Rana v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 869
Federal Circuit and Family Court of Australia
(DIVISION 2)
Rana v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 869
File number: SYG 1240 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 21 October 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the application for the visa – whether the Tribunal erred by failing to provide the applicant with additional time to obtain an offer of enrolment or produce confirmation of that enrolment to the Tribunal – whether the Tribunal was required to consider whether the applicant met any of the alternative criteria set out in cl 500.211 in Schedule 2 of the Migration Regulations 1994 (Cth), whether the Tribunal erred by failing to call the applicant’s wife as a witness at the Tribunal hearing – whether any error in that regard was material – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 65, 361, 363, 476
Migration Regulations 1994 (Cth), cll 500.211 & 500.212 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9
Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of hearing: 16 September 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms R Graycar Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 1240 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD USMAN RANA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
21 OCTOBER 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
Background
The applicant is a citizen of Pakistan (Court Book (“CB”) 2 & 35). He arrived in Australia in Australia in November 2009 as the holder of a student visa (CB 44).
Departmental records indicate that the applicant has held two student visas and a number of associated bridging visas since arriving in Australia and that he has travelled twice (for short periods) since arriving (CB 44).
On 20 September 2016, the applicant applied for a Student (Class TU) (Subclass 500) visa (the “visa”) (CB 1-18). Attached to that application were copies of the applicant’s educational records, overseas student health cover policy certificate, financial documents, PTE Academic Test Taker Score Report and passport (CB 19-35). At the time of his visa application, the applicant was enrolled in a Bachelor of Business course (CB 44).
On 27 January 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 42-47). The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily and that, as such, he did not meet the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 47).
On 13 February 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 48-49).
On 26 February 2018, the Tribunal invited the applicant (through his representative) to attend a hearing before it on 21 March 2018 (CB 57-66). The invitation letter also asked the applicant to provide additional information, as follows (CB 60):
In addition, please provide the following information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate 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 the Migration Regulations 1994, 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 and 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 and stay as a student by referring to Direction No. 69.
We request that you provide the written statement and other evidence to us at least 7 days before the hearing date.
On 20 March 2018, the applicant sent the Tribunal a completed “response to hearing invitation” form via email (CB 67-70). In that response, the applicant answered “yes” to the question “I/we request that the Member takes oral evidence from another person”. The applicant identified that person as his “spouse” and described her evidence and its relevance as follows (CB 69):
As she is my wife and knows of my current situation.
Later that day (also on 20 March 2018), the applicant requested a postponement of his hearing on the basis of medical concerns and provided the Tribunal with a medical certificate (CB 71-72).
On 21 March 2018, the Tribunal agreed to postpone the hearing to 29 March 2018 (CB 73-83). The Tribunal again requested the following additional information (CB 76):
In addition, please provide the following additional information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate 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 the Migration Regulations 1994, 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 and 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 and stay as a student by referring to Direction No. 69.
We request that you provide the written statement and other evidence to us at least 7 days before the hearing date.
On 29 March 2018, the applicant appeared before the Tribunal. His representative did not attend (CB 84-86). At the hearing, the applicant provided additional documents to the Tribunal, in the form of educational records, in support of his application (CB 87-106).
The Tribunal made an oral decision at the hearing (on 29 March 2018) affirming the delegate’s decision to refuse to grant the applicant the visa (CB 110). A written record of that decision was provided to the applicant (via his representative) later that day (CB 110-112) by email (CB 107-109).
On 2 May 2018, the applicant sought judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s decision
The Tribunal’s written statement of decision and reasons is three pages long and spans 15 paragraphs.
The Tribunal began by identifying the visa decision under review and identified the basis upon which the delegate had refused to grant the applicant the visa. The Tribunal also acknowledged that it had initially made an oral decision in the matter at a hearing before it on 29 March 2018 (at [1]-[5]).
The Tribunal then set out the type of visa that the applicant had applied for, the requirements for the grant of that visa and identified that the issue in the present matter was whether the applicant met the enrolment requirements for the grant of the visa (as set out in cl 500.211 in Schedule 2 of the Regulations) (at [6]-[8]).
The Tribunal then detailed the applicant’s evidence at the hearing, as follows:
9.At the hearing the applicant told the Tribunal that he was not enrolled in the course of study. He had applied for the visa in order to undertake a Bachelor of Business at Group Colleges. The applicant’s evidence was that he ceased his study in 2016. He claimed he had not undertaken any study since the visa was refused. The Tribunal finds that the applicant is not currently enrolled in a course of study.
10.Tribunal discussed with the applicant his immigration and study history. He told the Tribunal he arrived in Australia in November 2009. He provided to the Tribunal evidence of completion of previous courses, these included an English language course in 2009, Diploma of Management in 2010 and Certificate III in Automotive Technology in 2012. The applicant confirmed that he had not successfully completed any study since 2012. He had attempted a Bachelor of Commerce through the Rafffles Institute, between 2013 and 2015. The applicant conceded that his academic transcript, submitted to the Department, recorded that he had not successfully passed a number of units of study.
The Tribunal noted that the applicant had claimed that he intended to complete his Bachelor degree in business if granted the visa. However, the applicant did not have any details about any proposed course of study (other than submitting that he had asked an agent to make enquiries for him) (at [11]).
The Tribunal continued:
12.The applicant made submissions that he was really keen to finish his degree and that if he was given some time he could obtain enrolment for the Tribunal. The Tribunal refused to delay making a decision, and grant the applicant further time, because it was considered that the applicant had already had sufficient time to arrange enrolment if he was actually keen to study. The Tribunal received the application for review on 13 February 2017, he has been awaiting review for over 12 months. When the applicant was asked by the Tribunal what he was doing in this time, the applicant claimed nothing and occasionally he worked as an Uber driver. He claimed to have some hard times relating to his visa refusal and in-laws, however there was no further evidence, particularly no medical evidence, to demonstrate that for this reason he was unable to study. With his invitation to attend the Tribunal hearing dated 26 February 2018, the applicant was requested to provide a copy of his current Certificate of Enrolment (COE) or other documents that show he was currently enrolled in a course of study as defined in cl. 500.111 of the regulations, as was required for the grant of a student visa. The applicant acknowledged that he was aware of this request. The applicant was initially scheduled to appear before the Tribunal on 21 March 2018, the hearing was postponed to 29 March 2018 on his application. The applicant also acknowledge at the hearing that he was aware that it was a time of decision criteria that he be enrolled was subject to an offer of enrolment in a course of study. Finally, the applicant’s pattern of study and academic progress since 2012 does not support his claims that he is keen to study and is serious about obtaining his bachelor qualification.
On the basis of the above, the Tribunal was not satisfied that, at the time of its decision, the applicant was enrolled in a course of study and affirmed the delegate’s decision refusing to grant the applicant the visa (at [13]-[15]).
Application to this Court
The application for judicial review filed by the applicant (on 2 May 2018) contains four “grounds of review” as follows (without alteration):
1.The Administrative Appeal Tribunal erred in its decision not considering visa under s. 65 of the Migration Act 1958.
2.The Administrative Appeal Tribunal erred in its decision by not giving enough consideration that the applicant requested to have some time to complete his study.
3.The Administrative Appeal Tribunal denied the applicant procedural fairness by not allowing him to produce COE for the study.
4.The Administrative Appeals Tribunal did not consider that the Applicant to meet any of the alternative criteria in cl.500.211.
In support of his application, the applicant affirmed and filed an affidavit on 2 May 2018 (which annexed a copy of the Tribunal’s decision) and set out some of the applicant’s immigration history.
On 28 May 2018, procedural orders were made by Registrar Cho of this Court giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. On 16 March 2022, Registrar van der Westhuizen of this Court made further procedural orders giving the applicant another opportunity to file written submissions. Unfortunately, no further materials were filed by the applicant.
The materials before this Court thus include the application for judicial review and supporting affidavit filed by the applicant on 2 May 2018, a Court Book numbering 112 pages (marked as Exhibit 1), written submissions and a list of authorities filed on behalf of the Minister on 2 September 2022 and the affidavit of service of Christopher Oates deposed and filed on 7 September 2022 (taken as read and in evidence at the hearing).
The applicant appeared before this Court on 16 September 2022 without legal representation. While the applicant had requested (in his application for judicial review) that an Urdu interpreter be made available, at the hearing of this matter the applicant confirmed that he wished to proceed in English and without the assistance of any interpreter. The Court confirmed with him that he had received a copy of the documents (as outlined above). No issues arose in this regard and the Court is satisfied that the applicant was able to articulate his concerns with the Tribunal’s decision without difficulty.
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include (but are not limited to) the following types of “mistakes”:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 (“Singh”) at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant an applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that his visa was first refused “because of his financials” and that he had “won his case in the MRT”. He then applied again and “they refused on the basis that he was not a genuine student”. The applicant stressed that it “did not make sense” to him that “they assumed he was not genuine because he had only returned to Pakistan twice” or that they believed he did not have any intention to leave Australia. The applicant explained that he had “spent time and money here away from his family” and that he had family issues at the time of the Tribunal’s decision. He stressed that he had explained this “to the case officer at the Tribunal”.
Unfortunately, the applicant’s oral submissions relate to the refusal of his visa on the basis that he was not a genuine temporary entrant. Whilst that was the issue upon which the delegate made its decision, it was not the reason for the Tribunal affirming that decision. As outlined above, the Tribunal affirmed the delegate’s decision on the basis that the applicant was not enrolled in a course of study (as he was required to be pursuant to cl 500.211 in Schedule 2 of the Regulations).
To the extent that the applicant takes issue with the delegate’s decision, the Court notes that it has no jurisdiction to review the delegate’s decision: ss 476(2) and (4) of the Act. Further, any error in the delegate’s decision is “cured” by the Tribunal’s decision: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
Consideration
Grounds of review
Ground 1
Ground 1 provides as follows:
1.The Administrative Appeal Tribunal erred in its decision not considering visa under s. 65 of the Migration Act 1958.
Ground 1 is unclear and lacks particularisation.
To the extent that the applicant claims that the Tribunal failed to consider the application for a visa, this fails on a factual level.
At the time of the Tribunal’s decision, s 65 of the Act provided:
65 Decision to grant or refuse to grant visa
(1)Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i)the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
…
Here, the Tribunal was not satisfied that the applicant met the criteria set out in cl 500.211 in Schedule 2 of the Regulations because the applicant was not enrolled in a course of study.
In circumstances where the Tribunal, standing in the shoes of the Minister, was not satisfied that the criteria prescribed by the Regulations had been satisfied (as set out in s 65(1)(a)(ii) of the Act), the Tribunal was required to “refuse to grant the visa”: s 65(1)(b) of the Act.
On that basis, the Tribunal was correct in affirming the delegate’s decision refusing to grant the applicant the visa.
No error arises in relation to ground 1.
Grounds 2 and 3
Grounds 2 and 3 provide:
2.The Administrative Appeal Tribunal erred in its decision by not giving enough consideration that the applicant requested to have some time to complete his study.
3.The Administrative Appeal Tribunal denied the applicant procedural fairness by not allowing him to produce COE for the study.
Grounds 2 and 3 appear to relate to the Tribunal’s failure to provide the applicant with additional time (presumably to obtain an offer of enrolment or to produce a confirmation of that enrolment to the Tribunal).
Pursuant to s 363(1) of the Act, the Tribunal has a statutory discretion to adjourn a review “from time to time”. At the time of the Tribunal’s decision, s 363(1) of the Act relevantly stated:
363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
(c)subject to section 378, give information to the applicant and to the Secretary; or
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
In Li, the High Court assessed the scope of the exercise of a statutory discretion by a decision-maker as follows (emphasis added):
63.Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.
…
76.As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
In this matter, the Tribunal outlined its reasons for refusing to adjourn the matter as follows:
12.The applicant made submissions that he was really keen to finish his degree and that if he was given some time he could obtain enrolment for the Tribunal. The Tribunal refused to delay making a decision, and grant the applicant further time, because it was considered that the applicant had already had sufficient time to arrange enrolment if he was actually keen to study. The Tribunal received the application for review on 13 February 2017, he has been awaiting review for over 12 months. When the applicant was asked by the Tribunal what he was doing in this time, the applicant claimed nothing and occasionally he worked as an Uber driver. He claimed to have some hard times relating to his visa refusal and in-laws, however there was no further evidence, particularly no medical evidence, to demonstrate that for this reason he was unable to study. With his invitation to attend the Tribunal hearing dated 26 February 2018, the applicant was requested to provide a copy of his current Certificate of Enrolment (COE) or other documents that show he was currently enrolled in a course of study as defined in cl. 500.111 of the regulations, as was required for the grant of a student visa. The applicant acknowledged that he was aware of this request. The applicant was initially scheduled to appear before the Tribunal on 21 March 2018, the hearing was postponed to 29 March 2018 on his application. The applicant also acknowledge at the hearing that he was aware that it was a time of decision criteria that he be enrolled was subject to an offer of enrolment in a course of study. Finally, the applicant’s pattern of study and academic progress since 2012 does not support his claims that he is keen to study and is serious about obtaining his bachelor qualification.
In effect, the Tribunal determined that the applicant had been provided with sufficient time to secure a confirmation of enrolment or an offer of enrolment in an approved course. In particular, the Tribunal noted that:
(a)it had been more than a year since the applicant had filed his application for review with the Tribunal;
(b)the applicant was aware of the requirement that, at the time that the Tribunal made its decision, he needed to be enrolled in an approved course of study;
(c)the applicant was reminded of this requirement when the Tribunal invited him to attend the hearing;
(d)the hearing was postponed by an additional week at the applicant’s request; and
(e)the applicant had a pattern of poor academic progress.
The Court also notes that reasoning of the Full Court of the Federal Court in Singh as follows (emphasis added):
47.This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
In the circumstances of this matter, it cannot be said that the Tribunal’s reasons do not demonstrate an “intelligible justification” for the Tribunal’s refusal to further adjourn the hearing (having already adjourned the hearing from 21 March 2018 to 29 March 2018 at the applicant’s request (CB 75)).
The Court also notes the finding in Li that there is no obligation for a Tribunal to afford an applicant every opportunity to present his or her case:
82.It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”…
The Court considers that this is what the Tribunal did in this matter. It acknowledged that the applicant had claimed that he could obtain enrolment if he was given additional time but determined that that the applicant had already had more than a year within which to meet the enrolment requirements and noted that the applicant himself had confirmed that he was aware that he was required to be enrolled at the time of the Tribunal’s decision.
The Tribunal, in effect, found that “enough was enough” – concluding that the applicant had been given sufficient opportunity to rectify the issue and to obtain an offer of enrolment or confirmation of enrolment but had not to done so. Here, the Tribunal’s decision contains an “evident and intelligible justification” for its refusal to adjourn the matter and grant the applicant yet another opportunity to do so.
No error arises in this regard.
Ground 4
Ground 4 provides:
4.The Administrative Appeals Tribunal did not consider that the Applicant to meet any of the alternative criteria in cl.500.211.
Before considering this ground of review, it is useful to set out the relevant legislative provisions.
At the time of the Tribunal’s decision, the applicant was required to satisfy the primary criteria for the grant of the visa. Relevant to this matter and the ground of review are the following provisions:
500.2—Primary criteria
Note:The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b)if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c)if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;
(d)if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.
Here, the Tribunal found that the applicant did not satisfy cl 500.211(a) in Schedule 2 of the Regulations. That is, the applicant was not enrolled in a course of study at the time of the Tribunal’s decision.
There is nothing in the material before the Tribunal (or this Court) to suggest that the applicant satisfied the requirements of cl 500.211(b), (c) or (d) in Schedule 2 of the Regulations. Nor is there any evidence to suggest that the applicant made any claims to have satisfied any of the alternative criteria.
Further, the Tribunal turned its mind to this question and also found that the applicant had made no claims in that regard, stating as follows (emphasis added):
7.Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
In circumstances where the applicant did not claim to meet the alternate criteria, and where there was no evidence before the Tribunal to suggest that he could meet that alternate criteria, the Tribunal could only assess the application based on the material before it.
No error arises in relation to ground 4.
Otherwise
In written submissions, the Minister (in its capacity as a model litigant) raised a potential error for the Court’s consideration (see paragraphs [25]-[33] in written submissions filed in this Court on 2 September 2022). Specifically, the Minister noted that the applicant had requested that the Tribunal call his wife as a witness at his Tribunal hearing.
As outlined above, the applicant sent the Tribunal a completed “response to hearing invitation” form via email on 20 March 2018 (CB 67-70). In that response, the applicant answered “yes” to the question “I/we request that the Member takes oral evidence from another person”. The applicant identified that person as his “spouse” and described her evidence and its relevance as follows (CB 69):
As she is my wife and knows of my current situation.
The applicant subsequently sought an adjournment of his hearing on the basis of health concerns (CB 71-72).
The Tribunal granted the applicant an adjournment and issued a new hearing invitation letter to the applicant (through his representative) on 21 March 2018 – notifying him that the hearing had been rescheduled to 29 March 2018 (CB 73-83).
There is no evidence before the Court to suggest that the applicant sent any further “response to hearing invitation” form to the Tribunal.
The applicant did, however, attend the rescheduled hearing on 29 March 2018 (CB 84-86). As correctly submitted by the Minister (at paragraph [26] in written submissions filed in this Court on 2 September 2022), the applicant’s wife did not give evidence at the Tribunal hearing and the Tribunal did not record any request by the applicant that she do so.
Section 361 of the Act (relevant at the time of the Tribunal’s decision), provided:
361 Applicant may request Tribunal to call witness and obtain written material
(1)In the notice under section 360A, the Tribunal shall notify the applicant:
(a)that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and
(b) of the effect of subsections (2) and (2A) of this section.
(2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(2A)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:
(a)written evidence from a person or persons named in the notice; or
(b)other written material relating to the issues arising in relation to the decision under review.
(3)If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice but is not required to comply with it.
(4)This section does not apply to the review of a decision covered by subsection 338(4) (certain bridging visa decisions).
In circumstances where the Tribunal is notified by an applicant that it wants the Tribunal to obtain evidence from a person, the Tribunal must have regard to that notice: s 361(3) of the Act. As explained in Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118:
37It is in keeping with the Tribunal’s inquisitorial nature that the Tribunal does not err if it decides that, notwithstanding the applicant wants oral evidence to be obtained from persons named in a notice under s 361(2), it decides not to obtain such evidence, always providing that it acts in conformity with s 361(3) of the Act and has regard to the notice that the applicant has given. In this circumstance, there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant.
38It does not follow from this, however, that the appeal in this case should be upheld. By virtue of s 361(3), the Tribunal is obliged to have regard to any notice given by an applicant under sub-ss 361(2) or (2A) of the Act. This means that the Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. As the respondents’ counsel said, the authorities establish that the invitation to appear before the Tribunal must be “real and meaningful and not just an empty gesture”: NALQ at [30]; SCAR at [37]; and Mazhar at 188 [31]. It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (compare W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 (“W360/01A”) at [2] per Lee and Finkelstein JJ and [30]-[32] per Carr J)), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal. These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”: see s 353(1). The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.
Importantly, the Tribunal in this matter was required to “genuinely apply its mind to the contents of the notice” and “question whether it should take the oral evidence”.
Here, there is no evidence to suggest that the Tribunal gave any consideration to the applicant’s request.
The Minister made two submissions in this regard. The Minister first submitted that “the hearing invitation of 20 March 2018 was arguably superseded by the vacation of that hearing and the setting down of a new hearing” and thus the applicant’s request for his wife to give evidence “was no longer extant”.
The Court disagrees.
The applicant made a request to the Tribunal to have his wife give evidence on his behalf and provided the Tribunal with a mobile number to contact her. The Court does not consider that the postponement of the hearing by one week invalidated the applicant’s request. Nor did it absolve the Tribunal of its obligation to consider such a request.
In the alternative, the Minister submitted that the error was not jurisdictional because any evidence received from the applicant’s wife could not have made a difference to the outcome.
As previously outlined by this Court in Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673 (citing GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (“SZMTA”) and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (“MZAPC”)), an error will only be jurisdictional where it is material or, more simply put, where the error would have realistically deprived the applicant of the opportunity of a successful outcome.
MZAPC confirmed that the “existence or non-existence of a realistic possibility that the decision could have been different” is a “question of fact” and the applicant in a judicial review application “bears the onus of proof” in that regard: MZAPC at [2]-[3].
The question for the Court to consider here is: had the Tribunal properly considered the applicant’s request to have his wife give evidence at the Tribunal hearing, was there a “realistic possibility” that its decision would have been different?
For the reasons that follow, the Court does not consider that, had the Tribunal properly considered the applicant’s request to have his wife give evidence at the Tribunal hearing, there was a “realistic possibility” that its decision would have been different.
There is no guarantee that, had the Tribunal properly considered the applicant’s request, it would have complied with the request and allowed the applicant’s wife to give evidence. Further, even if the Tribunal had complied with the request, there is no evidence that the applicant’s wife could have given to the Tribunal that the applicant himself could not have given.
The issue for the Tribunal to decide in this case was whether, at the time of the Tribunal’s decision, the applicant was enrolled in a course of study. On the applicant’s own evidence, he was not enrolled. No evidence from the applicant’s wife would have altered that central evidence.
The Court does not consider that there is a realistic possibility that the outcome could have been different in this matter. The applicant was required to be enrolled in a course of study. He was not. The applicant’s wife’s evidence would not have altered the Tribunal’s decision and the Tribunal could not have decided differently had it heard from the applicant’s wife.
The Court is satisfied that, while the Tribunal erred in failing to have regard to the applicant’s notice regarding his wife’s evidence (as required by s 361(3) of the Act), that error was not material.
No jurisdictional error arises in this regard.
Conclusion
The application for judicial review filed by the applicant on 2 May 2018 has failed to identify any jurisdictional error on the part of the Tribunal.
This Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 21 October 2022
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