Ramachandran v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 638
•9 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ramachandran v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 638
File number: MLG 3648 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 9 May 2025 Catchwords: MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – student (temporary) (class TU) visa – where the applicant claims that the Tribunal erred in conducting a hearing in circumstances where the applicant had not responded to a request for information made by the Tribunal pursuant to either section 359 subsections (1) or (2) of the Act – consideration of whether the Tribunal’s request was made pursuant to section 359 subsection (1) or (2) and whether section 359C was enlivened in the circumstances – where the applicant further claims that the Tribunal erred in failing to observe section 359A of the Act by not putting certain information to the applicant – consideration of whether the Tribunal complied with its obligations under section 359A of the Act – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 353, 359 (1), 359(2), 369B, 359C Cases cited: Minister for Immigration and Citizenship v SZKTI [2009] HCA 30
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of last submissions: 22 November 2024 Date of hearing: 22 November 2024 Place: Melbourne Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Brett Slater Solicitors Solicitor for the First Respondent: Mr R O’Shannessy of Mills Oakley Solicitor for the Second Respondent: Submitting an appearance save as to costs ORDERS
MLG 3648 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANISHUNNITHAN NEDIYAMANNIL RAMACHANDRAN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
9 MAY 2025
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 1 November 2018, by which the Tribunal affirmed a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’).
BACKGROUND
The applicant is an Indian citizen.[1]
[1] Court book at page 10.
The applicant arrived in Australia in January 2009 on a student visa. From 2009 to 2011, the applicant studied at the Windsor Institute of Commerce and Language, and between 2011 to 2016 he was enrolled in Advanced Diploma courses at the Australian Vocational Learning Centre.[2] During this time, on 17 June 2015, the applicant was issued a further student visa.
[2] Court book at page 12.
Application for the visa on 30 November 2016
On 1 December 2016, the applicant lodged an application for the visa (‘visa application’).[3] In the visa application, the applicant confirmed that he has been resident in Australia since 2009 and whilst studying, in 2015, he formed a private company where he has since worked as a sole trader.[4]
[3] Court book at pages 5 to 30.
[4] Court book at page 13.
On 5 December 2016, the Department of Immigration and Border Protection (‘the Department’) requested more information from the applicant in order to consider his visa application.[5] Relevantly on 20 January 2017, a further request was made by the Department for more information of the applicant, this time with the information requested specifically relating to the ‘genuine temporary entrant criterion’ in clause 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’).[6] Relevantly, in that request, the correspondence from the Department contained the following:
I note that over the past eight years that you have been residing in Australia as the primary holder of a student visa, you have been enrolled to undertake eight different courses. According to your study history, you do not seem to have made significant progression or achieved a reasonable completion level for a student whose primary purpose for being in Australia is to study and progress academically.
Even though a person may seek a change in career, I note that you have changed courses several times and that the courses chosen are typically of a short duration, and relatively low cost.
Records also indicate you failed maintain enrolment in a course of study from Feb 2009 to April 2011. So you breached visa condition 8202.
These indicate that you appear to have enrolled in these new courses for the purposes of securing a further student visa rather than due to a genuine interest in study and overall academic progress. You appear to be using the Student visa program as a means of maintaining ongoing residence in Australia and you do not seem to have a genuine intention to stay in Australia temporarily.
I invite you to comment on above information and provide evidence to support your comment.
[5] Court book at pages 56 to 63.
[6] Court book at pages 70.
The applicant responded to the Department’s request by email on 1 March 2017 attaching a letter from Pacific College of Technology dated 25 February 2017, confirming that the applicant was enrolled in a Diploma of Accounting course scheduled for completion in February 2018.[7]
[7] Court book at pages 73 to 74.
On 1 June 2017, the Department sent the applicant notification of refusal of his visa application.[8] The Department’s decision record provides that the delegate was not satisfied the applicant met the criterion in clause 500.212 of Schedule 2 to the Regulations. That is, the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.
[8] Court book at page 76.
I note the following comment of the delegate in the decision record:[9]
The applicant has only partially responded to the department’s request for comment. The applicant has provided only a letter relating to enrolment this year, but has not provided and (sic) additional information regarding prior enrolment as requested. This is not consistent with the behaviour of a genuine student who wants to secure a student visa to successfully continue their studies. This indicates that the applicant may be using the student visa programme as a means of maintaining residence in Australia.
The course the applicant is seeking to undertake would require them to remain onshore until at least 01/04/2019; this would bring the applicant's total time in Australia on temporary visas or associated bridging visas to over 10 years. l find it difficult to reconcile the applicant’s extensive proposed stay onshore with their claim they are a genuine temporary resident. Rather, the significant period of time the applicant has spent in Australia since their initial arrival and the lack of regular departure suggests the applicant’s potential circumstances in Australia outweigh any incentive they have to depart.
…
The applicant was in Australia as an unlawful non-citizen for 4 days between 25/11/16 and 30/11/2016. Additionally the applicant was in Australia but not enrolled in any course of study which is a breach of the conditions of the applicant’s visa. This demonstrates a lack of consideration, adherence to and respect of the Migration Regulations.
[9] Delegate’s decision record dated 1 June 2017.
Application for review by Tribunal on 20 June 2017
By letter dated 20 June 2017, the Tribunal acknowledged the applicant’s application for review of the delegate’s decision.[10]
[10] Court book at page 101.
By letter dated 5 October 2018, the Tribunal invited the applicant to attend a hearing before it scheduled for 1 November 2018.[11] The applicant was assisted by a migration agent (‘representative’) before the Tribunal.
[11] Court book at page 114.
After providing details of the hearing, the Tribunal’s letter of 5 October 2018 contains the following:[12]
[12] Court book at page 117.
What you should do within 7 days of receipt of this letter
…
Please provide all documents you intend to rely on to establish that you mee the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. …
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.
2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts an certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
3.We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry as a student by referring to Direction No. 69.
In determining whether you are a genuine applicant for entry and stay as a student, we may also have regard to cl 500.212(b) of Schedule 2 to the Regulations. This clause requires that you intend to comply with any conditions subject to which the visa is granted, having regard to your record of compliance with any previous visa conditions and your stated intention to comply with any conditions to which the visa may be subject. Please be prepared to answer any questions the Tribunal may have on this issue and provide any supporting information or documents you may wish to provide the Tribunal.
…
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal the decision under review is taken to be affirmed.
It is not in dispute that the applicant did not respond to the Tribunal’s request and did not provide the requested documents. The applicant appeared before the Tribunal on the scheduled hearing date, assisted by his representative.[13] At that hearing the applicant conceded that he did not have a current Certificate of Enrolment (‘CoE’).
[13] Court book at page 132.
On 2 November 2018, the Tribunal notified the applicant of the Tribunal’s decision, dated 1 November 2018, affirming the delegate’s refusal decision.[14]
[14] Court book at page 134.
TRIBUNAL’S REASONS
The Tribunal’s decision record of 1 November 2018 is set out at pages 136 to 138 of the Court Book.
The Tribunal considered the applicant’s claims and evidence, and stated at paragraph [12] and following:
12.At hearing the applicant confirmed that he was not currently enrolled in a course of study. He discontinued studying after his application was rejected because he was unsure if his visa would be approved, although he understood that he could have continued studying and did not have a “no study” condition on his visa. …
13.Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl. 500.211 is not met.
As stated, the Tribunal was not satisfied that the applicant was enrolled in a course of study and therefore the requirements of clause 500.211 of the Regulations was not met.[15]
PROCEEDINGS IN THIS COURT
[15] Tribunal decision record dated 1 November 2018 at paragraph [13].
Application for judicial review on 2 December 2018
On 2 December 2018, the applicant filed an application for judicial review with the then Federal Circuit Court of Australia, together with an affidavit annexing a copy of the delegate’s decision and the Tribunal’s decision. The applicant was self-represented at the time of filing his application in 2018. The applicant raised two grounds of review in that application, namely:[16]
1. The Decision of the Administrative Appeals Tribunal involves jurisdictional error.
2. The Tribunal ignored relevant facts.
[16] Application filed 2 December 2018.
The applicant did not attend the hearing scheduled before me commenced on 12 June 2024 and as such, pursuant to rule 13.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the application was dismissed, and the applicant was ordered to pay the Minister’s costs in the sum of $8,371.30.[17]
[17] See Orders of Deputy Chief Judge Mercuri dated 12 June 2024.
By application filed on 15 July 2024, the applicant sought reinstatement of his substantive application for judicial review.
On 30 September 2024, orders were made reinstating the applicant’s application and relisting the applicant’s application for a final hearing on 22 November 2024 (‘the September 2024 orders’). Orders were also made for the filing of further material.[18]
[18] See Orders of Deputy Chief Judge Mercuri dated 30 September 2024.
Pursuant to the September 2024 orders, on 15 October 2024, the applicant’s representative filed written submissions and on 4 November 2024, the first respondent filed its written submissions. In the course of the hearing, it became apparent that the grounds of review argued were not reflected in any amended application. After hearing argument from the parties, and to regularise the procedure, I granted leave to the applicant to file an amended application to reflect the grounds as argued at the hearing.[19] The applicant did so on 11 February 2025.
[19] See Orders of Deputy Chief Judge Mercuri dated 22 November 2024.
Before turning to the grounds of review, I note that the applicant refers to the Court Book and says that at page 44, the applicant provided a CoE for an Advanced Diploma of Accounting noting that the course start date was 5 February 2018, and the end date was 1 February 2019. The applicant says that this evidences that at the time he made his application, the applicant had a CoE which would have covered him as at the date of the Tribunal’s decision.[20]
[20] Court transcript at page 3.
The applicant also refers to the letter dated 25 February 2017 from Pacific College of Technology contained at Court Book page 74, which states that the applicant was enrolled in Diploma of Accounting as a full-time student from 6 February 2017 and that he was scheduled to complete the course on 2 February 2018. The applicant relies upon this document as evidence that at the time of the delegate’s decision, he was studying in the Diploma of Accounting and had a CoE at that time.
In response, the Minister points out that this document is somewhat ambiguous to the extent that it purports to certify that the applicant is enrolled in the Diploma of Accounting as a full time student but then goes on to refer to ‘Mr Sayed’s attendance’. The Minister says that limited, if any, weight can be given to this document.
At Court Book page 128 is a copy of the PRISMS records relating to the applicant. Those records indicate that the applicant’s enrolment in the Advanced Diploma of Accounting was cancelled on 11 July 2017. The applicant also points to the bottom right hand of that page which is dated 25 October 2018 and says that indicates that that is the date on which the PRISMS record was printed out.
GROUNDS OF REVIEW
There are two grounds of review raised by the applicant in this matter.
Ground 1
By ground one, the applicant asserts that:
The Second Respondent (Tribunal) made a jurisdictional error by conducting a hearing following the Applicant’s failure to respond to an invitation under s 359 of the Migration Act 1958 (Cth) (Act).
a.The Tribunal by letter dated 5 October 2018 invited the Applicant to provide evidence of his enrolment at least 7 days before the hearing date of 1 November 2018.
b. The letter was an invitation under s 359(2) of the Act.
ba.Or alternatively under s 359(1) that the invitation did not properly specify that the information be given within the prescribed period, being within 14 days of receipt of the invitation under s 359B(2) of the Act when read with reg 4.17(4) of the Migration Regulations 1994 (Cth);
c.The Applicant did not respond to the invitation, with the effect that the Applicant lost his entitlement to a hearing and the Tribunal was not entitled to conduct a hearing under s 359C(1) when read with s 360(2)(c) and s 360(3) of the Act: Singh v Minister for Immigration and Border Protection [2017] FCAFC 67 at [56] – [57], special leave refused [2017] HCASL 205;
d.Instead, the Tribunal was required to decide whether or not to make a decision under s 359C of the Act, without hearing further from the Applicant, or instead whether to adjourn the proceeding to allow further material to be provided by the Applicant.
e.The Tribunal’s failure to identify and apply the correct statutory provision when making its decision was a jurisdictional error.
Ground 1 is put in one of two ways. First it is said that the invitation letter sent on 5 October 2018 was an invitation under section 359(2) of the Act. In the alternative, it is submitted that the letter of 5 October 2018 was an invitation under section 359(1). On either case, it is submitted for the applicant that the outcome would be the same, namely, the applicant’s failure to provide the information requested, precluded the Tribunal from conducting a hearing.
In those circumstances, it is said on behalf of the applicant that in conducting a hearing, in which the applicant disclosed that he did not have a current CoE at the date of the hearing, the Tribunal erred. It is argued that this error was material and the Tribunal’s decision is therefore affected by jurisdictional error.
Before turning to consider the parties’ respective submissions, it is important to set out the relevant legislative provisions which appear in Division 5 of Part 5 of the Act.
Relevantly, section 353 provides:
The Tribunal, in reviewing a Part 5 – reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
Section 357A then provides:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
…
(2) In applying this Division, the Tribunal must act in a way that is fair and just.
Section 358 identifies the documents that an applicant for review and the Secretary may provide to the Tribunal.
Section 359 provides that the Tribunal may seek information, i.e. implicitly information not otherwise provided by either the applicant or the Secretary. Section 359 relevantly provides:
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a)except where paragraph (b) applies – by one of the methods specified in section 379A; or
(b)if the invitation is given to a person in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
Section 359AA then deals with information and invitation given orally by the Tribunal whilst the applicant is appearing at a hearing before it. That provision is not relevant for present purposes.
Section 359A then deals with certain information that the Tribunal must give to an applicant and in respect of which the Tribunal must invite the applicant to comment upon or respond to. Again, this provision is not relevant to the current ground of review and I therefore do not propose to set it out in full.
Section 359B prescribes the requirements for a written invitation for information, including under section 359 and relevantly provides:
(1) If a person is:
(a) invited in writing under section 359 to give information; or
(b) invited under section 359A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given being the way the Tribunal considers is appropriate in the circumstances.
(2)If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
…
(4)If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
…
Section 359C then goes on to provide the consequences of a failure to comply with a written invitation to give information. It relevantly provides:
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
Section 360 imposes an obligation on the Tribunal to invite a review applicant to a hearing except in certain specified circumstances. Section 360 relevantly provided:
(1)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.
(2) Subsection (1) does not apply if:
(a) …
(b) …
(c) subsection 395C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 360A then deals with the notice that must be given to an applicant invited to attend a hearing. Sections 361 and 362 deal with the applicant’s ability to request to call witnesses and obtain written material for the purposes of a hearing. Section 362A provides that the applicant may have access to written material before the Tribunal. Section 362B deals with the situation where the applicant fails to appear before the Tribunal when invited to do so and section 362C deals with the circumstances in which the Tribunal must provide written reasons in circumstances where it dismisses a review for non-appearance or a reinstatement. Section 363 details the Tribunal’s powers in conducting a review, which includes the power to issue a summons for a person to appear before them.
Relevantly, section 363A provides:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
Section 364 deals with the Tribunal’s power to take evidence. Sections 365 and 366 deal with how the Tribunal is to take evidence. Section 366A then provides that an applicant may be assisted in a review hearing and the nature of assistance that can be provided. Section 366B provides that other persons, other than the applicant cannot be assisted or be represented. Section 366C deals with the use of interpreters. Section 366D prohibits examination or cross-examination of any person appearing before the Tribunal.
The central dispute between the parties at the heart of ground 1, is whether the letter of 5 October 2018, was an invitation made for information under either section 359 subsections (1) or (2).
The applicant’s primary argument is that the letter of 5 October 2018, was an invitation to the applicant to provide information pursuant to section 359(2). The applicant points to the fact that it was provided by email, being a manner permitted by section 379A. The applicant further submits that the fact that the letter of 5 October 2018 also served another purpose (namely to invite the applicant to attend a hearing), does not mean that it was also an invitation under section 359(2).
Moreover, it is common ground that the prescribed period for the purposes of section 359B(2) is 14 days and that in this case, the applicant was in fact given more than 14 days after receipt of the 5 October 2018 letter. The applicant submits that providing more time in this way, does not of itself alter the nature of the letter.[21]
[21] M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247.
The applicant submits that it is apparent on the face of the letter that it is an invitation in writing to a person to give information and therefore falls within the operation of section 359(2). The Minister concedes that the letter requested information and therefore was an invitation to ‘get information’ as that term is commonly understood, but disputes that it was a request made under section 359(2). For the following reasons, I agree.
When the letter is read as a whole, it is clearly an invitation to attend a hearing. In the context of a relatively confined issue, and where the delegate’s decision had noted a failure by the applicant to provide relevant information prior to the delegate’s decision, simply identifies the information that the Tribunal wishes to consider. Given that the issues before the Tribunal were clearly whether the applicant had a current CoE and whether the applicant was a genuine temporary entrant, the information sought would have been information that the applicant would have wanted to put before the Tribunal himself.
But in any event, when one considers the consequences to the applicant of a failure to comply with a request for information under s 395(2), one would expect that the Tribunal would make it clear that it was such a request. One would also expect that the Tribunal would expressly advise the applicant of the potential consequences of a failure to provide the necessary information.
Moreover, the letter contains the following, as required by section 360A(5) of the Act:
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. …
It is further submitted for the Minister that the absence of a statement referring to the implications of the operation of section 395C is further evidence that the Tribunal did not consider itself to be operating under section 359(2) in sending the letter to the applicant. Moreover, in circumstances where it is conceded that the period for providing a response to the request for information was not consistent with the requirements of section 359B(2), this is, according to the Minister, further evidence that the letter was not intended to be and was not a request under section 359(2).
These submissions are persuasive. The terms of the letter itself make it clear that the information is being sought prior to the hearing, so that a ‘decision can be made as soon as possible’. This is consistent with the Tribunal’s obligations to undertake reviews in a way that is fair and just, including by putting the applicant on notice of the issues that he would need to address. Moreover, the absence of any indication that a failure to comply with the request to provide the information would preclude the applicant from having a hearing, is a strong indicator that the Tribunal was not exercising its power under section 359(2).
For each of these reasons, I find that the letter was not sent pursuant to section 359(2).
Nor do I find that ground 1 is otherwise made out. That is to the extent that the Tribunal’s request for information could be said to be a request under section 359(1), a failure by the applicant to provide that information, does not trigger section 359C and therefore disentitle the applicant to a hearing.
In Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 (‘SZKTI’), the High Court considered section 424 of the Act, which is in the same terms and appears within a similar statutory framework to that of sections 359, 359B and 359C. At paragraphs [8] and [19] of that decision, the court identified the issue before it as follows:
8.The central issue in this appeal, which is also the central issue in SZLFX, is whether the RRT may telephone a person, for the purpose of obtaining information from that person, without following the procedures set out in ss 424(3) and 424B, having regard to s 441A of the Act which is incorporated by reference into s 424(3). It is common ground between the parties in both matters that the relevant procedures in ss 424(3) and 424B were not followed. The issue of whether the RRT was required to "get any information" by an invitation in writing, turns essentially upon the construction of the relevant statutory provisions. There is also an issue concerning the application of s 425 which arose only in this appeal.
…
19.The appeal to this Court mainly requires a determination of whether the RRT breached ss 424(3) and 424B and whether, if it did, that amounted to jurisdictional error, in which case relief would be available despite s 474 of the Act, which covers privative clause decisions. Those questions turn on the construction of the provisions in the wider statutory context, particularly Div 4 of Pt 7, in order to determine both how ss 424(3) and 424B apply and the effect of any failures to comply with them.
In considering the nature of the power in section 424(1) and (2) and whether the power in section 424 (2) is simply a subset of the general power of section 424(1), the High Court said:
45.… Section 424(1) puts into statutory form a power to obtain information by asking questions. This is an obvious power to give to an inquisitorial body. Subject to not interfering with the liberty of another, making an enquiry with no power to compel an answer is not an unlawful activity. No adverse consequences flow against the applicant for review if the applicant, or any other person questioned, fails to co-operate or to give the information sought. By comparison, the specific power in s 424(2) governed by ss 424(3) and 424B, to give an invitation in writing to provide additional information, results in the adverse consequence that an applicant who fails to respond to an invitation in writing is deprived of the entitlement to a hearing. These critical distinctions emphasise the fact that the powers in ss 424(1) and 424(2) are, in law, significantly dissimilar.
46.The general power to "get" information and the specific power to "invite" in writing the giving of additional information are capable of co‑existing without the latter being repugnant to the former. Further, an oral request for information would be authorised not only by s 424(1) of the Act but also by s 56(1), by reason of the operation of s 415 which has been explained above.
…
48.Given all the considerations described above, the phrase "[w]ithout limiting subsection (1)", as it occurs in s 424(2), means that the procedural restrictions on the specific power to issue an invitation to give additional information do not qualify the RRT's general power in s 424(1) to "get any information that it considers relevant". Accordingly the circumstances of this case did not involve a breach of either s 424(3) or s 424B.
Whilst I accept that the factual issues in SZKTI were different from those before me now (in that the Tribunal in that case made inquiries by telephone rather than in writing) that is not, in my view, sufficient to distinguish the reasoning in that decision.
Applying this reasoning to the present case, it is submitted for the Minister that if the request for information in the 5 October 2018 letter is construed as a request under section 359(1) rather than section 359(2), non-compliance does not disentitle the applicant to a hearing. I agree.
Following the High Court’s reasoning in SZKTI, the power of the Tribunal to obtain information under section 359 subsections (1) and (2) are quite distinct, with different consequences for non-compliance of each. Section 359(1) is not limited in the nature of the request or the manner in which such a request could be made. It permits, but does not require, (unlike a request under section 359(2)) a request made in writing. The difference between the two requests is in the consequences of non-compliance. It is only in the latter, that non-compliance will result in the Tribunal being permitted to make a decision without any further involvement of the applicant.
The difference between the requests under subsections (1) and (2) is further evident from the fact that section 359(3) only applies to a written request made under s359(2).
I am also persuaded by the Minister’s submission that section 359(1) ‘authorises the Tribunal’s request for information, and the adverse consequences of a failure to comply with an invitation in writing given under s 359(2) of the Act do not flow to a review applicant’[22] who does not comply with a request under section 359(1).
[22] Minister’s Outline of Submissions filed on 4 November 2024, paragraph 18.
When regard is had to the fact that Part 5 Division 5 is all about providing natural justice to an applicant, the interpretation advanced by the applicant in this case could lead a review applicant to becoming disentitled to a hearing when they do not provide information requested in writing irrespective of how that request is made. Such an interpretation would be inherently unfair to an applicant and is inconsistent with the strict obligation where a request is made under section 359(2). Nor could such an interpretation sit conformably with the High Court reasoning in SZKTI.
The applicant further says that sections 359B and 359C apply according to their terms to both section 359 subsections (1) and (2) in circumstances where sections 359B and 359C do not expressly distinguish between section 359 subsections (1) or (2). As is evident from the excerpts of the statutory provisions set out above, it is correct that sections 359B and 359C simply refer to section 359. However, it is apparent from the provision that those sections relate to an invitation for information, which is language consistent with section 359(2), not a written request under 359(1). The latter refers to ‘getting’ information.
The interpretation now put forward by the applicant is also inconsistent with the observations of the Hight Court in SZKTI at [45] where the court, in considering the differences between section 424 subsections (1) and (2) observed that ‘no adverse consequences flow against the applicant for review if the applicant, or any other person questioned, fails to cooperate or give the information sought.’
Notwithstanding the different context and the fact that the High Court was dealing with a request by telephone rather than in writing, the effect of the decision in SZKTI is that the power in subsections (1) and (2) are fundamentally different, one having serious consequences for non-compliance, the other not.
For each of these reasons, I find that ground 1 is not made out.
Ground 2
By ground 2, the applicant asserts that:
The Tribunal made a jurisdictional error by failing to observe s 359A of the Act.
a.The Tribunal had before it PRISMS records regarding the absence of current enrolment by the Applicant.
b.The records indicated that they had been accessed on 25 October 2018, i.e. after the delegate’s decision but before the purported hearing of 1 November 2018;
c.The records were information within the meaning of s 359A of the Act, as they were material which by their terms undermined the Applicant’s case for the visa by indicating the absence of enrolment as at 25 October 2018: SZBYR v Minister for Immigration [2007] HCA 26 at [17];
d.The Tribunal stated at paragraph 12 of its decision that the applicant had confirmed at the hearing that he was not currently enrolled, supporting the inference that the Tribunal had earlier had regard to the PRISMS records;
e.The PRISMS records were not put to the applicant in accordance with ss 395A or 395AA of the Act;
f.The Tribunal’s failure to observe s 359A of the Act was a jurisdictional error regardless of materiality and, furthermore, there would be a useful result upon remittal of the matter to the Tribunal as the Applicant would have further time to obtain enrolment: Minister for Immigration v Antoon [2023] FCA 717 at [95], [138].
It is common ground that the Tribunal had before it PRISMS records in respect of the applicant showing his enrolment history whilst in Australia. It is also common ground that the information in the PRISMS records which indicated that the applicant was not currently enrolled in a course of study was directly relevant to the applicant’s claim (in circumstances where one of the requirements for his visa was that he was currently enrolled in a course) and that this was a reason why the Tribunal ultimately affirmed the decision not to grant the applicant a visa.
It is acknowledged by the applicant that the applicant himself told the Tribunal that he was not currently enrolled in a course of study at the Tribunal hearing. However, it is submitted for the applicant that the obligation under section 359A had already arisen prior to the Tribunal hearing; that the Tribunal had an obligation to put this to the applicant prior to the hearing and that the failure to do so could not be later cured by the applicant providing that information himself.
In support of this ground, the applicant relies upon the statement by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (‘SZBYR’) at [17] where the court said:
17.… The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case.
It is submitted for the applicant that by the time the hearing was conducted and the information provided by the applicant, the Tribunal had already failed to comply with its obligation to put the PRISMS records to the applicant.
It is further submitted that the failure to comply with its obligations under section 359A was a jurisdictional error irrespective of materiality because it would have provided the applicant with further time to obtain enrolment.
In considering the observations of the court in SZBYR it is important to have regard to the context in which these observations were made. SZBYR involved consideration of whether inconsistencies between the applicant’s evidence at the hearing as compared to the applicant’s statement in their statutory declaration was a reason for refusing their claims. In that case, it was ultimately held that section 424A was not engaged at all as the court found that matters which went to an assessment of credibility was not information within the meaning of section 424A.
It was in this context that the majority made observations about the temporal obligations. SZBYR does not go so far as to require that the Tribunal give notice of information in its possession immediately upon becoming aware of that information. Rather, section 359A requires that the Tribunal not proceed to make a decision about the applicant’s application without first putting information to the applicant which might provide a reason for affirming the decision under review.
It is important to remember that section 359A exists within Part 5 Division 5 of the Act which sets out an exhaustive statement of the natural justice hearing rule, that is the requirement that an applicant be provided with a fair opportunity to present their case. A fair hearing does not require the Tribunal to give the applicant time to remedy deficiencies in their case, deficiencies which are within their knowledge and capacity to remedy.
In this instance, the Tribunal had before it a PRISM record obtained in October 2018, namely after the delegate’s decision but before the Tribunal hearing. It was possible that the applicant had obtained a CoE prior to the hearing scheduled for 1 November 2018. In the invitation to attend a hearing, the applicant was asked to bring a current CoE ‘or any other documents to show that [the applicant was] currently enrolled in a course of study’. The applicant was aware of the issues before the Tribunal and it was within the applicant’s power to obtain a CoE prior to the scheduled hearing.
The applicant provided information at the hearing that he was not enrolled and it was that information which formed the basis of the Tribunal’s decision to affirm the delegate’s decision.
No breach of section 395A is therefore made out.
Had the applicant indicated that he was enrolled in a course of study at the hearing, but not provided documentary evidence of such, the Tribunal would have been required to provide him with the opportunity to do so and at that point it may have become necessary to disclose the PRISMS record which was before it and which indicated that as at 25 October 2018, the applicant appeared not to have been so enrolled.
That is not what happened in this case.
Moreover, for the reasons set out above, I do not find that in conducting the hearing, the Tribunal acted in excess of its jurisdiction, such that any information provided by the applicant at the hearing could not be relied upon to excuse the Tribunal from its obligations under section 359A of the Act.
For these reasons, ground 2 is not made out.
CONCLUSION
As neither ground of review is made out, I therefore order that the applicant’s application be dismissed and the applicant pay the first respondent’s costs.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 9 May 2025
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