Poh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 751
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Poh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 751
File number: MLG 1267 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 24 August 2023 Catchwords: MIGRATION – Student (Temporary) (Subclass 572) visas – Delegate decision to refuse to grant visas – Administrative Appeals Tribunal affirmed decision – whether primary applicant was a genuine temporary entrant pursuant to cl 572.223(1) of the Migration Regulations 1994 (Cth) – reported issues with interpretation – whether Tribunal failed to afford procedural fairness – whether decision of Tribunal unreasonable or irrational – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 359AA, 474(2) and 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 3
Migration Regulations 1994 (Cth) cl 572.223(1)(a)
Cases cited: ETA067 v Republic of Nauru [2018] HCA 46
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of last submission: 9 February 2022 Date of hearing: 8 February 2022 Place: Melbourne (by videoconference) The First Applicant: Appeared in person The Second Applicant: Appeared in person The Third and Fourth Applicants: The First Applicant appeared as Litigation Guardian Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS
MLG 1267 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KOK LOONG POH
First Applicant
YOONG TING TANG
Second Applicant
ZHI XIN HYACINTH POH by her Litigation Guardian the First Applicant
Third Applicant (and another named in the Schedule)
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
24 August 2023
THE COURT ORDERS THAT:
1.The Application filed 10 May 2018 is dismissed.
2.The First and Second Applicant pay the First Respondent’s costs fixed in the sum of $5,400.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Originating Application filed 10 May 2018 (Application), the Applicants seek judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) dated 9 April 2018 (Tribunal’s Decision).
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to refuse to grant the Applicants Student (Temporary) (Class TU) visas (Visas).
The Application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). The Applicants have two (2) grounds of review in the Application, which the Court will consider in detail below.
The matter was heard on 8 February 2022 and proceeded by way of videoconference on Microsoft Teams (Hearing). The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicants to engage with the Court.
ISSUES IN DISPUTE
The issues in dispute in this matter are:
(a)Whether the Tribunal made jurisdictional errors by failing to have regard to the First Applicant’s circumstances in accordance with cls 572.223(1)(a)(i) and/or (iv) of sch 2 of the Migration Regulations 1994 (Cth) (Regulations) and Ministerial Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa applications (Direction 53); and
(b)Whether the Tribunal made jurisdictional errors by:
(i)Failing to afford procedural fairness to the First Applicant;
(ii)Failing to comply with s 363C of the Migration Act;
(iii)Making a critical finding for which there was no evidence; and
(iv)Making a legally unreasonable or irrational decision.
SYNOPSIS
I have determined that:
(a)The Tribunal did not make jurisdictional errors by failing to have regard to the First Applicant’s circumstances in accordance with cls 572.223(1)(a)(i) and/or (iv) of sch 2 of the Regulations and Direction 53;
(b)The Tribunal did not make jurisdictional errors by reason of the matters referred to in sub-paragraphs 5(b)(i) to (iv) above; and
(c)The Tribunal’s Decision contains no material jurisdictional error and therefore the Application must be dismissed.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 31 January 2019, numbering 156 pages (Court Book). The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s Amended Submissions, filed 9 February 2022 (Minister’s Submissions), at [5] to [13], accurately summarise the factual history of this matter. The Court adopts these submissions as its own, with some amendments, as follows.
There are four (4) applicants in this proceeding. The First and Second Applicants are husband and wife respectively. The Third and Fourth Applicants are their children. The First Applicant is the Litigation Guardian of the Third and Fourth Applicants.[1] The First, Second, Third and Fourth Applicants will hereafter collectively be referred to as the Applicants.
[1] Orders Judge Riley 25 June 2019, Orders 2 and 3.
The First Applicant is a citizen of Malaysia. He arrived in Australia on 22 May 2015 on a Tourist (Subclass 601) visa.[2] He was then granted a Student (Class TU subclass 572) visa on 8 July 2015, which was valid until 1 July 2016.[3]
[2] Court Book, filed 31 January 2019 (CB), 70.
[3] CB 70.
On 30 June 2016, the First Applicant applied for the Visas that are the subject of these proceedings, on the basis of his enrolment at Education Access Australia in a Diploma of Hospitality, and a Certificate III and IV in Commercial Cookery (Visa Application).[4] The Second, Third and Fourth Applicants were listed in the Visa Application as members of the First Applicant’s family unit.[5]
[4] CB 1-22.
[5] CB 10-11.
On 5 July 2016, the Department of Immigration and Border Protection (Department) wrote to the First Applicant, requesting that he provide more information regarding his ability to satisfy the “genuine entrant criterion” in cl 572.223(1)(a) of sch 2 of the Regulations.[6]
[6] CB 37-46.
On 28 July 2016, the First Applicant sent a letter to the Department addressing the genuine entry criterion (GTE Statement),[7] a letter confirming enrolment in a Certificate IV in Accounting dated 15 July 2016,[8] and a letter of the same date confirming the enrolment in the Certificate IV in Accounting had been cancelled per a request for withdrawal.[9]
[7] CB 56-59.
[8] CB 55.
[9] CB 54.
On 10 October 2016, the Delegate refused to grant the Applicants the Visas (Delegate’s Decision).[10] The Delegate was not satisfied that the First Applicant genuinely intended to stay in Australia temporarily and found that he did not satisfy cl 572.223(1)(a) of sch 2 of the Regulations.[11] The Delegate also found that the Second, Third and Fourth Applicants did not satisfy cl 572.322(b) of sch 2 to the Regulations.[12]
[10] CB 61-67.
[11] CB 68.
[12] CB 72.
On 28 October 2016, the Applicants applied to the Tribunal for review of the Delegate’s Decision.[13] In their application to the Tribunal, the Applicants listed a migration agent as their representative (Representative), and provided the following documents:
[13] CB 74-77.
(a)Written submissions prepared by the Representative, dated 28 October 2016;[14]
(b)An enrolment letter issued by Education Access (Australia) Pty Ltd, dated 25 October 2016;[15]
(c)A bank statement from the Bank of Melbourne as at 27 October 2016;[16]
(d)Scanned copies of the Applicants’ passports;[17]
(e)Scanned copies of the Third and Fourth Applicants’ birth certificates; [18]
(f)Marriage certificate of the First and Second Applicant;[19]
(g)A Confirmation of School Placement in respect of the Fourth Applicant;[20]
(h)Letters issued by Australis Institute of Technology and Education;[21] and
(i)The GTE Statement.[22]
[14] CB 78-84.
[15] CB 85.
[16] CB 86.
[17] CB 87-90.
[18] CB 32-33.
[19] CB 27.
[20] CB 28.
[21] CB 54-55.
[22] CB 56-59.
The Court notes that all documents referred to in the previous paragraph, save for those listed in sub-paragraphs (a) to (c), were provided to the Delegate.
On 13 March 2018, the First and Second Applicant and the Representative attended a hearing before the Tribunal, as well as a Mandarin interpreter (Tribunal Hearing).[23] At the Tribunal Hearing, the First Applicant provided a “genuine temporary entrant questionnaire”, in which he declared that:
(a)He had completed a Certificate III in Commercial Cookery in 2017, being the only course he had completed since his arrival in Australia;[24] and
(b)He had not completed the Diploma of Hospitality, Certificate IV in Accounting or the Certificate IV in Commercial Cookery for which he had been enrolled.[25]
[23] CB 125.
[24] CB 129.
[25] CB 130.
Following the Tribunal Hearing, the First Applicant also provided to the Tribunal: a letter dated 9 March 2018 confirming that he had completed four (4) subjects in the Certificate IV in Commercial Cookery; an academic transcript for a Certificate III in Commercial Cookery; and a Confirmation of Enrolment for a Diploma of Hospitality Management.[26]
[26] CB 138-142.
TRIBUNAL’S DECISION
On 9 April 2018, the Tribunal affirmed the Delegate’s Decision to refuse to grant the Visas to the Applicants. One (1) day later, the Tribunal published a written record of its decision and reasons.[27]
[27] CB 144-153.
The Tribunal’s Decision appears at pages 147 to 153 of the Court Book. The Minister’s Submissions, at [14] to [18], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions as its own, with amendments, as follows.
The Tribunal identified the issue before it as whether the First Applicant meets the criteria in cl 572.223 of the Regulations.[28] In consideration of the issue, the Tribunal had regard to the factors contained in Direction 53.[29]
[28] CB 148, [8].
[29] CB 148-9, [9]-[11].
The Tribunal considered the First Applicant’s background, circumstances, and immigration and study history in Australia.[30] In considering the latter, at the Tribunal Hearing the Tribunal shared information derived from a report of the Provider Registration and International Students Management System (PRISMS), dated 25 January 2018.[31]
[30] CB 149-151, [12]-[31].
[31] CB 150, [19].
The Tribunal concluded that it was not satisfied that the First Applicant intended to genuinely stay in Australia temporarily,[32] on the basis of the following factors:
(a)He had successfully maintained personal relations in Malaysia whilst in Australia and therefore there is little incentive for him to cease residence in Australia;[33]
(b)He demonstrated limited knowledge about his Diploma of Hospitality course and commitment towards completing the course;[34]
(c)He was unable to elaborate on future business plans in Malaysia including plans for expansion, location, number of staff or raising capital with respect to his father’s restaurant;[35]
(d)He did not provide detail as to the value of the course to his future business plans in Malaysia nor give the Tribunal confidence that the course would be completed as planned;[36] and
(e)He did not have sufficient evidence to support his claims regarding his financial status in Australia, namely that he did not earn enough to cover his weekly rent and that he planned to return to Malaysia in October 2018.[37]
[32] CB 152, [41].
[33] CB 149, [16]-[18].
[34] CB 151, [23]-[24].
[35] CB 151-152, [32]-[33].
[36] CB 152, [38].
[37] CB 152, [37].
As a result, the Tribunal found that the First Applicant did not satisfy the criteria in cl 572.223(1)(a) of the Regulations and the Delegate’s Decision was affirmed.[38] By extension, the Second, Third and Fourth Applicants did not satisfy cl 572.332(b) of the Regulations.[39]
[38] CB 152, [42]; 153, [46].
[39] CB 153, [43]-[45].
PROCEEDINGS BEFORE THE COURT
On 10 May 2018, the Applicants filed the Application seeking judicial review, together with an accompanying Affidavit of Lawson John Bayly, Solicitor, affirmed and filed 10 May 2018 (Bayly Affidavit). At the time the Application was filed, the Applicants were legally represented. The Applicants’ Solicitor withdrew on 24 November 2021 and the Applicants were unrepresented for the Hearing.[40]
[40] Notice of Withdrawal as Lawyer, filed 24 November 2021.
The Applicants were provided with an opportunity to file an amended Application by Orders of this Court dated 25 June 2019, made by consent.[41] They did not do so and as such, the grounds of review in the Application are relied upon.
[41] Orders Judge Riley, 25 June 2019, Orders 5 and 6,
The Application contained the following grounds of review:
The Administrative Appeals Tribunal (the Tribunal) made the following jurisdictional errors, by reason of which it is claimed that the migration decision under review is not a ‘privative clause decision’ within the meaning given by subsection 474(2) of the Migration Act 1958 (Cth) (the Act).
1. The Tribunal erred in law by failing to have regard to the applicant’s circumstances in accordance with cls 572.223(1)(a)(i) and/or (iv) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and Ministerial Direction No 53 – Assessing the genuine temporary entrant criterion for Student visa applications made under s 499 of the Act (Direction 53).
Particulars
a.In determining whether the applicant was a ‘genuine applicant for entry and stay as a student’, the Tribunal was required, under cls 572.223(1)(a)(i) and (iv) of the Regulations respectively, to have regard to:
i.the applicant’s circumstances; and
ii.any other relevant matter.
b.In particular, the Tribunal was required under para 11(e) of Direction 53 to have regard to the applicant’s previous study.
c.The Tribunal stated that it regarded information contained in the Departmental database PRISMS (the Provider Registration and International Students Management System) as relevant to a decision to affirm the refusal of the visa application, ‘because it shows that you have not started, have cancelled or not completed all courses you have enrolled in since July 2017. It indicates a lack of academic progress that in the absence of other explanation is not consistent with you intending to live in Australia temporarily’: Tribunal’s reasons, para [19].
d.The Tribunal found that the applicant had ‘stated to the Tribunal that he had completed his Certificate III in Commercial Cookery in October 2017 (AAT Folio 38) and that his enrolment’s [sic] in Certificate IV in Commercial Cookery and a Diploma of Hospitality were cancelled on 7 September 2017 for non-commencement of studies’: Tribunal’s reasons, para [22].
e.The Tribunal ignored or failed to make findings of fact in respect of the applicant’s claims that:
i.his education provider had required him to change from a packaged course in Certificate IV in Commercial Cookery and Diploma of Hospitality to a Diploma of Hospitality Management (affidavit of Lawson John Bayly, page 2);
ii.he had commenced and completed a number of subjects in the Certificate IV in Commercial Cookery (affidavit of Lawson John Bayly, page 15); and
iii.he had received credits for those subjects in the Diploma of Hospitality Management (affidavit of Lawson John Bayly, page 14).
2. The Tribunal erred in law by:
a.failing to afford procedural fairness to the applicant; or
b.failing to comply with s 363C of the Act;
c.making a critical finding for which there was no evidence; or
d.making a legally unreasonable or irrational decision.
Particulars
e.The applicant refers to and repeats particulars (d) and (e) set out in relation to ground 1 above.
f.Further or alternatively, the applicant was denied an opportunity to make submissions or respond meaningfully to the oral invitation made by the Tribunal under s 359AA of the Act, in that the Tribunal:
i.was or should have been aware that the applicant had difficulty in comprehending its questions and responding in English (affidavit of Lawson John Bayly, page 2 paragraph 9(a));
ii.stated, twenty minutes into the hearing, that it was ‘using an interpreter at the moment’ (affidavit of Lawson John Bayly, page 3 paragraph 9(b));
iii.employed highly technical language without using the interpreter when giving information and inviting the applicant to respond under s 359AA of the Act (affidavit of Lawson John Bayly, page 3 paragraphs 9(c)-(d));
iv.instructed the applicant and his adviser to speak in English (affidavit of Lawson John Bayly, page 3 paragraph 9(e)); and
v.instructed the applicant not provide any further explanation of his study history on the basis that ‘you haven’t had a lot of courses’ (affidavit of Lawson John Bayly, page 4 paragraph 9(f)).
(Without alteration, emphasis in original)
The materials before the Court include:
(a)The following documents filed by the Applicants: the Application; and the Bayly Affidavit; and
(b)The following documents filed by the Respondents: The First Respondent’s Response, filed, 20 June 2018; the Second Respondent’s Submitting Notice, filed 8 June 2018; an Affidavit of Thomas John Pattinson, Paralegal employed by the Solicitors for the Minister, affirmed 24 January 2022 and filed 25 January 2022 (Pattinson Affidavit); the Minister’s Submissions; an Amended List of Authorities, filed 9 February 2022; and the Court Book.
The Bayly Affidavit, in Annexure “LJB-2”, contains a document which is a statement of courses for the Diploma of Hospitality Management, dated 4 September 2017 to 7 October 2018 (Diploma Statement). In the Bayly Affidavit, at [8], Mr Bayly deposed that he was instructed that the documents contained in Annexure “LJB-2”, which includes the Diploma Statement, “were submitted to the Tribunal”. The Minister’s Submissions at [20] and [21] objected to the admission of the Diploma Statement into evidence, as there was no evidence that the Diploma Statement was provided to the Delegate or to the Tribunal. It was submitted by the Minister that as the Diploma Statement was not before the Tribunal, it was not relevant to establishing jurisdictional error on the part of the Tribunal and was therefore irrelevant to this proceeding.[42] The Court accepts this submission. The Diploma Statement was plainly not before the Tribunal, as the document post-dates the Tribunal Hearing which took place on 13 March 2018 and the Tribunal’s Decision is dated 9 April 2018.
[42] First Respondent’s Amended Submissions, filed 9 February 2022 (Minister’s Submissions), [20] and [21]. Transcript P2:L41-44; P3:L1-14; P4:L1-3.
The Court has also considered the transcript of the Hearing, where the First Applicant and the solicitor for the Minister made submissions.
CONSIDERATION
Ground 1
Ground 1 contends that the Tribunal failed to have proper regard to the First Applicant’s circumstances in its consideration of cl 572.223(1)(a)(i) and/or (iv) of the Regulations and Direction 53. In particular, the Applicants contend that the Tribunal did not have regard to the following:
(a)The education provider required the First Applicant to change from a packaged course in Certificate IV in Commercial Cookery and Diploma of Hospitality to a Diploma of Hospitality Management;
(b)The First Applicant had commenced and completed a number of subjects in the Certificate IV in Commercial Cookery; and
(c)The First Applicant had received credits for subjects in the Diploma of Hospitality Management.
The issue before the Tribunal was whether the First Applicant was a ‘genuine Applicant for entry and stay as a student’ as required by cl 572.223 of the Regulations. Clause 572.223(1)(a) of the Regulations relevantly stated:[43]
[43] CB 148, [8].
572.223
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
[...]
Further, in considering whether the First Applicant satisfied cl 572.223, the Tribunal was to have regard to Direction 53 and the following factors listed therein:
(a)The Applicants’ circumstances in their home country, including the extent of their personal ties and economic circumstances;
(b)The First Applicant’s potential circumstances in Australia, including incentives to remain in Australia and his knowledge of their course of study, education provider and previous study and qualifications;
(c)Value of the course to the First Applicant’s future, including the consistency of the course with his level of education, relevance to past or future proposed employment and expected remuneration;
(d)The First Applicant’s immigration history, including previous visa applications and travel to Australia or other countries; and
(e)Any other relevant matters or information provided by the Applicant.
In its decision, the Tribunal confirmed that a discussion was had with the First Applicant regarding the considerations raised in Direction 53.[44]
[44] CB 149, [11].
The Tribunal gave consideration to the First Applicant’s circumstances in Malaysia, noting that he had previously worked as a chef and banker and that his father owned and operated a restaurant, assisted by his mother.[45]
[45] CB 149, [16]-[17].
As submitted in the Minister’s Submissions,[46] it is apparent that the Tribunal considered the First Applicant’s study history, which included reading a PRISMS report in respect of the First Applicant and inviting him to comment on or respond to it pursuant to s 359AA of the Migration Act.[47] The First Applicant’s response to this invitation is recorded by the Tribunal in its decision.[48]
[46] Minister’s Submissions, [24].
[47] CB 150, [19].
[48] See CB 149-150, [21]-[23].
The Bayly Affidavit contains a transcription of the First Applicant’s comments to the Tribunal at the Tribunal Hearing.[49] The Court notes that the Tribunal acknowledged that the Certificate IV and Diploma of Hospitality was a ‘packaged course’, which were both cancelled at the same time and led to the First Applicant commencing the Diploma of Hospitality Management.[50]
[49] Affidavit of Lawson John Bayly, affirmed and filed 10 May 2018 (Bayly Affidavit), [9].
[50] Bayly Affidavit, [9(f)].
What has not been transcribed is the Tribunal’s request of the First Applicant to provide information about the Diploma of Hospitality Management, as his current course of study, including receipts and a copy of his academic transcript.[51] This request was not properly complied with by the First Applicant and as such the Tribunal did not consider the First Applicant to be committed to completing this course.[52]
[51] CB 151, [24].
[52] CB 151, [24].
Although it is apparent from the transcription in the Bayly Affidavit that the Tribunal understood and acknowledged the fact that the Certificate IV in Commercial Cookery and Diploma of Hospitality was a ‘packaged course’ and their cancellation by the education provider was simultaneous, this is not referred to by the Tribunal in the Tribunal’s Decision. Rather, the Tribunal made explicit comment on the fact that the courses were cancelled ‘for non-commencement of studies’.[53]
[53] CB 151, [22].
The Minister submitted however, that the Tribunal did not ignore or fail to make findings in relation to the First Applicant’s study history but simply placed greater weight on the current course of study.[54] Further, the Minister submitted that the First Applicant did not raise the fact that he received credits for particular subjects with the Tribunal, and that although the Tribunal considered the First Applicant’s oral evidence, it was open to it to accept, reject or import such weight upon it as it saw appropriate in the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
[54] Minister’s Submissions, [26].
I accept that there is no evidence before the Court that the First Applicant ever raised the fact that he received credits in the Diploma of Hospitality Management for subjects previously completed.[55] It therefore follows that it cannot be an error of law on the part of the Tribunal for failing to have taken this fact into account.
[55] I note that although evidence may be found in the Bayly Affidavit, [8] and Annexure “LBJ-2”, p 14, this has been objected to on the basis that it was not before the Tribunal and this objection is upheld. I therefore give this document no consideration.
The Tribunal is not required to refer to every piece of evidence or contention before it: ETA067 v Republic of Nauru [2018] HCA 46 at [13]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]; Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [49]. Nor is the Tribunal under any statutory obligation to refer to an immaterial matter in its reasons: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [87]. In circumstances where the Tribunal did in fact refer to the cancellation of the First Applicant’s courses, stating (albeit incorrectly) it was due to ‘non-commencement’, it is apparent that this was considered by the Tribunal to be a relevant matter. As discussed above, the Tribunal understood and acknowledged the First Applicant’s evidence, that the cancelled courses were packaged and cancelled simultaneously.
I do not accept the Minister’s submission that there is no evidence that a clearly articulated claim in respect of the cancellation of the courses by the education provider was made,[56] as the Bayly Affidavit clearly indicates that the First Applicant submitted as much to the Tribunal.
[56] Minister’s Submissions, [27].
What is clear from the Tribunal’s Decision however, is that the finding with respect to the First Applicant’s lack of knowledge and commitment to his current course was made primarily on the basis that he was not able to provide the Tribunal, either orally or in documentary evidence after the Tribunal Hearing, with any detail about his current units of study. This in turn contributed to the ultimate finding by the Tribunal that it was not satisfied that the First Applicant intended genuinely to stay in Australia temporarily in accordance with cl 572.223(1)(a). The failure of the Tribunal to take into account that the First Applicant’s courses were cancelled by the education provider by virtue of changing from the packaged course cannot be said to rise to the level of materiality required for a jurisdictional error, as it cannot be realistically said that proper consideration of this fact would have resulted in a different decision by the Tribunal: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45].
I determine that the Tribunal did not commit jurisdictional error by failing to consider the First Applicant’s circumstances and previous study as required by cl 572.223(1)(a) and Direction 53, as contended by the Applicants. Ground 1 must therefore be dismissed.
Ground 2
Ground 2 contends that the Tribunal failed to afford the Applicants procedural fairness, failed to comply with s 363C of the Migration Act, made a critical finding of fact for which there was no evidence, or made a legally unreasonable or irrational decision.
I shall address each of the claims made within Ground 2 in turn.
Did the Tribunal fail to afford procedural fairness to the Applicant?
In the particulars of Ground 2, the Applicants assert that the First Applicant was ‘denied an opportunity to make submissions or respond meaningfully to the oral invitation by the Tribunal under s 359AA’ of the Migration Act. Evidence of such an assertion was stated to be found in the First Applicant’s difficulty comprehending the Tribunal’s questions and forming a response, the limits placed by the Tribunal on the use of the interpreter at the Tribunal Hearing, and the use of ‘highly technical language’ without interpretation.
At the Hearing, the First Applicant stated the following in regards to this aspect of Ground 2:
I couldn’t form my evidence that I’m actually going to school and everything […][57]
I understand that my English is not good enough when come to attend to the tribunal so that we have the misunderstanding […][58]
[…] understanding about what the tribunal say, and I try to explain yes, I understand, but later I tell him is actually a different meaning.[59]
[…] I got limited English, so something that I want to try to say out, or even the meaning that I want to even tell the tribunal or even tell right now is actually based on what I’m understanding.[60]
[57] Transcript, P5:L10-11.
[58] Transcript, P16:L9-10.
[59] Transcript, P16:L22-24.
[60] Transcript, P16:L40-42.
The Minister submitted that there is no proper basis for the Applicants’ assertion that the First Applicant was denied procedural fairness by the Tribunal,[61] and that the Applicants’ complaints about the interpretation at the Tribunal Hearing must fail.[62]
[61] Minister’s Submissions, [31].
[62] Minister’s Submissions, [34].
In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 (SZRMQ), Chief Justice Allsop, as he then was, said the following as to how complaints regarding interpretation ought to be treated, at [9]:
9. The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
The Court notes that unlike in SZRMQ, the quality of interpreting is not in issue in the present matter. Rather, what is in issue is the Tribunal’s use of the interpreter, or lack thereof, and whether it may have impacted upon the fairness of the hearing.
Although a full transcription of the Tribunal Hearing has not been produced to the Court, I note that a Mandarin interpreter was present at the Tribunal Hearing and utilised to some extent.[63] Further, as evidenced by the brief transcription in Annexure “TJP-1” of the Pattinson Affidavit, the First Applicant agreed to the Tribunal’s proposal that the proceedings would continue in English and reference would be made to the interpreter if needed.[64]
[63] CB 125; Bayly Affidavit, [9(a) and (b)].
[64] Affidavit of Thomas John Pattinson, affirmed 24 January 2022 and filed 25 January 2022, Annexure “TJP-1”.
Although I accept the Minister’s submission that the First Applicant did not raise any difficulty or dissatisfaction with the interpreting or understanding the Tribunal at any stage during the Tribunal Hearing, this is not determinative as to whether the hearing was fair.
It is apparent that the Tribunal, when reading out the PRISMS report and noting the relevance and consequences of the information contained therein pursuant to s 359AA of the Migration Act, did not utilise the Mandarin interpreter.[65]
[65] Bayly Affidavit, [9(d)].
After reading the statement to the First Applicant, the Tribunal enquired as to whether he understood, which the First Applicant confirmed that he did, and sought advice from his Representative.[66] The Bayly Affidavit provides an excerpt of an exchange between the Representative and the Tribunal Member, whereby the Representative asks if he can speak Chinese and the Member responds ‘No in English please’.[67] The Court notes, importantly, that the request was not made by the First Applicant and that the First Applicant did not at any stage ask for the statement to be interpreted for him.
[66] CB 150, [20].
[67] Bayly Affidavit, [9(e)].
Further, neither the First Applicant nor his Representative appear to have requested an adjournment to consider the statement made by the Tribunal pursuant to s 359AA, but rather the First Applicant and the Tribunal proceeded to have a discussion regarding the status of his courses. I do not consider that the Tribunal ‘instructed the [First Applicant] not provide any further explanation of his study history’ but rather the Tribunal justifiably did not consider that the First Applicant need continue with his explanation of the packaged course cancellation.[68]
[68] Bayly Affidavit, [9(f)].
In evaluating the circumstances of the Tribunal Hearing, considering the use of the interpreter and the evidence given by the First Respondent, the Court agrees with the Minister’s Submissions that the First Applicant was responsive to the Tribunal and did not display any confusion or misunderstanding in their exchanges.[69]
[69] Minister’s Submissions, [39].
Importantly, it should also be noted that where the First Applicant felt unable to provide an adequate response to the Tribunal’s statement made pursuant to s 359AA of the Migration Act at the Tribunal Hearing, he was nevertheless provided an opportunity to submit documentary evidence with respect to his current course, which he did not do.
I am satisfied in the circumstances that the Tribunal Hearing was fair and that the issues of interpreting, of which there were only few and each minor, did not operate so as to deny the First Applicant procedural fairness. On the evidence, it is clear that the First Applicant was provided with opportunities to give evidence and make submissions to the Tribunal, however the First Applicant either did not do so or alternatively failed to demonstrate to the Tribunal’s satisfaction his commitment to his current course of study.
With respect to the statement made by the Tribunal pursuant to s 359AA, although the Court notes that this statement was not translated into Mandarin for the First Applicant’s benefit, it cannot be said that there was no option to do so, as demonstrated by the First Applicant’s understanding and agreement to the use of the interpreter if and when needed. Further, the fact that the Tribunal provided an opportunity to provide documentary evidence regarding his current course demonstrates clearly that he was provided with an opportunity to meaningfully respond to the Tribunal’s statement, particularly in circumstances where he was represented and could seek advice about the documents to be provided.
Did the Tribunal comply with its obligations under the Migration Act?
Primarily, the Court notes that the Migration Act does not and did not contain a s 363C. To the extent that this contends that the First Applicant was denied procedural fairness by the Tribunal, the Court refers to the preceding section of these Reasons for Judgment.
Did the Tribunal make a critical finding, for which there was no evidence?
I refer to paragraph [43] above and note that, to the extent that this contention relates to the finding of the Tribunal that the First Applicant’s courses were cancelled for ‘non-attendance’ as opposed to cancelled by the education provider as a result of moving away from the packaged courses, I do not consider that this finding was critical. Further, this finding by the Tribunal was made, in the absence of any documentary evidence to the contrary, on the basis of the PRISMS record in respect of the First Applicant.
Did the Tribunal make an unreasonable or irrational decision?
The Court notes that the test as to whether a decision is unreasonable is a stringent one, as demonstrated by the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, where their Honours stated, at [54]:
54. We also accept that a line must be maintained between a court’s emphatic disagreement with the merits of a tribunal’s reasoning process, and the identification of a level of irrationality, unreasonableness or lack of proportionality which reveals a constructive failure to exercise jurisdiction by a tribunal. […]
It is unclear as to the basis upon which the complaint of unreasonableness is made by the Applicants. The Court infers this particular issue is referring to the Tribunal’s comment that the First Applicant’s previous courses were cancelled for non-commencement of studies.[70] Proceeding on that basis, the Minister submitted that information was contained in the First Applicant’s PRISMS records, which the First Applicant was invited to comment on or respond to pursuant to s 359AA at the Tribunal Hearing. As a result it could not be contended that there was “no evidence” that the First Applicant’s courses were cancelled for non-commencement of studies. Further, given the reliance on the PRISMS records, those factual findings by the Tribunal were ‘plainly not unreasonable in the sense that no reasonable decision-maker could have arrived at the same conclusion: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28].
[70] CB 151, [22].
I agree with the submissions of the Minister and further note that despite the First Applicant’s evidence at the Tribunal Hearing regarding the change of the packaged Certificate IV in Commercial Cookery and Diploma of Hospitality courses which led to their cancellation and his enrolment in the Diploma of Hospitality Management, it was nevertheless open to the Tribunal on the evidence before it to find as it did, particularly in light of the PRISMS record. Further, as I have determined previously, such a finding by the Tribunal does not rise to the necessary threshold of materiality so as to have meant a different outcome for the Applicants where the First Applicant’s oral evidence was preferred.
I do not consider that the Tribunal’s Decision was unreasonable or irrational, but rather was made by the Tribunal on the basis of the evidence before it and available to it.
By reason of the foregoing Ground 2 is therefore dismissed.
CONCLUSION
The Application has not identified any jurisdictional error and is therefore dismissed.
At the Hearing, the Minister sought costs fixed in the sum of $5,400.[71] This amount is significantly below the scale rate of $7,853 allowed in pt 2, div 1, item 3 of sch 2 to the Federal Circuit and Family Court of Australia (Division 2 ) (General Federal Law) Rules 2021 (Cth). Accordingly, I will make an Order that the First and Second Applicants pay the Minister’s costs fixed in the sum of $5,400.
[71] Transcript, P15:L1-11.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge C. E. Kirton KC. Associate:
Dated: 24 August 2023SCHEDULE OF PARTIES
MLG 1267 of 2018 Applicants
Fourth Applicant:
WAYN HOM HAYDEN POH by his Litigation Guardian the First Applicant
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