Hui v Minister for Immigration - [2011] FMCA 486

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUI v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 486

MIGRATION – MRT decision – skilled independent visa – refused by delegate on opinion that claimed qualification did not exist – decision affirmed by Tribunal because the qualification was not ‘relevant to’ nominated skilled occupation – no jurisdictional error in reasoning of Tribunal – procedural fairness when raising new issue – issue sufficiently raised at end of hearing – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.47, 65, 348, 349, 351, 357A, 359AA, 359B, 360, 474, 476, 477
Migration Regulations 1994 (Cth), Schedule 2, Subclass 880, cll.880.215, 880.224, 880.230

Ahmed v Minister for Immigration & Citizenship [2011] HCA Trans 35
Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
AZAAD v Minister for Immigration & Citizenship (2010) 189 FCR 494
Herft v Minister for Immigration [2007] FMCA 756
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
MZYII v Minister for Immigration & Citizenship [2011] FMCA 193
Pasula v Minister for Immigration [2010] FMCA 219
Plaintiff M90/2009 v Minister for Immigration and Citizenship& Anor [2009] HCATrans 279
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Seema & Ors v Minister for Immigration [2011] FMCA 454
SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZDFZ v Minister for Immigration & Citizenship (2008) 168 FCR 1
SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487
SZNZU v Minister for Immigration [2010] FMCA 197
Thongsuk v Minister for Immigration [2007] FMCA 655
Vu vMinister for Immigration and Citizenship [2008] 101 ALD 211; [2008] FCAFC 59
Zhou v Minister for Immigration [2010] FMCA 653

Applicant:

XING HUI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2820 of 2010

Judgment of:

Smith FM

Hearing dates:

6 April, 16 June 2011

Delivered at:

Sydney

Delivered on:

2 August 2011

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Ms S Sirtes

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 30 December 2010.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $7,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2820 of 2010

XING HUI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ms Hui studied in Australia before applying on 26 August 2005 for a ‘Skilled – Independent Overseas Student’ residence visa Class DD, subclass 880. The decision-making on her application became protracted, and the Department of Immigration had difficulty verifying one of her qualifications, a Certificate III in Hospitality (Commercial Cookery) issued by Sydney International College of Business (“SICB”) dated 23 June 2005. Eventually, a delegate refused the visa on 8 September 2009, on the ground that she was not satisfied that Ms Hui had undertaken a course at SICB leading to that qualification. Ms Hui appealed to the Tribunal, which conducted further investigations of this issue. It made a decision on 24 February 2010, which affirmed the delegate’s decision. It did so, upon a completely different issue, which had not been addressed by the delegate and was only raised with Ms Hui at the end of the Tribunal’s hearing, which occurred on the day before the Tribunal’s decision.
Ms Hui now seeks judicial review of the Tribunal’s decisions under s.476 of the Migration Act, on grounds which essentially argue that the administrative proceedings were conducted in an unfair manner. She needs an extension of time under s.477(2), since she initially complained to the Prime Minister and the Minister for Immigration, before filing an application in this Court. For the reasons which follow I have decided that I should extend time, but – with some hesitation – I have concluded that the Tribunal’s procedures did not give rise to jurisdictional error.

The visa criteria

The relevant requirements in Sch.1 cl.1128CA of the Migration Regulations for a valid application for a subclass 880 visa included under cl.1128CA(3)(l):
Application by an applicant seeking to satisfy the primary criteria must be accompanied by a declaration by the applicant that:
(i)each of the following sub-subparagraphs applies in relation to the applicant:
(A)the applicant has, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of at least 2 years of full-time study at that institution while the applicant was present in Australia;
(C)all instruction for that degree, diploma or trade qualification was conducted in English;
or
(ii)each of the following sub-subparagraphs applies in relation to the applicant:
(A)the applicant has, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of less than 2 years of full-time study at that institution while the applicant was present in Australia;
(B)before completing that degree, diploma or trade qualification, the applicant completed at least 1 other degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by that institution, or another Australian educational institution, while the applicant was present in Australia;
(C)the 2 or more degrees, diplomas or trade qualifications mentioned in sub‑subparagraphs (A) and (B) were completed as a result of a total of at least 2 years of full-time study while the applicant was present in Australia;
(D)each of the degrees, diplomas or trade qualifications mentioned in sub‑subparagraphs (A) and (B) was completed at the institution at which it was commenced;
(E)all instruction for each of the degrees, diplomas or trade qualifications mentioned in sub-subparagraphs (A) and (B) was conducted in English.
The time of application criteria included:
880.215
The Minister is satisfied that each of the degrees, diplomas or trade qualifications mentioned in subparagraph 1128CA (3) (l) (i) or (ii) of Schedule 1 is relevant to the skilled occupation nominated by the applicant in his or her application.
The time of decision criteria included:
880.224
No evidence has become available since the time of application that the information given to satisfy Subdivision 880.21, or to meet the requirements of item 1128CA of Schedule 1, was false or misleading in a material particular.
In short, a visa applicant was required to identify the attainment of qualifications after at least 2 years full-time study in Australia, with the last qualification being completed within 6 months before the application. All the identified qualifications were required to be “relevant to the skilled occupation nominated by the applicant” in the visa application. I have explained in other cases how a list of qualifying ‘skilled occupations’ is prescribed by reference to the comprehensive classification of occupations known as ASCO (see Pasula v Minister for Immigration [2010] FMCA 219). I have also endeavoured to explain the concept of ‘relevance’ for the purposes of cl.880.215 (see Thongsuk v Minister for Immigration [2007] FMCA 655).
Under cl.880.224, the Minister was also required to refuse the application if ‘evidence has become available’ that information about the claimed qualifications ‘was false or misleading in a material particular’. I have in another recent case considered how this criterion was applied to a visa applicant who was seeking to rely upon a qualification claimed to have been gained at SICB in 2005, in circumstances where that education provider was known to have failed to follow required procedures and was suspected of issuing false documentation in some cases (see Zhou v Minister for Immigration [2010] FMCA 653).
Ms Hui’s visa application nominated her skilled occupation as ‘Cook’ ASCO code 4513-11. She specified her qualifications as Master of Business Administration (General Management), gained at Central Queensland University in studies between November 2002 and November 2004, and a Certificate III in Hospitality (Commercial Cookery) gained at SICB between December 2004 and May 2005. In support of the latter qualification, she submitted copies of a certificate and three pages of academic transcript on letterhead of SICB.
It is not possible on the evidence before the Court to make clear findings why it took the Minister’s Department four years to decide the visa application. It appears that some time was taken to verify Ms Hui’s Chinese and Australian qualifications, but the principal reason seems to have been staff-turnover and administrative delay. In this respect, Ms Hui complained in November 2006 that three case-officers had handled her file in the first fifteen months. Ms Hui was not interviewed about any perceived difficulties with her documentation until April 2009.
On 8 September 2009, Ms Hui was notified that her application was refused. The delegate gave the reasons:
Ms Hui advised that she commenced her course in December 2004. Her student number indicates that she was officially recorded in the SICB systems in June 2005 not December 2004. Ms Hui was advised on a student visa application in November 2004 that her agent was David Yao however claims that he did not refer her to a cookery course at SICB. There is no evidence in the PRISMS system of a COE being created for the Certificate 3 in Hospitality – Commercial Cookery however as the student’s primary course was the Master of Business, she was not obligated to obtain a COE. Staff at SICB had advised DIAC officers that they created COE’s for all students irrelevant as to whether it was a primary or secondary course.
Ms Hui was asked at interview to give an explanation or provide verifiable evidence to support her claims of starting in December 2004. As Ms Hui did not have an explanation and stated that the student number was hers and commenced in December 2004, I am not able to be satisfied that requirements of Item 1128CA of Schedule 1 of the Migration Regulations 1994 are able to be met. I am therefore not satisfied that you meet the requirements of clause 880.224 of Schedule 2 of the Migration Regulations 1994.

The proceedings in the Tribunal

Ms Hui appealed to the Tribunal, where she represented herself. Her application was acknowledged, and on 23 October 2009 the Tribunal invited her to comment or respond to information. The information concerned her claimed enrolment at SICB. She was told:
This information is relevant because it may cause the Tribunal to find that you are not a person of credibility and to reject your claims relating to your study at SICB. The Tribunal may find that evidence has become available since the time of application that the information given to satisfy Subdivision 880.21, or to meet the requirements of item 1128CA of Schedule 1, was false or misleading in a material particular. The Tribunal may then find that you do not meet the requirements of cl.880.224. You may then not be entitled to the grant of the visa for which you have applied.
Ms Hui responded on 29 November 2009 with a 19 page submission with attached documents. She explained her complaints about the delays in the Department, and addressed in close detail the points which had caused the delegate to doubt her SICB qualification. On pages 10 and 11, she explained her ambitions to run her own restaurant in Australia, and said that this was her “aim at studying commercial cook III”. She said: “My MBA, Master of accounting and engineer Knowledge, particularly commercial cook can be in use in my first class world restaurant in the future.” She then explained reasons why her student number at SICB should not cause concerns, and strongly asserted that “I never give false or misleading in material particularly”. She concluded on page 19, by submitting:
Consequently I request earnestly the Tribunal Officer Ms Chanel Waterford to investigate my grievances by law and make a finding that DIAC must:
· Cancel the decision that stated that it is false or misleading in material particular because I have provided material including all qualifications [verification of bachelor degree (original) from CADGEDC, master degree (MBA) and Certificate III in Hospitality (Commercial Cookery) to be proved genuine]. This decision imposed on me is very unfair. Because I am just oversea student, I did know anything regarding this matter, even if there is some wrong issued by SIC. From law view, it must be judged who is principle part of behaviour. On the other hand, DIAC should help oversea student dealing with this problem under ESOS, rather than imposed unfair decision regarding “false or misleading in material particular” on student.
· Grant a Class DD, subclass 880, Skilled – Independent Overseas Student (Residence) Visa as I meet the legal requirements for the grant of a Subclass 880 visa if make fair decision.
I’ll greatly appreciate to your any help.
Thank you so much!
Best Regards
Ms Hui was then invited to attend a hearing “to give evidence and present arguments relating to the issues arising in your case”. There was no suggestion in the letter that the Tribunal was contemplating deciding the matter on any issue other than that which had been addressed by the delegate and previously put to Ms Hui for comment.
A transcript of the hearing held on Tuesday 23 February 2010 is in evidence. It commenced at 9.25 am and concluded at 11.06 am, the transcript occupying 20 pages.   At the start of the hearing, the Tribunal member drew Ms Hui’s attention only to the issue which had been addressed by the delegate:
Ms Raif:…When you applied for a skills visa there are a number of requirements you must meet in order to be granted that visa. One of such requirements effectively provides that no information must have become available since the application was that false or misleading information has been used for the purpose of your application. As you know, that’s the reason the application was refused by the Immigration Department, and that’s the main issue that I want to discuss with you this morning.
Interpreter:      Could you speak a little bit louder.
Ms Raif:If I find that you meet that requirement the case will go back to the Immigration Department because I have no power to grant you the visa. If I’m not satisfied that you meet that or another requirement for the grant of the visa, I will affirm the decision under review which means that it will remain unchanged. Do you have any questions about any of that?
Interpreter:      No.
The Tribunal then closely questioned Ms Hui for the next 14 pages of the transcript about her cookery course at SICB. Ms Hui emphatically maintained the truth of her claimed attendances, and pointed out how the information relied upon by the Department was inconclusive.
At page 17 of the transcript, the Tribunal raised with Ms Hui, for the first time since her visa application had been lodged and since her appeal to the Tribunal, a possible concern in relation to criterion 880.215.   This topic then occupied 1½ pages:
Ms Raif:One of the requirements for the grant of this particular visa is that I must be satisfied that each of those two qualifications are relevant for your nominated occupation.
Interpreter:      Yes, I think they are. Member, do you have the records of my CS registration for my restaurant.
Ms Raif:You have given it to me but what I’d like to hear from you is why you think your MBA is relevant to your occupation of a cook. Just stop there please.
Interpreter:      As you can see I already let this and this from my restaurant, its called Australian Asian Restaurant and I would like to develop this restaurant to enhance this restaurant and my China, if you want to run a restaurant in Australia, you get to be the manager and you also get to be a professional cook. So that’s why I decided to do this cookery course and I also like to publish a book, something like a restaurant cookery guide and this is my goal, that’s why I would like to have this book published in the Australian Chinese Year and I also have another company called AICIA.
Ms Raif:The occupation that you have nominated in your application is that of a cook, not that of a restaurant manager or a book publisher or any other occupation.
Interpreter:      Yes, but I need to start my career from the beginning to be a cook. If I do not have to cook, how can I manage my own restaurant?
Ms Raif:Well, I’m trying to – I’m asking you to explain to me why you think your MBA is relevant to your working as a cook, not to your working as a restaurant manager or any other occupation, but in the occupation of a cook?
Interpreter:      Well, firstly, I need to have my own restaurant and if I want to run my own restaurant, I will be manager of – I will be the person who is looking after this restaurant and I need to do it from the beginning and I need to be a cook first and that’s exactly why I need to do all these studies you’ve just asked me because I need to learn all this knowledge so that can help me manage my restaurant.
Ms Raif:As a cook, your primary responsibilities are in preparing foods, storing food, getting the food, not getting, but managing or owning a restaurant.
Interpreter:      Yes, but if I need to start my own restaurant I need to be a cook first and I can give you an example like the author of this book, he’s the author of this book. He’s a chef and he also runs three restaurants.
Ms Raif:But once again, Ms Hui, I’m not assessing you against the occupation of a restaurant manager. I’m assessing you against the occupation of a cook which is what you have nominated in your application.
Interpreter:      I need to be a cook first and then I can start my own restaurant.
Ms Raif:So to work as a cook, why do you need an MBA?
Interpreter:      Well, I started in this day course first that was back in 2002 and then I just only got my money to start my own restaurant. You know in Australia, for it’s very difficult, it’s impossible for Chinese to be a restaurant manager. So the only way to do it is I manage my own restaurant.
Ms Raif:I need to be satisfied that your qualifications in MBA are relevant to the occupation of a cook. Is there anything else that you wish to tell me why you think they are relevant?
Interpreter:      Most of my classmates are doing it in this way. You can look up the records, they first study in this – in the courses and then they move to the quick courses and then they assess us for the …and they mean some months….and restaurant is in this and expressing a…just started and……it’s all by yourself.
Ms Raif:I don’t have any more questions for you. Is there anything else that you wish to add?
Ms Hui’s responses to the Tribunal’s last question suggest that she might not have fully appreciated the significance of the preceding questioning. She certainly did not seek to address the ‘relevance’ issue further. Rather, the transcript shows that she reverted to the ‘main issue’ identified by the Tribunal at the start of the hearing. She explained that she had “questions regarding the official assessment of the international students qualifications”, and requested that “you can allow me some time I can write out – take part in a test or an examination” to assess her qualifications. She also made obscure points concerning her ‘graduation certificate’, and how her qualifications at SICB and CQU could be verified.

The conclusion of the hearing is then recorded at page 19:
Ms Raif:Well if you do wish to provide any other material to the Tribunal, you can do it at any time before my decision is made, otherwise I do not intend to make any further inquiries.
Interpreter:      It’s been a long time, so I don’t have any other matters to provide you more documents because this school has problems so that’s why I need to explain everything. If this school is all right I don’t have dissertation or …
Ms Raif:Ms Hui, I’ll close the hearing for now. I will try to make my decisions as quickly as I can, but as I said before, if you do wish to provide any other material, you can do it any time before my decision is made. I’ll take that document, thank you.
Interpreter:      You don’t need a copy of this document?
Ms Raif:I don’t think so really because they don’t have any – say your name for example because they don’t have any records of being issued by a SIC to you, I don’t know how much weight I could give to those documents.
Interpreter:      But these documents can prove I did study in this course during that period of time.
Ms Raif:I’m happy to keep them and they can be after my decision is made. Do you want me to keep them?
Interpreter:      Sorry?
Ms Raif:Do you want me to keep them?
Interpreter:      The original copy I can just simply pass you all these documents if you need to.
Ms Raif:All right, I’ll put this original back there and I’ll keep this other copy. Thank you very much for speaking to me and thank you, Mr Interpreter.
Ms Hui:Thank you.
The Tribunal made its decision and posted a copy to Ms Hui on the day after the hearing, on Wednesday 24 February 2010.
Ms Hui gave oral evidence to the Court in relation to the Tribunal’s hearing. Generally, I consider that her evidence was truthful, and that she endeavoured to recall events which were not recorded on the transcript. At times her evidence was difficult to understand, even with the assistance of interpreters, and at times she appeared to contradict herself or misunderstand simple questions. At times she perceived subtle distinctions in the questions and in her answers which I could not always comprehend. However, I consider that the gist of her relevant evidence can be identified and should be accepted.
Ms Hui said that when she attended the hearing, she thought that the only issue upon which the Tribunal would question her eligibility for the visa was that which was addressed by the delegate. She said: “I believe that’s the only questions because I’ve never expect there would be any new dimension of issues”. She noted that the Tribunal had not raised the ‘relevance’ issue in its correspondence with her. It was her recollection that, at the conclusion of the hearing:
I said, “I need to provide some evidence”. After the hearing, I asked her assistance (sic: assistant), “How long am I allowed to be given to provide evidence?” He or she said, “About one week normally.” However, the decision was handed out straight away the next day. I said, “we did not have time to provide further evidence.”
…
I mean that I need more time first up to prove my – the qualification’s authenticity and then on top of that to use a … argument to prove the relevance. …
Ms Hui made sworn and unsworn statements to me which at times appeared conflicting, whether the Tribunal member herself told Ms Hui that she would be given extra time to provide further evidence and submissions. The hearing before me was adjourned to allow a transcript of the Tribunal hearing to be obtained. The transcript tended to confirm both the description of the hearing given by the Tribunal in its statement of reasons, and also Ms Hui’s unaided recollections in her sworn evidence. Ultimately, Ms Hui did not give evidence that the Tribunal member said anything relevant, which is not recorded in the exchange at the end of the hearing which I have set out above. She also gave evidence that the Tribunal member’s assistant – who she recalled was a woman – gave her the ‘one week normally’ estimate of a time before a decision would be made, when Ms Hui attended at the Tribunal office counter after the hearing to collect the CD recording of the hearing. I accept that evidence, which is not contradicted by any witness called by the respondents. I also accept Ms Hui’s evidence that she left the Tribunal’s premises on the day of the hearing with a belief that she would have enough time to prepare and lodge a further written submission and supporting documents, of the same type as she had submitted in response to the Tribunal’s s.359A letter. I accept that the Tribunal made and published its decision before she had sufficient time to prepare such a submission.

The Tribunal’s reasoning

In its statement of reasons, the Tribunal summarised the criteria for subclass 880 visas, and the history of Ms Hui’s application. It then said:
9. The issue in dispute in this review is whether evidence has become available that the information given by the applicant to satisfy Subdivision 880.21, or to meet the requirements of item 1128CA of Schedule 1, was false or misleading in a material particular.
The Tribunal’s description of the ‘claims and evidence’ set out all the consideration given by the Department and the Tribunal to that issue.   At the conclusion of its description of the hearing, the Tribunal summarised the opening passage which I have set out above.   The Tribunal’s ‘findings and reasons’ then made a curious switch of the issue which it decided to treat as determinative of Ms Hui’s application for review.   The switch appears in the opening paragraphs of its ‘findings and reasons’:
38.    The issue before the Tribunal is whether evidence has become available that the information given by the applicant to satisfy Subdivision 880.21, or to meet the requirements of item 1128CA of Schedule 1, was false or misleading in a material particular.
39.    When making the application, the applicant stated on the application form that he completed a Certificate III in Hospitality at SICB between December 2004 and May 2005 and an MBA at Central Queensland University between November 2002 and November 2004. As the Certificate III course was of approximately six months duration, the Tribunal finds that the applicant relied on both qualifications for the purpose of Item 1128CA(3)(l).
40.    Clause 880.215 relevantly calls for the Tribunal’s satisfaction that each of the two qualifications on which the applicant relied for the purpose of Item 1128CA(3)(l)(ii) are relevant to the skilled occupation nominated by the applicant.
41.    The applicant nominated the occupation of a Cook when making the application. GN 17 of 4 May 2005 specifies that it is a skilled occupation. The Tribunal will now consider whether the Master of Business Administration is relevant to the nominated occupation of a Cook.
The Tribunal then confined its reasoning to the issue of ‘relevance’ of Ms Hui’s undoubted MBA qualification.   In short, the Tribunal concluded that Ms Hui’s MBA was “designed to teach skills in the field of management and to enable graduates to obtain management positions. This is not relevant, in the Tribunal’s view, to the nominated occupation of a cook.” The Tribunal considered the ‘tasks’ of a ‘cook’ listed in the ASCO classification, and it referred to my discussion of the concept of ‘relevance’ in Thongsuk (supra).   It concluded that a policy set out in the Departmental PAM 3 guidelines “does not accurately reflect the regulations”. It concluded:
52.    The Tribunal is not satisfied that the applicant has established that the MBA is relevant to the nominated skilled occupation of a Cook. The Tribunal is not satisfied that each of the applicant’s qualifications, being a degree and a trade qualification, mentioned in subparagraph 1128CA(3)(l)(i) or (ii) of Schedule 1 is relevant to the skilled occupation of Cook. Accordingly, the Tribunal is not satisfied that the applicant satisfies cl 880.215 of the Regulations.
53.    In light of this finding, the Tribunal has not considered it necessary to assess the applicant against the requirement of cl. 880.224.
54.    For the reasons given above the Tribunal finds the applicant does not satisfy the requirements of cl.880.215.

Ms Hui’s delay in commencing judicial review

Before considering Ms Hui’s challenge to the Tribunal’s decision, it is convenient first to consider an extension of time issue.
After receiving the Tribunal’s decision, Ms Hui sent a long email to the Prime Minister, a person to whom she had previously complained about the decision-making preceding her appeal to the Tribunal. Her email was forwarded to the Minister for Immigration, whose Department treated it as an application for discretionary intervention under s.351 of the Migration Act. Ms Hui was informed of this in a letter dated 7 April 2010, and was invited to provide further information within 14 days.
By letter dated 29 November 2010, Ms Hui was informed by an officer of the ‘Ministerial Intervention Unit’ that “the Minister has personally considered your case and has decided that it would not be in the public interest to intervene.” Ms Hui gave evidence, and I accept, that she received this letter on about 10 December 2010. She then investigated her rights to challenge the Tribunal’s decision in this Court, and filed her application on 30 December 2010. She denies being aware at the time of receiving the Tribunal’s decision, and while her matter was under s.351 consideration in the Department, that there was a time limitation on applying to the Court which expired 35 days after the Tribunal’s decision. There is no evidence that she was ever informed by the Department or any other source of information as to this time limit, and I accept her evidence that she was unaware of it.
There is a diversity of opinion whether the pursuit of ministerial intervention and other administrative avenues for obtaining a visa can provide an acceptable explanation justifying an extension of time under s.477(2) of the Migration Act and similar powers given to the Federal Court and High Court. Even in the High Court there are contrasting recent judgments (compare Plaintiff M90/2009 v Minister for Immigration and Citizenship& Anor [2009] HCATrans 279, with Ahmed v Minister for Immigration & Citizenship [2011] HCATrans 35). Riley FM in MZYII v Minister for Immigration & Citizenship [2011] FMCA 193 at [21] recently concluded, after reviewing some of the Federal Court authorities in the area including Vu vMinister for Immigration and Citizenship [2008] 101 ALD 211; [2008] FCAFC 59:
Those two paragraphs make it clear that an application to the Minister under s.351, or its equivalent, s.417, is a matter to be considered in the overall context of all of the circumstances of the case to determine whether the applicant has a reasonable explanation for his or her delay or not. The position is not as simple as a s.417 application is always or is never a sufficient explanation for the delay.
I agree with this approach. In the present case, I consider that Ms Hui has shown a sufficient explanation to excuse her delay in discovering the existence of the time limit and commencing her present application. She clearly was not content to allow the Tribunal’s decision to go unchallenged generally, and speedily made her discontent known to the Minister. As will appear below, I consider that her application raises a substantial issue of concern as to the fairness of the Tribunal’s proceedings. Taking into account all the considerations which have been pointed to in authorities on s.477(2) (see SZNZU v Minister for Immigration [2010] FMCA 197), I am persuaded that it is ‘necessary in the interests of the administration of justice’ in the present case, that I should extend time.

The grounds of Ms Hui’s application

Ms Hui’s application has as its grounds:
1.Decision by Tribunal would be set aside for jurisdictional error leading to no relevant legal consequence and nullity.
2.Delegate had taken into account an irrelevant consideration and/or failed to a relevant consideration.
3.Delegate’s decision infected by jurisdictional error is a nullity and dealing with evidence alleged only not in fact.
These do not contain any specificity which could allow them to be meaningfully applied to the Tribunal’s procedures and reasoning. No amended application was filed.
Ms Hui’s written submissions which are attached to a series of affidavits are very lengthy, discursive, and repetitive documents. Doing the best I can, I consider that the following five areas of complaint should be distilled from her submissions:
i)The Tribunal was not authorised to address criterion 880.215, because this had not been addressed by the delegate.
ii)The Tribunal was bound to address the issue decided by the delegate under criterion 880.224, and failed to do so. If the Tribunal had addressed the evidence on that issue, it would have cleared Ms Hui of the suggestion that her SCIB qualification was false.
iii)The Tribunal’s procedures when addressing criterion 880.215 were unfair. In particular, because Ms Hui was not given any advance warning that the Tribunal would decide the case on that issue, nor opportunity to make a considered submission on it after the hearing, in circumstances where Ms Hui was led to believe that she would have that opportunity.
iv)The Tribunal made the wrong decision in relation to the relevance of Ms Hui’s MBA to the occupation of ‘cook’. It failed to take into account the Departmental policy, and a letter from Trades Recognition Australia dated 22 August 2005, which stated that “for migration purposes, you have been designated as a Tradesperson and Related Workers nec [4513-11]”.
v)The Tribunal did not consider compelling, compassionate or humanitarian considerations for granting her the visa. In particular, the delays in the decision-making, the unfairness of the Tribunal’s procedures, and the fact that she is ‘a professional cook in real life’.
The Court’s power to give relief to Ms Hui under s.476 of the Migration Act is dependent upon my being satisfied that the Tribunal’s decision was affected by jurisdictional error. This is the effect of the ‘privative’ provisions in s.474 of the Migration Act, as interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476. The Court does not itself have power to examine whether Ms Hui qualified for the visa she sought, nor any other permission to reside in Australia.
These limitations on the Court’s powers need to be kept in mind, when considering Ms Hui’s complaints which I have numbered (i), (ii) and (v). It is also necessary to keep in mind that Ms Hui seeks judicial review of the decision of the Tribunal, and that the legality of the preceding primary decision-making and procedures followed in the Department of Immigration is not relevant except as explaining the Tribunal’s jurisdiction. The Tribunal’s jurisdiction under s.348 of the Migration Act required it to review the delegate’s decision, which was itself made in performance of the Minister’s power under ss.47 and 65 to consider and determine Ms Hui’s eligibility for the visa for which she applied, by reference to all the criteria relevantly prescribed in the Migration Regulations. When performing its review, the Tribunal could ‘exercise all the powers and discretions’ that were conferred on the Minister for the purposes of making the primary decision (see s.349). The Tribunal thereby “accedes to the powers and discretion of the delegate, which include ss.47 and 65 of the Migration Act” (see SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487 at [30]).
It is, in my opinion, a well established consequence of the above provisions of the Migration Act that the Tribunal was empowered to address, and to determine, Ms Hui’s eligibility for the visa by reference to a visa criterion which had not been addressed by the primary decision-maker. If the Tribunal failed to be satisfied as to that criterion, and the criterion was a necessary prerequisite for the grant of the visa, then the Tribunal sufficiently exercised its jurisdiction if it affirmed the delegate’s decision on that ground, even if the particular criterion addressed by the Tribunal had not been addressed by the delegate at first instance. The Tribunal is not required also to address any other criterion, even if the criterion had previously provided the sole issue upon which the delegate refused the visa. I therefore do not consider that Ms Hui’s complaints (i) and (ii) can give rise to jurisdictional error vitiating the present Tribunal’s decision.
I can understand Ms Hui’s complaint that she was surprised to discover that the Tribunal had decided her eligibility for a visa by reference to cl.880.215. However, no jurisdictional error is established, unless the Tribunal’s change of issues was in breach of procedures required under the Migration Act to protect procedural fairness. That concern in complaint (iii) will be addressed below.
I can also understand Ms Hui’s concern that her efforts to dispel the serious allegation that she was party to a fraud on the Department of Immigration were not rewarded by favourable findings by the Tribunal. However, it became legally unnecessary for the Tribunal to address that issue, once the Tribunal decided to address cl.880.215 in a manner adverse to Ms Hui. The Court now has no power to order the Tribunal to address cl.880.224, unless it can detect error vitiating the Tribunal’s application of cl.880.215.
Neither the delegate, the Tribunal, nor this Court, was given powers under the Migration Act to grant Ms Hui a visa, if she did not satisfy a necessary criterion prescribed under the Migration Act (see s.65(1)(a)(ii)). The various considerations urged by Ms Hui to show that she is deserving of a grant of the visa, regardless of the prescribed criteria, were therefore not matters which the Tribunal had power to address, and it made no jurisdictional error by not addressing them. I cannot set aside the Tribunal’s decision, nor give any other relief, upon her various complaints which fall within (v) above.
I am not persuaded that Ms Hui has established any legal defect from a consideration of the merits of the Tribunal’s reasoning in relation to cl.880.215. Ms Hui has not presented any specific argument to show that the Tribunal’s reasoning on ‘relevance’ reveals particular error of law, or was not open to it on the evidence. She did not seek to persuade me to reconsider my judgment in Thongsuk, which the Tribunal followed.
Absent any such arguments, I have not myself located any error in the Tribunal’s reasoning amounting to jurisdictional error. In my opinion, it was open to the Tribunal to conclude that Ms Hui’s MBA qualification might have been relevant to her anticipated future career when running her own restaurant, but was not ‘relevant’ to her nominated occupation of cook under the particular ASCO classification which she nominated (cf. Pasula v Minister for Immigration [2010] FMCA 219 at [23], and the Tribunal decision upheld in Thongsuk). It was open to the Tribunal to consider that the PAM3 guideline might be inconsistent with the proper construction of criterion 880.215, and to decline to apply it to Ms Hui’s circumstances (cf. Pasula (supra) at [20] to [27], and Seema & Ors v Minister for Immigration [2011] FMCA 454 at [44]). The TRA’s assessment of Ms Hui’s skills was directed at the criterion provided in cl.880.230, and did not provide evidence which the Tribunal was required to examine in the context of cl.880.215.
I have therefore not found any jurisdictional error arising from the substantive manner in which the Tribunal arrived at its decision to affirm the delegate’s decision.

Procedural fairness

It remains necessary to consider whether jurisdictional error arises from the procedures by which the Tribunal chose to make that decision by way of a determination under cl.880.215 rather than cl.880.224.
Ms Hui complains that the Tribunal did not give her any written warning that it intended to address the new and surprising (to her) issue of ‘relevance’, and that it did not expressly give her sufficient additional time to respond after the hearing when that issue was first raised at the hearing.
She pointed to procedures under the Migration Act where the Tribunal is expressly required to allow opportunities for considered responses to new issues (see s.359AA(b)(iii) and (iv) and s.359B(2)). These procedures are manifestly designed to serve the purposes of ‘the requirements of the natural justice hearing rule in relation to the matters they deal with’ (cf. s.357A(2)).
However, these procedures do not encompass the giving of opportunities to respond to thought processes of the Tribunal, in which it identifies the issues upon which it proposes to decide the matter. Such thought processes are not ‘information’ covered by the above sections. As was recently explained by French CJ and Kiefel J in Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [9]:
Despite the language of the Tribunal’s letter, the existence of “inconsistencies” and “contradictions” in an applicant’s testimony and written submissions to the Tribunal is not “information” of the kind to which s.424A is directed. As was explained by the plurality in SZBYR v Minister for Immigration and Citizenship, the term “information” in s.424A does not extend to the Tribunal’s “subjective appraisals, thought processes or determinations”. Their Honours said:
However broadly “information” be defined its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
The exclusion of this class of information from the obligation imposed by s 424A is consistent with limits on the procedural fairness hearing rule at common law. Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision…..
The recent jurisprudence governing the Tribunal’s obligation to bring to the attention of a review applicant ‘any critical issue (which is) not apparent’, has been found in the Tribunal’s obligations under s.360(1) to invite an applicant at a hearing, where he or she will be given a meaningful opportunity “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
As the High Court explained in SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 228 CLR 152:
[36] It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
[37] If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.
SZBEL and the cases which have applied it, suggest that it will be sufficient for the Tribunal to raise an important new issue in the course of its hearing, either by expressly drawing attention to a possible departure from the delegate’s reasoning, or by questioning which will have that effect, and if it then affords the opportunities described in s.360(1) in relation to the new issue (see SZBEL at [39], [43], and [44] and cf. SZDFZ v Minister for Immigration & Citizenship (2008) 168 FCR 1 at [19]-[27]).
I have suggested that the principle underlying SZBEL may in some circumstances require some warning accompanying the hearing invitation, at least, if in its absence the applicant might be misled into dispensing with the right to attend a hearing (see Herft v Minister for Immigration [2007] FMCA 756). However, more recently Besanko J, with whose judgment Siopsis J agreed, emphasised that the right to be warned of new issues is an incident of the hearing. He said in AZAAD v Minister for Immigration & Citizenship (2010) 189 FCR 494 at [39] in unqualified terms:
There is no requirement on the Tribunal to give an applicant advance notice of the issues of concern to it, that it to say, in advance of the hearing. (see also Besanko J at [60])
This contrasts with the opinion of the third judge in AZAAD, Reeves J [108]:
[108]The first of these matters arises from the basic principles outlined in SZBEL. Since the second Tribunal intended to decide the review on a completely different issue to that of the delegate and the first Tribunal, I consider it was obligated as a matter of procedural fairness to inform the appellants that was so. The most obvious way to do that was to include a statement to that effect in the letter inviting the appellants to attend the s 425 hearing. Alternatively, it could have informed the appellants of this fact at the outset of the hearing, although such a dramatic change to the issues in the review at that late stage would probably not have afforded the appellants a sufficient opportunity to give evidence and present arguments at the hearing on the new issue and would most probably have led to an adjournment. In either situation, I cannot see how such a notice would interfere unduly with the review process, or place any onerous obligation on the Tribunal, or require it to disclose any of its thought processes. If the s 36 issue was no longer a live issue in the review, it presumably had no thoughts about that issue other than the fact it was not an issue.
Endeavouring to apply these authorities to the circumstances which I have detailed above, I consider that the balance of authorities binding on me requires me to find that there was no jurisdictional insufficiency in how the Tribunal raised the ‘relevance’ issue with Ms Hui at the hearing, and then gave her an opportunity to respond to it in the course of the hearing. I consider that the issue was clearly raised, and the Tribunal’s potential adverse reasoning was clearly foreshadowed, albeit after another ‘main issue’ had been given more prominence and had occupied greater length at the hearing. Ms Hui’s responses suggest that she understood the issue which was being put to her, and was able to respond to it.
Accepting that Ms Hui might have wanted to respond at greater length in writing, there is no evidence that there was any argument or piece of evidence which she would have presented at greater length or after greater reflection, and which might have made a difference to the Tribunal’s conclusion. She did not suggest to the Tribunal that there was anything more to say to the Tribunal on the issue of ‘relevance’. In my opinion, the principle of procedural fairness identified in SZBEL was sufficiently satisfied in the present circumstances in the course of the Tribunal’s discussion of cl.880.215 which I have extracted above.
Nor am I satisfied that the Tribunal’s decision was vitiated by any other species of procedural unfairness which can be found expressly or implicitly in the provisions of Division 5 of Part 5 of the Migration Act.
When adjourning the first hearing before me, I drew the parties’ attention to Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1, and invited their submissions on its relevance to Ms Hui’s concerns. In that case, the Tribunal member told an applicant at the end of the hearing that he would write to the applicant and invite a response on some identified inconsistencies (see [11]). No invitation was issued before the Tribunal made its decision, and no reasons for this omission were given. The High Court said:
[27] One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.
The High Court concluded that it was probable that the Tribunal member overlooked the foreshadowed procedure, and therefore failed to complete its review process and to afford procedural fairness (see [32] and [43]).
I accept the submissions of counsel for the Minister that no similar failure of procedural fairness occurred in the present case. The present Tribunal member made no statement suggesting that she regarded the taking of evidence and submissions in the matter as not completed at the hearing. She gave no undertaking as to the speed with which a decision would be made. She gave no undertaking that the Tribunal would await a post-hearing submission from Ms Hui, and said nothing which amounted to a representation that Ms Hui would have a real chance of lodging a post-hearing submission, as distinct from this being a possibility depending upon the speed with which a decision would be made. I do not consider that the suggestion of the Tribunal’s assistant that Tribunal decisions ‘normally’ were not given within one week, can be treated as conveying any such undertaking on behalf of the Tribunal as constituted in the particular matter.
It is reasonably arguable that, if Ms Hui had expressly asked the Tribunal to delay deciding the ‘relevance’ issue until she could reflect on the issue and lodge a written submission, the Tribunal might have been obliged under principles of procedural fairness to adjourn or delay making its decision until it had afforded that opportunity – taking into account the novelty of the issue in the overall processing of Ms Hui’s visa application (cf. Reeves J’s opinion in AZAAD (supra), and Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]). However, I cannot find evidence that Ms Hui made a ‘reasonable request for an adjournment’ which was unfairly refused in the present case. At best, she left the hearing without making any such request, but with a hope that there would be time to lodge a post-hearing submission. I cannot find in the circumstances in which that hope did not come to fruition, a failure of procedure on the part of the Tribunal which provides jurisdictional error vitiating its decision.

Conclusion

For all the above reasons, I have been unable to find any jurisdictional error allowing me to set aside the present Tribunal’s decision. I must therefore dismiss Ms Hui’s application.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 2 August 2011