Hussain v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 141
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hussain v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 141
File number(s): MLG 1251 of 2017 Judgment of: JUDGE DAVIS Date of judgment: 7 March 2022 Catchwords: MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 572) – where the Tribunal did not grant an adjournment – whether the Tribunal afforded the applicant procedural fairness – where the Tribunal made its decision on a different basis to that of the delegate – application dismissed Legislation: Migration Act 1958 (Cth), ss 348, 353, 357A, 359A, 360, 360A, 363, 368
Migration Regulations1994 (Cth), reg. 4.21, 572.223
Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NABE v Minister for Immigration & Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152Division: Division 2 General Federal Law Number of paragraphs: 76 Date of last submission/s: 10 September 2021 Date of hearing: 10 September 2021 Place: Melbourne Counsel for the Applicants: In person ORDERS
MLG 1251 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABID HUSSAIN
First Applicant
SAMINA DILAWAR
Second Applicant
RAYYAN ABID
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DAVIS
DATE OF ORDER:
7 MARCH 2022
THE COURT ORDERS THAT:
1.The Application be dismissed.
2.The First and Second Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $5,000.
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 DAVIS
THE APPLICATION
This is an application for review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 14 June 2017 (Application). By that decision, the Tribunal affirmed a decision made 17 May 2017 by a delegate of the First Respondent, the Minister, not to grant the First Applicant a Student (Temporary) (Class TU) (Subclass 572) visa (Visa).
By their Application, the Applicants seeks the following relief:
(a)An order that the decision of the Tribunal be quashed.
(b)A writ of mandamus directed to the Tribunal, requiring it to determine the Applicants’ Application according to law.
(c)A writ of prohibition directed to the First Respondent, prohibiting him from giving effect to the delegate’s decision made 17 May 2017
(d)Such further or other orders that this Court may deem necessary; and
(e)Costs of the Applicant.
BACKGROUND
The Applicants are citizens of Pakistan who arrived in Australia on 13 February 2009 as holders of Student (Class TU) (subclass 572) visas.
On 6 March 2015, the First Applicant applied for a Student (Temporary) (Class TU) (Subclass 572) visa (Visa) to undertake study in Australia. The Second and Third Applicants, who were respectively the wife and son of the First Applicant, were secondary applicants for the Visa as dependents of the First Applicant (Secondary Applicants).
The delegate’s decision
On 30 July 2015, the delegate refused to grant the Visa. The delegate was not satisfied that the First Applicant genuinely intended to stay in Australia temporarily and accordingly found that he did not satisfy cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) as were in force at the time of the Tribunal’s decision (Regulations). Clause 572.223(1)(a) relevantly required that:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that 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
…
The delegate observed that – as the First Applicant’s application for the Visa failed – insofar as the Secondary Applicants’ application was dependent upon it, such application likewise failed. The delegate also found that there was no evidence that the Secondary Applicants met the primary enrolment criteria.
Proceeding before the Tribunal
On 18 August 2015, the Applicants applied to the Tribunal for review of the delegate’s decision.
On 24 April 2017, the Tribunal wrote to the Applicants, inviting them to attend a hearing on 16 May 2017. Amongst other things, that letter stated as follows:
What you should do within 7 days of receipt of this letter
Please read, complete and return the enclosed ‘Response to hearing invitation – MR Division’ form.
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator.
Additionally, please provide this information so that a decision can be made as quickly as possible:
1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.
On 9 May 2017 the First Applicant sent an email to the Tribunal requesting an adjournment of the hearing on the basis that, on 7 May 2017, his grandfather and cousin had died in a car accident and that he was mentally stressed. On 10 May 2017, the Tribunal informed the First Applicant that it had decided not to adjourn the hearing. The Tribunal stated that the issues which were to be discussed would be straightforward and considered that the First Applicant would be able to participate meaningfully in the hearing.
On 10 May 2017, the First Applicant again emailed the Tribunal to request an adjournment. The Applicant attached copies of the death certificates of his grandfather and cousin to that email. On 11 May 2017, the Tribunal again refused to adjourn the hearing.
On 16 May 2017, the First Applicant attended the Tribunal hearing with the assistance of a Punjabi interpreter.
At the hearing, the First Applicant conceded that he had not studied since 2015. He requested more time to provide a Certificate of Enrolment (CoE) to the Tribunal. The Tribunal declined this request. I set out below the Tribunal’s reasons for doing so which were contained in its decision record dated 16 May 2017:
27. Prior to the hearing the applicant requested postponement of the hearing twice on the same basis: that recently, his grandfather and cousin had died in an accident.
28. The tribunal refused both requests, expressed sympathy for the applicant’s loss, and advised the applicant that the issues contemplated by the tribunal (above) were simple and straightforward, the hearing would likely be short, and the tribunal considered that the applicant could meaningfully participate in the hearing.
29. At hearing, the applicant requested more time to give a COE to the tribunal.
30. The tribunal indicated it declined to provide the applicant with further time to provide a COE.
31. The tribunal explained its reasons for declining further time.
32. As suggested, the Tribunal is not so much concerned with whether the applicant can furnish a COE when the government insists upon the enrolment which is a mandatory visa requirement. As suggested, it is a simple enough process to obtain a COE if the government were to insist upon it.
33. Rather, as suggested, in deciding whether to offer more time the tribunal is concerned with the question of whether the applicant has, since seeking the visa, taken advantage of the right to study in moving towards claimed educational objectives.
34. As suggested, the tribunal considers that the applicant has not utilised the right to study to move towards a claimed educational outcome.
35. The applicant gave evidence that he was aware, from 2015, that he had the right to study.
36. He did not, despite on the evidence holding bridging visas which permitted him to continue studying.
37. As suggested and laid out above, the tribunal finds unconvincing his oral claims as to why he did not study (beyond a few months) and why he did not seek out and maintain enrolment in any relevant course.
38. Almost two years have transpired in the meantime, where the applicant has not taken action to move towards claimed educational goals.
39. As suggested, the tribunal considers that the applicant was not motivated to study, despite being permitted to study, and places higher value on the issuing of the student visa as an outcome of tribunal review, than on the study itself.
40. The tribunal made clear that it was not simply focused on the applicant’s conduct in recent weeks, where he has been affected by losses in the extended family.
41. Rather, the tribunal considered the applicant’s conduct over the whole of what has become a long period of time since the applicant made the visa application and then the review application. As suggested, for much of that long period of time, neither the Department nor the tribunal were insisting upon enrolment, study, or the provision of evidence that study was progressing. As suggested, the tribunal finds the applicant’s conduct during that time to be more probative of an intention to study than the current time, where the tribunal has insisted upon (but not received) evidence of enrolment in order for basic enrolment criteria to be met.
42. The tribunal made very clear that the tribunal was not considering the applicant’s apparent lack of motivation to study for the purposes of the genuine temporary entrant criterion, although these considerations are relevant under Direction 53.
43. The tribunal made clear that it considers these factors only in deciding whether more time should be provided for the applicant to obtain enrolment and to furnish a COE towards meeting the enrolment criteria discussed at the hearing.
44. Having already been invited to provide a COE and having failed to do so, and having not utilised the right to study to progress academically in a long period of time since 2015, the tribunal as suggested will not now provide additional time simply for the applicant to furnish a COE to demonstrate enrolment in a course of study.
45. As suggested, the tribunal may have exercised its discretion to provide more time for the applicant to give a current COE if the applicant had been able to demonstrate that study rights had been employed productively to move towards claimed educational objectives during the long period of time since the review application was made.
46. As suggested, in this particular matter, the tribunal is not satisfied that the applicant was sufficiently motivated to seek and maintain enrolment, and to progress towards the objective of acquiring skills, knowledge and qualifications over what has become a long period of time.
47. For these reasons, and having already invited the applicant to give current COEs seven days before the hearing, the tribunal declines to provide further time for the applicant to do what might have been done at a much earlier stage if the course of study proposed holds the value that is claimed.
Having refused the First Applicant more time to provide a CoE, the Tribunal affirmed the delegate’s decision not to grant him the Visa. Its reasons for doing so included those set out below.
The Tribunal noted that First Applicant conceded that:
(a)after applying for a visa proposing a VET sector advanced diploma in 2015, he pulled out of that course in March or April of that year and his enrolment was cancelled;[1]
(b)he had been not enrolled in a course or studied since that time;[2]
(c)he was aware that his bridging visa allowed him both to work and study, yet he had been working but not studying;[3] and
(d)the CoE material which he had provided for his application for the Visa had since been cancelled or expired and that he had no current CoE or offer of enrolment.[4]
[1] Decision record at [12].
[2] Decision record at [12] and [17].
[3] Decision record at [13].
[4] Decision record at [13].
The Tribunal found that on the evidence, the exceptions to the requirement to provide a current CoE did not apply to the First Applicant in this case.[5]
[5] Decision record at [19].
It also found the First Applicant’s oral an unparticularised claim at the Tribunal hearing that he had experienced financial difficulties, which were resolved at the time of the Tribunal hearing such that he could then study, was “convenient”[6] and “unconvincing”.[7]
[6] Decision record at [14].
[7] Decision record at [15]; see also [16].
In the circumstances, it found that mandatory criteria for the Visa were not met and accordingly affirmed the delegate’s decision.
With respect to the Secondary Applicants, the Tribunal found that:[8]
… there is no evidence the secondary applicants meet the primary enrolment criteria above, and the tribunal finds they do not. They also fail against relevant secondary criteria.
[8] Decision record at [25].
Proceeding in this court – procedural history
On 14 June 2017, the Applicants filed their Application for review in this Court, together with an affidavit in support, sworn 14 June 2017. The affidavit did no more than exhibit the Tribunal’s decision record.
On 8 February 2018, Judge McNab made directions for procedural steps to be taken prior to the final hearing which included orders for the Applicants to file and serve the following 28 days before the final hearing:
(a)any amended application with proper particulars of the grounds of the application
(b)any affidavits;
(c)a supplementary court book, if any; and
(d)written submissions.
The Applicants did not take any of these steps.
On 26 August 2021, the First Respondent filed his submissions.
The matter came before me for hearing on 10 September 2021. At the hearing, the First Applicant, Mr Hussain, appeared on his own behalf. Mr Cunynghame, solicitor, appeared for the Minister. The Second Respondent, the Tribunal, had taken no active role in the proceeding and there was no appearance on its behalf.
THE APPLICANTS’ GROUNDS
The Applicants’ grounds of review are as follows:
(1)The Tribunal failed to properly inquire as to the applicant's personal circumstances despite his oral evidence that he's grandfather and cousin died in an accident.
(2)The Tribunal fell into jurisdictional error because it failed to properly consider the evidence before it.
(3)The Tribunal erred in concluding that the applicant did not intend to study in Australia and that the only purpose of his student visa application was to secure a visa to stay in Australia.
(4)The Tribunal has breached Sections 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
(5)The Tribunal has breached Section 368 of the Migration Act by its failure to provide proper reasons for its decision and the findings on the material questions of fact on which the decision was made.
(6)The Tribunal has erred jurisdictionally by its failure to objectively consider the totality of the evidence before it.
SUBMISSIONS
Applicant’s submissions
At the hearing I asked Mr Hussain:
(a)to explain in his own words how he says that the Tribunal’s decision was legally wrong, or that the process of making that decision was unfair; and
(b)what he had to say in support of his grounds of review, which he had at hand.
Mr Hussain made oral submissions to the following effect:
(a)First, the Visa was refused on the basis that they did not accept that he was a genuine temporary entrant, even though he was in the process of completing his studies and gave evidence of this through his CoE and results.
(b)Secondly, the Tribunal did not see the documents he submitted in support of his claim to be a genuine temporary entrant.
(c)Thirdly, Tribunal did not consider the fact that he could not continue his studies for a short period because he was very upset by the recent death of his cousin and grandfather.
First Respondent’s submissions
General response to the First Applicant’s oral submissions
The Minister submitted orally that – to the extent that the First Applicant’s oral submissions constituted an attack on a finding that he was not a genuine temporary entrant – this was misconceived. The Minister submitted that this was the decision of the delegate rather than the Tribunal and was therefore not reviewable by the current proceeding. The Minister went on to submit, in effect, that the Tribunal affirmed the decision of the delegate on a different basis. That was that the First Applicant was not currently enrolled in, or the subject of a current offer of enrolment in, a course of study.
Ground 1
In relation to ground 1, the Minister made submissions to the effect set out below.
The Minister submitted in writing that:
(a)It was for the First Applicant to make out his case before the Tribunal. If the Applicant wished the Tribunal to consider any further material with respect to the death of his family members then he should have provided it.
(b)There was no obligation on the Tribunal to make his case for him.[9] The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire.[10] The function of the Tribunal is to respond to the case that an applicant advances.[11]
(c)This was not a case where it could be said that the Tribunal failed to make an obvious inquiry in relation to a critical fact, the existence of which was easily ascertainable, and which supplied a sufficient link to the outcome to constitute a failure to review.[12]
(d)In the context of the Applicant’s request for an adjournment, the Tribunal did in fact consider and accept his evidence that his grandfather and cousin had died. Whereas the Tribunal expressed sympathy, it found that this was not a reason to adjourn the matter for reasons open to it.
(e)The deaths of the First Applicant’s cousin and grandfather, which occurred in 2017, are plainly not relevant to whether the Applicant was enrolled and had not been enrolled since 2015, or whether he was subject to a current offer of enrolment.
[9] In support of this, the Minister referred to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
[10] In support of this, the Minister referred to Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 at [25].
[11] In support of this, the Minister referred to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ.
[12]In support of this, the Minister referred to Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25]-[26].
Orally, Mr Cunynghame referred me to [27] and [28] of the decision record. He submitted that the Tribunal there makes clear that it did take into account the deaths of the First Applicant’s grandfather and cousin. In addition, Mr Cunynghame submitted that the Court Book reflects that the Tribunal responded to the First Applicant’s emails regarding those deaths and the adjournment which he requested. He argued that these matters disposed of the submission that it did not consider the deaths.
Ground 2, 4, 5 and 6
The Minister addressed grounds 2, 4, 5 and 6 together.
The Minister submitted that, by those grounds, the Applicants in essence contended that the Tribunal failed properly to:
(a)consider the evidence before it;
(b)review the decision; and
(c)provide reasons for its decision.
In effect, the Minister made the written submissions set out below in relation to those grounds.
First, the Minister submitted that the Tribunal had regard to the material before it, including the material before the delegate and the Applicant’s oral evidence at the hearing. It assessed this material and made findings that were open to it for the reasons which it gave. Noting the First Applicant’s concessions that he had no current enrolment nor any current offer of enrolment, the Tribunal was correct to find that the Applicant did not meet the enrolment criteria. This was the only finding open to it.
Secondly, the Minister submitted that it was also open to the Tribunal to take into account the fact that that the Applicant had not studied since 2015, the long period of time during which the Applicant had made no productive efforts towards his educational goals and his failure to produce a CoE to the Tribunal despite the request in the hearing invitation, as reasons not to exercise its discretion to grant the First Applicant an adjournment to obtain a CoE ([29] – [38]).
Thirdly, the Minister submitted that insofar as ground four alleges that the Tribunal failed to afford the Applicants procedural fairness, it is apparent that the Tribunal complied with its procedural fairness obligations under Part 5, Division 5 of the Migration Act 1958 (Cth) (Migration Act) in that:
(a)The First Applicant was invited to attend a hearing before the Tribunal in accordance with ss 360 and s 360A to give evidence and present arguments. In the event, he attended the hearing and made arguments with the assistance of an interpreter.
(b)The Tribunal clearly considered the First Applicants’ evidence put forward at the hearing[13] and made findings that were open to it on the material before it.
(c)The First Applicant was on notice that the determinative issue on review was whether he met the mandatory enrolment criteria from the Tribunal’s hearing invitation and questioning of him at the hearing. [14] The Minister went on to submit that no obligations arose under s 359A of the Act where all of the evidence considered by the Tribunal was contained within the delegate’s decision, was provided by the First Applicant in writing to the delegate, or was given orally by the Applicant to the Tribunal and therefore fell within the exceptions under s 359A(4)(b) and s 359A(4)(ba) of the Act.
(d)Insofar as the First Applicant complains that he should have been granted an adjournment of the hearing, whilst 363(1)(b) of the Act empowers the Tribunal to adjourn the review from time to time, there is no legal obligation to consider the exercise of this discretionary power.[15] The Tribunal’s reasons for refusing to adjourn, given at [28], were clearly open to it and provided an evident and intelligible basis for its decision not to adjourn the hearing. Its exercise of discretion in this regard was not legally unreasonable.[16]
[13] In support of this, the Minister referred to [12]-[13], [16] of the decision record.
[14]In support of this, the Minister referred to SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [33] to [35].
[15] In support of this, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [102] (Gageler J) (“The permissive terms in which the power to adjourn is conferred on the [Tribunal] make clear that the power itself carries no duty on the [Tribunal] to consider its exercise”).
[16] The Minister referred to Minister for Immigration v Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ.
Finally, the Minister’s written submissions contend that ground 3 does not identify any jurisdictional error in the Tribunal’s decision. Rather, it expresses disagreement with the Tribunal’s findings and seeks that the Court undertake impermissible merits review. The Minister submitted that it is uncontroversial that the Applicant did not have a current certificate of enrolment in a registered course of study and accordingly, the Tribunal made the only finding open to it.
CONSIDERATION
Ground 1
I reject this ground for the reasons set out below.
First, to the extent that it alleges that the Tribunal did not consider the deaths of the First Applicant’s grandfather and cousin when determining whether to grant an adjournment, the ground proceeds on a false basis. The Tribunal did in fact consider the passing of the First Applicant’s relatives. As much is plain from [27], [28] and [40] of the Tribunal’s reasons, which I have extracted at [12], above. That the Tribunal considered the deaths is also apparent from the email exchanges between the Tribunal and him on 9 and 10 May 2017.
Secondly, to the extent that the ground alleges that the Tribunal should have made further enquiries about the First Applicant’s “personal circumstances” in connection with the death of his relatives, the ground is unclear. That is, the First Applicant did not particularise what he meant by those circumstances. It follows that he did not identify how they might have been relevant to the disposition of the review or the adjournment application.
Thirdly, and related to the second point, the First Applicant did not seek to discharge his onus of proving that, even if the ground were made out, it would have been material either to the disposition of the adjournment application or the review.[17] Moreover, given that – as set out above – the Tribunal disposed of the review on the basis of the steps which the First Applicant had failed to take in the two years or so prior to the death of his relatives, it is hard to see how such deaths might be capable of being material to its outcome.
[17] See MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at, for example, [2] and [59] – [60].
Fourthly, as submitted by the Minister, it was for the First Applicant to make any case that he sought to make with respect to the death of his relatives and its impact on the application for an adjournment and/or the substantive review.
Grounds 2, 4 and 6
As I have observed above, in his submissions, the Minister dealt with grounds 2, 4, 5 and 6 together. I find it convenient to deal with grounds 2, 4 and 6 together and do so below.
As submitted by the Minister, at their essence, such grounds constitute allegations that the Tribunal failed to:
(a)properly consider the evidence before it; and
(b)in effect, review the decision.
I dismiss each of these grounds for the reasons set out below.
Allegation of failure to consider evidence
First, grounds 2 and 6 contain unparticularised allegations that the Tribunal failed to consider the evidence before it. The Applicants did not attempt to identify the evidence which they complain that the Tribunal did not consider or its connection with its decision.
However, in any event, I agree with the Minister that the Tribunal did consider the evidence before it which was relevant to the disposition of the review. Moreover, I agree with the Minister that on the basis of such evidence, the findings which it made were open to it.
Again, amongst other things, the Tribunal considered:
(a)The First Applicant’s concessions that: (a) he had pulled out of a VET sector advanced diploma in March or April of 2015, with his enrolment cancelled, after having applied for a visa to study that course earlier that year; (b) he had not been enrolled in a course or studied since that time; (c) he was aware that his bridging visa allowed him both to work and study, yet his evidence was that he had been working but not studying; and (d) he had no current CoE or offer of enrolment and all prior CoEs had expired or been cancelled.
(b)Whether, on the evidence, the exceptions to the requirement to provide a current CoE applied to the First Applicant in this case. It found that they did not.
(c)The oral unparticularised claim, made by First Applicant at the hearing, that he had experienced financial difficulties which, at the time of the Tribunal hearing, were resolved. It found that such claim was “convenient” and “unconvincing”. Plainly, this is a credit finding.
To the extent that, by grounds 2 and 6, the First Applicant complains that the Tribunal failed to consider the recent passing of his relatives, such complaint is unfounded for the reasons which I have given in dismissing ground 1.
Secondly, in a context where grounds 2 and 6 were unparticularised, the only evidence which the First Applicant complained that the Tribunal did not consider concerned:
(a)unspecified documents he claims to have submitted in support of his claim to be a genuine temporary entrant.
(b)his alleged inability to continue his studies for a short period because he was very upset by the recent deaths of his cousin and grandfather.
When addressing the Court, the First Applicant also complained that the Court did not accept that he was a genuine temporary entrant, even though he was in the process of completing his studies and gave evidence of this through his CoE and results.
As submitted by the Minister, the Tribunal did not decide the review on the basis that the First Applicant was not a genuine temporary entrant.[18] Accordingly, it is hard to see how the unspecified documents which the First Applicant complains that Tribunal did not consider could have been relevant to its decision.
[18] As to the Tribunal's power to do this and the attendant consequences for its obligation to confer procedural fairness, see SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 [33] to [37].
The First Applicant’s contention that the Tribunal did not consider that he could not continue his studies for a short period because he was very upset by the recent family deaths is entirely misconceived. First, the Tribunal did consider the deaths. Secondly, again, the Tribunal’s decision was concerned with the First Applicant’s failure to take relevant steps prior to the passing of his relatives.
To the extent that the First Applicant seeks now to complain that the Tribunal failed to consider some evidence which might have been relevant to its refusal to accept that he was a genuine temporary entrant, such complaint is also misconceived. Not only has the First Applicant not identified such evidence but, again, the Tribunal did not base its decision on an evaluation of whether the First Applicant was a genuine temporary entrant.
Thirdly, to the extent that by grounds 2, 4, and 6 the First Applicant complains of adverse credit findings made by the Tribunal against him, he advances no basis to impugn such findings on the ground that they were not open or unreasonable.
Fourthly, the onus of proving that the Tribunal failed to consider evidence falls on the Applicants. They have not discharged this onus. Despite this, I have agreed with the Minister that the Tribunal did consider the relevant evidence before it and that the findings which it made were open to it on the basis of that evidence.
Fifthly, the Applicants have not sought to argue that any of the unspecified evidence, about which they complain in their grounds, was material to its decision. They bear the onus in this regard and have failed to discharge it.[19]
[19] See MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [2] and [59] – [60].
Any allegation of failure to afford procedural fairness
To the extent that any of grounds 2, 4 or 6 constitute an allegation of a breach of a duty to afford procedural fairness to the First Applicant, I do not consider such grounds to be made out on this basis. This is so for the reasons that follow.
First, by its email of 24 April 2017, which I have relevantly extracted above, the Tribunal notified the First Applicant that he should provide to it documents relating to the matters which ultimately were dispositive of the review: see for example the paragraphs numbered 1 to 4 in the part of tnahe email which I have extracted above. Moreover, the second paragraph of that email commences: “Please provide all documents you intend to rely on to establish that you meet the criteria for the visa.” [Emphasis added]
The Tribunal provided this notice over three weeks prior to the hearing.
Secondly, I consider that this notice provided the First Applicant with sufficient time to provide the categories of documents captured by paragraphs 1 to 4 of the Tribunal’s email of 24 April 2017. That notice complied with regulation 4.21(4) of the Regulations.
Thirdly, I agree with the Minister that the First Applicant was squarely notified of the issues which were dispositive of the review in questioning during the course of the hearing. However, I wish to be clear that, in the calculus of whether the Tribunal accorded procedural fairness, I put significantly less weight on the notice given by the Tribunal to the Applicant at the hearing than its prior written notice to him.
Fourthly, again, the First Applicant did not seek to argue that any alleged breach of the duty to accord him procedural fairness was material to the decision. Not only did the First Applicant not seek to argue this point, but it is hard to see how he could have done so in light of his concessions before the Tribunal which I have identified above.[20] In any event, he failed to discharge his onus of proving sz.[21]
[20] See [12] and [48], above.
[21] Again, see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 [2] and [59] – [60].
Fifthly, the First Applicant was invited to attend the hearing before the Tribunal in accordance with ss 360 and 360A of the Migration Act. In the event, First Applicant attended the hearing, gave evidence and presented arguments with the assistance of an interpreter.
Sixthly, I agree with the Minister’s submission that the Tribunal had: “[n]o obligations under s 359A of the Act where all of the evidence considered by the Tribunal was contained within the delegate’s decision, was provided by the applicant in writing to the delegate, or was given orally by the applicant to the Tribunal and therefore fell within the exceptions under s 359A(4)(b) and s 359A(4)(ba) of the Act”.`
Any allegation of failure to grant an adjournment
To the extent that the First Applicant complains that he should have been granted an adjournment, I make the following observations.
First, it is trite to observe that, whereas s 363(1)(b) of the Migration Act empowers the Tribunal to grant an adjournment, it is not obliged to consider the exercise of this discretionary power.[22]
[22] In support of this, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [102] (Gageler J): “The permissive terms in which the power to adjourn is conferred on the [Tribunal] make clear that the power itself carries no duty on the [Tribunal] to consider its exercise”.
Secondly, in any event, the Tribunal actively considered whether it should grant an adjournment. At [12] above, I have extracted the Tribunal’s reasons for refusing the adjournment.
Thirdly, I consider that it was open to the Tribunal to reject that application for the reasons which it gave. As submitted by the Minister, those reasons provide an evident and intelligible basis for the Tribunal’s exercise of its discretion to refuse the adjournment application. It follows that I consider that the refusal of the adjournment application was not legally unreasonable.
Without limiting the viability of the reasons which the Tribunal gave refusing the adjournment application, it is significant that its reasons for doing so focussed on the First Applicant’s concessions with respect to his long delay in taking any positive steps to pursue a course of study prior to the hearing as well as his failure to have a CoE. As in effect the Tribunal observed, granting the First Applicant an adjournment could not enable him to remedy his inaction over roughly the preceding two years.
Ground 3
Ground 3, by which the First Applicant complains that, the Tribunal erred in concluding that he did not intend to study in Australia and that the only purpose of his application for the Visa was to stay in Australia, does not specify jurisdictional error. Rather, it rises no higher than expressing the First Applicant’s disagreement with the Tribunal’s findings. For the reasons which I have identified above, I consider that the Tribunal’s findings were open to it.[23]
[23] See, for example, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [86] per Heydon J and at [130] – [135] per Crennan and Bell JJ.
As such, ground three does no more than seek that this Court undertake impermissible merits review.
Ground 5
I reject ground 5.
The First Applicant has not specified how he claims that the reasons fall short of what is required by s 368 of the Migration Act.
I have already expressed the view that the Tribunal considered the relevant evidence and that the findings which it made were open to it. As that analysis discloses, this was evident on the face of the Tribunal’s reasons. I consider that those reasons satisfy the section.
DISPOSITION
For the reasons set out above, I dismiss the Application with costs.
I certify that the preceding seventy-seven (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Davis. Associate:
Dated: 7 March 2022
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