Liu v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 667
•25 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Liu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 667
File number(s): SYG 591 of 2022 Judgment of: JUDGE GOODCHILD Date of judgment: 25 July 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – review of decision – Student (Temporary) (Class TU) visa – failure to exercise discretionary powers – failure to adjourn s.363(1)(b) of Migration Act1958 (Cth) – failure to write to the applicant to request further information s.359(2) of Migration Act1958 (Cth) – whether Tribunal not postponing the decision and not writing to the applicant inviting further information exercised its discretion unreasonably – application granted. Legislation: Migration Act 1958 (Cth), ss.359, 359A, 359C, 379C, 360.
Migration Regulations1994 (Cth), Schedule 2.
Cases cited: BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660
Kaur vMinister for Immigration and Border Protection [2014] FCA 915
Leev Minister for Immigration and Citizenship [2007] FCAFC 62
Minister for Home Affairs v DUA16 [2020] 271 CLR 550
Minister for Immigration and Border Protection vSZMTA [2019] 264 CLR 421
Minister for Immigration and Border Protection vSZVFW [2018] 264 CLR 541
Nathanson vMinister for Home Affairs [2022] 403 ALR 398
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of last submission/s: 4 December 2023 Date of hearing: 4 December 2023 Place: Sydney Counsel for the Applicant: Ms Hooper Solicitor for the Applicant: Lexsons Law Firm Counsel for the Respondents: Mr Johnson Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 591 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WEI-CHENG LIU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
25 JULY 2024
THE COURT ORDERS:
1.That the name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.That the application is granted.
3.That the decision of the Administrative Appeals Tribunal be quashed.
4.That a writ of mandamus issue directing the Administrative Appeals Tribunal, to determine the Applicant’s application according to law.
5.That the First Respondent pay the Applicant’s costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GOODCHILD
INTRODUCTION
By an application lodged on 15 February 2023, the applicant seeks review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the first respondent, the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”), refusing to grant the applicant a Student (Temporary) (Class TU) visa (“the visa”) on the ground that the applicant did not meet the criteria for the grant of the visa in clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
Clause 500.212 (“the genuine temporary entrant criterion”) of the Regulations provides relevantly as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a) having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
(b)because the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) because of any other relevant matter.
The question in this case before the delegate, and then the Tribunal, was whether the applicant was a genuine temporary student.
The principal question in this case is whether the Tribunal acting reasonably, in the particular circumstances of this review, could have proceeded to not exercise its discretion to adjourn the review pursuant to s.363(1)(b) of the Migration Act 1958 (Cth) (“the Act”) and not to exercise its discretion to write to the applicant s.359(2) of the Act prior to making its decision.
For the reasons explained below, the Court has found that the applicant has established that the Tribunal decision was legally unreasonable, and the Court grants the application for judicial review.
BACKGROUND
The following background is derived from the materials in the Court Book, and the detailed submissions filed by the parties. Unless otherwise stated, the following matters are common ground.
The applicant is a citizen of Taiwan. The applicant applied for a Student (Class TU) (Subclass 500) visa on 7 December 2019. The email address in his visa application was his own. The applicant sought the Student visa in the vocational education and training sector, and in order to undertake a Diploma and Advanced Diploma of Leadership and Management.
The applicant was not invited to an interview in relation to the visa application. His visa application was refused by a delegate of the Minister on 28 February 2020. The delegate found that clause 500.212 of Schedule 2 to the Regulations was not met, namely that the applicant was not considered to be a genuine applicant for entry and stay as a student.
The applicant sought review of the delegate’s decision by the Tribunal.
On 4 March 2020, the Tribunal wrote to the applicant by email acknowledging his application.
On 10 September 2021, some 18 months later, the Tribunal sent the applicant an invitation to give further information, pursuant to s.359(2) of the Act. The Tribunal’s s.359(2) of the Act invitation included the following text:
Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.
The applicant provided the Tribunal with a completed Request for Student Visa Information form (“RSVI form”). This RSVI form included information about, inter-alia, the applicant’s return travel to his home country, his future enrolments in Australia, details about why he chose to study in Australia, information about his family members resident in Taiwan and information about his future plans. The Tribunal received the applicant’s completed RSVI form. Uploaded with the applicant’s completed RSVI form were two Confirmation of Enrolments (“COEs”) and a document titled “GTE of Wei-Cheng, Liu”. At the time the applicant submitted the RSVI form he held a current COE.
On 2 December 2021 the Tribunal accessed the Provider Registration and International Student Management System (“PRISMS”) records. On this date, the PRISMS records indicated that the applicant was studying an Advanced Diploma of Leadership and Management. The end date for the Advanced Diploma of Leadership and Management was recorded on the COE as 9 January 2022.
The Tribunal again accessed the PRISMS records on 27 January 2022. On this date the PRISMS records indicated that the applicant had completed his Advanced Diploma of Leadership and Management. There was nothing contained in that PRISM record that suggested the applicant had enrolled in another course.
The following day (28 January 2022), the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to comment on or respond to information (by 11 February 2022), being that: “A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you do not hold a current Confirmation of Enrolment in a course of study”.
The applicant did not respond to this s 359A of the Act invitation. By operation of s.379C(5) of the Act the applicant is deemed to have received the invitation. By failing to respond to this invitation the applicant is not entitled to appear before the Tribunal (s.360 of the Act).
On 15 March 2022, the Tribunal made its decision. The Tribunal was not satisfied that at the time of its decision the applicant was enrolled in a course of study and, accordingly found that clause 500.211 of Schedule 2 of the Regulations was not met. In making its decision, the Tribunal mistakenly asserted that the applicant failed to submit the RSVI form
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal recorded that in the circumstances where there was some two years that had elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal, it considered that it would be beneficial for the applicant to provide updated information to the Tribunal.
The decision records the Tribunal writing to the applicant on 10 September 2021 pursuant to s.359(2) of the Act, inviting him to provide information in writing about the course of study the applicant was undertaking and the entry and stay in Australia as a student.
The decision records the applicant responding to the s.359(2) of the Act letter on 23 September 2021. The Tribunal recorded, incorrectly, that the applicant did not complete the questionnaire which the s.359(2) of the Act letter requested to be completed but attached brief written submissions and two confirmations of enrolments noting that the second of these enrolments was due for completion on 9 January 2022.
The Tribunal recorded that on 28 January 2022 it again wrote to the applicant pursuant to s.359(2) of the Act, indicating that it appeared that the applicant was no longer enrolled and did not meet the requirements of clause 500.211 of Schedule 2 of Schedule 2 of the Regulations (“the no COE letter”). That letter stated that if the applicant did not respond by 11 February 2022, a decision may be made on the review without taking any further action to obtain his views on the information and that he will lose any entitlement he might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not respond to the no COE letter. The Tribunal found that the applicant did not provide further information as requested. The Tribunal noted that in the circumstances s.359C of the Act applies and pursuant to s.360(3) of the Act the applicant is not entitled to appear before the Tribunal.
The Tribunal considered whether, in the circumstances, information that the applicant meets the requirements of the Act and Regulations was likely to be forthcoming and whether the applicant has had a fair opportunity to provide relevant information already (my emphasis).
The Tribunal recorded that it gave consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. The Tribunal considered that the applicant had a fair opportunity to provide relevant information and elected not to exercise its discretion to adjourn the review any further to allow the applicant more time.
The Tribunal decided to proceed to make a decision having regard to the information it had before it, including the information previously provided by the applicant to the Department and the Tribunal.
The Tribunal correctly referred to clause 500.211 of Schedule 2 of the Regulations requiring that, at the time of the decision, the student visa application in question must evidence that the applicant is enrolled in a course of study. The Tribunal summarised the provenance and use of the PRISMS database.
The Tribunal decision then considered the significance of the enrolment criterion and correctly recorded that the Tribunal must be presented with evidence that shows the applicant is currently enrolled in a registered course of study and that absent such evidence, a student visa cannot sensibly be granted.
The Tribunal then considered the applicant’s claims and evidence as follows:
27.The applicant’s application which was the subject of the review was to undertake a Diploma and Advanced Diploma of Leadership and Management. The applicant did not complete the questionnaire requested to be completed in the s359(2) letter. This puzzles the Tribunal. The Tribunal undertook a PRISMS search on 27 January 2022. This search indicates that the applicant finished his Advanced Diploma on 9 January 2022 and he has not enrolled in any other courses.
28.On 28 January 2022 the Tribunal sent the no COE letter to the applicant, pursuant to section 359A of the Act. … To date, the Tribunal has not received any response to this correspondence.
29.There is no current confirmation of enrolment for any course(s) presently before the Tribunal.
31.… The applicant has not completed the questionnaire requested to be completed in the s359(2) letter.
The Tribunal then considered whether postponing the determination of the application for review was appropriate and whether it ought to write to the applicant pursuant to s.359(2) of the Act to request information from the applicant. The Tribunal identified that such request would be specifically designed to invite the applicant to produce satisfactory evidence of a current enrolment given that none had been produced. The Tribunal recorded that after consideration of that possible course, it decided against it for the following reasons:
33.Firstly, the Tribunal considers that the applicant has had sufficient time and notice to arrange and produce clear evidence of a current enrolment for the purposes of their application before the Tribunal.
34.Secondly, while the Tribunal may have a general duty to inquire, its role is not to advise and advocate for a particular outcome. If the Tribunal were to write to the applicant again, specifically requesting that he provide further evidence of a current enrolment, implicit in that request would be advise that the applicant’s case as it stands is deficient. It would also suggest that the deficiency is capable of being remedied if the applicant were to take certain affirmative action. In effect, the Tribunal would be assisting the applicant to bolster their case to increase their chances of obtaining a favourable outcome. That is essentially the role of an advocate. It is not a proper or appropriate function for his Tribunal.
35.Thirdly, … writing to the applicant again would frustrate the purposes of the Act. … The Tribunal has already afforded the applicant an opportunity to produce satisfactory evidence of a current enrolment pursuant to section 359(2) of the Act. To provide the applicant with another such opportunity, because they have not produced a satisfactory response cannot be justified.
The Tribunal concluded that on the evidence before it, the applicant did not have a COE. The Tribunal considered that the determinative issue in the applicant’s case had changed as a current COE had not been provided and as the applicant did not meet the regulatory requirements of the grant of a Student visa because there was no evidence satisfying any of the criteria in clause 500.211 of the Regulations the Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa were not met and decided that the decision under review not to grant the visa must be affirmed.
PROCEEDINGS IN THIS COURT
The Amended Application for judicial review lodged by the applicant on 15 February 2023 contains the following grounds:
1.The Tribunal’s exercise of discretion not to further request information from the applicant pursuant to s 359(2) of the Migration Act 1958 (Cth) and/or its exercise of discretion not to adjourn the review pursuant to s 363(1)(b) of the Act was legally unreasonable.
Particulars
a.On 10 September 2021, the Tribunal sent the applicant an invitation to give information, pursuant to s 359(2) of the Act: CB 80.
b. The Tribunal’s s 359(2) invitation included the following text:
‘Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.’
c.The applicant provided the Tribunal with a completed Request for Student Visa Information form. The Tribunal received that completed Request for Student Visa Information form: CB 87.
d.The Request for Student Visa Information form includes information about (inter alia) the applicant’s return travel to his home country, his future enrolments in Australia, details about why he chose to study in Australia, information about his family members resident in Taiwan, and information about his future plans.
e.Uploaded with the applicant’s completed Request for Student Visa Information form were two Confirmation of Enrolments (CoEs) and a document titled ‘GTE of Wei-Cheng, Liu’: CB 96; CoEs at 98-100.
f.The Tribunal accessed ‘PRISMS’ records on 2 December 2021: CB 101. On this date, the PRISMS records indicated the applicant was studying an Advanced Diploma of Leadership and Management.
g.The end date for the Advanced Diploma of Leadership and Management course is recorded on the CoE at CB 100 as 9 January 2022.
h.On 27 January 2022 the Tribunal again accessed PRISMS records: CB 102. On this date, the PRISMS records indicated the applicant had finished his Advanced Diploma of Leadership and Management.
i.On 28 January 2022, the Tribunal wrote to the applicant pursuant to s 359A of the Act inviting him to comment on or respond to information, being that:
‘A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you do not hold a current Confirmation of Enrolment in a course of study.’
j. The applicant did not respond to the Tribunal’s s 359A invitation.
k.On 15 March 2022, the Tribunal made its decision. The Tribunal was not satisfied that at the time of its decision, the applicant was enrolled in a course of study and, accordingly, found that clause 500.211 of the Migration Regulations 1994 (Cth) was not met.
l.The Tribunal at T[5] acknowledged that its review had been protracted and that the applicant’s personal circumstances bearing on the review application may have relevantly changed.
m.The Tribunal in its decision overlooked the applicant’s completed Request for Student Visa Information form: T[6], [27], [31]. The Tribunal therefore did not consider the applicant’s completed Request for Student Visa Information form, in breach of s 359(1) of the Act.
n.The Tribunal referred repeatedly to the applicant’s omission to provide a completed Request for Student Visa Information form. Specifically, at: T[6], T[27], T[31].
o.The Tribunal considered and decided not to exercise its discretion to adjourn the review pursuant to s 363(1)(b) of the Act: at T[12]-[16].
p.The Tribunal considered and decided not to exercise its discretion to write to the applicant to request information pursuant to s 359(2) of the Act: at T[32].
q.The Tribunal in its exercises of discretion pursuant to ss 359(2) and 363(1)(b) proceeded on the incorrect understanding that the applicant had not provided a completed Request for Student Visa Information form. The applicant had done so, and he had completed answers in the form which provided information relevant to a criterion for the grant of the visa.
r.The completion and submission of the Request for Student Visa Information form by the applicant showed an active engagement by the applicant with the Tribunal’s review.
s.The Tribunal’s overlooking of and failure to consider the applicant’s completed Request for Student Visa Information form caused the Tribunal’s exercises of discretion pursuant to ss 359(2) and 363(1)(b) of the Act to miscarry and its exercises of discretion were legally unreasonable.
t.The Tribunal’s errors in the exercise of its discretions were material and therefore jurisdictional. If the Tribunal had not overlooked the applicant’s completed Request for Student Visa Information form, it may not have decided to proceed to its decision on the material before it and may instead have exercised its discretion to obtain additional information from the applicant (cf T[14], T[16], T[32]).
u.The Tribunal’s errors thereby deprived the applicant of the opportunity to engage further with the Tribunal’s review by presenting additional evidence and or submissions direction to his satisfaction of the criteria for the grant of the visa in cl 500.211(a) of Sch 2 to the Regulations.
The gravamen of the applicant’s case is that in circumstances where the Tribunal, in exercising its discretion pursuant to s.359(2) and s.363(1)(b) of the Act, proceeded on the incorrect understanding that the applicant had not provided a completed RSVI form, the Tribunal’s non-exercise of permissive statutory discretionary powers was legally unreasonable.
Counsel for the applicant submitted that the heart of the Tribunal’s error is it proceeding on a factual mistake as to the procedural history of the review and also as to the content of the evidentiary material before it that bore on the satisfaction of the criteria for the grant of the visa.
RELEVANT LEGISLATIVE PROVISIONS
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. Clause 500.211 of the Regulations relevantly provides that at the time of a decision whether or not to grant the student visa, the Tribunal must be presented with evidence that shows that the applicant is enrolled in a registered course of study. Without that evidence, the visa cannot be granted.
The key provisions of the Act relevant to the performance of the Tribunal’s functions and exercise of its powers on this review are at s.359 and s.363(1)(b) of the Act. Section 359 of the Act provides:
Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a)except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b)if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
Section 363(1)(b) of the Act, provides:
Powers of the Tribunal etc.
(1) For the purposes of the review of a decision, the Tribunal may:
(a) …
(b) adjourn the review from time to time;
APPLICANT’S SUBMIISSIONS
It was common ground between the parties that the Tribunal overlooked the completed RSVI form that the applicant had submitted pursuant to the s.359(2) of the Act in response to the invitation given by the Tribunal in September 2021.
The applicant submitted that this was an error of law but accepts that it was not itself jurisdictional – as the Tribunal’s decision did not turn on non-satisfaction of the genuine temporary entrant criterion. The information in the form largely contained information relevant to the satisfaction of the genuine temporary entrant criteria and could not have proven that the applicant was enrolled in a course of study at the time of the Tribunal’s decision in March 2022.
The applicant submitted however, that the fact of the Tribunal overlooking the completed RSVI form had other important consequences which did demonstrate jurisdictional error. The applicant submitted that the Tribunal referred repeatedly to the applicant’s omission to provide a completed form. The applicant pointed to the Tribunal finding the applicant’s failure to provide the RSVI form as “puzzling”. The applicant submitted that this failure, which was not a failure at all, was given prominence in the reasons and bore on the Tribunal’s decision not to exercise its discretion to adjourn the proceedings and its decision not to exercise its discretion to write to the applicant to request further information.
The applicant submitted that both of the Tribunal’s discretionary exercises of power proceeded on the wrong factual premise that the applicant had not provided a completed form and his answers in the form provided responsive information relevant to the criteria for the grant of the visa including the criterion that had been dispositive of the delegate’s decision.
The applicant submitted that the “course of the review” requires the Tribunal to have regard to the course of the review accurately. Where the reasons contain an obvious error, the Court would be slow to conclude that the reasons as they stand, nevertheless provide an intelligible justification for the non-exercise of the powers.
The applicant submitted that the true extent of the applicant’s active involvement with the Tribunal’s review was a matter that the applicant was entitled to have taken it into account by the Tribunal, that the Tribunal did as it was entitled to do, regarded the procedural history of the review is relevant to its exercise of discretion. However, the applicant submitted, the Tribunal did not have regard to that procedural history accurately.
The applicant submitted that the reasons of the Tribunal have to be read holistically and the Tribunal gave particular emphasis and prominence to what it regarded as the omission by the applicant of not completing the form.
The applicant pointed to the Tribunal commending the applicant and his academic progress. The applicant submitted that there is no powerful countervailing factors against affording the applicant a further opportunity to provide information, that it hardly frustrates the purpose of the Act to give an applicant who is, otherwise, engage with the review of further opportunity to satisfy the criteria for the grant of the visa. The applicant submitted that is particularly so in circumstances where it was the passage of time that allowed the applicant to have finished his course and to no longer satisfy the criteria of a current COE.
Counsel for the applicant submitted that if the Tribunal had not overlooked the completed form it may not have decided to proceed to the decision on the material that it had, and it may instead have exercised his discretion differently. Whether the Tribunal may well have decided to obtain additional information on the outcome of that discretionary exercise is simply unknown. Counsel for the applicant submitted that if the Tribunal had invited the applicant to give information at an interview under s.359(2) of the Act, there is no reason to think that the applicant would not have taken up that opportunity and made the best possible use of it.
On materiality, Counsel for the applicant submitted that providing the applicant the opportunity to demonstrate his satisfaction of the criteria for the grant of the visa does not, as the Minister submitted, involve the Tribunal invite adopting an advisory type role. The Tribunal had to reach a correct and preferable decision on the material before it and its discretionary powers are an aid to that function. The error was therefore material.
Counsel for the applicant submitted that where jurisdictional error is demonstrated, considerable caution must be exercised before withholding relief on the basis of a lack of utility and referred the Court to the decision of the Full Court of the Federal Court in Leev Minister for Immigration and Citizenship [2007] FCAFC 62 where Besanko J stated at [53]:
53.… The Court cannot be certain that a rehearing will be futile because (and I understand the first respondent to concede this) nomination by an approved standard business sponsor is a requirement to be satisfied at the date of decision and it is a possibility that this criterion will be met on a rehearing of the appellants’ application for review. It may well be that it will not be met but, in my opinion, unless it is clear that it will not be met, relief should not be refused on the ground of futility. In other words, I do not think that relief should be refused unless it is clear that a rehearing will be futile and I do not think that it is in this case.
FIRST RESPONDENT’S SUBMISSIONS
The first respondent accepted that the Tribunal did appear to have overlooked the applicant’s completed RSVI form. The first respondent contended however, that the applicant’s submission – that the Tribunal’s repeated reference to the applicant’s failure to complete the RSVI form bore upon its decision not to exercise its discretion to adjourn the review under s.363(1)(b) of the Act, and its decision not to exercise its discretion to write to the applicant to request information pursuant to s.359(2) of the Act – should not be accepted.
The first respondent submitted that the Tribunal expressly stated its reasons for not “postponing the determination of the review” (s.363(1)(b) of the Act) and for not writing to the applicant to “request information from” him.
The first respondent submitted, relying upon Minister for Immigration and Border Protection vSZVFW [2018] 264 CLR 541 cited in Minister for Home Affairs v DUA16 [2020] 271 CLR 550, that the reasons provide an intelligible justification for the nonexercised of the discretionary powers, noting that the threshold for legal unreasonableness is usually high.
The first respondent contended that there was no information in the RSVI form that could have materially affected the Tribunal’s conclusion that clause 500.211 of Schedule 2 of the Regulations was not satisfied at the time of its decision.
Additionally, the first respondent submitted that any error by the Tribunal in its failure to exercise the discretionary powers reasonably was not a material error: (see; Minister for Immigration and Border Protection vSZMTA [2019] 264 CLR 421. There was no basis to apprehend that the Tribunal might have decided to proceed to its decision other than the way it did had it not overlooked the RSVI form, because the applicant provided no information in the RSVI form that indicated that he was in fact enrolled in a course of study.
The first respondent submitted that this case is not a case like Nathanson vMinister for Home Affairs [2022] 403 ALR 398 where the asserted error was a denial of procedural fairness as there is no allegation of a denial of procedural fairness in this case. The first respondent submitted that had the Tribunal adjourned the review, or invited the applicant to provide more information, the Tribunal’s conclusion and clause 500.211 of Schedule 2 of the Regulations cannot have been different.
The first respondent submitted that in any event, even if the Tribunal did fall into error as the applicant submitted, this is an appropriate manner in which the Court should decline in the exercise of its discretion to grant the applicant the relief he seeks as it was plain on the material before the Tribunal, including the completed RSVI form the Tribunal overlooked, that the applicant did not meet the requirements for the grant of the visa.
RELEVANT PRINCIPLES
Legal unreasonableness
There is no dispute as to the relevant principles. In BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660 her Honour Perry J provides a useful summary of the relevant principles concerning of legal unreasonableness, which I reproduce as follows:
66.Legal reasonableness or an absence of legal unreasonableness is an essential element of lawfulness in decision-making, it being implied that Parliament intended that a discretionary power, statutorily conferred, must be exercised reasonably: Li at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [58] (the Court).
67.In determining whether an administrative decision is vitiated by legal unreasonableness it is, first, important to emphasise that the Court’s jurisdiction is strictly supervisory: Li at [66]. As the Full Court of the Federal Court explained in Eden at [59]:
It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker:… Nor does it involve the Court remaking the decision according to its own view of reasonableness…
68.Secondly, as the Full Court explained in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] with reference to the High Court’s decision in Li, “[l]egal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process… However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error” (see also Eden at [60]).
69.Thirdly, an evaluation of whether an administrative decision is legally unreasonable and therefore outside the range of possible lawful possible outcomes must be made having regard to the terms, scope and policy of the statutory source of the power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [11] (Allsop CJ, with whose reasons Wigney J agreed at [90])). As the Full Court explained in Eden at [63]:
The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445 [42].
70.With respect to the values of the common law to which Allsop CJ referred in Stretton, his Honour explained at [9] that:
The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
71.Fourthly, in assessing whether a particular outcome is unreasonable, the Court held in Eden at 171 [62] that “…it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion… Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness… Such a decision falls within the range of possible lawful outcomes of the exercise of the power…” (citations omitted).
72.Finally, findings of unreasonableness ought not to be “lightly” made (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 625 [40]-[41]).
CONSIDERATION
On the basis of the evidence which I have set out above at [20] to [33], I make the following findings which are relevant to the conclusions I have reached on the question whether the Tribunal’s exercise of its discretion under s.363(1)(b) and s.359(2) was legally unreasonable.
Four months prior to the Tribunal decision, and some two years since the delegate’s decision and the Applicant’s Application for Review, the Tribunal wrote to the applicant in September 2021 inviting information about his courses of study and entry and stay in Australia.
The applicant responded promptly to that invitation and within the 14-day time period prescribed. A current COE was provided by the applicant. A completed RSVI form was also provided by the applicant.
For reasons unclear, the Tribunal review did not proceed at this time. The Tribunal did not turn to consider the review again until January 2022. By which time the COE was no longer current. The Tribunal wrote to the applicant inviting information in response to the Tribunal’s concerns about his enrolment. There was no response from the applicant to this invitation.
When the Tribunal did then eventually proceed to consider the application in March 2022, for reasons unclear, the Tribunal overlooked the applicant’s completed RSVI form. I accept the applicant’s submission that his omission to provide the completed RSVI form was given some prominence in the reasons, being referred to on three separate instances and as such bore on the Tribunal’s decision to determine the review without seeking further information.
When the Tribunal was undertaking its “consideration of claims and evidence”, the Tribunal, properly, identified the evidence before it. The noncompletion of the questionnaire as requested caused puzzlement for the Tribunal. The Tribunal said this:
27.The applicant’s application which is the subject of this review was to undertake a Diploma and Advanced Diploma of Leadership and Management. The applicant did not complete the questionnaire requested be completed in the s359(2) letter. This puzzles the Tribunal. The Tribunal undertook a PRISMS search on 27 January 2022. This search indicates that the applicant finished his Advanced Diploma on 9 January 2022 and he has not enrolled in any other courses. The Tribunal commends the applicant in relation to his course progress.
The obvious inference, which I draw, is that the Tribunal recognised that evidence from the applicant was something to be taken into account and, self-evidently because the questionnaire omission was identified, capable of affecting its consideration of claims and evidence. The Tribunal avers to the content of the questionnaire making several requests for information relating to the enrolment condition contained in clause 500.211 of Schedule 2 of the Regulations.
When undertaking its “consideration of claims and evidence” and prior to formulating its “Conclusion on enrolment”, the Tribunal considered whether to adjourn the determination and seek further information from the applicant. This consideration and decision involved the exercise of a discretion. As Her Honour Mortimer J (as she then was) explained in Kaur vMinister for Immigration and Border Protection [2014] FCA 915 at [83]: “… the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course it has taken, the Tribunal’s approach throughout the review, the applicant’s situation and conduct throughout the review and the other surrounding circumstances”.
The Tribunal deals with this consideration under the sub-heading “Not Appropriate for Tribunal to Postpone Determination” and provides three reasons why it would not be appropriate for the Tribunal to postpone the determination.
Two of those reasons concern the Tribunal’s exercise of power and performance of its obligations under the Act. Writing to the applicant “again” to seek further information does not in and of itself place the Tribunal in the role of an advocate. Simply because the Tribunal has already afforded the applicant an opportunity to produce satisfactory evidence of a current enrolment pursuant to s.359(2) of the Act, does not mean it cannot do it again. It would be wrong to construe the legislative scheme concerning review of decisions established by Division 5 of Part 5 of the Act as one which permits the exercises of power, or the performance of obligations, where conferred, on a “once only” basis. The nature of the subject matter of reviews may mean that the Tribunal needs to seek information pursuant to s.359 on more than one occasion: Kaur per Mortimer J at [81].
The Court agrees with the submissions of the applicant that there existed no powerful countervailing factors against affording the applicant a further opportunity. It hardly frustrates the purpose of the Act to give an applicant, who is otherwise engaged with the review, a further opportunity to satisfy the criterion for the grant of the visa.
In determining that the applicant has had a fair opportunity to provide relevant information, considering the decision as a whole, the failure by the applicant to complete the RSVI form was one of the circumstances that the Tribunal considered. The Tribunal said this:
13.In these circumstances, for the reason set out in this decision, the Tribunal considers that the applicant has had a fair opportunity to provide relevant information.
14.Accordingly, the Tribunal has elected not to exercise its discretion under section 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the applicant to the Department and the Tribunal.
The Court agrees with the applicant’s submissions that the overlooking of the completed RSVI form affected the Tribunal’s decision not to exercise its discretion to adjourn the proceedings and to write to the applicant to request further information. When considering whether or not it would be appropriate to exercise its discretion to postpone the determination, in circumstances where the Tribunal has overlooked the applicant’s completed RSVI Form, the applicant has been denied the opportunity for the Tribunal to have before it all of the relevant evidence allowing the decision-maker to identify, read, understand, evaluate and give appropriate weight to that evidence and other material in the exercise of that discretion.
The Tribunal’s discretionary exercise of power proceeded on a wrong factual premise that the applicant had not provided a completed RSVI form. This incorrect factual premise was one of two determinative considerations dealt with by the Tribunal when considering the applicant’s claims and evidence [27]. The Tribunal noted that the questionnaire made several requests for information relating to the enrolment condition contained in clause 500.211 of Schedule 2 of the Regulations [31]. The second determinative consideration was there being no current confirmation of enrolment of any courses before the Tribunal.
In the circumstances of this case, because the Tribunal did not have regard to all of the information before it and acted on mistaken procedural history, the Tribunals failure to exercise its discretion pursuant to s.359(2) and s.363(1)(b) of the Act was legally unreasonable.
The consequence of the error here is that the applicant was deprived of the opportunity to address what was a new dispositive criterion before the Tribunal where throughout the review he had otherwise met it.
The Court agrees with the submission of the applicant that if the Tribunal had not overlooked the applicants completed RSVI form it may not have decided to proceed to its decision on the material before it and may have exercised its discretion to obtain additional information from the applicant. The Tribunal’s error of failing to have regard to the RSVI form not only meant that information relating to the enrolment condition contained in clause 500.211 of Schedule 2 of the Regulations was not before it, but it also deprived the applicant of the opportunity to engage further in the review by presenting additional evidence and/or submissions directed to satisfying the relevant criteria.
CONCLUSION AND ORDERS
For the reasons above the Court considers that the applicant has established that the Tribunal’s decision was legally unreasonable. It follows that the application to this Court is granted.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 25 July 2024
9
2