Giakou v Minister for Immigration
[2020] FCCA 2575
•11 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GIAKOU v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2575 |
| Catchwords: MIGRATION – Student visa – whether failure to consider claim or integer of a claim – whether Tribunal asked itself the wrong question – whether decision unreasonable – whether failure to make obvious enquiry – material error demonstrated – writs issued. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), r.1.40A & Schedule 2, cl 570.232 |
| Cases cited: Minister for Immigration & Border Protection v SZMTA & Anor (2019) 163 ALD 38 Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 73 ALD 321 |
| Applicant: | AGKRON GIAKOU |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 111 of 2018 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 5 November 2019 |
| Date of Last Submission: | 5 November 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 11 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jacobi |
| Solicitors for the Applicant: | Work Visa Lawyers |
| Counsel for the Respondents: | Ms N Milutinovic |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
There be an order in the nature of certiorari that the decision of the Administrative Appeals Tribunal dated 28 February 2018 affirming the decision of the delegate of the first respondent made on 21 April 2017 rejecting the applicant’s application for a Student (Temporary) (Class TU) Visa is quashed.
There be an order in the nature of mandamus that the Administrative Appeals Tribunal review according to law the decision of the delegate of the first respondent dated 21 April 2017 rejecting the applicant’s application for a Student (Temporary) (Class TU) Visa.
The first respondent do pay the applicant’s costs as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 111 of 2018
| AGKRON GIAKOU |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) which affirmed an earlier decision of a delegate of the first respondent refusing to grant the applicant a Student (Temporary) (Class TU) subclass 570 visa (‘the visa’). The decision of the Tribunal was made on 28 February 2018.
I gave leave at the hearing of this matter for the applicant to proceed on the basis of his Amended Application. The Minister neither consented nor opposed leave being granted. The grounds of application are as follows:
“Failed to consider a claim
1.The second respondent failed to consider evidence provided, or a claim made, by the applicant, by reason of which it failed “to deal with a claim raised by the evidence and the contentions before it” or failed to give “proper, genuine and realistic consideration” to a matter it was required to address, and thereby did not conduct the review required by the Migration Act 1958 (Cth) (‘the Act’) was a jurisdictional error.
Particulars
1.1The applicant and advanced at the hearing, and subsequently, that he was then at the time of the decision:
1.1.1was attending class and had been undertaking a course with TAFE SA;
1.2.1he had been issued by TAFE with a full-time student card in February 2018;
1.1.3had been issued with a card demonstrating he had the required overseas student health cover;
1.1.4had paid tuition fees;
1.1.5if granted a visa would be awarded the qualification for the course he was then undertaking which claims were not rejected.
1.2The second respondent in addressing the applicant’s claim said that the applicant “attending classes at TAFE SA” did not “constitute” being “enrolled in” or the “subject of a current offer of enrolment in” for the purposes of clause 570.232 of Migration Regulations (1994) (‘the regulations’).
1.3The applicant’s claim was not that he had been “attending classes”, but rather that he was a current student who had been issued a student card (to which the second respondent did not refer at all) and significantly that if granted a visa he would be awarded to the qualification from the very course of study which he was undertaking, meant that he was either enrolled or the subject of a current offer of enrolment.
1.4The second respondent thereby did not address the claim made by the applicant which constituted “enrolment” or a current offer of enrolment, and thereby conducted a review as it was required to do by the Act.
1.5That error was material because those matters are capable of demonstrating that he was either “enrolled” in the relevant sense, or at least the subject of a current offer of enrolment.
AAT asked itself the wrong question
2.The second respondent incorrectly construed the expression ‘enrolled in, or the subject of a current offer of enrolment’ in cl 570.232 of Schedule 2 of the Regulations, and thereby asked itself the wrong question and did not conduct the review required by the Act which was a jurisdictional error.
Particulars
2.1The second respondent stated that the applicant’s claim about his attendance at classes at TAFE SA did not constitute enrolment or a current offer of enrolment for the purposes of the Regulations.
2.2The applicant advanced before, at and after the hearing the matter set out at 1.1 above.
2.3Those matters as advanced by the applicant are capable of constituting “enrolment, or a current offer of enrolment” for the purposes of the Regulations.
2.4By implication, the second respondent too narrow of view of what was necessary to be either:
2.4.1“enrolled in” such that it was necessary on its view to have addressed the cancellation of his current offer of enrolment as it was recorded on PRISMS.
2.4.2“the subject of a current offer of enrolment” such that it was necessary to be more than being permitted to attend the course; have paid the fees; to be issued a student card; and to be entitled to be qualified if granted a visa.
2.4.3The error was material in that if the correct question was asked, a different result might have arisen.
Unreasonableness
3.The second respondent acted unreasonably in that on the evidence it found it reached the conclusion that the applicant had not satisfy the criteria in cl 570.232 of Schedule 2 of the Regulations and that error was a jurisdictional error.
Particulars
3.1At the hearing and thereafter, the applicant provided the information set out in 1.1.1 - 1.1.5 that he was a current student which it did not reject.
3.2There is no intelligible justification for the second respondent’s conclusion that the evidence provided before it did not satisfy the criteria of either being “enrolled in” or “the subject of a current offer of enrolment” within the meaning of clause 570.232 of schedule 2 of the Regulations properly construed.
3.3The error was material in that had the second respondent considered the evidence submitted by the applicant, it would have come to a different conclusion.
Failure to make an obvious enquiry
4.The second respondent failed to make “an obvious inquiry” with respect to a matter raised by the applicant, the existence of which was “easily ascertained”, and thereby failed to exercise its jurisdiction under the Act which was a jurisdictional error.
Particulars
4.1The second respondent raised the fact that the applicant’s enrolment was not recorded in PRISMS at the hearing on 30 November 2017. This was the first time this matter was raised with the applicant, who was unaware that his confirmation of enrolment had been cancelled.
4.2The applicant provided the second respondent with information, including his current dated TAFE student card, a letter from Merle Paton his lecturer, and an account of a conversation with a student counsellor at TAFE which confirmed that the applicant’s status as a current student at TAFE Currie Street in consideration of the inference arising from PRISMS.
4.3In discharge of its obligation to make an obvious inquiry (and at the invitation of the applicant) the second respondent contacted Mr Amir, a TAFE SA student support counsellor, over the telephone and in writing.
4.3.1on the telephone it did not ask about the key issue being whether he was an ongoing student and whether he would be awarded the qualification in the event of his receiving a student visa;
4.3.2in writing, sought that information by email from Mr Amir but did not do so effectively because the email was not received by him (and did not check with Mr Amir about that matter).
4.4In failing to make an effective enquiry of Mr Amir of that central issue it did not “make an obvious inquiry” with respect to the applicant’s submissions that he had been attending his course subsequent to his cancellation and that he had paid his course fees.
4.5The error was material in that if the second respondent had successfully contacted Mr Amir, it would have received information that could not be said not have led to a different decision.”
A preliminary issue
At the hearing before me, the applicant sought to rely on affidavits by Mr Was Amir sworn on 17 October 2019, and the solicitor, Ms Christina Lien, sworn 18 October 2019. The first respondent objected to those affidavits.
Mr Amir was the Student Support Consultant at TAFESA from January 2012 until 5 July 2019. As can be seen, he is referred to in the particulars of the applicant’s grounds of review. He is now retired. His affidavit states that he remembers assisting the applicant with respect to his enrolment at TAFESA and during the period of his enrolment there. He spoke in person with the applicant about the student visa refusal. He deposes that he does not remember receiving an email from the Administrative Appeals Tribunal with respect to the applicant. He states that he was accustomed to receiving emails from students and the “Department of Immigration” and that it was his usual practice to respond promptly to them. He was shown a copy of the email sent to his former work address by the Tribunal on 1 February 2018. He deposes that he had not seen that email before it was shown to him by the solicitor for the applicant. He states that he did not receive any follow-up enquiry from anyone at the Tribunal regarding that email.
Ms Lien’s affidavit annexes a letter from the Client Services Consultant at TAFESA, dated 18 September 2019, confirming that the applicant was enrolled as a full-time international student at TAFESA studying General English and that his current enrolment would end on 29 September 2019. It also annexes correspondence from the solicitor for the applicant to TAFESA seeking formal confirmation of the applicant’s enrolment and the response from TAFESA, dated 10 October 2019, confirming that as of that date the applicant had been enrolled with them since May 2017, and continued to be enrolled and studying there. It confirmed that his certificate of enrolment was cancelled by them on 2 June 2017 once it came to their attention that his Student Visa had been refused. It states that the practice of TAFESA is to cancel certificates of enrolment once a Student Visa has been refused and that it will only be reactivated if there is a favourable result before the Tribunal, or on request from the Tribunal. During the interim, students continue to have the right to study at TAFESA. The letter also provided a copy of the applicant’s academic transcripts.
Mr Jacobi, counsel for the applicant, submitted that the only use to which the applicant sought to put the information in the affidavits was with respect to the question of materiality. In other words, they were not relied upon as new information in order to establish jurisdictional error but rather to establish the fact of materiality of any error that the applicant established pursuant to his grounds of review.
Mr Jacobi referred to the Court to the decision of the High Court in SZMTA[1] with respect to the question of materiality where Bell, Gaegler and Keane JJ said the following:
“Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”[2]
[1] Minister for Immigration and Border Protection v SZMTA & Anor (2019) 163 ALD 38.
[2] Ibid, [45]-[46].
I am satisfied that the affidavits are admissible for the limited purpose identified by Mr Jacobi.
Background
The applicant applied for the visa on 26 February 2016. The application was refused by a delegate of the Minister on 2 September 2016. The applicant applied for a merits review and the matter was remitted to the delegate by the Tribunal on 28 March 2017. The circumstances of that remittal are not relevant to these proceedings.
On 21 April 2017, the application was again refused by the delegate on the basis that the applicant did not satisfy cl 570.232 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations). The delegate was not satisfied that the applicant was a genuine temporary entrant to this country for the purpose of study. The applicant applied again for a merits review before the Tribunal. The Tribunal hearing took place on 30 November 2017. Prior to the hearing, the applicant’s migration agent provided written submissions to the Tribunal which attached a certificate of enrolment for the general English course at TAFESA for the period 1 May 2017 to 6 April 2018. During the course of the hearing, the Tribunal member put to the applicant that information from the Provider Registration and International Student Management System (PRISMS) indicated that his enrolment had been cancelled on 2 June 2017 as “the student had notified of cessation of his studies”. The applicant indicated to the Tribunal that this was the first time that matter had been brought to his attention. The Tribunal gave the applicant until 9 December 2017 to provide further evidence, and in particular, with respect to his enrolment in a relevant course of study.
The applicant’s migration agent provided further submissions in writing to the Tribunal on 7 December 2017. Annexed to that submission was a letter from the applicant’s lecturer at TAFESA, Merle Paton. The letter was addressed “To Whom it may Concern”, was undated and advised that the applicant was a student at TAFESA Currie St, that he was very diligent and conscientious, that his attendance had been excellent and that he was making progress and improving steadily. The submission from the applicant’s migration agent added that the applicant had provided the Minister with a confirmation of enrolment form at the time he first made his application for the visa. He had transferred from the first institution at which he sought to study to TAFESA in April 2017 having secured an enrolment there. The submission confirmed that the applicant learned for the first time that the PRISMS records indicated that his enrolment was cancelled in June 2017. The migration agent advised the Tribunal that the applicant was attending the course, that he had paid the course fees, and that Mr Amir had confirmed to the applicant’s migration agent that he had been attending class and had paid course fees in the sum of $6,100. The submission advised that Mr Amir had informed the applicant’s migration agent that the reason the PRISMS indicated that his enrolment had been cancelled was because his student visa had been refused. Further, Mr Amir had advised the migration agent that upon grant of a Student Visa to the applicant he would be awarded to the qualification and the notation on the system “will be reversed”.
The submission invited the Tribunal to contact Mr Amir in the event that any of the matters referred to in the submission were not accepted by the Tribunal. It also suggested that if it was preferable to the Tribunal, the applicant would contact Mr Amir personally.
The Tribunal made a number of attempts to contact Mr Amir of TAFESA and spoke to him on 1 February 2018. He confirmed that the applicant’s enrolment had been cancelled on 2 July 2017. The Tribunal sent an email to him on the same day. The email requested that Mr Amir confirm that the applicant was currently, and since enrolment in the general English course on 1 May 2017, had been attending class. It also requested confirmation that he had paid course fees in the sum of $6,100.[3]
[3] Court Book (CB) 189, [13].
The Tribunal affirmed the decision of the delegate on 28 February 2018 and notified the applicant in writing of that decision on the following day.
Tribunal Decision
The Tribunal noted that whilst the issue before the delegate was whether the applicant met criterion 570.223, the issue had become whether at the time of the decision the applicant met the enrolment requirements for a Student Visa.[4] It noted, correctly, that the Regulations required that at the time of the decision the applicant must be enrolled in or be the subject of a current offer of enrolment in a course of study that is a principal course and is of a type specified under r 1.40A.
[4] Ibid, 7 [9].
The Tribunal noted that the applicant claimed at the hearing that he had been ‘attending’ his course regularly up until the time of the hearing. It also noted that it had put to the applicant the PRISMS information about the cancellation of his enrolment on 2 June 2017 and that the applicant claimed to have no knowledge that his enrolment had been cancelled and asserted that he was regularly attending his course and had paid all fees. The decision record of the Tribunal does not make a contrary finding about the applicant’s lack of awareness that his enrolment had been recorded as being cancelled, that he was still attending classes, or that he had paid all of his fees.
The Tribunal did not accept the contents of the letter from Merle Paton because it was undated and not specifically addressed to the Tribunal. It found that the letter was not evidence of the applicant’s current enrolment. The Tribunal noted that the applicant’s migration agent had contacted Mr Amir and her account of that conversation.[5] It also noted that the Tribunal had written to Mr Amir requesting confirmation of the matters I have referred to above. The Tribunal found that at the time of the decision, it had not received a response from him. The Tribunal concluded that the applicant had had a sufficient opportunity to provide evidence of his enrolment or offer of enrolment in a course of study. It found that on the evidence before it the applicant’s enrolment in his current course had been cancelled. It also found that the applicant had had time to “rectify this situation or obtain a new enrolment”.[6] The Tribunal was not satisfied that the fact that the applicant had been ‘attending’ classes constituted enrolment or a current offer of enrolment for the purposes of the Regulations. For that reason, it found that there was no evidence before it that the applicant was at that time enrolled in or had a current offer of enrolment in any applicable course of study. Accordingly, it concluded that he could not meet the criteria in the regulations.
Consideration
[5] Ibid, 189 [12].
[6] Ibid, [16].
Ground one
It is to be accepted as well-established that a failure by a decision-maker to consider and determine a clearly articulated claim or any integer of such a claim made by an applicant can amount to jurisdictional error.[7] This includes a decision made in circumstances where the decision maker has misunderstood or misconstrued the claim and bases the decision on such misunderstanding or misconstruction. A decision maker is required to give “proper, realistic and genuine consideration” to the claims made.[8]
[7] Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 73 ALD 321; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) (2004) 219 ALR 27.
[8] Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291; Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164; APF16 v Minister for Immigration & Border Protection (2019) 164 ALD 381.
In Mr Jacobi’s submission, jurisdictional error arises in the sense identified in MZYTS[9]. The Tribunal made a decision “without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant”, which is akin to a failure to give proper, genuine and realistic consideration to an application. This was so because when addressing the applicant’s claim, the Tribunal found that merely ‘attending’ classes at TAFESA did not constitute being enrolled in or the subject of a current offer of enrolment in the course of study for the purpose of the Regulations. In characterising the applicant’s claim in those terms, the Tribunal misunderstood and misconstrued the claim made and the evidence presented. The applicant’s claim in fact was cumulative in nature, went much further, and was not that he had simply been “attending classes” but that he was a current student undertaking a course and paying fees and further that if he was granted a visa he would be awarded the qualification for the course of study which he was at the time of the hearing undertaking. His claim was that the combination of those factors meant that he was in fact enrolled in an applicable course the subject of a current offer of enrolment for an applicable course. This was a matter of fact which had to be determined against the criteria. The Tribunal only addressed part of the claim. It had failed to grasp the significance of the fact that he was currently participating in classes, had paid his fees, and was eligible for the qualification in the event that he was successful in obtaining a visa. For that reason, the Tribunal could be seen to have failed to address the claim in its entirety and had failed to conduct a review as required by the Act. Had the Tribunal considered those matters and the significance of the level of engagement the applicant had with the course itself, a different outcome might have resulted.
[9] Minister for Immigration & Border Protection v MZYTS (2013) 136 ALD 547.
I do not accept that submission. I accept the submission of the First Respondent that the Tribunal considered all the component integers of the applicant’s claims. It specifically made reference to his claims of attendance past and current, his being unaware that his enrolment having been cancelled, his having paid fees, and the report of the applicant’s migration agent that she had been advised that if the applicant were to be granted a visa he would be awarded his qualification. Further, it was alive to the potential significance of the payment of fees, which can be inferred from the fact that it requested confirmation of that matter when it emailed Mr Amir. If it had not understood that matter to be an integral part of the claims of the applicant, there would have been no reason to ask for confirmation of it. In my view, to latch on to the use by the Tribunal of the word “attendance” as indicating a misconstruction or misunderstanding of the claims made by the applicant or a failure to give proper, genuine and realistic consideration to it, would be to subject the reasoning of the Tribunal to minute and fine construction with “an eye keenly attuned to the perception of error.”[10] I dismiss ground one.
[10] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Grounds two and three
I take a different view with respect to grounds two and three. I am satisfied that the reasoning of the Tribunal discloses that it incorrectly construed the expression ‘enrolled in or the subject of a current offer of enrolment’ in cl 570.232 of Schedule 2 of the Regulations and in doing so asked itself the wrong question, resulting in it failing to conduct the review required of it by the Act. The Tribunal does appear to have proceeded on the basis that the PRISMS entry was determinative of the question whether the applicant was enrolled in or subject to an offer of enrolment in an applicable course. PRISMS is simply a repository of data relevant to that question. As observed by Nettle J in Wei v Minister for Immigration and Border Protection:[11]
“As already mentioned, there was nothing in the relevant legislation that provided that PRISMS was to be treated as a conclusive record of enrolment.”[12]
[11] (2015) 148 ALD 226.
[12] Ibid, [51].
That being the case, irrespective of the PRISMS entry, the Tribunal was required to ask itself whether the applicant was enrolled or subject to a current offer of enrolment. In order to answer that question it was necessary to first ask what those terms meant. I accept the submission of Mr Jacobi that at the very least, the Tribunal does not appear to have considered what the term ‘subject to an offer of enrolment’ meant. There is no reference in its reasons to what it understood that term to mean. The term is referred to in the Regulations but not defined in the Act.
In addition to the evidence of the applicant and the submissions of his migration agent as to the conversations with Mr Amir, the Tribunal had before it the following information from the telephone inquiry it had made with Mr Amir: “… He (Mr Amir) confirmed that enrolment could be obtained on review of the visa decision.”[13] That information is not referred to in the decision record of the Tribunal. It was significant information because it corroborated the information provided by the applicant’s migration agent. I accept the submission of Mr Jacobi that the inference from the reasoning of the Tribunal must be that it did not regard as sufficient to meet the criterion of being ‘subject to a current offer of enrolment’ the undertaking of a course with both the knowledge and approval of the relevant institution which had indicated its willingness to re-enrol the applicant and to award the qualification for undertaking the course if he received a favourable visa decision, having accepted his payment of fees. In the context of those matters, which it did not appear to reject, the weight given to the PRISMS entry and the undisputed fact that his previous enrolment had been cancelled[14] suggests not simply that it preferred to give greater weight to that information but rather, that it failed to ask itself what was capable of constituting ‘a current offer of enrolment’. Neither of those matters had obvious relevance to that question, as they related to a previous and not a current state of affairs. The brief reasoning of the Tribunal on this aspect suggests that the Tribunal took the view that the PRISMS entry, being silent on the question of a current offer of enrolment and recording that the applicant’s previous enrolment had been cancelled, was dispositive of that question. In my view, that amounts to a misconstruction of the term ‘the subject of a current offer of enrolment’ and a jurisdictional error by the Tribunal by reason of asking itself the wrong question or failing to ask the correct question. I find jurisdictional error has been made out with respect to ground two.
[13] Affidavit of Natalia Milutinovic, 29/10/19, Annexure A.
[14] CB, 189 [16].
As for ground three and the question of unreasonableness, it was argued on the basis identified in Minister for Immigration & Citizenship v Li[15] namely that the decision lacks an evident and intelligible justification. With respect to the question of whether the applicant was “enrolled in” an applicable course, I am not satisfied that jurisdictional error has been demonstrated on the asserted basis. The Tribunal placed weight on the uncontested fact that the applicant’s enrolment had been cancelled. On the evidence before it the finding that he was not enrolled in an applicable course could not be said to lack an evident and intelligible justification.
[15] (2013) 249 CLR 332.
I take a different view with respect to the question of whether the applicant was ‘the subject of a current offer of enrolment’. When that question is considered in light of the evidence before it and which it did not reject, it is not possible to discern the intelligible justification in the finding. It was common ground that the applicant had been enrolled in an applicable course. By its own inquiry, the Tribunal had established that the only thing standing between the applicant and re-enrolment was the grant of the visa. Once the visa was granted, the enrolment could occur and the qualification could be conferred on the applicant. Why that was not constituting ‘subject to a current offer of enrolment’ is not evident on the decision of the Tribunal. I am satisfied that in that respect ground two has been made out and the applicant has demonstrated that the decision was legally unreasonable.
Ground four
It is well-established that a Tribunal has no general obligation to make inquiries. It is for an applicant to make out their own case.[16] What is equally clear is that, as the applicant contends, in some circumstances a failure to make an inquiry might result in a failure to have conducted a review:
“The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.”[17]
[16] Ashraf v Minister for Immigration & Border Protection [2018] FCAFC 50; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, [43]; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73, [20].
[17] Minister for Immigration & Citizenship v SZIAI & Anor (2009) 259 ALR 429, [25].
The two obvious inquiries which the applicant says could have been made were with respect to, firstly, the letter from Merle Paton and secondly, the matters which it raised with Mr Amir in the email to which it did not receive a response. In the context of questions of fact relating to the matter of enrolment or otherwise, Mr Jacobi referred me again to the judgment of Nettle J in Wei:
“… one obvious way of ensuring, or at least being more certain, that the plaintiff had ceased to be enrolled was to make a telephone inquiry of the University, the direct and authoritative source of confirmation of the plaintiff’s enrolment, just as the delegate had done on 20 February 2014 to check the plaintiff’s address. Given the criticality of the fact that the plaintiff was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so — by picking up the telephone and requesting the University to check whether the plaintiff’s enrolment status as shown in PRISMS was in fact correct — and the clear link between the delegate’s failure to make that inquiry and the delegate’s determination to cancel the visa, I consider this to be a case in which the delegate’s failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.”[18]
[18] Op cit.
The applicant submits that rather than simply refusing to accept the information in the Paton letter for the reasons identified, it would have been a small matter for the Tribunal to make a phone call to her and ask if the comments in the letter were accurate and current. In addition, it was submitted that it was not enough, having made the decision to write to Mr Amir seeking information, to then abandon that course by failing to follow up the inquiry. The information was presumably sought for a reason relevant to the questions to be determined at the review.
I accept that both inquiries were obvious and related to matters that could have been relatively easily ascertained. Had an inquiry been made with respect to the Paton letter and had it confirmed that the applicant was still participating in the course and that his lecturer regarded him as a student of TAFESA, this had obvious relevance to the question of enrolment even though for administrative purposes his enrolment had been cancelled. It would have either supported the claim of the applicant or contradicted his assertion to be still actively studying there. Similarly, having reached the conclusion that it was necessary to seek confirmation from Mr Amir as to the claim with respect to tuition fees, the Tribunal was not absolved of its’ responsibility to follow that matter up simply because Mr Amir had not responded within a stipulated time frame. The Tribunal was on notice that in spite of enrolments being formally cancelled due to cancellation of visas, there was a de facto practise in place at TAFESA whereby students were at liberty to maintain the continuity of their studies in anticipation of a favourable result on a merits review. In the event that they did receive a favourable visa outcome, their enrolment would be reinstated. How that arrangement was to be regarded had an obvious relevance to the question of whether the applicant was ‘subject to a current offer of enrolment’. I am satisfied that this is one of the exceptional cases in which, faced with the unusual factual matrix described above, there was a positive duty on the Tribunal to make the inquiries referred to. I find that ground four has been made out on the basis of constructive failure to exercise jurisdiction.
Materiality
Having considered the information from Ms Ladic as annexed to the affidavit of Ms Lien[19] it is not possible to exclude the possibility that the errors made by the Tribunal may have deprived the applicant of a successful outcome. The errors were in my view material.
[19] Exhibit CL5.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 11 September 2020
CORRECTIONS (2 November 2020)
1. The first respondent’s name has been amended from ‘Department of Home Affairs’ to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’, namely:
a. Cover sheet and Orders: Page 1 – In the heading and footer.
b. Cover sheet and Orders: Page 2 – First Respondent’s name.
c. Reasons for Judgment: Page 1 – First Respondent’s name in the heading.
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