Maazuddin v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1349

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Maazuddin v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1349

File number:

MLG 1502 of 2020

Judgment of:

JUDGE GOSTENCNIK

Date of judgment:

10 December 2024

Catchwords:

MIGRATION – student (subclass 500) visa – visa cancelled – breach of condition 8202(2)(b) of schedule 8 to the Migration Regulations 1994 (Cth) – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – applications for judicial review must be made by applicants within 35 days of the date of the Tribunal’s decision – applicant filed application for judicial review 35 days after time elapsed – satisfactory explanation for the delay – satisfied it is necessary in the administration of justice to grant an extension of time – application for extension of time granted – judicial review – whether the Tribunal copied without attribution or acknowledgment the delegate’s decision – whether the Tribunal failed to bring it’s own independent mind to bear on the correct or preferable decision on review – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to give clear particulars of information considered to be the reason, or part of the reason, for affirming decision under review – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued

Legislation:

Migration Act 1958 (Cth) pt 5, ss 14, 15, 48, 82(1), 116, 116(1), 116(1)(b), 140, 189, 196, 198, 348(1), 359A, 359A(1), 359A(1)(a), 359A(3), 359A(4)(b), 359A(4)(b), 359AA, 368(6), 368A, 424A(1), 476, 477(1), 477A(2), 477(2)

Migration Regulations 1994 (Cth) schs 4, 8, conditions 8202, 8202(2), 8202(2)(b)

Cases cited:

Atanaskovic Hartnell Corporate Services Pty Limited v Kelly[2024] FCAFC 137

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

Bushell v Repatriation Commission[1992] HCA 47; 175 CLR 408

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577

Grant v Repatriation Commission[1999] FCA 1629; 57 ALD 1

Huluba v Minister for Immigration and Ethnic Affairs [1995] FCA 1561; 59 FCR 518

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166

Mentink v Minister for Home Affairs [2013] FCAFC 113

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133

Parker v The Queen [2002] FCAFC 133

Porter v Ghasemi [2021] FCAFC 144; 286 FCR 556

Porter v The Queen [2024] ACTCA 9; 21 ACTLR 122

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634

SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390; 168 FCR 1

SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86

Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28

Division:

Division 2 General Federal Law

Number of paragraphs:

68

Date of last submission/s:

21 October 2024

Date of hearing:

24 October 2024

Place:

Melbourne

Counsel for the Applicant:

Mr S Stagliorio

Solicitors for the Applicant:

Northam Lawyers

Counsel for the First Respondent:

Ms T Weir

Solicitors for the First Respondent:

HWL Ebsworth Lawyers

Counsel for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 1502 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MOHAMMAED MAAZUDDIN

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GOSTENCNIK
DATE OF ORDER:	10 DECEMBER 2024

THE COURT ORDERS THAT:

1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) the 35-day period within which an application for judicial review of a migration decision of the (then) Administrative Appeals Tribunal (AAT) may be made be extended to 7 May 2020.

2.A writ of certiorariissue to quash the decision of the AAT made on 30 March 2020 in Case No 1934453.

3.A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application for review made to the AAT in Case No 1934453.

4.The first respondent pay the applicant’s costs fixed in the sum of $8,371.30.

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 Gostencnik

INTRODUCTION

1. Before the Court is an application for an order under s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period within which a judicial review application of a migration decision of the (then) Administrative Appeals Tribunal may be made. And although only the interlocutory application was initially listed for hearing, the applicant and the first respondent agreed that the Court should also deal with the substantive judicial review application if an extension of time is granted. I considered that it is convenient to do so.

2. The applicant is a citizen of India: Court Book (CB) 24, and, until its cancellation by a delegate of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs acting under s 116(1)(b) of the Act, he was the holder of a student (Temporary) (Class TU) (Subclass 500) visa. The delegate concluded the applicant failed to maintain enrolment in a registered course that, once completed, would provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted, and that ground for cancelling the visa outweighed the reasons not to cancel it: CB39-CB49. The delegate’s decision was affirmed by the Tribunal on 30 March 2020: CB77. On 7 May 2020, the applicant sought judicial review of the Tribunal’s decision by lodging an application in the (then) Federal Circuit Court of Australia for a remedy in the exercise of the Court's original jurisdiction under s 476 of the Act. That application was made three days outside of the time prescribed.

3. By his amended application lodged on 11 October 2024, the applicant would, if an extension of time is granted, contend the Tribunal fell into jurisdictional error in two respects. First, that the Tribunal failed to bring its own independent mind to bear on what would be the correct or preferable decision on the review. This is because, the Tribunal is said to have copied, without attribution, significant portions of the reasons of the delegate whose decision the Tribunal was tasked to review. Second, the Tribunal denied the applicant procedural fairness – because contrary to its obligation under s 359A(1)(a) of the Act to give to the applicant clear particulars of any information the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review – the Tribunal failed to put the substantial parts of the delegate’s decision the Tribunal proposed to adopt as its own to the applicant. The applicant says that the delegate’s reasons the Tribunal proposed to adopt and the fact it proposed to do so, was “information” the Tribunal was required to give the applicant.

   BACKGROUND

4. The applicant’s student visa to study a Bachelor of Community Services with Acknowledge Education was granted on 4 June 2018: CB6-CB7. The visa was subject, relevantly, to condition 8202(2)(b) of Sch 8 to the Migration Regulations 1994 (Cth) (Regulations), requiring the applicant to be enrolled in a full-time registered course, which, once completed, must provide a qualification from the AQF that is at the same level or higher than the registered course to which the visa holder was initially granted. Section 116(1)(b) of the Act provides that the Minister may, subject to certain not presently relevant exceptions, cancel a visa if the Minister is satisfied that the visa holder has not complied with a condition of the visa.

5. On 25 October 2019, the applicant was issued, by email transmission, a Notice of Intention to Consider Cancellation (Notice) by a delegate of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs for purported non-compliance with condition 8202(2) to the Regulations: CB6-CB10. The Notice:

   (1)advised the applicant that based on information available through the ‘Provider Registration and International Student Management System’ (PRISMS) –

   (a)the applicant’s visa was initially granted for a Bachelor of Community Services, which once completed, would provide a Level 7 AQF;

   (b)the applicant’s enrolment in the Bachelor of Community Services was cancelled on 21 June 2018;

   (c)the applicant was currently enrolled in a Diploma of Automotive Technology through the Acumen Institute of Further Education which is at a Level 5 AQF;

   (d)the applicant’s current course enrolment was thereby not at the same AQF Level or higher than the registered course in relation to which the visa was granted; and

   (2)invited the applicant to comment on the grounds for cancellation, to give reasons why his visa should not be cancelled and provide any supporting evidence.

6. The applicant appointed a migration agent to act for him on 29 October 2019: CB31-CB33, to assist him with his response to the Notice: CB32. On 31 October 2019, the applicant, by his migration agent, asked for an extension of time to respond to the Notice: CB12. The applicant, through his migration agent, responded to the Notice by providing some documents including, the applicant’s explanation statement in which the applicant sought to explain his circumstances and reasons why his visa should not be cancelled: CB34. The delegate summarised as follows:

   •His family sacrificed and invested a lot of money for his overseas education.

   •If this visa was cancelled, he would have to leave without a degree.

   •This will affect his personal life and also his family.

   •His parents are also having a lot of health issues. This cancellation would be detrimental to their health.

   •He commenced a Bachelor of Business on 20 March 2017 and studied for two semesters but could only pass one subject.

   •Stott College issued him a warning letter for poor academic progress and advised him to change course to Bachelor of Community Services.

   •He again could not pass the subjects and was issued another warning letter.

   •He then decided to change his study pathway to Automotive courses after a discussion with his friends.

   •He was determined to pursue the new study pathway and got admission in Certificate III, IV, and Diploma of Automotive in order to pursue a Bachelor degree in Automotive.

   •He had been unable to gain admission into the Bachelor degree in Automotive because of his past fails in the Bachelor degree level studies.

   •The initial failure at the Bachelor degree level was a huge setback for him both mentally and academically.

   •This took him time to recuperate and understand the system.

   •He realised it was very difficult for international students to settle into a new life with cultural changes and emotional stress being away from home for the first time and being independent: CB46, CB48.

7. On 3 December 2019, the applicant was notified that the delegate had cancelled his visa pursuant to s 116(1)(b) of the Act: CB39-CB43. The delegate’s decision records the delegate’s satisfaction that grounds existed to cancel the visa under s 116(1)(b) of the Act because the applicant has not complied with condition 8202(2)(b) of the visa: CB46 – he had not maintained enrolment in a registered course that once completed would provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted – and the grounds for cancelling the visa outweigh the reasons not to cancel the visa: CB49.

8. The applicant applied to the Tribunal for a review of the delegate’s decision: CB50-CB51. The Tribunal acknowledged the review application on 9 December 2019: CB54-CB56, and on 5 March 2020, the Tribunal invited the applicant to attend a hearing scheduled for 27 March 2020 to give evidence and present arguments relating to the issues in his case: CB58-CB60. The invitation also requested the applicant to complete and return an enclosed ‘Response to hearing invitation – MR Division’ form to confirm his attendance at the hearing, and to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider: CB62-CB64.

9. On 23 March 2020, the Tribunal notified the applicant the hearing will proceed by telephone on the scheduled date as it was not holding face to face hearings due to the COVID-19 pandemic: CB66-CB68. The applicant’s migration agent confirmed the applicant’s appearance, and the applicant attended the hearing by telephone during which he was represented by his migration agent: CB69, CB71-CB73 and CB78 at [3]-[4].

   THE TRIBUNAL’S DECISION AND REASONING

10. By its decision made on 30 March 2020, notice of which was given to the applicant on 2 April 2020: CB75-CB76, the Tribunal affirmed the decision to cancel the applicant’s student visa: CB75-CB76. The applicant was notified of the decision on 2 April 2020 and was provided with a copy of its Statement of Decision and Reasons (Decision): CB77.

11. At [1]-[8] of the Decision, the Tribunal set out a brief background and the relevant student visa criteria by reference to s 116(1)(b) of the Act and condition 8202 of Sch 8 to the Regulations. At [9]-[18], the Tribunal dealt with the question whether the applicant complied with condition 8202(2)(b), concluding – based on the applicant’s admission that he breached his visa condition and enrolled in a course that would provide an AQF Level 5, which was below the required AQF Level threshold – that the applicant had not complied with condition 8202. At [19]-[54], the Tribunal set out its consideration whether to cancel the applicant’s visa.

12. At [19] of the Decision, the Tribunal notes that neither the Act nor Regulations specified matters that must be considered in the exercise of the discretion to cancel a visa once non-compliance with a condition had been established. The Tribunal records that it had regard to the circumstances of the case; addressing, the applicant’s viva voce evidence at the hearing, the written responses to the Notice, the PRISMS record and any other relevant matters.

13. At [36]-[40] of the Decision, the Tribunal considered the circumstances in which the applicant failed to maintain enrolment in a registered course at the same AQF Level or higher in relation to which the visa was granted. The Tribunal:

    (1)considered the applicant faced difficulties throughout his studies, but noted the applicant had the option to apply for a deferral, or to contact the Immigration Department to obtain a more appropriate type of visa for the purpose of study: Decision at [38]; and

    (2)considered that it was reasonable to expect visa holders to be cognizant of the conditions attached to their visa, and it is their responsibility to contact the Department in relation to any changes in their circumstances, and so ascribed these circumstances significant weight in favour of cancelling the visa: Decision at [39]-[40].

14. At [25]-[41] of the Decision, the Tribunal accepted the applicant:

    (1)did not stay in Australia for the original purpose and intention of the visa; being, to study a course at an AQF Level 7, thus resulting in non-compliance with condition 8202(2)(b): Decision at [25];

    (2)complied with his visa conditions apart from condition 8202: Decision at [28];

    (3)might experience some financial and psychological hardship if his visa were cancelled: Decision at [32]-[34]; and

    (4)had not been uncooperative with the Department: Decision at [41].

    The Tribunal gave the first matter weight in favour of cancelling the applicant’s visa on the basis that compliance with condition 8202 was fundamental to the visa grant, and the applicant’s extent of non-compliance was significant: Decision at [24], [26]-[27], [29]-[30]. The Tribunal ascribed little weight to the last three matters against cancelling the visa: Decision at [28], [35] and [42].

15. The Tribunal accepted that if the applicant’s visa was cancelled, he would be excluded from applying for certain visas for a specified time in the future in accordance with s 48 of the Act, but gave it little weight against the visa cancellation: Decision at [44]-[45]. It also noted there were no dependants attached to the applicant’s visa so there would be no consequential cancellations under s 140 of the Act, ascribing no weight against the visa cancellation: Decision at [43].

16. During the hearing, the applicant requested an adjournment for one week to procure a Confirmation of Enrolment (CoE) letter for the Bachelor of Business degree, as he was unable to retrieve it prior to the hearing on the basis that he did not have study rights. The Tribunal at [50] of the Decision rejected the request for an adjournment as the applicant had sufficient time before the hearing to obtain a CoE. Whilst the Tribunal accepted the applicant made genuine and legitimate attempts to enrol in a Bachelor of Business course of study before the hearing so as to no longer be in breach of his visa condition, the Tribunal ascribed this consideration minor weight in favour of not cancelling the visa: Decision at [51].

17. The Tribunal concluded that:

    (a)it was not satisfied that the cancellation of the applicant’s visa will prevent him from achieving in his home country his current course of study said to be important to him and his family: Decision at [32];

    (b)the applicant was in breach of his visa condition for a significant period: Decision at [52]; and

    (c)the reasons for the breach of the visa condition were not matters that were outside the control of the applicant: Decision at [53].

18. The circumstances considered as a whole, led the Tribunal to conclude that the applicant’s visa should be cancelled: Decision at [55]. Accordingly, the Tribunal affirmed the decision to cancel the applicant’s visa: Decision at [56].

    CONSIDERATION

19. As already mentioned, on 7 May 2020, the applicant applied to the (then) Federal Circuit Court of Australia for judicial review of that decision as well as an extension of time. An application to the Court for review of a decision by the Tribunal must be made within 35 days of the date of the Tribunal's decision: s 477(1) of the Act. The Tribunal made its decision on 30 March 2020, and the final day to make the application was 4 May 2020. The applicant therefore made his application 3 days after the time prescribed. Section 477(2) of the Act allows the Court, by order, to extend the 35-day period as the Court considers appropriate if it is satisfied that it is necessary in the interests of the administration of justice to do so.

20. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 Kiefel CJ, Gageler, Keane and Gleeson JJ explained the exercise of the Court's discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2). In short compass, the focus of s 477A(2)(b) (and so also s 477(2)(b)) is not on the interests of the applicant, but the broader interests of the administration of justice. This allows the Court to consider “a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application”: Tu'uta Katoa at [12]. Their Honours noted that the level of satisfaction that must be reached is not low because the Court “must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice”: at [12]. In this regard, their Honours noted that it is appropriate to consider the well-established principles guiding decisions whether to extend time in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349: Tu’uta Katoa at [13].

1. The non-exhaustive principles set out in Hunter Valley to which reference in Tu'uta Katoa is made were cited with approval in Parker v The Queen [2002] FCAFC 133 at [6] as follows:

   1.applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;

   2.action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

   3.any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

   4.however, the mere absence of prejudice is not enough to justify the grant of an extension; and

   5.the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

   See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [2], [33]-[36]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144; (2021) 286 FCR 556 at 566, [40].

2. In determining what is necessary in the interests of the administration of justice for the purposes of s 477(2)(b) of the Act, it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level” because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. But there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, where a delay in making an application is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". And in other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion. In cases of that kind, a proper exercise of the power conferred by s 477(2) will not require the Court to confine its consideration of the merits to an assessment of that which is "reasonably arguable" or some similar standard. The broad power in s 477(2) does not prevent the Court from undertaking a detailed examination of the merits of the application: see discussion in Tu'uta Katoa at [17]-[18].

   Extent and reason for the delay, and prejudice

3. Dealing first with the extent and reason for the delay, and whether the first respondent would suffer prejudice. The applicant filed an amended application on 15 October 2024, by which he says the late application was caused by the Tribunal’s own delay in notifying the applicant of the Decision. The applicant contends that as he was self-represented when he filed the judicial review application, he was under the impression that the 35-day limit is counted from the date he was notified of the Decision, being 2 April 2020 – thereby explaining the 3-day delay of the application. The applicant posits that the delay – 3 days – is short, and there is no prejudice to the first respondent if the extension of time was granted. 

4. The first respondent accepts that the applicant’s delay in making the judicial review application is short and that he would “only be minimally prejudiced” if an extension of time were granted. The first respondent correctly points out that mere absence of prejudice does not justify an extension of time. But the absence of prejudice nonetheless weighs in favour of the applicant, as does the short period of the delay. 

5. As to the explanation for the delay, the first respondent says the information available to the applicant clearly indicated that an application for judicial review had to be made within 35 days of the date of the decision, and there is no reference to the date of notification being the relevant point from which time is reckoned. There is nothing unusual in the Tribunal notifying an applicant of the outcome of a review involving a migration decision after the date on which it made its decision. Section 368A of the Act (as then in force) required the Tribunal to notify the applicant of a decision on a review by giving the applicant a copy of the written statement within 14 days after the day on which the decision is taken to have been made. The Tribunal’s decision here is taken to have been made on the day and at the time the written statement is made as required by s 368(6). The date a Tribunal decision is made and the date on which an applicant is notified of the decision need not coincide, but time reckoning for judicial review application purposes begins from the date of the former not the latter.

6. The Decision contained a date on which the Tribunal’s decision was made: CB77, but the correspondence accompanying the Decision with the subject line “NOTIFICATION OF DECISION – MR MOHAMMED MAAZUDDIN” was not so clear. The correspondence is dated 2 April 2020 and advises the applicant that “[w]e have decided to affirm the decision under review. This means that the decision of the delegate of the Minister remains in force and your application to have that decision changed has been unsuccessful”: CB76. There is no reference in the correspondence to the Tribunal’s decision having been made on a date earlier than the date of the correspondence.

7. An information sheet accompanied the Decision: CB85-CB87. The first respondent relies on the information sheet in submitting that the information available to the applicant clearly indicated that an application for judicial review had to be made within 35 days of the date of the decision. The first respondent says there is no reference in the information sheet to the date of notification being the relevant point at which time started to run. Therefore, according to the first respondent, there is no basis for the applicant's mistaken belief that he could make his application for judicial review within 35 days of the date that he was notified of the Tribunal’s decision.

8. The information sheet contains the following information about making a judicial review application: CB86:

   Review of decisions

   Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.

   (emphasis added)

9. Whilst it is true that the information sheet does not contain any reference to the date of notification being the relevant date from which time is to be reckoned, contrary to the first respondent’s contention, it does not in my view clearly indicate that an application for judicial review must be made “within 35 days of the date of the decision”. Instead, the information refers to an application being made “within 35 days of the date of our decision”. When read with the correspondence dated 2 April 2020 advising the applicant that “[w]e have decided to affirm the decision under review”, the clarity with which it is said the date when the 35-day period began to run is communicated to the applicant, becomes a little fuzzy. And the applicant may be forgiven for mistakenly believing that the date of the decision was the date he was notified of it. The notification letter does not specify that the date it bears is not the same date the decision it is communicating was made. Nor does it specify that the decision to affirm the delegate’s decision was made 3 days earlier. Therefore, considering the fact that the applicant was not represented at the time he made the judicial review application, and the nature of the communication just discussed, I accept that the applicant’s mistaken belief about when the 35-day period ended was not without some basis and, in the circumstances, I consider that it provides an acceptable explanation for the short delay. The short period of the delay and the acceptable explanation, as well as the absence of prejudice combine to weigh in favour of the applicant.

   Merits

10. Turning then to the underlying judicial review application grounds, which the applicant maintains are not just arguable, but are strong. Since the parties have agreed that if an extension of time is granted, I should also deal with the judicial review application rather than fixing another hearing. I will now consider the substantive merits of the applicant’s review grounds.

11. The applicant advances two grounds in support of his amended judicial review application as follows (reproduced verbatim):

    1.In purporting, pursuant to s 348(1) of the Migration Act 1958 (Cth), to review a decision of a delegate of the First Respondent to cancel the Applicant’s class TU, subclass 500 (student) visa, the Second Respondent (Tribunal) failed to bring its own independent mind to bear on what would be the correct or preferable decision on the review, thereby making a jurisdictional error.

    Particulars

    a)   As revealed by the Attachment to this amended application, the Tribunal’s purported reasons for its decision copied, without attribution, significant portions of the reasons of the very decision it was tasked to review.

    b)   The passages which are identical between the delegate’s and Tribunal’s reasons were underlined in the Attachment.

    c)   By doing so, the Tribunal failed to bring its own independent mind to bear on what would be the correct or preferable decision on the review, which led to the miscarriage of its task: MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 (Tracey, Murphy and Mortimer JJ).

    d)   That miscarriage is characterised in the following ways: a constructive failure to exercise the jurisdiction conferred upon the Tribunal; a reasonable apprehension of bias; a failure to discharge the Tribunal’s statutory function; prejudgement; and/or legal unreasonableness.

    e)   Regardless of the characterisation of the miscarriage, it amounted to a jurisdictional error.

    2.The Tribunal denied the Applicant procedural fairness, thereby making a jurisdictional error.

    Particulars

    a) Section 359A(1)(a) of the Act imposed an obligation on the Tribunal to “give to the applicant … 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” (emphasis added).

    b)   To adapt from MZZZW at [92] (emphasis added): the “substantial parts of the [delegate’s] decision itself, as well as those parts [that the Tribunal] in fact proposed to adopt as [its] own, were “information” that was required to be given to the appellant as part of the Tribunal’s review”, under 359A(1)(a).

    c) The failure to put that information to the Applicant and invite comments from him constituted a breach of the procedural fairness obligations in s 359A(1)(a)-(c): MZZZW at [92]-[94].

    d)   That breach of procedural fairness constituted a jurisdictional error.

    The attachment to which reference is made in paragraph a) of the particulars to ground one is a table containing a side-by-side comparison of several extracted sentences and paragraphs of the delegate’s decision and Tribunal’s decision.

    Ground 1

12. As is clear from the first review ground, the applicant alleges that significant portions and passages in the Tribunal’s decision were copied from the delegate’s decision without attribution. The applicant contends that by doing so, the Tribunal failed to bring its own independent mind when conducting the review, thereby leading to a miscarriage of its task. Put another way, the applicant says the Tribunal failed to discharge its statutory function to consider an applicant’s claims on review for itself afresh, and to make the decision which the Tribunal considered the correct and preferable one. Consequently, according to the applicant, the Tribunal’s decision is attended by jurisdictional error.

13. Extensive, uncritical and unattributed copying of a party’s submissions or another decision maker’s decision by a tribunal (or by a judge), may amount to jurisdictional error or vitiate a decision where the reasons are such that it should be inferred that they are not the product of the active application of an independent and impartial mind. Jurisdictional error of this kind may be characterised on several bases, including:

    (a)inadequacy of reasons;

    (b)constructive failure to exercise jurisdiction;

    (c)bias;

    (d)a failure to discharge the statutory role or function;

    (e)a failure to give independent and impartial consideration to the evidence and the issues; or

    (f)a denial of procedural fairness.

    See discussion in MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [30], [47]-[53]; Atanaskovic Hartnell Corporate Services Pty Limited v Kelly[2024] FCAFC 137 at [32]-[37]; Porter v The Queen [2024] ACTCA 9; 21 ACTLR 122 at [28]-[51].

14. There is clearly overlap in some of the characterisations. But the appropriate characterisation of the kind of jurisdictional error involved in cases concerning extensive, unattributed copying is a matter on which reasonable judicial minds may differ: MZZZW at [52].

15. The Tribunal is empowered to and must review the delegate’s decision being a Part 5-reviewable decision: s 348(1) of the Act. The review concerned the cancellation of the applicant's student visa under s 116(1)(b) of the Act because the applicant had not complied with a condition of the visa – condition 8202 of Sch 8 of the Regulations as he had not maintained enrolment in a registered course that once completed, would provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. As earlier noted, the delegate concluded the grounds for cancelling the visa outweighed the reasons not to cancel the visa. It is hardly controversial that the Tribunal on review must consider for itself whether it is satisfied the applicant’s student visa should be cancelled. The review conducted by the Tribunal is a merits review involving a consideration of the application for review, and the arguments and claims advanced, afresh: MZZZW at [60], [66]; Huluba v Minister for Immigration and Ethnic Affairs [1995] FCA 1561; 59 FCR 518 at 529, [36]; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390; 168 FCR 1 at [20]. The Tribunal operates in an inquisitorial manner, and is under a duty to arrive at the correct or preferable decision on review according to the material before it, determining the substantive issues which arise on that review without restricting itself to any case advanced by the applicant: MZZZW at [56], [66]; Grant v Repatriation Commission [1999] FCA 1629; 57 ALD 1 at [17]-[18]; Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 424-425; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10], [93].

16. In essence, the Tribunal is required, within the limits of the applicable law, to bring its own perspectives, approach and reasoning to the claims made by the applicant: MZZZW at [60]. In other words, it is to exercise its own independent judgment in deciding a review. And as the Full Court in MZZZW explained, part of the statutory task to consider the applicant’s claims afresh and to make that which the Tribunal considers is the correct and preferable decision, includes exposing the Tribunal’s reasoning for making material findings of fact and setting out the material on which those findings are based, not the reasons of some other decision-maker: at [66].

17. In a case like this involving an allegation of significant copying without attribution by the Tribunal of the reasons of another decision-maker, the question whether the Tribunal brought an independent mind to the consideration of the applicant’s claims and so whether it failed to perform its statutory task is to be answered objectively: LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166 at [92] considering all of the circumstances, and requires the Court to form an overall impression – one on which it is possible reasonable judicial minds might differ: MZZZW at [66]. In MZZZW, the Full Court noted at [54] that the judgment in LVR identified at [92] some factors which might be relevantly considered in determining the question whether the decision-maker brought an independent mind to all aspects of the Tribunal’s task on review. The factors, which the Full Court in MZZZW at [55] said assist answering that question, are: the function of the decision-maker and the source of that function; the source of the copied material; the subject-matter of the copied material; whether the copied material was controversial; the similarity of the claim to the claim from which the material was copied; the extent of the copying; whether the copied material was up to date; whether the material was used in addressing the individual circumstances of an applicant, including credibility, particularly in evaluating the claim or application; and whether the fact of copying and the source of the copied material was acknowledged: MZZZW at [54]; LVR at [92].

18. The extent of copying of the delegate’s reasoning by the Tribunal about which the applicant complains, is set out in an attachment to the amended application containing a table reproduced below highlighted by underlining:

ID	Delegate’s reasons	AAT’s reasons
1	CB 45: … Paragraph (2)(b) states the visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.	CB 79 [8]: Paragraph (2)(b) states the visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.
2	CB 45: … Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicates that on 21 June 2018 MOHAMMED MAAZUDDIN’s enrolment in the Bachelor Degree course was cancelled by the education provider.	CB 79 [10]: Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that on 21 June 2018 the applicant’s enrolment in the Bachelor course was cancelled by the education provider …
3	CB 45-46: … As MOHAMMED MAAZUDDIN is not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of clause 8202(3) do not apply to him.	CB 79 [12]: As the applicant was not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of clause 8202(3) do not apply to him.
4	CB 46: The visa holder provided the following reasons: • His family sacrificed and invested a lot of money for his overseas education. • If this visa was cancelled, he would have to leave without a degree. • This will affect his personal life and also his family. • His parents are also having a lot of health issues. This cancellation would be detrimental to their health.	CB 79 [15]: In his response(s), the applicant provided reasons why his visa should not be cancelled, as follows: • His family sacrificed and invested a lot of money for his overseas education; • If this visa was cancelled, he would have to leave without a degree; • This will affect his personal life and also his family; and • His parents are having a lot of health issues, which would be compounded by the cancellation which would be detrimental to their health.
5	CB 46: This appears to indicate that MOHAMMED MAAZUDDIN has not complied with subclause (2)(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted.	CB 80 [18]: Based on the above, the Tribunal finds that the applicant has not   complied with sub-clause (2)(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted.
6	CB 48: MOHAMMED MAAZUDDIN provided a statement of response to the NOICC and mentioned the following: • He commenced a Bachelor of Business on 20 March 2017 and studied for two semesters but could only pass one subject. • Stott College issued him a warning letter for poor academic progress and advised him to change course to Bachelor of Community Services.   • He again could not pass the subjects and was issued another warning letter. • He then decided to change his study pathway to Automotive courses after a discussion with his friends. • He was determined to pursue the new study pathway and got admission in Certificate III, IV and Diploma of Automotive in order to pursue a Bachelor degree in Automotive. • He had been unable to gain admission into the Bachelor degree in Automotive because of his past fails in the Bachelor degree level studies. • The initial failure at the Bachelor degree level was a huge setback for him both mentally and academically. • This took him time to recuperate and understand the system. • He realised it was very difficult for international students to settle into a new life with cultural changes and emotional stress being away from home for the first time and being independent.	CB 80 [20]: In his response to the NOICC, the applicant provided various reasons why he believed his visa should not be cancelled, as follows: • He commenced a Bachelor of Business on 20 March 2017 and studied for two semesters but could only pass one subject; • Stott College issued him a warning letter for poor academic progress and advised him to change course to Bachelor of Community Services, however,   he again could not pass subjects and was issued another warning letter. • He then decided to change his study pathway to Automotive courses after a discussion with his friends. He was determined to pursue the new study pathway and got admission in Certificate III, IV and Diploma of Automotive in order to pursue a Bachelor degree in Automotive. • He had been unable to gain admission into the Bachelor degree in the Automotive field because of his past failure of subjects in his previous Bachelor level studies. • The initial failure at the Bachelor degree level was a huge setback for him both mentally and academically, which took him some time to recover form; and • He realised it was very difficult for international students to settle into a new life in Australia, with cultural changes and emotional stress as a result of being away from home for the first time.
7	CB 46-49: headings on the exercise of the discretion (original emphasis and underlining omitted): PART D: DECISION WHETHER TO CANCEL … Purpose of the visa holder’s travel to and stay in Australia   … The extent of compliance with visa conditions … The degree of hardship that may be caused to the visa holder and any family members …  The circumstances in which the ground for cancellation arose …  The visa holder’s past and present behaviour towards the Department  … Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act … Legal consequences of a decision to cancel the visa … Australia’s international obligations … Any other relevant matters	CB 80-83: headings on the exercise of the discretion (original emphasis and underlining omitted): Consideration of the discretion to cancel the visa … Purpose of applicant’s travel to and stay in Australia … The extent of compliance with visa conditions … The degree of hardship that may be caused to the visa holder and any family members … The circumstances in which the ground for cancellation arose … The visa holder’s past and present behavior towards the Department  … Whether there are any persons in Australia whose visas would, or may, be cancelled under s140 … Legal consequences of a decision to cancel the visa … Australia’s international obligations … Any other relevant matters
8	CB 47: MOHAMMED MAAZUDDIN’s TU 500 Higher Education Sector visa was granted on 4 June 2018 for studying toward Bachelor of Community Services and the visa was granted until 14 October 2020	CB 80 [21]: The applicant’s TU 500 Higher Education Sector visa was granted on 4 June 2018 for the purpose of studying a Bachelor of Community Services and the visa was granted until 14 October 2020.
9	CB 47: …Information available in PRISMS indicates that this enrolment was cancelled on 21 June 2018.	CB 81 [22]: Information available in PRISMS indicates that this enrolment was cancelled on 21 June 2018.
10	CB 47: MOHAMMED MAAZUDDIN’s TU 500 Higher Education Sector visa was granted for the purpose of studying toward  completing a course at the AQF level 7 (Bachelor Degree). However, at time of this decision, MOHAMMED MAAZUDDIN’s highest level of enrolment is at AQF level 5 (Diploma) which indicates that MOHAMMED MAAZUDDIN has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted.	CB 81 [24]: The applicant’s TU 500 Higher Education Sector visa was granted for the purpose of studying towards completing a course at the AQF level 7 (Bachelor Degree). However, at time of this decision, the applicant’s highest level of enrolment is at AQF level 5 (Diploma) which demonstrates that the applicant has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted.
11	CB 47: … MOHAMMED MAAZUDDIN has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted.	CB 81 [27]: The applicant has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted since 21 June 2018, resulting in non-compliance with subclause (2)(b) of condition 8202.
12	CB 47: … However, I consider that the requirement to maintain the correct level of enrolment, AQF Level 7 (Bachelor Degree), fundamental to his visa grant. Therefore, I find the extent of his non-compliance with visa conditions to be significant	CB 81 [29]: However, the Tribunal considers that the requirement to maintain the correct level of enrolment, AQF Level 7 (Bachelor Degree), is fundamental to the visa grant. Therefore, the Tribunal finds the extent of his non-compliance with the visa condition to be significant.
13	CB 48: … the ground for cancellation arose when MOHAMMED MAAZUDDIN ceased to be enrolled in a Bachelor degree course on 21 June 2018, which had resulted in a non-compliance with condition 8202(2)(b). I acknowledge the difficulties he might have faced during his studies and found that MOHAMMED MAAZUDDIN had the option of applying for a more appropriate visa type to study at the Vocational Education Sector level. As at time of decision, he remains the holder of a Student visa granted for the purpose of studying at the AQF level 7 after coming to be aware of his inability to study at the Bachelor degree level, I do not find that the circumstances that led to the drop of AQF level were beyond his control.	CB 82 [37]-[38]: [37]: The ground for cancellation arose when the applicant ceased to be enrolled in a Bachelor degree course on 21 June 2018, which resulted in non- compliance with condition 8202(2)(b). [38]: … the Tribunal acknowledges that the applicant faced some difficulties throughout his Bachelor level studies, however, he had the option of applying for a deferral or contacting the Immigration Department to obtain a more appropriate visa type for the purpose of studying at the Vocational Education Sector level, yet did not do so. The Tribunal further finds that the applicant’s failure to take these steps were not due to matters that were beyond his control.
14	CB 48: There is no information before me to suggest that MOHAMMED MAAZUDDIN has been uncooperative with the Department or departmental staff. Given no adverse information regarding this, I give this consideration a little weight against cancelling the visa.	CB 82 [41]-[42]: [41]: … there is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff. [42]:   The Tribunal gives this consideration a little weight against cancelling the visa.
15	CB 49:    The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act. Therefore, I am unable to give any weight for or against the decision to cancel under this consideration.	CB 82 [43]: The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act. The Tribunal therefore does not give any weight for or against a decision to cancel the visa for this consideration.
16	CB 49: If the visa is cancelled,   MOHAMMED MAAZUDDIN will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. He would also be affected by section 48 of the Act, which would cause him to have limited options if applying for further visas while in Australia, and Public Interest Criterion 4013, which may prevent him from being granted particular temporary visas for a specific period...	CB 82 [44]: If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent him from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude him from being granted a visa for a specific period of time in the future.

1. Some of the impugned text (that which is not underlined) in the Decision identified in the table, appears to involve changes to syntax or changing some words when compared to the text in the delegate’s decision. But as the Full Court observed in MZZZW, there was no material distinction between word-for-word copying, moving words around into a different order, changing syntax, or a word here or there when assessing whether a tribunal member brought an independent mind to bear on what was the correct or preferable decision on the review: at [28]. The first respondent read the affidavit of Ms Helen Sassine: Exhibit R2, to which the deponent annexed highlighted versions of the delegate’s decision record and the Decision as well as the (then) Department of Home Affairs’ Procedural Instruction “General visa cancellation powers (s109, s116, s128, 134B and s140)” (Procedural Instruction) to which both decision makers had regard. There is no real dispute about the text common to both the delegate’s decision record and the Decision. That which is in dispute is the significance of the commonality and the consequence of that commonality for the task the Tribunal was required to undertake. Before examining the common text and the competing contentions about that text, it is necessary to set out the statutory context under which the Tribunal undertook the review.

2. Section 116(1) of the Act confers a discretionary power on the Minister to cancel a visa if satisfied, relevantly, that the visa holder had not complied with a condition of the visa: s 116(1)(b). Schedule 8 to the Regulations contains various visa conditions. Relevantly, condition 8202 requires that the visa holder must be enrolled in a full-time registered course and, subject to a deeming provision not presently relevant, the visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

3. Neither the Act nor the Regulations specify any matters that must be considered when deciding whether to exercise the discretion under s 116 to cancel a visa. The discretion is however to be exercised consistently with the subject matter, scope and evident purpose of the statutory power. The (then) Department of Home Affairs issued a Procedural Instruction which, inter alia, sets out matters that delegates should take into account in deciding whether to cancel a visa under various provisions of the Act, including s 116. The Procedural Instruction relevantly provided:

   s116 - Deciding whether to cancel

   Prescribed matters

   Unlike visa cancellation under s109, there are no prescribed matters to which the delegate must have regard in considering whether to cancel a visa under s116.

   Matters that should be considered

   It is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder:

   •The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.

   •The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.

   •The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.

   •The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

   •The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

   •Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

   •Whether there are mandatory legal consequences to a cancellation decision – as three examples:

   o whether indefinite detention is a possible consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations

   o whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

   o whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

   •Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, – as two examples:

   o If there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children - for more information, refer to:

   ▪         Australia's international obligations and

   ▪ PAM3: Act - Compliance and Case Resolution - Case resolution - Guiding principles - Treatment of children.

   o Whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations. It is important to note that a cancellation delegate is not required to undertake a full analysis of whether a person is owed protection, as a cancellation decision is not, in and of itself, a decision to remove a person from Australia.

   •Any other relevant matters.

   If a delegate is considering whether to cancel a permanent visa, they are also to take into account whether the visa holder has formed strong family, business or other ties in Australia.

   (emphasis in original)

4. As already noted, both the delegate and the Tribunal considered the relevant parts of the Procedural Instruction in arriving at their respective decisions. In reviewing the delegate’s decision, departmental policies or instructions may be matters relevantly taken into account but the Tribunal may not, absent any statutory requirement, abdicate its duty to arrive at the correct or preferable decision in favour of merely applying a policy or instruction to the facts of the case: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420; 24 ALR 577 at 590 per Bowen CJ and Deane J.

5. It may be accepted that the Tribunal may take into account the Procedural Instruction if it is relevant and assists the Tribunal in arriving at the correct or preferable decision in the circumstances of the case as they appear to the Tribunal: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 at 643. It may also be accepted that if the Procedural Instruction is relevant and will assist the Tribunal in arriving at the correct or preferable decision, the Tribunal would ordinarily take the Procedural Instruction into account or apply the Instruction unless cogent reasons are shown against its application: Re Drake at 645. However, the first respondent’s submission that the Tribunal considered the Procedural Instruction “where there were no cogent reasons to depart from such policy and the evidence before it, that was not materially different to the evidence that was before the delegate”, cannot be accepted. As the applicant correctly points out, the Decision contains no finding that there were no cogent reasons why the Tribunal should not consider or apply the Procedural Instruction. Indeed, the Tribunal does not explain why the Procedural Instruction was relevant to the review or why it was appropriate to apply or consider the Procedure. The Tribunal merely states that it has had regard to the “matters in the Department’s Procedural Instruction”. Moreover, as the applicant also correctly contends, the first respondent’s contention that the evidence before the Tribunal was not materially different to the evidence before the delegate, ignores the fact that the applicant gave evidence at the hearing before the Tribunal and in the absence of a transcript or recording of the hearing, the contention is speculative.

6. It is common ground that the Tribunal's function in undertaking the review of the delegate's decision to cancel the applicant's visa was to conduct a review de novo of the delegate’s decision and to make the correct or preferable decision on the material before it. Also common ground, is the fact that the source of the copied material in the Decision about which the applicant complains, is the delegate’s decision and that there is no attribution to or acknowledgement of the source. However, as to the other considerations identified in LVR and MZZZW as informing the assessment whether the decision-maker brought an independent mind to all aspects of the Tribunal’s task on review, the parties diverge.

7. Without recounting the very long list of examples of copying which the applicant sets out in his written submissions by reference to the table earlier reproduced, the applicant contends that the Tribunal copied many subjective or contentious findings. The first respondent contends the copied material was not controversial and says that for the most part, it related to the factual background and summary of the evidence that was before both the Tribunal and the delegate. The first respondent contends that when considering the entirety of the decision – that which may be discerned from passages where the Tribunal made findings adopting the same or similar language as the delegate – the Tribunal does not reach the same conclusions as to the weight to be attributed to the evidence. The first respondent posits, for example, the Tribunal's findings as to the 'extent of non-compliance', where the Tribunal gave the consideration 'weight' in favour of cancellation, whereas the delegate gave that consideration 'significant weight' in favour of cancellation. The first respondent says that where the Tribunal reached the same conclusion as to the weight in respect of particular considerations, the considerations had little or no weight ascribed to them and were considerations which could not have materially been applied differently – for example the finding 'whether there are any persons in Australia whose visas would, or may, be cancelled under s 140 of the Act'.

8. I do not accept the copied text about which complaint is made, was for the most part, related to the factual background and summary of the evidence. Nor do I accept the “subject matter of the copied material related [only] to the factual background of the review, and the discretionary factors to be taken into account under the Procedural Instructions”. The copied materials include:

   ·a consideration of the same matters, derived from the Procedural Instruction as is evident from the common headings adopted in the Decision and the delegate’s decision;

   ·common findings and language expressing those findings in respect of the preponderance of matters considered;

   ·common or similar attribution of weight to the matters considered;

   ·common departures without explanation from the instruction in the Procedural Instruction to generally weigh the considerations in the applicant’s favour; and

   ·common, apparently erroneous application of some of the considerations in the Procedural Instruction.

   Further, the common summary of the applicant’s response to the Notice at [15] and [20] of the Decision which informed some of the various common considerations and the weight ascribed to them, may suggest that the totality of the applicant’s response was not considered afresh.

9. As to the common findings and weight ascribed to findings made in respect of the various considerations, the Tribunal and the delegate:

   ·ascribed “significant weight in favour of [toward] cancelling the visa”: Decision at [40]; CB48, in respect of the common consideration of “the circumstances in which the ground for cancellation arose” based on the common acknowledgement of the difficulties the applicant faced and common finding that the circumstances were not beyond the applicant’s control: Decision at [38]; CB48;

   ·ascribed “some [significant] weight in favour of [towards] cancelling the visa”: Decision at [26]; CB47, in respect of the common consideration of the “purpose of the applicant’s travel to and stay in Australia”, based on the common finding that the applicant’s purpose was not “in line” with the original purpose and intention of the visa: Decision at [25]; CB47;

   ·ascribed “[significant] weight in favour of [towards] cancelling the visa”: Decision at [30]; CB47, in respect of the common consideration of “the extent of compliance with visa conditions” based on a common finding that the requirement to maintain the correct level of enrolment, AQF Level 7 (Bachelor Degree), is fundamental to the visa grant, and therefore the extent of his non-compliance with the visa condition is significant: Decision at [29]; CB47;

   ·ascribed “only minor [minimal] weight against cancelling the visa”: Decision at [35]; CB48 in respect of the common consideration of “the degree of hardship that may be caused to the visa holder and any family members”;

   ·ascribed “a little weight against cancelling the visa: Decision at [42]; CB48, in respect of the common consideration of “the visa holder’s past and present behavior towards the Department” based on the common observation of evidence [information] to suggest that the applicant has been uncooperative with the Department or departmental staff: Decision at [41]; CB48;

   ·“[did] not [unable to] give any weight for or against a decision to cancel the visa for [under] this consideration”: Decision at [43]; CB49, in respect of the common consideration of “whether there are any persons in Australia whose visas would, or may, be cancelled under s140” based on a common finding that the circumstances of the case were not such that any person’s visa would be consequentially cancelled under s 140 of the Act: Decision at [43]; CB49;

   ·ascribed “little [some] weight against cancelling the visa: Decision at [45]; CB49, in respect of the common consideration of the “legal consequences of a decision to cancel the visa” on the bases of common findings that if the visa is cancelled, “the applicant [would] become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent him from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude [prevent] him from being granted a visa for a specific period”: Decision at [44]; CB49; and

   ·was “unable to give any weight for or against cancelling, or not cancelling the visa due to [for] this consideration”: Decision at [47]; CB49, in respect of the common consideration of “Australia’s international obligations” based on no evidence [information] findings: Decision at [47]; CB49.

10. That which is clear from the above, and as the applicant contended, is that there are strikingly similar and often identical findings made. The language used by the Tribunal to describe the weight ascribed is sometimes different, but in my view and in most cases, the ascribed weight that is described differently, is to the same effect as the weight ascribed by the delegate. More so, since the findings made which underpin the weight ascribed are strikingly similar or identical, the weight in every case points the same way.

11. Furthermore, the first respondent’s contention that where the Tribunal reached the same conclusion as the delegate as to the weight in respect of particular considerations, the considerations had little, or no weight ascribed to them and were considerations which could not have materially been applied differently, is incorrect. For example, as earlier discussed, both the Tribunal and the delegate ascribed significant weight in favour of cancelling the visa, in respect of the common consideration of “the circumstances in which the ground for cancellation arose”: Decision at [40]; CB48.

12. There is also no reason apparent from the materials why the Tribunal could not have ascribed more than “a little weight” to the applicant’s past and present behaviour towards the Tribunal given the absence of any evidence suggesting poor or uncooperative conduct. Alternatively, given the absence of evidence about the consideration, this might also have resulted in assigning the consideration no weight in much the same way that the absence of evidence or information resulted in no weight being ascribed to the consideration of Australia’s international obligations.

13. To similar effect, both the Tribunal and the delegate gave “no weight for or against” cancellation of the applicant’s visa when finding that no person’s visa would be consequentially cancelled under s 140 of the Act: Decision at [43]; CB49. But it was open to the Tribunal for it to have ascribed weight favouring cancellation by reason of that finding, although it must be acknowledged that if regard is had to the Procedural Instruction, generally, the matters identified (this matter included) must be weighed in favour of the applicant not against him: Exhibit R2 at p 77.

14. Comparing the reasoning of the Tribunal and the delegate also discloses the Tribunal copied or adopted that which appears to be erroneous analyses or application of some of the considerations identified in each decision and derived from the Procedural Instruction. First, as the applicant points out, the delegate found, as did the Tribunal in almost identical terms, that if the applicant’s visa is cancelled, “the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia”: Decision at [44]; CB49. However, the effect of ss 14, 15, 82(1), 189 and 196 of the Act is that on cancellation of the visa, the applicant will be liable for detention.

15. The first respondent’s contention that use of the word “may” by the Tribunal, should be viewed in light of the fact that the applicant before it was not in detention, despite having had his visa cancelled, cannot be accepted because if the applicant was an unlawful non-citizen when appearing before the Tribunal, he was then liable to be detained. If the applicant was not then liable to be detained, this could only be because the applicant had obtained a bridging visa awaiting determination of the Tribunal’s review. It is not because he was not in detention.  That an unlawful non-citizen is not in detention does not mean they are not liable to be detained. A better explanation would be the reference, “may be liable”, allows for the possibility the applicant would obtain a bridging visa pending determination of any judicial review application he might have made. But I speculate. Nonetheless that there is the possibility of obtaining (or maintaining) a bridging visa means the use of “may” by the Tribunal was not obviously wrong. Nevertheless, the use of identical language to describe that consequence, and the substantially similar language to describe the other consequences identified in common with the delegate without attribution or explanation, lends weight to the applicant’s copying complaint.

1. Second, both the Tribunal and the delegate considered Public Interest Criteria (PIC) 4013 in Sch 4 to the Regulations: Decision at [44]; CB49. Neither decision records why this was considered a legal consequence of visa cancellation. Both the Tribunal and the delegate record they considered the Procedural Instruction. As earlier reproduced, the Procedural Instruction provides as to legal consequences that consideration be given to “[w]hether there are mandatory legal consequences to a cancellation decision”: Exhibit R2 at p 77. It is not suggested that PIC 4013 falls in that description. Indeed, the first respondent contended that the Tribunal “considered the possible legal consequences of the decision, including outcomes that could flow from the application of [PIC] 4013 (in circumstances where that might be relevant)”. But I do not accept the Tribunal was considering the possible legal consequences at [44] of the Decision. Though the Tribunal was entitled to take into account the possible legal consequences, it did not say that this was what was being considered. Indeed at [45] of the Decision the Tribunal notes that “these are mandatory and intended consequences of the legislation”. The reference to “these consequences” is clearly a reference to all the identified consequences in [44]. All that is otherwise apparent is the Tribunal’s statement that it has had regard to the matters in the Procedural Instruction, the adoption of the heading related to that instruction and the reasoning also deployed by the delegate. Consequently, I agree with the applicant that the fact the Tribunal appears to have copied the delegate’s reasoning in this regard without correcting the erroneous application of the Procedural Instruction as it concerns the legal consequences of the visa cancellation, and I would add, without explaining that it considered “possible legal consequences,” suggests the review was not conducted afresh.

2. Third, the Procedural Instruction suggests as a relevant matter for consideration is “[t]he extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions”: Exhibit R2 at p 77. This consideration is plainly concerned with the visa holder’s compliance with visa conditions otherwise than the instant breach of condition triggering consideration of the visa cancellation under s 116 of the Act. Both the delegate and the Tribunal “consider[ed] that the requirement to maintain the correct level of enrolment, AQF Level 7 (Bachelor Degree), [was] fundamental to the visa grant” and “[t]herefore . . . [found] the extent of his non-compliance with the visa condition to be significant”: Decision at [29]; CB47. How this is relevant to a consideration of whether the visa holder has otherwise complied with visa conditions is not apparent nor explained. This copying also suggests the Tribunal’s review was not conducted afresh.

3. Fourth, the Procedural Instruction provides that “[g]enerally, matters must be weighed in favour of the visa holder, not against the visa holder”: Exhibit R2 at p 77. Both the Tribunal and the delegate nonetheless weighed several of the considerations against the applicant: see Decision at [26], [30], [40]; CB47, CB48, CB49. The reasoning adopted in each case was the same. And whilst the Tribunal was entitled to weigh the matters as it saw fit in the circumstances, that it purported to have regard to the Procedural Instruction, it did not explain its reasons for departing from it, and adopted without attribution the delegate’s reasoning and weighting against the applicant, which also suggests the Tribunal’s review was not undertaken afresh.

4. I do not accept as the first respondent submitted that the copied material was not controversial. In a non-adversarial environment under which the review was conducted, the notion that something is or is not controversial may be misplaced. But in any event, that the applicant sought review of the delegate’s decision suggests that the decision under review and the reasons given for it are controversial in the sense that the applicant disagrees. Thus, the adoption of the delegate’s reasoning by the Tribunal (without attribution or explanation) going to matters – for example, arising from the considerations identified in the Procedural Instruction and the general weighting ascribed in favour or against the applicant – was copying that was controversial since the applicant was before the Tribunal to complain about the delegate’s decision. Nor do I accept that the so-called similarity of the claim before the Tribunal and the delegate explain the copying. First, there was no claim as such. The s 116 visa cancellation process is commenced by the delegate. That which was common was the applicant’s response to the Notice. Second, in conducting the review, the Tribunal was for itself to exercise the discretion in s 116 and was not confined to the considerations identified by the delegate. The discretion to be exercised by the Tribunal and the considerations which inform its exercise are not expressly constrained by the Act, and as the applicant correctly contends, the same facts may give rise to a number of ways in which the discretion may be exercised.

5. The first respondent says that when the Decision is read as a whole, the extent of the copying is not significant. If the assessment amounted to a mere comparative word count that might be true, but as the earlier analysis shows, that which was copied was important findings, reasoning and whether the weight ascribed favoured was against cancellation. All this without attribution, acknowledgement or explanation. It is these matters that appear to have decided the review. On that measure, the copying was significant in as much as it was important or noteworthy. I accept that the Decision contains reasoning which is not found in the delegate's decision: see Decision [45] and the consideration of “other relevant matters” commencing at [48]. But that is not enough to assuage the general impression that the Tribunal did not bring its mind to bear on the review afresh, free of the delegate’s conclusion and reasons therefor.

6. Finally, it is plain that the copied material was used by the Tribunal to address the individual circumstances of the applicant in considering whether the visa should be cancelled, or as the Full Court in LVR expressed it at [92], “in evaluating the claim or application”: see Decision at [15], [20], [32], [37]-[38]; CB46, CB47, CB48, CB49. As the Full Court in MZZZW observed, the “Tribunal’s task includes exposing the reasoning of that Tribunal, as constituted, for making material findings of fact and setting out the material on which those findings are based, not the reasons of some other decision-maker”: at [66]. The overall impression gained from the analysis above is that the material findings of fact and the reasoning adopted by the Tribunal were that of the delegate, which were reproduced in the Decision without attribution or acknowledgement. The Tribunal failed to bring its own independent mind to the review. Consequently, I consider the Tribunal failed to discharge the statutory task imposed on it to consider the matter on review for itself afresh, so as to make a decision it considered the correct and preferable one. And for these reasons, the applicant’s first ground of review is made good.

   Ground 2

7. By ground 2, the applicant contends that the Tribunal denied him procedural fairness by failing to give to the applicant clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review as required by s 359A(1)(a) of the Act. The particulars of the information the applicant says should have been given were the substantial parts of the delegate’s decision itself, as well as those parts that the Tribunal proposed to adopt as its own.

8. Section 359A(1)(a) of the Act (as then in force) provided:

   (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

   . . .

9. There is no suggestion and no reference is to be found in the Decision, that the information the applicant identifies as being caught by s 359A(1)(a) of the Act was put to the applicant at the Tribunal hearing pursuant to s 359AA (as then in force), so as to engage the exception in s 359A(3). The applicant seeks to make good ground 2 by reference to what is said by the Full Court in MZZZW in respect of the corresponding obligation in s 424A(1) (as then in force) in the context of substantial copying without attribution of a decision, namely:

   92. We consider that both the fact that Member Boddison proposed to adopt, in wholesale terms, substantial parts of the Corrigan decision itself, as well as those parts she in fact proposed to adopt as her own, were “information” that was required to be given to the appellant as part of the Tribunal’s review. Both her proposal to take that course, and the material from the Corrigan decision she proposed to use (it having no legal status, as Gleeson CJ observed in Wang [2003] HCA 11; 215 CLR 518) would have been a reason or part of a reason for her decision to affirm the delegate’s decision. The parts of the Corrigan decision which Member Boddison proposed to copy and use as her own contained, to use the words of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [17], “in their terms a rejection, denial or undermining” of the appellant’s claims.

   93. In the circumstances, as we found them to exist in our consideration of the first ground, this would be more than mere disclosure of the Tribunal’s proposed and prospective reasoning process, and more than disclosure of “every matter the tribunal might think relevant” to the review: cf SZBYR at [15]. That is because those parts of the previous decision record by Member Corrigan are, in this context, better seen as “evidentiary material or documentation” (see Minister for Immigration and Citizenship v SZLFX[2009] HCA 31; 238 CLR 507 at [23], referring to SZBYR) which the second Tribunal proposes to adopt in identical terms. That is not a matter of which a review applicant could be expected to have notice. In that sense, it is analogous to the need to alert a review applicant to any departure from findings made in her or his favour by a delegate as the High Court held in SZBEL [2006] HCA 63; 228 CLR 152.

   94. Of course in the current context no amount of compliance with s 424A could have cured the jurisdictional error we have found existed in Member Boddison’s decision. In a review where some use is sought to be made of findings of a previous tribunal in respect of the same review applicant, falling short of an abdication of the tribunal’s task (and assuming such a technique could be lawfully adopted) we consider that compliance with s 424A is required.

10. The first respondent suggests that the Full Court’s observations above in light of what is said at [94] can only be understood as arising on the specific facts of the Tribunal seeking to rely upon findings made by a previous Tribunal (as was the case in MZZZW), not a delegate of the first respondent. This contention is rejected. The “circumstances, as [the Court] found them to exist” as mentioned at [93], were that of a Tribunal member adopting the reasoning processes, findings and conclusions of another, without acknowledgement or attribution, as if they were the Tribunal member’s own. It matters not that the other person was another Tribunal member. The same result would likely ensue by copying without acknowledgement or attribution the reasoning processes, findings and conclusions of a ministerial delegate whose decision is the subject of review or the proposed reasoning processes, proposed findings and proposed conclusions for which a party advocated.

11. The first respondent also contends that if MZZZW has a broader application, it could only apply in circumstances where the applicant had not provided a copy of the delegate's decision record for the purpose of the Tribunal's review, as then in those circumstances s 359A(4)(b) (as then in force) had the effect that the obligation did not apply. Section 359A(4)(b) provided that s 359A did not apply to information the applicant gave for the purposes of the review. The first respondent contends that as the applicant gave the Tribunal the delegate’s decision, there was no requirement for the Tribunal to put the delegate's decision to the applicant under s 359A(1) of the Act and therefore no jurisdictional error is made out.

12. This contention is rejected. It misses the import of the judgment in MZZZW. As the Full court made clear, it was not the text of the earlier decision which was information. Information to which the obligation under s 424A(1) of the Act was directed was “the fact that [the Tribunal member] proposed to adopt, in wholesale terms, substantial parts of [another member’s] decision itself, as well as those parts [the Tribunal member] in fact proposed to adopt as [their] own”: MZZZW at [92]. In the circumstances I have earlier found, the Tribunal plainly considered (as is evident by their adoption) that the delegates reasoning that would be adopted would be at least part of the reason for affirming the decision under review. Thus, the information to which the obligation under s 359A(1)(a) was here directed, at the very least, was the fact that the Tribunal proposed to adopt some, not insignificant, parts of the delegate’s factual findings and reasoning set out in the delegate’s decision as its own. The Tribunal did not give the applicant that information and so did not afford the applicant procedural fairness because the applicant did not have the opportunity to comment on or respond to the information. Ground two is also made out.

13. As whether the applicant’s visa should be cancelled involves a broad discretion, the errors identified are plainly material.

14. I therefore consider that it is necessary in the interest of the administration of justice that the 35-day period within which the applicant’s judicial review application may be made be extended. The period will be extended to 7 May 2020. The decision of the Tribunal should be quashed, and the review of the delegate’s decision should be remitted to the Administrative Review Tribunal for determination according to law.

15. The first respondent should pay the applicant’s costs in the amount allowed for a concluded migration proceeding by item 3 of Div 1 Pt 2 Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

Associate:

Dated:       10 December 2024