Gomes Torres v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 801
•29 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gomes Torres v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 801
File number(s): SYG 991 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 29 August 2024 Catchwords: MIGRATION – Administrative Appeal Tribunal – Student visa application – whether the applicant consented to the Tribunal determining the matter without a hearing –denied opportunity to appear before Tribunal – jurisdictional error established Legislation: Migration Act 1958 (Cth) ss 359, 359A, 360, 363, 425, 499
Migration Regulations 1994 (Cth) cl 500.212 in Part 500 of Schedule 2
Cases cited: Minister for Immigration & Multicultural Affairs & Indigenous Affairs v SZFML (2006) 236 ALR 294; [2006] FCAFC 152
SZGWN v Minister for Immigration & Citizenship (2008) 103 ALD 144; [2008] FCA 238
Khadgi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 991
Murni & Ors v Minister for Immigration & Anor [2020] FCCA 579
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 458
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 19 August 2024 Place: Sydney Solicitor for the Applicant: Mr B Kramer of Kramer & Kramer Solicitor for the First Respondent: Mr A Westenberg of Sparke Helmore Lawyers ORDERS
SYG 991 OF 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TIAGO GOMES TORRES
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
29 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 20 March 2020 into this Court for the purposes of quashing it.
3.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to re‑determine, according to law, the application for review before it.
4.The first respondent pay the applicant’s costs as agreed or assessed.
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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application seeking judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) made on 20 March 2020. This decision affirmed a decision of a delegate (delegate) of the first respondent (Minister) made on 5 April 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (visa).
BACKGROUND AND RELEVANT FACTS
The applicant is a male citizen of Brazil who arrived in Australia on 1 September 2017 as the holder of a student visa in order to study English.[1]
[1] Court Book (CB) 35.
The visa application
On 22 March 2018, the applicant lodged an application for the visa, which is the subject of these proceedings, for the purpose of completing a Certificate III in Business.[2] In this application, the applicant indicated he had not taken an English language test within the 24 months prior to the lodgement of his application and that his ‘main language’ was Portuguese.[3]
[2] CB 1 to 27.
[3] CB 11.
On 5 April 2018, the delegate refused the grant of the visa. The delegate found that the applicant did not meet the genuine temporary entrant requirements of cl 500.212 in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied that the applicant intended to genuinely stay in Australia temporarily.[4]
[4] CB 29 to 36.
The review application
On 26 April 2018, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant indicated in his review application form lodged with the Tribunal that he would require the assistance of an interpreter in the Portuguese language.
On 27 April 2018, the Tribunal sent to the applicant an acknowledgment of the lodgement of his review application. [5]
[5] CB 40 to 41.
Invitation to provide information
On 30 October 2019, the Tribunal invited the applicant under s 359 of the Migration Act 1958 (Cth) (Act) to provide information about his enrolment in a registered course of study and whether he is a genuine applicant for entry and stay in Australia as a student. The invitation relevantly provided:[6]
[6] CB 43 to 44.
Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.
Click here to complete the online Request for Student Visa Information form.
Alternatively, you may print, complete, and return a hard copy of the form to us should you prefer. Click here to open a printable copy of the Request for Student Visa Information form. Please do not return a hard copy of the form to us if you have already submitted it online.
If you are unable to access the Request for Student Visa Information form by clicking on the links above, please contact us as soon as possible.
In considering whether an applicant is a genuine applicant for entry and stay as a student, the AAT must have regard to Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’. A copy of this is attached for your reference.
The written information requested in the Request for Student Visa Information form should be received by 13 November 2019.
…
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
(Emphasis in original)
Attached to the invitation was a copy of Ministerial Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction 69).[7]
[7] CB 45 to 49.
Response to invitation to provide information
At 10.15 a.m. on 13 November 2019, the Tribunal received an email from the applicant in which he stated that he had ‘tried to submit the form online’ but had received an ‘error message’, a screenshot of which was attached to the email. The applicant further explained that he had thereby elected to print and complete a hard copy of the Request for Student Visa Information form (hard copy form), alerting the Tribunal that a scanned pdf version of his completed hard copy form was attached to his email.[8]
[8] CB 53 to 63.
Under the heading ‘Section 2 – Hearing Information’ of the hard copy form, questions 2 to 4 relevantly provided (without alteration):[9]
[9] CB 54.
2. Do you and any other applicants consent to the Tribunal deciding the review without a hearing?
Note: If you consent to us deciding your review without a hearing:
•You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.
•We may either affirm or set aside the decision under review. Further information about different types of decisions and what happens once we have made our decision may be found on our website at should provide us with all the information you would like us to consider in your case. A decision will not be made until after the period for responding to this invitation has passed.
•If there is more than one review applicant, you may only consent to us deciding the review without a hearing if you have the authority of each applicant to do so.
Please tick one box only:
☐
No, I/we do not consent to the Tribunal deciding the review without a hearing.
(If you tick No, please complete the remaining questions in this section before proceeding to Section 3)☐
Yes, I/we consent to the Tribunal deciding the review without a hearing.
(If you tick Yes, please go straight to Section 3)
3. If a hearing is required, do you or any applicant require an interpreter?
☐Yes ☐No
If yes, what language?
4. Please advise us of any dates in the next 3 months that you and other applicants will not be available to attend a hearing at the Tribunal.
Note: Your hearing will be scheduled as soon as possible after the period for responding to this invitation has passed. You will be generally given at least 2 weeks notice of the hearing day and time, and this will only be changed if we are satisfied there are very good reasons for doing so. Your hearing may also take place by telephone if you are unable to attend in person.
By placing an ‘X’ in the second box at question 2, the applicant expressed an indication that he consented to the Tribunal deciding the review without a hearing. However, despite the instruction to then ‘go straight to Section 3’ of the hard copy form and thereby not answer questions 3 and 4, the applicant proceeded to address question 3 by placing an ‘X’ in the ‘Yes’ box, and further specified that he would require the assistance of an interpreter in the Portuguese language.[10] The applicant left blank the box in question 4, indicating that there were no dates within the next three months that he would be unavailable to attend a hearing.
[10] CB 54.
At 5.14 p.m. on 14 November 2019, the Tribunal received a further response from the applicant to its invitation by way of the applicant’s successful completion of the online Request for Student Visa Information form (online form). By selecting the relevant option from a dropdown menu in the online form under the heading ‘Hearing information’, the applicant indicated his consent to the Tribunal deciding the review without a hearing. Unlike the hard copy form, the online form did not provide a facility for the applicant to respond to further questions about hearing arrangements once he had indicated his consent to the Tribunal deciding the review without a hearing. Apart from this significant discrepancy between the applicant’s responses to the questions pertaining to the hearing in each form, his responses to other questions in both forms were identical in all relevant respects. Further, by way of attachment to the completed online form, the applicant uploaded two Confirmations of Enrolment in his name and a scanned pdf version of his completed hard copy form.[11]
[11] CB 65 to 78.
THE TRIBUNAL’S DECISION
On 24 March 2020, the Tribunal notified the applicant of its decision to affirm the delegate’s decision not to grant the applicant the visa.[12] In its decision record,[13] the Tribunal:
(a)noted that the applicant had been invited to provide information about his application pursuant to s 359(2) of the Act.
(b)observed that the applicant’s response to the invitation was received on 14 November 2019, and that in that response he had ‘elected to have his matter decided without a hearing’. The Tribunal made no reference to the specific information received on 14 November 2019 that it relied upon to reach its finding that the applicant had ‘elected to have their matter decided without a hearing’. Further, when reaching that finding, the Tribunal did not specify any consideration of the applicant’s response to question 3 on Section 2 of the hard copy form, received by it on 13 and 14 November 2019, which recorded the applicant’s indication that he would require an interpreter at hearing.[14]
(c)considered whether the applicant had been afforded a ‘fair opportunity’ to provide relevant information and whether it should adjourn the review, under s 363(1)(b) of the Act, to allow the applicant additional time to provide further evidence to support the review application. The Tribunal elected not to exercise its discretion under s 363(1)(b) and proceeded to make its decision on the information before it, including the information previously provided by the applicant to the Department and the ‘submissions received on 14 November 2019’.[15]
(d)set out the genuine temporary entrant criterion contained in cl 500.212, and acknowledged that in making its decision, it must have regard to Direction 69.[16]
[12] CB 80.
[13] CB 83 to 89.
[14] CB 84 at [5].
[15] CB 84 to 85 at [6] to [9].
[16] CB 85 to 86 at [12] to [14].
In its consideration of the applicant’s claims and evidence, the Tribunal observed that:
(a)the applicant completed a bachelor’s degree in aeronautical science in 2014, and then worked as a pilot from 2015 to 2017 in Brazil.
(b)the applicant had applied for a Vocational Education Sector visa to study a Certificate III in Business.
(c)the applicant had:
(i)completed a General English course in 2018 and a Certificate III in Business;
(ii)elected to continue to study and was enrolled in and studying towards the completion of a Certificate IV in Business in May 2020 and had also enrolled in studies towards the completion of a Diploma of Business in May 2021.
(d)it was ‘troubled’ by the matters contained in sub-paragraphs (a) to (c) above and there were ‘a number of issues for the applicant’s application’ including that:
(i)the evidence indicated that the applicant had not studied between May and October 2019 and had worked during most of this period, contrary to his stated intention of seeking to remain in Australia for study purposes;
(ii)the applicant had not returned to Brazil upon completing his Certificate III in Business, contrary to a statement made by him on 20 March 2018 that he provided to the Department;
(iii)the applicant’s proposed study represented a significant downgrade from his bachelor’s degree level qualification, thereby raising concerns about the genuineness of his intentions to study and remain temporarily in Australia;
(iv)the applicant’s residence in Australia for a period of two years, along with his English language studies in Australia and existing bachelor’s degree in aeronautical science, were likely to have provided him with the vast majority of assistance and improvement to his future career and that he was now in a position to return to his home country;
(v)the applicant’s proposed business studies in Australia were not clearly relevant to his career as an airline crew member and unlikely to have a significant further influence on his future remuneration in circumstances where he already holds a tertiary qualification;
(vi)the applicant’s economic circumstances in Australia were acting as a significant incentive for him not to return to his home country.[17]
[17] CB 86 to 89 at [17] to [29].
The Tribunal found, having had regard to the applicant’s circumstances, immigration history and all other relevant factors, that it was not satisfied the applicant was a genuine applicant for entry and stay as a student temporarily as required by cl 500.212. Accordingly, the Tribunal determined that the criteria for the grant of a visa could not be met and therefore affirmed the delegate’s decision.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings by way of an originating application filed on 24 April 2020. The application was accompanied by an Affidavit of the applicant which attached a copy of the Tribunal’s decision record.
On 12 June 2024, Registrar Downing made Orders by consent permitting the applicant to file any amended application by 14 June 2024, and for the first respondent to file and serve written submissions and any additional evidence by 21 June 2024.
On 14 June 2024, the applicant filed an amended application which contained the following seven grounds of application (without alteration):
1.The Second Respondent did not adequately disclose determining factors so that the Applicant could make representation in response to them.
2.The Second Respondent incorrectly applied the law.
3.The Second Respondent did not adopt a fair process in making the decision.
4.The Second Respondent failed to take into account material questions of fact or integers of the claim.
5.The Second Respondent did not give the Applicant a reasonable opportunity to present their case.
6.The Second Respondent identified a wrong issue.
7.The Second Respondent made a jurisdictional error by failing to provide natural justice and procedural fairness.
Particulars of jurisdictional error
8.The following is a non-exhaustive list of issues that could each result in a jurisdictional error:
a.By coming to the wrong decision, in the legal sense, in not adjourning the review under s 363 (1)(b) or adequately disclosing to the applicant the Tribunal’s concerns as regards the applicant’s injury, patterns of work, continued study, and future plans.
b.By failing to properly consider the applicant’s completion of their studies and compliance with the visa conditions, as part of their immigration history, and thus not adhering to their own interpretation of s 499 of the Act.
c.By unfairly determining that the completion of a certain course was sufficient to improve a future career, but determining that a more advanced vocational course in the same discipline is not relevant to that career.
d.By failing to properly consider the Applicant’s level of wages earned in their home country, or compare the economic circumstances in Brazil and Australia, when assessing the Applicant’s incentive to return to his home country.
e.By placing too much weight on the Applicant’s continued study of Business and English as demonstrating an intention to remain in Australia, without allowing further submissions from the applicant in response.
f.By wrongly identifying a lack of detailed answers provided in response to the s 359(2) letter as a lack of genuine intention to study.
g.By failing to invite the applicant to appear at a hearing pursuant to s 360, resulting in a denial of procedural fairness.
RELEVANT LEGISLATION
Section 359 of the Act relevantly provided that:
359 Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
Section 360 of the Act relevantly provided that:
360 Tribunal must invite applicant to appear
(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.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 363 of the Act relevantly provided that:
363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
(c) subject to section 378, give information to the applicant and to the Secretary; or
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
(2) The Tribunal may combine the reviews of 2 or more Part 5‑reviewable decisions made in respect of the same person.
(3) Subject to subsection (4), the Tribunal may, for the purposes of a review:
(a) summon a person to appear before the Tribunal to give evidence;
(b) summon a person to produce to the Tribunal the documents or things referred to in the summons;
(c) require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and
(d) administer an oath or affirmation to a person so appearing.
(4) The Tribunal must not, for the purposes of a review that is being conducted in Australia, summon a person under paragraph (3)(a) or (b) unless the person is in Australia.
Clause 500.212 in Part 500 of Schedule 2 to the Regulations relevantly provided:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
CONSIDERATION
At the hearing before me on 19 August 2024, the applicant pressed each of the seven grounds of review contained in the amended application.
For the purposes of my consideration, I adopt the Minister’s categorisation of the grounds in the following manner:
(a)Ground 1 contends that the Tribunal did not adequately disclose to the applicant the determining factors on the review;
(b)Ground 2 is a complaint that the Tribunal incorrectly applied the law;
(c)Grounds 3, 5 and 7 amount to different ways in which the applicant was not afforded procedural fairness in the conduct of the Tribunal’s review;
(d)Ground 4 alleges that the Tribunal failed to take into account material questions of fact or integers of the claim; and
(e)Ground 6 is an assertion that the Tribunal identified a wrong issue.
The applicant succeeds on one ground. That ground is addressed below at [36] to [54]. Although his success on that ground relieves me of the necessity to address each of the other grounds, since all of the grounds were ventilated by the parties, I will nevertheless proceed to address each ground in the order and manner categorised by the Minister.
Ground 1
In ground 1, the applicant contends that the Tribunal did not adequately disclose determining factors to him so that he could make representations in response to them. Particular 8a elaborates upon this ground by reference to the applicant’s injury, patterns of work, continued study and future study plans.
Insofar as this ground seeks to establish a failure to put the applicant on notice of the dispositive issues on review, the Minister submits that, on 30 October 2019, the Tribunal wrote to the applicant under s 359 of the Act to request further information about whether the applicant was a genuine temporary entrant, and annexed a copy of Direction 69 which set out the criteria the Tribunal was to consider. I accept that submission as this material clearly set out the dispositive issues in the review insofar as it specified the requirement for the applicant to meet the criteria in cl 500.212 and detailed the criteria within Direction 69 that the Tribunal was to consider when making that assessment.
Insofar as this ground seeks to establish a failure to provide an opportunity to comment on or respond to adverse information, the Minister submits that there was no information the Tribunal was required to give to the applicant in accordance with s 359A of the Act. I accept this submission as no breach of s 359A has been made out because:
(a)the Tribunal’s decision was based on the applicant’s written evidence to the Minister’s Department and to the Tribunal, including the delegate’s decision record which the applicant lodged with his review application, all of which falls within the exceptions in ss 359A(4)(b) and (ba) of the Act.
(b)the information pertaining to the Brazil Human Development Index was general country information, which falls within the exception in s 359A(4)(a) of the Act.
On this basis, jurisdictional error is not made out.
Ground 2
In ground 2, the applicant alleges that the Tribunal incorrectly applied the law.
The Minister submits that ‘it is plain that the Tribunal understood it was required to comply with Direction 69, being a valid ministerial direction made under s 499 of the Act, and to consider the specific factors therein’. I accept that submission. The Tribunal annexed Direction 69 to its invitation to the applicant under s 359, and referred to it in its decision record where it:
(a)acknowledged that it must have regard to Direction 69;
(b)recognised that Direction 69 obliged it to consider a number of specified factors when discharging its fact-finding task for the purpose of determining whether the applicant met cl 500.212;
(c)noted the guidance within Direction 69 that the fact-finding task involved an approach which required a consideration of the applicant’s circumstances as a whole and eschewed the usage of the specified factors as a checklist.[18]
[18] CB 86 at [14]-[16]
The Tribunal considered the relevant specified factors in its decision and made clear findings about them based upon its consideration of the information before it. Specifically in relation to the matters raised in particular 8b, I reject these assertions as the Tribunal considered the applicant’s completed courses of study both in Brazil and Australia,[19] and clearly specified that it made no adverse findings in relation to the applicant’s compliance with any Australian visas held by him.[20]
[19] CB 86 – 87, at [17]-[20]
[20] CB 88 at [26]
On this basis, jurisdictional error is not made out.
Grounds 3, 5 and 7
In grounds 3, 5 and 7, the applicant alleges that he was not afforded procedural fairness in the conduct of the Tribunal’s review. In particular, having explored these grounds with the applicant at hearing, the applicant takes issue with the Tribunal’s:
(a)decision not to adjourn the review under s 363(1)(b) of the Act to allow him to make further submissions, as per particulars 8a and 8e (adjournment issue).
(b)failure to invite the applicant to a hearing under s 360 of the Act, thereby depriving him of a reasonable opportunity to present his case, as per particular 8g (hearing invitation issue).
The adjournment issue
In relation to the adjournment issue, the applicant’s submissions are misconceived. Section 357A states that Division 5 of Part 5 of the Act, in which s 363 appears, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with therein. The Tribunal observed in its decision that it had decided not to adjourn the review on the basis that almost two years had elapsed since the review application had been made and that it had invited the applicant to provide any further or updated information in support of his application. Noting that the applicant had availed himself of the opportunity to provide such information, the Tribunal considered that, in the circumstances, the applicant had been afforded a fair opportunity to provide relevant information in support of his case. The Minister submitted that these considerations provided an evident and intelligible justification for the Tribunal’s decision not to adjourn the review and that it could not be said that no rational decision-maker would have come to the same decision. I accept that submission, noting that the applicant had been afforded ample opportunity to present his case and that the Tribunal’s decision not to adjourn the matter was not unreasonable in the circumstances. On this basis, jurisdictional error is not made out.
The hearing invitation issue
In the applicant’s written submissions, and before me at hearing, the applicant focussed upon its complaint that the Tribunal’s failure to invite the applicant to appear at a hearing pursuant to s 360 had resulted in the denial of procedural fairness.
The question is whether, for the purposes of s 360(2)(b) of the Act, the applicant consented to the Tribunal determining his application without inviting him to a hearing.
The applicant contended that although he had expressed an indication of having given such consent by way of his completion of question 2 in Section 2 of the hard copy form and selecting the corresponding option in the online form, that expression of consent was ineffective and could not be relied upon by the Tribunal because his response to question 3 in Section 2 of the hard copy form indicated a contrary expectation on his part that he required an interpreter for a hearing may still well proceed. The applicant further contended at hearing before me that in circumstances where he was unrepresented before the Tribunal, had limited English language proficiency, and had been expected to complete a form that contained confusing language, the Tribunal should not have regarded his consent as effective.
By way of written submissions from the Minister, which were largely reiterated at hearing before me, the Minister addressed the applicant’s complaint in the following terms (footnotes omitted):
The applicant argues that in circumstances where the applicant indicated he required an interpreter in his application for review and in the [hard copy] form, the Tribunal should not have accepted the applicant’s express consent to it deciding the matter without a hearing and should have instead invited the applicant to a hearing and/or offered him a further opportunity to provide further evidence. The applicant contends that by not doing so, the Tribunal denied him procedural fairness. First, the Tribunal is under no obligation to send correspondence to an applicant in their native language. Second, the applicant had provided two completed RSVI forms [the hard copy form and the online form] and in both of those forms, had indicated his consent to the Tribunal deciding the review without a hearing (CB 54, 68). Third, the applicant himself had told the department that he “strongly” believed he was “able to communicate in English” (CB 18, CB 87, [21]). In those circumstances, the applicant’s submission that the applicant “previously intimated that he had difficulty understanding English” (AS [32]) cannot be maintained. Finally, as set out above, the Tribunal’s reasons reveal an evident and intelligible justification for its decision not to adjourn the review to allow the applicant to provide further evidence.
Did the applicant effectively consent to the Tribunal determining the matter without a hearing?
Section 360(1) of the Act requires the Tribunal to ‘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.’ This obligation does not apply, however, if ‘the applicant consents to the Tribunal deciding the review without the applicant appearing before it’: s 360(2)(b). If this occurs, the applicant is not entitled to appear before the Tribunal: ss 360(3) and 363.
Relevant principles
A review of various authorities on the issue of consent for the purposes of s 360(2)(b) of Part 5 of the Act, and its analogous expression within s 425(2)(b) of Part 7 of the Act, reveals several relevant principles. I am aided by the recent consideration of some of these authorities by her Honour Judge Laing in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 458 (Singh).
In Minister for Immigration & Multicultural Affairs & Indigenous Affairs v SZFML (2006) 236 ALR 294; [2006] FCAFC 152 (SZFML), the applicant’s migration agent had specified in a hearing invitation that the applicant wished to attend a hearing, however in a subsequent response to a notice rescheduling the hearing, the applicant’s migration agent informed the Tribunal, purportedly on the applicant’s behalf, that the applicant did not wish to attend the rescheduled hearing. The Tribunal proceeded to decide the applicant’s case without a hearing. On judicial review, the applicant gave evidence that she had not instructed her migration agent to waive her right to appear before the Tribunal at hearing. The Court accepted this evidence and found that the agent had no authority to waive the applicant’s hearing right. The Court stated at [65]:
The Tribunal determined the application for review without hearing SZFML on the false premise that she had consented to it doing so and therefore on the false premise that she was not entitled to a hearing. That false premise led to a failure of the statutory procedural fairness requirement specified in Div 4. It may be noted that there is nothing in s 441G, relating to authorised recipients, which would have the effect of deeming apparent consent lodged by an authorised recipient without authority, to be a consent for the purposes of s 425(2)(b) of the Act. Moreover the Minister expressly disclaimed any reliance upon principles of ostensible agency. The failure of the statutory requirement of procedural fairness may not have been the Tribunal’s fault. Whether it was or not the Tribunal acted without power and so its decision was amenable to the relief granted by the learned Federal Magistrate.
At [74], the Court in SZFML further stated:
In the present case the hearing requirements for procedural fairness are as prescribed in the statute. An effective consent or non-attendance by an applicant at a scheduled hearing are alternative necessary conditions of the Tribunal’s power to determine an application without a hearing. Absent an effective consent, the condition under which the Tribunal may treat the applicant as disentitled from a hearing is not satisfied.
In SZGWN v Minister for Immigration & Citizenship (2008) 103 ALD 144; [2008] FCA 238 (SZGWN), the issue of consent arose in circumstances where an applicant had experienced interpretation problems during a hearing and their migration agent had sought to address these by way of providing a transcript of the hearing along with submissions highlighting the deficiencies in interpretation. The Minister suggested that the applicant had implicitly accepted that they had consented to not having a further hearing to address the interpretation problems, thereby making it appropriate for the Tribunal to decide the matter without conducting a further hearing. The Court rejected this suggestion, where Gilmour J stated at [43]:
There was no finding nor evidence to warrant a finding that the appellant consented to not having a further hearing such as to trigger the exempting provision in s 425(2)(b) of the Act. No such submission was put in the appeal. I do not regard the above submission concerning the appellant’s "implicit ... acceptance" that it was appropriate for the Tribunal to proceed to make a decision as being to that effect. Even if it was I would not accept the submission. Consent for the purposes of s 425(2)(b) of the Act would be required to be given, in my opinion, in unambiguous terms. It would be an unusual case for such consent to be implied. Accordingly, it is not to the point that the appellant did not ask for a third Tribunal hearing. The statutory obligation under s 425 to "invite" the appellant to appear before it to give evidence and present arguments lay with the Tribunal. It is a continuing obligation: Applicant NAAF of 2002 at [26]-[27]. It extended no such invitation to the appellant to attend a further hearing so that he could give evidence, with adequate interpretation, on the topics where it had been demonstrated that his "evidence" at the hearing on 11 October 2006 was riddled with confusion and error because of poor interpretation. The failure by the appellant to ask for a further hearing did not affect that obligation. I am satisfied that the interpretation of matters of significance to the appellant’s case and the Tribunal’s reasons fell well short of the requisite standard.
From the above, the following principles in relation to the question of effective consent may be discerned:
(a)effective consent is a statutory precondition to the application of s 425(2)(b) of the Act and its counterpart in s 360(2)(b) of the Act: SZFML at [74];
(b)consent for the purposes of ss 425(2)(b) and 360(2)(b) of the Act must be ‘in unambiguous terms’. It is unlikely that acquiescence would suffice: SZGWN at [43].
(c)in assessing whether effective consent has been given, the written record purporting to communicate the applicant’s consent to the Tribunal is not necessarily determinative. It is permissible to go behind that record in determining whether real and effective consent has been given: SZFML at [65].
Other authorities illustrate a range of circumstances that have been considered as part of an assessment whether effective consent has been given. These include whether an applicant was represented at all relevant times by a lawyer or migration agent, whether an applicant was somehow confused or misled when giving that consent, and whether there is any suggestion on the materials before the Court that the applicant wanted to attend a hearing.
In Khadgi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 991 (Khadgi), the applicant indicated his consent to Tribunal deciding his matter without a hearing by way of affirmatively answering a question in an online form. In reviewing the primary judge’s conclusion that there was no ambiguity as to whether consent was given, SC Derrington J was unprepared to disturb that conclusion in circumstances where the applicant had been always represented by a migration agent and had failed to demonstrate that the wording in relation to the question of consent in the online form was confusing or unintelligible.[21]
[21] Khadgi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 991 at [17].
In Singh, the applicant confirmed that he had completed the online form by selecting the option affirmatively consenting to the Tribunal deciding his matter without a hearing. In cross examination the applicant gave evidence, unchallenged by the Minister’s representative, that he only selected that option as he was experiencing technological issues with the online form and ‘wanted to move the form on to the next page.’ The applicant gave further evidence that he did in fact want to attend a hearing before the Tribunal. Her Honour Judge Laing found that the applicant’s evidence was that he did not intend to submit a form that waived his right to a hearing. Further, her Honour found that the evidence in the matter indicated a considerable level of confusion on the applicant’s part in his interactions with the Tribunal after the form had been submitted. Therefore, her Honour was not persuaded that the applicant effectively consented to the waiver of the hearing.
In Murni & Ors v Minister for Immigration & Anor [2020] FCCA 579 (Murni), the primary applicant indicated her consent to the Tribunal deciding the matter without a hearing by way of affirmatively answering a particular question in a form. In circumstances where the applicant submitted that their poor English language skills resulted in them misunderstanding the nature of the consent they were asked to provide, his Honour Judge Kendall observed that there is no obligation on the Tribunal to provide correspondence to the applicants in their native language,[22] and found that effective consent had been given as there was nothing in the materials or the evidence before the Court to suggest that the applicants wanted to attend a hearing.[23]
[22] Murni at [37].
[23] Murni at [37], citing SZIMG v Minister for Immigration & Citizenship [2007] FCA 543 at [12].
Application of principles to the present case
In the present case, as I described above in paragraphs [9] to [13], the Tribunal received information from the applicant, by way of his response to question 3 of the hard copy form provided to the Tribunal on 13 and 14 September 2019, which suggested that he still wanted a hearing. This specific information did not align with other information he provided to the Tribunal, in both the online form and at question 2 of the hard copy form, which otherwise suggested that he had consented to waive his right to a hearing.
In its decision, the Tribunal does not identify the inherent conflict in the applicant’s information on this issue of consent. Absent any express acknowledgment or consideration of the inherent conflict in the applicant’s information on this issue, I am of the view that the Tribunal failed to turn its mind to whether effective consent had been given for s 360(2)(b) purposes.
The documents before the Tribunal speak for themselves. They demonstrate that the applicant’s responses to various questions, when read as a whole, were not unambiguous in terms of him providing consent to waive his right to a hearing. In these circumstances, I am not persuaded that the Tribunal could satisfy itself that the applicant had effectively consented to the waiver of the hearing.
In this case, there is no need to go beyond the written record to determine whether the applicant’s consent was effective for the purposes of s 360(2)(b). Regardless of the circumstances which gave rise to the applicant’s inherently inconsistent completion of Section 2 of the hard copy form, it remains that there is no evidence of the Tribunal having properly turned its mind to the incongruous information provided by the applicant on the question of whether he had consented to waive his right to a hearing.
In these circumstances, I am not persuaded that the applicant effectively consented to the waiver of the hearing. Therefore, the applicant was denied an opportunity to appear before the Tribunal and the Tribunal breached its obligation in s 360 of the Act. Accordingly, jurisdictional error has been established.
Ground 4
In ground 4, the applicant alleges that the Tribunal failed to take into account material questions of fact or integers of the claim. In support of this allegation, the applicant asserts by way of particulars 8b and 8d that his completion of studies, compliance with visa conditions, level of wages and economic circumstances in Brazil, were not properly considered by the Tribunal.
At paragraphs [18] to [22] of the Tribunal’s decision record, under the heading ‘CONSIDERATION OF CLAIMS AND EVIDENCE’, the Tribunal considered the circumstances of the applicant’s case. In particular, the Tribunal considered his past, present and proposed studies, along with the relationship of such studies to his stated career path. It also considered the applicant’s employment history in Brazil and Australia along with his wages and economic circumstances in each country. The Minister submits that the only evidence provided about the applicant’s wages and economic circumstances in Brazil was his claimed salary as a pilot, and his hope to increase his salary once he improved his English.[24] The Minister further submits that the Tribunal went on to state that the applicant’s economic circumstances in Australia were acting as a significant incentive for the applicant not to return to Brazil.
[24] CB 26, 63 and 67.
In relation to the applicant’s compliance with conditions imposed on his Australian visas, the Tribunal clearly found that there was no evidence to suggest the applicant had had any travel, visa or immigration in the past ‘save for the issues in relation to his visas coming to Australia outlined above’.[25] The Minister submits this phrase refers to the issues raised by the Tribunal in relation to the visa application before it.
[25] CB 88 at [26]
I accept the Minister’s submissions in relation to this ground. The Tribunal was clearly aware of the applicant’s claims and evidence, and properly considered that material when making its findings. It was open to the Tribunal to give less weight to this material than the more detailed evidence of the applicant’s economic circumstances in Australia, in its assessment of whether the applicant met the requirements of cl 500.212.
No jurisdictional error arises in this regard.
Ground 6
In ground 6, the applicant alleges that the Tribunal identified a wrong issue. The various particulars and oral submissions made on behalf of the applicant at hearing provide no meaningful elucidation of the wrong issue identified by the Tribunal. Nevertheless, the Tribunal correctly and clearly identified the determinative issue being whether the applicant met the genuine temporary entrant criterion in cl 500.212.
Without any further particularisation, this ground does not give rise to a jurisdictional error.
Remaining particulars
In relation to the remaining particulars 8c, 8e and 8f, the Minister makes the following submissions which I accept.
In relation to particular 8c, the Minister submits that the Tribunal had regard to the applicant’s intentions for studying in Australia, variously stated as ‘to learn English’ and ‘to develop some skills in English’ in order to return to Brazil ‘to take an airline crew position … which requires a direct contact with airline clients and business behaviour to better serve all customers’. The Tribunal also took into account the applicant’s bachelor’s degree, the study he had already completed in Australia and his residence in an ‘English speaking country’ for over two years, and considered the applicant was likely to have gained the vast majority of assistance and improvement to his future career and was therefore in a position to return to Brazil.[26]
[26] CB 87 to 88 at [21].
In relation to particular 8e, the Minister submits that the weight accorded to aspects of evidence is a matter for the Tribunal, and that particular 8e is no more than an invitation to the Court to engage in impermissible merits review.
In relation to particular 8f, the Minister submits it was open to the Tribunal to consider the level of detail in the applicant’s response to the s 359 letter in comparison to previous submissions made to the Minister’s Department, as one of the factors that give rise to concerns as to the true nature of the applicant’s intentions for studying in Australia.
No jurisdictional error arises in relation to any of matters specified within these particulars.
CONCLUSION
For the above reasons, the application before this Court succeeds.
I will hear the parties in relation to costs.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 29 August 2024
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