Qui v Minister for Immigration & Anor
[2008] FMCA 787
•18 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| QUI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 787 |
| MIGRATION – VISA – Subclass 571 Schools Sector visa – application for review of decision of the Migration Review Tribunal affirming a decision to cancel the applicant’s Subclass 571 Schools Sector visa – condition 8202 – jurisdictional error – whether Tribunal failed to comply with Migration Act 1958 (Cth) s 359A – illogicality – whether Tribunal fell into jurisdictional error by reaching an illogical conclusion – whether Tribunal erred in making credibility findings against a counsellor who did not give evidence – exceptional circumstances – whether the reasoning in Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 in relation to condition 8202(3)(b) applies equally to condition 8202(3)(a) – whether the entirety of condition 8202 is invalid – merits review – impermissible review of merits – role of Migration Review Tribunal to determine facts – task of judicial review – credibility – whether Tribunal failed to comply with Migration Act 1958 (Cth) s 360. PRACTICE & PROCEDURE – Post-hearing submission – inappropriate for parties to make post-hearing submissions without leave. |
| Education Services for Overseas Students Act 2000 (Cth) s.20 Federal Magistrates Act 1999 (Cth) ss.3, 4 Migration Act 1958 (Cth) ss.116, 359, 359A, 360 Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) Item 4, Sch. 4 Migration Regulation Regulations 1994 (Cth) r. 2.43 Federal Magistrates Court Rules 2001 Part 44 |
| Tian v Minister for Immigration and Multicultural Affairs [2004] FCAFC 238 referred to Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 followed SZLHA v Minister for Immigration & Citizenship [2008] FCA followed Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 cited Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 followed |
| Applicant: | ZI QUI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3079 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 April 2008 |
| Date of Last Submission: | 7 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Solicitors for the Applicant: | Lawside Lawyers |
| Counsel for the Respondents: | Mr Lloyd |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3079 of 2007
| ZI QUI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a national of China, applies to the Court to review a decision of the Migration Review Tribunal affirming a decision to cancel his Subclass 571 Schools Sector visa. He claims that the Tribunal fell into error in the following ways:
(a)by basing its decision on evidence that was not provided to the applicant for comment as required by s 359A of the Migration Act 1958 (Cth);
(b)by misapprehending or incorrectly interpreting a psychologist’s report about the applicant;
(c)by reaching an illogical conclusion; and
(d)by making credibility findings against a counsellor who had not given evidence.
The applicant seeks orders in the nature of certiorari, mandamus and prohibition.
The first respondent, the Minister for Immigration and Citizenship, has filed a response claiming that the decision of the Migration Review Tribunal, the second respondent, is not affected by jurisdictional error.
Background
The applicant was granted a Subclass 571 Schools Sector visa on 29th March 2006. On 5th February 2007 the Department of Immigration and Citizenship sent to the applicant a Notice under section 20 of the Education Services For Overseas Students Act 2000 (Cth) indicating that his education provider, Meridian International School Pty Ltd had certified that he had breached condition 8202 of his student visa. Particulars of the breach were given as:
Meridian International School Pty Ltd has determined that in the term running from 16 October 2006 to 21 December 2006, you attended 59.00% of the contact hours scheduled. As a result, you have failed to comply with condition 8202(3)(a) of your student visa.[1]
[1] Court Book at 2
On 1st March 2007 a delegate of the Minister notified the applicant that the Department of Immigration and Citizenship was considering cancelling his visa under subsections 116(1)(b) and 116(3) of the Migration Act 1958 and regulation 2.43(2)(b) of the Migration Regulations 1994. The reason for the proposed cancellation was a failure to comply with condition 8202 of his Student Visa.
The delegate described the failure to comply in the same terms as were set out in the Notice under s 20 of the Education Services for Overseas Students Act.
The applicant was invited to attend an interview on 3rd May 2007. The applicant attended the interview. Later that same day the delegate notified the applicant that a decision had been made to cancel his visa under ss 116(1)(b) and 116(3) of the Migration Act and Regulations 2.43(1) and (2)(a). The delegate found that grounds for mandatory cancellation existed[2].
[2] Court Book 16
Application to the Migration Review Tribunal
On 11th May 2007 the applicant’s lawyers forwarded an application for review to the Migration Tribunal. After some correspondence, the Tribunal wrote to the applicant on 6th August 2007, inviting him to provide some information in writing. The information sought was:
i)Details why you believe the ground for cancellation does not exist.
ii)Any evidence you believe would indicate that any non-compliance with condition 8202, if established, was due to exceptional circumstances beyond your control.
iii)Evidence of your attendance and academic results for all study you have undertaken since you arrived in Australia.[3]
[3] Court Book 29
The letter went to set out matters that would be regarded as relevant in the exercise of the discretion to cancel a Student visa. The applicant was requested to provide any information by 13th August 2007.
The Tribunal’s letter appears to have been intended to comply with section 359 of the Migration Act.
The Tribunal also wrote to the applicant under s 359A of the Act, also on 6th August 2007. This letter invited the applicant to comment on certain information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The information included:
i)Your course provider, Meridian International School, advised that your academic performance had not been certified as satisfactory in Term 4 of 2006 and in Term 1 of 2007.
ii)Your course provider also advised that your attendance in Term 4 of 2006 was 59% and in Term 1 of 2007 (in weeks 1-7) your attendance was 53%.
iii)The Meridian International School advised that you have not presented any medical certificates.
iv)You attended an interview with an officer of the Department of immigration on 3 May 2007. In the course of that interview you are recorded to have stated that your future will be very bad and that you do not want to go back to China. You stated that you would not be absent from school any longer and that you would keep your attendance to 90%. You stated that you knew that what you did was very bad and that you tried to make yourself feel better. You have not provided any other reasons for your poor attendance or academic performance.[4]
[4] Court Book 31-32
Again, the applicant was invited to provide comments by 13th August 2007.
The applicant’s lawyers wrote to the Tribunal on 7th August 2007, providing copies of:
a)A Divorce certificate;
b)A letter from the applicant’s school counsellor; and
c)A psychological assessment report on the applicant
The Tribunal replied to the applicant’s lawyers on 8th August, requesting further information under s 359 of the Act. The information sought was :
Your Bank Statements, payslips and any other evidence of employment, including hours of employment, from October 2006 to the present[5].
[5] Court Book 47
This information was required by 15th August 2007.
That same day, 8th August, the Tribunal wrote to the applicant and invited him to attend a hearing on 21st August 2007. His lawyers provided a declaration from the applicant’s father to the Tribunal, along with a Certificate of Income and Employment from an accountant.
The Tribunal wrote to the applicant’s lawyers on 17th August 2007. The letter was clearly intended to comply with s 359A of the Migration Act. The letter was headed “Invitation to Comment on Information in Writing” and invited the applicant to comment on information that the Tribunal considered would, subject to any comments the applicant made, be the reason, or a part of the reason, for affirming the decision under review. The information was:
Your course provider, the Meridian International School, provided your attendance sheets for the subjects you had undertaken in October-December semester 2006. These are enclosed for your reference and indicate that you attended some subjects throughout the semester, while you failed to attend other subjects either at all or during the periods proceeding (sic) November 2006 when you claim you found out about your parents’ divorce[6].
[6] Court Book at 64
The letter set out why the Tribunal considered the information to be relevant and invited the applicant to comment in writing by 24th august 2007.
The applicant attended the Tribunal hearing on 21st August 2007 and gave evidence with the assistance of an interpreter in the Mandarin language.
The applicant’s lawyers wrote to the Tribunal on 23rd August 2007, making submissions about a number of matters that were raised during the hearing. On 24th August 2007 the applicant’s lawyers sent a facsimile message to the Tribunal containing:
i)A letter dated 24th August;
ii)A statement by the applicant’s guardian;
iii)Two medical certificates; and
iv)A business card from a Dr Benjamin Ly.
The Tribunal signed its decision on 29th August 2007 and handed the decision down on 10th September. A copy of the Tribunal Decision Record can be found at pages 98 to 113 of the Court Book.
The Migration Review Tribunal Decision
The Tribunal decision sets out a summary of the applicant’s claims in evidence in some detail, at pages 101 to 109 of the Court Book. The Tribunal’s findings and reasons are set out at pages 109 to 113.
The Tribunal noted that the applicant’s visa was cancelled on the basis of a failure to comply with condition 8202 of his visa and that the delegate had found that the applicant had not complied with that condition because he failed to attend at least 80% of the contact hours in Term 4 of 2006.
The Tribunal stated that in order to reach a state of satisfaction as to whether the applicant had attended for 80% of the contact hours, it had to have regard to the total number of hours for which he was scheduled to attend. The Tribunal stated:
The attendance records for the applicant state that in Term 4 of 2006 the applicant’s attendance was 59% and in the first seven weeks of Term 1 of 2007 his attendance was 53%. The course provider provided to the Tribunal the applicant’s class rolls indicating his dates of absences and a general timetable. The applicant conceded in oral and written evidence to the Tribunal that his attendance fell below 80% in these two terms. Accordingly, the Tribunal is satisfied that the applicant has not complied condition 8202(3)(a). For the following reasons, the Tribunal is also satisfied that the applicant has not complied with condition 8202(3)(b)[7].
[7] Court Book at 110
The Tribunal set out its understanding of condition 8202(3)(b), saying:
To comply with condition 8202(3)(b), the applicant must achieve an academic result that is certified by the education provider to be at least satisfactory for the semester. The meridian School advised that in Term 4 of 2006 and Term 1 of 2007 the applicant’s academic result was not considered to be at least satisfactory[8].
[8] Court Book at 110
The Tribunal proceeded to refer to the decision of the Full Court of the Federal Court in Tian v Minister for Immigration and Multicultural Affairs[9] at [55] – [56]. It then found that the applicant had not achieved an academic result that had been certified by the education provider to be satisfactory for Term 4 of 2006 and term 1 of 2007. Accordingly, the Tribunal found that the applicant had not complied with condition 8202(3)(b).
[9] [2004] FCAFC 238
Next, the Tribunal considered the applicant’s circumstances and the reasons for the breach.
The Tribunal noted the applicant’s claims that he felt depressed and unable to concentrate on his studies because his parents had divorced in November 2006 and he was away from his family. He had provided a statement from the school counsellor dated May 2007 and a psychological report.
The Tribunal rejected the applicant’s claims and gave its reasons:
First, whilst the applicant claimed to have found out about his parents’ divorce in November 2006, the attendance roll provided by the education provider showed that the applicant had missed classes from the commencement of the Term in October, before he had become aware of the divorce.
Second, whilst he applicant claimed to have suffered from a sleep disorder, which was referred to in the psychological report he had provided, the tribunal did not accept the explanation because the applicant had started missing classes in October.
The Tribunal found it significant that the applicant was unable to remember in his oral evidence the name of the medication he was taking for his claimed sleep disorder or the name of the medical practitioner whom he was seeing for treatment. The Tribunal rejected the applicant’s claim that he suffered from sleep disorder or that this disorder caused him to miss classes.
The Tribunal noted that the applicant had provided a psychological report which diagnosed him as suffering from depression and other illnesses. However, the Tribunal noted that the psychological assessment relied on the applicant’s description of events and there was a significant delay between the events described and the issuing of the report. For these reasons the Tribunal found the report to be “of little probative value”[10].
[10] Court Book at 111
The Tribunal found implausible the applicant’s claim that he was able to perform his work in restaurants, an environment where he would be required to deal with people socially, while his claimed desire for social withdrawal due to depression and anxiety prevented him from attending school.
The Tribunal did not accept that it was the applicant’s depression or anxiety that prevented him from attending school or performing well academically.
After having considered all the applicant’s claims individually and cumulatively, the Tribunal stated that it was not satisfied that the applicant’s failure to achieve an academic performance certified to be at least satisfactory in Term 4 of 2006 and Term 1 of 2007 was due to exceptional circumstances beyond the applicant’s control. The Tribunal was satisfied that the applicant had not complied with condition 8202 and that the ground for cancellation in s 116(1)(b) existed. As the Tribunal was satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control, the Tribunal found that the visa must be cancelled according to s 116(3) of the Act.
The Tribunal affirmed the decision to cancel the applicant’s Subclass 571 Schools Sector visa.
Application for Judicial Review
The applicant commenced proceedings for judicial review in this Court on 4th October 2007. The applicant’s solicitors filed an amended application on 31st December 2007 and the application has proceeded on the basis of that amended application.
The applicant’s solicitors filed a written outline of submissions on 18th March 2008 and again, curiously, on 26th March 2008. The first respondent’s solicitors filed their outline of submissions on 3rd April 2008.
The application was argued before me on 7th April 2008, at which time I heard oral submissions from Mr Kumar of counsel for the applicant and Mr Lloyd of counsel for the first respondent. I then reserved my decision.
The applicant’s solicitors faxed a document to my associate after the hearing on 7th April. Inexplicably, they chose to date that document “04 November 2007”. The document appeared to contain a further supplementary submission. The solicitor for the first respondent wrote to the Court on 10th April 2008, challenging the applicant’s document, and saying:
If the court were inclined to have any regard to the applicant’s representative’s correspondence, the first respondent would seek leave to submit a brief written submission in response. Alternatively, the Court may consider it appropriate to have the matter re-listed for directions in order to determine whether the applicant was impliedly seeking to re-open his case.
The applicant’s solicitors have made no application to re-list the matter in order to seek to re-open their case.
I have decided that I should not consider the supplementary submission.
I made no directions at the conclusion of the hearing about the filing of further submissions, nor was I asked to do so. The post-hearing submission was made by the applicant’s solicitors without leave, although a copy was forwarded to the solicitor for the first respondent.
In my view, it is inappropriate to seek to make further submissions after a hearing without notice. I accept the fact that post-hearing submissions are frequently made to the Migration Review Tribunal and the Refugee Review Tribunal and that those Tribunals normally consider those submissions, even recalling their decisions at any time up to the time when those decisions are handed down. However, those are inquisitorial proceedings before a Tribunal. The Federal Magistrates Court is a federal court under Chapter III of the Constitution (Federal Magistrates Act (Cth) s 4) and exercises the judicial power of the Commonwealth.
True it is that the objects of the Act include:
i)(a) to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and
ii)(b) to enable the Federal Magistrates Court to use streamlined procedures;…(Federal Magistrate Act, s 3(2)).
However, this should not be taken to mean that parties may continue to make further submissions to the Court at will after the hearing has concluded. There is no provision for the procedure in the Federal Magistrates Court Rules. Part 44 of the Rules sets out the procedure to be applied in proceedings under the Migration Act 1958. It is inappropriate, in my view, as it can lead to a protracted hearing by correspondence. It is particularly inappropriate to write letters to the Federal Magistrate.
There may well be occasions when parties consider it necessary to make further submissions in a migration application before a decision is handed down. The appropriate ways to do so are:
(a)by seeking directions at the hearing for the filing of further submissions; or
(b)by applying to re-list the matter for directions.
I am aware that some lawyers in the past have sought to make further submissions, without leave, after the hearing is concluded. I consider it to be an undesirable practice unless done in accordance with one of the methods set out above.
I have disregarded the contents of the supplementary submission.
Submissions
Counsel for the applicant, Mr Kumar, has referred the court to the decision of the Full Court of the Federal Court in Dai v Minister for Immigration and Citizenship[11] in support of his argument that the Tribunal erred in its application s 116 due to the purported breaches of both conditions 8202(3)(a) and 8202(3)(b).
[11] [2007] FCAFC 199
Mr Kumar argues that the reasoning of the Full Court in Dai in respect of condition 8202(3)(b) applies with equal force to condition 8202(3)(a). He submitted that there was considerable overlapping of the facts in the making of the finding in respect of the two sub-clauses. The jurisdictional error with respect to one infects the entire condition.
Just as it was held that the applicant had no control over the process that led to the issue of the certificate as to his academic performance which brought about the finding that he had not complied with condition 8202(3)(b), so, too, did he have no control over the process that led to the finding that he had not complied with condition 8202(3)(a) for failing to attend 80% of the contact hours.
That, Mr Kumar submits, should lead to a finding that Ground 1 of the amended application has been made out. Ground 1 of the amended application claims that the Tribunal based its decision on the evidence that was not provided to the applicant in compliance with section 359A of the Act and the Tribunal breached the rules of procedural fairness required under the Act by relying on such information.
Mr Kumar informed the Court that Ground 2 of the amended application was not pressed.
Ground 3 of the amended application is as follows:
The Tribunal states that it ‘considers it implausible that the applicant was able to perform his work in a social environment…” (at page 14.5 of the MRT decision). The applicant contends that the Tribunal made jurisdictional error by misapprehending the attendance at work with the school attendance situation and without more is an illogical conclusion thus affected by illogicality. To suggest that it is implausible is far fetched and illogical.
Mr Kumar submits that the Tribunal failed to take into account the different facts and circumstances of the work situation and the school situation and thus has failed to properly address the issue of school attendance. The applicant gave evidence that there it was hard work and there was no socialising at work.
He went on to submit that the Tribunal erred in comparing the work situation to the school and came to the wrong conclusion. Thus, he submits, the Tribunal misdirected its enquiries.
Ground 4 of the amended application states:
The Tribunal made jurisdictional error by making credibility finding against the counsellor when in fact counsellor had not given evidence.
Mr Kumar submitted that, not having seen the counsellor the Tribunal made jurisdictional error in making adverse findings against the school counsellor and such conclusion was not open to the Tribunal as the counsellor had not given evidence. In the alternative, he submitted that rejecting the information without giving the proper opportunity to present further arguments is procedurally unfair and a breach of section 360 of the Migration Act.
Counsel for the Minister, Mr Lloyd, conceded that the Court is bound by the decision in Dai v Minister for Immigration and Citizenship and that the Tribunal decision relying on a failure to comply with condition 8202(3(b) is flawed. However, the Tribunal also relied upon a failure to comply with condition 8202(3)(a) as a separate basis for cancelling the visa and there is no error in relation to the decision in that respect.
Mr Lloyd submitted that the applicant’s Ground 2 involves an attempt to challenge the merits of the Tribunal’s rejection of one of the applicant’s claims and this does not reveal reviewable error.
Mr Lloyd also submitted that the Tribunal did not make any adverse findings against the school counsellor. It did not accept the applicant’s claims and gave reasons for its conclusions which are not inconsistent with the facts as opposed to the opinions in the school counsellor’s letter.
Conclusions
There is no doubt that this Court is bound by the decision in Dai. In that case, North J, with whom Gyles J agreed, found that condition 8202(3)(b) required certification by the education provider that the academic result was at least satisfactory. The provision of the certificate was the act of the education provider and the visa holder had no role to play in providing that certificate. Thus:
…there is no role for the visa holder in compliance or non-compliance and no apparent trigger for cancellation[12]
[12] [2007] FCAFC 199 at [18]
North J went on to find:
19 There was no act of the visa holder which could satisfy the requirement of condition 8202. The achievement of the academic result was irrelevant unless certified. No matter what the student did or did not do, the absence of a certificate would be fatal.
20 Thus, there was no way in which the visa holder could not comply with the condition 8202. It follows that it was not possible for the Minister to be satisfied that the visa holder had not complied with condition 8202. It further follows that the power of the Minister to cancel the applicant’s visa under s 116(3) was not engaged[13].
[13] [2007] FCAFC 199 AT [19] – [20]
I am satisfied that the Tribunal fell into error when it found that the applicant was in breach of condition 8202(3)(b). However, I am not satisfied that the same cannot be said for the finding that the applicant was in breach of condition 8202(3)(a).
I am not satisfied that the decision in Dai found that condition 8202(3(a) was invalid. The appellant in that case did not argue that condition 8202(3)(a) was invalid. The Amended Notice of Appeal related only to condition 8202(3)(b)[14]. The visa in Dai was not cancelled because the appellant had failed to attend the required number of contact hours, only because of her unsatisfactory academic progress[15]. The decisions of North and Gyles JJ relate only to condition 8202(3 (b), because that was the only condition that was relevant.
[14] [2007] FCAFC 199 at [41] per Edmonds J
[15] [2007] FCAFC 199 per North J at [6]
Condition 8202(3)(a) is different. Unlike condition 8202(3)(b), it is directed to the visa holder. Whilst the education provider must keep attendance records, it is the visa holder’s attendance that is the focus of the condition. In this case, it will be recalled, the applicant had conceded in oral and written evidence that his attendance fell below 80% in Term 4 2006 and Term 1 2007[16].
[16] Court Book at 110
In my view, the decision in Dai is not authority for the proposition that condition 8202(3)(a) is invalid.
The Tribunal’s finding that the applicant failed to comply with condition 8202(3(a) because he failed to attend for at least 80% of the contact hours in his course is independent of the Tribunal’s finding in respect of condition 8202(3)(b) and the Tribunal did not fall into error when it made that finding.
The applicant’s original contention in his amended application that the Tribunal failed to provide the applicant with an opportunity to comment on information that he had failed to comply with condition 8202(3)(a) by failing to comply with the attendance requirement has not been made out. The Tribunal wrote two letters to the applicant under the provisions of s 359A of the Act, one on 6th august 2007 and the other on 17th August. Each letter sought his comments in writing on information about that issue.
Ground 1 of the amended application has not been made out.
Ground 2 was not pressed.
Ground 3 complains that the Tribunal made jurisdictional error in arriving at an illogical conclusion when it compared the applicant’s attendance at his work in a restaurant with his failure to attend classes at school. The argument is that the facts are different.
There is no illogicality. The ground is an attempt to challenge the Tribunal’s factual finding about his attendance and is no more than an attempt to engage in merits review. It is well established that a court conducting judicial review of an administrative decision must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision (SZLHA v Minister for Immigration & Citizenship[17] at [5], citing Minister for Immigration & Ethnic Affairs v Wu Shan Liang[18]).
[17] [2008] FCA 782
[18] [1996] HCA 6; 185 CLR 259 at 272
There was evidence upon which it was open to the Tribunal the view that it did (Kopalapillai v Minister for Immigration & Multicultural Affairs[19]).
[19] (1998) 86 FCR 547
Ground 3 in the applicant’s amended application has not been made out.
The applicant’s Ground 4 claims that the Tribunal made jurisdictional error by making credibility findings against the school counsellor when in fact the counsellor had not given evidence.
This ground is misconceived. The Tribunal did not make a credibility finding against the school counsellor. The Tribunal stated:
In his submission to the Tribunal the applicant claims that his parents had divorced in November 2006 and that it was the first time he was away from his family. As a result, he felt depressed and was unable to concentrate on his studies. He provided a statement from the school counsellor dated May 2007 and psychological report. For the reasons that follow, the Tribunal rejects these claims[20].
[20] Court Book 110
The Tribunal then gave reasons for rejecting those claims, noting that the applicant had stated in oral evidence that he had not overcome his psychological problem until after he had spoken to his psychologist and the school counsellor[21].
[21] Court Book 111
There is no other reference to the school counsellor in the Tribunal’s finding’s and Reasons.
Quite clearly, it was the applicant’s evidence about his inability to concentrate on his studies due to depression that the Tribunal was rejecting, not the credibility of the school counsellor.
The submission that the Tribunal somehow acted in breach of s 360 of the Act is also misconceived. Section 360(1) provides that:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The section does not require that the school counsellor should have been called to give evidence. The applicant did give evidence. He did not ask the Tribunal to hear evidence. There is no breach of s 360 of the Migration Act.
Ground 4 fails.
I am satisfied that the Tribunal decision is a privative clause decision and is not subject to the writs of certiorari, mandamus or prohibition that the applicant seeks (s 474).
The application will be dismissed with costs.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. L. Coutman
Date: 16 June 2008
10
5
6