Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 687
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 687
File number: SYG 904 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 25 August 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal’s refusals of the applicant’s adjournment requests were unreasonable – jurisdictional error identified –writs issued. Legislation: Migration Act 1958 (Cth), ss 366, 476
Migration Regulations 1994 (Cth), Part 500 and cl 500.214 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Brar v Minister for Immigration & Anor (No 2) (2017) 322 FLR 81
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Border Protection v Dhillon (2014) 227 FCR 525
MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712
SZNNE v Minister for Immigration & Citizenship [2010] FCA 194
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of hearing: 12 August 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms A Wilford Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 904 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALTAF AHMED KHAN MOHAMMED
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
25 AUGUST 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 12 March 2018.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.
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 KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 2). He first arrived in Australia in 2008 and has resided in Australia since that time on student, temporary graduate and related bridging visas (CB 200).
On 2 September 2016, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”) (CB 1-29). The applicant’s wife and three children were included in that visa application as members of his family unit (CB 3-10). They are not a party to this proceeding and information related to the applicant’s wife and children will not be discussed further in this judgment. Annexed to the applicant’s visa application were a variety of supporting documents (CB 30-88), including a “Letter of Sanction” from Andhra Bank related to an “Education Loan” (CB 45-47) and a bank statement from National Australia Bank (CB 48).
On 23 November 2016, the then Department of Immigration and Border Protection (the “Department”) asked the applicant to provide further information (relating to financial capacity) in support of his visa application (CB 93-100).
On 10 December 2016, a representative from Bluesky Immigration and Students Consultancy Services (the “applicant’s former representative”) provided material to the Department via email in response to the Department’s request for more information (CB 102-125).
On 11 January 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 126-133). The delegate was not satisfied that the applicant met the requirements set out in cl 500.214 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). That is, the delegate was not satisfied that the applicant had “provided sufficient evidence of financial capacity” (CB 128).
On 24 January 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 134-136).
On 9 February 2018, the Tribunal invited the applicant (through GEM Australia (the “applicant’s representative”)) to attend a hearing before it on 9 March 2018 (CB 142-147). Importantly, that correspondence asked the applicant to provide further material, as follows (CB 146):
In addition, please provide the following information so that a decision can be made as quickly as possible:
•Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.
We request that you provide the above information and any other evidence to us at least 7 days before the hearing date.
On 19 February 2018, the applicant’s representative requested an adjournment of the scheduled hearing on the basis that the applicant was overseas visiting his father who was “seriously unwell”. A medical certificate in that regard was included with that adjournment request (CB 148-151).
On 20 February 2018, the Tribunal refused to grant the adjournment and notified the applicant (through his representative) that the hearing would instead be conducted by telephone (CB 151-165). That correspondence again requested further material, as follows (CB 155):
In addition, please provide the following information so that a decision can be made as quickly as possible:
•Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator.
On 5 March 2018, the applicant’s representative advised the Tribunal, by email, that the applicant had “decided to return to Australia before the scheduled hearing date and attend the hearing in person” (CB 159).
On 9 March 2018, the applicant appeared before the Tribunal at the scheduled hearing. His representative did not attend that hearing (CB 175-177).
Additional materials were provided to the Tribunal at the hearing (CB 169-193), including a Commonwealth Bank “Transaction Listing” (CB 171-172).
On 12 March 2018, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 198-208).
On 3 April 2018, the applicant sought judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s written statement of decision and reasons is 11 pages long and spans 40 paragraphs. The final four pages of the decision contain extracts of relevant provisions from the “IMMI 17/012 – Financial capacity instrument” (CB 205-208).
The Tribunal began by identifying the visa decision under review, confirming that the applicant had applied for the visa on 2 September 2016 and outlining the subclasses contained in the Class TU visa at the time of that application (at [1]-[2]).
The Tribunal explained that the delegate was not satisfied that the applicant had “genuine access to funds” to cover the costs and expenses of the applicant’s intended stay (including the expenses of each member of the applicant’s family unit) (at [3]) and refused the applicant’s visa on 11 January 2017. The Tribunal noted that the applicant had applied to the Tribunal for review of that decision on 24 January 2016 and that, on 9 February 2018, the applicant had been invited to attend a hearing before it (at [4]).
The Tribunal outlined the information requested from the applicant as follows:
5.The invitation to the hearing also included information relating to what evidence the applicant should provide to the Tribunal before his hearing. He was asked to provide documents that demonstrate he has genuine access to sufficient funds to meet his costs and those of his family members covering the relevant period of intended stay, including course fees, living costs, school costs (where relevant) and travel costs.
6.The applicant was informed he should provide a copy of his current Confirmation of Enrolment (COE). The applicant responded to the hearing invitation on 20 February 2018 and requested a postponement on the basis that he would be overseas on the date of the hearing and indicating that he and the secondary applicants were not planning to return to Australia until 28 April 2018. A copy of the applicant’s Bridging Visa B (BVB) was provided to the Tribunal indicating the BVB, to travel to India because the applicant’s father is ill, was granted on 6 February 2018, valid to 6 May 2018. The member considered the request and did grant the postponement, but instead, in the circumstances offered the applicants the option of attending the hearing by phone. The Tribunal subsequently received an email from the representative, attaching a written response to the hearing invitation, dated 5 March 2018, advising that the applicant had decided to return to Australia to attend the hearing and that he would be attending, but the secondary applicants would not.
The Tribunal noted that the applicant had not provided any information prior to the hearing and that SMS hearing reminder messages had failed. The Tribunal had regard to Departmental movement records and the applicant’s own evidence that he was offshore at that time (at [7]).
The Tribunal confirmed that the applicant appeared at a hearing before it on 9 March 2018 and provided additional documents at that time (at [8]). It was noted that the applicant had been assisted by a migration agent in relation to the review, but that agent did not attend the hearing (at [9]).
The Tribunal then explained the relevant visa criteria and the issue for the Tribunal’s consideration in the matter, as follows:
11.The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. All criteria must be satisfied at the time a decision is made on the application. The issue in the present case is whether the applicant meets cl.500.214: genuine access to funds for the period of his intended stay.
Genuine access to funds (cl.500.214)
12.Clause 500.214 requires the applicant to meet certain financial requirements. If the applicant is required to do so by the Minister, they must give evidence of financial capacity that satisfies the requirements set out in an instrument: cl.500.214(3). All primary applicants must also satisfy the Tribunal that, while they hold the visa, sufficient funds will be available to meet their costs and expenses during their intended stay in Australia, as well as the costs and expenses of any members of their family unit who will be in Australia: cl.500.214(2). The Tribunal must also be satisfied that the applicant will have genuine access to the relevant kinds of funds.
The Tribunal then considered the applicant’s personal circumstances, detailing the applicant’s family composition (at [13]) and his educational history (at [14]). The Tribunal also noted that the applicant’s family members were offshore at the time of its decision (and had been since February 2018) (at [15]).
The Tribunal continued:
16.At the time of application, the delegate calculated the applicant’s costs to support himself and his family while he studied the course related to his 2016 visa application, during the period of his intended stay, to be about $66,000. The delegate was not satisfied the applicant had genuine access to sufficient funds totalling or around this amount.
17.The Tribunal’s view is that a man with a dependent wife and three dependent children - two of whom would have been babies at the time of application and, at the time of this decision, are about two and a half years of age - would have substantial day-to-day living costs to meet, as well as his course fees. This includes, for example, paying overseas student fees for his eldest child to attend school, as well as the applicant’s own course fees, health fund fees, rent, utilities and other day-to-day costs that a family of five would normally incur. The applicant said that the fees for his son’s school attendance during the period of intended stay will be around $6,700 and gave estimates of some of his other expenses, detailed below.
The Tribunal acknowledged that the requirements of financial capacity are set out in IMMI 17/012 (extracts of which were attached to the Tribunal’s reasons) (at [18]) and that the applicant had provided the Tribunal with a Confirmation of Enrolment (“CoE”) showing that he had enrolled in a Diploma of Business the day before the hearing. The Tribunal confirmed that it would review the matter and that it needed to be satisfied that the applicant had sufficient funds to support himself for his “intended length of stay” based on the CoE (indicating that the relevant course would run from April 2018 to April 2019) (at [19]).
The Tribunal stated that it had discussed the cost of living in Australia for the applicant and his family and likely expenses for the period from April 2018 to April 2019. The applicant estimated the cost would be $45,000.00 and, while considering that amount to be “conservatively low”, the Tribunal was prepared to accept the amount. The Tribunal noted that the applicant had advised the Tribunal that he brought back $10,000 in cash when he returned from India (the day before) and that his wife’s family would give his wife and three children the same amount to bring with them when they return to Australia in April 2018 (totalling $50,000) (at [20]).
The Tribunal detailed the estimated expenses outlined by the applicant (at [21]) and discussed details of the applicant’s paid salary from working in a warehouse. It was also noted that, while the applicant gave evidence in relation to tutoring work done by himself and his wife, in the absence of any documentary evidence, the Tribunal was not willing to consider any claimed additional income (above any amounts deposited into the applicant’s bank account) (at [22]).
The Tribunal noted the applicant’s evidence that his wife’s father and grandfather would be funding his study and that his wife’s grandfather would gift them between $40,000 and $50,000 (some of which, it was noted, the applicant claimed he would repay upon his return to India (at [23]).
The Tribunal continued:
24.The applicant provided the Tribunal with a printout from “The Hindu”, an Indian media outlet, dated 10 August 2016. He was asked what the relevant information to his case was in the article and said that it shows funds can only be transferred outside India for students when they have finished the first semester and can provide results. The article is dated August 2016, more than 18 months ago, so is not considered to be reliable current information.
The Tribunal explained that the applicant had provided identity documents relating to his wife’s grandmother (who, the applicant claimed, would be providing significant financial support to the applicant and his family for the period of their stay. The Tribunal also detailed the financial documents the applicant had provided (at [25]).
The Tribunal discussed the issue of available funds with the applicant at the hearing as follows:
26.The applicant said at the hearing he brought $10,000 cash with him when he returned to Australia, on 7 March 2018, to attend the Tribunal hearing, because he understands this is the maximum amount in cash he can bring into the country. He provided a Commonwealth Bank account statement in his name, date 8 March 2018, the day before the Tribunal hearing, that shows a $10,000 cash deposit to the account was made at Bankstown.
27.The Tribunal, referring to the $10,000, asked the applicant how the remainder of the money will be sent to him in Australia to fund his and his family’s period of intended stay and said that when his wife and three children, who are currently in India, return to Australia at the end of April 2018 they will bring additional cash with them. He confirmed in his oral evidence that they will bring $10,000 each. He said the money will be given to them by his wife’s grandfather and the total will be, including the $10,000 the applicant brought with him on 7 March 2018, around $40,000 to $50,000.
The Tribunal found as follows:
28.The Tribunal does not consider there is reliable evidence to indicate that the additional funds (in addition to the $10,000 the applicant brought with him) will be transferred to Australia and, in any event, there is not a reliable paper trail to indicate that the funds have or will be disbursed in the way the applicant claims they will.
29.The applicant provided a COE indicating his enrolment in a Diploma of Business for the period April 2018 to April 2019. The applicant provided supporting documents from the education provider, Hannay International College, provider code 03463M, that indicate the course he is enrolled in has total tuition fees of $6,300 and that $1,975 due on 08/03/2018. The applicant said at the hearing he paid $1,500 to the provider on 8 May 2018, the day before the hearing, but did not provide any documentary evidence corroborating this oral evidence.
30.Just because the $10,000 has been deposited to the Commonwealth Bank account in the applicant’s name does confirm to the Tribunal where the funds came from, or whether the funds will remain in the bank account and/or be used by the applicant and his family for the period of their intended stay.
The Tribunal formed the view that the applicant had not engaged in meaningful study since 2015, that the applicant had enrolled in a course of study the day before the Tribunal hearing to support his visa application and deposited funds ($10,000) into his bank account the day before the hearing to further support his visa application. The Tribunal did determine that there was no reliable evidence to indicate where the funds came from or that the funds would be used to support the applicant and his family (at [31]).
The Tribunal continued:
32.Whilst all these matters individually do not, prima facie, go to whether the applicant has genuine access to funds to support himself and the secondary applicants during the period of intended stay (as a student), it does go to the credibility of his claim, in the absence of reliable corroborative evidence, that the funds, $40,000 to $50,000, will be transferred to him from relatives in India. It is accepted by the Tribunal, as there is a bank statement that shows it clearly, that the applicant deposited $10,000 into his Commonwealth Bank account on 8 March 2018, but no reliable documentary evidence about where he obtained the funds, in the view of the Tribunal.
The Tribunal did not consider that evidence that the applicant’s wife’s grandfather had means and income supported a finding that the funds would be made available to the applicant and his family or that the applicant’s in-laws would loan or gift the applicant $40,000-$50,000 to support his study in Australia. In that regard, the Tribunal noted that the applicant had provided no evidence of any other funds available “that he [could] personally access” at the time of the hearing or the Tribunal’s decision (at [33]).
The Tribunal then noted that:
34.At the end of the hearing, the applicant was asked if he had provided everything he wished to in support of his application and said he provided what he could, but that he had not been given much time to get the evidence. The Tribunal told him that it disagreed with this statement as he had lodged his application over a year before the hearing and was informed of his scheduled hearing in line with statutory requirements, that is more than two weeks prior to the hearing. The applicant was sent a written invitation on 9 February 2018, four weeks before his scheduled hearing. He asked for a hearing postponement on 20 February 2018 because he and his family were overseas in India visiting the applicant’s sick father until 28 April 2018. In the circumstances, he was offered the option of attending the hearing by phone, which is not unusual in such circumstances.
The Tribunal explained that the applicant needed to meet all primary criteria for the visa at the time of its decision and confirmed that it had considered the evidence and the applicant’s circumstances. Ultimately, the Tribunal was not satisfied that the applicant had genuine access to sufficient funds to meet his family’s expenses for the period of his intended stay (at [35]-[36]).
On that basis, the Tribunal was not satisfied that the applicant met cl 500.214 in Schedule 2 of the Regulations and thus did not meet the criteria for the grant of the visa (at [37]-[38].
The Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [40]).
APPLICATION IN THIS COURT
The application for judicial review filed by the applicant on 3 April 2018 contains three “grounds of review”, as follows (without alteration):
1.The Administrative Appeal Tribunal (the tribunal) shows unreasonableness in paragraph 30 of the decision which states, “Just because the $10,000 has been deposited to the Commonwealth bank account in the applicant’s name does confirm to the Tribunal where the funds came from, or whether the funds will remain in the bank account and/or be used by the applicant and his family for the period of their intended stay.” The $10,000 deposit in bank shows that I have access to these funds and these funds available to me during my course of study.
2.In paragraph 31(a) of the AAT decision which states, “has not engaged in any meaningful study since 2015.” The tribunal made the jurisdictional error to state that "in any meaningful study." I am enrolled in Diploma which is a meaningful study for me and I have genuine intention to complete this course.
3.In paragraph 30 of the tribunal decision, the tribunal’s finding is against natural justice that I do not meet the criteria for the grant of a Subclass 500 (Student) visa. I fully met all the requirements of the Subclass 500 Student visa.
In support of the application for judicial review, the applicant affirmed and filed an affidavit annexing a copy of his passport, the delegate’s decision and associated notification letter and a copy of the Tribunal’s decision. That affidavit sets out some of the applicant’s migration history and also states as follows (without alteration):
5.The tribunal made jurisdictional error, shows unreasonableness and their decision is against natural justice.
On 26 April 2018, procedural orders were made by Registrar Tesoriero of this Court giving the applicant an opportunity to file any amended application and affidavit evidence. Further orders were made by Registrar van der Westhuizen on 2 March 2022 giving the applicant an opportunity to file written submissions.
On 10 August 2022, the applicant provided some material to my chambers by way of email. That material consists of copies of correspondence from the Tribunal and is largely contained in the Court Book. Specifically, the applicant provided copies of letters from the Tribunal to the applicant and his representative dated 9 February 2018 and 20 February 2018, together with information sheets and forms attached. The letters (but not the attached forms) appear in the Court Book at pages 143-147 and 152-165. The email from the applicant and the attached materials are marked as Exhibit 2.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 3 April 2018, a Court Book numbering 208 pages (marked as Exhibit 1), written submissions filed by the Minister on 29 July 2022 and the affidavit of service of Annabelle Victoria Jean Wilford affirmed and filed on 5 August 2022 (the “Wilford affidavit”).
The applicant appeared before this Court without legal representation. An interpreter was made available (as requested by the applicant in his judicial review application) but was ultimately not utilised as the applicant indicated at the hearing that he preferred to proceed in English. The Court confirmed with him that he had copies of the materials before the Court (as outlined above).
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions akin to this matter, they most commonly include (but are not limited to) the following types of “mistakes”:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that the letter he had received from the Tribunal inviting him to attend a hearing had stated that, if he had any issues or problems, he would need to apply to the Tribunal to postpone the hearing. He noted that his agent had asked the Tribunal to postpone the hearing to allow him sufficient time to return from India, however, the Tribunal refused to do so. The applicant explained that he flew back from India to attend the hearing (arriving in Australia two days prior to the hearing and leaving his wife and children in India during what was, for them, a difficult time). When asked if he had requested a further adjournment when he appeared before the Tribunal, the applicant said that he had done so – noting that he had flown back to Sydney solely for the purpose of attending the Tribunal hearing.
The applicant also indicated that he was concerned that the Tribunal, while initially saying that the issue before it “related to finance and whether he had money to study”, went on to consider “other issues which had nothing to do with the issue of finance”.
These issues, to the extent that they give rise to a question of jurisdictional error, will be considered by the Court below.
CONSIDERATION
The Adjournment Requests
As outlined above, in oral submissions to the Court, the applicant stressed that his main concern was that the Tribunal had refused to grant him an adjournment (which, he says, he requested during the hearing) despite the fact that he had only been back in Australia for two days prior when he hearing occurred.
The Court will consider whether the Tribunal acted unreasonably in the circumstances.
For the sake of clarity, the Court considers that the applicant made two adjournment requests in this matter (which the applicant confirmed in oral submissions before the Court) – one prior to the Tribunal hearing (made on the applicant’s behalf by his representative) and one at the hearing itself.
The two adjournment requests will be considered below.
The first adjournment request
As detailed above, on 19 February 2018, the applicant’s representative requested an adjournment of the hearing (the “first adjournment request”) on the basis that the applicant was overseas visiting his father who was “seriously unwell”. A medical certificate in that regard was provided to the Tribunal (CB 148-151).
On 20 February 2018, the Tribunal refused to grant the first adjournment request and notified the applicant (through his representative) that the hearing would instead be conducted by telephone (CB 151-165).
On 5 March 2018, the applicant’s representative advised the Tribunal (by email) that the applicant had “decided to return to Australia before the scheduled hearing date and attend the hearing in person” (CB 159).
The Court does not consider there to be any error in the Tribunal’s response to this adjournment request. The Tribunal was advised that the applicant and his family were out of the country and, in response, the Tribunal offered the applicant the option of appearing at that hearing by telephone.
Section 366 of the Act expressly allows for the giving of evidence before the Tribunal by telephone. At the time of the Tribunal’s decision, s 366 of the Act provided as follows:
366 Oral evidence by telephone etc.
(1)For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
…
There is nothing that prohibits the Tribunal from conducting hearings by telephone: s 366 of the Act; Brar v Minister for Immigration & Anor (No 2) (2017) 322 FLR 81 at [16]; Minister for Immigration & Border Protection v Dhillon (2014) 227 FCR 525 at [28]; SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 at [24]-[25]; MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87 at [30]; SZNNE v Minister for Immigration & Citizenship [2010] FCA 194 at [49].
Further, there is no evidence before the Court to suggest that the applicant (or his representative) objected at that stage to a telephone hearing or that a telephone hearing would have been in any way inadequate.
No error arises in relation to the first adjournment request.
The second adjournment request
At the hearing of the matter, the applicant explained to the Tribunal that he had not been given sufficient time to get his evidence together. The Court understands this to be a further adjournment request (the “second adjournment request”).
The Tribunal’s response to that request was as follows:
34.At the end of the hearing, the applicant was asked if he had provided everything he wished to in support of his application and said he provided what he could, but that he had not been given much time to get the evidence. The Tribunal told him that it disagreed with this statement as he had lodged his application over a year before the hearing and was informed of his scheduled hearing in line with statutory requirements, that is more than two weeks prior to the hearing. The applicant was sent a written invitation on 9 February 2018, four weeks before his scheduled hearing. He asked for a hearing postponement on 20 February 2018 because he and his family were overseas in India visiting the applicant’s sick father until 28 April 2018. In the circumstances, he was offered the option of attending the hearing by phone, which is not unusual in such circumstances.
The question before the Court is whether the Tribunal acted unreasonably in refusing to grant the applicant the second adjournment request in light of the specific circumstances of this case.
In this regard, the Court notes the decision of in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 per Wigney J as it relates to the question of adjournments, as follows:
41.The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g)There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h)The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i)It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
42.The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?
The Court considers that the Tribunal’s decision to refuse the second adjournment request was legally unreasonable and lacking an intelligible justification. In this regard, the Court also references the High Court’s decision in Li as follows:
66.This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
76.As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
It is widely accepted that there are no set rules which must be applied when a Tribunal is asked to adjourn a matter. Each adjournment request should be considered in its own factual scenario. Context matters.
Here, the applicant and his family were in India visiting his sick father. The applicant’s representative had provided the Tribunal with a medical certificate from the relevant hospital in India to confirm this (CB 150). It is noted that the Tribunal appeared to accept that the applicant’s father was unwell (or at the very least did not doubt the applicant’s evidence in that regard) (at [34]).
Having been refused the first adjournment request, the applicant left his wife and children in India to fly back to Sydney to attend his Tribunal hearing in person, arriving on 7 March 2018 (CB 169). The Tribunal hearing took place on 9 March 2018 (CB 166) – only two days after the applicant returned to Australia. That means, in effect, that the applicant had only two days “on the ground” (during what was clearly an emotionally challenging period in his family’s life) to gather and present the evidence needed to advance his case.
At the hearing of the matter, the Tribunal asked the applicant “if he had provided everything he wished to in support of his application”. In response, the applicant told the Tribunal that “he provided what he could, but that he had not been given much time to get the evidence”. The Tribunal seems to have disagreed on the basis that the applicant had been given the required “two weeks notice” that the hearing would occur.
With respect, that analysis is lacking. In the specific context of this matter, the applicant, having only been back in Australia for two days, provided the Tribunal (at the hearing on 9 March 2018) with the evidence and documentation he had available or was able to arrange within that time period, including a bank statement to show that he had deposited funds of $10,000 (which he claimed to have brought back with him from India) and enrolling in a course of study. But he clearly wanted to present “more”.
The Court considers that the refusal of an adjournment in the circumstances of this matter was, contextually, plainly unjust. This was the first occasion that the matter had been listed for a Tribunal hearing. It was not, for example, a matter in which multiple adjournments had been granted and where the Tribunal determined that “enough was enough”. Further, the applicant and his family were overseas with his sick father and, having heard nothing from the Tribunal in over a year, was then invited to attend a hearing scheduled to take place at a time when he and his family would be in India caring for an ill relative. He then flew back to Australia, ostensibly to gather the material he needed. However, with only two days within which to gather that information, he was unable to do so. Despite the applicant’s efforts, he indicated that he required additional time to provide all relevant material in support of his application. In effect, two days was simply not enough time for him to do what he needed to do to advance his case.
The applicant’s request for more time was entirely reasonable in the particular circumstances of this case. The Tribunal’s refusal to adjourn, in turn, was entirely unreasonable. By reason of the refusal of the second adjournment request, the Tribunal risked denying the applicant an opportunity to present his evidence (evidence which, on the Tribunal’s own findings, was lacking) and, arguably, obtain the visa he was seeking.
By failing to grant the second adjournment request, the Tribunal acted unreasonably and has, accordingly, fallen into jurisdictional error.
In circumstances where an issue raised by the applicant at the hearing has identified jurisdictional error on the part of the Tribunal, it is not necessary for the Court to consider the applicant’s further concerns raised at the hearing or in his grounds of review.
CONCLUSION
The applicant has identified jurisdictional error on the part of the Tribunal.
The Tribunal’s decision will be set aside and the matter will be remitted to the Tribunal for rehearing.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 25 August 2022
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