Khan v Minister for Immigration and Border Protection
[2013] FCCA 2253
•23 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR | [2013] FCCA 2253 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – whether Tribunal failed to afford the applicant procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.137J, 353, 357A, 359A, 360, 424A, 425, 476 |
| SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 SZCMD v Minister for Immigration and Citizenship [2009) FCAFC 46; (2009) 174 FCR 415 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294. VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 Tin v Minister for Immigration and Multicultural Affairs [2000] FCA Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276 Minister for Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Citizenship v Li [2012] FCAFC 74 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 |
| Applicant: | MOHAMMAD SALMAN KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 337 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 29 October 2013 |
| Date of Last Submission: | 29 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 23 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Cutler |
| Solicitors for the Applicant: | Parish Patience |
| Appearing for the Respondents | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the first respondent is amended to “Minister for Immigration and Border Protection”.
The application made on 21 February 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,646.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 337 of 2013
| MOHAMMAD SALMAN KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 21 February 2013, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 23 January 2013, which affirmed the decision of the Minister’s delegate to refuse the grant of a “Student (Temporary) (Class TU)” visa (“the visa”) to Mr M S Khan (“the applicant”).
At the hearing before the Court, Mr P Cutler of counsel appeared for the applicant. Mr A Markus appeared for the first respondent. A bundle of relevant documents (the Court Book, “CB”) and the affidavit of Ms Sue Archer (annexing a transcript of the hearing before the Tribunal (“T”)) were before the Court.
Background
The applicant is a national of Bangladesh (CB 1). He arrived in Australia in May 2009, as the holder of a student visa that was in force until 21 March 2011 (CB 45). On 18 March 2011, he applied for the visa. He was represented by a migration agent in the making of the application (CB 8). At that time, the applicant was enrolled in a course of study (“Advanced Diploma of Accounting” at the Australian College of Commerce and Language, see generally CB 1 to CB 17).
The delegate made his decision on 10 June 2011 (CB 22). By that time, the applicant’s enrolment had been “cancelled” due to the applicant’s “poor attendance” (CB 21). The applicant had not given any evidence of any further enrolment in an applicable course of study. The delegate found that the applicant did not meet the regulatory requirements as was required. The application was therefore “refused” (see CB 18 to CB 23 and in particular, CB 21). [Clause 572.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) requires that, at the time of the decision, the applicant has provided evidence (a Certificate of Enrolment (“COE”)) that he is undertaking a course of study with an education provider.]
Relevant to the applicant’s ground now, it can be noted that the delegate had asked the applicant to provide evidence that he had access to $24,750.00 to satisfy the requirement that he had sufficient funds to support himself in Australia (CB 27.7).
The applicant applied for review to the Tribunal on 11 June 2011 (CB 37 to CB 43). He was represented by a different migration agent, who was also a lawyer (CB 36).
On 6 November 2012, the Tribunal wrote to the applicant (through his representative) inviting him to a hearing, scheduled for 11 December 2012 (CB 53) (presumably pursuant to s.360 of the Act). The hearing proceeded on that date (see CB 79 to CB 80). The letter also invited the applicant to provide certain information (see at CB 53.8). This included, relevant to the applicant’s case now before the Court ([5] at CB 54):
“Evidence that, while you hold the visa, you will have access to the funds demonstrated or declared for the proposed period of your stay in Australia. Without limiting the ways in which this requirement may be satisfied, where you have shown evidence of a loan which is secured against a money deposit, the tribunal specifically invites you to provide the following:
o evidence of the source of funds used to create that money deposit;
o evidence of the regular income of any person providing those funds (for example, official tax records); and
o where the funds were obtained from selling land or a dwelling, evidence of a registered deed of sale, and that money has been received from the purchaser.”
The applicant’s migration agent responded to this letter of invitation on 10 December 2012 (CB 61 to CB 74). A number of documents were submitted to the Tribunal. Relevantly, there was a copy of a bank statement of the applicant’s mother showing a particular dollar figure as at 4 December 2012 (CB 70). Further, there was a receipt from a Bank (“Uttara Bank”) stating that a certain amount had been received from the applicant’s mother as a “fixed deposit” (CB 71).
The following can be ascertained from the transcript of the hearing before the Tribunal. First, the applicant at the time was still not enrolled in a relevant course of study (see T2 line 9). Second, the Tribunal allowed the applicant further time to provide documents in relation to a relevant educational course that he met English language requirements and evidence that he had access to his mother’s funds (See T9 line 1 to line 23). The applicant subsequently provided such documents to the Tribunal (CB 82 to CB 91).
It can be seen from the Tribunal’s decision record that, based on the evidence subsequently provided, it accepted that the applicant had provided all of the relevant documentation. The Tribunal then (in its decision record) addressed the question as to whether the applicant met the criterion in cl.572.223 (see [8] at CB 99) and, in particular, cl.572.223(2) which, at the relevant time, was in the following terms:
“…
(2) An applicant meets the requirements of this subclause if:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) 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.”
The Minister’s written submissions provide, in detail, an explanation of the issue before the Tribunal and its disposition before it
(at [12] – [15]):
“[12] The issue before the Tribunal was whether the applicant met the criteria set out in cl.572.223(2) in Part 572 of Schedule 2 to the Regulations. Relevantly, cl.572.223(2)(a)(i) requires an applicant to give to the Minister evidence in accordance with the requirements mentioned in Schedule 5A of the Regulations for the highest assessment level for the applicant. Applying the relevant statutory instrument (ie IMMI 10/003, dated 16 March 2010 – see attachment ‘B’ to these submissions), the Tribunal assessed the applicant against level 4. The requirements for Subclass 572 assessment level 4 are specified at Division 2 of Part 4 of Schedule 5A to the Regulations which, relevantly, required the applicant to show that he had access to funds from an acceptable source sufficient to meet his course, living and travel costs for the first 36 months of his proposed stay. Funds from an acceptable source included a money deposit that an acceptable individual has held for at least the 6 months immediately before the date of the application.
[13] The Tribunal calculated the applicant’s:
a) remaining liability for course fees as $15,000;
b) living costs for the relevant period (ie 25 months in accordance with cl 5A101 of Schedule 5A to the Regulations) as $37,500 (see IMMI 09/138, dated 8 December 2009 – see attachment ‘C’ to these submissions); and
c) his travel costs as $800;
ie a total of $53,300.
[14] Although the Tribunal accepted that the applicant had provided evidence of a deposit held by an ‘acceptable individual’, it noted that the bank statements provided by the applicant did not demonstrate that the deposit had been held by the applicant’s mother for a least 6 months prior to the visa application being made (RD 106 [29]). The Tribunal did not take this issue further, however, as it also found that the total amount of the deposit amounted to AU $23,895, which was significantly less than the amount of $53,300 required for the applicant’s course, living and travel costs for the requisite period (RD 106 [31]).
[15] Accordingly, the Tribunal found that the applicant had not given evidence in accordance with the requirements of Schedule 5A for Subclass 572 and did not satisfy the requirements of cl.572.223(2)(a)(i) (RD 106 [33]).”
The Applicant’s Ground and Complaints
The sole ground of the application before the Court is in the following terms:
“1. The Second Respondent has committed jurisdictional error in the way in which it conducted the hearing.
Particulars
(a) The Tribunal failed to afford natural justice to the applicant by not giving him the opportunity to call further evidence to address its concerns about the quantum of financial support (para 42. of the decision).
(b) The Tribunal at the hearing failed to inform the applicant of the need to provide evidence of financial support.”
The ground as stated, that is with the reference to the conduct of the hearing before the Tribunal and the specific reference to the hearing at particular (b), evokes, although not explicitly states, a breach of s.360 of the Act. That is, the ground, on its own, and as particularised, may be understood as a breach of procedural fairness under Division 5 of Part 5 of the Act in relation to the conduct of the hearing.
However, in written submissions, and echoed subsequently in oral submissions before the Court, it appeared that the alleged statutory breach of procedural fairness was said to arise from the Tribunal’s breach of s.359A of the Act. In oral submissions, the applicant also asserted that jurisdictional error in the Tribunal’s decision arose because of s.353 and s.357A of the Act.
No application was made to amend the application. The Court proceeded to hear and deal with the application on the basis explained before the Court. In this context, the Minister responded to the case as “explained” by the applicant. That is, with reference to s.359A, and separately, s.353 and s.357A, of the Act. However, it assists in understanding the disposition of this case by noting the following.
In relation to the ambiguity in the applicant’s case by the reference to the hearing in particular (b) and the use of the terms ‘issues’ and ‘information’. Section 359A is of course concerned with “information”. That is, it creates the obligation on the Tribunal to give to an applicant “information” that it considers would be the reason or part of the reason for affirming the delegate’s decision. Direction here is provided by the High Court in in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17] – [18] as to the meaning of “information” (in this context of the “analogous” s.424A of the Act).
Section 360 of the Act is concerned with the Tribunal’s obligation to invite an applicant to a hearing so that the applicant can give evidence and present arguments relating to the “issues” arising in relation to the decision under review. Direction here is provided by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”) (with reference to the analogous s.425 of the Act).
During the hearing before the Tribunal the words “information” and “issue” were used by the applicant interchangeably. The ground as pleaded makes references to the “hearing”. As referred to above, this, in addition to the use of the word “issue” in the applicant’s explanation of the ground in his submissions before the Court, suggests an allegation of breach of s.360 of the Act.
That is, bearing in mind what was relevantly said by the High Court in SZBEL (at [34] – [35]) that an “issue” dispositive of the review (the calculation and application of the facts needed to satisfy the relevant regulations) was not, a live issue, if it indeed can be said to be an “issue”, as a result of the delegate’s decision. Further, it was not discussed at the Tribunal hearing. In light of SZBEL, this raises the possibility that the Tribunal should have provided the applicant with the opportunity of another hearing.
Given some aspects of how the applicant argued his case before the Court and indeed the reference to the “hearing” (with connection to s.360 of the Act) in the ground as pleaded, I sought to clarify with the applicant whether he was seeking to put an argument along the lines outlined at [18] – [19] above.
The applicant made no such submissions. In light of the applicant’s oral submissions to the Court, I did not comprehend the use of the word “issue” as used above (at [19]) to be some assertion of a breach of s.360 of the Act. Therefore, I proceeded to consider the application on the basis set out below. That is, the ground as explained in submissions before the Court.
Given the difference between the ground as pleaded and as explained in submissions, it is convenient to initially approach the understanding of the applicant’s case from the circumstances in which he said the procedural fairness breach arose.
The applicant’s complaint to the Court can be seen in his explanation of claimed relevant events. This was as follows. The application for the visa was initially made in circumstances where the applicant had been enrolled in a particular course (Advanced Diploma of Accounting). He provided a COE in relation to this (CB 21.7). While this COE was subsequently “cancelled”, the applicant had, in the meantime, been asked for evidence of sufficient funds to support himself during his stay in Australia. He was asked to “…show that you have access to $24,750” (CB 27.7).
By the time of the hearing before the Tribunal, the applicant had still not provided any further COE (a necessary element for the grant of the visa). The Tribunal member gave the applicant time to produce the further COE, which he subsequently provided (T10 line 20 to line 23 and CB 92 to CB 93).
In its decision record, the Tribunal proceeded to “calculate” the amount of money to which the applicant was required to show access to. This was for the purpose of assessing whether he would satisfy the relevant visa requirements as set out at cl.5A405 (see Schedule 5A to the Regulations). The reference to the “calculation” was presumably a reference to what the Tribunal set out at [19] (at CB 104) to [33] (at CB 106) of the Tribunal’s decision record. The applicant, in particular, pointed to the Tribunal’s “calculation” that the applicant would relevantly require $53,300.00 (see [25] at CB 105).
The applicant’s complaint was that, at the hearing, the Tribunal focused on the issue of the need for evidence of a COE (see, for example,
T4 to T7). The Tribunal’s “calculation” in its decision record was done in the context of the COE produced subsequent to the hearing. Therefore, the applicant submitted that that “calculation” and the need for $53,300.00, instead of $24,750.00, were not “exposed” at the hearing.
Before the Court, the applicant focused on the Tribunal’s decision record at [29] – [31] (at CB 106). The Tribunal’s “calculation” resulted in the finding that $53,300.00 was required to meet the regulatory criteria. The applicant does not dispute that “$53,300.00” is the “appropriate” amount (relevant to meeting the requirement of the Regulations) given the applicant’s relevant “assessment level” and circumstances.
The applicant complains that the Tribunal proceeded to “calculate” this “figure” in circumstances where the applicant had previously been told that $24,750.00 was the relevant amount. His complaint now is that this (“issue”) was not brought to his attention. That is, the Tribunal’s “principal reason” for affirming the delegate’s decision was that the applicant had not shown that he had access to $53,300.00 from an available source to meet the financial requirements of the visa. This was not put to him for comment or explanation. I note that, before the Court, the applicant confirmed that his complaint was directed to both the “process” of calculating the amount the applicant needed to show that he had access to, and the amount itself. That is, the word “calculation” was used interchangeably to refer to both the process of calculation, and the resulting dollar amount that had been calculated by the Tribunal.
The applicant submitted that this “issue” should have been brought to the applicant’s attention for two reasons. First, because of s.359A of the Act (Ground One: Part One). Second, because of s.353 and s.357A of the Act (Ground One: Part Two).
Ground One: Part One
Section 359A(1) of the Act obliges the Tribunal to give the applicant clear particulars of “information” which it considers would be the reason, or a part of the reason, for affirming the decision under review. Of course, the Tribunal may choose to discharge this obligation orally at the hearing, utilising the facility made available to it by s.359AA of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 and see also SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294).
The meaning of the word “information” as it appears in s.359A of the Act, was the subject of consideration (of its “equivalent”, s.424A of the Act) by the High Court in SZBYR. At [17] the High Court said:
“Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration ‘would be the reason, or a part of the reason, for affirming the decision that is under review.’ The statutory criterion does not, for example, turn on ‘the reasoning process of the Tribunal,’ or ‘the Tribunal's published reasons.’ The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (‘would be’) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The ‘reason, or a part of the reason, for affirming the decision that is under review’ was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be ‘information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.’ Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.”
I note the High Court’s “approval” of what the majority said in
VAF v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 123 (“VAF”) in SZBYR at [18]:
[18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word ‘information’ [14].
‘does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant ‘information’ was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”
Before this Court, it must, obviously, be accepted that the meaning given to the word “information” is that given by the High Court in SZBYR. As a corollary, the descriptions of what is not encompassed within that meaning, as explained by the majority in VAF, the case on which the Minister now relies, (and as approved by the High Court in SZBYR) must be applied in the disposition of the applicant’s first “particular” to the ground of the application.
The Minister’s position before the Court was that what the Tribunal relevantly did was not even a “subjective appraisal”, but simply a “calculation” based on the evidence before it, and the application of the evidence to the relevant regulatory requirements. That is, the Minister submitted that the calculation was not “information” for the purposes of s.359A of the Act. No authority was cited in support of the proposition that a “calculation” was not “information” for the purposes of s.359A of the Act.
In his submissions, the Minister submitted that what the Tribunal had done was to be characterised as a “calculation”. He was insistent that its reasoning at [18] (at CB 104) to ([33] at CB 106) was not a “subjective appraisal”.
Had the Tribunal’s “calculation” been characterised as a “subjective appraisal” it would, of course, not be “information” for the purposes of s.359A of the Act, given what was said in VAF and SZBYR.
The difficulty for the Court, however, was that the Minister advanced no argument to relate a “calculation” to the meaning of the word “information” in s.359A of the Act as that term has been explained by the authorities.
The understanding of the term “information”, in my respectful view, is expressed in the authorities partly in the positive, and partly in the negative.
The positive expression of the term “information” in SZBYR is that it must be “information” that, at some time antecedent to the making of its decision, the Tribunal considers would be the reason or a part of the reason for affirming the decision under review.
Before the Court, the applicant asserted that the reason for the Tribunal’s affirmation of the delegate’s decision was its “calculation” that the applicant needed to show access to $53,300.00 to meet the relevant criterion for the grant of the visa in circumstances where he had previously been told he only needed to show access to $24,750.00.
The Minister did not directly answer that charge. He simply relied on the proposition that a “calculation” was not “information” for the purposes of s.359A of the Act. Nor did he make any submissions that the applicant’s reliance on the Tribunal’s decision record, that is “the Tribunal’s published reasons”, alone was problematic in light of the clear direction in SZBYR that the relevant “statutory criterion” does not, for example, turn on the “reasoning process” of the Tribunal or “the Tribunal’s published reasons” (SZBYR at [17], see also SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [20] per Jacobson J, and SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopsis J))
The “negative” expression of the term “information” in VAF indicates what is not “information” for the purposes of s.359A of the Act. Here the extract from VAF cited with approval at [18] of SZBYR makes clear that “information” for the purposes of s.359A of the Act:
“does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”
[Emphasis added.]
In circumstances where the Minister did not address the “positive” expression of the term “information” it was, in my view, incumbent upon him (given the applicant’s assertion as set out at [40] above and the absence of any such response by the Minister as set out at [41] above) to explain which of the characteristics set out in VAF the “calculation” in the current case fell into. The reason for this also is that, as is plain, the word “calculation’ does not appear in the extract quoted above from VAF.
In this regard I note that in his submissions the Minister discounted that the “calculation” was a “subjective appraisal”. (The applicant for obvious reasons agreed.) Nor, as is obvious, is the calculation an “identified gap” or “defect” or “lack of detail or specificity in the evidence”.
Despite the lack in the Minister’s submissions, the question remains, however, as to whether the “calculation” was a “thought process” or a “determination”. Here close attention must be given to what the Tribunal actually did.
The applicant had applied for the visa. As was said in SZBYR, “the reason for affirming the decision under review is a matter that depends upon the criteria for the making of that decision in the first place (SZBYR at [17]).
Those criteria were relevantly set out in cl.572.223 of Schedule 2 to the Regulations. Given what is set out at cl.572.223(2)(a)(i), the applicant was required to provide evidence in accordance with the requirements in Schedule 5A to the Regulations. The Tribunal found that the clause in the Schedule relevant to the applicant’s circumstances was to be determined with reference to reg.1.03 and reg.1.41 of the Regulations. When regard was had to the COEs provided by the applicant to the Tribunal, the Tribunal had regard to the relevant “instrument” for the purposes of reg.1.41 of the Regulations and found that the applicant was required to meet the requirements of Schedule 5A as set out there at “assessment Level 4” (see at Schedule 5A of the Regulations).
The Tribunal addressed the relevant requirements to determine whether the applicant met them (see at [18] at CB 104 “Does The Applicant Meet The Requirements?”).
The individual calculations that then followed under each relevant element of Schedule 5A of the Regulations is set out at [19]
(at CB 104) to [31] (at CB 106). Based on the totality of these calculations the Tribunal found (at [33] at CB 106) that the applicant:
“On the basis of the above, the Tribunal therefore finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and the assessment level to which he is subject, in relation to the necessary financial capacity. Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i).”
In my view, it is may be difficult to see that what the Tribunal has done, was some process of “mere calculation” deprived of any thought, assessment, determination or conclusion. The Minister’s proposal would have the Tribunal member as a mere “simple” cipher in the disposition of the review.
In my view, this is not the case. This was not a process deprived of human intervention, consideration, or thought. For example, this is not a situation as envisaged elsewhere in the Act, with “automatic” cancellation of student visas (s.137J of the Act). In that situation, a visa is cancelled by the operation of the law where certain preconditions are met. That is, without direct human intervention.
Although the Minister’s argument gathers force when regard is had to the prescriptive, it may even be said highly prescriptive, and directive, nature of the Regulations, there is, in my view, sufficient intervention by the Tribunal in the “calculation” in the current case to say that some “thought process” took place in the application of the regulatory requirements to the facts presented by the applicant and as found by the Tribunal.
The process of “determination” or “calculation” undertaken by the Tribunal involved evidence, that is “information” provided by the applicant, either for the purposes of his visa application or the review. I note that, as such, that information is exempt from the obligation in s.359A(1) of the Act by the operation of s.359A(4)(b) or (ba) of the Act. That information was then applied by the Tribunal to those relevant parts of the Regulations that the applicant needed to satisfy before the visa must be granted to him.
Ultimately, whether that process is characterised as a “determination” or a “thought process” has no practical effect. Both are, on the authority of VAF and SZBYR, not “information” for the purposes of s.359A of the Act. In my view, both are apt characterisations of what the Tribunal has generally done, and certainly both are apt descriptions, in themselves, of different parts of the analytical process of the calculation and, importantly, the outcome of that process.
In my view the process undertaken by the Tribunal, as described at [47] to [50] above, can be characterised as either a “determination” or a “thought process”, or a “thought process” including constituent “determinations”. Further, the outcome of that process, that is the Tribunal’s finding that the applicant was required to provide evidence that he had access to $53,300.00 such as to meet the relevant financial requirements for the grant of the visa, and its finding that he had not done so (see [31] – [33] at CB 106), can also be characterised as a “determination”. Therefore, both the process of calculation in reaching the conclusion, and the conclusion, itself, do not fall within the meaning of the term “information” for the purposes of s.359A of the Act.
I should note, for the sake of completeness, that before the Court, the applicant sought to distinguish, or “explain”, what was said in VAF, as approved in SZBYR, with reference to some of the authorities referred to by the majority in that case. (See VAF at [24]):
“As to the first of these, there is now a considerable body of case law concerned with the compass of the term ‘information’ in its s 424A(1) setting. The following propositions emerge from it:
(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [104]. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74;
(ii) the word ‘information’ in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19] – [22]; and
(iii) the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; appr [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276 at [26] – [29].”The applicant submitted that the authorities referred to above dealt with different matters to those in the current case. For example Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 was a case involving the applicant’s credibility. Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 dealt with information generally by the Tribunal, but did not make “subjective appraisals”. Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 was about perceptions of lack of detail. WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276 was a case about prior inconsistent statements.
The Minister characterised that submission by the applicant as an attempt to “undermine” what was said in VAF and approved by the High Court in SZBYR. The Minister’s use of this term was, in the circumstances, unnecessary. I did not understand the applicant to be putting to the Court that it should ignore what was relevantly said in VAF and SZBYR. Rather, I understood the applicant to be seeking to give some context to what was said in VAF such as to persuade the Court to a particular understanding of it.
The applicant sought to argue that the matters relevant to those authorities, and to VAF (and for that matter SZBYR), were the assessment of “personal characteristics” of the respective applicants and how they presented their cases. That is, how each applicant “gave his evidence” or “how he interviewed at the Tribunal”.
The applicant submitted that, by contrast, the assessment of those “personal characteristics” was “different to a black letter calculated number which is arrived at by following the formula in the Regulations” and that the “calculation” in the current case was “not a personal subject issue”. He said it was “a matter capable of calculation and analytical and directive in its nature”.
It is here, with that latter submission, that the difficulty for the applicant plainly emerges. Here, the applicant agrees with the Minister’s characterisation of what the Tribunal has done as being, a “calculation”, albeit of an analytical character, and directive in nature, based on the application of certain information to the Regulations. The applicant’s attempt to distinguish between a “subjective” appraisal and an “objective” calculation does not address what is at the core of what the Tribunal has done as set out above at [47] to [50]. Nor does it address the plain language of the relevant parts of VAF and SZBYR.
In all, the Tribunal’s “calculation”, including the process of calculation, a “thought process” or “determination” and the outcome, which was also a “determination”, are not “information” for the purposes of s.359A of the Act. The first part of the ground is not made out.
Ground One: Part Two
The applicant’s second argument was based on s.353 and s.357A of the Act:
“353 Tribunal’s way of operating
(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case
…
357A Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.”
[Emphasis in Original.]
The applicant referred to the joint judgment in Minister for Immigration and Citizenship v Li [2013] HCA 18 (per Hayne, Kiefel and Bell JJ) (“Li”). He submitted that the High Court there considered the “issue” relevant to the applicant’s case in these proceedings.
The applicant relies on Li at [58]:
“In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review. The act of the Tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole. The applicant argues that he was not treated “fairly” and “justly” by the Tribunal because at the hearing with the Tribunal there was no indication given to him about the amount of money in respect of which he would need to provide evidence of having access to, such that he would then satisfy the relevant regulatory requirement.”
[Emphasis Added]
The following must be noted. The applicant said he relied on, or referred to, s.353 of the Act. However, he ultimately also submitted that, in the joint judgment, it “appeared” that the High Court in Li accepted the Minister’s submissions as to the nature of s.353 of the Act. Those submissions were contrary to the applicant’s case now. It is not necessary, therefore, to go into greater detail for the purposes of this judgment beyond noting what the High Court said in Li at [53]:
“It was also observed in Eshetu [110] that s 420 must be understood in its statutory context. The same may be said of s 353. As mentioned, it appears in Pt 5, Div 4, which is entitled ‘Exercise of Tribunal's powers’ and the section itself is headed ‘Tribunal's way of operating.’ Section 353 is followed by provisions dealing with the constitution of the Tribunal for the purpose of the exercise of its powers. But it is Div 5 which deals with how the Tribunal is to conduct a review.”
Further, to the extent that the applicant referred, or relied, on s.357A of the Act, I agree with the Minister that this was not the basis on which the Court decided Li (see Li at [62]). That basis was that, the exercise of the Tribunal’s discretion pursuant to s.363(1)(b) of the Act dealing with the Tribunal’s power “to adjourn the review from time to time”. The joint judgment made plain that such a discretionary power must, given it is statutorily conferred, be exercised reasonably (see Li at [63]).
One difficulty for the applicant in relying on Li, in the current case, is that he did not satisfactorily explain what discretionary, statutory power the Tribunal was said not to have exercised reasonably.
In this regard it was not clear whether the applicant sought to rely on what was said in Minister for Immigration and Citizenship v Li [2012] FCAFC 74 at [8] – [22] (per Greenwood and Logan JJ) in relation to whether s.357A of the Act was an “exhortative” provision or created some “additional” procedural fairness obligation. (However, see Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 and Li at [96] per Gageler J.)
In any event, the thrust of the applicant’s complaint was that s.357A(3) of the Act provides that the Tribunal “must act in a way that is fair and just”. He submitted that it did not do so because at the hearing there was no indication that he would need to provide evidence that he needed $53,300.00 to meet the financial capacity “part” of the Regulations.
Here, some attention must be given to the sequence of relevant events in the applicant’s circumstances as they developed both before, and during, the conduct of the review.
At the time of the hearing before the Tribunal, the applicant had no COE as was required by the Regulations if he were to be granted the visa. The Tribunal gave the applicant the opportunity to provide a COE (see T9 to T10). In effect, this meant that the applicant was given the opportunity, at the hearing, to enrol in a course so he could provide a COE. Given that the applicant’s earlier COE had been cancelled at least over one and a half years earlier, and that he had at some time been able to re-enrol (T9), his failure to provide a COE by the time of the hearing was not relied on by the Tribunal to determine the matter at that time. That is, certainly, fair and just.
It is clear that the matter of “sufficient funds”, of itself, was known, or should have been known to the applicant since the time of the delegate’s decision, if not earlier, given the delegate’s letter of 24 March 2011 (CB 27). The applicant took steps after the Tribunal hearing to obtain the necessary certificate. He obtained two COE’s ([5] at CB 99).
The applicant was represented before the Tribunal by a firm of “Immigration Lawyers”. The partner of the firm who signed the letter, amongst other things, which accompanied the lodgement of the application for review, is described as an “Accredited Specialist in Immigration Law” and a registered migration agent (CB 36.8).
As the Tribunal noted in its decision record ([8] – [11] at CB 100) and, as is plain from the Regulations, the relevant regulatory scheme is as follows. The criteria for the grant of the (subclass 572) visa, as set out in cl.572 of Schedule 2 of the Regulations, require, in circumstances where the “enrolment criteria” are met, that the applicant also meets certain other criteria.
Relevant in the applicant’s case, as is plain from the Regulations, was whether the applicant met cl.572.223. The first of these requirements (cl.572.223(2)(a)(i) of the Regulations) was that the applicant must provide evidence in accordance with the requirements of Schedule 5A of the Regulations.
As the Tribunal said (at [9] at CB 100):
“…The relevant clause in Schedule 5A is dictated by the assessment level to which the applicant is subject.”
[Emphasis Added].
Amongst other things, and noting exceptions not relevant to the applicant’s circumstances, the assessment level is linked to the “…relevant course of study for the subclass of student visa…” ([11] at CB 100, see regs.1.41, 1.03 and 1.42(1)).
Once the particular assessment level is determined (in this case, “level 4”, [11] at CB 100 to CB 101) attention is directed to the various requirements as set out at Schedule 5A, and as relevant to the applicant’s “assessment level” ([15] at CB 101 to CB 104).
It would be clear to any accredited specialist in migration law, and a registered migration agent, that a change in the course of study (to which the “new” COE’s related) would, in the applicant’s circumstances, have resulted in a different calculation as to financial requirements, than that which applied to his earlier (cancelled) course.
The “calculations” done by the Tribunal in this case were not arcane, or obscure, on any reading of the Regulations. While a lay person, such as the applicant, on his own, may have had some difficulty, it is reasonable to assume that when his representatives provided the “new” COEs (CB 91), under cover of a letter signed by the relevant “partner in the firm”, he would have known the effect this would have on the subsequent calculation.
The applicant has not provided any evidence to the Court to say his lawyer or migration agent was not competent, or was negligent. Nor has he even sought to make any such argument on what is before the Court.
In this context, and in these circumstances, I agree with the Minister that even if s.357A(3) of the Act had some “independent operation”, the Tribunal’s approach cannot be said to have not been fair and just in the circumstances. The applicant’s “second” particular is not made out.
Conclusion
The sole ground of the application, as explained, is not made out. The application should be dismissed. I will make an order accordingly.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 23 December 2013
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