
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 605
Division: Division 2 General Federal Law Number of paragraphs: 128 Date of last submission: 17 May 2024 Date of hearing: 24 April 2024 Place: Perth Counsel for the Applicants: Mr I Warraich Solicitor for the Applicants: HUK Legal Counsel for the First Respondent: Mr A Cunynghame Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 4327 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLEOFE ONGYOD DONGALEN
First Applicant
ASHLEY DONGALEN
Second Applicant
ASHLEY DONGALEN JR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
5 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The application be dismissed.
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 KENDALL:
BACKGROUND
The applicants are all citizens of the Philippines (Court Book (“CB”) 2-6). The first and second applicants are wife and husband respectively (CB 3-5 & 28). The third applicant is their son (who was a minor at the time of the relevant visa application) (CB 5-6 & 29).
The applicants arrived in Australia in October 2013 after the first applicant was granted a student visa. The first applicant was subsequently granted a temporary work (Subclass 457) visa and a temporary skilled (Subclass 485) visa (CB 138).
On 9 May 2019, the first applicant applied for the Student (Class TU) (Subclass 500) visa the subject of this application (the “visa”) (CB 1-26). The second and third applicants were included in that visa application as members of the first applicant’s family unit (CB 4-6). The applicants provided supporting documents and a statement of purpose with that visa application (CB 27-37).
On 31 July 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 46-52). The delegate found that the first applicant did not satisfy the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). In particular, the delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily (CB 49-50). The delegate also found that the second and third applicants did not satisfy the requirements set out in cl 500.311 in Schedule 2 of the Regulations (CB 51-52).
On 16 August 2019, the applicants applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 53-55). In that application, the applicants appointed a registered migration agent (the “representative”) to assist them with their Tribunal review (CB 54-55).
On 4 May 2020, the Tribunal invited the applicants (through their representative and pursuant to s 359 of the Migration Act 1958 (Cth) (the “Act”)) to provide information in relation to their review application (the “s 359 invitation letter”) (CB 69-78). That s 359 invitation letter asked the applicants to provide information confirming the first applicant’s enrolment in a registered course of study and evidence that the first applicant was a genuine applicant for entry and stay as a student (CB 72).
The applicants provided a completed “Request for Student Visa Information under s 359(2) of the Migration Act 1958” form (the “questionnaire”) in response to that s 359 invitation letter (CB 79-90).
On 28 August 2020, the applicants were invited (through their representative) to attend a hearing before the Tribunal on 15 September 2020 by telephone (the “first hearing invitation letter”) (CB 91-95).
On 2 September 2020, the applicants provided the Tribunal with a completed “Response to hearing invitation” form and a completed “Change of Contact Details” form (withdrawing their previous authorisation for the applicants’ migration agent to act as their “representative”) (CB 96-101).
On 12 September 2020, the first applicant wrote to the Tribunal (by email) as follows (CB 102):
I am writing this letter to ask a sincere apology for not attending court hearing scheduled on September 14, 2020 due to my medical condition. Enclosed is my medical certificate.
Thank you for your understanding, and I appreciate how much of an inconvenience this is.
Attached to that email was a medical certificate (dated 12 September 2020) which stated that the first applicant “ha[d] a medical condition and [would] be unfit for work from 12/09/2020 to 16/09/2020 inclusive” (CB 103).
The applicants did not attend the Tribunal hearing on 14 September 2020 (CB 104-107).
The Tribunal attempted to contact the first applicant by phone (twice) on 14 September 2020. On both occasions, the call went to voicemail (CB 132).
On 25 September 2020, the Tribunal dismissed the application pursuant to s 362B(1A)(b) of the Act on the basis of the applicants’ failure to appear at the hearing “without further consideration of that application or the information before the Tribunal” (the “Non-Appearance Decision”) (CB 112).
On 28 September 2020, the applicants were notified of the Non-Appearance Decision (through their former representative and via email) (CB 108). The covering letter attached to that email notified the applicants that they could apply to the Tribunal (in writing) for reinstatement of their application and that they were required to do so by 12 October 2020 (CB 110).
On 11 October 2020, the first applicant wrote to the Tribunal (by email) essentially seeking reinstatement of the applicants’ review application. That email correspondence stated as follows (CB 113):
Due to my medical condition I was not able to attend the hearing. Kindly provide a new hearing date.
I have attached my medical certificate for your reference. Thak you.
The first applicant again provided a copy of a medical certificate (dated 10 October 2020). That medical certificate stated that the first applicant “ha[d] a medical condition and [would] be unfit for work from 10/10/2020 to 12/10/2020 inclusive” (CB 114).
On 12 November 2020, the Tribunal reinstated the application (the “Reinstatement Decision”) (CB 118).
On 13 November 2020, the Tribunal notified the applicants of the Reinstatement Decision (through their former representative and by email) (CB 115-117).
On 20 November 2020, the Tribunal invited the applicants (via email and through their former representative) to attend a further hearing before the Tribunal by telephone on 7 December 2020 (the “second hearing invitation letter”) (CB 119-123).
On 5 December 2020, the first applicant notified the Tribunal that she was unable to attend the hearing. That correspondence stated (CB 124):
I regret that I am unable to participate in the virtual hearing on Monday 7 December 2020 as I am concerned that my anxiety and depression could be aggravated due to the stress associated with the hearing. I developed mental health issues when a migration agent [Migration Agent 1] and [Migration Agent 2] from [Migration Agency] trading that supposedly found an employer who offered to sponsor me as a Personal Care Assistant in an Aged Care facility with the intention to obtain a working visa in Australia. I paid the agents $35,000 so that he can process my documents. However, I haven’t heard from this agent again and when I went to their office, there was nowhere to be found and the office was closed.
Since then, I suffered bouts of depression and anxiety. I am providing a letter from my doctor to support my mental health issues. I am therefore unavailable for the virtual hearing, hoping for your kind understanding.
Attached to that email correspondence was a further medical certificate (4 December 2020) which stated that the first applicant “ha[d] a medical condition and [would] be unfit for work from 05/12/2020 to 08/12/2020 inclusive” (CB 125).
On 7 December 2020 (at 10.14am), the Tribunal notified the applicants (through their former representative) that the request for postponement of the hearing had been refused and that the hearing would proceed that day (being on 7 December 2020) at “1.30pm (VIC time)” by telephone (CB 126-131).
The applicants did not attend the hearing that afternoon (CB 139).
The Tribunal attempted to call the first applicant on four occasions (between 1.11pm and 1.45pm) on 7 December 2020. The first applicant did not answer any of the calls (CB 133).
On 8 December 2020, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 137-141).
On 17 December 2020, the applicants applied to this Court for judicial review of the Tribunal’s decision.
THE TRIBUNAL’S DECISION
That application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus helpful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is five pages long and spans 33 paragraphs (CB 137-141).
The Tribunal began by explaining that the applicants had applied for the visas on 9 May 2019 and that, on 31 July 2019, a delegate of the Minister had refused to grant the applicants those visas because the first applicant did not satisfy cl 500.212 in Schedule 2 of the Regulations. The Tribunal explained that the applicants had sought review of that decision by the Tribunal on 16 August 2019 (at [1]-[5]).
The Tribunal outlined that it had invited the first applicant to provide further information (pursuant to s 359(2) of the Act) on 5 May 2020 and that the first applicant had responded to that request on 18 May 2020. The Tribunal explained that the matter had been listed for a hearing before the Tribunal on 14 September 2020 and that, on 13 September 2020, the first applicant had written to the Tribunal and “apologised for not attending the hearing for unspecified reasons”. The first applicant also provided the Tribunal with a medical certificate which stated that she was “unfit for work from 12 to 16 September 2020” (at [6]-[7]).
The Tribunal detailed that the matter had been dismissed on account of the first applicant’s non-appearance pursuant to s 362B(1A)(b) of the Act on 25 September 2020. The Tribunal noted that the first applicant had applied for reinstatement on 11 October 2020 and that on 13 November 2020, the Tribunal had reinstated the proceeding. The Tribunal also explained that the matter had been listed for a further hearing on 7 December 2020 and that two SMS reminder messages had been sent to the applicants. The Tribunal noted that, on 5 December 2020, the first applicant had emailed the Tribunal advising that she was “unable to participate in the virtual hearing” on the basis that her “anxiety and depression” might be “aggravated due to the stress associated with the hearing”. The Tribunal explained that a medical certificate had also been provided which stated that the first applicant had “a medical condition” and would be “unfit for work from 5 December 2020 to 8 December 2020” (at [8]-[12]).
The Tribunal continued:
13.The Tribunal refused the application for a postponement in circumstances in which:
(a)The matter had previously been dismissed and reinstated at the applicant’s request;
(b) The applicant requested an indefinite postponement;
(c)The applicant’s medical certificate made no reference to an ongoing mental health condition and did not suggest that she was unable to give evidence by telephone;
(d)For reasons that will become apparent in relation to the applicant’s enrolment, there is no utility in postponing the application for further hearing.
The Tribunal explained that the hearing was scheduled for the afternoon 7 December 2020 and that the first applicant did not respond to the Tribunal’s attempts to contact her. The Tribunal also noted that the applicants were assisted in their review by their representative (at [14]-[15]).
The Tribunal detailed the criteria for the grant of a Subclass 500 visa and noted, in particular, that cl 500.211 in Schedule 2 of the Regulations requires that, at the time of decision, the first applicant must be enrolled in a “registered course” of study. The Tribunal then set out the relevant definitions in that regard. The Tribunal also stressed the importance of maintaining enrolment, even after a student visa is granted, and noted that, on that basis, the Tribunal must be provided with evidence that shows that an applicant is enrolled in a registered course of study (in order to be satisfied that the requirements of cl 500.211 in Schedule 2 of the Regulations have been met) (at [17]-[21]).
The Tribunal explained that, in the present case, it could not be satisfied that the first applicant was enrolled a registered course of study and noted that, in response to the invitation to provide information sent to the applicants (pursuant to s 359(2) of the Act), the first applicant had responded (in writing on 18 May 2020) and answered “no” to the question of whether she had “a current Confirmation of Enrolment”. The Tribunal also noted that its hearing invitation letter (sent to the applicants on 20 November 2020 and inviting the applicants to attend a hearing on 7 December 2020) also referenced the requirement that evidence of enrolment be provided. The Tribunal considered that the first applicant had been put on notice of the requirement that she be enrolled in a registered course of study in order to be granted the visa (at [23]-[26]).
The Tribunal set out the information provided by the first applicant in response to the invitation to provide information, noting, in particular, that the first applicant had completed courses in Aged Care, Commercial Cookery and Hospitality and that the most recent course was completed in August 2017. The Tribunal stressed that the response also confirmed that the first applicant was no longer enrolled in any study in Australia and that “cogent evidence of a current enrolment must be presented to the Tribunal” before a positive finding could be made. The Tribunal noted that no such evidence was before it and, as such, it could not be satisfied that the first applicant met the requirements set out in cl 500.211 in Schedule 2 of the Regulations. On that basis, the Tribunal found that the applicant did not meet the criteria for the grant of the visa (at [27]-[30]).
Because the first applicant failed to meet the primary criteria for the grant of the visa, the Tribunal determined that the second and third applicant also failed to meet the visa criteria and affirmed the delegate’s decision refusing to grant the applicants the visas (at [31]-[33]).
APPLICATION TO THIS COURT
On 17 December 2020, the applicants filed an application in this Court seeking review of the Tribunal’s decision.
On 27 July 2021, an updated notice of address for service was filed on behalf of the applicants by a solicitor, Mr Imran Warraich (“Mr Warraich”) (of HUK Legal).
On 28 July 2021, procedural orders were made by Registrar van der Westhuizen giving the applicant an opportunity to file an amended application, any written submissions and any additional evidence.
On 28 March 2024, an amended application was filed on behalf of the applicants. That amended application contained two particularised grounds of review, as follows (without alteration):
1.FAILURE TO CONSIDER MANDATORY FACTORS
PARTICULARS
(a)The AAT has committed jurisdictional error by failing to consider mandatory criteria specified under the Ministerial Direction and deciding the matter by excluding the information that favoured the applicant.
(b)The Learned Tribunal member fell into jurisdictional error when the Tribunal failed to consider several mandatory considerations as specified in the Ministerial Direction. The tribunal completely ignored mandatory concerning the applicant’s circumstances and which related to other relevant information provided by the applicant, in this matter, the circumstances which explained the applicant’s study plan and future endeavours.
2.FAILED TO TAKE RELEVANT CONSIDERATIONS
PARTICULARS
The AAT failed to take relevant considerations, and unreasonably decided that the academic progress would not assist the applicant in future endeavours. The Tribunal also not justified in Evaluation of the whole academic progress and the future value of the proposed course.
The materials before this Court at the hearing included a Court Book numbering 141 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 22 March 2024, the amended application for judicial review filed on behalf of the applicants on 28 March 2024 and further written submissions filed on behalf of the Minister on 2 April 2024.
Mr Warraich appeared (via video link) at the hearing of this matter (on 5 April 2024) on behalf of the applicants. Mr Adam Cunynghame (“Mr Cunynghame”) (from Sparke Helmore) appeared (via video link) on behalf of the Minister.
Unfortunately, and somewhat unusually given that the applicants were legally represented before the Court, no written submissions were filed on behalf of the applicants ahead of the hearing. This is despite clear orders requiring Mr Warraich to do so. When asked why no written submissions had filed, Mr Warraich informed the Court that his preferred approach was to “make his submissions orally”.
This approach is less than ideal. While expected and accommodated when an applicant appears without legal representation, more is expected from those who hold themselves out to be experienced migration counsel.
The Court expressed “concerns” about Mr Warraich’s conduct in this regard but ultimately allowed him to proceed – noting that if Mr Cunynghame (for the Minister) was unable to respond to any of the matters raised in Mr Warraich’s oral submissions, the Court would give him more time within which to do so (either orally or in writing).
Mr Cunynghame demonstrated remarkable patience in this regard and the Court thanks him for his cooperation and assistance.
The Court notes that the assistance provided by Mr Warraich in this matter was “limited”. While the Court always prefers that applicants have the benefit of legal assistance, occasionally (but not often) that assistance fails to reach a standard that is, in fact, helpful. The Court’s usual practice in circumstances where applicants are not represented is to interpret the applicants’ concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391). In the circumstances of this matter and noting the concerns raised above, the Court followed that practice in this matter and forensically reviewed the Tribunal’s decision itself for jurisdictional error.
With this in mind, on 24 April 2024 (following the hearing of this matter on 5 April 2024), the Court contacted the parties (by email) raising an issue for their consideration as follows:
His Honour is in the process of reviewing the materials and writing his judgment in this matter and raises the following issue for the parties’ consideration.
The Minister submits that the Tribunal complied with its procedural fairness obligations by inviting the applicants to attend a hearing scheduled for 7 December 2020 and that the Tribunal complied with the relevant legislative requirements by transmitting that invitation “by email to the [applicants’] authorised recipient” (at paragraph 27 in written submissions filed on 22 March 2024). The Minister also submits that the Tribunal correctly exercised its discretion to make its decision in the applicants’ absence, in part, because the first applicant was informed that her “request for postponement of the hearing had been refused” “via letter to her authorised recipient dated 7 December 2020” (at paragraph 28.5 in written submissions filed on 22 March 2024).
His Honour notes, however, that the first applicant appears to have notified the Tribunal on 2 September 2020 that she had withdrawn her authorisation for that representative to act on her behalf. Further, the first applicant agreed to the Tribunal sending all correspondence by email to her directly (see sections E and F of the Change of Contact Details Form at page 101 in the Court Book).
His Honour queries whether the parties (in particular, the Minister) wish to comment on the Tribunal corresponding with the applicants’ representative (rather than the applicants directly) after 2 September 2020.
If the parties wish to comment and would like to do so by way of oral submissions, His Honour has availability on 30 April 2024 to have a further hearing in this matter. If the parties prefer to comment by way of further written submissions, His Honour asks that the parties confer in relation to the timing for the filing of such submissions and provide agreed consent orders to Chambers for His Honour’s consideration.
His Honour asks that the parties provide a joint response to Chambers by no later than close of business on Friday, 26 April 2024.
Mr Cunynghame replied to the Court advising that he was “instructed to propose further written submissions to address the … issues” and would confer with the applicants’ representative in relation to proposed orders in that regard.
Orders were made by the Court (by consent) on 24 April 2024 as follows:
1.On or before 3 May 2024, the first respondent file and serve further written submissions.
2.On or before 10 May 2024, the applicant file and serve any further written submissions.
3.On or before 17 May 2024, the first respondent file and serve any written submissions in reply.
4.Costs be reserved.
Written submissions were filed on behalf of the applicants on 12 May 2024. Unfortunately, those written submissions did not address any of the concerns raised by the Court outlined above.
Further written submissions were filed on behalf of the Minister on 17 May 2024. Those submissions did address the Court’s concerns.
CONSIDERATION
Grounds of review
As outlined above, the grounds of review set out in the amended application for judicial review (filed on behalf of the applicants on 28 March 2024) provide as follows:
1.FAILURE TO CONSIDER MANDATORY FACTORS
PARTICULARS
(a)The AAT has committed jurisdictional error by failing to consider mandatory criteria specified under the Ministerial Direction and deciding the matter by excluding the information that favoured the applicant.
(b)The Learned Tribunal member fell into jurisdictional error when the Tribunal failed to consider several mandatory considerations as specified in the Ministerial Direction. The tribunal completely ignored mandatory concerning the applicant’s circumstances and which related to other relevant information provided by the applicant, in this matter, the circumstances which explained the applicant’s study plan and future endeavours.
2.FAILED TO TAKE RELEVANT CONSIDERATIONS
PARTICULARS
The AAT failed to take relevant considerations, and unreasonably decided that the academic progress would not assist the applicant in future endeavours. The Tribunal also not justified in Evaluation of the whole academic progress and the future value of the proposed course.
Although not entirely clear, both amended grounds of review appear to raise concerns about the alleged failure on the part of the Tribunal to consider mandatory factors or relevant considerations.
Before considering the applicants’ grounds of review, it is useful to first outline the relevant legislative provisions applicable to this matter.
In order to be granted a Subclass 500 visa, at least one of the applicants needed to satisfy the primary criteria for the grant of the visa at the time of the Tribunal’s decision.
That primary criteria is set out at cll 500.211 to 500.218 in Schedule 2 of the Regulations and, at the time of the Tribunal’s decision, relevantly provided as follows:
500.2—Primary criteria
Note:The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b)if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c)if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;
(d)if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, 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
(iv) any other relevant matter; and
(b)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) of any other relevant matter.
…
The “particulars” provided in the applicants’ amended grounds of review arguably refer to the relevant factors outlined in the relevant “Ministerial Direction” (made under s 499 of the Act) which requires that the Tribunal have regard to a number of factors when assessing the “genuine temporary entrant criterion” for the grant of a student visa.
As can be seen from the legislative provisions set out above, the first (and only issue) for the Tribunal to consider in this matter was whether the first applicant was enrolled in a course of study (as required by cl 500.211(a) in Schedule 2 of the Regulations).
The applicants were put on notice of this issue by way of the Tribunal’s s 359 invitation letter (sent to the applicants via email and through their representative on 4 May 2020) (CB 69-78). That s 359 invitation letter relevantly stated (CB 72):
As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking 'Submit' on the Declaration page.
Click here to complete the online Request for Student Visa Information form.
Alternatively, you may print, complete and return a hard copy of the form to us should you prefer. Click here to open a printable copy of the Request for Student Visa Information form. Please do not return a hard copy of the form to us if you have already submitted it online.
In response, the applicants provided a completed copy of the questionnaire to the Tribunal (CB 79-90).
Relevantly, the applicants answered “no” to question 14 in the questionnaire which asked “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?”. Question 14 also included a notation which read as follows (CB 84):
Note: Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.
The Tribunal again put the applicants on notice of the need for the first applicant to be enrolled in a course of study by way of the first hearing invitation letter (sent to the applicants via email and through their representative on 28 August 2020) (CB 91-95). That first hearing invitation letter relevantly stated (CB 94):
Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a NAATI accredited translator.
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 Certificate 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.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia. Please note, if you have recently provided these documents to the Tribunal, there is no need to submit them again, but please ensure that you have provided us with the most up-to-date information.
We may assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
We may also assess whether you are enrolled in a registered course of study. Please note that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the delegate.
The same information was also provided to the applicants in the second hearing invitation letter (sent to the applicants via email and through their representative on 20 November 2020) (CB 119-123).
The applicants did not provide any evidence to the Tribunal to suggest that the first applicant was enrolled in a course of study. Indeed, as outlined above, in the completed questionnaire provided by the applicants, the applicants’ own evidence to the Tribunal confirmed that the first applicant was not enrolled in a course of study (CB 84).
Once the Tribunal determined that the first applicant did not meet one of the mandatory requirements for the grant of the visa (being a current enrolment in a course of study as required by cl 500.211(a) in Schedule 2 of the Regulations), it was not required to assess whether any of the remaining visa criteria was or was not met: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 605 at [28] (citing Bodige v Minister for Immigration & Anor [2018] FCCA 1841 at [24]).
In particular, the Court notes that the Tribunal was not required to consider whether the applicant was a genuine temporary entrant (as required by cl 500.212 in Schedule 2 of the Regulations), including consideration of any of the factors set out in the relevant Ministerial Direction or any considerations in relation to the first applicant’s study plans, future endeavours, academic progress or the value of any proposed course of study.
To the extent that the applicants now suggest (in “particulars” relating to ground two) that the Tribunal was “not justified in [its] [e]valuation of the whole academic progress and the future value of the proposed course”, the Court notes that no findings were made by the Tribunal in this regard (and no findings were required to be made in circumstances where the sole question the Tribunal was required to consider was whether the first applicant was enrolled in a course of study).
No jurisdictional error arises in relation to the amended grounds of review.
Mr Warraich’s oral submissions (arguably requesting analysis of a further “ground of review”)
As outlined above, Mr Warraich did not file written submissions ahead of the hearing before this Court (on 5 April 2024) (as required). Instead, Mr Warraich endeavoured to make oral submissions at that hearing.
As outlined above, this Court will offer an unrepresented applicant considerable assistance and allow them to “orally” articulate any concerns they might have about the Tribunal’s decision. Where applicants are represented, however, the Court expects more. At a minimum, the Court expects solicitors to comply with orders made by the Court and to file written submissions outlining their arguments ahead of any Court hearing. It is unfortunate that that did not happen in this case. To assist the applicants, however, the Court will assess Mr Warraich’s oral submissions and determine if any jurisdictional error on the part of the Tribunal can be identified.
In his oral submissions to this Court, Mr Warraich essentially raised an additional “ground” of review and submitted that:
(a)the first applicant was unable to attend the Tribunal proceedings due to serious medical conditions;
(b)if the opportunity to appear before the Tribunal had been afforded, the first applicant would have been in a better position to present her case about her medical condition;
(c)the first applicant had been enrolled throughout. However, at the time of the Tribunal hearing, she was under stress and suffering from a medical condition and was not able to be enrolled. She did, however, enrol in other courses afterwards which she completed; and
(d)the Tribunal did not take into account the first applicant’s medical condition at the time of the hearing.
In response, Mr Cunynghame submitted orally as follows:
(a)the Minister understands the oral submissions to suggest that the Tribunal failed to consider the first applicant’s medical condition with respect to being afforded an opportunity to appear before the Tribunal to give evidence and present arguments;
(b)the Minister relies on paragraph 28 of the Minister’s written submissions (filed in this Court on 22 March 2024) which, relevantly, provide as follows:
(i)the Tribunal’s discretion under s 362B of the Act was exercised reasonably (citing AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4]). The applicants’ failure to appear a the scheduled hearing was unremarkable and it was reasonable for the Tribunal to proceed as it did in circumstances where the Tribunal:
(A)validly sent a hearing invitation to the applicants’ authorised recipient;
(B)only received correspondence from the first applicant two non-working days before the scheduled hearing advising that she would not attend that hearing and seeking an adjournment for an unspecified period of time;
(C)did not receive cogent medical evidence in support of the first applicant’s adjournment request;
(D)had previously dismissed the matter for non-appearance and reinstated the matter at the first applicant’s request;
(E)informed the applicants via letter to their representative (dated 7 December 2020) that the request for an adjournment had been refused;
(F)sent two SMS hearing reminder messages directly to the applicants prior to the scheduled hearing (including one on 4 December 2020, being the last business day before the hearing);
(G)called the applicants directly four times during the time that the hearing was scheduled; and
(c)the Minister emphasises the Tribunal’s finding that there was “essentially no utility” in the matter because the issue before the Tribunal was quite confined to whether or not the applicant was enrolled in a course of study for the purpose of cl 500.211 in Schedule 2 of the Regulation”.
To the extent that the applicants suggest that the Tribunal failed to consider the evidence provided by the first applicant in relation to her claimed medical conditions, this fails on a factual level.
The Tribunal (at [11] of its written reasons) reproduced the contents of the first applicant’s email dated 5 December 2020 in which she advised that she was “unavailable for the virtual hearing” scheduled to take place on 7 December 2020. In that email correspondence, the first applicant stated that she was “concerned that [her] anxiety and depression could be aggravated due to the stress associated with the hearing” and that she claimed to have “developed mental health issues” due to the conduct of a migration agent. The Tribunal also confirmed that the first applicant had provided a medical certificate with that email which stated that the first applicant “ha[d] a medical condition” and would “be unfit for work from 5 December 2020 to 8 December 2020” (at [12] of its written reasons).
The Tribunal went on to refuse the application for postponement for a number of reasons, including that the first applicant’s “medical certificate made no reference to an ongoing mental health condition and did not suggest that she was unable to give evidence by telephone” (see [13(c)] of the Tribunal’s reasons).
As can be seen from the extracts above, the Tribunal considered the (limited) evidence provided by the first applicant in relation to her claimed medical condition but was not satisfied that she could not participate in a hearing by telephone and refused to grant the adjournment.
Insofar as the applicants suggest that the Tribunal acted unreasonably by refusing to adjourn the matter, the Court also disagrees for the reasons that follow.
As outlined above, the Tribunal considered the first applicant’s request for an adjournment (at [11]-[12]) but ultimately declined to adjourn the hearing (at [13]).
The applicants were also advised of the refusal in writing by way of a letter (sent by email and via their representative on 7 December 2020) (CB 126-131).
It cannot be said that the Tribunal ignored or failed to consider the adjournment request.
As explained by the Court in Chumber v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 188, the question then arises as to whether the Tribunal’s decision to refuse to grant the applicants the adjournment was legally unreasonable.
Pursuant to s 363(1) of the Act, the Tribunal has a statutory discretion to adjourn a review “from time to time”. At the time of the Tribunal’s decision, s 363(1) of the Act relevantly provided as follows:
363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
(c)subject to section 378, give information to the applicant and to the Secretary; or
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
Because s 363 of the Act contains a statutory discretionary power, that power must be exercised reasonably.
In this regard, the Court notes the High Court’s reasoning in Li, wherein the High Court assessed the scope of the exercise of a statutory discretion by a decision-maker as follows (emphasis added):
63.Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.
…
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.
In this matter, the Tribunal outlined its reasons for refusing to adjourn the matter as follows:
13.The Tribunal refused the application for a postponement in circumstances in which:
(a)The matter had previously been dismissed and reinstated at the applicant’s request;
(b) The applicant requested an indefinite postponement;
(c)The applicant’s medical certificate made no reference to an ongoing mental health condition and did not suggest that she was unable to give evidence by telephone;
(d)For reasons that will become apparent in relation to the applicant's enrolment, there is no utility in postponing the application for further hearing.
In effect, the Tribunal’s justification for refusing to adjourn the matter was that the matter had already been dismissed and reinstated, the first applicant’s medical certificate did not confirm the existence of any mental health condition, the adjournment request was for an indefinite period of time and there was no utility in postponing the hearing in circumstances where the first applicant was not enrolled in a registered course of study.
In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, the Full Court of the Federal Court noted as follows (emphasis added):
47.This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
Here, it cannot be said that the Tribunal’s reasons do not demonstrate an “intelligible justification” for the Tribunal’s refusal to adjourn.
The High Court in Li also stressed that there is no obligation on the part of the Tribunal to afford an applicant every opportunity to present his or her case, stating as follows (emphasis added):
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.
This is arguably what the Tribunal did here. It noted that the matter had previously been dismissed for non-appearance and was subsequently reinstated, noted a lack of medical evidence and that the adjournment period was indefinite. Further, the Tribunal noted that there were issues in relation to the first applicant’s enrolment (being that she was not enrolled in a course of study, which was later discussed in the Tribunal’s written reasons).
Essentially, the Tribunal determined that “enough was enough” – concluding that the applicants had been given sufficient opportunity to provide the Tribunal with a confirmation of enrolment for the first applicant.
The Tribunal’s decision here contains an “evident and intelligible justification” for its refusal to adjourn the matter.
Further, the Court does not consider that it was unreasonable for the Tribunal not to adjourn the matter in circumstances where the applicants were on notice from 4 May 2020 (being the date upon which the Tribunal sent the applicants the s 359 invitation letter) that the first applicant was required to be enrolled in a registered course of study and the applicants at no point claimed that they were in the process of arranging for the first applicant to be enrolled in a course of study or that any confirmation of enrolment would be forthcoming.
No jurisdictional error arises in this regard.
Additional issue raised by the Court
As outlined above, the Court raised an issue with the parties in relation to the first applicant seemingly notifying the Tribunal (on 2 September 2020) that she had withdrawn her authorisation for her representative to act on her behalf.
The Court notes that, on or about 2 September 2020, the applicants provided a completed “Change of Contact Details” form to the Tribunal (signed by the first applicant on 2 September 2020) (CB 100-101).
That form contains six sections which can be completed (labelled A through to F). The form provided by the applicants was completed as follows:
(a)in section A titled “Applicant contact details”, the applicants selected the box labelled “no change”;
(b)in section B titled “Authorised recipient contact details”, the applicants selected the box labelled “no change”;
(c)in section C titled “Representative contact details”, the applicants selected the box labelled “no change”;
(d)in section D titled “Cancellation of authorised recipient”, the applicants made no selection (noting that the only option was to mark a box stating “I withdraw my previous authorisation of a person to receive correspondence on my behalf. I now wish all correspondence to be sent to me”);
(e)in section E titled “Cancellation of my representative”, the applicants selected the only available box (noting that the box selected stated “I withdraw my previous authorisation of a person to act as my representative”); and
(f)in section F titled “Communication by email” (and with an explanation which stated “If you have provided an email address, we may use the email address to contact you. You can also agree to us sending all case correspondence by email, including hearing invitations, written requests to provide or respond to information and the decision record”), the applicants selected the only available box (noting that the box selected stated “I agree to you sending all correspondence by email, and acknowledge that there are risks in transmitting information via email…”).
It is at least arguable, based on the information provided by the first applicant in the completed “Change of Contact Details” form (as set out above), that she intended for all communication to be sent to her directly after 2 September 2020.
The Tribunal, however, continued to send correspondence to the applicants’ representative.
As set out above, the Court made orders (by consent) allowing the parties to file written submissions addressing this issue.
Unfortunately, the written submissions filed by Mr Warraich (on 12 May 2024) pursuant to those orders did not address this issue. Instead, the written submissions simply outlined the factual background of the matter and then made submissions relating to the amended grounds of review and repeating oral submissions made at the hearing before this Court (all of which have been addressed by the Court above).
Mr Cunynghame (on behalf of the Minister) made submissions essentially drawing a distinction between the role of a “representative” and an “authorised recipient” and submitting that s 379G of the Act provides for an authorised recipient to receive correspondence on behalf of the applicant but does not allow for an authorised recipient to give immigration assistance.
Mr Cunynghame further submitted that the first applicant intended for her representative to act as an authorised recipient only and not as a representative from 2 September 2020.
Mr Cunynghame argues that this is apparent from the conduct of the matter (highlighting that the Tribunal continued to correspond with the applicants via their representative and the first applicant continued to respond to that correspondence directly). Mr Cunynghame also stated that, had the first applicant intended to withdraw authorisation for the representative to act as her authorised recipient, she could have simply lodged another change of contact details form “withdrawing authorisation and request for correspondence to be emailed to her directly”.
The Court notes that there is no definition of “representative” in the Act. Section 379G of the Act explains that, if an “applicant gives the Tribunal written notice of the name and address of another person authorised by the applicant to receive documents in connection with the review, that person is the “authorised recipient”. In circumstances where an “authorised recipient” has been appointed by an applicant, the Tribunal must give the authorised recipient (instead of the applicant) any documents that it would otherwise have given to the applicant: s 379G(1) of the Act.
The Court also notes that, when the applicants completed their Tribunal review application form (on 16 August 2019), they provided the details of their migration agent under a section titled “Representative details” (CB 54). That section of the review application form is reproduced below:
As outlined above, the first applicant (on or about 2 September 2020) attempted to change the contact details that the Tribunal had in relation to her review. The first applicant’s selections in this regard are reproduced below:
In the circumstances of this matter, where:
(a)the applicants provided details of their migration agent to the Tribunal in a section of the review application form asking for “representative details”;
(b)the first applicant has then clearly withdrawn her previous authorisation “of a person to act as [her] representative”;
(c)the first applicant also asked to be contacted by email; and
(d)the “Change of Contact Details” form is arguably confusing to a person who is not legally trained and who is not familiar with Tribunal processes;
it is arguable that the first applicant intended to withdraw her authorisation for her migration agent to be contacted in relation to the Tribunal review and was asking that she be contacted directly.
The Court disagrees with the Minister’s submission that the fact that the first applicant continued to respond to communications from the Tribunal (sent to the applicants’ representative) directly confirms that she wished for that representative to continue to receive correspondence. The Court considers that, if that were the case, it is more likely that that representative would have responded to those communications.
The Court also considers that, in the circumstances, the Tribunal ought to (at a minimum) have sought clarification from the first applicant about the completion of the “Change of Contact Details” form and enquired as to whether she wished to receive correspondence directly (which is arguably what she may have meant when she agreed to communication by email).
On the basis of the information above, and in circumstances where there is no definition of a “representative” included in the Act and the form lacks clarity to assist an arguably unrepresented applicant, the Court finds that the Tribunal erred in continuing to send correspondence to the applicants’ representative instead of to the applicants directly.
Of particular concern is the invitation for the applicants to attend the hearing (scheduled to take place on 7 December 2020).
The Court notes that s 360 of the Act requires that the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 360(1) of the Act. Any such invitation must comply with the requirements set out in s 360A of the Act.
At the time of the Tribunal’s decision, s 360A of the Act relevantly provided as follows:
360A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(5) The notice must contain a statement of the effect of section 362B.
In this matter, the Tribunal wrote to the applicants (through their representative) via email on 20 November 2020 (CB 119-123). That second hearing invitation clearly identified the date, time and place of the hearing, was sent with adequate notice (being at least 14 days prior to the hearing as required by reg 4.21 of the Regulations) and explained the consequences of non-attendance (as set out in s 362B of the Act).
The question for the Court to consider, however, is whether the notice was given to the applicants as required by s 360A(2)(a) of the Act.
Whilst the Court considers that the Tribunal erred in continuing to send correspondence to the applicants’ representative (rather than to the applicants directly, as set out above), the Court notes that the provisions set out in s 379C(7) of the Act essentially “cure” that error by deeming the documents to have been received by the applicants in any event.
Section 379C(7) of the Act relevantly provides as follows:
Document not given effectively
(7) If:
(a)the Tribunal purports to give a document to a person in accordance with a method specified in section 379A (including in a case covered by section 379AA) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
In the circumstances of this matter, where the first applicant responded to the second hearing invitation by email on 5 December 2020 and sought an adjournment of that hearing, the Court is satisfied that the applicants did in fact receive the second hearing invitation. Further, no suggestion was made by Mr Warraich that the applicants did not receive that correspondence or that the correspondence being sent to the applicants’ representative (rather than to the applicants directly) in any way contributed to the applicants failing to attend the hearing scheduled to take place on 7 December 2020.
Contextually, the Court is satisfied that the applicants were aware of the hearing and, by virtue of s 379C(7) of the Act, any error in the notice given to the applicants of that hearing by the Tribunal is otherwise “cured”.
The Court is also satisfied that any failure by the Tribunal to properly give notice of the hearing to the applicants did not result in any prejudice to the applicants.
No jurisdictional error arises in this regard.
CONCLUSION
The amended application for judicial review filed on behalf of the applicants on 28 March 2024 and Mr Warraich’s oral and written submissions to this Court have failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 5 September 2024
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