FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gaurav v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 316
ORDERS
ADG 204 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GAURAV GAURAV
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
12 APRIL 2024
THE COURT ORDERS THAT:
1.The originating application filed 3 June 2020 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 LUCEV
INTRODUCTION
Before the Court is an application for judicial review (“Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) dated 6 May 2020. The Judicial Review Application is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) to refuse to grant the applicant, Mr Gaurav, a Student (subclass 500) visa (“Student Visa”). The Tribunal Decision appears in the Court Book (“CB”) at CB 94-97.
BACKGROUND
The background to the matter prior to the Tribunal Decision is as follows:
(a)on 4 March 2019 Mr Gaurav, a male citizen of India, applied for the Student Visa: CB 1, and in the Student Visa application provided a Confirmation of Enrolment (“COE”) code A5488797: CB 1;
(b)on 24 July 2019 an officer of the Department of Home Affairs (“Department”) wrote to Mr Gaurav:
(i)advising him that it had “received unfavourable information which does not support your application”, namely that the COE provided with the Student Visa application had been “cancelled on 15 May 2019”: CB 52;
(ii)further advising Mr Gaurav that:
(A)the information was relevant as a valid enrolment was required to meet cl 500.211 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”);
(B)he may comment on the information provided by the Department; and
(C)he should “provide evidence that you have a valid Confirmation of Enrolment”: CB 52;
(c)on 22 August 2019 the Delegate’s Decision was to refuse to grant Mr Gaurav a Student Visa because the Delegate was not satisfied that Mr Gaurav met cl 500.211 of Sch 2 to the Migration Regulations: CB 61-63, in that Mr Gaurav was “currently not enrolled in any studies in Australia” and “the criteria for the grant of a Student visa are not met”: CB 62;
(d)on 11 September 2019 Mr Gaurav applied to the Tribunal for review of the Delegate’s Decision: CB 64. Mr Gaurav appointed a registered migration agent (“Migration Agent”) to act as his representative in connection with the Tribunal review: CB 65;
(e)on 31 March 2020 the Tribunal wrote to Mr Gaurav (by email to his Migration Agent who was his authorised recipient: CB 71-72) inviting Mr Gaurav to attend a hearing scheduled for 28 April 2020 (“Tribunal Hearing”) to give evidence and present arguments: CB 72-73. The Tribunal Hearing invitation letter (“Tribunal Hearing Invitation Letter”) relevantly stated as follows: CB 73-74 (emphasis in original):
As a result of the COVID-19 pandemic, the Administrative Appeals Tribunal is not holding face to face hearings from Monday 23 March 2020.
What this means for your matter
The impact on your matter has been considered by the Presiding Member, who has decided that a telephone hearing is suitable in your case.
Your hearing will proceed by telephone on 28 April 2020 at 3.00pm (SA time). Your representative, witnesses and any interpreter will also participate by telephone.
What you need to do:
You need to:
•Confirm your attendance by telephone in the attached hearing response or, if you cannot attend by telephone or if you have a difficulty in communication with us by telephone, tell us why.
…
In addition, please provide the following information by 20 April 2020;
1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 of 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 attendances certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.
(f)on 21 April 2020 the Tribunal’s standard SMS reminder of a forthcoming Tribunal hearing was sent to Mr Gaurav’s mobile telephone number, noting that the Tribunal Hearing was on 28 April 2020: CB 98;
(g)on 26 April 2020 the Migration Agent wrote to the Tribunal: CB 76, relevantly as follows:
I am aware that it is probably too late to apply extension for hearing and supporting documents. But, applicant has submitted psychological report as he is recovering from trauma. Therefore, if possible please provide him further extension to submission COE and other supporting documents.
(h)a number of documents then appear in the CB, comprising the following:
(i)a final v1 Separation Summary dated 6 August 2018 from Flinders Medical Centre indicating that Mr Gaurav had been admitted on 1 August 2018, had had an operative procedure on 1 August 2018, and a “Clinical Synopsis” as follows: CB 84:
21 year old male that presented for removal of left intramedullary tibial nail and revision fixation.
Biopsy taken for MCS and Histology.
No complications noted
On discharge biopsy showed no evidence of infection
Results due to be finalised on the 8th
Plan:
1. Discharge home
2. Clexane for DVT prophylaxis for 6 weeks
3. Non weight bearing on left leg for 6 weeks total
4. OPD ortho review in 2 weeks for wound review
5. OPD ortho review in 6 weeks with xray
6. Biopsy – no evidence of infection
•Discharged without antibiotics
•Ortho team will chase biopsy results when finalised (on 8/8/18)
•If evidence of infection appears on results – We will contact Gaurav regarding possibly starting antibiotics.
(ii)pro-forma letters dated 16 July, 6 August, 27 September and 25 October 2018, 30 July 2019 and 3 and 28 February 2020 notifying appointments at the Trauma/Registrar Orthopaedic Clinic at the Flinders Medical Centre on 6 and 15 August, 17 October and 14 November 2018, 26 August 2019 and 28 February and 11 March 2020 respectively: CB 79, 80, 81, 82, 83, 85 and 86;
(iii)what appears to be a referral for Mr Gaurav from a general practitioner (“GP Referral”) to a psychology practice dated 12 November 2019: CB 78, which says
Thank you for seeing Gaurav Gaurav for an opinion and management. Some stress/anxiety about the studies/school work./social life
and which lists Mr Gaurav’s two medications (one of which was a nasal spray) and lists his “Past Medical History” as “Not recorded”;
(iv)a psychologist’s report (“Psychologist’s Report) dated 21 November 2019: CB 77, which relevantly provided as follows:
Mr Gaurav Gaurav has attended our clinic for psychological therapy. Gaurav was involved in a serious car accident in 2018. The injuries sustained in this accident were severe and required hospitalisations for an extended period of time. It is also important to note that this was an aggravation to an injury that he had sustained in a previous car accident several years prior. Being that this was 2nd major accident and that he has no support network here in Australia he found it extremely difficult to cope and this had an affect on his ability to carry out his university studies.
He has been doing well in recent times and is now ready to resume his studies. It is important not to penalise him for poor grades as this was a result of considerable trauma from his accidents, and is not a true reflection of his capability to study.
(i)on 27 April 2020 at 12.05pm a Tribunal Officer rang the Migration Agent and subsequently made the following note: CB 98:
I rang the MA [Migration Agent] at the request of the Member to advise him, although we have received a request to postpone the hearing the presiding member has considered the request and has decided that the hearing will go ahead as scheduled. The MA understood this but said he had not heard from the PRA [Primary Review Applicant (that is, Mr Gaurav)] but only recently heard from hi[m] who said that he is not that well. Verified that the telephone contact numbers we have for the PRA and MA are correct.
(j)on 28 April 2020 Mr Gaurav appeared at the Tribunal Hearing to give evidence and present argument: CB 87. The Migration Agent did not appear at the Tribunal Hearing. No transcript of the Tribunal Hearing is in evidence. The Tribunal Hearing lasted for 26 minutes: CB 87-89, and due to COVID-19 health concerns was held by telephone: CB 95;
(k)on 28 April 2020 following the Tribunal Hearing the Tribunal wrote to Mr Gaurav as follows: CB 90:
I confirm that further to the hearing completed earlier today, the Presiding Member has requested that you provide to the Tribunal a current Confirmation-of-Enrolment for a Bachelor of Business and Marketing course. This is required to be provied within seven (7) days until close of business (SA time) Tuesday, 5 May 2020.
(l)Mr Gaurav did not respond to the 28 April 2020 request from the Tribunal, and there is no evidence that he took any steps to seek to provide a current COE or otherwise enrol in any course of study;
(m)on 6 May 2020 the Tribunal sent Mr Gaurav (by email to his Migration Agent) a copy of the Tribunal Decision: CB 94.
TRIBUNAL DECISION
In relation to Mr Gaurav’s request for the Tribunal Hearing to be adjourned, the Tribunal said, at CB 95 at [5], as follows:
On 26 April 2020 the Tribunal received from the registered migration agent a request for postponement of the hearing and a copy of a report from Adelaide Psychological Services, dated 21/11/19, in support in which it notes the applicant was involved in a car accident in 2018. The Tribunal considered this request and confirmed with the applicant on 27 April 2019 that the request was not supported and the hearing would proceed as scheduled.
The Tribunal otherwise:
(a)observed that the issue before it was whether or not Mr Gaurav satisfied cl 500.211(a) of Sch 2 to the Migration Regulations, noting that Mr Gaurav did not claim to meet any of the alternative criteria in cl 500.211 of Sch 2 to the Migration Regulations: CB 96 at [19];
(b)observed that Mr Gaurav confirmed at the Tribunal Hearing that he was not enrolled in a full-time registered course of study: CB 96 at [20];
(c)observed that the Tribunal asked Mr Gaurav to provide a current COE, noting that he had “determined that he will study a Bachelor of Accounting but has not enrolled”: CB 96 at [20], and further observed that it had provided Mr Gaurav “with 7 days from the hearing to forward a current confirmation-of-enrolment in a Bachelor Accounting course”: CB 97 at [21];
(d)observed that it did not receive any information or correspondence concerning a COE from Mr Gaurav within the “allowed period”: CB 97 at [21]; and
(e)found that Mr Gaurav failed to meet cl 500.211 of Sch 2 to the Migration Regulations, and therefore could not be granted a Student Visa: CB 97 at [22]-[23].
GROUNDS OF REVIEW IN THE JUDICIAL REVIEW APPLICATION
The Judicial Review Application raises three grounds of review as follows (reproduced unaltered):
1. Administrative Appeal Tribunal made Jurisdictional error by not considering my medical history.
2. Administrative Appeal Tribunal made Jurisdictional error not consider my social ties to my home country
3. Administrative Appeal Tribunal made Jurisdictional error by not considering my financial ties to my home country.
SUBMISSIONS
Mr Gaurav’s submissions
Mr Gaurav’s written submissions were as follows:
(a)the question for determination by this Court is whether a decision of the Tribunal to refuse to adjourn the Tribunal Hearing can constitute a jurisdictional error, so as to warrant an order quashing the decision of the Tribunal;
(b)the Tribunal’s refusal to adjourn the Tribunal Hearing to enable Mr Gaurav to present a COE constitutes a jurisdictional error: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 139 ALD 50; (2014) 308 ALR 280 (“Singh – Full Court”); Minister for Immigration and Citizenship v Li [2012] FCAFC 74; (2012) 202 FCR 387; (2012) 127 ALD 238; (2012) 289 ALR 210;
(c)the Tribunal failed to consider and address the medical reports in the Tribunal Decision, and failed to give Mr Gaurav sufficient time to allow him to enrol in the second semester;
(d)the Tribunal's refusal to adjourn the Tribunal Hearing and give Mr Gaurav sufficient time to organize a COE pursuant to s 363(l)(b) of the Migration Act was unreasonable. The Tribunal failed to take into account all of Mr Gaurav’s circumstances when it made the decision not to allow him further time to provide a COE;
(e)the Tribunal did not exercise its discretion to grant Mr Gaurav a sufficient adjournment to provide a COE;
(f)the Tribunal should have adjourned the Tribunal Hearing to allow the requirements of cl 500.211 of Sch 2 to the Migration Regulations to be met considering the medical reports that were submitted for its consideration; and
(g)the Tribunal denied Mr Gaurav procedural fairness because it failed to consider the medical reports, and the request of Mr Gaurav to grant a sufficient adjournment to obtain a COE for the second semester.
In his oral submissions at hearing Mr Gaurav:
(a)initially said that he would rely upon his written submissions and had nothing else to add: Transcript, p.3; and
(b)having heard the Minister’s lawyer’s oral submissions, made submissions in reply that:
(i)the Psychologist’s Report said that he “was okay to go ahead and take the admission, and go ahead and study. But at that point in time, I was not ready, and I was not in a position to go for the enrolment”: Transcript, p.7;
(ii)seven days was not enough time for him to obtain a COE and that it put him “under a lot of pressure”: Transcript, p.9;
(iii)his family were grieving the passing of his grandmother and coming to terms with that, and that also had a financial impact on his obtaining a COE: Transcript, pp 9-10; and
(iv)said that his father had been sick from 2020 and that this had put a strain on the family’s financial position, although this was not a matter which he had raised before the Tribunal: Transcript, p.10.
Minister’s submissions
In relation to grounds 1, 2 and 3 the Minister submitted that each of these grounds was misconceived in that, respectively, Mr Gaurav’s medical history, financial ties to his home country and financial history were not relevant to any issue arising for consideration before the Tribunal, and that, rather, the issue before the Tribunal was whether Mr Gaurav met the primary criterion for the grant of a Student Visa, that being whether he was enrolled in a registered course of study, and that he did not meet that criterion, and therefore grounds 1, 2 and 3 must fail.
In relation to the question of whether the Tribunal Decision was unreasonable by reason of the failure to adjourn the Tribunal Hearing at Mr Gaurav’s request, or because the Tribunal failed to give Mr Gaurav’s sufficient time after the Tribunal Hearing to obtain a COE, the Minister submitted as follows:
(a)it is well established that an applicant should be given a reasonable opportunity to present their case and that this may, from time to time, involve the adjournment of proceedings to enable an applicant the opportunity to meet a time of decision criterion: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”); Singh – Full Court and Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 67 ALD 615; (2002) 187 ALR 117; (2002) 76 ALJR 598 at [40] per Gaudron and Gummow JJ;
(b)the Tribunal’s refusal to adjourn the Tribunal Hearing pursuant to s 363(1)(b) of the Migration Act was legally reasonable. The Tribunal’s reasons for not exercising that discretion were that Mr Gaurav was given sufficient notice of the Tribunal Hearing, being put on notice on 31 March 2020;
(c)the Tribunal did exercise its discretion to grant Mr Gaurav an adjournment, namely a further week at the conclusion of the Tribunal Hearing, to provide further documentation, and did so reasonably;
(d)Mr Gaurav was put on notice on 31 March 2020 and requested an extension of time on 26 April 2020 for an unstipulated time period in reliance upon the Psychologist’s Report, which was dated 21 November 2019. The Psychologist’s Report stated that Mr Gaurav was ready to return to studies. At the Tribunal Hearing, Mr Gaurav advised that he had commenced a Bachelor of Business in March 2019 and stopped studying in July 2019 and had not studied since, however he said he had now decided to study a Bachelor of Accounting although he had not enrolled: CB 96 at [20]. The Tribunal provided Mr Gaurav with seven days from the Tribunal Hearing to provide a COE in a Bachelor of Accounting, however, Mr Gaurav did not provide information or correspondence within the allowed period: CB 97 at [21]; and
(e)in the above circumstances:
(i)there was nothing unreasonable in the Tribunal proceeding to make the Tribunal Decision after the further seven day period for providing the COE had elapsed; and
(ii)the Tribunal Decision was not legally unreasonable in the sense referred to in Li and Singh – Full Court.
LITIGATION HISTORY
The litigation history of this matter is as follows:
(a)the Judicial Review Application was filed on 3 June 2020;
(b)on 8 July 2020 a Registrar of the Court made orders (“Registrar’s Orders”) which included the following:
(i)that the CB be filed by 21 August 2020; and
(ii)for a final hearing on a date to be fixed;
(c)the CB was filed on 21 August 2020;
(d)nothing further occurred on the matter until it was docketed to the presently presiding Judge in mid-March 2023, as a consequence of which a directions hearing was listed for 28 March 2023;
(e)due to Mr Gaurav advising the Adelaide Registry of the Court on 23 March 2023 that he required the services of a Hindi interpreter (albeit that he had indicated in the Judicial Review Application that he did not require an interpreter), the 28 March 2023 directions hearing was vacated to find a convenient date for an interpreter to assist Mr Gaurav;
(f)on 27 March 2023 a directions hearing was listed for 5 June 2023;
(g)on 5 June 2023 a directions hearing was held and the Court made the following orders (“Court’s Orders”):
2.Orders 3-7 and 9 of Registrar Carlton’s orders of 8 July 2020 be set aside, and in lieu thereof order that:
a)the applicant file and serve any amended originating application, further affidavits, and an outline of submissions by 3 November 2023;
b)the first respondent file and serve any amended response, affidavits in reply, and an outline of submissions by 22 December 2023; and
c)the matter be listed for final hearing by videolink on 14 February 2024 at 10.00am AWST/12.30pm ACST before Judge Lucev.
(h)written submissions were filed by:
(i)the Minister on 21 December 2023; and
(ii)Mr Gaurav on 6 February 2024,
and a consent order regularising Mr Gaurav’s late filing of written submissions was made on 13 February 2024.
CONSIDERATION
Jurisdictional error required
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The onus is upon Mr Gaurav to establish jurisdictional error in the Tribunal Decision: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 ALR 173 at [48] per Griffiths, White and Bromwich JJ.
Grounds 1, 2 and 3
Criteria
The relevant criteria for the grant of the Student Visa at the time of the Tribunal Decision were 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.
Law related to the criteria
Clause 500.211(a) of Sch 2 to the Migration Regulations relevantly required that at the time of the Tribunal Decision Mr Gaurav be “enrolled in a course of study”. “Course of study” is relevantly defined in cl 500.111 of Sch 2 to the Migration Regulations as a “full-time registered course”. “Registered course” is defined in reg 1.03 of the Migration Regulations as a course of education or training provided by an institution, body or person that is registered under Div 3 of Pt 2 of the Education Services for Overseas Students Act 2000 (Cth) to provide the course to overseas students.
There are many, many judgments of the federal courts dealing with applicants for a student visa without confirmation of enrolment at the time of decision by the Tribunal, and who therefore failed to meet the criteria in cl 500.211(a) of Sch 2 to the Migration Regulations to be enrolled in a course of study. Brief reference to three judgments will suffice for present purposes.
In Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1350 (“Singh – FCA 2019”) at [29]-[31] per Banks-Smith J the Federal Court of Australia observed that:
29.Before me, the appellant said that he did not have a certificate of enrolment because he wished to await the grant of a visa before incurring the costs of enrolment. He also said he wanted a second chance to continue his studies, as he came to Australia for that purpose.
30.Whilst I can well understand the appellant’s desire to continue studies in Australia, the matters he has raised do not comprise a basis for finding appellable error on the part of the primary judge.
31.It is clear that the Tribunal properly understood its task. It ascertained that the appellant had failed to provide evidence of enrolment at the date of its decision and applied the relevant definition, as required for the purpose of considering whether the criterion for the subclass 500 visa was met. It applied the definition correctly. Accordingly, no jurisdictional error on the Tribunal’s part is disclosed and the primary judge did not err in dismissing the review application.
In Dhawan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1335 (“Dhawan”) at [58] per Judge Kendall (followed in Wangchuk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 220 (“Wangchuk”) at [18]-[20] per Judge Lucev) this Court (then Federal Circuit Court of Australia) observed that (emphasis in original):
... it was not relevant why the applicant was not enrolled. It was only relevant whether he was enrolled. Hence, the fact that he was not allowed an opportunity to explain “why” is of no consequence.
No enrolment
Mr Gaurav did not provide any evidence to the Tribunal that he was enrolled in a course of study at the time of the Tribunal Decision. There was therefore no evidence that at the time of the Tribunal Decision Mr Gaurav met the relevant criteria in cl 500.211(a) of Sch 2 to the Migration Regulations, which required Mr Gaurav to be enrolled in a course of study. Before the Court, Mr Gaurav admitted that at the time of the Tribunal Decision he was not enrolled in a course of study: Transcript, p 4. Mr Gaurav did not therefore meet the relevant criteria as prescribed in cl 500.211(a) of Sch 2 to the Migration Regulations at the time of the Tribunal Decision. Consequently, the Tribunal did not make an error in determining that Mr Gaurav failed to meet the relevant criteria. The Tribunal Decision affirming the Delegate’s Decision to refuse Mr Gaurav a Student Visa as Mr Gaurav did not meet the relevant criteria in cl 500.211 of Sch 2 to the Migration Regulations, as he was not enrolled in a course of study, was the only finding open to the Tribunal in respect to whether Mr Gaurav met the criteria at the time of the Tribunal Decision: Singh – FCA 2019 at [29]-[31] per Banks-Smith J; Dhawan at [58] per Judge Kendall; Wangchuk at [18]-[20] per Judge Lucev. Nothing put by Mr Gaurav demonstrates jurisdictional error in the Tribunal Decision in this respect.
Subject matter of grounds 1, 2 and 3
The subject matter of grounds 1, 2 and 3, namely Mr Gaurav’s medical history, social ties to his home country and financial history are, in accordance with the legislation and case law set out above, irrelevant to the question of whether Mr Gaurav met the relevant criteria in cl 500.211 of Sch 2 to the Migration Regulations. It follows that no jurisdictional error can arise by reason of the Tribunal failing to have regard to those matters in determining whether or not the criteria in cl 500.211 of Sch 2 to the Migration Regulations was met. It will, however, be necessary to consider those subject matters (medical history, social ties to the home country and financial history) in relation to Mr Gaurav’s submissions that the Tribunal Decision not to adjourn the Tribunal Hearing, and not to give him more time (that is, more than a further seven days) to obtain a COE, were unreasonable.
Whether the Tribunal Decision was unreasonable
Case law
In certain circumstances unreasonableness, and more correctly, legal unreasonableness, in an administrative decision may constitute jurisdictional error: Li at [63]-[76] per Hayne, Kiefel and Bell JJ.
Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ.
Legal unreasonableness is fact dependent and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; (2022) 397 ALR 1; [2022] FCAFC 3 at [30]-[33] per Allsop CJ, Besanko and O’Callaghan JJ (and cases there cited).
The relevant principles in relation to legal unreasonableness were conveniently summarised by the Federal Court in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J and include the following:
(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: [Minister for Immigration and Citizenshipv Li (2013) 249 CLR 332; 139 ALD 181; 297 ALR 225; [2013] HCA 18 (“Li”]at [29], [63], [88]; [Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280; 139 ALD 50; [2014] FCAFC 1 (“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) …
(h) …
(i) …
(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].
It is worth stressing the last point made in the above quote from Pandey at [41(j)] per Wigney J, citing Li at [113] per Gageler J, concerning the test for unreasonableness being stringent, as it is a point often lost in the gaggle and consequent grind of migration cases which come to this Court and then on appeal to the Federal Court. It is a point more recently reinforced in:
(a)Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1; (2018) 75 AAR 434 at [11] per Kiefel CJ, where it was said 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”; and
(b)Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; (2020) 281 FCR 578 at [65] per Rares, Anastassiou and Stewart JJ, where it was said that it “has been repeatedly emphasised that the test for unreasonableness is necessarily stringent”.
Providing a current COE
It is evident that Mr Gaurav was enrolled in a course on or about 4 March 2019: CB 1; and provided a COE code to the Department on 4 March 2019: CB 1, but the COE provided was cancelled on 15 May 2019: CB 52. Thereafter, Mr Gaurav was advised, or made aware of, the necessity to have a COE as a condition of being granted a Student Visa on at least the following occasions:
(a)by an officer of the Department on 24 July 2019, when Mr Gaurav was also advised that he should “provide evidence that you have a valid Confirmation of Enrolment”: CB 52;
(b)by the Delegate’s Decision on 22 August 2019 in which the Delegate found that the criteria for the grant of a Student Visa were not met because Mr Gaurav was “currently not enrolled in any studies in Australia”: CB 62;
(c)on 31 March 2020 when the Tribunal sent the Tribunal Hearing Invitation Letter to Mr Gaurav (the letter is set out at [3(e)] above) and was asked to provide, by 20 April 2020, “[a] copy of your current Confirmation of Enrolment (COE) or other document/documents that show you are currently enrolled in a course of study” as required by cl 500.211(a) of Sch 2 to the Migration Regulations; and
(d)on 28 April 2020 at the Tribunal Hearing, and in the subsequent letter of the same date (“Further Seven Days Letter”) to Mr Gaurav from the Tribunal, advising him that he had seven days to provide a “current Confirmation-of-Enrolment for a Bachelor of Business and Marketing course”: CB 90.
The Court notes that there is a slight discrepancy between the email sent to Mr Gaurav following the Tribunal Hearing which sought a current COE for a Bachelor of Business and Marketing course and the Tribunal Decision which says that Mr Gaurav indicated that he was intending to enrol in a Bachelor of Accounting and that the Tribunal gave him 7 days from the date of the Tribunal Hearing to provide a current COE for a Bachelor of Accounting. Mr Gaurav did not raise this as an issue at hearing in this Court, and the difference is not important: the important consideration is that Mr Gaurav was, once again, made aware that it was a condition of the grant of a Student Visa that he have a current COE.
It is also relevant to observe that from at least the time of the application to the Tribunal for review of the Delegate’s Decision, that is from 11 September 2019, the Migration Agent was acting on Mr Gaurav’s behalf, and it is reasonable for the Court to infer that the Migration Agent would also have been aware of the requirement for a current COE, both because of, and in, his capacity as a registered migration agent, but also because of the Delegate’s Decision of which review was being sought, and the Tribunal Hearing Invitation Letters and the Further Seven Days Letter, both of which sought that Mr Gaurav provide a current COE to the Tribunal.
It is relevant to note that at no time from the point at which the original COE was cancelled on 15 May 2019 to the expiration of the seven day period following the Tribunal Hearing (that is 5 May 2020) was there any evidence that Mr Gaurav actually inquired about or sought to enrol in a registered course of study which would have provided him with a current COE. Indeed, it appears that before the Tribunal Mr Gaurav admitted that he had not studied since July 2019 (a curious date given that the original COE was cancelled on 15 May 2019), and that although he had “determined” that he would study a Bachelor of Accounting he “has not enrolled”: CB 96 at [20]. Further, there is no evidence of what, if any, steps were taken by Mr Gaurav in the seven day period after the Tribunal Hearing with a view to obtaining a current COE.
By reason of the matters set out at [23] and [25]-[26] above, Mr Gaurav had, over a period of at least nine months from July 2019 to May 2020, the opportunity to obtain a current COE. It appears that that opportunity was simply not availed of by Mr Gaurav. It was not for the Tribunal to ensure that Mr Gaurav made the best of the opportunity that had been afforded to him by the Delegate and the Tribunal. In Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383 (“Sullivan”); ALR at 343 per Deane J the Federal Court observed that (emphasis in original):
… it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.
In Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482; (2014) 314 ALR 597 (“Jagroop”) at [32] per Dowsett, Murphy and White JJ the Full Court of the Federal Court having cited the above passage from Sullivan observed, at [33] per Dowsett, Murphy and White JJ that:
A reasonable opportunity is not synonymous with “every possible opportunity” or even “every opportunity”. Whether or not an applicant has been provided with the requisite opportunity is to be determined objectively, having regard to all the relevant circumstances.
The paragraphs cited from Jagroop were recently endorsed by another Full Court of the Federal Court in Kamal v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 106; [2023] FCAFC 159 at [17] per Rares, Bromwich and Raper JJ.
In the circumstances set out above, it cannot be said that the Tribunal acted unreasonably in relation to the opportunities that it gave Mr Gaurav after the opportunity given by the Delegate and the observations made in the Delegate’s Decision to provide the Tribunal with a current COE. It remains then to consider whether:
(a)the further period of seven days given to Mr Gaurav to provide a COE post the Tribunal Hearing was unreasonable;
(b)the Tribunal acted unreasonably in light of Mr Gaurav’s medical history, social ties to his home country and financial history; or
(c)whether the Tribunal denied Mr Gaurav procedural fairness because it failed to consider the medical reports, and the request of Mr Gaurav to grant a sufficient adjournment to obtain a COE (as asserted in Mr Gaurav’s written submissions: see [6(g) above]).
Further period of seven days
Mr Gaurav asserted that seven days was not enough time for him to obtain a COE and that it put him under a lot of pressure. There was no evidence concerning these issues, and in particular what steps, if any, Mr Gaurav took to obtain a COE in the further seven day period. Nor is there any evidence that having taken particular steps Mr Gaurav then sought an extension of the seven day period.
In Uddin v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1044 (“Uddin”) before this Court (then the Federal Circuit Court of Australia) was an application to reinstate a judicial review application to this Court seeking review a decision of the Tribunal concerning a student visa which had been dismissed for non-appearance: Uddin at [7]-[8] per Judge Obradovic. On 10 November 2017 a delegate of the Minister had refused the grant of a student visa because Mr Uddin’s enrolment had been cancelled for non-payment of fees: Uddin at [6] per Judge Obradovic, and the Tribunal had affirmed the delegate’s decision in circumstances where the applicant did not have a current COE and had allowed a period of two weeks after the Tribunal hearing to provide a current COE, but did not do so: Uddin at [5]-[6] per Judge Obradovic .
In considering the matter the Court found that the applicant “no doubt” understood that he needed to provide a COE in order to be granted a student visa and noted that the applicant was specifically asked by the Tribunal to provide a COE but failed to do so, after which the Tribunal gave the applicant a further two weeks to provide a COE, but the applicant did not do so: Uddin at [18], [20] and [21] per Judge Obradovic. In relation to a ground of review asserting that insufficient time had been given to the applicant to provide a COE the Court said as follows: in Uddin at [22]-[24] per Judge Obradovic:
[22]The assertion by the applicant in his judicial review application that the Tribunal failed to provide the applicant with sufficient time does not stand up to scrutiny. The applicant was on notice from at least 1 December 2017 that he could provide further information, and the Tribunal specifically requested confirmation of enrolment or other proof of enrolment by its letter of 23 August 2019 and then again provided the applicant with additional time to provide proof of his enrolment at the hearing on 20 September 2019.
[23]This is not insufficient time. As already noted, the applicant was at the hearing personally on 20 September 2019. There is no evidence that he raised the issue of having insufficient time to provide proof of enrolment due to his absence from the country subsequent to the hearing before the Tribunal. Despite the applicant being on notice for nearly two years of the necessity of providing enrolment documentation and being given multiple opportunities of doing so and receiving explicit requests that it be provided, the applicant had failed to do so.
[24]The application for judicial review may best be described as an assertion that the applicant was denied procedural fairness before the Tribunal. Given the matters which the Court has just gone through, it is clear that the Tribunal provided the applicant with procedural fairness and that the grounds for judicial review have little to no prospect of success.
Mr Uddin’s application for reinstatement of his judicial review application was refused on the basis that there was no reasonably arguable case for judicial review: Uddin at [25] per Judge Obradovic.
In Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93 (“Bhandari – Federal Court”) the applicants sought an extension of time and leave to appeal from a judgment of this Court (then the Federal Circuit Court of Australia). A delegate of the Minister was not satisfied that the applicants intended genuinely to stay temporarily in Australia and that they therefore failed to meet the criteria in cl 500.212 of Sch 2 to the Migration Regulations. The applicants applied to the Administrative Appeals Tribunal for review of the delegate’s decision, but the Tribunal affirmed the decision of the delegate in an oral decision, on the basis that there was no evidence that the primary applicant was enrolled in any course of study at the time of the Tribunal Decision, and therefore did not meet the criteria in cl 500.211 of Sch 2 to the Migration Regulations: Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 935 (“Bhandari – FCCA”) at [2] per Judge Street. The applicants then applied to this Court for orders quashing the decision of the Tribunal, but the Court dismissed that application at a show cause hearing: Bhandari – FCCA at [9] per Judge Street.
In Bhandari - Federal Court at [47]-[49] per Burley J the Federal Court cited several cases setting out well known principles as to whether or not a statutory decision maker has exercised its power reasonably. Having regard to [20]-[24] above it is unnecessary to set those matters out in any further detail. The Federal Court then dealt with the relevant facts, observing as follows in Bhandari - Federal Court at [55]-[61] per Burley J:
(a)the applicants were self-represented;
(b)the Tribunal had sent a letter with the notice of Tribunal hearing requesting a COE within 7 days, and then sent another letter on the day before the Tribunal hearing referring to the need provide certain requested documents “within 7 days” and the request said to provide an “offer of enrolment”;
(c)the visa application had been on foot for several years, since 2016, but there was no urgency in the Tribunal having to deal with the matter;
(d)the delegate had rejected the application on the basis that the genuine temporary visa requirement in cl 500.212 of Sch 2 to the Migration Regulations was not met;
(e)the applicants had notified the Tribunal at the Tribunal hearing of the personal difficulties that they suffered; and
(f)at the Tribunal hearing on 6 February 2019 the applicants had provided the Tribunal with an “Unconditional Offer”. (The “Unconditional Offer” from the University of the Sunshine Coast dated 5 February 2019 indicated that the offer amounted to a written agreement between the University and the first applicant, and specified that the first applicant had been accepted into a Bachelor of Business course commencing on 25 February 2019: Bhandari - Federal Court at [28] per Burley J.)
The Federal Court then went on to observe, at Bhandari - Federal Court at [62]-[66] per Burley J, that:
[62] In its reasons the Tribunal noted that “[w]hile the issue before the delegate was whether you are genuine temporary entrant [sic], the issue before the Tribunal now is whether, at the time of the decision, you meet the enrolment requirement for a student visa”: at [7]. The operative reasoning is then set out in [10]–[13]. The Tribunal referred in [10] to the invitation sent on 11 January 2019 and the request to provide evidence of enrolment. It did not make any reference to the 5 February 2019 letter or to the ambiguities present in it to which I have referred. In particular, it did not make any reference to the fact that, prior to the hearing, the applicants had been asked to provide “an offer of enrolment in a registered course” in the alternative to the provision of documents to “show you are currently enrolled in a course”.
[63] Although the Tribunal correctly noted in [11] that the applicants had not provided the COE, it makes no reference to Ms Bhandari’s statement or to the fact that the Unconditional Letter met at least the alternative aspect of the requirement requested by the Tribunal in its 5 February 2019 letter, namely, that an offer of enrolment in a registered course be provided in the alternative to documents evidencing a current enrolment. Nor did it advert to the fact at least one aspect of that letter requested that the evidence be provided “within 7 days”, which was several days after the hearing.
[64] In [11] the Tribunal refers to the Unconditional Letter without referring to its terms. Those terms included a requirement that acceptance of the offer be communicated by 20 February 2019, a date two weeks after the date of the hearing.
[65] Furthermore, the Tribunal made no reference to Ms Bhandari’s statement, where she explained that her father had the means to meet the fee obligations imposed, and that she intended to enrol in the Bachelor of Business course. The Minister’s submissions going to factual matters, summarised at [44] above, also appear to have failed to take into account the content of the statement. Indeed the statement supplies answers to many of the criticisms made.
[66] The sole basis upon which the Tribunal determined that it should affirm the decision of the delegate was that it was not satisfied at the date of the hearing that Ms Bhandari was enrolled in a course of study in accordance with cl 500.211. It would appear from the reasons provided that in reaching that conclusion the Tribunal did not give proper consideration to the contents of the Unconditional Offer or to the statement provided by Ms Bhandari. Had it done so, in all of the circumstances that I have summarised in some detail above, any Tribunal acting reasonably according to substantial justice and the merits of the applicants’ case would have appreciated that the self-represented applicants sought a brief period of time in which to accept the Unconditional Offer and provide a COE to the Tribunal. The Tribunal must have appreciated that the applicants did not consider that they had presented their case (see Li at [79]) in circumstances where there was no pressing need for it to conclude the review on that day: Li at [80]. In my respectful view, having regard to the scope and purpose of the power to adjourn in s 363(1)(b) as that is connected to the purpose of s 360(1) of the Act, the Tribunal failed to adjourn and proceeded to deliver its ex tempore reasons in circumstances where it was plainly unjust to do so. The Tribunal acted in a manner that was legally unreasonable and therefore exceeded its jurisdiction.
The Federal Court extended time for leave to appeal, granted leave to appeal and allowed the appeal: Bhandari - Federal Court at [68] per Burley J.
In Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 (“Singh – FCA 2023”) the Federal Court was dealing with an appeal from orders of this Court made in Singh v Minister for Immigration, Citizenship , Migrant Services and Multicultural Affairs [2022] FedCFamC2G 196 which dismissed the appellant’s application for judicial review of a decision of the Tribunal made 14 November 2017 affirming the refusal of a delegate of the Minister to grant to the appellant a temporary student visa: Singh – FCA 2023 at [1] per Wheelahan J.
At the hearing before the Tribunal, the appellant had failed to produce a current certificate of enrolment, and confirmed to the Tribunal that he was not currently enrolled, and did not then have a current offer of enrolment in a course of study in Australia. The Tribunal therefore affirmed the decision under review: Singh – FCA 2023 at [5] per Wheelahan J.
Of the twelve grounds of appeal in Singh – FCA 2023 two, grounds 8 and ground 10, are relevant to the issue presently being considered by the Court.
Ground 8 was:
In paragraph 36 of the judgement, the judge states the applicant did not present a confirmation of enrolment and the reasons why this was the case was presented to the judge via written submission. The tribunal member should have given time to get the confirmation of enrolment if the entire case was only dependent on the enrolment confirmation.
In considering this ground the Federal Court in Singh – Federal Court 2023 at [36] per Wheelahan J said as follows:
[36]It was no part of the primary judge’s function on judicial review to consider the merits of the Tribunal’s decision to proceed to affirm the delegate’s decision without giving the appellant a further opportunity to obtain a certificate of enrolment in circumstances where the Tribunal had requested this document prior to the hearing. At J[36], the primary judge noted that the appellant was asked by the Tribunal to provide evidence of the sort required, and that nothing that might have assisted the appellant was provided. Indeed, the appellant confirmed to the Tribunal that he was not then enrolled in a course of study. In this regard, the primary judge set out an extract from [6] of the Tribunal’s statement of reasons where this finding was made. I agree with the primary judge’s conclusions on this issue at J[90]-
There is, again, simply no evidence that the applicant requested an adjournment or any reason to accept that the Tribunal should have been alive to the fact that the applicant needed “more time” to present his case. On his own evidence the applicant did not have a confirmation of enrolment. Nor did he indicate that he would get one in the foreseeable future. In the circumstances, the Tribunal proceeded in a manner that was entirely open to it.
and therefore dismissed this ground: Singh – Federal Court 2023 at [37] per Wheelahan J.
Ground 10 was:
The applicant was not represented in the Tribunal and some assistance could have been given and a 7 day post hearing time to present a confirmation of enrolment was justifiable in this circumstance.
Ground 10 was rejected on the same basis as ground 8: Singh – Federal Court 2023 at [39] per Wheelahan J.
In Thompson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 346 (“Thompson”) the Tribunal provided an additional seven days after the Tribunal hearing for the applicant to provide “clarification” of his enrolment status. This Court (then the Federal Circuit Court of Australia) observed that it “cannot be said that no reasonable decision-maker would not have considered that seven additional days was sufficient to make inquiries and obtain clarification”: Thompson at [78] per Judge Kendall.
The judgment as to the unreasonableness of the Tribunal decision in Bhandari is distinguishable on the facts in this matter for a number of reasons.
First, and critically, the first applicant in Bhandari was requested by the Tribunal to provide either a current COE or an offer of enrolment, and the first applicant provided the “Unconditional Offer” confirming that the first applicant had until a fortnight after the Tribunal hearing to accept a place in a Bachelor of Business course. The Tribunal then seemingly failed to have regard to both its request to provide an offer of enrolment and the fact that the first applicant had provided an offer and relied solely on its other request to provide a current COE. In this matter Mr Gaurav was only requested, consistent with the criteria to be met in cl 500.211(a) of Sch 2 to the Migration Regulations, to provide to the Tribunal a current COE, but he failed to do so.
Second, the time which the first applicant in Bhandari had been given by the Tribunal to provide an offer of enrolment had not expired at the time of the Tribunal hearing, and the first applicant had a further six days in which to provide the offer of enrolment, but notwithstanding that fact the Tribunal proceeded to make an ex tempore decision (which affirmed the delegate’s refusal to grant a student visa) on the basis that the first applicant had not provided a current COE. In Mr Gaurav’s case he was requested to provide a current COE before or at the Tribunal Hearing, but failed to do so, and when the time to provide a current COE was extended for a further seven days after the Tribunal hearing he was still unable to provide a current COE.
Third, the first applicant in Bhandari had an offer of enrolment (the Unconditional Offer) from a university which it was open to her to accept up to 14 days after the Tribunal hearing, whereas Mr Gaurav did not have an offer of enrolment, and there was nothing in the evidence to indicate that he had made any enquiries with any educational institution concerning enrolling in a course, let alone that he might actually be given an offer of enrolment by any educational institution.
This case is more akin to Uddin and Singh – FCA 2023 at [36] per Wheelahan J in that here Mr Gaurav was:
(a)asked to provide evidence of the sort required by cl 500.211 of Sch 2 to the Migration Regulations, in particular a current COE, and nothing that might have assisted Mr Singh in that regard was provided to the Tribunal; and
(b)not enrolled in a course of study. Additionally, as noted at [4(c)] and [28] above and [55] below, Mr Gaurav said he had “determined” to enrol in a course, but did not, and nor was there any evidence provided, which might have assisted in a consideration of the unreasonableness of the further seven day period, as to whether he made any attempts to enrol, and if so, why he could not do so.
The question remains as to whether the Tribunal’s decision to allow Mr Gaurav a further seven day period in which to provide a COE was unreasonable.
There was no error in granting Mr Gaurav a further seven day period in which to obtain a COE in circumstances where Mr Gaurav failed to meet the relevant criteria for the grant of the Student Visa: Singh – FCA 2019; Dhawan; Wangchuk. It is not apparent that the Tribunal’s decision to allow Mr Gaurav a further seven day period in which to provide a COE was in any way arbitrary or capricious. Rather the Tribunal’s decision to allow Mr Gaurav a further seven day period in which to provide a COE was an indulgence which the Tribunal was not required to grant, but which no doubt had regard to Mr Gaurav’s assertion to the Tribunal that he had “determined that he will study”: CB 96 at [20]. That decision has to be viewed in context, and as set out above at [2] and [4], the context included the Tribunal’s awareness of Mr Gaurav’s ongoing failure to enrol and obtain a COE in circumstances where he had been made aware of the necessity to do so by the Delegate and the Tribunal on several occasions over several months, and where he had failed to avail himself of the various prior opportunities to enrol and obtain a COE. Further, there was no evidence put before the Tribunal, or before this Court on the Judicial Review Application, that seven days was an insufficient period of time to obtain a COE, or as to why it might be insufficient, or that Mr Gaurav tried to enrol in this period but was unable to do so. Otherwise, for reasons discussed below there was nothing in Mr Gaurav’s medical, financial or family circumstances or history (as to which see [58]-[65] below) which would suggest that allowing a further seven days to obtain a COE was unreasonable, or which prevented Mr Gaurav from enquiring about enrolment, or seeking to enrol, or actually enrolling in a course, or, if necessary, seeking an extension of the seven day period.
It is also necessary to bear in mind that the statutory regime under which the Tribunal operates is also one which obliges the Tribunal to provide a mechanism of review which is “quick”: Administrative Appeals Tribunal Act 1975 (Cth), s 2A(b), and whilst that does not warrant the making of unreasonable decisions by the Tribunal, it is a factor to which consideration must be given in assessing the reasonableness of a Tribunal decision, and even more so here in the context of Mr Gaurav’s ongoing failure to obtain a COE when requested to do so by the Delegate and the Tribunal.
Having regard to the circumstances set out above the Court is of the view that it cannot be said that no reasonable decision-maker would not have considered seven additional days in which to enrol was sufficient: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248 at [131] per Crennan and Bell JJ; Thompson at [78] per Judge Kendall. Put differently, the Tribunal’s decision to allow a period of seven days was within the scope of the decisional freedom afforded to administrative decision-makers on discretionary matters: Li at [28] per French CJ; Singh – Full Court at [44] per Allsop CJ, Robertson and Mortimer JJ; Pandey at [52] per Wigney J. The Court has concluded that allowing a further seven day period for Mr Gaurav to obtain a COE was not unreasonable.
Medical history
The request for an adjournment of the Tribunal Hearing was expressly made on the basis of the Psychologist’s Report: CB 76. It is not apparent that the remainder of the documents, being the details of medical appointments at the Trauma Orthopaedic Clinic of Flinders Medical Centre were sent to the Tribunal prior to it making the decision not to adjourn the Tribunal Hearing. There was no failure by the Tribunal to consider the adjournment request having regard to the Psychologist’s Report, as it was requested to do by the Migration Agent. At CB 95 at [5] the Tribunal refers to the receipt of a “request for postponement” and the Psychologist’s Report from the Migration Agent, says that it “considered this request” and that it “confirmed with the applicant … that the request was not supported” and that the Tribunal Hearing would proceed.
The request for an adjournment of the Tribunal Hearing, whether on the basis of the Psychologist’s Report alone or on the basis of all the documents apparently forwarded to the Tribunal by the Migration Agent, did not, in any event, provide a proper basis for an adjournment. The authorities with respect to the seeking of an adjournment on the basis of a medical condition making it clear that any medical certificate, or document seeking to explain a medical condition, ought to say that the person seeking the adjournment and the subject of the medical certificate or document is unfit, why they are unfit, and, in particular, why they are unfit to attend or participate in any process before a court or tribunal. There are many judgments to this effect in the federal courts: see, merely by way of example, Federal Court judgments in NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]-[10] per Lindgren J (subsequently cited in more than 180 cases according to Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49] per Collier, Griffiths and Mortimer JJ; Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2] per Pagone J; AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815 at [19] per Lee J. Critically, none of the documents provided by the Migration Agent provide any evidence, or provide any basis, upon which the Court could conclude that Mr Gaurav was affected, alternatively so affected, by a medical condition that he was unable to attend the Tribunal Hearing held by telephone on 28 April 2020. Indeed, the Psychologist’s Report, which was the document expressly relied upon as the basis for the adjournment sought, indicates that, as at the date it was written in November 2019, Mr Gaurav “has been doing well in recent times and is now ready to resume his studies”. Nothing in the proforma appointment letters from the Trauma/Registrar’s Orthopaedic Clinic is indicative of an inability by Mr Gaurav to attend a hearing before the Tribunal, and, indeed, none of those pro-forma letters give any indication as to Mr Gaurav’s actual medical condition at the time they were written. The GP Referral does indicate that as at November 2019 Mr Gaurav was experiencing some stress or anxiety about studies, school work and social life, but says nothing of Mr Gaurav’s capacity to attend a hearing before the Tribunal more than five months later. The GP Referral is otherwise superseded by the Psychologist’s Report which indicates Mr Gaurav is “doing well”. In short, there was no contemporaneous medical or allied health evidence before the Tribunal indicating that Mr Gaurav was unable to attend the Tribunal Hearing.
In the above circumstances, there was nothing before the Tribunal in relation to Mr Gaurav’s medical history which would indicate that he was unable to attend the Tribunal Hearing on 28 April 2020. In those circumstances, there was nothing unreasonable in the Tribunal proceeding to conduct the Tribunal Hearing by telephone on that date.
Social ties with home country
In relation to Mr Gaurav’s social ties with his home country there is nothing in the evidence which would indicate that the Tribunal had a submission put to it that Mr Gaurav’s social ties in his home country prevented him from enrolling in a registered course of study and obtaining a valid COE. At the Tribunal Hearing it appears that when Mr Gaurav was asked to provide a current COE he adverted to a bicycle accident in India, his car accident in Australia in 2018 and the death of his grandmother in February 2020 as matters which “made it difficult for him to focus on his studies”: CB 96 at [20]. Apart from this fleeting reference to his grandmother’s death in February 2020 there is nothing to indicate that a submission was put by Mr Gaurav that his grandmother’s death, or any other social ties to his home country in India, prevented Mr Gaurav from enrolling in a registered course of study and obtaining a valid COE during March and April 2020 prior to the Tribunal Hearing on 28 April 2020, or in the seven days thereafter which the Tribunal allowed for the submission of a valid COE by Mr Gaurav.
In the circumstances, there is nothing in the social ties to Mr Gaurav’s home country of India that made it unreasonable for the Tribunal to proceed with the Tribunal Hearing on 28 April 2020 by telephone.
Financial capacity
Although Mr Gaurav submitted that his family were grieving the passing of his grandmother in February 2020 and coming to terms with that, and that also had a financial impact on his obtaining a COE, there is nothing in the Tribunal Decision that suggests that Mr Gaurav raised any issue as to his financial capacity vis-a-vis his capacity to enrol in a registered course of study and obtain a valid COE: CB 96 at [20]. Moreover, there is nothing in the CB which would indicate that Mr Gaurav’s financial capacity in this respect was raised at any stage as a basis for him not enrolling in a registered course of study. The Student Visa application, completed in March 2019 indicates that Mr Gaurav has access to sufficient funds to support himself for the total period of his stay in Australia, and that his means of support included the fact that his “parents have enough financial means to support his study and stay in Australia”: CB 8, and in a letter annexed to the Student Visa application Mr Gaurav acknowledged that condition 8516 (being cl 8516 of Sch 8 to the Migration Regulations) applied and he should maintain sufficient financial capacity to support his study and stay in Australia: CB 26.
At hearing before this Court Mr Gaurav did not suggest that he had raised financial issues arising from his grandmother’s death or his father illness with the Tribunal as a reason for adjourning the Tribunal Hearing, and in respect of his father’s illness acknowledged that this was a matter that he did not raise at all with the Tribunal: Transcript, pp 9-10.
In the above circumstances, there is nothing arising in relation to financial issues associated with Mr Gaurav which made it unreasonable for the Tribunal to proceed with the Tribunal Hearing on 28 April 2020 by telephone.
Conduct of the Tribunal Hearing
If there was anything in the conduct of the Tribunal at the Tribunal Hearing, or any dispute as to whether any matters were put before the Tribunal in support of an application for an adjournment of the Tribunal Hearing, it was for Mr Gaurav to put such proof before the Court, which he has not done, and in the absence of a transcript or audio of the Tribunal Hearing, or some affidavit evidence as to what occurred at the Tribunal Hearing, the best evidence of what occurred at the Tribunal Hearing is the Tribunal Decision: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [24] per Beaumont, Merkel and Hely JJ; Brar v Minister for Immigration and Border Protection (No 2) (2017) 322 FLR 81; [2017] FCCA 1538; (2017) 322 FLR 81 at [15] per Judge Lucev.
Cumulative consideration
The Court has considered whether cumulative consideration of the matters relied upon by Mr Gaurav to support his claim of unreasonableness in the Tribunal Decision might establish that claim. The individual claims not being established renders them either irrelevant, or so weak, such that cumulative consideration of them does not establish unreasonableness in the Tribunal Decision.
Conclusion on unreasonableness
For all of the reasons set out at [20]-[67] above the Court has concluded that it was not unreasonable for the Tribunal to proceed with the Tribunal Hearing on 28 April 2020 by telephone, and that therefore Mr Gaurav has failed to establish jurisdictional error in the Tribunal Decision on that basis.
Alleged denial of procedural fairness
In Mr Gaurav’s written submissions he asserts that the Tribunal denied Mr Gaurav procedural fairness because it failed to consider:
(a)the “medical reports”; and
(b)Mr Gaurav’s request to grant an adjournment sufficient to obtain a COE.
Section 357A(1) and (3) of the Migration Act provides as follows:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
…
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
Section 360(1) of the Migration Act provides that:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 363(1)(b) of the Migration Act permits the Tribunal to “adjourn the review from time to time”.
As this was a case to which s 357A of the Migration Act applied, the Tribunal was not required to afford Mr Gaurav normal common law procedural fairness in relation to the matters dealt with in Div 5 of Pt 5 (including therefore ss 360(1) and 363(1)(b)) of the Migration Act: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204; (2010) 115 ALD 493 at [34]-[42] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412. In any event the Tribunal complied with the statutory obligation under s 360(1) of the Migration Act by reason of:
(a)the Tribunal Hearing Invitation Letter inviting Mr Gaurav to attend the Tribunal Hearing for the purpose of his giving evidence and presenting arguments to the Tribunal relating to the issues in his case, which he did: CB 95 at [7];
(b)the Tribunal Hearing Invitation Letter requesting Mr Gaurav, relevantly, to provide evidence of a current COE;
(c)the Tribunal Decision referring to the “request for postponement” received from the Migration Agent, and determining that request by refusing it, and in so doing having regard, as it was requested to do by the Migration Agent, to the Psychologist’s Report: CB 95 at [5]; and
(d)the Tribunal Decision which records that Mr Gaurav discussed his enrolment history with the Tribunal: CB 96 at [20].
Otherwise, procedural fairness is a practical concept concerning itself with the avoidance of practical injustice: Re Minister for Immigration and Multicultural ad Indigenous Affairs: Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613 at [37] per Gleeson CJ. In that regard, the Tribunal considered the Psychologist’s Report from November 2019 in determining the request for an adjournment of the Tribunal Hearing, and therefore did not fail to consider the one “medical” report it was specifically asked by the Migration Agent to consider in support of the request for an adjournment. The Tribunal was aware of the proforma appointment letters from the Trauma/Registrar’s Orthopaedic Clinic, and referred specifically to them at CB 95 at [6]. It is not evident that the proforma appointment letters from the Trauma/Registrar’s Orthopaedic Clinic (referred to at [2(h)(iii) above, and appearing at CB 79-83 and 85-86) above were submitted in support of the request for an adjournment, and even if they were they do not assist Mr Gaurav, for as the Court has already observed at [59] above none of those proforma letters give any indication as to Mr Gaurav’s actual medical condition at the time they were written, and the last of the appointments pre-dates the Tribunal Hearing by approximately six weeks. The hospital discharge summary is also referred to by the Tribunal: CB 95 at [6], but it dates from 2018 and can hardly be practically relevant to a Tribunal Hearing more than 21 months after what appears to be a routine discharge. The GP Referral (the referral was to the psychologist who prepared the Psychologist’s Report) does indicate that as at November 2019 Mr Gaurav was experiencing some stress or anxiety about studies, school work and social life, but says nothing of Mr Gaurav’s capacity to attend a hearing before the Tribunal more than five months later. The GP Referral is otherwise superseded by the Psychologist’s Report which indicates Mr Gaurav is “doing well”.
The Tribunal therefore considered the only report it was expressly asked to consider, namely, the Psychologist’s Report before determining the request for adjournment. The other “reports” were, for the reasons set out at [59]-[60] above, not of any relevance or assistance to the Tribunal in determining the request for adjournment, and would therefore, even if not considered in relation to the request for adjournment, not have given rise to any practical injustice and therefore would not have resulted in any denial of procedural fairness.
There was also no denial of procedural fairness by reason of a failure to consider a request for adjournment sufficient to allow Mr Gaurav to obtain a COE. There is no evidence that such a specific request was made: the request for adjournment made by the Migration Agent was not made on that basis, but rather on the basis that Mr Gaurav was recovering from “trauma”: CB 76. In any event, what was sought by the Migration Agent, namely a “further extension”: CB 76, was effectively granted by the allowance of the further seven day period to submit a COE. There was no obligation on the Tribunal to provide an either a further extension, or an open-ended extension to allow Mr Gaurav to obtain a COE at some indeterminate future time: Islam v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 737 at [38] per Judge Kirton.
It follows that the Tribunal did not deny Mr Gaurav procedural fairness in relation to the request for adjournment.
Jurisdictional error otherwise
The Court is cognisant that Mr Gaurav was self-represented in this Court, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal other than that asserted by Mr Gaurav: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. In the Court’s view there is nothing otherwise in the materials before it which indicates that the Tribunal made a jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that Mr Gaurav has failed to establish any jurisdictional error in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 April 2024
- AGLC
- Gaurav v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 316
- Case
- [2024] FedCFamC2G 316
- Decision Date
CaseChat Overview and Summary
The court examined whether the Tribunal's decision was legally unreasonable by assessing if it was arbitrary, capricious, without common sense, or plainly unjust. The court considered the scope and purpose of the statutory provisions, the outcome of the decision, and whether there was an intelligible justification within the decision-making process. The court also reviewed the relevance of Gaurav's medical history, social ties to India, and financial history to the criteria for the Student Visa.
The court found that the Tribunal's decision to not adjourn the hearing was not unreasonable. The Tribunal provided Gaurav with seven additional days to provide a current COE after the hearing, which was reasonable under the circumstances. The court held that the Tribunal's failure to consider Gaurav's medical history, social ties to his home country, and financial history did not constitute a jurisdictional error as these factors were irrelevant to the primary criteria for the Student Visa.
The court concluded that the Tribunal's decision was not legally unreasonable and did not involve a material jurisdictional error. The application for judicial review was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The litigation history of this matter is as follows:(a)the Judicial Review Application was filed on 3 June 2020;(b)on 8 July 2020 a Registrar of the Court made orders (“Registrar’s Orders”) which included the following:(i)that the CB be filed by 21 August 2020; and(ii)for a final hearing on a date to be fixed;(c)the CB was filed on 21 August 2020;(d)nothing further occurred on the matter until it was docketed to the presently presiding Judge in mid-March 2023, as a consequence of which a directions hearing was listed for 28 March 2023;(e)due to Mr Gaurav advising the Adelaide Registry of the Court on 23 March 2023 that he required the services of a Hindi interpreter (albeit that he had indicated in the Judicial Review Application that he did not require an interpreter), the 28 March 2023 directions hearing was vacated to find a convenient date for an interpreter to assist Mr Gaurav;(f)on 27 March 2023 a directions hearing was listed for 5 June 2023; (g)on 5 June 2023 a directions hearing was held and the Court made the following orders (“Court’s Orders”):2.Orders 3-7 and 9 of Registrar Carlton’s orders of 8 July 2020 be set aside, and in lieu thereof order that: a)the applicant file and serve any amended originating application, further affidavits, and an outline of submissions by 3 November 2023; b)the first respondent file and serve any amended response, affidavits in reply, and an outline of submissions by 22 December 2023; and c)the matter be listed for final hearing by videolink on 14 February 2024 at 10.00am AWST/12.30pm ACST before Judge Lucev. (h)written submissions were filed by:(i)the Minister on 21 December 2023; and(ii)Mr Gaurav on 6 February 2024,and a consent order regularising Mr Gaurav’s late filing of written submissions was made on 13 February 2024.CONSIDERATIONJurisdictional error required For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. The onus is upon Mr Gaurav to establish jurisdictional error in the Tribunal Decision: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 ALR 173 at [48] per Griffiths, White and Bromwich JJ.Grounds 1, 2 and 3Criteria The relevant criteria for the grant of the Student Visa at the time of the Tribunal Decision were as follows:500.2 – Primary criteriaNote: 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.500.211One 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. Law related to the criteria