Gyeltshen v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 460
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gyeltshen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 460
File number(s): MLG 1100 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 1 June 2023 Catchwords: MIGRATION – Unreasonable refusal of adjournment request – where Tribunal elected to hold hearing by telephone and refused applicants the opportunity to provide document by email – failure to consider evidence Legislation: Migration Act 1958 (Cth) ss 360, 363
Migration Regulations 1994 (Cth) cl 500.214 of Schedule 2
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317
EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 222
Kelly v Australian Postal Corporation (2015) 67 AAR 359
Minister for Immigration and Border Protection v MZAIV [2016] FCA 251
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
MZZQY v Minister for Immigration and Border Protection [2015] FCA 883
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 18 April 2023 Place: Sydney Solicitor for the Applicants: Ms Frankel of Estrin Saul Lawyers Solicitor for the Respondents: Mr Papalia of Australian Government Solicitor ORDERS
MLG 1100 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PHUB GYELTSHEN
First Applicant
SONAM LHAKI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
1 June 2023
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 14 March 2019 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to re-determine, according to law, the application for review before it.
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 GIVEN:
The applicants seek judicial review of a decision of the second respondent (Tribunal) dated 14 March 2019, affirming a decision by a delegate of the first respondent (Minister) to refuse to grant them a Student (Temporary) (Class TU) Subclass 500 visa (visa).
Background
The background to this matter is primarily derived from the written submissions of the parties and does not appear to be in dispute.
The first and second applicants, who are citizens of Bhutan, are husband and wife (Court Book (CB) 30). The first applicant (applicant) commenced his studies in Australia in or about November 2013 (CB 20). On 28 February 2017, the applicants lodged a combined application for the visa so that the applicant could continue his studies in Australia (CB 18).
On 28 April 2017, a delegate of the first respondent refused to grant the applicants the visa on the basis that the delegate was not satisfied that the applicant had genuine access to funds for the purpose of the primary criterion in cl 500.214(3) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) (CB 56 to 59). The second applicant was refused on the basis that she could not meet the secondary criteria for grant of a visa, because the applicant had not been granted a visa in his capacity as the primary applicant (CB 53).
On 15 May 2017, the applicants applied to the Tribunal for review of the delegate’s decision (CB 60 to 62) and appointed their migration agent as their authorised recipient. The application to the Tribunal attached submissions which set out details of the applicant’s payment of student fees until that time (CB 63 to 66).
On 18 February 2019, the Tribunal invited the applicants to appear at a hearing on 14 March 2019 (CB 79 to 81) (hearing invitation). The hearing invitation stated (original emphasis):
The Member who will conduct the hearing will be in Melbourne and we are arranging for you to appear by telephone.
If you wish to attend the hearing in person, please contact me as soon as possible.
By the hearing invitation, the Tribunal also requested that the applicants provide (original emphasis):
Either:
· Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant instrument.
OR
· Evidence of the annual income of you parents/spouse/de facto partner and that you have genuine access to those funds.
By a completed response to hearing invitation form dated 26 February 2019, which appears to have been signed by their migration agent, the applicants accepted the hearing invitation and indicated that they would attend the hearing, together with their migration agent (CB 82 to 84).
On 7 March 2019, the applicants respondent to the Tribunal’s invitation providing information and documents, including a balance confirmation for a bank account in the second applicant’s name, which demonstrated a balance of $41,524.60 (CB 85).
On 8 March 2019, the Tribunal requested the applicants provide the last 12 months of statements for the first applicant’s bank account and the current balance of that account (CB 94). The applicants provided further documents including a Confirmation of Enrolment (CoE) certificate dated 7 February 2019 pertaining to the applicant for his Bachelor of Business being undertaken at Murdoch University. The latter document evidenced a course start date of 25 February 2019 and end date of 31 December 2019. The total tuition fee was specified as being $21,420 and the document appears to record that no part of that fee had yet been paid (CB 92). The applicants also provided a letter from the second applicant’s bank showing a balance of $41,524.60 (CB 85).
On 14 March 2019, the applicants appeared by telephone before the Tribunal to give evidence and present arguments (CB 97 to 99). Despite the indication in the response to hearing invitation form referred to at [8] above, it seems that the applicants’ migration agent did not attend the hearing.
From the Migration Hearing Record contained in the Court Book, the following can also be discerned:
(a)the amount of time allocated for the hearing appears to have been 3 hours from 12:30pm until 3:30pm (CB 97);
(b)a notation indicates the hearing as having commenced at 1:16pm (CB 97);
(c)a handwritten notation next to a record of whether the applicant took an oath or affirmation says “*ORALAFFIRM*” next to which there is another notation “@1332” (CB 97);
(d)under a heading “Oral decision” there is a box which has been ticked adjacent to a template saying “Oral decision made at____________am/pm”, in which space has been included a handwritten notation “1.32” with “pm” circled (CB 99);
(e)under a heading “Hearing outcome” there is a box which has been ticked adjacent to a template saying “Hearing completed at ____________am/pm”, in which space has been included a handwritten notation “1.33” with “pm” circled (CB 99);
(f)a table on a preceding page which appears to be for completion by a hearing officer has a box stating “Hearing closed” adjacent to which has been included a handwritten notation “13:33” (CB 98); and
(g)under a heading “Documents received/Comments” there is a handwritten notation (in a jauntily drawn circle, with double underlining) which says “None” (CB 97).
On 14 March 2019, at 2:52pm, the Tribunal wrote to the applicants (via email to their authorised recipient) notifying them of the outcome of the review, which had concluded with a decision given orally at the conclusion of the hearing (see also [12] above) (CB 100 to 102). The attached outcome of review document records the time of oral decision as being “1:32pm (VIC) time” (CB 103).
On 19 March 2019, a different migration agent sent the Tribunal (by email) a notice indicating that he had been newly appointed as the applicants’ migration agent and authorised recipient, and requested that the Tribunal produce a written record of the decision which had been given orally (CB 104 to 107).
On 28 March 2019, the Tribunal wrote to the applicants via their newly appointed authorised recipient, which was resent the same day after the Tribunal received a ‘bounce back’ email having initially used the wrong email address (110 to 117).
Tribunal Decision
By its decision, the Tribunal observed that the applicant was required to demonstrate he met the certain requirements and had genuine access to funds in the amount of $50,810 pursuant to cl 500.214 of the Regulations (CB 112 to 113 at [9] to [13]). This calculation was reached by adding the living costs for both applicants and combining said amount with the full amount of fees for the first applicant’s course. The Tribunal referred to the instrument IMMI 18/010 (Evidence of financial capacity for Subclass 500 (Student) visas and Subclass 590 (Student Guardian) visas) (IMMI 18/010) (CB 112 to 113 at [11] to [13]).
The Tribunal noted that the applicant had provided the CoE prior to the hearing (referred to at [10] above) (CB 113 at [14]).
The Tribunal said the following at [15] to [19] (CB 113) which, relevant to the grounds of review before the Court, warrants setting out in full:
15. Prior to this hearing, the applicant has not provided evidence which satisfies the requirements of having genuine access to finds to meet your costs and expenses during your intended stay in Australia.
16. At hearing today you were again requested to provide this evidence to the Tribunal, such as evidence you meet the requirements of having genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australian and the costs and expenses for each member of your family unit. You have not done so.
17. The applicant requested further time in which to submit evidence of financial capacity and genuine access to funds. The Tribunal carefully considered the request for further time and after due consideration, the Tribunal is not satisfied that an extension of further time is appropriate for the following reasons.
18. The applicant has had since 18 February 2019, which stated on the invitation to appear before the Tribunal to submit the relevant documentation and he has not done so. The decision of the Department was made on 28 April 2017, approximately two years ago and the applicant had plenty of time to submit the relevant documentary
19. Accordingly, there is no evince before me that you meet the requirements of having the financial capacity and accordingly cl.500.214 is not met.
Having found that the applicant did not satisfy cl 500.214 of the Regulations on the basis that there was no evidence before the Tribunal showing that the applicant met the financial capacity and genuine access to funds requirements (at the time at which the Tribunal proceeded to make its decision), the Tribunal affirmed the decision of the delegate (CB 113 at [19] to [22]).
In relation to the second applicant, the Tribunal found that she satisfied cl 500.311 which required that a dependent visa applicant be a member of the family unit of a person who holds a Student visa having satisfied the primary criteria for the grant of that visa. However because applicant was found to not satisfy the primary criteria in cl 500.214 of Schedule 2 of the Regulations, the Tribunal found that she was not a member of the family unit of a primary visa applicant who held a Student visa by having satisfied the primary criteria for the grant of that visa, and therefore she did not satisfy cl 500.311 (CB 113 at [23] to [24]).
Proceedings before the Court
By an application to show cause filed on 12 April 2019, the applicants commenced these proceedings in the Melbourne Registry of the Court. The matter was placed in the central migration docket. The applicants were unrepresented at the time of the commencement of the proceedings. On 28 July 2021, procedural orders were made (by consent) by a Registrar of the Court which provided for the preparation of the matter and included a grant of leave to amend the originating application up to 28 days before any final hearing.
On 20 July 2022, the applicant appeared by telephone before a Registrar of the Court for callover, sometime after which it was listed for hearing before another Judge of this Court (first primary Judge) on 30 March 2023.
On 1 March 2023, a Notice of Address for Service was filed for the applicants which had the effect of appointing his current solicitors as his representatives. On the same date, an Amended Application and an Affidavit of Sarah Leora Frankel affirmed 1 March 2023 were filed for the applicants. The aforementioned Affidavit attached a transcript of the Tribunal hearing, prepared from audio (Transcript Affidavit).
Due to the unavailability of the first primary Judge, the matter was subsequently re-docketed to me and, on 22 March 2023, I listed it for hearing before me on 18 April 2023. On that date, the hearing was facilitated using the Microsoft Teams platform because the Court was presiding in Sydney and the parties/representatives were elsewhere. The connection appeared clear throughout the hearing.
The solicitor for first respondent tendered the Court Book which was marked as Exhibit “1R”. The applicants moved on the Amended Application, filed 1 March 2023, which by reference to the self-executing grant of leave referred to at [21] above, was within time. The Transcript Affidavit was read for the applicants.
By reference to the Amended Application, the applicants rely on the following grounds of review (particulars omitted):
1.The Second Respondent acted unreasonably in deciding not to adjourn the hearing in order to give the First Applicant time to provide a relevant further document.
2.The Second Respondent failed to consider evidence provided by the First Applicant that went towards his capacity to meet the criteria for the visa.
Ground 1
By this ground the applicants alleged that that Tribunal acted unreasonably in refusing to grant an adjournment so that the applicant could provide a document (which the applicant says he had assumed to already be before the Tribunal).
Section 363 of the Migration Act 1958 (Cth) (Act) provides as follows:
(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.
The power of the Tribunal to adjourn under s 363(1)(b) of the Act must be exercised with a requirement of reasonableness, especially in light of the requirement in s 360 of the Act to invite an applicant to appear before the Tribunal to give evidence and present arguments: see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh) per Allsop CJ, Robertson J and Mortimer J (as her Honour then was) at [43].
The purpose of s 360 of the Act is to give an applicant a meaningful opportunity to appear and present evidence and arguments. The requirement to afford an applicant the opportunity to appear, and to present evidence and arguments does not simply require the Tribunal to hold a hearing. That opportunity also requires that the Tribunal consider whether to adjourn that hearing and/or whether to allow further information to be provided after the hearing, as a part of its review applicant’s case: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) per Hayne J, Kiefel J (as her Honour then was) and Bell J at [79] and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 per Gaudron and Gummow JJ at [40].
The applicants have advanced the transcript of the Tribunal hearing, which is extracted below (albeit having regard to the brevity of the hearing itself, the entirety of the hearing transcript barely totals 5 pages).
In EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 222 at [87] to [89] the Court discussed the need to proceed with caution in relation to the use of Tribunal hearing transcripts. There is authority to the effect that a transcript of the Tribunal hearing cannot be employed to “supplement and expand the Tribunal’s stated reasons for exercising the power in the way it did”: see AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at [58] per Tracey J, Mortimer J (as her Honour then was) and Charlesworth J (citing in turn Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 per Mortimer J (as her Honour then was) at [33] and Kelly v Australian Postal Corporation (2015) 67 AAR 359 per Griffiths J at [51] to [53]). See also Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [95] per Rares J. I have observed that caution and have consulted the transcript for the purposes of understanding the context in which the Tribunal refused the adjournment request.
At the Tribunal hearing, the applicant gave evidence that he had paid the relevant fees for his current course. The Transcript of the Tribunal hearing records the following exchange at page 2:
MEMBER: Are you currently enrolled in a course of study?
APPLICANT: Yes.
MEMBER: What is that course?
APPLICANT: It’s a Bachelor in Business Administration, BBA.
MEMBER: Where at?
APPLICANT: At Murdoch University.
MEMBER: Okay. And that commenced on 25 February 2019 and is due to be completed by the end of this year?
APPLICANT: Yes.
MEMBER: And at the cost of $21,420?
APPLICANT: Yes.
MEMBER: Okay. Have you provided any receipts of payment for this course?
APPLICANT: Yes.
MEMBER: Okay. Have you provided any receipts or payment for this course?
APPLICANT: Yes.
MEMBER: I haven’t got any on file. So where are these receipts?
APPLICANT: I’ve submitted to agent.
MEMBER: And you – yes?
APPLICANT: I’ve submitted – I’ve forwarded to the agent. And I think it’s mentioned in the CoE as well.
MEMBER: No, it’s not mentioned in the CoE of any payment being made.
APPLICANT: All right.
The applicants submit that the above exchange sought to convey the applicant’s understanding that the receipt which evidenced the requisite fee payment had been given by him to his agent and, as a result, that it was also already before the Tribunal.
Once the Tribunal member informed the applicant that he did not have that receipt (or such evidence) the applicant reiterated that he had paid the fees (Transcript at 2 to 3), after which the following exchange occurred (Transcript at 3):
MEMBER: Why have not you – why have you not submitted any further documents?
APPLICANT: I think I’ve brought – I’ve left behind with I think, the fees payment. I can do that. Cos I have one.
After some further discussion about the requests for documentation the following exchange occurred (Transcript at 4 to 5) (emphasis added):
APPLICANT: My agent advised me to provide me to provide all the necessary documents that I have been provided to him.
MEMBER: Well you don’t have – you don’t have the relevant figure of – of money to meet your requirements. Do you have any final comments today?
APPLICANT: Yes.
MEMBER: What do you have to say?
APPLICANT: Can say that I’ve got the current fees payment and everything. I’d like to request to like, to give me an opportunity to provide that paper fees payment by email.
MEMBER: I’m not – the Tribunal’s not going to grant you further time. You’ve had sufficient time since 18 February 2019 to have that completed and also 28 April 2017, when you’ve had your visa refused. Do you have any final comments today, Mr Gyeltshen?
APPLICANT: Yes. I’m not even sure, like, are you talking about the like current – current fees payment or the previous one?
MEMBER: Current at time of decision today, you require as the calculations from the Tribunal is around $50,810. The only evidence of it – that you have of money in an account at the moment is $41,000 and you’re nearly $10,0000 short.
APPLICANT: Yes, cos – cos I ---
MEMBER: You haven’t sent in as requested by the Tribunal the breakdown of your statements for the last 12 months. That was asked on 8 March.
APPLICANT: Yes, cos the ---
MEMBER: The Tribunal is not willing to grant you further time to submit any further documentation.
APPLICANT: Yes. Cost I haven’t, like submitted current fees payment which is $8650. So if you reduce that amount from the current statement it will be equivalent to the ---
MEMBER: Mr Gyeltshen, you’re not actually listening to my statement, here. You have not provided the evidence at the time of decision today. Do you have any final comments?
APPLICANT: No comments.
MEMBER: Okay. Thank you for attending the Tribunal today. As a result of not having the relevant documentation and evidence before the Tribunal the Tribunal will be making an oral decision in this case. At the time of the end of – at the end of this decision, there’ll be no further opportunity for further comment and the hearing will come to an end. Thank you for attending the Tribunal.
The applicants submit that, prior to the Tribunal hearing, no request had been made of them to provide evidence either of a specific amount of funds in a bank account, or receipts for payments made for the applicant’s studies. The most relevant document request was said to be contained in the hearing invitation letter (CB 80) which stated (emphasis in original):
Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.
The applicants also note that the letter from the Tribunal dated 8 March 2019 requested bank statements from the previous 12 months, but again neither sought a specific figure, nor requested evidence of payment of fees (CB 94).
The applicants submitted that the Tribunal would not have been prejudiced by a decision to have briefly adjourned the hearing.
The first respondent says that the applicants were assisted in the Tribunal application by a migration agent. The agent had, 6 days earlier, certified a copy of the CoE and provided it to the Tribunal in support of the application. The applicants’ representative had also alleged that the error in the delegate’s decision was a failure to consider course fees already paid. Accordingly, the first respondent says that the Tribunal was entitled to rely upon the representative to raise matters squarely with it, and as having provided all current and relevant information to address the issues which arose from the delegate’s decision: see MZZQY v Minister for Immigration and Border Protection [2015] FCA 883 at [27].
The first respondent submits that it was reasonable in the circumstances for the Tribunal to proceed to make its decision without providing the applicant with further time to provide evidence to satisfy the requirements of the visa given he had ample opportunity to provide such evidence and were on notice from the delegate’s decision and the Tribunal’s hearing invitation of the determinative issues on review and that. The first respondent says that while the Court (or another Tribunal) may have taken a different course, that is not the test.
In Li (supra) at [19] French CJ observed that, while the pre-dating the present legislative regime, the principle in Bhardwaj (supra) at [40] per Gaudron and Gummow JJ that “a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness” remains apposite to proceedings before the Tribunal.
The decision of the Tribunal records its reasons for refusing the adjournment request in the terms which have already been extracted at [18] above. The essential basis upon for the refusal is that the applicant had been given sufficient time to provide the relevant documents. The basis expressed is relevantly indistinguishable from the “enough is enough” approach referred to in Li (supra) at [81] to [82] per Hayne J, Kiefel J (as her Honour then was) and Bell J, where at [82] their Honours said the following:
It cannot be suggested that the tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.
In my view, the same can be said of the instant Tribunal’s decision.
The applicants submit that, given all the circumstances of the case, no reasonable decision-maker could have found that the applicants had been offered a genuine opportunity to appear and present evidence relevant to his case, without making a decision to adjourn the case even briefly to allow the applicant to provide the missing document. I agree.
In reaching that conclusion I take into account the following:
(a)the applicants had not previously been specifically requested to provide the (missing) document;
(b)there appears to have been only one particular document which the applicants were seeking to provide;
(c)from the exchanges which took place between the applicant and the Tribunal it is open, to accept that the applicant thought the document in question had already been provided to the Tribunal by his agent;
(d)the missing document could have been dispositive of the issues before the Tribunal;
(e)providing the missing document appears to have been a simple, and not especially time-consuming, task; and
(f)there was ample time even on the day of hearing to accommodate this occurring (see [48] below).
To the extent that the applicants submitted that there would have been no prejudice to the Tribunal in adjourning, this is not a consideration which specifically arises. As the High Court observed in Li, citing Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175:
The position of the Tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another. It may be accepted that the Tribunal is to act with some efficiency, as is stated in s 353(1) of the Migration Act, but such a consideration would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5.
In the present case, the Tribunal’s desire to act with efficiency would in no way have been compromised by a brief adjournment to allow the applicant to produce that which he seemed to be suggesting he had at his fingertips. That is moreso when regard is had to the fact recorded at [12(a)] above, namely that the Tribunal had allocated a full 3 hours for the hearing. The hearing started 46 minutes past the allocated start time. There is no reason recorded as to why the hearing started at this later time. There is certainly also no evidence that the applicants were responsible for the late start. The hearing, which on any view of things was brief, concluded at 1:33pm. As such, there was ample time in which the Tribunal could have adjourned the hearing for even a brief on the same day, particularly when the applicant seems to have been suggesting that the material was readily accessible (and therefore, presumably, readily transmittable).
The applicants do not contend there to be any procedural fairness to them by reason of the fact the hearing was conducted by telephone per se. Indeed, the Tribunal gave the applicants the opportunity to be hearing in advance as to whether there was any objection to the hearing being facilitated remotely (by telephone) and they made no objection. But, by acceding to the matter being heard by phone the applicants were not waiving their right to procedural fairness if something arose which required a reasonable accommodation by reference to the circumstances of the matter and the nature/medium of the hearing. Having elected to hold the hearing by telephone, it was incumbent on the Tribunal as part of that process to extend to the applicants the same opportunity to participate in, present evidence and give arguments as they would have had if they had appeared in person.
An applicant appearing in person will have the ability to instantly provide to the Tribunal documents which they have with them. An applicant appearing remotely (whether by telephone or any audio visual link) has no such ability. As is now readily apparent following the COVID-19 pandemic,[1] during which hearings were undertaken remotely, the methodologies employed to ensure procedural fairness may need to adapt. The Tribunal in the instant case did not so adapt and, by refusing the applicants the opportunity to provide the additional document (whether that required an adjournment of some minutes or even days) employed an inflexibility which unreasonably curtailed the ability of the applicants to give evidence and present arguments. This was an error.
[1] Noting that the Tribunal hearing in this matter occurred before that pandemic
As an aside, and while again noting the caution required in relation to transcripts (see [32] above), the transcript in this case belies a matter recounted in the Tribunal’s reasons. The Tribunal’s reasons for refusing the further opportunity to provide the evidence curiously include the observation that: “At hearing today you were again requested to provide this evidence to the Tribunal”.
On a fair reading of the Transcript, no such request was made of the applicant by the Tribunal. To the extent that the Tribunal’s reasons for decision record the Tribunal as being of the view that the applicant was specifically asked to produce the material it is even more unreasonable that having so requested it, the Tribunal did not facilitate the applicant doing so in circumstances where the hearing was being held (of the Tribunal’s own motion), by telephone.
However, I agree with the submission for the applicants that not only did the Tribunal not request the applicant to provide documents during the hearing, even if it had, it was impossible for the applicants to do so because the hearing was conducted by telephone (CB 79) and the oral decision was made directly after the hearing, with no break (CB 99).
In this regard it is also worthy of note that the Tribunal’s reasons for proceeding to the decision orally and immediately, employed somewhat circuitous reasoning. As can be seen from the concluding parts of the transcript extract at [36] above, the Tribunal said the following:
As a result of not having the relevant documentation and evidence before the Tribunal the Tribunal will be making an oral decision in this case.
In essence the Tribunal seemed committed to a course whereby a decision must be made because of the lack of the relevant document/s. However, that very dearth was one which the applicant was willing and able to swiftly rectify, and the Tribunal refused him.
In conclusion, and as already noted, the power of the Tribunal to adjourn a review pursuant to s 363(1)(b) of the Act confers a discretion which must be exercised reasonably: see Li at [29], [63] and [88]. In the present case, I find it was not so and that no reasonable Tribunal would have refused the adjournment in the circumstances of this case.
The refusal was an error and, applying a counterfactual (which also overlaps in part with the matters which will be discussed in respect of ground 2), that there was a realistic possibility that had the Tribunal not erred and allowed the applicant an opportunity to provide the relevant document and give evidence and present arguments about it, the outcome of the review could have been different.
Accordingly, the error established by ground 1 is a jurisdictional error and writs must issue. I will so order.
Ground 2
Despite having found error by ground 1, the Court will also consider the second ground, by which the applicants say the Tribunal ignored certain of their evidence, namely that the applicant had paid his course fees. This was repeatedly said by him to the Tribunal in a short space of time.
The applicants say that this evidence was ignored by the Tribunal member who himself kept reiterating that there was no evidence before the Tribunal that the fees had been paid.
The clearest example of the Tribunal’s disregard of oral evidence is the following exchange (at T3):
MEMBER: Do you have anything to say?
APPLICANT: Cos like, my current fees already paid, so I’m just left with just the three units payment. So I have [indistinct] - - -
MEMBER: I have no evidence of that, Mr Gyeltshen.
The applicants contend that the Tribunal made no findings about the applicant’s credibility as a witness or whether it believed or disbelieved his evidence. The applicants say the Tribunal did not engage intellectually at all with the applicant’s evidence, instead stating the following at [19] of the decision record:
Accordingly, there is no evidence before me that you meet the requirements of having the financial capacity and genuine access to funds.
The applicants also conceded that while it was within the Tribunal’s jurisdiction to accord limited weight to the applicant’s oral evidence, or to make decisions about whether his evidence was credible, it was not permitted to fail to consider the applicant’s oral evidence entirely: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 at [24] to [27] per Kiefel CJ, Keane, Gordon and Steward JJ.
The applicants submit that in the absence of any consideration of this evidence, the Tribunal failed to complete its statutory task.
The first respondent submitted that the Tribunal considered, but did not accept, the applicant’s oral evidence that he had paid his current student fees in circumstances where he had not provided supporting documentation. For the reasons given in respect of ground 1, I do not accept this argument.
The first respondent submitted that even if the Tribunal had accepted the applicant’s oral evidence that he had paid $8,650 of his fees, the evidence of financial capacity before the Tribunal was still not sufficient to satisfy the requirements of the visa. However, as is recorded at the Transcript extract at [36] above, the applicant was attempting to explain to the Tribunal why it was that he said he could satisfy the visa criteria by providing the additional receipt for the $8,650, and was cut off by the Tribunal. A meaningful hearing opportunity will include the ability not only to present evidence, but also present arguments about that evidence and explain how the evidence relates to the issues arising in relation to the decision under review: see s 360(1) of the Act.
In addition to the failure of the Tribunal to reasonably exercise its discretion to allow the applicant further time to provide the additional documentation, I am of the view that the Tribunal ignored the evidence which he did give. As such, the Tribunal failed to complete its statutory task.
I am satisfied that had the Tribunal extended to the applicants a meaningful hearing opportunity, and also not ignored the applicants’ evidence as given at hearing, that this could realistically have resulted in a different decision being made. Accordingly, the error alleged by ground 2 is also established.
I will hear the parties as to costs.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 1 June 2023
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