Njoroge v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 452
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Njoroge v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 452
File number: PEG 65 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 31 May 2023 Catchwords: MIGRATION – Cancellation of a Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to comply with its procedural fairness obligations – whether the Tribunal made a mistake of fact – whether the Tribunal made a finding which was not based on the evidence before it – whether the Tribunal erred by conducting the hearing by telephone – whether the Tribunal failed to consider information about the applicant’s studies in cookery or the CoEs provided in that regard – whether the Tribunal was biased – whether the Tribunal hearing was rushed – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 116, 360, 366, 476 and 499
Migration Regulations 1994 (Cth), Condition 8202 in Schedule 8
Cases cited: Attorney General (NSW) v Quin (1990) 170 CLR 1
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Brar v Minister for Immigration & Anor (No 2) (2017) 322 FLR 81
Craig v State of South Australia (1995) 184 CLR 163
CXD22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 710
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration & Border Protection v Dhillon (2014) 227 FCR 525
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424
SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712
SZNNE v Minister for Immigration & Citizenship [2010] FCA 194
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Vidiyala v Minister for Home Affairs [2018] FCA 1973
W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 18 May 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 65 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALLAN NJOROGE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
31 MAY 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Kenya (Court Book (“CB”) 49, 62 & 101-104). He was granted a Student (Class TU) (Subclass 500) visa (the “visa”) on 21 April 2017 (CB 49 & 62). He arrived in Australia on 29 April 2017 as the holder of that visa (CB 51 & 64). The visa was due to expire on 10 September 2020 (CB 49 & 62).
On 13 February 2020, the Department of Home Affairs (the “Department”) contacted Edith Cowan University (“ECU”) and TAFE International Western Australia (“TIWA”) requesting information about the applicant’s enrolment status (CB 25 & 30).
On 17 February 2020, TIWA responded to the Department advising that the applicant’s enrolment had been “terminated for non payment of fees” (CB 32-34).
On 18 February 2020, ECU responded to the Department advising that the applicant had not commenced his studies with ECU (CB 27-29).
On 20 February 2020, the Department sent the applicant a notice of intention to consider cancellation letter (the “NOICC”) under s 116 of the Migration Act 1958 (Cth) (the “Act”) (CB 35-39). The NOICC was sent to the applicant by email and by registered post (CB 35). The NOICC referenced a breach of Condition 8202 in Schedule 8 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 35-36) and, relevantly, noted that the applicant had “not been enrolled in a registered course since 21 November 2018” (CB 36).
On 25 February 2020, the applicant sent a letter to the Department (via email) in response to the NOICC (CB 40-41). That letter read as follows (without alteration) (CB 41):
I am writing this letter in response to the notice received on 20th February. The year 2019 has been a tough year for me due to a medical issue that involved my father travelling oversea for treatment. I know staying in class is a key condition for my visa but after losing my mother in 2017 before coming to Australia, I got worried and stressed about losing another parent.
Due to the emotional state I was in, it became tough to concentrate in class and when on further to falling ill at the end of 2019. After several visits to the doctor they found nothing wrong me and finally after a conversation of what was happening back home and recommended to see a specialist or to trust in someone. Documents on my illness can provided upon request.
On November 2019 my prayer was answered, and my father had a quick recovery. now after a discussion with my brother 2020 is the time to resume my studies, I plan to join in the June intake to continue with my diploma and hopeful move on to bachelor as well.
My prayer is that you reconsider your decision about my visa and give me a chance to complete my education and fulfil my parents dream and my dream as well to get a bachelor’s degree.
On 16 March 2020, a delegate of the first respondent (the “Minister”) cancelled the applicant’s visa (the “cancellation decision”) (CB 49-55). The applicant was notified of that cancellation decision by way of a notification letter sent to him via email that same day (on 16 March 2020) (CB 44-48).
On 16 March 2020, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the cancellation decision (CB 56-61).
On 18 October 2021, the Tribunal invited the applicant to attend a hearing before it (by telephone) scheduled for 3 November 2021 (CB 84-91). That hearing invitation was sent to the applicant via email (CB 83).
On 26 October 2021, the applicant sent a completed copy of the “Response to hearing invitation” form to the Tribunal, confirming that he would attend the Tribunal hearing (CB 92-95).
On 1 November 2021, the applicant provided the Tribunal with four Overseas Student Confirmation-of-Enrolment forms (“CoEs”) in relation to his enrolment in Certificates III and IV in Commercial Cookery and a Diploma and an Advanced Diploma of Hospitality Management (CB 96-104).
On 3 November 2021, the applicant appeared at a hearing before the Tribunal (by telephone) to give evidence and present arguments (CB 105-107).
Following the Tribunal hearing, the applicant provided additional documents to the Tribunal (via email) comprising medical documents and email correspondence between the applicant and South Metropolitan TAFE in relation to his studies (CB 108-119).
On 15 February 2022, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa (CB 127-134).
On 22 March 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision (CB 1-7). The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
THE TRIBUNAL’S DECISION
The Tribunal’s decision is eight pages long and spans 40 paragraphs. The final page included an extract of relevant legislative provisions.
The Tribunal began by explaining that under review was a decision (made on 16 March 2020) to cancel the applicant’s visa. The Tribunal then noted that the applicant had attended an audio hearing before it on 3 November 2021 to give evidence and present arguments (at [1]-[2]).
The Tribunal identified that the issue before it was whether the applicant had breached condition 8202 in Schedule 8 of the Regulations (and, if so, whether the visa should be cancelled) (at [4]).
The Tribunal then outlined the legislative requirements of Condition 8202 in Schedule 8 of the Regulations and explained that, in this matter, the applicant’s visa had been cancelled because he was not enrolled in a full-time registered course. The Tribunal confirmed that it had reviewed a copy of the delegate’s decision (dated 16 March 2020) and had discussed the decision with the applicant at the Tribunal hearing. The Tribunal also noted that the applicant had confirmed that the information set out in the delegate’s decision “was true and correct” (at [5]-[7]).
The Tribunal continued:
8.The Tribunal put to the applicant that the information in the decision record stated that the applicant had not been enrolled in a fulltime registered course since 21 November 2018. The Tribunal then referred to recent documentation that the applicant provided to the Tribunal. The Tribunal referred to an email from the applicant dated 1 November 2021, including four Confirmation of Enrolment (COE) documents dated 17 March 2021 in respect to four courses – a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management.
9.On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study between 21 November 2018 and 17 March 2021. Accordingly, the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.
The Tribunal noted that, having found that the applicant had not complied with a condition of his visa, it needed to consider whether the visa should be cancelled (at [10]).
The Tribunal considered the circumstances in which the ground for cancellation arose as follows:
(a)at the hearing before it, the Tribunal asked the applicant why he had not been enrolled in a registered course of study between 21 November 2018 and 17 March 2021 (at [11]);
(b)the applicant told the Tribunal that he had arrived in Australia in April 2017 to undertake a course in Information Technology (with a view to undertaking a Bachelor degree in Computer Science). However, he had gone through a stressful time. The applicant explained that his mother had passed away before he left his home country and that his aunt had become ill in 2018 (at [12]);
(c)when asked if he had spoken to his course provider about his stress, the applicant told the Tribunal that he had done so and that he had some emails reflecting those discussions (at [13]);
(d)the Tribunal set out the applicant’s response to the NOICC as follows (at [14]):
I am writing this letter in response to the notice received on 20th February. The year 2019 has been a tough year for me due to a medical issue that involved my father travelling overseas for treatment. I know staying in class is a key condition for my visa but after losing my mother in 2017 before coming to Australia, I got worried and stressed about losing another parent.
Due to the emotional state I was in, it became tough to concentrate in class and when on further to falling ill at the end of 2019. After several visits to the doctor they found nothing wrong me and finally after a conversation of what was happening back home and recommended to see a specialist or to trust in someone. Documents on my illness can provided upon request.
On November 2019 my prayer was answered, and my father had a quick recovery. now after a discussion with my brother 2020 is the time to resume my studies, I plan to join in the June intake to continue with my diploma and hopeful move on to bachelor as well.
My prayer is that you reconsider your decision about my visa and give me a chance to complete my education and fulfil my parents dream and my dream as well to get a bachelor’s degree.
(e)noting that the applicant’s response referenced his circumstances in 2019, the Tribunal asked the applicant to explain his circumstances in 2018 which led to his course provider cancelling his enrolment. In response, the applicant claimed that his father had been ill at that time (at [15]);
(f)the Tribunal noted that the applicant had confirmed that he understood that he was required to comply with his visa conditions and, when asked, said that he had not told the Department that he was having problems in 2018. Rather, he had only told his course provider (at [16]-[17]);
(g)the applicant told the Tribunal that, when his course was cancelled, he was “trying to figure out whether Computer Science and Information Technology were suitable courses” for him and indicated that, after some time, he decided to enrol in a cookery course in order to comply with his visa conditions (at [18]);
(h)the applicant told the Tribunal that he had depression and anxiety and, when asked if he had a medical diagnosis for those conditions, he said that he had seen a psychologist and would be able to provide documentation about his psychological treatment and his diagnoses (at [19]); and
(i)the Tribunal noted that the applicant had provided further information to it on 4 November 2021 (a list of which was included in the Tribunal’s reasons) (at [20]).
Based on the information above, the Tribunal made the following findings (at [21]):
(a)the Tribunal accepted that the applicant may have experienced stress due to his mother passing away and his aunt and father becoming ill and accepted that the applicant had interacted with his course provider in 2018 in relation to these issues. However, the Tribunal was not satisfied that the applicant took reasonable steps to remain enrolled and to comply with his visa conditions. Further, the Tribunal noted, the applicant should have discussed his personal issues with the Department (rather than limiting his efforts to discussions with his course provider) (at [22]-[23]);
(b)the Tribunal found that the applicant was not enrolled in a course of study for a substantial period of time before he received the NOICC in early 2020 and remained unenrolled until 17 March 2021 (at [24]);
(c)the Tribunal accepted that a receipt from a doctor for a “GP Mental Health Care Consultation” dated 15 April 2021 indicated that the applicant may have a mental health condition but noted that it was not clear what that condition might be. The Tribunal also accepted that the applicant may have had a physical health condition at the end of 2019. However, the Tribunal was not satisfied that the applicant’s physical or mental health conditions significantly affected his circumstances as to why he ceased being enrolled in 2018 (at [25]); and
(d)while accepting that various instances can impact a person’s well-being, the Tribunal found, on balance, that that the applicant had not taken reasonable steps to maintain his enrolment (which was a condition of his visa). Further, the Tribunal was not persuaded that the applicant’s circumstances (in respect of maintaining his enrolment) were beyond his control and placed high weight on that information against the applicant (at [26]).
The Tribunal accepted:
(a)that the applicant’s purpose of travelling to and staying in Australia was initially to study but found that the applicant had no compelling need to remain in Australia. Accordingly, it placed no weight on that information (at [27]);
(b)that the applicant appeared to have complied with his other visa conditions and gave this low weight in the applicant’s favour (at [28]);
(c)the applicant’s evidence that he would “feel like a big letdown for his father and that going back home would be a big disappointment” and gave the matter some weight in the applicant’s favour (at [29]-[30]);
(d)that there was no evidence that the applicant had been uncooperative with the Department in the past and gave that consideration some weight in the applicant’s favour (at [31]); and
(e)that the applicant would need to make his own arrangements to obtain a visa and remain onshore and, failing that, he would be in Australia unlawfully and might then be detained or removed. Further, the applicant would be subject to a three-year exclusion period as a result of the visa cancellation resulting in limited options for him to apply for a further visa in Australia. The Tribunal placed some weight on this information in the applicant’s favour (at [33]-[36]).
The Tribunal also noted that the applicant had no dependants who would be affected by the visa cancellation and that the applicant had indicated that he had no fears if he returned to Kenya. The Tribunal placed no weight on either piece of information (at [32] & [37]).
The Tribunal acknowledged that the applicant had requested another chance to complete his hospitality course and placed some weight on that information in the applicant’s favour (at [38]).
In the circumstances, the Tribunal concluded that the applicant’s visa should be cancelled and affirmed the delegate’s decision cancelling the visa (at [39]-[40]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 22 March 2022 contains three “grounds of review”, as follows (without alteration) (CB 4):
1.The Tribunal did not provide me with procedural fairness when considering whether I was undertaking any training.
2. The Tribunal made a mistake of fact which amounted to a jurisdictional error.
3. The Tribunal made a finding which was not based on any evidence before it.
On 16 June 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any written submissions and any additional evidence. Unfortunately, no additional materials were provided by or on behalf of the applicant.
The materials before this Court thus include the application for judicial review and supporting affidavit filed by the applicant on 22 March 2022, a Court Book numbering 134 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 3 February 2023 and two affidavits of service of Grace Mickle affirmed and filed (on behalf of the Minister) on 14 February 2023 and 11 May 2023 respectively.
The applicant first appeared before this Court on 17 February 2023 without legal representation. When the applicant was asked if he had received the Court Book and the Minister’s submissions, he confirmed that he had received the documents but he did not have any documents with him as he had given them to his “lawyer who was helping him with his matter”. He explained further that earlier that same week, the applicant had been told by his lawyer that “they would no longer be representing” him. Further, the lawyer had “not returned the documents” to him.
In the circumstances, the Court considered that it was appropriate to adjourn the matter to allow the applicant additional time to prepare for the hearing and review the relevant documents. The Court asked Ms Mickle (solicitor for the Minister) to arrange for further copies of the Court Book and the Minister’s submissions to be served on the applicant and adjourned the hearing.
The applicant then appeared before this Court on 18 May 2023, again without legal representation. Ms Mickle appeared again on behalf of the Minister. The Court confirmed with the applicant that he had now received and reviewed the new copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, as per the principles articulated in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 (“Singh”) at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or reinstate the applicant’s cancelled visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against this background, the applicant told the Court that his first concern was the way that the hearing was conducted. The applicant explained that the hearing took place by telephone, that he lives in an area with “poor network connection” and that the call “kept cutting out”. Further, he stressed that because English is his second language, he “found some of the accents and the conversation difficult to follow by phone”.
The applicant was also concerned that the Tribunal “kept asking about [him] being enrolled in a course after his visa was cancelled”. The applicant explained that he had no study rights so he instead was undertaking an apprenticeship in commercial cookery and that he had to do so because there were “no schools offering something similar in baking”.
The applicant also raised concerns that the Tribunal was “biased”. He explained that, while the Tribunal was asking him questions, it seemed to him that “they had already made a decision about what they were going to do”. It also appeared to the applicant that the Tribunal was “looking for specific answers to the questions being asked”.
The applicant was also of the view that, because the hearing took place during COVID, the Tribunal “may have had a lot of outstanding matters and, as such, rushed through his matter”. The applicant also noted that the Tribunal hearing finished in less than an hour.
Finally, the applicant was of the view that the Tribunal failed to consider information that he had provided in the form of a CoE from Stanley College.
These issues, to the extent that they address or suggest jurisdictional error, will be considered below.
CONSIDERATION
Grounds of review
Ground 1
As outlined above, ground 1 provides:
1.The Tribunal did not provide me with procedural fairness when considering whether I was undertaking any training.
The applicant has provided no information in relation to how he was not provided procedural fairness in relation to his training. Unfortunately, the applicant did not elaborate on this ground of review in his oral submissions before this Court.
Insofar as the applicant raises concerns regarding whether the Tribunal adhered to its procedural fairness obligations generally, the Court notes as follows:
(a)the applicant was given an opportunity to provide information and evidence explaining why his visa should not be cancelled;
(b)the applicant provided an explanation to the Department in that regard on 25 February 2020 (CB 40-41) and to the Tribunal at the hearing. That information was considered by the Tribunal;
(c)the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments: s 360 of the Act. The applicant appeared before the Tribunal (by telephone) (CB 105-107);
(d)there is nothing on the face of the Tribunal’s decision to suggest that the Tribunal displayed any bias or prejudgment (as per the principles in SZRUI and Minister for Immigration v Jia Legeng (2001) 178 ALR 421 (“Jia Legeng”) at [71]-[72]) (discussed further below);
(e)the applicant was given an opportunity to provide any further evidence in relation to the visa cancellation (both before and after the Tribunal hearing) and did so; and
(f)the findings made by the Tribunal were open to it on the evidence before it (which, whilst limited, was provided by the applicant) and those findings cannot be seen to be illogical, irrational or unreasonable (as per the principles in SZMDS, Li and Singh).
The Court is satisfied that the Tribunal complied with its procedural fairness obligations.
No error arises in relation to ground 1.
Ground 2
Ground 2 states:
2. The Tribunal made a mistake of fact which amounted to a jurisdictional error.
Again, the applicant has not provided information about the specific “mistake of fact” that he claims arose in relation to his matter. Nor did the applicant address this ground of review in oral submissions.
An error or fact (in and of itself) will not normally amount to an error of law, much less jurisdictional error: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-36.
It is possible, however, that a mistake in relation to evidence may be so fundamental to the decision of the Tribunal that it results in a failure to discharge its duty to conduct its review according to law: W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 at [27].
The Court has considered the Tribunal’s findings of fact and considers the Tribunal’s findings to have been open to it on the information before it (much of which had been provided by the applicant himself).
As correctly submitted by the Minister (at [31] of its written submissions filed in this Court on 3 February 2023), the Tribunal is entitled to accept, reject or give such weight to the evidence proffered as it thinks is appropriate in all of the circumstances: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. That is part of the Tribunal’s fact-finding function: Wu Shan Liang at 281-282.
The Court is satisfied that no jurisdictional error arises in relation to ground 2.
Ground 3
Ground 3 provides:
3. The Tribunal made a finding which was not based on any evidence before it.
Again, the applicant did not provide specific information about which findings he thinks were not open to the Tribunal. Again, the applicant did not elaborate on this issue in oral submissions before this Court.
The Court notes (as correctly submitted by the Minister (at [34]-[36] of its written submissions filed in this Court on 3 February 2023), that there “are no mandatory considerations [which] apply to the exercise of the discretion to cancel [an] applicant’s visa” pursuant to s 116 of the Act. The Tribunal did, however, consider the items outlined in the Department’s Procedures Advice Manual (“PAM3”). The PAM3 is not a binding document and simply provides guidance to officers applying the Act and Regulations: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at [45]. In that regard, it differs from directions given by the Minister under s 499 of the Act which are binding on the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238.
Here, the Tribunal considered the evidence provided by the applicant (both orally at the Tribunal hearing and by way of additional documents and materials provided by the applicant before and after the Tribunal hearing). Having considered that information and evidence, the Tribunal made findings on the basis of that material before it.
To the extent that the applicant disagrees with the findings of the Tribunal, disagreement, however strongly felt, does not amount to jurisdictional error on the part of the Tribunal: Vidiyala v Minister for Home Affairs [2018] FCA 1973 at [36].
No error arises in this regard.
Applicant’s oral submissions
Upon review of the applicant’s oral “submissions” at the hearing, the Court considers the applicant to be raising the following issues in need of consideration:
(1)whether the Tribunal erred by conducting the hearing by telephone;
(2)whether the Tribunal failed to consider information about the applicant’s studies in cookery or the CoEs provided in that regard;
(3)whether the Tribunal was biased; and
(4)whether the Tribunal hearing was rushed.
These issues will be considered by the Court below.
Issue 1: whether the Tribunal erred by conducting the hearing by telephone
To the extent that the applicant takes issue with the hearing taking place by telephone, as set out by this Court in CXD22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 710, there is nothing prohibiting the Tribunal from conducting a hearing by telephone: Brar v Minister for Immigration & Anor (No 2) (2017) 322 FLR 81 at [16]; Minister for Immigration & Border Protection v Dhillon (2014) 227 FCR 525 at [28]; SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 at [24]-[25]; MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87 at [30]; SZNNE v Minister for Immigration & Citizenship [2010] FCA 194 at [49].
Further, s 366 of the Act specifically allows for evidence to be given before the Tribunal by telephone and, relevantly, provides:
366 Oral evidence by telephone etc.
(1)For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
…
The Court notes that the Tribunal hearing in this matter was held during the COVID-19 pandemic and that the applicant was notified of the Tribunal’s arrangements during that time in its hearing invitation dated 18 October 2021 (CB 84-86). Relevantly, the invitation letter stated (CB 84):
Please see the ‘COVID-19 Special Measure Practice Direction – Migration and Refugee Division’ (available at for further information and directions about the current procedures for the AAT.
That same letter advised that the applicant needed to contact the Tribunal as soon as possible if he was not available on that date or if he believed that he would “experience difficulty participating in the hearing as arranged” (CB 85).
The applicant also completed and returned the “Response to hearing invitation” form and answered “no” to the questions of whether there was “any issue that may affect your ability … to take part in the hearing …?” and “Do you believe you or another person will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing invitation? (CB 93).
The applicant attended the Tribunal hearing as scheduled on 3 November 2021 by telephone (CB 105-107). There is no evidence before the Court to suggest that the applicant raised any concerns regarding the quality of the telephone connection or any difficulties in understanding the Tribunal Member, either at the Tribunal hearing or in the correspondence between the applicant and the Tribunal following the scheduled hearing.
This Court was not provided with a transcript of the Tribunal hearing and there is no evidence in the Court Book (or before the Court) that suggests that the applicant had any difficulties when appearing before the Tribunal by telephone. Nor is there any evidence before the Court to suggest that the applicant was prejudiced by attending the Tribunal hearing by telephone.
No error arises in this regard.
Issue 2: whether the Tribunal failed to consider information about the applicant’s studies in cookery or the CoEs provided in that regard
The applicant’s concerns in this regard fail on a factual level.
The Tribunal expressly refers to the applicant’s proposed studies in cookery and the CoEs provided by the applicant in its written reasons. Relevantly, the Tribunal states:
8.The Tribunal put to the applicant that the information in the decision record stated that the applicant had not been enrolled in a fulltime registered course since 21 November 2018. The Tribunal then referred to recent documentation that the applicant provided to the Tribunal. The Tribunal referred to an email from the applicant dated 1 November 2021, including four Confirmation of Enrolment (COE) documents dated 17 March 2021 in respect to four courses – a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management.
…
18.The Tribunal put to the applicant that it may find that while the applicant may have experienced stress due to his mother passing away, and due to his aunt becoming ill as well as his father becoming ill, he was still ultimately responsible to take reasonable steps to remain enrolled and maintain compliance with his visa conditions. In response, the applicant said after his course was cancelled he did not have an enrolment. He said he was still trying to figure out whether Computer Science and Information Technology were suitable courses for him. The applicant indicated that after some time he decided he wanted to enrol in a cookery course in order to maintain compliance with his visa conditions.
As outlined above, the Tribunal did consider both the documents provided by the applicant and the applicant’s oral evidence in this regard. Ultimately, however, the Tribunal considered that the time that the applicant had remained in Australia without being enrolled in a course of study was “substantial”.
Relevantly, the Tribunal stated:
24.The Tribunal finds that the applicant remained in Australia without an enrolment for a substantial period of time before he received the Notice to Consider Cancellation from the Department in early 2020. Even then, the applicant did not obtain another enrolment until 17 March 2021.
The Court is satisfied that the Tribunal considered the applicant’s limited evidence in this regard and made findings accordingly.
No error arises in this regard.
Issue 3: whether the Tribunal was biased
In oral submissions, the applicant raised concerns that he thought the Tribunal had already “made up their mind about what they were going to do”.
In relation to any concerns about bias, it is well established that any allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
There is nothing in the materials before the Court to indicate that the Tribunal was not open to persuasion. The Tribunal invited the applicant to attend a hearing, gave the applicant opportunities to provide additional evidence (both before and after the Tribunal hearing) and considered the evidence provided. The Tribunal also asked questions of the applicant and assessed his responses.
Ultimately, the Tribunal weighed the information before it, noting that some of the applicant’s evidence weighed in the applicant’s favour. However, on balance, the Tribunal determined that the applicant’s visa should be cancelled.
The Court is satisfied that the Tribunal was not biased in its review of the applicant’s matter.
Issue 4: whether the Tribunal hearing was rushed
To the extent that the applicant claims that the Tribunal hearing was rushed (such that he was denied an opportunity to adequately present his case), the Court disagrees.
The Court notes that the Tribunal records indicate that the hearing lasted for 49 minutes (commencing at 2.58pm and closing at 3.47pm). As outlined above, the applicant provided additional materials in support of his review application to the Tribunal prior to the hearing. The applicant then gave oral evidence to the Tribunal at the hearing before it on 3 November 2021. There is no evidence before the Court to suggest that there was any evidence that the applicant was unable to provide to the Tribunal due to a lack of time. Indeed, the applicant was given additional time after the Tribunal hearing to provide additional evidence and materials to the Tribunal and did so.
The Court also notes that Tribunal did not make its decision in this matter until 15 February 2022. The applicant thus had more than three months after the Tribunal hearing to provide any additional information to the Tribunal for consideration.
The Court is satisfied that the applicant had sufficient time within which to provide information to the Tribunal.
No error arises in this regard.
CONCLUSION
The application for judicial review (filed by the applicant on 22 March 2022) and the applicant’s oral submissions before the Court have failed to identify any jurisdictional error on the part of the Tribunal. This Court is also unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 31 May 2023
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