Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 348
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 348
File number: MLG 1363 of 2019 Judgment of: JUDGE CHAMPION Date of judgment: 24 April 2024 Catchwords: MIGRATION – Student visa – Whether the Tribunal’s failure to adjourn the hearing pending the Applicant’s enrolment in another course of study was unreasonable – Whether the Tribunal’s invitation to give evidence and present argument at the Tribunal was meaningful – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 347, 349, 360, 363
Migration Regulations 1994 (Cth) cls. 500.211, 500.212
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
Collection House Limited v Taylor [2004] VSC 49
Minister for Immigration and Border Protection v SZFVW (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 SZGUR (2011) 241 CLR 594; [2011] HCA 1
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of last submissions: 13 March 2024 Date of hearing: 13 March 2024 Place: Melbourne Counsel for the Applicants: Ms G Costello, KC and Ms L Frederico Solicitor for the Applicants: FCG Legal Solicitor for the First Respondent: Mr C McDermott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1363 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THANH DUNG PHAM
First Applicant
PHUONG LINH AU
Second Applicant
TAMMY PHUONG THAO PHAM
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The First and Second Applicants pay the First Respondent’s costs fixed in the amount of $8,371.30.
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 CHAMPION:
INTRODUCTION
Each of the Applicants is a citizen of Vietnam. The Tribunal refused to grant the First Applicant (the primary applicant) a (Temporary) (Class TU) (Subclass 500) student visa. In consequence of refusing the visa to the First Applicant the Tribunal also refused to grant a student visa to members of his family unit: to the Second Applicant (the First Applicant’s wife) and to the Third Applicant, the 7-year-old daughter of the First Applicant and the Second Applicant.
The dispositive issue before the Tribunal was that the First Applicant did not have a current Certificate of Enrolment (CoE) for a course of study and therefore did not meet a mandatory criterion for the grant of a student visa under cl. 500.211(a) of Schedule 2 to the Migration Regulations 1994 (Cth).
The Applicants seek judicial review of the Tribunal’s decision.
Ground 1 is that Tribunal acted in a legally unreasonable way in not exercising its discretion to adjourn the hearing so as to provide the First Applicant with an opportunity to obtain a current CoE.
Ground 2 is that the Tribunal failed to put the First Applicant on notice that the dispositive issue was that he did not have a CoE in circumstances in which the delegate had decided the matter by reference to a different dispositive issue: namely, that the delegate was not satisfied that the First Applicant was a genuine temporary entrant within the meaning of cl. 500.212(a) of Schedule 2 to the Regulations.
For the reasons set out below, the Applicants have not proved either ground. I will dismiss the application.
MATERIAL BEFORE THE COURT
I admitted the Court Book into evidence (CB1–154; CE-1).
I also admitted into evidence the Supplementary Court Book which set out a transcript of the Tribunal hearing (SCB1–10; CE-2).
Affidavit of the First Applicant
I also admitted into evidence an affidavit of Mr Thanh Dung Pham, the First Applicant, made on 8 March 2024, together with its annexures TDP-1–TDP-3 (Ex. A1).
BACKGROUND
The relevant background and evidence is a composite of the material drawn from the Court Book, the Tribunal transcript and Mr Pham’s affidavit.
I have summarised it below.
On 16 September 2008, as set out in the delegate’s decision (CB66–72), the First Applicant arrived in Australia pursuant to his initial student visa. He was then about 19 years old. From the time of his initial arrival, he was enrolled in, and successfully completed, several courses of study pursuant to various student and bridging visas.
On 20 June 2017, the First Applicant applied for a student visa to study a Bachelor of Business at Cambridge International College (Cambridge IC; CB1–58). He sought “experience in an automotive company in order to run my own business” (CB14). At the time of the delegate’s decision, he held a CoE for a course at Cambridge IC which, when issued, was valid from 14 August 2017 to 26 July 2020. In his visa application, the Second and Third Applicants were listed as “accompanying family members” (CB4–6).
On 6 September 2017, the delegate refused the visa applications (CB66). As already noted, the delegate refused to grant the visa to the First Applicant because the delegate was not satisfied that the First Applicant was a genuine temporary entrant. The Second and Third Applicants were refused visas in consequence of the delegate’s refusal to grant a visa to the First Applicant (CB70–72).
On 26 September 2017, pursuant to s. 347 of the Migration Act 1958 (Cth), the Applicants sought merits review before the Tribunal of the delegate’s visa refusal decision (CB73–75).
In June 2018, the First Applicant asked to defer the course at Cambridge IC while he was waiting for the Tribunal to hear his case (Mr Pham affidavit, [2]). In consequence of not continuing with his study at Cambridge IC, after June 2018 and continuing until 1 April 2019 (the date of the Tribunal’s decision), the First Applicant was not enrolled in a course of study and did not have a CoE.
On 19 February 2019, the Tribunal sent the Applicants an “Invitation To Provide Information” (CB81–84). The invitation noted that (CB83):
As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
[Emphasis added]
The “Invitation To Provide Information” (CB83) provided a link to an online form as a means to provide the requested information:
Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking 'Submit' on the Declaration page.
The Tribunal requested the information in response to its invitation by 5 March 2019 (CB83). The Tribunal’s correspondence set out that “you may ask us for an extension of time in which to provide the information” (CB84).
In his affidavit read in this court, the First Applicant annexed an application he had signed on 8 March 2019 for a new course of study, a Bachelor of Business, at Holmes Institute (TDP-3). He did not provide this Holmes Institute application to the Tribunal.
On an unknown date (but a date before 1 April 2019) the First Applicant provided a response to the Tribunal’s “Invitation To Provide Information” (CB90–101) by completing its online form and forwarding to the Tribunal a “genuine temporary entrant statement” (CB102). The online form directed a request for information to the main applicant as follows (CB95):
The Main Applicant is the person seeking to satisfy the primary criteria for the Visa on the basis of being enrolled in a registered course of study.
[Emphasis added]
Under the heading “information about enrolment and study in Australia” on the online form, there was the following question and answer in the “request for student visa information” (CB95):
Q: Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?
A: No.
On 15 March 2019, the Tribunal sent the Applicants an “invitation to attend a hearing” on 1 April (CB105–107). The Tribunal’s invitation to attend the hearing repeated the request that the Applicant provide a CoE. Relevantly for the purposes of what subsequently occurred at the Tribunal hearing and the application before me, in its pre-hearing invitation to attend the hearing, the Tribunal wrote (CB106):
In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.
The invitation to hearing invited the Applicants to appear before the Tribunal on 1 April 2019 to “give evidence and present arguments relating to the issues arising in relation to the decision under review” (CB105).
On 1 April 2019, the First Applicant attended the hearing before the Tribunal. The First Applicant’s sister also attended the Tribunal hearing to give evidence, but she was not called upon.
It is apparent from the Tribunal transcript that the First Applicant confirmed that he had not been enrolled in a current course of study since June 2018.
The Tribunal transcript included the following exchange (SCB6–7):
Member:Do you understand that this is a mandatory requirement, as completely separated from whether you are a genuine temporary entrant. Because it’s a mandatory requirement, the Tribunal can affirm the Decision not to grant you the visa on this alternative basis. You understand that.
Witness :No, not great understand.
Interpreter: The condition of enrolment is a compulsory condition. Now, based on that condition, the Review Tribunal can affirm, re-affirm the Decision by the Immigration Department.
M: Do you understand that, sorry, I just want to be absolutely sure that you understand that I can affirm the Decision to not grant you the student visa because you don’t have a Certificate, a current Certificate of Enrolment, do you understand that.
W: At the moment, I not enrolled, but at the moment, I just applied for new course, applied for a new course.
M: You have not been enrolled since 2018, have you.
W: No.
M: You haven’t been enrolled since June 2018.
W: From June 2018, no.
M: Yes. And you don’t have a Certificate of Enrolment with you today, do you.
W: No.
M: You are not currently enrolled in a course in Australia today, are you. Is there anything else you’d like to say about this.
W: Because, because when I received the email from Immigration, so I am not, I am scared to, I applied for a new course, applied for a new course.
M: I’ve considered what you had to say, what including what you just said, I’ve considered in my decision right now and that decision will be based on the enrolment criterion, not a genuine temporary entrance criterion. You understand what I am telling you.
W: I understand.
M:Do you have any final comment before I made my decision.
W: So, if I have a chance, I will then go for the new course of study in Australia.
M: Given that I am about to make a decision on the enrolment criterion, your sister doesn’t need to give evidence but you think I should hear anything from her, do you think it’s important that she says anything to me or.
…
[Emphasis added]
The Applicants emphasise the bold text in the passage above that, at least 3 times, the First Applicant said that he had applied for a new course.
On 1 April 2019, the day of the hearing, the Tribunal affirmed the delegate’s decision not to grant visas to the Applicants and gave its oral reasons (SCB1–10).
On 30 April 2019 (subsequent to the Tribunal hearing and its decision) the First Applicant and Holmes Institute made an “Offer and Acceptance Agreement” for the Bachelor of Business course (Mr Pham affidavit, TDP-3).
THE TRIBUNAL’S REASONS
On 24 May 2019, the Tribunal provided its decision record (CB147–149).
The Tribunal identified that the dispositive issue was that the First Applicant did not hold a CoE and therefore refused to grant the First Applicant a visa. In consequence, it refused to grant visas to the Second and Third Applicants.
In its reasons, the Tribunal set out that the First Applicant had been invited “to provide evidence of enrolment in an approved course of study to the Tribunal at least seven days before the scheduled date of the hearing” and that “such evidence has not been provided” (CB148, [7]). It set out that because there was no evidence of the First Applicant having a CoE the First Applicant did not meet cl. 500.211 of Sch. 2 to the Regulations (CB149, [8]–[9]). In consequence, none of the Applicants was entitled to a visa and the Tribunal therefore affirmed the decision under review (CB149, [9]–[13]).
The Tribunal did not refer in its reasons to the First Applicant’s oral answers to questions that he had applied for a new course.
JUDICIAL REVIEW APPLICATION
Ground 1: Did the Tribunal err by not exercising its discretion to adjourn the review whilst the First Applicant obtained a CoE? Did the Tribunal fail to understand the scope of its discretion to adjourn the hearing under s. 363(1)(b)?
As to Ground 1, the Applicants submit that:
the Tribunal erred by not exercising its discretion to provide the First Applicant with a reasonable period of time in which to obtain a certificate of enrolment (CoE) prior to making its decision to affirm the decision of the delegate in a manner that was legally unreasonable, or by failing to understand the scope of its discretion to adjourn the hearing under s 363(1)(b) of the Migration Act 1958 (Cth) (Act).
The statute
I start with the terms of the Act. For the purposes of the review the Tribunal may “exercise all the powers and discretions that are conferred by this Act on the person who made the decision” (s. 349). The Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review (s. 360(1)). An evident statutory purpose of the Tribunal’s power to adjourn the review from time to time under s. 363(1)(b) is to enable an applicant to give evidence and present arguments under s. 360.
There was no evidence that Tribunal did not consider the exercise of the adjournment power
The Applicants had to prove their case. There was no burden on the First Respondent to prove the positive proposition that the Tribunal had considered an adjournment (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1, [67]). In the absence of evidence, the Court cannot find on the balance of probabilities that the Tribunal did not consider the exercise of its adjournment power or that the Tribunal failed to understand the scope of its discretion to adjourn the hearing under s. 363(1)(b) of the Act (Cf. Applicant submissions, [5]).
Reasons do not need to be given for the exercise or non-exercise of a procedural power of adjournment
It is immaterial that there is no evidence that the Tribunal considered exercising its discretion to adjourn the review. That is not the test (ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34, [64] (Nettle J)). Reasons do not need to be given for the exercise or non-exercise of a procedural power to adjourn (or not to adjourn) a review (BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34, [40]).
Leading authorities as to legal unreasonableness
“Legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence” (Minister for Immigration and Border Protection v SZFVW (2018) 264 CLR 541; [2018] HCA 30, [84]). Whether a decision is beyond power because it was legally unreasonable “depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases” (SZFVW, [84]).
Legal unreasonableness may be outcome focused
The Applicant need not identify a particular error in the reasoning process if the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power. As Nettle and Gordon JJ held in SZFVW at [83]:
Indeed, grievous error may result if a court on review had to identify a particular error to found its conclusion of unreasonableness. If the court approached the assessment in this way, at least one important part of the lens for assessing legal unreasonableness would be removed: namely, error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances
In this sense, the Tribunal’s decision would be unreasonable if it “lack[ed] an evident and intelligible justification” and therefore, “the result itself bespeaks error” (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, [76], [85]) An alternative formulation is that unreasonableness may be shown where “no sensible authority acting with due appreciation of its responsibilities” would have so decided (Li, [71]; SZFVW, [69]). Finally, a decision will be unreasonable if it does not “fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (SZFVW, [82] (Nettle and Gordon JJ); citing Li, [105] (Gageler J)).
The Tribunal had to exercise its discretion as to adjournment reasonably
It was common ground that the Tribunal had an obligation to exercise its discretion as to any adjournment of the review within the bounds of legal reasonableness.
In Li, which is the leading authority as to s. 363(1)(b) and the Tribunal’s power to adjourn the review from time to time, the High Court confirmed that the Tribunal’s statutory discretion under s. 363(1)(b) to “adjourn the review from time to time” is conditioned by a requirement that it be exercised in a legally reasonable way (Li, [23]–[26]; [63]; [88]–[92]).
Further, as both parties acknowledged before me, if the statutory discretion to adjourn the review from time to time was not exercised within reasonable bounds that may be a “direct route” to proving jurisdictional error. Alternatively, there may be jurisdictional error consequent on the non-adjournment of the review by a more indirect route. That is, it might be concluded that Tribunal did not meet its obligation to provide a meaningful hearing under s. 360(1) because the non-adjournment meant that the Applicants had not been provided an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review as contemplated by s. 360(1) (as to the possibility of error in that sense: see Li, [62]).
In that way, Ground 1 (with its focus on s. 363(1)(b)) and Ground 2 (with its focus on s. 360(1)) of the judicial review application before me were interconnected.
Li’s case
In Li, Ms Li requested that the “Tribunal forbear from making any final decision regarding her review application” until the outcome of a skills assessment relevant to her visa application was finalised (see Li, [38]). The plurality observed that Ms Li’s request for an adjournment “must have conveyed to the Tribunal that Ms Li did not consider that she had presented her case” for the purposes of s. 360(1) (Li, [79]). In Li, in in its conclusion that the Tribunal had made a jurisdictional error in not exercising its discretion to adjourn the hearing until the skills assessment was obtained, the plurality referred to the fact that the Tribunal’s error might have been to give too much weight to the fact that Ms Li had had some opportunity to present evidence, insufficient weight to her need to present further evidence or that its error may have been that it failed to have regard to the purposes for which the statutory discretion in s. 363(1)(b) is provided: namely, for the review to be meaningful under s. 360(1). The plurality concluded “it is not possible to say which of these errors was made, but the result itself bespeaks error.” (Li, [85]). In that way, the conclusion of legal unreasonableness was outcome focused rather than proved by the identification of a particular error in the reasoning process.
Analysis of this case
The Applicants submitted that there were 2 sub-propositions within Ground 1. First, that the First Applicant asked the Tribunal for more time to provide a CoE. Secondly, that the Tribunal’s failure to accede to the Applicants’ request for more time to provide a CoE was legally unreasonable.
I have concluded that it was not legally unreasonable for the Tribunal not to provide the Applicant more time to provide a CoE. I note the following issues in support of my conclusion. The discussion aims to address the matters the First Applicant identified as relevant matters in his written outline (5(a) –(g)) and which he refined by way of oral submissions.
First, in three ways before the hearing on 1 April 2019, the Tribunal asked the First Applicant for his CoE and put the Applicant on clear and express notice before the hearing that a CoE was a mandatory criterion for the visa. First, on 19 February 2019, the Tribunal sent the Applicants an invitation to provide information which included a notation that it was a mandatory requirement of the visa that the main applicant be enrolled in a registered course of study (CB81–84; 83). Secondly, the letter dated 19 February 2019 linked to an online form. The First Applicant returned to the Tribunal the completed online form on an unknown date before 1 April 2019. The online form included a note that the main applicant needed to be enrolled in a registered course of study (CB96). Thirdly, on 15 March 2019 the Tribunal’s invitation to attend the hearing included a request for a current CoE and noted that it was “required for the grant of a student visa” (CB106).
It is relevant in an assessment as to whether there was “justification, transparency and intelligibility” (Li, [105]) to the non-adjournment of the hearing on 1 April 2019 that the Tribunal had 3 times over a six-week period before the hearing expressly and in writing told the main applicant about the mandatory CoE requirement for the grant of the visa. In Li, the plurality held that in an appropriate case the Tribunal may decide “enough is enough” and the Tribunal is not under an obligation “to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence” (Li, [82]). Before the hearing, the Applicants had had ample opportunity to organise a CoE.
Secondly, the First Applicant’s evidence answers in passages I have set out above — that he had applied for a new course of study — lacked the detail necessary to support a conclusion that the discretion miscarried by not adjourning the hearing.
Fairly characterised, the First Applicant’s statements that he had applied for a new course during the Tribunal hearing did not tell the Tribunal when he had applied, where he had applied or when it might be expected that he would have another CoE. His statements were so highly general as to be devoid of meaningful content. The First Applicant did not inform the Tribunal of his specific application to Holmes Institute on 8 March 2019 to study a Bachelor of Business. The generality of the First Applicant’s answers can be contrasted with the specific issue of finalisation of a skills assessment in Li. The Applicants contend that no Tribunal acting with a sensible appreciation of its responsibilities could have done other than adjourn the hearing. The First Applicant’s statements lacked the particularity to support such a conclusion. I repeat that in SZVFW at [84] Nettle and Gordon JJ explained that whether a decision is beyond power depends on the application of the principles to the “particular circumstances of the case”. Had the First Applicant specifically informed the Tribunal of his application to the Holmes Institute on 8 March 2019, different facts would have arisen for the Tribunal to consider in any application for an adjournment.
Relatedly, there remains a qualitative difference between an application to enrol in a course of study and actual CoE. There was no way for the Tribunal to assess the likelihood of whether any application for a new course might be converted to a CoE if an adjournment were granted on the basis of the First Applicant’s very general statements to it.
It is accurate, as the First Applicant submitted, that the Tribunal did not advert in its reasons to the fact that the First Applicant had said that he had applied for a new course. Because the Applicant’s statements were so general, I have not been persuaded that the Tribunal’s failure to mention his statements as to an application for a new course marks its decision as legally unreasonable.
Thirdly, it was far from clear that the First Applicant actually requested an adjournment. The First Applicant submits that he asked the Tribunal for more time in which to obtain the CoE for this new course by saying, “So, if I have a chance, I will then go for the new course of study.” The First Applicant says that this was, in substance, a request for an adjournment for more time to obtain a current CoE. In Li, the applicant made an unambiguously worded and direct request for an adjournment. In the current case, it is not at all clear, by reference to the words used, that the First Applicant in fact requested an adjournment or that the Tribunal understood him to be requesting an adjournment (or ought reasonably to have done so). The ambiguity of the First Applicant’s statements as to any adjournment can be taken into account in the assessment of whether the Tribunal’s exercise of a discretion not to adjourn the hearing was outside the bounds of reasonableness.
Fourthly, the fact that the Tribunal decided the issue by reference to a different dispositive issue than did the delegate did not mean that the only reasonable course was to adjourn the hearing. The Tribunal was not confined to the issues the delegate considered (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, [35]; see below). Provided the Tribunal put the First Applicant on notice that it may decide whether to grant a visa by reference to a different dispositive issue — namely, whether the First Applicant had a current CoE, not by reference to whether he was a genuine temporary entrant — the Tribunal did not make a jurisdictional error. The Tribunal had in three ways provided notice that a CoE was dispositive before the hearing. It was also apparent that a CoE was dispositive because of the terms of the Regulations. The facts before the Tribunal were different than they had been before the delegate. On 8 September 2017, at the time of the delegate’s decision, the main applicant had a CoE. As of 1 April 2019, the date of the Tribunal decision, he did not have a current CoE and had not held a CoE since July 2018.
Other factors
Various other factors do not affect my conclusion.
Delay
As the Applicants noted, there had been a significant delay between the delegate’s decision in September 2017 and the Tribunal hearing on 1 April 2019. As in Li, inherent urgency was not a reason to deny an adjournment. This was not inter partes litigation. Nothing in the Tribunal’s reasons indicates the Tribunal took into account avoiding delay as a reason not to grant the adjournment.
Interpretation
The First Applicant had the assistance of a Vietnamese interpreter at the Tribunal hearing. The Applicants have not proved that the standard of interpretation at the Tribunal hearing was so inadequate that they were effectively prevented from giving evidence or that any errors made by the interpreter were material to the conclusions of the Tribunal adverse to the Applicant (Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507, [45]).
Assistance to self-represented Applicants
The application for merits review recorded a registered migration agent as the Applicants’ representative (CB74). For reasons which the evidence did not disclose, their representative did not attend the Tribunal hearing (CB115; 120).
As a result, the Tribunal had an obligation to explain the course of the hearing to a self-represented Applicant although it did not have any obligation to provide legal advice. In Collection House Limited v Taylor [2004] VSC 49, [27] Nettle J held as to the obligation of the VCAT to explain the course of a hearing to a self-represented litigant:
That is not to say that the Tribunal exists to provide legal advice to parties that appear before it or even that it would be appropriate for the Tribunal to provide legal advice to parties. It does not and it would not be. But there is a difference between providing legal advice and explaining in the course of hearing to unrepresented litigants the nature and effect of the various processes which are being undertaken and as to the steps open for the litigants to take. In that sense, a higher burden of explanation and assistance may fall upon a member of the Tribunal than would fall upon a judge in a curial proceeding in which the parties are represented by counsel.
The Applicants submitted that the Tribunal did not discharge its burden of explanation and assistance in explaining to a self-represented applicant the fact that a current CoE was a mandatory criterion if the Tribunal were to grant him visa. The Applicants submitted that relevant to the Tribunal’s obligation of explanation was that the First Applicant’s first language is Vietnamese, and required an interpreter for the hearing.
With regard to the passage from the Tribunal transcript set out above, it is plain that the Tribunal more than once sought to explain that a CoE was a compulsory condition of the grant of a visa and had its explanation interpreted for the benefit of the First Applicant. The Applicants have not proved that the Tribunal did not discharge its obligation of explanation as to the mandatory requirement of a current CoE by reference to the relevant principle in Taylor above.
Conclusion as to Ground 1
In circumstances in which the Tribunal issued an oral decision on the same day as it heard the review (1 April 2019) it is apparent that the Tribunal did not adjourn the matter.
The Applicant has not proved that the Tribunal did not consider adjournment or that it failed to understand the scope of its adjournment discretion.
The Applicants framed their legal unreasonable case in an outcome focused way rather than by reference to the identification of a particular error in the reasoning process (see Li, SZVFW, above).
In an assessment as to whether the Tribunal’s failure to adjourn was legally unreasonable by reference to the outcome, the appropriate course is to consider all the matters set out above in the particular circumstances of this case. In this case, it cannot be said that the non-adjournment of the hearing on 1 April 2019 was outside the range of possible and acceptable outcomes which were defensible in respect of the facts and the law.
First, before 1 April 2019, the Tribunal had on 3 occasions (in writing) notified the main applicant that a CoE which was a mandatory criterion for the grant of a student visa. Additionally, before the hearing, the Tribunal had offered the First Applicant an opportunity to ask for an extension to provide information if needed. The Tribunal was reasonably entitled to proceed on the basis that it had taken a number of steps and provided sufficient time before the hearing to give the main applicant ample notice of the mandatory requirement for a CoE. I note also that this information was provided in a context that a CoE was expressly required under the Regulations and it was for the Applicants to make their case. Secondly, the Applicant’s statements at the hearing that he had applied for another course lacked sufficient detail (when, where and in what timeframe he expected to have a CoE) such that those statements made it unreasonable in the result that the matter was not adjourned. Thirdly, the lack of clarity in any request by the Applicants for an adjournment can be taken into account. Had the Applicants unambiguously sought an adjournment that may have framed the requirements of reasonableness in the exercise of the adjournment discretion differently. Other factors such that there was no inherent need to finalise the application without delay, that the main applicant was relying on an interpreter and the evidence as to the steps the Tribunal took to explain to a self-represented applicant the course of the hearing do not lead to a different conclusion.
This is not a case in which the result itself “bespeaks error.” The Tribunal’s non-adjournment of the hearing was within the range of possible acceptable outcomes defensible on the facts and the law.
Ground 1 has not been made out.
Ground 2: Did the Tribunal fail to put the Applicants on notice that the dispositive issue (that he did not have a certificate of enrolment) was different to the dispositive issue in the delegate’s decision (whether he was a genuine temporary entrant)?
The Tribunal had to invite the Applicants to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review (s. 360(1)).
In SZBEL the Court said, at [35], that if the Tribunal takes no step to identify issues other than the issues the delegate considered dispositive the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising relation to the decision under review.”
The delegate had refused to grant the visa because the delegate was not satisfied that the First Applicant met the genuine temporary entrant criterion under cl. 500.212(a) of Sch. 2 to the Regulations. As already noted, the Tribunal decided the case by reference to a different dispositive issue: namely, that the First Applicant was not enrolled in a course of study and therefore did not meet the mandatory criterion under cl. 500.211(a) of Sch. 2 to the Regulations.
The Tribunal had an obligation to put the First Applicant on notice that “a central and determinative question on the review” (SZBEL, [43]), the dispositive issue, may be whether the First Applicant had a CoE.
As is identified above, in 3 ways before the Tribunal hearing, the Tribunal had identified that whether the main applicant had a CoE was a dispositive issue. First, it had requested information about a CoE by its letter dated 19 February 2019 (CB81–84). Secondly, the content of the questions in the linked online form “request for student visa information” disclosed that enrolment in a registered course of study was a mandatory criterion for the grant of a visa. Thirdly, the Tribunal’s invitation to attend the hearing on 15 March 2019 requested that the Applicant provide a “copy of your Current Confirmation of Enrolment” at least 7 days before the hearing date (CB106).
By reference to those written communications the Tribunal had put the First Applicant on notice that “a central and determinative question on the review” was whether the First Applicant had a CoE.
The Tribunal thereby afforded to the Applicants a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review in accordance with s. 360(1) of the Act as to the dispositive issue of whether the First Applicant had a CoE.
Ground 2 has not been made out.
DISPOSITION
I will dismiss the application. I will order that the First and Second Applicants pay the Minister’s costs fixed in the amount of $8,371.30. I do not intend to make any order for costs against the Third Applicant, who is a child.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 24 April 2024
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