Karki v Minister for Immigration
[2013] FCCA 806
•16 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KARKI v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 806 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – applicant applied for a student (Temporary)(Class TU) visa – Tribunal not satisfied that the applicant met an essential requirement of clause 572.223 of Schedule 2 of the Migration Regulation 1994 (Cth) – in relation to necessary financial capacity – applicant sought further time to file documentation of an educational loan from a Nepalese Bank – whether refusal to allow adjournment or further time to file documents amount to denial of procedural fairness – matter remitted to Tribunal for rehearing. |
| Legislation: Migration Act 1958 (Cth), ss.348, 359A, 360(1), 363(1)(b) Migration Regulations 1994 (Cth), Schedule 2 |
| Cases Cited: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1948] 1 KB 223 Li & Ors v Minister for Immigration and Citizenship & Anor [2011] FMCA 625 Minister for Immigration and Citizenship v Li & Anor (2012) 202 FCR 387 Minister for Immigration and Citizenship v SZIAI & Anor (2009) 83 ALJR 1123 Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Ortiz v Minister for Immigration and Citizenship& Anor [2011] FCA 1498 Re Minister for Immigration and Multicultural Affairs & Anor; Ex Parte Applicant S154/2002 (2003) 201 ALR 437 Youssef v Minister for Immigration and Citizenship [2012] FMCA 992 |
| Applicant: | KAMAL KARKI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2554 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 8 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.R. Young |
| Solicitors for the Applicant: | Mr E. Georges of G & S Law Group |
| Counsel for the First Respondent: | Mr M. J. Smith |
| Solicitors for the First Respondent: | Ms A. Lal of Sparke Helmore |
ORDERS
The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs & Citizenship”.
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 9 October 2012 and handed down on 10 October 2012.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of the delegate of the first respondent dated 28 July 2010.
A writ of prohibition issue preventing the first respondent from taking any action upon the decision of the second respondent.
The first respondent is to pay the applicant’s costs and disbursements of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2554 of 2012
| KAMAL KARKI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (“he “Migration Act”) for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 9 October 2012 and handed down on 10 October 2012 affirming a decision of a delegate of the Minister for Immigration, Multicultural Affairs and Citizenship (the “Minister”) dated 28 July 2010 not to grant the applicant a Student visa.
The solicitors for the first respondent, the Minister, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This direction was complied with before the First Court Date directions hearing and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A”. The applicant sought to rely on the Affidavit of Kamal Karki sworn 4 April 2012 in relation to the adjournment application and the Affidavit of Komal Khatiwada sworn 5 April 2012 in relation to the substantive case.
The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review upon, together with any supporting affidavit material on or before 25 January 2013. The applicant elected to file an amended application, despite it being filed out of time, at the hearing on 6 April 2013.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference for that material.
The applicant, a national of Nepal, applied for a Student visa on 17 March 2010 (CB 1-24). Given the applicant made his visa application on the basis of enrolment in a course of study that was specified by Gazette Notice (IMMI 10/069) as a course for a subclass 573 visa (CB 27): see “Specification for the purposes of regulation 1.40A – Types of Courses for Student Visas – November 2010”, the effect of this specification was that:
a)Persons enrolled in a Higher Education Diploma, Higher Education Advanced Diploma, Bachelor Degree, Graduate Certificate, Graduate Diploma, Associate Degree, or Masters by Coursework are to be assessed against the criteria for the grant of a subclass 573 visa;
b)Persons enrolled in a Certificate I, II, II and IV (other than ELICOS), Vocational Education and Training Diploma, Vocational Education and Training Advanced, Diploma Vocational Graduate Certificate, or a Vocational Graduate Diploma are to be assessed against the criteria for the grant of a subclass 572 visa.
This specification was replaced by “Migration Regulations 1994 – Specification under subregulation 1.40A(1)- Types of Courses for Student Visas – March 2012”, which commenced on 24 March 2012.
On 28 July 2010, a delegate of the Minister refused to grant the applicant a subclass 573 visa on the basis that the applicant did not meet the requirements of clause 573.223 of Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 25-30). More specifically, the delegate found that the applicant did not meet the requirements of clause 573.223(2)(a)(i)(B), which required him to provide the delegate with evidence as to the financial capacity of the applicant to undertake each of those courses of study without contravening any conditions of the visa relating to work (CB 27).
As at the date of the delegate’s decision, clause 573.222(2) was in the following terms:
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under regulation 2.07A
(i) the applicant gives the minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; and
(iii) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity…
For the purposes of the criteria applicable to subclass 573 visas, the applicant was given an assessment level of three. Schedule 5A to the Regulations in turn specified the requirements for “assessment level 3” for subclass 573 visas in relation to language proficiency and, relevantly to the present case, financial capacity. To that end, clause 5A508 provided as follows:
(1) The applicant must give, in accordance with this clause:
(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 24 months:
(i) course fees;
(ii) living costs;
(iii) school costs; and
(aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 24 months; and
(b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
Of critical importance in the present case is that, at all relevant times, the financial capacity requirements for subclass 573 visas were virtually identical to those pertaining to subclass 572 visas, which is the visa class against which the applicant was ultimately assessed by the Tribunal.
Proceedings before the Migration Review Tribunal
On 12 August 2010, the applicant lodged an application with the Tribunal to review the delegate’s decision (CB 31-39). On 10 September 2012, the Tribunal sent a letter to the applicant inviting him to appear at a hearing before the Tribunal on 9 October 2012 (CB 44-53). In this letter, the applicant was also “invited” to provide evidence, no later than the date of the Tribunal hearing (CB 47), that the applicant satisfied the financial capacity requirements in any of the alternative ways applicable to the applicant’s “assessment level” set out in Schedule 5A of the Regulations (CB 46). The letter to the applicant also noted that the delegate first requested this information from the applicant on 15 June 2010 (CB 47).
The applicant appeared before the Tribunal on 9 October 2012 to give evidence and present arguments. At the hearing, the applicant provided to the Tribunal a confirmation of enrolment for an Advanced Diploma of Accounting course at Pacific College Pty Ltd, with a course start date of 8 October 2012 and a course end date of 8 October 2014 (CB 60). He also submitted evidence that in December 2009 he completed a Diploma of Information Technology (Networking) at the Australian Institute of Commerce and Languages (CB 58-59).
Although the delegate had assessed the applicant’s student visa application as against the prescribed criteria for a subclass 573 visa, the Tribunal concluded that, having regard to the applicant’s then current enrolment, the relevant visa was a subclass 572 visa (CB 76 at [22]). The Minister argues that the fact that the applicant was assessed by the Tribunal against the prescribed criteria for subclass 572 visa in circumstances where he had been previously assessed by the Delegate against the prescribed criteria for a subclass 573 visa is of not consequence in the present circumstances, given that the criteria relating to evidence of “financial capacity” was virtually identical across both subclasses of visa.
In order to be granted a subclass 572 visa, the decision-maker must be satisfied that the visa applicant meets all the primary criteria to be satisfied at the time of the decision found in clause 572.223 of Schedule 2 of the Regulations. Clause 572.223(1) required that, at the time of the Tribunal’s decision, the decision-maker must be satisfied that the applicant was a genuine applicant for entry and stay as a student because he or she meets the requirements of subclause 572.223(2). As at the date of the Tribunal’s decision, subclause 572.223(2) was in the following terms:
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under regulation 2.07AO:
(i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:
(A) the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and
(B) the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of the visa relating to work; and
(C) other requirements under Schedule 5A; and
(ii) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; and
(iii) the Minister is satisfied that while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity; or
…
Given that the applicant was designated under regulation 2.07AO, only subclause 572.223(2)(a) of Schedule 2 was relevant in the present circumstances. It provided that the applicant was required to provide the decision-maker with evidence in accordance with Schedule 5A to the Regulations. The “assessment” level to which the applicant is subject, in relation to (amongst other things) the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of visa relating to work which is found at clause 572.223(2)(a)(i)(B). Regulation 1.03 of the Regulations in turn provides that the term “assessment level” means, for a student visa, the level of assessment (being level 1, 2, 3, 4 or 5) specified for a kind of eligible passport for the student visa under reg. 1.41.
On 28 July 2008, the Minister enacted legislative instrument IMMI/08, which was entitled “Specification for the purposes of regulation 1.41 – Student Visa Assessment Levels – July 2008” (which commenced operation on 1 September 2008) which designates that Nepalese applicants for subclass 572 visas are to be given an assessment level of “4”. Schedule 5A to the Regulations in turn specifies the requirements for “assessment level 4” for subclass 572 visas in relation to language proficiency and, relevantly to the present case, financial capacity. To that end, clause 5A205 (which appears in Division 2 of Part 4 of Schedule 5A “Requirements for assessment level 4”) provides as follows:
(1) The applicant must give, in accordance with this clause:
(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 36 months:
(i) course fees:
(ii) living costs;
(iii) school costs; and
(aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fee, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 36 months; and
(b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by the individual.
The terms “acceptable individual”, “financial support”, “funds from an acceptable source” are themselves defined in clause 5A205(2) of Schedule 5A of the Migration Regulations.
The Tribunal’s decision
During the course of the Tribunal hearing, a discussion took place between the Tribunal and the applicant regarding the non-provision by the applicant of evidence in relation to the financial capacity requirements. The Tribunal informed the applicant that, although he had provided a confirmation of enrolment (CB 60), he would not be able to satisfy the financial capacity requirements given that he had not provided any evidence in relation to those requirements (CB 76 at [24]). The applicant stated that if he was given a “few weeks” he should be able to provide the financial documents (CB 77 at [24]).
In its decision, the Tribunal refused to grant the applicant additional time. The Tribunal considered that the applicant had been given a sufficient opportunity to gather together evidence in relation to the financial capacity requirements and was satisfied that the Tribunal’s letter dated 10 September 2012, which invited the applicant to provide the evidence no later than the date of the hearing, provided sufficient information about the requirement to provide evidence to satisfy financial capacity (CB 77 at [24]).
Accordingly, the Tribunal concluded that the applicant did not meet an “essential requirement” of clause 572.223 of Schedule 2 and therefore the applicant did not meet the requirements for the grant of a subclass 572 visa.
Current Proceedings
Mr Young, representing the applicant at the hearing, sought leave to file an amended application. Leave was granted. The only change to the application made was the addition of Ground 3. The Amended Application filed 8 April 2013 sought the following orders:
1. A writ of certiorari quashing the oral decision of the Second Respondent dated 9 October 2012 and handed down on 10 October 2012.
2. A writ of mandamus requiring the Second Respondent to determine the application for a review made by the Applicant.
3. A writ of prohibition preventing the First Respondent from taking any action upon the decision of the Second Respondent.
4. An order that the First Respondent pay the costs of the Applicant.
The grounds of the Amended Application are as follows:
1. The Second Respondent’s decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359A of the Migration Act 1958 and failed to take into account relevant considerations.
Particulars:
a. The Applicant applied for a review on 12 August 2010. As there was no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent. In fact the Second respondent took over two years to take action on the Applicants file.
b. The Second Respondent was bound by s.359A of the Migration Act 1958 to invite the applicant to provide further information. If the information was submitted to the satisfaction of the Second Respondent, then a hearing might not have been required and a favourable decision could have been made. In the period of 12 August 2010 to 9 September 2012 the Second Respondent took no action and did not issue a s 359A letter.
c. By the facsimile dated 10 September 2012, the Applicant was invited for a hearing on 9 October 2012 and requested to bring evidence including financial documents. The Applicant appeared for the hearing on 9 October 2012 with the Confirmation of Enrollment (sic) (CoE) which was issued by the education provider on 8 October 2012. The Applicant was unable to provide the financial information within 4 weeks in compliance with Regulation 5A as it requires that the financial information must be evidence of financial capacity relevant to the course enrolled in and recent information at the time of the decision. The Financial information must also be relevant to a COE letter.
d. The Applicant made several requests to the Second Respondent to allow additional time to obtain financial documents from overseas (Nepal), as the documents could not be obtained from Nepal with out the CoE which was nly issued by the education provider on 8 October 2012 after going through due process. The applicant applied for the CoE after receiving confirmation from the MRT of the hearing on 10 September 2012 and received it on 8 October 2012.
e. The Tribunal failed to provide procedural fairness to the Applicant in circumstances where it required the applicant to have financial documents prepared within 4 weeks that would have taken about 7-8 weeks to obtain. The Applicant could not have obtained the financial documents until he received a CoE letter which took three weeks to obtain and he received on 8 October 2012. The Tribunal failed to take this into account that the applicant needed time of obtain a CoE letter and only determined three weeks to obtain financial documents from the date of the hearing allocation letter on 10 September 2012.
2. The Second Respondent (sic) decision was so unreasonable that no reasonable tribunal member would have made it.
Particulars:
a) The Applicant has successfully completed courses in Australia and still continued studying even after the visa application was refused. The Applicant was not required to continue studying after obtaining bridging visa. The Applicant was not prepared to take risk to pay a substantial amount in tuition fees up front without obtaining a student visa as he could have been compelled to depart Australia at anytime if the application was refused.
b) The Second Respondent was entitled to wait until after receiving a request from the Second Respondent to prepare his financial information for submission as regulation 5A requires that any financial information must be recent and relevant to the Course the Applicant intends to undertake. Since the Applicant’s financial document were required to be consistent with the course enrolled for, and the financial documents were required to cover the costs of the relevant course and be recent at the time of the Second Respondent decision, it was not reasonable for the tribunal to find that the Applicant should have prepared the financial documents in advance when he lodged his application in August 2010. The Second Respondent blatantly ignored these facts and made an oral decision taking into account irrelevant considerations without having due regard to the time requirements of the financial information.
c) After waiting two years to begin processing the Applicant’s application the Tribunal refused to allow a further three weeks for the Application to prepare financial information in circumstance where the document had to come from Nepal and had to be up to date documents in relation to the course that was only confirmed on 8 October 2012. In the circumstances, no reasonable Tribunal member would refuse an adjournment of 3 weeks.
3. The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness or failed to take into account relevant considerations in refusing the application request for an adjournment or additional time to provide current financial information.
Particulars
a. The applicant relied on the particulars in grounds 1 and 2 above.
Adjournment Application
Mr Young, representing the applicant, made an application for an adjournment of the hearing. The applicant had applied for a transcript of the Tribunal hearing from Auscript, which was due to be delivered the day after the hearing. Mr Young sought more time as he only recently had been given carriage of the matter and he wanted to prepare written submissions, taking into account the Tribunal hearing transcript. Mr Young sought to read the affidavit of Mr Karki, sworn 4 April 2013, in relation to the adjournment application.
Mr Smith, representing the Minister, opposed the adjournment. Mr Smith objected to the affidavit of Mr Karki being read. Mr Smith argued that the affidavit did not go to the point of the adjournment application, as the affidavit did not explain why he did not seek the transcript of the Tribunal hearing at the commencement of the judicial review proceedings. Mr Smith argued that the application was filed 6 November 2012, and with the exception of a small period of time, the applicant was legally represented. He also submitted that there had been no explanation as to why the applicant considered it necessary to obtain a copy of the transcript.
Consideration - Adjournment Application
Mr Young argued that there was some explanation in [5] of the applicant’s affidavit where Mr Karki explained that he had been unable to work on his current visa and that meant that he had to rely on loans from his friends. He argued that up until recently, the applicant did not have the financial capacity to obtain the transcript.
The Court questioned Mr Young as to the content in the affidavit that was significant to the hearing and whether it could be dealt through post-hearing submissions. Mr Young accepted this as an appropriate course to take and the parties were granted leave to file subsequent submissions, with the parties having leave to file within 14 days of the hearing and 14 days to reply thereafter. As the transcript had been transcribed by Auscript, both parties agreed that it would not be necessary for the transcript to be attached to an affidavit. The transcript was e-lodged and sent to chambers on 12 April 2013. No supplementary submissions have been filed.
Substantive Application
Application for judicial review
The applicant's application for judicial review, filed on 6 November 2012, contains three grounds of review, each of which has a common thread, namely, that the Tribunal should have afforded the applicant additional time to gather and provide to the Tribunal documents evidencing the applicant’s financial capacity.
Applicant’s Submissions
The applicant elected not to file any written submissions before the hearing. At the hearing, Mr Young, for the applicant, sought leave to file an amended application, adding an additional ground to the grounds already pleaded.
Mr Young sought leave to file and read an affidavit from Komal Khatiwada, sworn 5 April 2013 in support of an affidavit for an adjournment. Objections to the affidavit were raised by Mr Smith. I acknowledged the objections and informed the parties that I would allow the affidavit to be read on a limited basis, noting the objections that had been raised. I deal with the adjournment application in more detail below under the heading of “Consideration”.
Mr Young gave a brief background summary of the case. He stated that the applicant’s application for a student visa was lodged on 17 March 2010. The delegate assessed on 28 July 2010 that the applicant had not submitted evidence of funds in respect of financial capacity and had not satisfied the prescribed criteria for any subclass of visa within Student Temporary (Class TU) and the applicant’s visa application was not granted (CB 27-28). In the applicant’s affidavit he deposes that in 2010 he endeavoured to get a loan from Nabil Bank. A letter of offer to the applicant’s parents for the loan is located at Annexure “A” of the affidavit of Kamal Karki, sworn 4 April 2013. The loan offer is expressed in rupees and as an education loan, with the applicant’s course being specified. Mr Young drew the Court’s attention to the fact that the loan approval offer was only valid for one month after the offer was made on 7 September 2010. The applicant submits that he was unable to use the loan approval as evidence of his financial capacity as its currency had lapsed in October 2010.
The applicant, on 12 August 2010 (CB 31-38), made an application to the Tribunal for review of the delegate’s decision. The Tribunal acknowledged receipt of the application via a letter dated 13 August 2010. Mr Young submits that there was no communication from the Tribunal with the applicant until 10 September 2012 when the Tribunal wrote to the applicant, informing him of his hearing on 9 October 2012 and stated that he had to provide a certificate of enrolment and current evidence of his ability to satisfy the financial capacity requirements. Mr Young contends that the applicant obtained confirmation of enrolment for an Advance Diploma of Accounting course at Pacific College Pty Limited, with a course start date of 8 October 2012. The applicant submitted to the Tribunal that he received the certificate of enrolment the day before the hearing. The Tribunal then specifically questioned the applicant about his financial capacity requirements, and in the Decision Record it states:
24. The Tribunal stated that the applicant had not provided any current evidence in relation to financial capacity requirements. The applicant stated he was waiting for the Tribunal’s decision and its request about financial evidence. The Tribunal stated that it had invited him to provide such evidence in its letter dated 10 September 2012, and the letter had set out in detail the relevant provisions. The Tribunal stated that the letter invited the applicant to provide the evidence no later than the hearing date. The Tribunal stated that even though he had a current CoE, it appeared he would not be able to satisfy the financial capacity requirements as he had not provided any evidence relating to those requirements. The applicant stated that if he was given ‘a few weeks’ he should be able to provide the financial documents. The Tribunal indicated that its letter had invited the applicant to provide the requested information no later than the hearing date, and that the Tribunal would require good reason to grant additional time in the circumstances that is had invited the applicant to provide evidence in its letter of 10 September 2012, and that the Department had requested financial evidence in June 2010. The applicant stated that at the time, he had asked the Department for additional time to provide the evidence, because of some problems in his home country relating to government offices, but he received the financial documents a few days after the Department’s refusal decision. The Tribunal indicated again that it would require good reason to grant additional time, and it might not appear that he had raised a good reason. The Tribunal asked if there was any other matter he wished to put forwarding terms of his request for additional time. The applicant stated that he wanted to be sure about getting a visa, and thought that if he came to the hearing the Tribunal would then ask him about financial documents. The Tribunal stated that its letter dated 10 September 2012 set out in some detail the evidence the Tribunal was inviting the applicant to provide.
(CB 77)
Mr Young submitted at [22] of the Decision Record the Tribunal Member enquired as to why the applicant had not commenced a course of study during the time between the delegate’s decision and the Tribunal hearing. The applicant stated that “…when his student visa was refused, he did not continue because he wanted to be sure that he would get a visa…” (CB 76).
Mr Young submitted that the Tribunal had destined the applicant to fail by the attitude it took. The applicant stated that he raised with the Department that he had received the financial documents for a loan for his course a few weeks after the Department’s refusal decision. Mr Young submitted that the Tribunal made no inquiry about what those documents were. It was argued that the Tribunal on 9 September 2012 after a period of two years indicated that the applicant had to have all supporting documentation ready by 9 October 2012. He also contends that one issue that could have been critical to the Tribunal acting reasonably was that the applicant in the past had shown the ability to raise funds, even if it was in 2010. In other words, even if it was too late for the purposes of the delegate, it would be reasonable to think that if the same people were going to apply for a loan in 2012 (being the applicant’s parents), they might well get approval for another loan. Mr Young argued that there was not another single issue raised as to why the applicant would not otherwise be entitled to the visa.
Mr Young drew the Court’s attention to [32] of the Tribunal’s Decision Record, in which the Tribunal articulates the requirements for the approval of the Student visa. He stated that the costs referred to under Schedule 5A may be segmented in terms of the regulations, but in practice, one loan is obtained that is sufficient to cover all costs. Mr Young submitted that the attitude of the Tribunal was one that was entirely unreasonable. He drew the Court’s attention to Li & Ors v Minister for Immigration and Citizenship & Anor [2011] FMCA 625, which is a decision considered on appeal by the Full Federal Court (Greenwood, Collier and Logan JJ) in Minister for Immigration and Citizenship v Li & Anor (2012) 202 FCR 387 where the relatively simple proposition that, in certain circumstances, the refusal to grant an adjournment can amount to a denial of procedural fairness and, subsequently, jurisdictional error.
Mr Young submits that in the Full Federal Court’s decision in Li (supra) the Minister made highly complicated submissions flowing from a particular provision of the Migration Act. He states that in [7] of that decision their Honours dealt with the Minister’s concession that refusal by an administrative tribunal to grant an adjournment can, in some circumstances, constitute a denial of procedural fairness and jurisdictional error for constitutional purposes. At [23] there is a reference to the Minister’s submission that Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (“Wednesbury”) unreasonableness was not a matter which could be considered, but the Court said that the power conferred by s.363(1)(b) of the Migration Act to adjourn the hearing was discretionary. If this discretion is exercised unreasonably, such that the result is that the visa applicant is not afforded a meaningful appearance, the merits review tribunal will not have conducted the review according to law. Mr Young submitted that the High Court has held that the core function of the Tribunal is to review the decision which is the subject of a valid application under the Migration Act: Minister for Immigration and Citizenship v SZIAI & Anor (2009) 83 ALJR 1123 at [18] and Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594. At [88] in the Full Court decision in Li (supra) her Honour Collier J refers to the High Court decision in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. At [94] her Honour Collier J refers to their Honours Gummow and Gaudron JJ who stated at [40] in Bhardwaj (supra):
…Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.
Then at [42] of Bhardwaj their Honours continued:
…In particular, the Tribunal was required to give Mr Bhardwaj an opportunity to attend the hearing, to give evidence and put argument.
Mr Young argued that the Tribunal has not carried out its core function in relation to its statutory obligations, which were to determine whether, in accordance with the Regulations Mr Karki was entitled to the visa he had applied for, including issues in relation to his financial capacity: SZIAI (supra) and SZGUR (supra). On the issue of financial capacity, Mr Karki asked for more time and, bearing in mind that after a period of over two years of no contact, the Tribunal asked him to sort out the visa requirements, which included a current certificate of enrolment and his financial capacity in relation to that enrolment in the period of a month. Mr Young submitted that he had previously demonstrated, albeit too late, that he was able to obtain the required finance for the purposes of his study in respect of which the Tribunal set out the required amount at [32] of the Decision Record.
Mr Young submitted that the Tribunal did not grant the applicant additional time because in its letter, dated 10 September 2012 the Tribunal stated that it would make a decision at the conclusion of the hearing. He contends that this rigidness is a classic example of an unreasonable approach to a request for an adjournment. Mr Young argues that the Tribunal could see from the evidence before it that the applicant had only obtained a certificate of enrolment a week before the Tribunal hearing and that it would have been very difficult for him to organise finance within such a short timeframe.
Mr Young submitted that at [28] of the Decision Record the Tribunal refers to its letter and states that the letter invited the applicant to provide the evidence no later than the date of the hearing. At [28] it states:
…The applicant requested additional time of ‘a few weeks’ to provide financial evidence. The Tribunal considered the request at the hearing, but decided not to grant additional time in the circumstances. The Tribunal considers that the applicant has had sufficient opportunity to provide evidence relating to financial capacity requirements.
(CB 77)
Mr Young submitted that the Tribunal did not take into account the financial capacity requirements, as the letter clearly indicates that all current information relating to the certificate of enrolment (his evidence). Mr Young argued that the Tribunal, aware of the applicant’s circumstances and the unexplained delay of the Tribunal itself, could have given him reasonable time to provide further documentation in respect of his financial capacity. Mr Young contends that the Migration Act requires, amongst other things, that decisions be made in an efficient and just way, but the Tribunal in this instance hardly acted with alacrity and the fairness aspect was that the applicant ought to have been given the opportunity to provide the additional material. Mr Young submitted that the inflexibility of the Tribunal was utterly unreasonable.
Respondent’s Submissions
Ground 1
The Minister submits that before consideration is given to the exact way in which this ground of review has been framed, a number of points should be made about the matters raised in particulars (a) and (b). The first is that the proceedings before the Tribunal were inquisitorial in nature: Re Minister for Immigration and Multicultural Affairs & Anor; Ex Parte Applicant S154/2002 (2003) 201 ALR 437 per Gummow and Heydon JJ at [57] and that it was incumbent upon the applicant to present whatever evidence he thought was necessary and appropriate to persuade the Tribunal that he met the criteria for the grant of the visa that was sought. It remains the fact that, notwithstanding that the Tribunal hearing took place more than two years after the delegate’s decision, it was the applicant’s obligation to ensure that he had collected the necessary material to present before the Tribunal. The second is that, contrary to what is contended by the applicant, s.359A of the Migration Act is not relevant to the present situation as there is no suggestion that the Tribunal failed to give “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”(s.359A(1)(a)).
These matters aside, it is apparent that the applicant’s real complaint concerns the Tribunal’s refusal to allow the applicant additional time to gather together, and to provide to the Tribunal, documents evidencing the applicant’s financial capacity. Although it is not put strictly in these terms, it would seem that the applicant is alleging that he was either denied procedural fairness, or was not provided with a reasonable opportunity to present evidence and arguments within the meaning of s.360(1) of Migration Act and, as such, the Tribunal fell into jurisdictional error.
The Minister submits that, for the reasons to follow, the Tribunal did not err in the manner alleged.
The applicant first applied for a student visa on 17 March 2010. In support of his application, the applicant presented documents confirming that he was enrolled in two courses of study which, if completed, would lead to the conferral of a Diploma of Information Technology and a Bachelor of Information Technology. Given the applicant’s confirmed enrolment in these particular courses, it was necessary for the applicant to be assessed, in the first instance, against the criteria for the grant of a subclass 573 visa. At all relevant times, the “financial capacity” requirements that the applicant was required to satisfy in order to be granted a subclass 573 visa were virtually identical to those that applied to a subclass 572 visa, which was the visa subclass against which the applicant was ultimately assessed by the Tribunal. In order to be granted either a subclass 573 visa or a subclass 572 visa, the applicant was required to provide evidence that he had funds from an “acceptable source” that were sufficient to meet course fees, living costs, school costs and travel costs. The applicant was unsuccessful before the delegate because he failed to provide any evidence at all in relation to “financial capacity”. In other words, no evidence was provided to suggest that the applicant had funds from an “acceptable source” to cover not only course fees and school costs, but also living costs and travel costs.
Given the delegate’s finding that the applicant was not entitled to be granted a visa as he had not provided any evidence relating to financial capacity, the applicant must have been aware that it was necessary evidence relating to financial capacity in order to be successful before the Tribunal. Moreover, given that the Tribunal hearing took place some 30 months after the delegate’s decision, there can be no suggestion that the applicant had insufficient time to collect the necessary evidence relating to his financial capacity and, in particular, information pertaining to living costs and travel costs.
The Minister submits that the applicant attempts to counter this difficulty by arguing that he was only issued with a confirmation of enrolment on 8 October 2012 and, therefore, did not have time to gather together the necessary financial documents which, according to the applicant, could only be obtained once he had received the confirmation of enrolment. However, even assuming that the applicant’s evidence in this regard was correct (the Tribunal did not appear to make a specific finding as to when the applicant received his confirmation of enrolment) it remains the case that the applicant did not provide any evidence as to his financial capacity at the Tribunal hearing (CB 78 at [32]). No explanation was offered as to why the applicant was unable to provide evidence relating to, in particular, living costs and travel costs, the calculation of which not being affected by the timing of the applicant’s receipt of his confirmation of enrolment. As the Tribunal concluded:
…The living costs are calculated by reference to the relevant instrument in writing IMMI 09/138 which specifies an amount of $18,000 per annum as the basic rate, and the travel costs are calculated by reference to the definition in cl.5A101, which in the applicant’s case indicates the cost for the applicant to return to his home country at the end of his stay in Australia…
(CB 78 at [32])
Contrary to what is contended by the applicant, the applicant was afforded ample opportunity to collect material that supported his claim that he met the various criteria for the grant of a student visa. It cannot be said that the Tribunal denied the applicant procedural fairness, or failed to comply with its obligations under s.360(1) if the Migration Act, through its failure to afford the applicant additional time, in circumstances where it was apparent that the applicant had made no effort whatsoever to gather together the necessary evidence as to financial capacity, notwithstanding that he was previously prompted to do so (CB 47).
Ground 2
The Minister submits that the applicant contends that the Tribunal’s decision to refuse the applicant additional time to gather together evidence as to financial capacity was so unreasonable that no reasonable decision-maker could have ever made it.
The Minister contends that the starting point in matters such as the present is a recognition of the fact that whether or not an adjournment of proceedings should be granted is a matter which is ordinarily within the discretion of the person charged with the conduct of the proceedings: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 at [36]. As was recognised by the Full Court in Li (supra) an unreasonable refusal of an adjournment may lead to the conclusion that a decision-maker has not discharged their core statutory function of review under s.348(1) of the Migration Act (per Greenwood and Logan JJ) or to the conclusion that the applicant was denied a reasonable opportunity to present evidence and argument within the meaning of s.360(2) of the Migration Act (per Collier J). These matters aside, the Tribunal’s refusal to grant an adjournment in the present case was not unreasonable in circumstances where the applicant had been on notice for many months of the need to provide the relevant information (and had been informed that the Tribunal would require good reason to grant additional time to the applicant), yet failed to provide any evidence to the Tribunal concerning the financial capacity requirements.
Consideration
At the commencement of the hearing, Mr Young sought an adjournment on the basis that his instructing solicitor had only recently been retained to represent that applicant, after the applicant’s previous solicitors had ceased to act for him. The Court File indicates that this application was originally filed on 6 November 2012, together with a supporting affidavit, prepared by the applicant containing a copy of the Tribunal’s decision. That documentation was prepared by Shamser Thapa of Shamser Thapa & Associates. On 15 March 2013 a Notice of Withdrawal as Lawyer was filed in these proceedings by Shamser Thapa. Attached to that Notice is a Notice of Intention to Withdraw as Lawyer. On 5 April 2013 a Notice of Address of Service was filed, indentifying the solicitors acting for the applicant as G & S Law Group of Macquarie Street, Parramatta.
Mr Young indicated that there was one main reason in relation to why there should be an adjournment granted in these proceedings, namely that the applicant had applied for a transcript of the Tribunal hearing held on Tuesday 9 October 2012 from Auscript. The applicant had been advised by Auscript that the delivery of that transcript was expected to be 7am on Tuesday 9 April 2013. Mr Young submits that something may turn on exactly what was said at the Tribunal hearing, although, he did not believe that it is in dispute that the applicant was asked for some current documents which he did not have. In support of this submission, Mr Young sought to tender the affidavit of Komal Khatiwada, Migration Agent of Macquarie Street Parramatta, setting out the details of the steps that he had taken to assist Mr Karki in completing a form, to obtain a CD recording of the Tribunal hearing, together with details of obtaining an educational loan from the Nabil Bank of Nepal which is one of only two banks in Nepal that provide educational loans. There is another affidavit which was filed in the Court Registry on 5 April 2013, sworn by Kamal Karki on 4 April 2013 in support of the adjournment application .
Mr Smith informed the Court that his instructions were to oppose any adjournment application. Mr Smith acknowledges that he is not aware of what was said before the Tribunal, however, it is not disputed that when the applicant attended, on 9 October 2012, he was without any evidence going to his financial capacity to satisfy the requirements of the Migration Regulations in circumstances where the applicant was aware of the need to provide such information. This requirement was foreshadowed a number of times which led to his failure before the delegate because he did not provide the necessary information. That problem arose again because he was unable to present that material to the Tribunal.
I indicated to the parties that in respect of the transcript of the Tribunal hearing if there was anything of significance arising from that transcript I would accept post-hearing submissions from the applicant and provide the Minister with an opportunity to respond. Mr Young indicated that he would not oppose that course. Mr Young undertook to provide a copy of the transcript prepared by Auscript as soon as it was available. I informed the parties that I would allow them fourteen days in which to prepare any submissions and fourteen days for a reply. At the time of the publication of these reasons, no submissions have been received by the Court.
Mr Smith, in response to Mr Young’s arguments, stated that the first ground of review is that the Tribunal’s decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s.359A of the Migration Act and the Tribunal failed to take into account relevant considerations. Mr Smith contended that s.359A requires the Tribunal to give to an applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason for affirming the decision under review. Mr Smith argued that in the current matter, the Tribunal did not have in its possession a piece of information that, on its face, would be fatal to the applicant’s claims, so any suggestion that there was a denial of procedural fairness, or breach of s.359A of the Migration Act is not correct.
Section 359A of the Migration Act relevantly provides:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
The s.359A(1) notice of 10 September 2012 contained the following information:
I am writing about the application for review made by you in relation to a decision to refuse to grant a Student (Temporary) (Class TU) visa.
The Tribunal has considered the material before it but in unable to make a favourable decision on this information alone.
You are invited to appear before the Tribunal to give evidence and present argument relating to the issues arising in your case…
Additionally, the Tribunal invites you to provide the following:
1. A certificate of enrolment as required by cl.573.222, or evidence that you are enrolled in, or are the subject of a current offer of enrolment in a registered course as set out in cl.573.231.
2. Current evidence that you satisfy financial capacity requirements in any of the alternate ways applicable for your assessment level set out in Schedule 5A for the purposes of cl.573.233(2)(a)(i). Please note the following:
· If you intend to show funds from a source in Nepal, the Minister (on review, the Tribunal) must be satisfied that the financial institution is acceptable. See
and for a detailed list. Funds from financial institutions not listed may not be accepted.
· I draw your attention to the requirements to provide evidence that the regular income of any person (including yourself) providing funds to satisfy financial capacity requirements was sufficient to accumulate the level of funding being provided by that person.
· The Tribunal will assess you against the applicable Schedule 5A criteria based upon your enrolment at the time the Tribunal makes its decision, taking into account any changes to your enrolment which have occurred since you lodged your visa application. For example, the amount of funds you must demonstrate to satisfy Schedule 5A financial criteria may have changed, reflecting changes in the length of your course and the amount of course fees outstanding. If you have enrolled in a new course, depending in the type of evidence of funds you provide, you may be required to show a savings history for 3 months prior to the date of your visa application. Furthermore, if your principal course has changed, you may be assessed against a different visa subclass, in which case different Schedule 5A criteria would apply.
I have attached relevant extracts of the Regulation for your reference. Please note, the Tribunal will make its decision under the Regulation as they stood on the date of your visa application. Evidence before the Tribunal indicates that you applied for your visa on 17 March 2010. The attached extracts are provided on the basis that you are enrolled in a course specified for a subclass 573 visa. The criteria you are required to meet may change if your enrolment changes.
The Tribunal invites you to provide the above information as soon as possible prior to the hearing but no later than the hearing date. The Tribunal may make a decision at the conclusion of the hearing. The Tribunal notes that a delegate of the Minister first requested this information from you on 15 June 2010. If you are unable to provide this information by the hearing date, the Tribunal will require good reason to grant additional time.
(emphasis added) (CB 46-47)
The main thrust of the argument advanced on behalf of the applicant is whether the Tribunal unreasonably refused an application for an adjournment and whether that was explicit or implicit in what the applicant was seeking. The applicant was asking for more time at the Tribunal hearing because evidence as to the source of funds in Nepal was not yet in his possession.
I believe that there is nothing on the face of the above correspondence forwarded to the applicant that does not satisfy the requirements of the Act. I note that this matter is distinctly different from the vast majority of proceedings brought under this provision. In those cases, the dispute arises as to the adequacy of the information provided identifying the information or documentation that is required by the Tribunal. Arguments arise as to whether request of material can be correctly identified by the applicant, and whether the scope of the request is sufficient to identify all relevant documents. These considerations do not arise in the matter before this Court and are not required to be addressed further.
Mr Smith argued that the contention that the Tribunal’s decision was one in which the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations is wrong. It requires that a decision-maker look at the terms of the particular legislation and identify the relevant and irrelevant considerations: Youssef v Minister for Immigration and Citizenship [2012] FMCA 992. While I accept that this principle is correct I believe an important aspect is being overlooked. The key question for determination is whether the decision of the Tribunal to refuse to adjourn a hearing can, in particular circumstances, constitute an error going to the jurisdiction of that Tribunal. In this matter, instead of a formal adjournment, the Tribunal could have afforded the opportunity for the applicant to have leave to file further documentation in respect of financial capacity.
The issue of whether a decision by a tribunal to refuse to adjourn a hearing is addressed in the Full Court of the Federal Court decision Li (supra) per Greenwood, Collier and Logan JJ. In the joint judgment, their Honours Greenwood and Logan JJ set out the statutory principles in considerable details. At [6] their Honours stated:
6. The MRT is a creature of statute. In relation to its counterpart, the Refugee Review Tribunal (RRT), which deals with protection visa related matters, the High Court has held that the “core function” of that tribunal is to “review the decision” which is the subject of a valid application under the Act: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [18]; see also Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594(SZGUR). So, too, with the MRT is its “core function” one of reviewing a decision which is the subject of a valid application, in the case of that Tribunal, under s 347 of the Act: s 348 of the Act. Where such an application is made and subject to an exception found in s 348(2) of the Act, which is not presently material, the MRT must review the decision in question.
After discussion of early jurisprudence which has now been subjected to legislative change, the current structure is considered as follows by Greenwood and Logan JJ at [9]-[15]:
9. Whether and to what extent the MRT’s discharge of its core function is attended with a procedural fairness obligation will depend not just upon the “infinite variety of circumstances that may exist” but also upon “giving full effect in every case to the particular statutory framework within which the proceeding takes place”: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 503-504 per Kitto J.
10. As to that statutory framework, in SZGUR at [19] French CJ and Kiefel J, with whom Heydon and Crennan JJ agreed, described what is found in the RRT analogue of s 353, s 420, as a “requirement imposed on the Tribunal, in the discharge of its core function of reviewing Tribunal decisions” (emphasis added). The characterisation of s 420 and hence s 353 as a source of “requirements” is not ours but rather that of the plurality of the High Court. That becomes important when considering what was earlier said of s 420 by the Full Court in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427 at [15] (SZMOK). Section 420 of the Act was there described as an “exhortative provision” which did not create rights or grounds of review additional to specific rights of review expressly given by the Act. So, too, was s 422B(3). The direct analogues of s 422B(3) of the Act, so far as the MRT is concerned, is 357A(3).
11. In so describing s 420 and s 422B(3) in SZMOK, the Full Court cited in support a remark made by Hayne J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [158] (Eshetu). In that passage, his Honour expressed agreement with the reasons for judgment of Gleeson CJ and McHugh J in that case, adding that, in particular, he agreed that, “s 420 of the Act does not create rights or a ground of review additional to those given in s 476”. The basis for that proposition was explored in depth by Gleeson CJ and McHugh J in their joint judgment: Eshetu at [46] to [52]. Their Honours approved statements made by Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 (Sun Zhan Qui) at first instance as to what they termed “the relationship, or lack of it, between ss 420 and 476” of the Act. Gummow J, at [106], and Callinan J, at [179], likewise approved those statements. Indeed, the description of s 420 of the Act as “exhortatory” is ultimately referable to a description of that section given by Lindgren J in Sun Zhan Qui.
12. In their joint judgment in Eshetu and by reference to what was said of provisions like s 420 and s 353 in Qantas Airways Limited v Gubbins (1992) 28 NSWLR 26 (Qantas Airways Limited v Gubbins), Gleeson CJ and McHugh J observed at [40] that such provisions are “intended to be facultative, not restrictive. Their object is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.”
13. It is important to remember that the statutory framework in which s 420 appeared at the time when Eshetu was decided was quite different from what is found in the Act as later amended and as applicable to the present proceeding. The then s 476 sought to limit available grounds of judicial review. The extent to which that section had achieved this, having regard to s 420, had proved controversial in this Court, as the judgments of this Court cited by Gleeson CJ and McHugh J in their joint judgment in Eshetu highlight. Eshetu settled that controversy in relation to the Act as it then stood.
14. So far as the former s 476 and its attempted truncation of grounds of judicial review are concerned, Eshetu was decided prior to Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 (S20) and, more recently yet, in relation to review on the basis of illogicality or irrationality, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS). Further, the Act, including s 476, as it stood at the time when Eshetu was decided was later amended in yet other ways directed to the restricting of judicial review. As Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (S157) reveals, those later amendments have to be read subject to The Constitution and, in particular, to the constitutionally entrenched jurisdiction, vested in the High Court by s 75(v), to issue constitutional writs in respect of decisions made by officers of the Commonwealth which are attended with jurisdictional error. The provisions with respect to judicial review found in the present Part 8 of the Act are the culmination of an Hegelian dialectic between the various branches of Federal government as to the limits under The Constitution of Parliament’s ability to restrict the judicial review of decisions of the Minister, his delegates and tribunals exercising a merits review jurisdiction in their place (that is, where the boundaries of irreducible minimum standards might lie). In the present case, in the judicial review of the MRT’s decision, the Federal Magistrates Court exercised an original jurisdiction which was co-extensive with that exercised by the High Court under s 75(v) of The Constitution.
15. In Qantas Airways Limited v Gubbins at p 30, Gleeson CJ and Handley JA observed of the words “equity, good conscience and the substantial merits of the case” that they were “not terms of art and have no fixed legal meaning independent of the statutory context in which they are found”. In the statutory context in which they appeared in that case, such language was not regarded by Gleeson CJ and Handley JA as freeing the tribunal concerned from a duty to apply the general law in making its decisions.
Their Honours then considered specific examples of decisions relating to the question of the refusal to grant an adjournment by the Tribunal. This was addressed by their Honours at [23]-[27] in Li (supra) as follows:
23. Two judgments of the Court handed down following the close of oral argument acted as a catalyst for the supplementary submissions: Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498 (Ortiz) and Minister for Immigration and Citizenship v Tran [2011] FCA 1445 (Tran). Though each of these judgments was given in the exercise of appellate jurisdiction, the Court was constituted in each case by a single judge.
24. As the Minister correctly highlighted, the outcome in Ortiz turned on two bases, an unreasonable refusal of an adjournment and also irrationality on the part of the MRT on the evidence before it in failing to be satisfied that Mr Ortiz was the father of the child in question and thus met the material visa criterion. In Ortiz, Logan J did not have the benefit of the submission developed by reference to SZMOK which was made by the Minister in this case. Indeed, SZMOK was not mentioned at all by either party in the submissions made in Ortiz. Nor, as the reasons in Ortiz reveal, did Logan J consider, of his Honour’s own motion, either that case, SZGUR or the others canvassed above. Instead, as the reasons for judgment in Ortiz also reveal, Logan J confined his Honour’s consideration of what to make of s 353 and s 357A(3) to a dictum of Perram J in Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [30], to observations made in NAHF [2003] FCA 140; (2003) 128 FCR 359 at 365-366 by Hely J and, more generally, to Aala.
25. In Tran, Lander J also appears not to have had the benefit of submissions from the Minister of the kind made on his behalf to the Full Court in this case. In Tran, Lander J decided that the Federal Magistrates Court had rightly concluded that the refusal of a reasonably made request for adjournment was procedurally unfair and evidenced jurisdictional error. In so doing, Lander J referred to the statement made by Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Bhardwaj) that “a failure to accede to a reasonable request for adjournment can constitute procedural unfairness”. That proposition is well grounded in Australian and English authority, as the authorities cited by Gaudron and Gummow JJ in Bhardwaj at [40], in fn (43) disclose. The unreasonable denial of a request for an adjournment is one way in which an applicant for review can be denied an opportunity to be heard and thereby the rules of natural justice breached. As Gaudron and Gummow JJ further observe in Bhardwaj at [41], referring to the authority of Aala, a decision attended by such a breach may be set aside under s 75(v) of The Constitution.
26. On analysis, it can be seen that both Ortiz, insofar as it turned on the refusal of adjournment issue, and also Tran are but examples of applying Aala where the circumstances of a particular case disclosed jurisdictional error in the form of a failure to afford an opportunity to be heard constituted by an unreasonable refusal of an adjournment. Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166 per Gyles J is another such example.
27. When a tribunal fails in this way to offer an opportunity to be heard, it fails to discharge its core statutory function of reviewing the decision of the Minister or his delegate.
Their Honours then went on to make a final observation at [30] in Li (supra):
30. As we have already observed, necessarily, it will also mean that the MRT has not conducted its core function in a way which is “fair”, which is a requirement of s 353 and, for that matter, of s 357A(3) of the Act. The statement in s 357A(1) of the Act that the division of the Act in which s 357A(3) appears is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with in that division is not a palliative for a failure on the part of the MRT to discharge its “core function”.
In the reasons of her Honour Collier J in Li (supra) (with whom Greenwood and Logan JJ agreed) her Honour made the following observations at [101]-[104]:
Bhardwaj and SCAR: section 360
101. In my view Bhardwaj and SCAR are directly relevant to the proceedings before me, and more particularly to the interpretation of s 360.
102. As a matter of law, I consider that a failure by the Tribunal to give proper consideration to an application for adjournment by a visa applicant amounts to a failure of the Tribunal to give the applicant a reasonable opportunity to present evidence and argument within the meaning of s 360. The strictures imposed by s 357A(1) are not contravened – in such circumstances an order by the Court to quash the decision of the Tribunal accords with s 357A(1) of the Act. However there is clearly a breach of the obligations imposed on the Tribunal by s 360.
103. I am fortified in this conclusion by comments of Finn J in Hong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1308 at [31] (in relation to adjournment, and s 360), and those of the Full Court in NALQ at [34]-[39], Flick J in NBMB v Minister for Immigration & Citizenship [2008] FCA 149 at [21]- [22], Hely J in Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 at [39] and Gyles J in Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166 at [5] (in relation to adjournment, and s 425).
104. I am also satisfied that a failure by the Tribunal to properly consider an application for adjournment is an error going to the jurisdiction of the Tribunal, and susceptible of review by this Court. By analogy I note the decision of Besanko J in Minister for Immigration and Citizenship v Hassani [2007] FCA 436 that an error of the Administrative Appeals Tribunal in its consideration of its general power to adjourn was a error going to the jurisdiction of that Tribunal. More precisely, a failure of the Tribunal to properly consider an application for adjournment, being a failure of the Tribunal to accord with s 360 of the Act, is in turn a failure of the Tribunal to comply with a condition of the exercise of decision-making power and jurisdictional error as discussed by the High Court in Plaintiff S157/2002 v Commonwealth [2003] 211 CLR 476.
In this matter the Tribunal determined that the applicant failed to satisfy one of the criteria at the time of the decision, set out in sub-clause 572.223 of Schedule 2 of the Regulations. Had the applicant been allowed more time by the Tribunal he may have satisfied the criteria at the time of the decision. The Tribunal refused a request to wait “a few weeks” in order to be able to provide the financial documents. When the applicant previously applied for a student loan he had experienced some problems in his home country relating to government officers, but he did receive, albeit too late, the necessary financial documents a few days after the delegate’s refusal decision. In the circumstances, this failure to allow an adjournment was so unreasonable that it constituted jurisdictional error. The Tribunal’s decision to refuse the adjournment, or alternatively provide additional time in which to lodge the financial documentation when received from Nepal was, in my view, affected by jurisdictional error. The matter ought to be remitted to the Tribunal for rehearing.
Mr Smith brought to the Court’s attention Ground 3 of the Amended Application which he contends cast similar terms to Ground 1, being a denial of procedural fairness due to the Tribunal failing to take into account relevant considerations. Mr Smith contended that as he had indicated previously, when dealing with Ground 1, the irrelevant considerations allegation cannot stand for the reasons outlined in decisions such as Youssef (supra).
Mr Smith then gave a brief outline of the background of the case, focusing on the relevant clause, outlined at [13] above. Mr Smith submitted that clause 573.222(2)(i)(a) requires the applicant to give to the Minister evidence in accordance with the requirements mentioned in Schedule 5A. Mr Karki was specified as an assessment level 3 applicant, to which clause 5A 508 provided that, in order to meet the requirements for the grant of the visa, the applicant must in accordance with the clause give evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 24 months; being course fees, living costs and school costs.
Mr Smith submits that the applicant must have been taken to be aware of the requirement of financial capacity for the grant of this particular visa. The Minister submits that the applicant failed before the delegate as he simply did not provide evidence that he could satisfy the financial capacity requirement, and, having failed that, applied to the Tribunal for a review of the decision. The Minister concedes that after the applicant submitted his application for review on 12 August 2010, there was an unexplained significant delay in time before the Tribunal advised the applicant that a hearing would take place. The applicant was informed that in order to be successful, it would be necessary for him to satisfy the Tribunal that he met the financial capacity requirements.
Mr Smith submits that the applicant’s argument was that his application was doomed to fail because he was only given a month to collect the necessary material. Mr Smith argued that there doesn’t appear to be any evidence that this is the only way he could have obtained the money that was needed. Mr Smith contends that there appears to be a factual assumption that is simply not made good on the evidence. Mr Smith also submits that the applicant was put on notice that it was necessary for him to provide the evidence. The Minister submitted that the applicant arrived at the hearing with a certificate of enrolment and no financial information. Mr Smith argued the applicant was aware that, unless he could provide a satisfactory explanation for the delay or to make good his case for further time, he would not be granted additional time to present documentation.
Mr Smith contends that the applicant swore an affidavit with a confirmation of a loan annexed and appears to make the submission that it was so unreasonable for the Tribunal not to grant additional time in circumstances where the Tribunal was aware that, on a prior occasion, he had obtained approval for a loan. However, the Minister submits it was on the applicant’s own evidence he did not provide the documentation to the Tribunal. In the affidavit of Kamal Karki, sworn on 4 April 2013, at [3] it states:
While I had my first loan approval with me I did not provided (sic) to the Tribunal because they only asked me about current financial evidence that I did not have…
Mr Smith contends that the submissions from the applicant were the Tribunal acted unreasonably in failing to give him additional time. However, the applicant did not provide evidence to the Tribunal of his past success of getting a loan approval. Mr Smith submits that this is an allegation of, in essence, Wednesbury unreasonableness, and yet the applicant had not provided any evidence as to his expected living costs nor proof of the financial capacity to satisfy the requirements of the visa.
Mr Smith argues that in certain circumstances the failure to grant an applicant additional time to gather material may mean that the applicant was either denied procedural fairness or the Tribunal did not make good its obligation under s.360 of the Migration Act to invite the applicant to appear or, indeed, permitted an act of unreasonableness in the Wednesbury (supra) sense.
Mr Smith contends that this is a simple case when one looks at the factual background, and in the situation where the applicant was aware of the need to provide the information and the need to provide sufficient explanation or reason to justify a further adjournment or the allowance of additional time, allowing or refusing that request is a matter within the province of the decision-maker.
Mr Young, in reply, brought to the Court’s attention that Wednesbury unreasonableness is not a threshold that is required in relation to this particular issue. Mr Young submits that in the Full Federal Court decision of Li (supra), the Minister submitted that Wednesbury unreasonableness was not available and what one sees is that cases, such as Ortiz v Minister for Immigration and Citizenship & Anor [2011] FCA 1498, had been founded upon two separate bases, one being unreasonable refusal of an adjournment, which is not based upon Wednesbury unreasonableness. The other basis was irrationality on the part of the Tribunal, which is Wednesbury unreasonableness. Mr Young argued that if there is an unreasonable denial of an adjournment application that can amount to a denial of procedural fairness and does not need to incorporate Wednesbury unreasonableness.
The issue of Wednesbury unreasonableness was addressed by her Honour Collier J in Li (supra). After reviewing the issues in Li (supra) her Honour made the following observations at [117]-[118]:
117. The introduction by his Honour of principles of “Wednesbury unreasonableness” into the analysis of the decision of the Tribunal was at odds with the actual complaint brought by Ms Li to the Court below, and an unnecessary distraction from the real issues in the case. Courts use the term “unreasonable” in respect of decisions to refuse adjournments without necessarily seeking to invoke Wednesbury Corporation. An instructive – and relevant – example is Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 where the Full Court observed:
[93] SCAR was mentioned in support of a decision recently given by Gyles J in Applicant S296/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166. In that case, however, the Tribunal had refused to adjourn a hearing on the grounds of the applicant’s psychiatric condition. While finding no ‘general fault in the reasoning of the Tribunal’ Gyles J held that in the particular circumstances of the case there had been an unreasonable refusal of an opportunity to present a case which was sufficient to breach the rules of procedural fairness (at [5]).
(Emphasis added.)
118. I note that in neither SZFDE nor Applicant S296/2003 were Wednesbury principles in contention.
I note that Ground 3 of the Amended Application is essentially cast in similar terms to that of Ground 1, being a denial of procedural fairness due to the Tribunal to fail to take into account relevant considerations. I do not believe that this has altered my view from that in respect of Ground 1 and the matter should be remitted back to the Tribunal for a rehearing. Consequently, the Amended Application should be allowed and the first respondent should pay the applicant’s costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 16 July 2013
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