Munir v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1184
•13 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Munir v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1184
File number(s): SYG 2038 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 13 November 2024 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student visa – whether open to Tribunal to affirm delegate’s decision on different basis to delegate – whether denial of procedural fairness – whether Tribunal’s refusal to grant adjournment was unreasonable – whether Tribunal failed to have regard to matters Legislation: Migration Act 1958 (Cth) s 65, s 348, s 353, s 357A(3), s 359AA(1)(b)(iv), s 360(1)
Migration Regulations 1994 (Cth) Sch 2 cl 500.211, cl 500.212
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Multicultural Affairs v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 15 October 2024 Place: Parramatta Counsel for the Applicant: Peter King Solicitor for the Applicant: Malik Lawyers Solicitor for the Respondents: Charlotte Saunders of Minter Ellison ORDERS
SYG 2038 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: IMRAN MUNIR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
13 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs fixed in the sum of $5,000.
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 ZIPSER
INTRODUCTION
On 2 November 2021, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Act.
BACKGROUND
On 16 February 2008, the applicant, a citizen of Pakistan, first arrived in Australia.
On 30 September 2019, the applicant lodged an application for a student visa.
On 10 January 2020, a delegate of the first respondent refused to grant the visa on the basis that the delegate was not satisfied that the applicant satisfied the genuine temporary entrant criterion for the visa in clause 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (Schedule 2).
On 30 January 2020, the applicant sought review of the delegate’s decision with the Tribunal.
On 12 August 2021, the Tribunal wrote to the applicant inviting him to provide information in respect of being enrolled in a course of study and whether he was a genuine applicant for entry and stay as a student. The letter stated in part (page 131 of Court Book (CB)):
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student.
In reply, the applicant provided to the Tribunal a completed Request for Student Visa Information form (RSVI Form). The applicant stated in the RSVI Form, among other matters, that he was not enrolled in a course of study, and he had not been enrolled in a course of study from February 2020 to August 2021. The RSVI Form included the question:
Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?
The applicant answered “No” to this question. The next sentence in the RSVI Form stated:
Not being enrolled in a registered course of study may be a reason … for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.
On 14 September 2021, the Tribunal sent the applicant an invitation to attend a hearing on 1 October 2021. The invitation included the following paragraph (CB 156):
We may also assess whether you are enrolled in a registered course of study. Please note that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the delegate.
On 19 September 2021, the applicant emailed to the Tribunal a Response to hearing invitation. The document included the question “Do you intend to rely on any documents at the hearing …?”. The applicant answered “No”.
On 1 October 2021, the applicant appeared before the Tribunal at a hearing. At the conclusion of the hearing, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa on the basis that the applicant did not satisfy the enrolment criterion for the visa in clause 500.211 of Schedule 2.
TRIBUNAL’S DECISION
The Tribunal noted that the applicant had stated in the RSVI Form that he was not enrolled in a course of study and the applicant confirmed this at the hearing. The Tribunal noted that it had explained to the applicant that being enrolled in a course of study was a mandatory requirement for the grant of the visa and that it proposed to change the determinative issue in this case from whether the applicant was a genuine temporary entrant to whether he was enrolled in a course of study.
The Tribunal noted the applicant was invited to respond. The applicant:
(a)stated he had made many attempts to obtain an enrolment after his visa application was refused but none of the colleges he approached had been willing to enrol him; and
(b)sought an adjournment to make a further attempt to obtain an enrolment.
The Tribunal noted that the applicant was unable to provide any evidence or information that suggested that there was any real prospect of him obtaining an enrolment and accordingly refused the request for an adjournment on the basis that an adjournment lacked utility.
The Tribunal found that, for the reasons stated, it was not satisfied that the applicant was enrolled in a course of study at the time of the decision and therefore clause 500.211 was not met.
PROCEEDINGS IN THIS COURT
Application and amended application
On 3 November 2021, the applicant filed in this Court an application for judicial review of the Tribunal’s decision.
There was little activity in the proceeding until 25 July 2024 when a registrar made orders for the applicant to file and serve materials by 15 August 2024 and the first respondent to file and serve materials in reply by 29 August 2024.
On 15 August 2024, the applicant filed an amended application (Amended Application). The grounds are as follows (verbatim):
1.[Deleted]
2.Paragraphs 11-15 of the Tribunal's decision are not lawful and reasonable under the general law, and under the legislative regime established under Migration Act 1958 [Cth].
3.[Deleted]
4.The Tribunal made an error of law going to jurisdiction in failing to consider and apply sections 27 and /or 33 and/or 40 and/or 43 of the Administrative Appeals Tribunal Act 1975 (Cth) in failing to provide a fair hearing to the Applicant in respect of the application made to it giving rise to a miscarriage of justice in the circumstances.
5.The Tribunal made an error of law going to jurisdiction in not giving the Applicant reasonable notice and/or a reasonable opportunity to be heard as to the change in case unilaterally proposed by the Second Respondent, in breach of the requirements of procedural fairness.
6.The Tribunal made an error of law giving rise to a miscarriage of justice by affirming the decision on a different basis to that which had occurred and addressing the matter in such a way as to reformulate the application in a manner that was never made to it by the Applicant, and/or beyond the scope of the Regulations or such that the Regulations would allow.
7.The Tribunal wrongly characterised the decision of the delegate and the scope of the powers of the Tribunal.
8.The Tribunal fell into jurisdictional error in failing to give any or any sufficient reasons.
9.The Tribunal fell into jurisdictional error i thereby denying the Applicant procedural fairness and natural justice in refusing to grant an adjournment and /or in not adjourning the matter to afford the Applicant a reasonable opportunity to obtain legal advice and assistance, and/or in changing the determinative issue without notice or authority at law.
10.The Applicant contends that the matter be remitted to the Tribunal for determination in accordance with law and that the first respondent pay the applicant's costs of this application.
During the hearing on 15 October 2024, the applicant’s counsel did not press ground 4.
Applicant’s submissions
On 15 August 2024, the applicant filed a written submission. At the hearing on 15 October 2024, Peter King of counsel made oral submissions.
The applicant’s written and oral submissions did not clearly match with grounds in the Amended Application. The Court understands that the issues, and their linkage to grounds in the Amended Application, are as follows.
One issue, encapsulated in ground 6 of the Amended Application, was whether it was open to the Tribunal to affirm the delegate’s decision “on a different basis to” the basis upon which the delegate refused to grant the applicant a visa: see ground 6 of Amended Application. The delegate refused to grant the applicant a visa on the basis that it was not satisfied that the applicant satisfied the genuine temporary entrant requirement in clause 500.212(a) of Schedule 2 (GTE Issue), while the Tribunal affirmed the delegate’s decision on the basis that it was not satisfied that the applicant satisfied the enrolment requirement in clause 500.211 of Schedule 2 (Enrolment Issue). The applicant stated in paragraph 25 of his written submission that the Tribunal “had no statutory or other authority to change the case before it without notice” and the Tribunal “had no statutory or other authority unilaterally to consider the applicant’s application on a basis other than that presented to it by the applicant”. At the hearing, Mr King stated that the case “transmogrified” in the Tribunal from the GTE Issue to the Enrolment Issue and this was not permissible.
A second issue, encapsulated in ground 5 of the Amended Application, was that, even if it was open to the Tribunal to affirm the delegate’s decision on a different basis to the basis upon which the delegate refused to grant the applicant a visa, the Tribunal did not “giv[e] the applicant reasonable notice and/or a reasonable opportunity to be heard as to the change in case … in breach of the requirements of procedural fairness”: see ground 5 of Amended Application. The applicant stated in paragraph 10 of his written submission that “no notice was given to the applicant of this alteration of the determinative issue in the matter” and the applicant “did not consent to the change in case”. The applicant repeated the complaint of an absence of notice in paragraphs 11 and 15 of his written submission. The applicant added in paragraph 25 of his written submission that the Tribunal, by making its decision on a basis different to the basis on which the delegate made her decision, “overrode fundamental common law rights of due process and notice to the applicant”, and the applicant’s “status as a self-represented person was also apparently disregarded”.
At the hearing, the Court directed Mr King’s attention to the letters from the Tribunal dated 12 August 2021 and 14 September 2021 which, as explained in paragraphs 6 and 9 above, appeared to notify the applicant of the Enrolment Issue. Mr King did not identify any deficiency in notification in these two letters or explain why the applicant, having received these two letters, would not understand that an issue at the hearing would be whether the applicant was currently enrolled in a course of study.
Mr King, in support of his contentions of procedural unfairness, relied on ss 353, 357A(3), 359AA(1)(b)(iv) and 359B(4) of the Act.
A third issue, partly encapsulated in ground 9 of the Amended Application, was that the Tribunal’s decision at the hearing on 1 October 2021 “in refusing to grant an adjournment and/or in not adjourning the matter to afford the applicant a reasonable opportunity to obtain legal advice” and enrol in a course “den[ied] the applicant procedural fairness and natural justice” and was legally unreasonable. Although ground 9 did not expressly state that the Tribunal’s refusal to adjourn the hearing was unreasonable or legally unreasonable, or that the refusal decision was unreasonable or unfair because it denied the applicant an opportunity to enrol in a course and thereby satisfy clause 500.211 in Schedule 2, paragraph 17 of the first respondent’s written submission indicates that the first respondent understood this was an aspect of the applicant’s complaint.
The applicant stated in paragraph 14 of his written submission that “refusal of an adjournment denied the applicant the possibility of a successful outcome … on the changed basis or determinative issue”. The applicant stated in paragraph 27 of his written submission that the Tribunal “did not consider in the reasoning the case put to him”, which may be a contention that the Tribunal, in refusing to grant the applicant an adjournment, did not consider some matters put to him by the applicant. The applicant, in paragraph 29 of his written submission, relied on the following passage from Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 at [40]:
… the denial of procedural fairness was effectively encapsulated in the consequences of the failure to adjourn the proceedings … the denial of procedural fairness arose from the consequences, and effect on the appellant, of altering the hearing, at short notice, from a hearing of the caveat motion to a trial of the statement of claim.
The applicant stated in paragraph 32 of his written submission that the tribunal “should have granted an adjournment in order to permit review and reconsideration of the matter by the applicant with appropriate legal assistance”.
Mr King, in developing ground 9 at the hearing on 15 October 2024, stated that the Tribunal failed to take into account five matters as follows:
(a)The Tribunal failed to have regard to the consideration of reasonableness.
(b)The Tribunal adopted the wrong test in refusing to grant the applicant an adjournment. The Tribunal at [13] stated that it “refused to adjourn the hearing on the basis that the adjournment would lack utility”. Mr King stated that this was the wrong test, and the correct test, with reference to Nobarani v Mariconte at [39], was whether there was “the possibility of a successful outcome”.
(c)The Tribunal failed to take into account that the applicant had previously been enrolled in a course at George Brown College and, if the Tribunal granted an adjournment, it was possible he could re-enrol at George Brown College.
(d)The Tribunal failed to have regard to material at CB 145 and 146, being information provided by the applicant in the RSVI Form as to why the applicant chose to enrol in a course at George Brown College a few years earlier, why the applicant chose to study in Australia rather than in Pakistan, and why the applicant ceased to be enrolled in a course at George Brown College.
(e)The Tribunal failed to take into account that the applicant had obtained a degree in the past. This was relevant in assessing the likelihood that the applicant could enrol in a course if the Tribunal granted an adjournment.
Mr King added that two additional matters relevant to the applicant’s contention that the Tribunal’s refusal to grant the applicant an adjournment was unreasonable or procedurally unfair was that the applicant was not represented and the applicant was not given notice of the Enrolment Issue until after the hearing commenced.
Fourth, the applicant contended that the Tribunal “fell into jurisdictional error in failing to give any or any sufficient reasons” for its decision: ground 8 of Amended Application. The applicant stated in paragraph 27 of his written submission that the Tribunal “did not consider in the reasoning the case put to him”. Mr King stated in oral submissions at the hearing that some parts of the reasons of the Tribunal were insufficient. However, Mr King did not clearly identify the parts of the reasons which were insufficient and the manner in which they were insufficient. Mr King relied on Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 (Wingfoot) in support of the contention that an insufficiency in reasons in a decision of the Tribunal could be a jurisdictional error.
Fifth, ground 2 of the Amended Application states that “paragraphs 11-15 of the Tribunal’s decision are not lawful and reasonable under the general law, and under the legislative regime established under Migration Act 1958 [Cth]”. Mr King stated at the hearing that the applicant pressed this ground. However, no paragraph of the applicant’s written submission appears to explain this ground, and Mr King did not explain this ground in oral submissions.
Sixth, ground 7 of the Amended Application states that “the Tribunal wrongly characterised the decision of the delegate and the scope of the powers of the Tribunal”. Mr King stated at the hearing that the applicant pressed this ground. However, no paragraph of the applicant’s written submission appears to explain this ground, and Mr King did not explain this ground in oral submissions.
First respondent’s submission
On 27 August 2024, the first respondent filed a written submission. At the hearing on 15 October 2024, Charlotte Saunders made oral submissions. The first respondent’s submissions are, where necessary, referred to below.
CONSIDERATION
The Court will consider the grounds in the Amended Application in the order set out in paragraphs 22 to 33 above.
Ground 6
Sections 65(1) and 348 of the Act relevantly provide:
65 Decision to grant or refuse to grant visa
(1)Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
a.if satisfied that:
i.the health criteria for it (if any) have been satisfied; and
ii.the other criteria for it prescribed by this Act or the regulations have been satisfied; and
iii.the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
iv.any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
b.if not so satisfied, is to refuse to grant the visa.
348 Tribunal to review Part 5-reviewable decisions
(1)Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5‑reviewable decision, the Tribunal must review the decision.
(2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.
In Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [134] the High Court stated:
Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision-maker [120]. The Tribunal has been said to stand in the shoes of the original decision-maker, for the purpose of its review [121]. In Minister for Immigration and Ethnic Affairs v Pochi [122] Smithers J said that, in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person [123]. In Liedig v Commissioner of Taxation [124], Hill J adopted, as applicable to the Tribunal, what Kitto J said of the Taxation Board of Review in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [125], namely that its function is "merely to do over again … what the Commissioner did in making the assessment", within the limits of the taxpayer's objection.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) at [33] and [35] the High Court stated:
[33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review". The reference to "the issues arising in relation to the decision under review" is important.
…
[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal …
The delegate refused to grant the applicant a visa because, in making a decision with reference to s 65 of the Act, she was not satisfied that the applicant satisfied clause 500.212 in Schedule 2. The Tribunal, on undertaking a review under s 348 of the Act, affirmed the delegate’s decision after deciding that the applicant did not satisfy clause 500.211 in Schedule 2. The applicant contends in ground 6 that it was not open to the Tribunal to determine the matter on a basis different to the basis on which the delegate determined the matter. However, first, no provision in the Act bars or prevents the Tribunal from affirming the delegate’s decision on a basis different to the basis on which the delegate determined the matter. Second, the passages in the two High Court decisions referred to in paragraphs 37 and 38 above are consistent with the position that it was permissible for, or open to, the Tribunal to affirm the delegate’s decision on a basis different to the basis on which the delegate determined the matter.
Ground 6 is not made out.
Ground 5
Sections 353, 357A(3), 359AA(1)(b)(iv) and 360(1) of the Act relevantly provide:
353 Tribunal’s way of operating
The Tribunal, in reviewing a Part 5-reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
357A Exhaustive statement of natural justice hearing rule
…
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
359AA Information and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
…
(b) if the Tribunal does so—the Tribunal must:
…
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
360 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Tribunal, at a hearing referred to in s 360, must accord procedural fairness to the applicant, although “the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires”:
SZBELat [26].
The applicant contends in ground 5 that he was denied procedural fairness because he was not put on notice, or given adequate notice, prior to the hearing on 1 October 2021 that the Tribunal might affirm the delegate’s decision on a basis different to the basis on which the delegate determined the matter. As explained in paragraphs 6 to 9 above, there were three occasions in August and September 2021 on which the Tribunal provided the applicant with written notice of the new issue. At the hearing in this Court on 15 October 2024, Mr King did not identify any deficiency in the notice contained in these documents or contend that the notice in these documents was not adequate.
Mr King, in support of ground 5, relied on ss 353, 357A(3) and 359AA(1)(b)(iv) of the Act. However:
(a)In Minister for Immigration and Multicultural Affairs v Li [2013] HCA 18; (2013) 249 CLR 332 (Minister v Li) at [12]-[16] French CJ considered the role and effect of s 353. His Honour stated at [16] that s 353(2) “does not import substantive common law requirements of procedural fairness”.
(b)While s 357A(3) exhorts the Tribunal to “act in a way that is fair and just”, the Tribunal, acting fairly and justly in the present matter, gave sufficient notice to the applicant in writing in August and September 2021 concerning the Enrolment Issue: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [68]. Mr King did not explain why the Tribunal, in light of the written notice it gave, did not act fairly or justly.
(c)Section 359AA(1)(b)(iv) is not applicable since s 359AA provides a method by which the Tribunal can comply with the obligation under s 359A. The applicant did not contend in the Amended Application that the Tribunal breached s 359A.
Ground 5 is not made out.
Ground 9
Section 363(1)(b) of the Act provides:
363 Powers of the Tribunal etc.
(1)For the purpose of the review of a decision, the Tribunal may:
…
(b) adjourn the review from time to time;
…
Paragraph 13 of the Tribunal’s decision indicates that the applicant, at the hearing, requested “an adjournment of the hearing in order to allow him to make further attempts to obtain an enrolment”. The Tribunal must act reasonably in considering an adjournment request: see Minister v Li at [23]-[31], [63]-[76].
The Tribunal stated at paragraphs 11 to 13 of its decision:
[11] The Tribunal then explained to the applicant that under cl.500.211 of Schedule 2 of the Regulations, being enrolled in a course of study is a mandatory requirement for the granting of a student visa. The Tribunal also explained to the applicant that it could change the determinative issue in this case from the issue of whether the applicant was a genuine temporary entrant to the issue of whether the applicant was enrolled in a course of study, and that it proposed to do so in this case. The applicant was invited to respond, both on the issue of his lack of enrolment and on the proposed change of determinative issue.
[12] On the first point, the applicant stated that he had made many attempts to obtain an enrolment after his visa application was refused, but that none of the colleges he approached had been willing to enrol him in a course or to give him a confirmation of enrolment. He said further that he was confident that if he were granted a student visa he could obtain an enrolment in a very short time.
[13] In responding on the second point, the change of determinative issue, the applicant sought (in effect) an adjournment of the hearing in order to allow him to make a further attempt to obtain an enrolment. He was, however, unable to provide any evidence or information that suggested that there was any real prospect of him obtaining an enrolment. That being the case, the Tribunal refused to adjourn the hearing on the basis that the adjournment would lack utility. It then informed the applicant that it had decided to change the determinative issue in this case to the issue of whether the applicant met the requirements of cl.500.211, and that it would make its decision immediately.
The applicant contends that the Tribunal’s decision not to adjourn the hearing was legally unreasonable. In SZVFW at [80]-[82] Nettle and Gordon JJ stated:
[80] Parliament is taken to intend that a statutory power will be exercised reasonably by a decision‐maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision‐maker or, put in different terms, the decision is beyond power.
[81] How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. The abuse of statutory power is not limited to a decision affected by specific errors which bring about an improper exercise of power because, for example, the decision‐maker took into account an irrelevant consideration or failed to take into account a relevant consideration; or exercised the power in bad faith, or for a purpose other than a purpose for which it was conferred; or exercised the power in such a way that the result of the exercise of power is uncertain.
[82] … A conclusion of legal unreasonableness may be outcome focused — where, for instance, there is no “evident and intelligible justification” for the decision. As Gageler J explained in Minister for Immigration & Citizenship v Li , “[r]eview by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision‐making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’”.
As stated in the first respondent’s written submission, the question of whether the Tribunal has acted reasonably is “invariably fact dependent”.
Some relevant facts or matters before the Tribunal included the following:
(a)The Tribunal provided the applicant with notice in writing on three occasions in August and September 2021 that he was required to provide evidence to satisfy the Tribunal that he was currently enrolled in a registered course of study, and that the Enrolment Issue was an issue on the review.
(b)The applicant did not complain at the hearing before the Tribunal about any inadequacy in the notice provided to him, or that he did not understand the notice.
(c)The applicant gave oral evidence at the hearing before the Tribunal “that he had made many attempts to obtain an enrolment after his visa application was refused, but that none of the colleges had been willing to enrol him in a course or to give him a confirmation of enrolment”. Consistent with this oral evidence, the applicant stated in the RSVI Form that “since my visa was refused schools will not consider me a genuine student and will not offer me a place of study”: CB 146.
(d)The applicant stated at the hearing that “he was confident that if he were granted a student visa, he could obtain an enrolment in a very short time”. The applicant did not tell the Tribunal that if he was granted an adjournment he could or might be able to obtain an enrolment. To the contrary, his submission to the Tribunal was to the effect that he could only obtain an enrolment if the Tribunal granted him a visa.
The Tribunal stated in paragraph 13 of its decision that it “refused to adjourn the hearing on the basis that the adjournment would lack utility”. The evidence provided by the applicant to the Tribunal, and the fact that the applicant had been unable to obtain an enrolment while being on notice that this was an issue on the review, clearly and comfortably supported the Tribunal’s conclusion that an adjournment would lack utility. In the circumstances, the Tribunal’s reasons disclose an “evident and intelligible justification” for its decision not to adjourn the hearing, and the decision was defensible: SZVFW at [82].
Mr King stated that the Tribunal adopted the wrong test in refusing to grant the applicant an adjournment. The Tribunal stated in paragraph 13 that it “refused to adjourn the hearing on the basis that the adjournment would lack utility”. Mr King stated that this was the wrong test, the correct test was whether there was “the possibility of a successful outcome” and, if the Tribunal granted an adjournment, it was possible the applicant would obtain enrolment. The Court does not accept this submission. First, the applicant did not tell the Tribunal he could or might be able to obtain an enrolment. To the contrary, his evidence was to the effect that he could not obtain an enrolment unless he was granted a student visa. Second, the test proposed by Mr King is inconsistent with High Court authority referred to above.
Mr King contended that the Tribunal failed to have regard to the consideration of reasonableness. The meaning of this submission is not clear. The Court does not accept that there was any error in this manner.
Mr King contended that the Tribunal failed to take into account that the applicant had previously been enrolled in a course at George Brown College and, if the Tribunal granted an adjournment, it was possible he could re-enrol at George Brown College. However, first, the applicant never told or proposed to the Tribunal at the hearing that, if he was granted an adjournment, he could possibly re-enrol at George Brown College. The Tribunal cannot make a legal error by not taking into account a submission never made. Second, the Court is not persuaded that the Tribunal failed to take into account evidence before it of the applicant’s previous courses and enrolments. The mere fact that the Tribunal did not refer to some evidence or material before it in its reasons for decision does not mean the Tribunal failed to have regard to the evidence or material: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47].
Mr King contended that the Tribunal failed to have regard to material at CB 145 and 146, being information provided by the applicant in the RSVI Form as to why the applicant chose to enrol in a course at George Brown College a few years earlier, why the applicant chose to study in Australia rather than in Pakistan, and why the applicant ceased to be enrolled in a course at George Brown College. The mere fact that the Tribunal did not refer to some material before it in its reasons for decision does not mean the Tribunal did not have regard to the material. The Court is not persuaded that the Tribunal failed to take into account this material.
Mr King contended that the Tribunal failed to take into account that the applicant had obtained a degree in the past, and this was relevant in assessing the likelihood that the applicant could enrol in a course if the Tribunal granted an adjournment. However, the mere fact that the Tribunal did not expressly state in its reasons for decision that the applicant had obtained a degree in the past does not mean the Tribunal did not have regard to this fact. The Court is not persuaded that the Tribunal failed to take into account this matter.
The applicant also contended in ground 9 that the Tribunal denied the applicant procedural fairness and natural justice in refusing to grant an adjournment. The applicant applied orally for an adjournment at the hearing before the Tribunal. The Tribunal member permitted the applicant to give evidence and make submissions in support of the adjournment request. Mr King did not explain precisely what aspect of the Tribunal’s conduct or procedure involved a denial of procedural fairness. The Court is not persuaded that the Tribunal failed to accord procedural fairness to the applicant.
Ground 9 is not made out.
Ground 8
The applicant contends in ground 8 that “the Tribunal fell into jurisdictional error in failing to give any or any sufficient reasons”. There are difficulties with this ground including the following:
(a)The assertion that the Tribunal “failed to give any … reasons” is not made out, since the Tribunal gave detailed reasons in its decision dated 1 October 2021.
(b)In relation to the assertion that the Tribunal failed to give “sufficient reasons”, the applicant did not clearly explain in written or oral submissions the manner in which the Tribunal’s reasons were not sufficient.
(c)Cases such as Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [62]-[69] suggest that a deficiency in reasons of the Tribunal is not, by itself, a jurisdictional error.
(d)The applicant relied on Wingfoot. However, Wingfoot involved a different statutory scheme (Accident Compensation Act1985 (Vic)) to the statutory scheme in the Act. Mr King was unable to identify a court decision in which the analysis in Wingfoot has been considered in respect of the Tribunal’s obligation to give reasons in s 368 of the Act.
Ground 8 is not made out.
Grounds 2 and 7
The meaning of ground 2 in the Amended Application is unclear. Among other reasons, the ground contains no particulars. The applicant’s written and oral submissions did not explain the meaning of ground 2. In the circumstances, ground 2 is not made out.
The meaning of ground 7 in the Amended Application is unclear. Among other reasons, the ground contains no particulars. The applicant’s written and oral submissions did not explain the meaning of ground 7. In the circumstances, ground 7 is not made out.
Conclusion
For the above reasons, the judicial review application is dismissed.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. Both parties agreed that costs should follow the event. The first respondent sought costs in the amount of $5,000 if the application was dismissed. The applicant did not oppose this amount.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 13 November 2024
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