Ogawa v Minister for Immigration
[2011] FMCA 262
•27 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OGAWA v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 262 |
| MIGRATION – Application for review of decision of Migration Review Tribunal to refuse application for adjournment and proceed to determine application – time of decision criterion that applicant be enrolled in a registered course – no evidence of enrolment in a registered course – factor relevant to refusal of adjournment – allegations of unreasonableness and Tribunal addressing irrelevant considerations. |
| Migration Act 1958 (Cth), ss.353A, 368 |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation (Wednesbury Case) [1948] 1 KB 223 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 R v Ogawa [2009] QCA 307 |
| Applicant: | MEGUMI OGAWA |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 641 of 2009 |
| Judgment of: | Burnett FM |
| Hearing date: | 24 February 2010 |
| Date of Last Submission: | 24 February 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 27 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr F Syme |
| Counsel for the First Respondent: | Ms A. Wheatley |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | Ms A. Wheatley |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
That the application filed 23 September 2009 be dismissed.
That, subject to any other application being made by either party within seven (7) days of this order, the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 641 of 2009
| MEGUMI OGAWA |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By decision of the Migration Review Tribunal (the Tribunal) made
25 August 2009 the Tribunal affirmed a delegate’s decision made 30 March 2009 not to grant her a Student (Class TU) Sub-Class 574 Post Graduate Research Sector Visa. She now seeks review of that decision.The application for review was filed 23 September 2009. It identified two grounds. At the hearing before the Court she sought to prosecute grounds expressed in her amended application dated 24 February 2010. As is apparent on the face of the amended application a third ground was added and the first ground was abandoned. The grounds prosecuted at the hearing of the application were:
a)The Tribunal fell into error by failing to provide to the applicant a reasonable period of notice in a notice dated 23 June 2009 when inviting the applicant to attend the hearing on 2 July 2009;
b)The Tribunal fell into error by taking into account an irrelevant consideration, in particular that the applicant was seeking adjournment of the hearing before the Tribunal for an improper purpose being to delay the application.
Background
The applicant is a citizen of Japan born 24 October 1967. On 30 August 2007 she applied for a Student (Temporary) (Class TU) (Sub-Class 574) Visa. The delegate made a decision to refuse the applicant’s application for a visa on 30 March 2009. She was informed of that decision by correspondence dated that day.
On 15 April 2009 the applicant applied for review of the delegate’s decision to the Tribunal. On that date the applicant’s matter was assigned “P1” status, that is, it was given priority. A case note made at the time indicates that the matter was given priority because of the applicant’s “previous visa/review/court history, prior media interest and the fact that she is currently in Brisbane Women’s Correctional Centre.”[1] On 7 May the applicant was invited to appear before the Tribunal at a hearing to be conducted on 4 June 2008. The invitation to appear noted that she was to appear from the Brisbane Women’s Correctional Centre (BWCC) by video conference with the member sitting in Brisbane.
[1] Page 129 of the bundle of relevant documents (BRD)
On 13 May 2009 the applicant by her authorised representative requested that the hearing be rescheduled because the applicant was:
a)Currently in the BWCC, Wacol;
b)Suffering from “mental health issues;” and
c)Seeking copies of all documents then held by the Tribunal.
On 18 May 2009 a decision was made to release all of the relevant documents as requested.
Concerning the hearing, the Tribunal had forwarded a letter on 7 May 2009 inviting the applicant to attend a hearing on 4 June 2009 to give evidence and present arguments. On 13 May 2009 the Tribunal received a request that the hearing be postponed. The presiding member considered the request but decided not to postpone the hearing. The applicant was informed of the presiding member’s decision by letter of 21 May 2009. The letter forwarded to the applicant also included a “request for postponement” letter and “response to hearing invitation” form. That letter confirmed that the hearing would proceed on 4 June 2009 at 2.00pm via video link from the BWCC.
On 29 May the applicant by her representative again requested that the hearing be postponed on the following basis:
a)The applicant was not fit to prepare for and attend a hearing on the basis of a report from Mr McKenzie, a clinical psychologist;
b)Non release of documents;
c)The improper assignment of priority 1 to the application; and
d)The need to gather further evidence being evidence of enrolment in a registered course.
On 2 June 2009 the Tribunal postponed the hearing pursuant to the applicant’s request and invited the applicant to provide a report from Dr Heffernen the consultant psychiatrist with Queensland Corrective Services. The Tribunal’s letter also requested that the report include a medical opinion from Dr Heffernen as to the timeframe concerning her fitness to attend at a Tribunal hearing.
It requested the report be received at the Tribunal by close of business on 16 June 2009.
On 16 June 2009 the applicant’s representative requested an extension of time of seven days to provide the report of Dr Heffernen. An extension was allowed until 19 June 2009.
On 19 June 2009 the applicant’s representative provided a letter from
Dr Heffernen dated 15 June 2009. The applicant’s representative’s letter also indicated that the applicant was to be released on bail that day from the BWCC she having successfully procured bail pending appeal.On 23 June 2009 the Tribunal advised the applicant that it had rescheduled the hearing date to 2 July 2009. In the meantime by letter of 24 June 2009 the applicant’s representative wrote to the Tribunal suggesting that the invitation to attend the hearing was defective as the prescribed period had not been allowed under regulation 4.21. Subsequently on 30 June 2009 the applicant’s representative again wrote to the Tribunal requesting that the hearing not proceed and providing a further medical opinion of Dr Veckler in support of that application. In that letter the applicant’s representative also complained that the notice period was not reasonable given the applicant’s circumstances. He contended she ought to be recognised as a vulnerable person in light of her mental health status. He noted that since release from the prison the applicant was under the care of
Dr Veckler who had expressed the opinion that her mental health status “is currently in a state of change since her release”. He reported that Dr Veckler had “strongly” recommended the Tribunal defer the hearing until the applicant’s mood stabilised. He stated further that Dr Veckler believed the applicant was “currently not fit to attend a hearing” and suggested a timeframe of six to eight weeks before she might be so fit.
The letter also raised concerns about the applicant’s capacity to travel because of the distance from the applicant’s residence to the Tribunal of “more than 200 kilometres” and requested a right to appear by telephone. He further gave notice that he required the Tribunal to hear oral evidence from Dr Veckler and Mr McKenzie if the hearing proceeded on 2 July. Additionally he stated that the applicant requested the Tribunal obtain written evidence from the Queensland Government Department of Corrective Services and the BWCC as to the status of her enrolment in the Certificate III in Business Administration Course which she had applied for enrolment of while serving her prison sentence.
On 30 June 2009 the Tribunal advised that the hearing scheduled for
2 July 2009 would proceed by telephone. She was also advised that in respect of material concerning her status of enrolment in the Certificate III in Business Administration Course it was for her to make her case.
On 2 July 2009 the Tribunal conducted the rescheduled hearing. The applicant appeared for a short time by telephone before ringing off. The Tribunal proceeded to conduct the hearing despite that matter but in the presence of her representative who was present in the hearing room in Brisbane with the Tribunal member.
Subsequent to the hearing the applicant’s representative sent to the Tribunal a further report from Dr Veckler dated 6 July 2009. The report largely confirmed the matters which were advised to the Tribunal by his letter of 30 June 2009.
On 25 August 2009 the Tribunal affirmed the delegate’s decision not to grant the applicant a Student (Temporary) (Class TU) visa as it was not satisfied the applicant had at the time of the decision an enrolment in a registered course of study. Accordingly the Tribunal was not satisfied that the applicant satisfied clause 574.22 of Schedule 2 to the Regulations.
Legislation
Section 65 of the Migration Act 1958 (Cth) provides, inter alia, that if the Minister is satisfied that the “criteria prescribed by this Act or the Regulations had been satisfied” he is to grant the visa. Relevant criteria under Sub-Class 574 include criteria to be satisfied at the time of decision. In particular clause 573.222(1) requires as a time of decision criteria “the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course)”.
This was the sole ground upon which the application was refused. The Tribunal had concluded that following enquiry of the academic records officer at the University of Queensland that the applicant had been awarded a Doctor of Philosophy on 1 December 2008 and that she was no longer enrolled as a student at the University of Queensland. The Tribunal noted:
“The Tribunal finds that at the time of decision the applicant no longer remains a PhD student at UQ and is not enrolled at UQ or in any other registered course of study. The Tribunal finds that the applicant does not meet the requirement of cl.574.22.”[2]
[2] Decision para 48.
At the time of decision there was no other evidence before the Tribunal that established the applicant was at the time of decision enrolled in an acceptable course.
Notwithstanding the merits of the applicant’s application she says she was unfairly denied an adjournment and the Tribunal fell into error in its deciding the application upon the grounds noted above and addressed following.
Ground 1 – Failure to provide reasonable period of notice
The applicant contended that she had not been afforded a reasonable period of notice because:
a)Her application had been improperly assigned as a priority 1 application for hearing; and
b)She was a vulnerable person by definition and in contravention of the Department’s guidelines she had not been afforded an appropriate adjournment given that status.
To put matters in context it first needs to be observed that the initial notice of intention to attend the hearing dated 7 May 2009 gave notice of hearing on 4 June 2009. That date was well beyond the statutory prescribed minimum period of seven working days.
Subsequently the applicant successfully requested postponement of the hearing from 4 June 2009 when the matter was adjourned. It was later rescheduled for hearing on 2 July 2009. On 19 June 2009 a further request for postponement was made by the applicant. By notice dated 23 June 2009 the Tribunal member refused the applicant’s request and advised that a rescheduled hearing would proceed on 2 July 2009. That notice allowed the applicant only six working days between the date of notice and the hearing; one working day less than the notice period prescribed by regulation. The applicant complains that this shortened notice period was unreasonable. However because the hearing was a rescheduled hearing the prescribed period did not have to be given again; Minister for Immigration and Multi-Cultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 at [76] – [83]; SZDQO v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) 144 FCR 251; and SZEFM v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2006] FCA 78.
Against that background the applicant contends the Tribunal fell into error by failing to afford her a reasonable period of notice to attend the hearing because of the two matters noted above.
The directions governing the priority assignment of cases are contained in Principal Member Direction 1/2009 which was issued under s.353A of the Act. Directions are not mandatory and are not intended to be inconsistent with the Act. Section 353 of the Act provides the Tribunal shall, in carrying out its functions pursue the objectives of providing a mechanism of review that is fair, just, economical, informal and quick. The objectives set out in paragraph 6 of the Direction seek to achieve those outcomes. Cases which are noted as having priority include any case involving vulnerable persons or any case in which the principal member or officer authorised by the principal member decides it should be given priority because of special circumstances.
A separate guidance policy document has issued in respect of vulnerable persons. In particular it relevantly notes at paragraph [4.2], that all cases where an applicant has been identified as a vulnerable person he/she will be given priority 1 (highest priority) status but to ensure a fair and just review “it may be necessary to delay the processing of a case, because of issues causing the person to be identified as vulnerable”. The guidelines serve to emphasise the ability of the Tribunal to take evidence on oath or affirmation but confirm the absence of obligation to do so. In summary it provides for a more flexible approach to be adopted having regard to the individual’s particular vulnerability.
In this case the Tribunal determined that the case was one which required priority because of its “special circumstances”. This is in contrast to the applicant’s view she was accorded priority status because she was a vulnerable person.
The applicant contended that none of the grounds expressed by the Tribunal’s case manager, Mr Willoughby-Thomas satisfy the criteria for priority. The applicant’s argument appears to have focussed on her assessment being based on her being a vulnerable person. However it seems plain that this was not the case with the facts relied upon by the Tribunal officer relating more generally to special circumstances. The matter was one open to the Tribunal and I do not think there was any serious dispute concerning those underlying factors. Unfortunately for the applicant her history has now become notorious,[3] in particular by her behaviour the subject of the indictment before the District Court Queensland and by her conduct through the course of proceedings. That behaviour excited considerable media attention justifying the case manager’s comments.
[3] The facts and circumstances enlivening judicial and media interest in the applicant are summarised in R v Ogawa [2009] QCA 307.
I do not accept the case manager’s comments do not correlate to the grounds set out in the last dot point in paragraph [7] of the directions. It was clearly open for the matter to be afforded priority on that basis although I also accept she also was entitled to that status as a vulnerable person. In my view, irrespective of which classification is adopted, her general emotional state at the time of these events warranted particular consideration in determining how to progress the application.
In particular the applicant’s complaint here is that she should have been granted an adjournment because she was suffering under a disability.
The evidence available to the Tribunal at the time of hearing was contained in a report of Dr E Heffernen dated 15 June 2009. He is a psychiatrist employed by Queensland Health who provided psychiatric assessment and treatment to persons in custody including the applicant. He stated he had been the applicant’s treating psychiatrist during her incarceration at the BWCC. He had seen her on 10 occasions between 26 March 2009 and 9 June 2009. He particularly noted her mood and anxiety problems had varied depending on the nature of her custodial and legal circumstances but had been mostly congruent to her circumstances. He discussed her general condition and treatment but noted:
“While I did not specifically address issues of fitness for trial with [the applicant] it was my opinion that [she] did not have active symptoms of a mental health disorder that would have made her unfit to attend a Tribunal. … [The applicant] does have a vulnerability to mood and anxiety symptoms, such symptoms can be exacerbated by significant stressors. Given that [the applicant] has indicated apprehension about her Tribunal, it seems reasonable to consider any viable strategies to reduce her risk of distress. This may include:
(a) attendance of a support person at the hearing;
(b)negotiation with BWCC to host the Tribunal in a different environment;
(c)excusing attendance if it is not essential [the applicant] had indicated to me that this would be her preferred option.”
On 30 June the applicant by her advisor forwarded to the Tribunal a report of Dr Veckler, GP.[4] In her report[5] she stated the applicant’s mental health status was then in a state of change. Dr Volker suggested that until the applicant’s mood stabilised she recommended a “deferral of the Tribunal hearing”. She stated she did not think that the applicant was currently fit to attend, “most likely in under 6 to 8 weeks” from
29 June 2009. In her letter of 30 June 2009 the applicant requested that in the event the Tribunal intended on proceeding, the Tribunal hear from Dr Veckler and Mr Malcolm McKenzie.
[4] BGD page 32
[5] BRG page 50
That material was before the Tribunal at the time of the hearing.
Subsequent to the hearing a further report dated 6 July 2009[6] from
Dr Veckler was forwarded to the Tribunal. After reviewing her history the author continued:
“Accordingly it is my opinion that were [the applicant] to be required to attend at any Tribunal or court at this point in time it would be detrimental to her mental health and wellbeing. If [the applicant] is required to appear in such an environment, it is my opinion that she should be allowed to be represented by a suitably qualified person in her absence.
My opinion that [the applicant] would require 6-8 weeks to attend a hearing was based upon the premise that [the applicant] needs to be able to focus on a recovery without the additional stressors of any court or Tribunal attendance.”
[6] BRG page 31
It is noteworthy that only Dr Heffernen directly addressed what might be expected of the applicant at any hearing by observing that in expressing his view he did not know “the nature of the Tribunal or the particular matters that may be raised”. In a report which post dated the hearing but which clearly addressed her assessment of the applicant as at 29 June 2009 Dr Veckler stated that if the applicant was required to appear “she should be allowed to be represented by a suitably qualified person in her absence”. It follows that at the time, the Tribunal was to consider the application for adjournment there was no evidence before it expressing any informed view as to whether the applicant was fit to attend or otherwise. For instance in the case before the Tribunal member there was limited evidence; the applicant had been assisted in producing such evidence as had been produced; the applicant’s migration agent was present and able to advise if other relevant material was to be expected; and, the circumstances did not suggest the applicant’s vulnerability would be material to the Tribunal’s determination of the sole question before it being whether or not she was enrolled in a registered course. Clearly if the role of the applicant had extended beyond the matters noted above and required her to give evidence or submit to cross-examination or perhaps argue a difficult point of law her vulnerability and a medical opinion concerning it may have borne greater significance.
On the day of hearing, the application for adjournment was restated by the applicant personally before she rang off. At the hearing the applicant’s representative was present but not acting because he did not hold a written appointment to appear on her behalf. The Tribunal member determined to proceed with the application in the applicant’s absence after she rang off and in doing so proceeded to determine the application for an adjournment with the decision to proceed.
It was apparent from the transcript that the Tribunal member considered the medical evidence before her[7] and considered the basis for conflict between the medical witnesses. On one hand there was evidence of a longstanding treatment history by a psychiatrist (implicitly in respect of a psychiatric condition) and on the other hand evidence of a recently appointed medical practitioner whose qualifications were unknown but involved in general practice with a mental health focus.
[7] At page 5
In addition the applicant’s advisor requested in his letter of 30 June 2009 that the Tribunal obtain written evidence from the Queensland Government Department of Corrective Services and the BWCC as to the status of her enrolment in the Certificate III in Business Administration Course in which she had applied for enrolment. The Tribunal member was not presented with any material by the applicant to demonstrate that she was enrolled in an acceptable course. Nor was there any other material put to the Tribunal addressing this matter beyond the referral form directed to the Department of Corrective Services indicating the applicant wished to be “waitlisted” for a Certificate III in Business Administration course.[8] The Tribunal member took into account that the applicant would only be enrolled in a course if she was an inmate at the prison; the acceptance of the applicant’s registration appeared undecided; and that she only had a short period of time to serve on her sentence if her appeal was unsuccessful (implicitly inferring that her application for enrolment may be unsuccessful on that ground alone).
[8] RBD Pg 81.
Although the respondent contends that but for one day the period of notice would have been deemed reasonable I do not think that that alone is determinative of the applicant’s compliant.
In determining the approach to be taken to resolve resolution of the issue here regard must be had to the well settled approach exemplified by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30 where his Honour stated:
“[114] Regardless of the supervisory jurisdiction invoked in a particular care, judicial review is said to be limited to reviewing the legality of administrative action. Such review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision. The grounds of judicial review ought not be used as a basis for a complete re-evaluation of the findings of fact, a reconsideration of the merits of the case or a relitigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision-making power.
[115] The foregoing fundamentals were not challenged before this court. The limitations inherent in proceedings for judicial review were acknowledged by the appellant. The primary function of the judicature is to declare and enforce the law. Judges do not ordinarily lay claim to any special advantages in administrative decision-making. Furthermore, the grounds of judicial review in the appellant’s proceedings in the Federal Court, available under the Act, had been significantly narrowed.
[116] As Finkelstein J acknowledged, a wrong finding of fact by an administrative official does not provide a sufficient ground for a court’s intervention. However, an analysis of the process of fact-finding, and the degree to which findings are referrable to the evidence adduced, may disclose reviewable error. Whether a court is entitled to intervene then depends upon the decision-making and statutory context, as well as the grounds of review that are available. Flaws apparent in fact-finding may, for instance, disclose, or confirm, that the administrator has misunderstood the applicable legal criteria, or otherwise trespassed beyond the jurisdiction or authority conferred by the enactment. It has also been said that the requirement for findings of fact to be based on probative material and logical grounds may be an aspect of natural justice.”[9]
[9] Although Kirby J. dissented his approach was in common with the majority – see [9]; [36]; and [173].
It follows judicial review allows for review of error of law but forbids it for error of fact.
An adjournment to permit the applicant more time to produce material to the Tribunal was also a matter for it. On the facts before it the Tribunal was clearly open to infer that any adjournment for such purpose would be otiose especially given that there was no evidence of an enrolment in an acceptable course arranged through the Department of Corrective Services and that none would be likely, if at all into the future. No error has been demonstrated in the Tribunal’s refusal to grant an adjournment on this ground.
The fact that this point was fatal to the applicant’s application and strictly technical in the sense it was a matter that could not be assisted by oral testimony meant the applicant’s capacity to contribute to the proceeding had less relevance particularly in circumstances where she was assisted at the hearing by a technical advisor.
Ultimately the question of adjournment because of the applicant’s medical condition was a matter for the Tribunal. The Tribunal considered all the relevant material placed before it. It was a matter open to it to get “right” or “wrong”. Irrespective the Tribunal adopted the appropriate process and considered all the relevant material before it, it drew inferences from established facts and determined the application for the adjournment against the applicant. No reviewable error has been demonstrated and no Wednesbury[10] unreasonableness arises in the circumstances.
[10] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Consideration of an irrelevant consideration
The next ground advanced is that the Tribunal took into account an irrelevant consideration being that the Tribunal considered the applicant was seeking to delay. In submissions for the applicant her counsel particularly noted observations by the Tribunal member that:
·“…. We can’t delay the hearing forever …”;
·“This has been going on for quite some while …”;
·“…. I can’t wait forever …”;
·“… You are stalling for time …”;
·“… You are trying to delay this ….”
It was submitted that by reason of those comments it was evident that the mind of the Tribunal member was coloured by her taking into account an irrelevant consideration being that the applicant was stalling the hearing of the application. He contended that the member was under a duty to afford procedural fairness and properly assess the applicant’s requests for more time to prepare her case.
It was submitted that by taking into account the irrelevant consideration that the applicant was just seeking to delay, the member did not properly assess the medical evidence before her regarding the hearing and whether the hearing for the applicant should be conducted on the basis the applicant was a vulnerable person.
Concerning the transcript extracts above the respondents contend that the decision record is a proper place to assess the reasons of the Tribunal not the transcript. I agree that the transcript and matters recorded by it should properly be seen as the forensic process of testing and probing the evidence at the hearing and not the reason for the decision of the Tribunal. There is nothing recorded by the Tribunal on the face of the decision record that demonstrates its decision was influenced by matters related to the applicant seeking to delay matters or stalling. It follows that there is nothing to demonstrate that the decision was influenced by such a consideration.
The applicant contended that the Tribunal failed to afford appropriate weight to the evidence of Mr McKenzie and Dr Veckler in part because it was influenced by the irrelevant consideration that the applicant was just seeking a delay. I do not consider that to be the case. First the Tribunal did not allude to any such consideration in its reasons. Further the Tribunal’s decision notes that it had reviewed the medical evidence but preferred the evidence of Dr Heffernen. Although the Tribunal’s reasons are not detailed they are sufficient for the Tribunal in that they address the matters required by s.368 of the Migration Act; Minister for Immigration v Yusuf.[11] The matter was one open to the Tribunal on the material facts identified and explained or reasonably open to inference. Ultimately however, it does not appear to be a finding which was influenced by addressing irrelevant considerations.
[11] (2001) 206 CLR 323 at 330, 338 and 344.
A similar complaint was made by the applicant concerning the matter of enrolment in an acceptable course. The applicant contends that during the course of the hearing the presiding member vacillated on the issue of the applicant attending a course. She submitted that the mindset of the member on the point was clouded by taking into account an irrelevant consideration that the applicant was seeking to delay.
However it is apparent from the record that the Tribunal was influenced by the fact that there was no evidence of enrolment at the University of Queensland, the institution the applicant was last enrolled at and no evidence of any other enrolments.[12] That was unquestionably the position at the time the matter was before the delegate and remained so before the Tribunal. That was a significant point given enrolment in a course with a registered provider was a “time of decision” criterion. The Tribunal noted that it had received submissions from the applicant’s representative dated 29 May 2009 indicating that she had “applied for enrolment through Corrective Services in a Certificate III in Business Administration Course” but no particulars of that enrolment were forthcoming. The Tribunal addressed that matter noting that there was no evidence that she was enrolled in a course of study.
[12] Decision para 45.
That was in addition to the submission made in material put before the Tribunal concerning her attempted enrolment in a course offered at the BWCC. However concerning that course there was only evidence of an application having been made to be waitlisted for a course. From the evidence before the Tribunal it was apparent that even if her appeal was unsuccessful she had approximately three months remaining in her sentence to be served;[13] her application for an offender education program was only made on 15 May 2009, that is approximately one month before she was released on bail without any decision having been made in respect of her application; at the time of hearing the application the applicant was bailed pending the appeal; and, it was reasonably open to be inferred that her application for offender education could not be subject to further consideration unless her appeal was dismissed and she returned to the prison. At the time of decision, being 26 August 2009, the applicant was still on remand and in the absence of evidence to the contrary it was open to the Tribunal to infer that her application for enrolment had not been processed and accordingly she was not enrolled in the course. That matter alone would have been conclusive irrespective of the issue of whether the course was an acceptable course.
[13] Capable of calculation by reference to the notice of appeal, RBD 108/109.
Additionally the Tribunal addressed the applicant’s submission that she had made application to enrol in a Bachelor of Laws program at the Charles Darwin University. In that instance there was simply no evidence of enrolment.
Nothing on the face of the decision indicates that the mindset of the member was clouded by taking into account any irrelevant consideration, namely that the applicant was seeking to delay, when assessing the question of whether or not at the time of decision she was enrolled in a registered course being the course offered at the BWCC. In my view the Tribunal did ask itself the right question and properly considered the material before it. I do not consider any jurisdictional error has been identified on this ground of review.
Conclusion
The evidence before the Tribunal at the time of decision did not satisfy the Tribunal that the applicant held a certificate of enrolment for a registered course. The applicant complains that an adjournment ought to have been allowed because she was suffering from a psychological disability and was not in a fit state to appear before the Tribunal and was therefore a vulnerable person. The only issue alive before the Tribunal concerned whether or not the applicant was enrolled in a registered course. The point was short and one to be established by the production of objective material dealing with registration of enrolment. The applicant was assisted before proceedings by a migration agent. That agent also appeared at the Tribunal. The Tribunal refused the application. I am satisfied that in refusing the application the Tribunal acted properly and that the decision to refuse the adjournment was one open to it and that it proceeded to determine the applicant’s application upon the evidence placed before the Tribunal by the applicant. No reviewable error has been disclosed. The application is dismissed.
Orders
Application dismissed.
That, subject to any other application being made by either party within seven (7) days of this order, the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,865.00.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 21 April 2011
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