Lim v Minister for Immigration

[2015] FCCA 411

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 411

Catchwords:
MIGRATION – Application for an extension of time – substantive application seeking review of decision of the Migration Review Tribunal – no satisfactory explanation for the delay – not in the interests of the administration of justice to extend time – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.65, 424A, 359A, 476, 476

Migration Regulations 1994 (Cth), Schedule 2, Schedule 8

SZMFJ  v Minister for Immigration & Anor [2009] FMCA 771
SZBYR  v Minister for Immigration and Citizenship [2007] HCA 26
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
SZMPT v Minister for Immigration and Citizenship [2009] FCA 99
SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890
Minister for Immigration and Citizenship v  SZLFX [2009] HCA 31
VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851; (2006) 154 FCR 302
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259

Applicant: HENGKI NOVIYANTO LIM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 127 of 2014

Judgment of: Judge Nicholls

Hearing date: 11 November 2014

Date of Last Submission: 11 November 2014

Delivered at: Sydney

Delivered on: 26 February 2015

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie of Dobbie and Devine Immigration Lawyers

Counsel for the Respondents: Mr D Hughes

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application to extend time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.

2. The applicant pay the first respondent’s costs set in the amount of $ 6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 127 of 2014

HENGKI NOVIYANTO LIM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) seeking an extension of time within which to make a competent application pursuant to s.476 of the Act (“the substantive application”). Mr Hengki Noviyanto Lim (“the applicant”) was the subject of a decision of the Migration Review Tribunal (“the Tribunal”) made on 10 December 2013 which affirmed the decision of the Minister’s delegate to refuse a Student (Temporary) (Class TU) visa (“the visa”) to him.

2. Section 477(1) of the Act provides that an application made pursuant to s.476 of the Act must be made to this Court within 35 days of the date of the making of the Tribunal’s decision. In the current case the application was made three days after the expiry of the 35 day period. On this basis, the application pursuant to s.476 of the Act is not competent.

3. Section 477(2) provides that upon written application by an applicant, the Court may extend the time for the making of the substantive application if it considers it is in the interests of the administration of justice to do so. The applicant has made such an application in writing which is the subject of these proceedings.

4. The elements for consideration, relevant to what is in the interests of the administration of justice, are not exhaustive, and arise from the circumstances presented. In SZMFJ v Minister for Immigration & Anor [2009] FMCA 771, I proposed a number of elements that may commonly arise. Of these, the following are relevant for consideration in the current case. The extent of the delay, and satisfactory explanation for the time, and whether there is any merit in the ground of the proposed substantive application such that it is in the interests of the administration of justice to extend the time.

5. The evidence before the Court in relation to the delay is the affidavit of Mr Lim of 19 June 2014 (read with no objection) and the affidavit of Ms Chloe Ann Hillary, solicitor, of 26 March 2014 (read with no objection).

6. The extent of the delay is not long. The applicant’s explanation, as put before the Court, was that the applicant did not receive the Tribunal decision until some six weeks after the date of its making. The Minister did not wish to be heard on this issue. In the circumstances, while there may be some matters that could argue against the applicant’s case, on balance, I find that the matter of the delay is not such as to refuse the extension of time. Both parties agreed that the question of the extension of time should be resolved with reference to the grounds of the proposed substantive application.

Grounds of the Proposed Substantive Application

1. That application, as further amended on 30 October 2014, contains two grounds:

   “1. The Tribunal failed to comply with s.359A of the Migration Act 1958

   Particulars

   (A) The Tribunal failed to comply with s359A of the Migration Act 1958 (‘the Act’).

   (i) Section 359A relevantly provided:

   359A 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.

   (2) The information and invitation must be given to the applicant:

   (a) except where paragraph (b) applies—by one of the methods specified in section 379A; or

   (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

   (3)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

   (4)  This section does not apply to information:

   (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)  that the applicant gave for the purpose of the application for review; or

   (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)  that is non‑disclosable information.

   (ii) The Tribunal relied on the following information, as a reason or part of the reason, for affirming the delegate’s decision:

   (a) That the last substantive visa held by the Applicant was subject to Condition 8516 (CB134 at [6]).

   (b) PRISMS records for the Applicant held by the Department of Education, Employment and Workplace Relations in relation to the cancellation of Confirmation of Enrolments for the Applicant (CB175-109).

   (iii) The Tribunal relied on the information at Particular (ii) (a) above to find that the Applicant last held substantive visa that was subject to Condition 8516.

   (iv) The Tribunal relied on the information at Particular (ii)(b) above to find that the Applicant had not complied with Condition 8516, of which his last held substantive visa was subject.

   (v) Subsections 359A(1)(a) and 359A(1)(b) required the Tribunal to give that adverse information to the Applicant and to ensure, as far as was reasonably practicable, that the Applicant understood why the information at Particular (ii) was relevant to the review for the purposes of clause 572.235 of Schedule 2 of the Migration Regulations 1994, and the consequence of that information being relied on in affirming the decision that is under review. The Tribunal failed to so do, thereby committing jurisdictional error.

   2. The Tribunal failed to conduct the review required

   (A) The Tribunal failed to conduct the review required:

   (i) The Tribunal found that the Applicant had not complied substantially with Condition 8516, such that he did not satisfy clause 572.235.

   (ii) The Tribunal failed to conduct the review required because it did not determine which of the primary criteria contained in the subclass 572 visa criteria the Applicant is said not to have continued to satisfy of this last held substantive visa. The Tribunal was not permitted to find that the Applicant had not complied with Condition 8516 in the absence of that determination.

   [Emphasis in the original.]

2. Also in evidence before the Court is a bundle of relevant documents tendered by the Minister (“Court Book” – “CB”). The following is not in dispute between the parties.

3. The applicant is a citizen of Indonesia who applied for the visa on 11 May 2012 (CB 1 to CB 6). This was refused by the Minister’s delegate on 25 June 2012 (CB 29 to CB 30). The applicant applied for review to the Tribunal on 13 July 2012 (CB 32 to CB 42).

4. Amongst other criteria for the grant of the visa, the Tribunal was required to consider cl.572.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). It was, at the relevant time, in the following terms (and see applicant submissions at [22] and respondent’s submissions at [5]):

   “572.235

   …If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.”

5. The Tribunal found that the applicant did not satisfy cl.572.235 of the Regulations because it had earlier found that the applicant had not complied with condition 8516 of Schedule 8 of the Regulations, which was a condition attaching to an earlier student visa held by the applicant ([15] at CB 135).

6. Condition 8516 of the Regulations was in the following terms (and see respondent’s written submissions at [7]):

   “The holder must continue to be a person who would satisfy the primary or secondary criterion, as the case requires, for the grant of the visa.”

Consideration

Ground One

1. Ground one of the proposed substantive application asserts that the Tribunal failed to comply with s.359A of the Act. The following parts of s.359A of the Act are relevant to the applicant’s ground:

   “359A 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…”

2. The applicant’s submission was that in making its finding that the applicant had not complied with condition 8516 of the Regulations, the Tribunal relied on two pieces of information.

3. First, that the last substantive visa held by the applicant was subject to condition 8516 of the Regulations (the applicant refers to the Tribunal’s decision record at [6] (at CB 143)).

4. Second, records (“PRISMS”) held by a government agency concerning aspects of the applicant’s study history. In particular, the cancellation of the applicant’s enrolment for certain academic studies.

5. The applicant’s complaint is that the Tribunal failed to comply with s.359A(1)(a) of the Act in relation to both pieces of information, and s.359A(1)(b) of the Act in relation to the second.

6. In relation to the first piece of ‘information”, it is of note that the applicant does not assert that condition 8516 of the Regulations was itself “information” for the purposes of s.359A of the Act. The assertion is that the “information” was that the last substantive visa held by the applicant was subject to this condition.

7. Both parties proceeded on the basis that this was “information” that fell within s.359A(1)(a) of the Act. Both parties were content to rely on the Tribunal’s decision record, and proceeded on the basis that this was information that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision.

8. In this context, neither party referred to the reasoning of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) (at [17]) that highlighted the temporal focus that the words “would be” as they appear in s.424A of the Act (with analogous reference in the current case to s.359A of the Act) imposes on that section (see also SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [204] “prior to the decision being made…”).

9. In any event there may be circumstances where the Tribunal’s published reasons may inform what the Tribunal considered “would be” the reason, or a part of the reason for affirming the delegate’s decision, at some anterior point in time (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 Siopis J). In the current case, the applicant did not attend at any Tribunal hearing. Therefore, the circumstances of this case lack the “usual” opportunity for evidence, as at an antecedent point in time (to the publication of the decision record), as to what the Tribunal relevantly considered was the reason for affirming the delegate’s decision. In any event it is sufficient to consider the matter on the basis by which it has been argued by the parties.

10. The Minister’s argument in this case proceeds from the proposition that condition 8516 of the Regulations applied to the applicant’s earlier visa. That information was given to the Tribunal by the applicant and therefore fell within the exception to s.359A(1), as set out at s.359A(4)(b), of the Act. The Minister says the applicant gave the delegate’s decision record to the Tribunal. That decision record contained that information.

11. The applicant does not dispute that the applicant gave the delegate’s decision record to the Tribunal. Rather, the applicant argues that the information (as described above) was not contained in the delegate’s decision record. That is, the information that condition 8516 of the Regulations attached to the applicant’s earlier visa.

12. To make good this proposition, the applicant submitted that, relevantly, the delegate did not disclose any of the analytical process that was required in coming to the conclusion that the applicant did not satisfy cl.572.235 of the Regulations because he failed to satisfy condition 8516 of the Regulations.

13. That is, the delegate simply found, and stated, in the decision record, that the applicant did not meet the relevant criteria for the visa for which he had applied. The only reason given for this was said to be because of a failure to satisfy the condition as it applied to an earlier visa. But, the delegate did not express any link, or attachment of that condition to the earlier visa. The delegate simply stated the conclusion (see for example CB 43.8 and/or CB 48.7)

14. The applicant also submitted that there was no reference in his application for the visa to this information. Nor, therefore in context, was there any reference to it in any written material given by the applicant, for the purposes of the application, for the visa, nor in the decision which was the subject of the review by the Tribunal. That is, there was no evidence that the Minister could rely on s.359A(4)(ba) of the Act.

15. It is the case that the delegate’s decision record makes no express reference to the attachment of the condition to the previous visa held by the applicant.

16. However, on balance, I agree with the Minister that a reading of the delegate’s decision makes it clear that the reason the applicant did not meet the criteria at cl.572.235 was because of a failure to meet condition 8516 of the Regulations. That was made expressly clear in the delegate’s decision. Further, the purpose of condition 8516 was set out in the decision record (see CB 49):

    “The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.”

17. That this was information contained in the delegate’s decision record is made clearer with reference to the second particular. It is important to note, again, that the second particular identifies the information as being “PRISMS” records, which the Tribunal was said to have relied on, to find that the applicant had not complied with condition 8516 of the Regulations.

18. To make good this proposition the applicant refers to copies of extracts from the PRISMS system (reproduced in the Court Book at CB 75 to CB 109).

19. The applicant submitted that given there was no reference in the application for the visa, or in the delegate’s decision, to the class of visa that the applicant previously held, the Tribunal’s reference to his having held, previously, a subclass 572 visa must have been sourced from the PRISMS records (at [6] at CB 134 – “the applicant’s last substantive visa was a 572 visa that was subject to condition 8516.”)

20. Therefore, the submission was that the Tribunal relied on the PRISMS records to find that the applicant had not complied with condition 8516 of the Regulations which attached to his earlier visa. Here the applicant’s argument attempted to draw on the temporal focus in s.359A of the Act as explained in SZBYR (see [20] above).

21. It may be that the Tribunal looked at the PRISMS records as reproduced in the Court Book. The applicant pressed that it did. The Minister speculated as to a number of reasons for the existence of these copies of the PRISMS records on the Tribunal file.

22. It must be remembered that s.359A of the Act does not require the Tribunal to give, in writing, to the applicant everything, or anything, that appears on its files. The relevant obligation is confined to the Tribunal giving the applicant clear particulars of information that it considers (with reference to a point in time anterior to the publishing of the decision record) would be the reason, or a part of the reason, for affirming the delegate’s decision.

23. The mere existence of the documents, without anything further, while giving rise to speculation about their existence on the file, does not, on balance, provide evidence such that it could be said that the Tribunal considered anything, or everything, in these PRISMS records would be the reason, or a part of the reason, for affirming the delegate’s decision.

24. As the Minister submits, there must be evidence that the applicant is able to point to that, at some anterior point to the decision, the Tribunal considered information in the PRISMS record to be the reason, or a part of the reason, for the affirmation of the delegate’s decision (Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 at [24]).

25. The emphasis here is on the evidence of information that the Tribunal actually considers would be the reason, or a part of the reason, for affirming the delegate’s decision. In my respectful view, in this regard, the current case provides an example of what was contemplated by the authorities referred to at [21] above. That is, while noting the requirement for the temporal focus, at a point anterior to the publication of the reasons for decision, that decision record can assist in providing evidence of what the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision.

26. As set out above, the applicant drew attention to “information” which he describes as being information, to the effect, that the applicant did not comply with condition 8516 of the Regulations, which was a condition attached to his last substantive visa.

1. In this regard, the Tribunal stated in its decision record that the delegate’s decision “details that the applicant’s last course of study was completed on 15 January 2010 and his next course started on 18 July 2011. A gap of 18 months between the two courses” ([13] at CB 135.5).

2. Those dates, and that “gap”, were the subject of correspondence from the delegate, to the applicant, dated 18 May 2012 (see CB 8.4). The Tribunal noted this in its decision record. It also noted the applicant’s reply of 12 June 2012 (CB 10 to CB 11 and [13] at CB 135.6)

3. Importantly, the delegate’s decision record makes specific reference to those dates, the “gap” of 18 months in the applicant’s study, and the applicant’s response given to the delegate (see CB 30 for a copy the delegate’s decision and CB 48, for the identical copy which was given by the applicant to the Tribunal, see also CB 42 – the application for review – “Attachments”: “A copy of the decision from the Department of Immigration and Citizenship”).

4. As set out above, the state of the evidence before the Court is such that the Tribunal cannot be said, on balance, to have had regard to the PRISMS record in relation to this “gap”. However, even if the Tribunal did have any such regard, the statement in its decision record, that it expressly had regard to the delegate’s decision for this purpose (that it had regard to the “gap”) is sufficient to find that there is evidence that the information was given by the applicant to the Tribunal for the purposes of the review. Therefore the exception at s.359A(4) of the Act is engaged (VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851; (2006) 154 FCR 302 at [48]. Here the information was “conveyed from the applicant to the Tribunal.”)

5. I should also note that the applicant submitted that there was no reference in the delegate’s decision record to the applicant’s previously held visa being a subclass 572 visa. That is the case. However the two pieces of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision, on the evidence presented, were that condition 8516 of the Regulations attached to his previous visa (irrespective of its subclass), and the gap in the period between the two courses of study in which the applicant had been enrolled. Both of which fell within the exception in s.359A(4)(b) of the Act. In all, therefore, ground one is made out.

Ground Two

1. Ground two asserts that the Tribunal failed to properly conduct the review. The particulars direct attention to the Tribunal’s finding that the applicant had not complied with condition 8516 of the Regulations such that he did not satisfy cl.572.235 of the Regulations for the grant of the visa.

2. The explanation for the assertion of error is that, in making that finding, the Tribunal did not determine which of the primary criteria, set out in the suite of criteria relevant to subclass 572, the applicant is said not to have continued to satisfy, in relation to his previously held visa. The central proposition of the complaint is that the Tribunal erred in not making that determination.

3. In written submissions, the applicant relied on Minister for Immigration and Citizenship v  Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) at [76]:

   “As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

4. Before the Court the applicant explained that he relied on Li for the proposition that it is a “core” function of the Tribunal to review the delegate’s decision. That of course must be accepted as a general proposition.

5. The reliance on Li was also explained, specifically, with reference to Li at [76] (per Hayne, Kiefel and Bell JJ). The applicant submitted that the reference there to “unreasonableness” was linked to the requirement that the Tribunal conduct the review consistent with the proper exercise of its jurisdiction.

6. The Minister submitted that Li was a case dealing with the question of whether the exercise of a particular discretionary power was legally unreasonable. The Minister’s position was that the ground does not seek to impugn the way the Tribunal exercised such a power, but it is focussed on the Tribunal’s conduct of the review, and whether that invoked unreasonableness.

7. The Minister’s submission was that, in essence, the applicant’s attack was to assert that the Tribunal’s reasons as to why it was not satisfied, that the applicant met the criteria for the grant of the visa , such that the visa must be granted (s.65 of the Act), were unreasonable. Therefore, Li was not of assistance in these circumstances.

8. Before the Court, the applicant agreed with the Minister that the “lead authority” on this point was as explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) per Crennan and Bell JJ at [130]-[131], and Heydon J at [78]. I therefore understood the applicant’s position to be that the Tribunal’s decision was unreasonable, as that is explained in SZMDS, and that given what was relevantly said in Li, such unreasonableness would, in the circumstances of this case, constitute a failure to conduct the review, as explained in Li.

9. It is not necessary to consider the dispute between the parties as to whether Li applies in the circumstances of this case. That is because for the reasons that follow, I agree with the Minister that the Tribunal’s decision was not unreasonable in the sense as explained by the plurality in SZMDS. Further, I do not agree with the applicant that the Tribunal’s decision lacked an “intelligible justification”, and therefore was unreasonable.

10. The applicant’s argument was as follows. The task for the Tribunal was to consider whether it would be satisfied that the applicant relevantly met cl.572.235 of the Regulations. In this task, the Tribunal was required to identify the criterion which the applicant satisfied at the time he was granted the earlier, or last, substantive visa. This was the criteria which the Tribunal found he no longer satisfied at the time of it decision, and therefore did not comply with condition 8516 of the Regulations which was attached to the last substantive visa.

11. The applicant referred to the relevant regulations, proceeding as he submitted, on the assumption that the earlier substantive visa was a subclass 572 visa. In short, the submissions were that there are “various” criteria relevant to condition 8516 of the Regulations (note the terms of condition 8516 as set out at [12] above).

12. The Tribunal’s error was said to be the failure to identify the particular substratum, amongst the “primary” or “secondary” criteria as referred to in condition 8516 of the Regulations, that applied to its relevant analysis.

13. The applicant’s ground, as explained, requires a focus on the Tribunal’s relevant reasoning and its relevant findings. That reasoning, leading to the state of non satisfaction, and the findings that informed it, are as follows.

14. As stated above, the applicant applied for a Student (Temporary) (Class TU) visa. There are a number of relevant subclasses ([2] at CB 134)). The Tribunal noted that the applicant was not, at the time of decision, enrolled in, nor did he have an offer of enrolment, in a course of study. The inference that can be drawn, was that an applicant for a student visa would have evidence of some intention to study. It nonetheless proceeded to consider the application in relation to a subclass 572 visa ([5] at CB 134).

15. The Tribunal identified the issues in the case before it, as being whether the applicant satisfied cl.572.235 of the Regulations. This required the applicant, as at the time of the Tribunal’s decision, to have complied substantially with the conditions of the last substantive visa held by him ([5] at CB 134).

16. That last substantive visa was a subclass 572, which had condition 8516 attached to it. The question the Tribunal identified, that needed to be answered in that light, was whether the applicant satisfied, in effect, condition 8516 of the Regulations ([6] at CB 134). That condition was that the holder of the visa, “…must continue to be a person who would satisfy the primary or secondary criteria…for the grant of the visa” (see [6] at CB 134).

17. Having regard to the delegate’s decision, there was gap of 18 months between the applicant’s previous course of study, that he completed, and another course in which he subsequently enrolled. The applicant provided an explanation for this ([13] at CB 135).

18. The Tribunal did not accept that the explanation given by the applicant, adequately explained why he did not enrol, or undertake, any study in that 18 months ([14] at CB 135). On this basis, the applicant had not subsequently complied with condition 8516, and therefore, did not satisfy cl.572.235 of the Regulations ([15] at CB 135). The delegate’s decision was affirmed on this basis ([16] at CB 136)

19. It is the case, as the applicant submits, that there are “gaps” in the Tribunal’s expression of its reasoning, as set out in the decision record. The question for the Court is whether those “gaps” are such as to make the decision unreasonable or, even, whether the Tribunal’s reasoning, as expressed, lacks an “intelligible justification” for the decision.

20. It is the case that Tribunal decisions are meant to inform as to the reason, or reasons, for the decision made. In assessing the reasonableness of a decision what is said in the decision record, by the Tribunal member, is the best evidence of that reasoning process leading to the decision. As the applicant properly submitted, it is not for the Court to make findings of fact that should have been made by the Tribunal.

21. However, Tribunal decisions are meant to be read fairly, holistically and with meaning derived contextually. They should not be read with an “eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at [30] – [31] per Brennan CJ, Toohey, McHugh and Gummow JJ).

22. The thrust of the applicant’s complaint now, is that in its reasoning, the Tribunal did not identify the particular criteria in the subclass 572 visa (the last substantive visa) which required enrolment in a course of study. That is demonstrably the case.

23. However, the Tribunal’s decision is to be read fairly, and with reference to the context in which it arises. In the current case that context is that the applicant applied for a student visa. A clear inference to be drawn from that context, was that the applicant, as a student, should be enrolled in a course of study. This statement is not a finding made now by this Court, but a rational inference to be drawn from the circumstances, and as set out by the Tribunal in its decision record.

24. I agree with the Minister that in that context, the Tribunal’s reference to condition 8516 of the Regulations could only be understood, and indeed, is reasonably understood, as being that there was a requirement that a student be enrolled in, and remain enrolled in, a course of study.

25. In this regard, the Tribunal’s references to the delegate’s decision record are important. The reference in the Tribunal’s decision record  to what the delegate’s decision “details” ([13] at CB 135), is that there was a “gap” of 18 months between the applicant’s course of study and the “start” of his next academic course. The delegate’s reasons, as expressed in that decision record, were that the applicant needed to comply with the conditions of his previous student visa. A student visa holder is expected to study. The applicant did not study for 18 months. The Tribunal, for the reasons that it gave, was of the same view. It’s finding that the applicant had not provided an adequate explanation for the “gap” in his study was reasonably open to it on what was before it.

26. In essence, the rationale underlying the Tribunal’s decision, as fairly read from the decision record, is that the fact of the applicant’s lack of enrolment in a course of study, which was not adequately explained, meant that he did not comply with a condition of the previous student visa (a subclass 572) visa that he held. That rationale is a fair reflection of the Tribunal’s reasoning. It is not unreasonable or irrational. It also provides the “intelligible justification” for the Tribunal’s decision to affirm the delegate’s decision. In all ground two is not made out.

Conclusion

1. The grounds of the proposed substantive application lack such merit as to support the extension of time. It is appropriate to refuse the application for the extension of time made pursuant to s.477(2) of the Act. I will make that order.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 26 February 2015