Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1326
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1326
File number(s): MLG 125 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 11 December 2024 Catchwords: MIGRATION –Student (Temporary) (Class TU) (Subclass 500) Higher Education Sector visa - application for judicial review – consent to review without a hearing – no duty to inquire about applicant’s consent – decision of Tribunal reasonable and logical - no jurisdictional error shown - application dismissed. Legislation: Migration Act 1953 (Cth) ss 359, 477(1), 360(2)(b), 360(3), s 357A, 360(1), 359A, 362B, 426A, 360, 359A
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 7, 16(1), 16(3)
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth)
Migration Regulations 1994 (Cth) Sch 2 cls 500.212, 500.211 - 500.218
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1;[2016] FCAFC 11
Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; [2006] FCAFC 152
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration v Le (2007) 164 FCR 151; [2007] FCA 1318
SZIMG v Minister for Immigration and Citizenship (2008) 167 FCR 362; [2008] FCA 368
WEI v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of last submission/s: 13 November 2024 Date of hearing: 8 October 2024, 13 November 2024 Place: Melbourne Solicitor for the Applicant Mr Singh, Quantum Legal Advisory & Migration Consultants Solicitor for the Respondents Mr Mintz, Clayton Utz ORDERS
MLG 125 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI GUYNH NGA NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent be amended to Administrative Review Tribunal.
3.The application for judicial review filed 15 January 2019 be dismissed.
4.The applicant pay the respondent’s costs and disbursements of and incidental to the proceeding fixed at $7,467.00.
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 CORBETT
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 7 December 2018 in which the Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) Higher Education Sector visa (visa).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court, marked exhibit “R1”.
BACKGROUND
The applicant is a citizen of Vietnam. The applicant first arrived in Australia on 27 December 2007 as the holder of a Student (Class TU) (Subclass 572) Vocational Education and Training Sector visa (CB 59). The applicant has lived in Australia for over 16 years undertaking various VET certificate and diploma courses (CB 23-8).
On 14 March 2017, the applicant applied for the visa (CB 1-45).
On 4 July 2017, a delegate of the Minister refused to grant the applicant the visa on the basis that the applicant did not satisfy the criteria in cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations) (CB 52-61).
On 21 July 2017, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 62-9). The application to the Tribunal was completed by a registered migration agent on behalf of the applicant.
On 13 August 2018, the Tribunal invited the applicant to provide information relating to her proposed course of study and her stay in Australia as a student (CB 86–106).
On 27 August 2018, the Tribunal received a request from the applicant’s agent for an extension of time within which to provide the information to the Tribunal (CB 107). An extension of time was granted by the Tribunal until 12 September 2018 (CB 112).
In about September 2018, the applicant provided the Tribunal with a completed Student Visa Information Form dated 20 August 2018 (s 359 Response) (CB 113–25). The s 359 Response disclosed that since January 2008, the applicant had enrolled in and completed numerous certificate and diploma courses and subsequently enrolled in an Advanced Diploma in Business at Stotts College. The applicant was also enrolled to commence a Bachelor of Business at Australasian Polytechnic (CB 115-8).
There were two questions on page one of the s 359 Response. The questions and the answers are reproduced in full (CB 113):
“Q.1 Do you consent to the Tribunal deciding the review without a hearing?
Note: We are generally required to invite you to appear at a hearing unless you consent to us deciding your review without one. If you consent to us deciding your review without a hearing, please provide all the information you would like us to consider in deciding whether you meet the criteria for a student visa. We may make our decision at any time after the period for responding to this invitation has passed, having regard to all the information that Is before us at the time the decision is made.
Please select an option:
[X] I consent to the Tribunal deciding the review without a hearing.
[ ] I do not consent to the Tribunal deciding the review without a hearing.
Q.2 If a hearing is required, do you require an interpreter?
[Yes]/No
If yes, what language? Vietnam”
The s 359 Response was signed by the applicant and declared to be true and correct (CB 124).
On 10 December 2018, the Tribunal notified the applicant’s agent that it had affirmed the delegate’s decision not to grant the applicant the visa (CB 127–38) (Decision). There was no hearing before the Tribunal.
TRIBUNAL DECISION
The Tribunal identified that the primary criteria in cls 500.211 to 500.218 of the Regulations must be satisfied by the applicant and in particular, the criteria in cl 500.212 (CB 133 [8]– [9]).
The Tribunal also identified that when considering whether the applicant satisfies cl 500.212 of the Regulations, it must have regard to Ministerial Direction No. 69, Assessing the Genuine Temporary Entrant Criterion For Student Visa and Student Guardian Visa Applications (CB 134 [10]).
The Tribunal noted that Ministerial Direction No. 69 is intended only to guide decision-makers when considering the applicant’s circumstances as a whole and in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion (CB 134 [11]).
The Tribunal then considered the applicant’s personal circumstances, enrolment history, and stated intention to open her own hairdressing salon in Vietnam with her sister upon completion of further studies.
After considering the information provided by the applicant to the Tribunal and the Minister, the Tribunal proceeded to consider Ministerial Direction No. 69 The Tribunal considered each relevant part of Ministerial Direction No. 69 and concluded as follows (CB 137 [33] and [35]):
[33] The applicant has studied in Australia for over 10 years and throughout this time has primarily studied courses at the VET Sector level. Whilst it is noted, the applicant studied a Bachelor of Business course between 2014 and 2016 and more recently re-enrolled in two Bachelor level courses it is further noted the applicant failed to attain this qualification, regressing and returning to studies at the VET Sector level. It is reasonable to expect that after studying in Australia for more than 10 years, a genuine student would progress to higher level qualifications.
[35] The Tribunal finds the experience the applicant has already acquired from studying in Australia will enable the applicant to return home with an acquired set of skills which are relevant to the applicant’s future business ventures in opening a hair dressing salon in Vietnam. As such, the Tribunal is not satisfied proposed courses of study in Business are likely to significantly increase the applicant’s career prospects or remuneration upon her return to her home country.
The Tribunal then considered the applicants immigration history, and a breach of a condition attached to her previous visa where the applicant failed to enrol in a full-time registered course for a period of approximately six months. The Tribunal gave strong weight to the applicant’s adverse immigration history (CB 137 [37]).
The Tribunal then considered any other relevant matters to the assessment of the applicant’s genuine intention to temporarily stay in Australia and found that there were no other relevant matters for consideration (CB 138 [40]).
The Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 of the Regulations (CB 138 [42]). The Tribunal also found that the criteria for the grant of a Student (Temporary) (Class TU) visa was not met (CB 138 [43]). Consequently, the decision under review was affirmed by the Tribunal.
A “Case Note” prepared by an officer of the Tribunal on 13 December 2018 records that a representative of the applicant called to enquire as to why a decision had been made by the Tribunal without a hearing (CB 139). The representative is noted to have stated that the applicant had additional information to submit and asked if they could do so at the time. As the Tribunal had finalised its reasons, the representative was informed that the Tribunal could not consider additional information following the Decision (CB 139).
PROCEEDINGS IN THIS COURT
The applicant applied for judicial review of the Tribunal’s decision on 15 January 2019. On 22 January 2021, the Court made an order by consent extending the time within which to bring the application to 15 January 2019 as the application was filed outside the 35-day time limit in s 477(1) of the Migration Act 1958 (Cth) (Act).
The application for judicial review lists eight grounds of review as follows (verbatim) (CB 143):
(1)The Administrative Appeals Tribunal did not provide enough weight to the situation I explained while they had put more weightage on disposing of the case before them and not listening to my circumstances.
(2)The tribunal fell in error by not considering my intentions to study the course Advanced Diploma of Business and Bachelor of Business, and how it will help me in future.
(3)The decision to give a decision without providing me an option to attend the hearing where I wanted to present my comments regarding the visa refusal given by the Department of Immigration and Border Protection and AAT.
(4)Tribunal was merely focused on number of courses I enrolled but didn’t consider that most of the courses I enrolled were completed in the timeframe.
(5)I do have exceptional circumstances which I wanted to explain to AAT but they refused my application without hearing me.
(6)The Tribunal did not consider my ties back home and my future plans which support that I will travel back to Vietnam after completing the studies.
(7)The Tribunal fell in error by not considering the factors provided to them and did not ask to provide any supporting documents/information in providing the outcome which should have affected the outcome. AAT has mentioned in the outcome at multiple points that the applicant did not provide documents/information, however, I had not given chance to submit the same and I was directly provided with an outcome.
(8)The Tribunal exercised its decision making power unreasonably and unconscionably.
The application for judicial review was supported by an affidavit of the applicant sworn on 15 January 2019. In that affidavit, the applicant explained that she had submitted the s 359 Response, together with her certificate of enrolment dated 11 September 2018 hoping that she had submitted more than the Tribunal had requested. The applicant then states that after she submitted the s 359 Response, she unexpectedly received the Decision. The applicant further claimed that she wanted to explain her situation and intentions to the Tribunal and to comment on the delegate’s refusal of her application, however she was denied that opportunity. The applicant asserted that she has family in Vietnam and had plans to open a salon in Vietnam. Her dream to open a salon in Vietnam could only be achieved by completion of further study at a Tertiary level and a review of the Tribunal’s decision by this Court. The affidavit did not say that the applicant did not consent to the Tribunal proceeding without a hearing or that her agent acted without her authority or without her approval (CB 147-50).
On 28 March 2024, a Registrar of the Court ordered that the applicant file and serve written submissions and any amended application on or before 18 April 2024. The applicant did not file or serve a written submission or an amended application.
The hearing of the application for judicial review was listed before this Court at Melbourne on 8 October 2024. Mr Mintz, solicitor, appeared for the Minister. The applicant, who was previously unrepresented, instructed Mr Singh, solicitor, to appear and act on her behalf. An interpreter fluent in the English and Vietnamese languages was also present.
Mr Singh informed the Court that he received instructions to act on 7 October 2024 and was not ready to proceed with the hearing. He sought an adjournment to allow him to obtain proper instructions and to read the Court Book and consider the Decision. The application for an adjournment was opposed by the Minister.
Before considering the application for an adjournment of the hearing, the Court asked Mr Singh to obtain instructions from the applicant about the circumstances in which question one of the s 359 Response was completed (CB 113). The Court temporarily adjourned, after which Mr Singh informed the Court that his instructions were that the s 359 Response was completed by the applicant and subsequently given to her then migration agent. The applicant did not complete question one but left the answer to question one blank. The applicant was not aware that she had agreed to the Tribunal deciding her application for review without a hearing.
The adjournment was granted. Orders were made requiring the applicant to file and serve any further evidence by 30 October 2024 together with any amended application and an outline of submissions. The applicant was ordered to pay the Minister’s costs thrown away by reason of the adjournment.
The applicant filed and served an outline of submissions on 30 October 2024 but did not file or serve an amended application or any further evidence.
The adjourned hearing resumed on 13 November 2024. Mr Singh appeared for the applicant and Mr Mintz appeared for the Minister. At the request of the applicant’s solicitor, an interpreter fluent in the English and Vietnamese languages was also present via video link.
APPLICANT’S SUBMISSIONS
Mr Singh submitted that the Tribunal erred in two ways. First, by denying the applicant procedural fairness and secondly because the Decision was “unreasonable”.
Mr Singh submitted that the principles of procedural fairness and informed consent were established in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li). He also referred to two cases relevant to consent to the Tribunal deciding a review without an appearance by the applicant, SZIMG v Minister for Immigration and Citizenship (2008) 167 FCR 362; [2008] FCA 368 (SZIMG) and Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; [2006] FCAFC 152 (SZFML). He also relied on s 360 of the Act which he said placed a prima facie duty on the Tribunal to invite an applicant to appear and give evidence.
In the written submissions filed on behalf of the applicant, reference was also made to ss 362B and 426A of the Act. The applicant also placed reliance on ss 5, 7, 16(1) and 16(3) of the Administrative Decisions (Judicial Review) Act1977 (Cth). The relevance of those statutory provisions was not explained in oral submissions.
Mr Singh submitted that the Tribunal was under an obligation to ensure that the applicant was made aware of all issues under review by the Tribunal and that it did not make the applicant aware that it was proceeding to review without a hearing. The applicant did not give her consent to not have a hearing by the Tribunal. The absence of consent was apparent by the surprise expressed by the applicant and her agent following receipt of the Decision.
At all times before the receipt of the Decision, the applicant and her then agent, were under the erroneous assumption that the Tribunal would conduct a hearing of the review and were taken by surprise upon receipt of the Tribunal’s Decision. The applicant’s agent thereafter contacted the Tribunal to enquire about the hearing not having been held, which was documented in the Tribunal’s Case Note (CB 139). The applicant should have been informed about her rights and the impact of consenting to proceed without a hearing but was not so informed. Therefore, there was no genuine, informed consent to the Tribunal proceeding without a hearing.
Mr Singh submitted that the applicant also lacked informed consent because she did not have a proper understanding of what was required when completing the s 369 Response. This was apparent from the applicant’s affidavit sworn 15 January 2019 and filed in support of the application for judicial review (CB 147-50).
The Court invited Mr Singh to address the matters raised at the hearing on 8 October 2024. In response, Mr Singh told the Court that the answers to questions one and two were inconsistent and that the Tribunal should have asked the applicant to clarify her response. The Tribunal had a duty to make inquiries of the applicant in those circumstances as it was an obvious matter that required clarification. The Tribunal’s failure to inquire was unreasonable because a reasonable decision-maker would have made those inquiries.
Mr Singh submitted that the applicant was only briefly advised of the Tribunal’s processes by her then agent. He stated that all communications with the agent occurred verbally at their business address, and as such, the applicant could not produce any correspondence or other evidence to the Court. Mr Singh stated that the agent’s business email address was used to lodge documents with the Tribunal, and such communications were never directed to the applicant personally (CB 77).
Mr Singh submitted that the applicant’s Genuine Temporary Entrant letter to the Department of Immigration and Border Protection (GTE Statement), which was filed in support of the original application for the visa, was not written by the applicant herself. Rather, the GTE Statement was completed by an external writer with which the migration agency had engaged (CB 37-42). The Court invited Mr Singh to explain how the Court could infer this based on the materials before it. Mr Singh stated that, based on his prior experience as a former migration agent, he understood it to be a standard practice for migration consultants to engage external writers to complete submissions on an applicant’s behalf due to their general lack of knowledge of the required criteria for the visa sought.
Mr Singh also submitted (without any supporting evidence) that the answers to questions one and two in the s 359 Response were not in the applicant’s handwriting. He conceded, after obtaining instructions from the applicant, that all other questions therein were completed by the applicant herself and are in her handwriting however, the applicant said she did not complete the answer to question one.
It was submitted, in the alternative, that the Decision was unreasonable and illogical. Mr Singh submitted that before making the Decision, the Tribunal should have made inquiries about the conflicting responses to questions one and two of the s 359 Response. A decision-maker acting reasonably would have done so. Mr Singh further submitted that the Tribunal failed to advise the applicant’s agent that no hearing would be conducted, despite the applicant having provided the requested information in the form of the s 359 Response. That was unreasonable and a jurisdictional error. Reference was made to several authorities where courts have held that the Tribunal failure to make relevant inquiries of the applicant or the applicant’s authorised agent amounts to a jurisdictional error (see Minister for Immigration v Le (2007) 164 FCR 151; [2007] FCA 1318; WEI v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 at [49] per Nettle J and SZMBX v Minister for Immigration and Citizenship (2009) 112 ALD 475; [2009] FCA 1403).
It was submitted that the Decision was also unreasonable because the Tribunal failed to give proper and genuine consideration to all of the evidence available to the applicant (see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48). It was submitted that all the evidence indicated that the applicant met the criteria in cl 500.212(a) of the Regulations and was a genuine student that complied with the conditions of previous visas and intended to stay temporarily as a student. In particular, the Tribunal failed to consider the applicant’s stated future intentions to return to Vietnam. If there had been a hearing, further information relating to that intention could have been received by the Tribunal. It was submitted that the concept of legal unreasonableness is not capable of rigid definition, but describes that category of case where the decision exceeds the boundaries of statutory power (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1;[2016] FCAFC 11 at [5] and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [58] – [65] (Eden)).
Mr Singh also referred to Ministerial Direction No. 69, noting that the decision maker could not undertake a comprehensive review of the applicant’s circumstances without a proper hearing and the receipt of further evidence and submissions.
Finally, the Court queried whether the applicant was alleging actual or apprehended bias by the Tribunal because the “bias rule” was referred to on page 26 of the applicant’s outline of submissions. Mr Singh submitted that the Decision indicated that the Tribunal did not fully interact with the issues and did so without a hearing. It was submitted that had there been a proper open hearing then there may have been a different result.
MINISTER’S SUBMISSIONS
Mr Mintz submitted that the applicant had not identified any jurisdictional errors in the Decision. The Minister relied on the written outline of submissions filed 2 May 2024 and the further outline of submissions filed 8 November 2024 that sought to address all of the grounds of review and evidence.
It was submitted that the Court could not draw any inferences as to actual consent from statements made after the date of the Decision. The fact that the applicant’s agent contacted the Tribunal after the Decision and expressed surprise did not mean that there was no consent to the Tribunal proceeding to determine the review without a hearing, so too the applicant’s apparent surprise that there was a review without a hearing. The onus of proof of the allegation that the applicant did not consent, rests with the applicant, and that onus had not been discharged.
Mr Mintz referred to the applicant’s outline of submissions and the reference to the “bias rule” on page 26. Mr Mintz submitted that there is a high threshold that must be met to establish actual or apprehended bias and there was no evidence before the Court to substantiate such an allegation. Any assertion of bias should be dismissed.
Mr Mintz noted the applicant’s concession that the s 359 Response was completed by the applicant in her own handwriting. The applicant had also signed the document as true and correct (CB 124). Mr Mintz submitted that the applicant made no allegation of fraud by her agent or that her agent acted beyond authority. The Tribunal was entitled to proceed to decide the review without a hearing pursuant to s 360(2)(b) of the Act. Further s 360(3) of the Act prevented the applicant from appearing.
Mr Mintz further stated that, in the absence of an allegation of fraud, the Court could infer that the applicant was properly advised by her agent as to how the answers to questions one and two would impact the Tribunal’s conduct. There was no evidence produced by the applicant about the advice given to the applicant by the agent or that the advice was misunderstood or wrong.
Mr Mintz then addressed grounds three, five and eight of the application for judicial review as the three apparent bases upon which the applicant sought to now identify jurisdictional error. Grounds three and five appeared to be an allegation of a denial of procedural fairness and ground eight an allegation of unreasonableness.
In relation to grounds three and five, it was submitted that the obligation to provide procedural fairness must be viewed in the context of s 357A and Div 5, Pt 5 of the Act which is an exhaustive statement of the natural justice hearing rule. There was no breach of the obligations of the Tribunal under the Act. Generally, the Tribunal must invite an applicant to appear at a hearing (s 360(1) of the Act), however, that obligation does not apply if the applicant consents to the Tribunal deciding the review without a further hearing (s 360(2)(b) of the Act). There was no obligation to inquire about the integrity of the consent given and nothing had been said or done to place the Tribunal on notice of any irregularity in the giving of that consent. Once consent is given, the applicant is not entitled to appear before the Tribunal (s 360(3) of the Act). The applicant was aware from the delegate’s decision of the issues arising on the review and there was nothing that Tribunal was required to put to the applicant under s 359A of the Act. There was no denial of procedural fairness in the circumstances.
Mr Mintz submitted that the argument that the Tribunal acted unreasonably by failing to make further enquiries as to the applicant’s informed consent should be flatly rejected. The Tribunal owes no general duty to make inquiries (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] (SZIAI)). The Tribunal’s reasons for making the Decision without a hearing had an evident and intelligible basis (see Li at [76]). Mr Mintz submitted that a duty to inquire and revert to the applicant did not arise on the facts and that the Tribunal’s obligation to question an applicant’s informed consent was not an obvious inquiry unless there were circumstances which created the necessity for the Tribunal to seek clarification from an applicant. Mr Mintz stated that this may perhaps exist in instances where the applicant inquired with the Tribunal as to when a hearing was to be held, which did not occur in the present matter. Mr Mintz stated that the High Court has recognised that there are certain, limited circumstances where the Tribunal fails to discharge its duties by making an obvious inquiry of a critical fact, however, a conclusion that a decision is unreasonable should not be made lightly and must be more than mere disagreement (see Li at [30] and SZVFW at [11]). Further, such circumstances are rare and exceptional and simply do not exist here (see SZIAI and Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [28]).
Mr Mintz referred to the Full Court of the Federal Court of Australia decision in SZFML. He submitted that, unlike in SZFML, there was no evidence or claim in this case that the applicant’s agent acted beyond authority by consenting to the Tribunal proceeding without a hearing. In this application for review, the facts were similar to the facts in SZIMG, where the applicant consented to the review without a hearing and was bound by that consent.
REPLY
In response to the Minister’s submissions, Mr Singh confirmed that the applicant does not assert a claim of fraud or negligence by her former migration agent. The applicant was simply not afforded the opportunity to be heard before the Tribunal and that constituted a jurisdictional error.
Mr Singh reiterated that the intention of the agent was “clearly documented” in the Case Note and that the applicant clearly anticipated a hearing. Further, the invitation from the Tribunal to provide further information created the assumption that, upon the applicant submitting any materials, the “next step” would be that such information would be considered at a hearing.
Mr Singh referred to the applicant’s written submissions and noted the importance of SZFML generally. The Court invited Mr Singh to explain why the case was of significance, to which Mr Singh submitted that ss 362B and 426A of the Act were referred to in SZFML which address the Tribunal’s options when an applicant does not attend a hearing.
The Court invited Mr Singh to explain what materials or information the applicant would have produced if a hearing had been held which may have created a different result. Mr Singh directed the Court to the applicant’s written submissions and referred to the “materiality test” generally. The Court again invited Mr Singh to address what material available to the applicant was not considered by the Tribunal which would have persuaded it had a hearing been held. The solicitor for the applicant said that it was not possible for him to “be in the shoes of the Tribunal member” and it was not possible for him to predict what the outcome would have been, whilst also noting that a different outcome may have ensued.
CONSIDERATION
At the time of the Decision, s 360 of the Act provided that:
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.
(2)Subsection (1) does not apply if:
(a) …
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) …
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
In SZFML, the Full Court of the Federal Court (Spender, French and Cowdroy JJ) considered whether the applicant had consented to the review being determined without a hearing taking place. The applicant’s agent had informed the Tribunal that the applicant did not wish to attend but did so without the applicant’s consent. The Full Court of the Federal Court held that an effective consent was a necessary condition to enliven the Tribunal’s power to determine the application without a hearing. In that case, both the applicant and the agent gave evidence to the trial judge. The trial judge preferred the evidence of the applicant over the evidence of the agent and concluded that the applicant did not provide fully informed consent to waive a hearing. The Full Court of the Federal Court dismissed the appeal, finding that the trial judge did not err in finding that the applicant did not authorise her agent, either generally or specifically, to make such consent and that there was therefore no such consent for the purposes of the Act (see SZFML at [63]).
The Court at [72] observed:
As a prudent measure the Tribunal might be well advised, where an applicant apparently consents through an agent to a decision being made without a hearing, to require that the applicant’s signature appear on any such written advice together with a verifying statement that the applicant has read the invitation and the proposed response or had it interpreted into the applicant’s own language. In this case there is room for the argument that the Tribunal should have been put on inquiry by the sudden apparent reversal of the applicant’s attitude to participation in a hearing between the hearing as originally scheduled and the rescheduled hearing.
In SZIMG, Rares J of the Federal Court reached a different conclusion based upon the facts in that case. In SZIMG, the applicant was given notice of a hearing to take place on 9 February 2006. In response to the invitation, the appellant wrote back to the Tribunal saying that he did not wish to attend the hearing and consented to the Tribunal proceeding to determine the review without it. The Tribunal then determined the review before the proposed date for the hearing and affirmed the decision of the delegate of the Minister to refuse the applicant a protection visa. The applicant then appealed to the Federal Magistrates Court and claimed that the Tribunal had no statutory authority under the Act to make a decision prior to his failure to attend the scheduled hearing on 9 February 2006. The Federal Magistrates Court declined the appellant’s application for a constitutional writ. On appeal to a Justice of the Federal Court, Rares J dismissed the appeal finding that once consent had been given, the Tribunal was free to determine the review prior to the scheduled date for hearing. His Honour said at [21]:
Again, it is difficult to see any purpose in the legislative scheme to require the tribunal to go through the empty form of holding a hearing when it has been informed by the applicant for review that he or she consented to the tribunal deciding the review without him or her appearing before it, even after the invitation to attend the review has been issued. Such a consent, if given after the applicant for review has been informed that the tribunal did not consider that it should decide the review in the applicant’s favour on the material before it and thus wish to invite him or her to a hearing so as to persuaded to the contrary, would be an informed consent to a decision being made against the interests of the applicant. Such a consent engages the operation of s 425(3) so that after it has been given the applicant is no longer entitled to appear before the tribunal. As Spender, French and Cowdroy JJ considered, once the applicant for review consents to the tribunal deciding the review without him or her appearing before it, the tribunal can proceed under sections 425(2)(b) and (3) to determine the application for review on the basis of the consent: SZFML 154 FCR at 587 [64]. Their Honours distinguished that mode of the tribunal proceeding from its acting on the basis of the power to decide the review under s 426A(1) following the non-appearance of an applicant. The applicant for review by rejecting an invitation to appear under s 425(1), can waive his or her right to a hearing. That has the effect of an applicant for review consenting to the tribunal deciding the matter without him or her appearing before it.
The facts in this case are analogous to the fact in SZIMG. In this case, when asked at question one of the s 359 Response, the applicant or her agent confirmed consent to the Tribunal deciding the review without a hearing. There has been no evidence relied upon by the applicant to negate that consent. The applicant’s agent was not called to give evidence and did not provide an affidavit to the effect that the applicant did not consent to the Tribunal deciding the review without a hearing. There was no evidence that the agent acted beyond authority and no allegation of fraud on the part of the agent. The only evidence relied upon by the applicant was her affidavit sworn 15 January 2019. In that affidavit, the applicant fell short of saying that she did not consent to the Tribunal deciding the review without a hearing. In that affidavit, the applicant said (CB 148):
AAT only asked me to fill one questionnaire and submit before the due date which I did and then after few days, I received an email with a decision record refusing my application. I then contacted the AAT to clarify why I had not been invited for hearing and why the outcome has been provided and they advised that based on the responses provided to questionnaire that they have taken the decision and advised to apply for judicial review.
In his submissions, the solicitor for the applicant confirmed that the s 359 Response was completed by the applicant herself and was in her handwriting, but the applicant’s instructions were that she did not complete that part of the form relating to consent. In the absence of persuasive evidence of the absence of consent such as occurred in SZFML, the Tribunal was entitled to rely upon the consent apparently given in the s 359 Response and proceed to decide the review without a hearing (see SZIMG at [21]). The onus of proof is upon the applicant to show that there was no informed and effective consent. The applicant was given the opportunity to supplement her affidavit sworn 15 January 2019 or put further evidence before the Court as to the absence of informed consent. The fact that a representative of the applicant contacted the Tribunal after the delivery of the Decision to enquire as to why there had been no hearing does not prove the absence of consent (CB 139). Similarly, no inference can be drawn from the conduct of the applicant after the delivery of the Decision that she did not consent to the Tribunal deciding the review without a hearing, especially so after an adverse result.
The note that appears under question one in the s 359 Response makes plain that if an applicant consents to the Tribunal deciding the review without a hearing, the applicant is to provide all the information that the applicant would like the Tribunal to consider in deciding whether the applicant meets the criteria for a student visa. The evidence of the applicant was that she believed that she provided “more than what they have requested” (CB 148). The applicant now says that further information would have been provided had she been provided with a hearing, however, she does not identify what further information would have been provided had the Tribunal conducted a hearing or how that information would have altered the outcome of the review.
Further, there is no evidence that before the Decision was delivered, the applicant and her agent believed that there would be a hearing at which the applicant would provide supplementary information. There was no evidence of that state of mind from the applicant’s agent and the applicant’s affidavit sworn 19 February 2019 says no more than the Tribunal should have asked for information rather than asking her to complete a questionnaire. That was a criticism made after the unsuccessful result and with the benefit of hindsight. The applicant did not say that there was further information available that was withheld for the purpose of addressing the Tribunal at a hearing.
This Court is not satisfied on the applicant’s evidence and submissions that there was no effective consent to the Tribunal determining the review without a hearing. Therefore, there was no failure to provide procedural fairness by the Tribunal in reaching the Decision without a hearing. The obligation to invite an applicant to a hearing in s 360 of the Act does not apply if the applicant consents to the Tribunal deciding the review without an appearance by the applicant. If consent is given, then the right to appear is removed (s 360(3)). There is nothing in the Decision that suggests that there was information held by the Tribunal that was not put to the applicant before making the Decision (s 359A of the Act) or that the Tribunal did not comply with the statutory procedural fairness requirements.
Further, it was not unreasonable for the Tribunal to proceed to determine the review without a hearing or without inquiring of the applicant as to whether the consent provided was genuine. Whilst the Full Court in SZFML said at paragraph [72] that it may be prudent of the Tribunal to confirm consent where consent is given through an agent, it is not in my view unreasonable in the circumstances of this case for the Tribunal to proceed as it did. It could not be said that no reasonable decision-maker could proceed to determine the review without a hearing when on the face of the s 359 Response, there was fully informed consent to dispense with a hearing (see Li at [30], [76] and [91] and Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [34] per Allsop CJ, Besanko and O’Callaghan JJ). It could not be said that the decision to proceed to determine the review without a hearing lacked an evident and intelligible justification in the circumstances of this case.
There is no inconsistency in the questions asked in questions one and two of the s 369 Response. Question two allows an applicant to request an interpreter if a hearing is required. That the applicant marked “yes” to that question and nominated the Vietnamese language was curious, however, there is nothing in that answer that negates the consent given in the answer to question one. The applicant did not say on oath that the answer to question one was given under a genuine mistake or misunderstanding, but rather it was submitted by the solicitor for the applicant that the answer was completed by someone else. The circumstances under which questions one and two were completed was not the subject of any evidence. That was so after the hearing on 8 October 2024 where any anomaly in the answers was squarely raised. In the absence of evidence, the Court cannot infer that there was no consent or that the consent was not genuinely given. The assertion that the applicant completed the entirety of the s 359 Response in her handwriting, but not question one is not persuasive, especially when the applicant bears the onus of establishing that she did not consent to the Tribunal deciding the review without a hearing.
There was also no obligation on the Tribunal to inquire as to whether the applicant’s consent was genuine (see SZIAI at [25] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43] per Gummow and Hayne JJ). This was not a case like SZFML where the applicant had previously indicated an intention to attend a hearing or where the Tribunal was squarely on notice that the applicant intended to supplement the information provided in the s 359 Response or wished to address the Tribunal on whether the applicant was a genuine applicant for entry and stay as a student within the meaning of the Regulations and the criteria in the Ministerial Direction. It was also not unreasonable for the Tribunal to assume that the applicant had provided all relevant further information that she wished the Tribunal to consider in the s 359 Response as she was asked to do. That was the very purpose of the s 359 invitation (CB 87-8). Any inconsistency in the answer to question one and question two was not enough to require the Tribunal to inquire further of the applicant, especially where the applicant was represented by a registered migration agent.
There was no jurisdictional error or failure to perform the statutory task in accordance with the Act by the Tribunal proceeding to determine the review without a hearing.
UNREASONABLENESS
The solicitor for the applicant made a general submission that the Decision was unreasonable. This was also a ground for review in paragraph eight of the application for judicial review (CB 143). The allegation is vague and unparticularised. At the hearing, the applicant’s solicitor focused his submissions on an unreasonable failure to inquire as to the applicant’s consent to determination without a hearing. The Court has addressed that submission and finds that there was no duty to inquire in the circumstances and that the Tribunal did not act unreasonably in proceeding to determine the review without a hearing. In so far as it is alleged that the Tribunal acted unreasonably by failing to consider the totality of the applicant’s evidence or any integer of her claim to be a genuine temporary student entrant and entitled to the visa, the Decision reflects consideration of all aspects of the applicant’s evidence and submissions. There was due consideration of the applicant’s history as a student, consideration of the breach of the conditions of a previous visa and consideration of the applicants stated intention to return to Vietnam to establish a salon in Vietnam with her sister. Those considerations were also considered when addressing Ministerial Direction No. 69. In the applicant’s outline of submissions on page 22 at paragraphs [60]-[65], there are further broad allegations that the Decision was not rational or logical and was unreasonable. It is unclear from the application for judicial review and the applicant’s submissions to this Court which aspects of the applicant’s application for the visa were overlooked or unreasonably omitted in the Decision. The Decision is logical and was rationally open to the decision-maker based on the evidence provided (see Li at [30] per French CJ and [91] per Gageler J). The conclusions reached by the Tribunal had an evident and intelligible justification and were reasonable (see Li at [76] per Hayne, Kiefel and Bell JJ and Eden at [58]–[65] per Allsop CJ, Griffiths and Wigney JJ).
OTHER GROUNDS
In ground one of the application for judicial review, the applicant asserts that the Tribunal did not provide enough weight to the “situation [she] explained”. The allegation is vague and unclear, and it could be dismissed for lack of particulars (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J). The weight given to any fact or circumstances is a matter for the Tribunal as decision-maker and not for this Court (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, 41 per Mason J). The Decision reflects a logical consideration of all of the information provided by the applicant to the Minister and the Tribunal. This ground of review is rejected.
Ground two is another broad allegation of failing to consider the applicant’s intentions. The Decision reflect consideration of the applicant’s course of study, history and ambitions (CB 160-1 [27]–[35]) and the Tribunal concluded that the applicant was well qualified to return to Vietnam to pursue future business ventures (CB 161 [33]). It is unclear why the applicant says that the Tribunal erred other than to disagree with the findings recorded in the Decision. This ground is also rejected.
Ground three is a complaint about procedural fairness that has been addressed by this Court. There was no failure to provide procedural fairness by the Tribunal in circumstances where the applicant indicated consent to proceed to determine the review without a hearing. This ground is also rejected.
Ground four alleges that the Tribunal erred by focusing on the number of courses undertaken by the applicant. The Tribunal did consider the entire history of the applicant’s education path in Australia including the previous unsuccessful attempts to undertake Tertiary level course. However, the Tribunal did consider other evidence and gave due consideration to that evidence when considering the guidelines in Ministerial Direction No. 69. The Decision does not reflect an illogical or irrational focus on courses alone. This ground is rejected.
Ground five is also vague and unclear. Reference is made to “exceptional circumstances”, but those circumstances are not identified or explained. The applicant did not identify any further information or document to be relied on that was not before the Tribunal when making the Decision, nor did the applicant identify why the “exceptional circumstances” would have altered the result. This also appears to be an attempt to reagitate the merits of the applicant’s review which is not permissible in this Court (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6).
Ground six is an allegation that the Tribunal did not consider the applicant’s “ties back home and future plans”. The Tribunal did consider those facts in the Decision, and it is unclear why it is said that the Tribunal erred (CB 160-2 [27], [29], [35] and [41]). The onus is upon the applicant to establish that she was a genuine temporary entrant, and the Tribunal was not persuaded that the applicant satisfied the criteria for a student visa after considering the long educational history of the applicant and immigration history. This ground is also rejected.
Ground seven is a broad allegation of the Tribunal failing to consider facts provided and a failure to inquire as to further documents and information. The Tribunal did ask the applicant to provide it with all relevant information (CB 87-8) and gave her a copy of Ministerial Direction No. 69 (CB 89-93). The Tribunal also granted an extension of time within which to provide information (CB 112). The note prefacing question one on the s 359 Response also made the Tribunal’s position clear that the applicant should provide all the information that the applicant would like the Tribunal to consider. In the applicant’s affidavit sworn 15 January 2019, the applicant said she thought she provided “more than what they have requested”. Therefore, it is unclear why the applicant says the Tribunal erred. The applicant does not identify the documents or information that would have been provided had a hearing been held. This ground is rejected.
Ground eight is a general allegation of unreasonable decision-making. This has been addressed above. There was nothing illogical or irrational about the Decision and it could not be said that no rational decision-maker could reach the same result.
Finally, in the applicant’s outline of submissions at page 26, there is reference to the “Bias Rule”. When asked if the applicant was alleging actual or apprehended bias, the applicant’s solicitor was equivocal. An allegation of bias must be distinctly made and clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J). There is no clear allegation of bias and no attempt to prove same. There is nothing in the Decision that reflects actual or apprehended bias by the Tribunal and that allegation should also be rejected.
The grounds of review identified by the applicant are not persuasive and rejected. The application for judicial review is dismissed.
COSTS
The Court confirmed with the solicitor for the Minister that the name of the first respondent is to be amended to Minister for Immigration and Multicultural Affairs and that, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
ORDERS
The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
The name of the second respondent be amended to Administrative Review Tribunal.
The application for judicial review filed 15 January 2019 be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the proceeding fixed at $7,467.00.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated:11 December 2024
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