Mukunga v Minister for Immigration and Anor

[2020] FCCA 1561

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUKUNGA v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1561

Catchwords:

MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359, 368, 473EA(3)

Migration Regulations 1994 (Cth), cl.500.212

Cases cited:

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80

Applicant: HERBERT MUKUNGA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS  

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 332 of 2019

Judgment of: Judge Vasta

Hearing date: 11 June 2020

Date of Last Submission: 11 June 2020

Delivered at: Brisbane

Delivered on: 16 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Blades

Solicitors for the Applicant: Loughton Yorke Lawyers

Counsel for the First Respondent: Ms Taggart

Solicitors for the First Respondent: Australia Government Solicitor

ORDERS

1. The Application filed on 20 August 2019 as amended on 23 May 2020 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 332 of 2019

HERBERT MUKUNGA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 3 August 2019, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the Delegate not to grant the Applicant, Herbert Mukunga, a student Visa.  On 20 August 2019, the Applicant asked this Court to review that decision.

2. The Applicant is a citizen of Zimbabwe and came to Australia in 2011 on a student visa.  He has been granted further student visas whilst completing various courses.  On 13 March 2018, the Applicant lodged a further student Visa application which is the subject of this present proceeding.

3. The Delegate refused to grant the Visa and the reasoning of the Delegate was that the Applicant did not fulfil cl.500.212 of the Migration Regulations 1994 (Cth), in that he did not satisfy the criteria as a “genuine temporary entrant”.

The Application to the AAT

1. The Applicant applied for a review of the Delegate’s decision with the AAT on 11 May 2018.  The Tribunal acknowledged receipt of the application for review on 14 May 2018.  In that acknowledgement, at CB 80, the Tribunal made it clear to the Applicant that it was “important that you… tell us immediately if your personal circumstances change and this is relevant to the review of the decision…”

2. On 17 May 2019 (over a year later), the AAT wrote to the Applicant, inviting him to provide information to them.  In that letter, at CB 84, the Applicant was reminded that it was a requirement of the visa for him to be:

   a)enrolled in a registered course of study; and

   b)a genuine Applicant for entry and stay as a student.

3. He was invited to give, in writing, information about the course of study he was undertaking and his entry and stay in Australia as a student.  The information was able to be given online.  Near the end of the letter, it was said “…if your circumstances have changed and you no longer wish to proceed with this application for review, please complete a withdrawal form…”

4. The Applicant was also given a copy of direction number 69 which was applicable for student visas.

5. The Applicant wrote a five-page submission as to these matters within the timeframe specified by the AAT.  In that submission, the Applicant relevantly stated:-

   a)that his enrolment would conclude in July 2019 consistent with the confirmation of enrolment which had been provided to the Delegate (that CoE is at CB 75);

   b)that he was currently in his final semester and was going to finish his course in July this year;

   c)that he wanted to complete this course before he returned back to his home country;

   d)that once he finished his degree and returned back to his home country, that he was confident that he would have no issue in obtaining a job in his own sector;

   e)that it would be unfair for him to return back to his home country without completing course that he had been undertaking for the last few months.

6. At CB 97, the Applicant consented to the Tribunal deciding the review without a hearing.  It was made clear to the Applicant that in consenting to the AAT deciding his review without a hearing that the following would apply:

   You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case.  Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.

The AAT proceeding

1. The AAT proceeded to decide the matter on 3 August 2019 (over two months after the Applicant had submitted his material).  The AAT noted that the Delegate had decided the matter on the basis of the Applicant not satisfying the requirements of a genuine temporary entrant.

2. The Tribunal, said at paragraph 6 of its reasons, that:

   On 31 May 2019, the applicant wrote to the Tribunal consenting to the Tribunal deciding the review without a hearing.  At the same time the applicant advised that his then current enrolment concluded in July 2019.

3. At paragraph 11 of its reasons, the AAT said:

   There is no evidence before the Tribunal that the applicant is currently enrolled in a course of study.  Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl. 500.211 is not met.

4. For those reasons, the AAT affirmed the decision of the Delegate.  A copy of that decision was sent to the migration agent of the Applicant.

The Aftermath

1. Unbeknownst to the Tribunal, the Applicant had not finished his course on 15 July 2019 as he had expected, and which was the date up to which he was enrolled.

2. On 7 August 2019, the migration agent wrote to the AAT.  This letter, found at CB 114, relevantly stated that the Applicant “…had not completed his course yet and is currently enrolled in Edith Cowan University”.  There were some factual errors in that letter, but the letter was clear in that it requested that the AAT reconsider the decision.

3. On 9 August 2019, the AAT wrote to the migration agent stating that the tribunal member had decided not to reopen the case. The letter further stated that “once we have made a decision under the Migration Act 1958, we have no power to take any further action on the review”.

Factual basis and utility

1. It is accepted that the situation, on 3 August 2019, was that the information before the AAT was, to the effect, that the Applicant ceased to be enrolled in any course on 15 July 2019.  The true situation, as at 3 August 2019, was that the Applicant had been offered a supplementary exam in the subject that he was studying (and that he failed) for which his CoE related.

2. I accept that, if the Applicant had been asked for proof of enrolment on 3 August 2019, he would have been able to procure such proof, though maybe not immediately.

3. In the correspondence, that the migration agent sent to the AAT on 9 August 2019, it was said that any decision to affirm the refusal of the Visa meant that the Applicant would not be able to complete his course and that all his efforts in time in the last three years would be a waste.  The Applicant has been on a bridging Visa since he filed this application.

4. In the meantime, the Applicant has completed the study and the purpose for which he applied for this visa has now been achieved.  I questioned whether there was any utility in this application and wondered whether it was simply that the refusal of a Visa would be some form of “mark” against the Applicant if he applied for another Visa.

5. I was then informed that the Applicant was still in Australia and that he had commenced another course of study.  It may seem that these actions of the Applicant make a mockery of the plaintive pleas he made to the AAT, but that is not the issue here.

6. While he is still in Australia, and studying, there is definite utility in this application.

Application to the Federal Circuit Court

1. On 25 May 2020, the Applicant filed an amended originating application which contained two grounds which read as follows:

   1. The Tribunal made a jurisdictional error by denying the applicant procedural fairness and/or by making a legally unreasonable decision through failing to take reasonable steps to clarify whether or not the applicant was enrolled in a course of study at the time of its decision pursuant to cl. 500.211(a) of the Migration Regulations 1994 (“the Regulations”).

   2. Alternatively, or in addition, the Tribunal made a legally unreasonable or illogical decision by affirming the Delegate’s decision to refuse the student visa application based on a criterion that the applicant be enrolled in course of study at the time of its decision when the Tribunal was provided with information confirming that the applicant was enrolled in a course of study at the relevant time.

Ground One

1. The argument, presented by the Applicant on this ground, is that procedural fairness dictated that, before the AAT made a conclusion as to facts, based on a “date of decision” criteria, the AAT was obliged to enquire whether the state of affairs had changed since the Applicant had submitted his information on 31 May 2019.

2. The Applicant points to the fact that the AAT had taken over a year to progress the application.  Even after the Applicant had submitted his information, and had indicated that he was happy for the AAT to conduct a hearing on the papers, the AAT still took another eight weeks before they considered his matter.

3. The question then becomes “to what extent should the AAT make enquiries?”  The Applicant submitted that it was incumbent upon the AAT to actually contact the Applicant and enquire whether the facts, which he submitted in his application, were still apposite.

4. Notwithstanding that there had been an eight-week delay, it seems to me, that to require the AAT to make such an enquiry of the Applicant, defeats the purpose of having a hearing on the papers.  The AAT made it clear, in the form, that it would decide the matter on the facts that were before it.

5. The AAT had, over 12 months earlier, told the Applicant that he must inform the AAT immediately if his personal circumstances change, and if such change was relevant to the review of the decision.

6. The Applicant knew that the fact of his being enrolled was very relevant to the review of the decision.  This was made clear in the letter of 17 May 2019.  It had also been made clear that the Applicant was required to immediately inform the AAT if his (relevant) circumstances changed. There has been no explanation proffered as to why the Applicant ignored this requirement of the AAT.

7. During the course of argument, it was suggested that the AAT had the obligation to at least check the PRISMS database before making the decision.  There was no evidence that the AAT had done this task.  However, it is not known whether this database would have, on 3 August 2019, given any different information than what was before the Tribunal.

8. The Minister has argued that the Applicant has framed the question incorrectly.  The question is not “what should the AAT do to ensure procedural fairness?”; rather it should instead be “is what the AAT did, in this particular matter, unfair?”.  I agree with this submission.  As this is a review of the decision of the AAT, the Court must look at the actions of the AAT and decide whether they are attenuated by jurisdictional error.

9. It seems to me that the AAT has acted fairly.  It is not to the point another (differently constituted) AAT may have done something else. It is whether, objectively speaking, this AAT has afforded procedural fairness to the Applicant.

10. This AAT acknowledged the application of the Applicant.  This AAT told this Applicant that they could consider the criteria or issues that were not previously considered by the Delegate. This AAT told this Applicant that he must inform the AAT immediately if his personal circumstances changed in a relevant way. This AAT asked this Applicant to provide them with all the information that he wished them to consider. This AAT asked this Applicant whether he wished for them to proceed without having a formal hearing. This AAT told the Applicant that they would make a decision based on the information and evidence before them.

11. This AAT did exactly what it had told the Applicant that it would do.  In my view, there was no procedural unfairness in the way in which this AAT proceeded.

The Alternative in Ground One

1. The alternative aspect to this ground is based on a contention that the AAT could have contacted the Applicant and asked for more information.  Because the AAT had the power to do this, it must have chosen not to do this.  The Applicant argues that such a decision was legally unreasonable.

2. There is no doubt that the Tribunal did have the power to request information and that this power derives from s.359 of the Migration Act 1958 (Cth) (“the Act”). The Applicant contends that it would have been no burden or inconvenience for the Tribunal to have enquired of the Applicant, or his agent, on 3 August 2019, to enquire whether the Applicant was enrolled in an approved course of study.

3. The Applicant contends that this is even more so because of the eight-week delay between the provision of information by the Applicant and the decision by the AAT.

4. For this decision to be “legally unreasonable”, it would mean that the decision not to utilise the power under s.359 was simply not open; in other words, it was an obligation of the Tribunal to utilise this power before making the decision it made.

5. The question I must answer is whether the decision, not to invoke the power, was open to this AAT.

6. It seems to me that such a decision was open.  Because the AAT had told the Applicant to inform them immediately of any relevant change of circumstance and had told him that they would make a decision on the evidence that was before them, it was open for the AAT to proceed in the way that they had told the Applicant they would.

7. This does not necessarily mean that this decision was the only decision that the AAT could have made.  I would think that there may have been many other differently constituted Tribunals that would have made a different decision.  But that is not the test.  The test is whether the decision made by this AAT was open to it.

Conclusion as to Ground One

1. I am of the view that the AAT did act in a procedurally fair manner to the Applicant and I am of the view that any decision not to invoke the power under s.359 was open to the AAT. This means that there has been no jurisdictional error illustrated by ground one and it therefore fails.

Ground Two

1. This ground is a little more troubling than ground one and I have taken some time to come to grips with it. It revolves around the fact that the AAT was provided with information, albeit after they had made their decision, which was contrary to the factual basis upon which the AAT made that decision.

2. The Applicant contends that the AAT had the power to “reopen” or “reconsider” the decision that they had made.

3. At first glance, it would seem that once a Tribunal has made a decision, it becomes functus officio and cannot have any further involvement in the decision.

4. In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, the High Court was confronted with a situation where an Applicant was to appear before the AAT. As he was ill, the Applicant sent a letter to the AAT informing it that he was ill and asking for an adjourned hearing. On the day of the hearing, the AAT proceeded with the hearing and made a decision unfavourable to the Applicant. When that decision was relayed to the Applicant, he pointed out that he had sent the letter the day before the hearing. It turned out that an administrative oversight had occurred so that the letter was not brought to the attention of the AAT. The AAT then arranged a new hearing date and made a new determination.

5. In that case, the Minister argued that the original decision was a final one and that the AAT had no power to reopen or reconsider the matter.

6. At paragraph 13, Chief Justice Gleeson said:-

   I would accept that it is inconsistent with the scheme of the Act to conclude that the Tribunal, upon being persuaded that it has denied procedural fairness, at any time after it is made or purported to make a decision, and regardless of what a person affected by the decision has done or failed to do, may treat that decision as legally ineffective and consider afresh the matter that was originally before it…

7. At paragraph 14, the Chief Justice continued:-

   In the present case there was a denial of procedural fairness; but there was more to it than that.  There was an error of the kind described as “error in fact” in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal “to stay its hand if it had knowledge, or to re-open its judgement had at the power…

8. The High Court went on to dismiss the appeal.  This meant that, if a Tribunal was of the view that it had committed a jurisdictional error, it could reopen the matter and make a decision afresh.

9. The legislative reaction to this decision was to introduce s.368(2A) into the Act. It reads:

   (2A) The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

10. This would mean that once a Tribunal has made its decision, the legislation prohibits it from, in any way, varying or revoking that decision. 

11. The legislature provided a similar provision when it enacted Part 7AA of the Act dealing with the Immigration Assessment Authority (“the IAA”). When speaking of the decision of the IAA, s.473EA(3) states that:

    (3) The Immigration Assessment Authority has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

12. In Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80, the Full Court of the Federal Court considered a matter where the IAA concluded that it had power to reopen its earlier decision by reason of a failure to consider a submission which was submitted to it at the time of the first decision, but which was not taken into account.

13. The Full Court concluded that the IAA had the power to reopen its earlier decisions and make a second decision where the first decisions were infected by jurisdictional error. The Full Court ruled that s.473EA(3) did not preclude the IAA pursuing such a course.

14. The contention of the Applicant is that the AAT did have the power to reopen and reconsider its decision once it was given the new material.  The decision by the AAT not to exercise that power is contended by the Applicant to have been “legally unreasonable”.

Consideration

1. In reading both Bhargwaj (Supra) and CLV16 (Supra), it is clear that the error identified by the AAT and the IAA respectively, constituted jurisdictional error.  This is because both bodies had failed to consider material that was before them.  To fail to consider material before either body would, in most cases, constitute jurisdictional error.

2. A decision infected by jurisdictional error is not a decision at all. Therefore s. 368(2A) or s.473EA could not apply.

3. Both the High Court and the Full Court have stated that it was proper for the AAT and the IAA such bodies, on becoming aware of the jurisdictional error that had been committed, to reopen the matter and consider it afresh.

1. The present matter is quite distinguishable from both Bhargwaj (Supra) and CLV16 (Supra).  In the present matter, the AAT did consider all of the material that was before it.  There was no obvious jurisdictional error committed by failing to consider the material sent to it by the migration agent on 7 August 2019.

2. I have now concluded that there had been no jurisdictional error committed by the AAT. For that reason alone, this present matter is quite distinguishable. Because there was no jurisdictional error, it meant that the AAT had made a decision. Once it has made a decision, s.368(2A) prohibits the Tribunal from revoking or varying its decision.

3. But even more fundamental is the fact that the reasoning in both Bhargwaj (Supra) and CLV16 (Supra) did not conclude that it was mandatory for the AAT and the IAA, respectively, to have reconsidered the matter.  The Courts ruled that the fact that the respective bodies did actually reopen and reconsider their matters, was not an action that was prohibited.

4. That is a fundamental difference between the facts in those authorities and the present matter.  In this matter, the AAT made a decision that it would not reopen its consideration.  For this decision to be “legally unreasonable”, it would mean that it was simply not open for the AAT to have made that decision.

5. That is simply not case.  There was nothing that required the AAT to reopen its consideration.  It made a decision not to do so.  That decision was one which was open to it.  In making a decision that was open to it, it cannot be said that the AAT has fallen into jurisdictional error.

6. Ground two also fails.

7. It is difficult not to feel sympathy for the position of the Applicant.  But that is not a matter that the Court can allow to influence its decision.  As there are no jurisdictional errors identified, there is only one way in which the Court can rule.

8. I dismiss the application with costs in the sum of $7,467.00.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:     16 June 2020