Saeed v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 827
•4 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saeed v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 827
File number(s): MLG 3899 of 2019 Judgment of: JUDGE COULTHARD Date of judgment: 4 September 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether the Tribunal failed to act on the correct principle, correctly applied, in that it wrongly treated “substantial component” and meaning “majority” – whether the decision of the Tribunal is affected by legal unreasonableness, in that the Tribunal unreasonably failed to adjourn the hearing or provide more time to respond to information or put on evidence – whether failure to notify the applicant that he could seek additional time to comment on or respond to information was a denial of procedural fairness – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 359, 359A, 359AA, 360, 366A, 424A, 424AA, 474, 476,
Migration Regulations 1994 (Cth) sch 2, cl 500.213
Cases cited: Chaudhary v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 732
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v Li [2013] HCA 18
MZPAC v Minister or Immigration and Border Protection (2021) 273 CLR 506
NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 95
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
SZTGV v Minister for Immigration and Border Protection & Anor (2015) 229 FCR 90
Thompson v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 776
Zeng v Minister for Immigration and Border Protection [2016] FCA 627
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of last submission/s: 15 August 2024 Date of hearing: 15 August 2024 Place: Brisbane Counsel for the Applicant: Mr Berg Solicitor for the Applicant: Mr Chaudhry Solicitor for the Respondents: Ms Kelly ORDERS
MLG 3899 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD AWAIS SAEED
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
4 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $7467.00.
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 COULTHARD
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of Minister of Home Affairs, as the Minister was then called, (“the delegate”) to refuse to grant the applicant’s application for a Student (Class TU) (subclass 500) visa.
BACKGROUND
Application for a student visa
The applicant is a citizen of Pakistan. On 7 June 2018, the applicant applied for a Student (Temporary) (Class TU) visa (“Student visa”), on the basis of an intended course of study in Australia (Court Book (“CB”) 1-45). The applicant provided with his application a Certificate of Enrolment (“CoE”) for an intended course of study in Australia being a Master of Business Administration. In the application, the applicant stated that he had not undertaken an English language test within the last 24 months but stated that he had successfully completed a substantial component of a course leading to a qualification from the Australian Qualifications Framework at Certificate IV or higher as the holder of a Student visa (conducted in English) in Australia. In support of that statement, the applicant provided a transcript issued on 28 August 2017 from the King’s Own Institute in respect of subjects successfully completed towards the award of the degree, a Master of Arts (TESOL) in Australia. The transcript recorded that the Applicant had successfully completed five subjects and failed one subject (CB 36).
On 7 August 2018, the delegate refused to grant the applicant a Student visa on the basis that the applicant did not satisfy the requirements of cl 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) because the applicant did not satisfy the delegate that he had achieved a level of English language proficiency that met the requirements in the relevant Legislative Instrument being IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student Visa) (“IMMI 18/015”) (CB 50-53).
Application for review in the Administrative Appeals Tribunal
On 25 August 2018, the applicant lodged an Application for Review with the Tribunal (CB 54-55). The application stated that the applicant was represented by a registered Migration Agent (“the applicant’s representative”).
On 28 August 2019, the Tribunal acknowledged receipt of the application for review and advised the applicant’s representative that, should the applicant wish to provide material or written arguments for the Tribunal to consider he should do so as soon as possible (CB 58-59).
By letter dated 27 September 2019, the Tribunal notified the applicant’s representative that the application would be heard on 17 October 2019 and invited the applicant to appear before it to give evidence and present any arguments in relation to the decision under review (“the hearing invitation”) (CB 64-65). Specifically, the Tribunal asked the applicant to provide all documents he intended to rely on, to establish that he meets the criteria for the Student visa. The hearing invitation stated that the applicant should have regard to the delegate’s reasons for decision, and any changes in his circumstances, in providing documents and preparing for the hearing and, requested the applicant to provide, as quickly as possible, evidence that he meets the English language proficiency requirement.
On 27 September 2019, the Tribunal received a written request from the applicant’s representative asking that the hearing be relisted at a later date as he, (the applicant’s representative), was attending another hearing before the Tribunal on that day (CB 60). By letter dated 1 October 2019, the Tribunal refused the request and confirmed that the hearing would proceed on 17 October 2019 (CB 68-69).
The applicant’s representative subsequently (on 14 October 2019) provided to the Tribunal a signed Response to Hearing Invitation MR Division Form confirming the attendance of the applicant at the hearing (CB 72-74). The question as to whether the applicant’s representative would be attending the hearing was not completed.
The applicant attended a hearing before the Tribunal on 17 October 2019. The applicant’s representative was not present at the hearing.
In a decision made on 17 October 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant the Student visa. The Tribunal provided written reasons (CB 82-86).
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
A copy of the Tribunal’s written decision (“the decision”) is in the Court Book (CB 82-86). A transcript of the hearing is annexed to an Affidavit of the applicant’s Solicitor affirmed on 18 April 2024 and filed in these proceedings.
In its decision, the Tribunal stated that during the course of the applicant's oral testimony it became evident that the enrolment requirement was relevant. The Tribunal further states that it explained to the applicant that this may be a determinative issue and, that the applicant confirmed to the Tribunal that he understood this (decision at [7]).
The Tribunal concluded that the applicant was not at the time of its decision (that is, on 17 October 2019) presently enrolled in a course of study as required by clause 500.112(a) of Schedule 2 to the Regulations (“the enrolment finding”) (decision at [11]).
In making the enrolment finding, the Tribunal stated that the applicant told the Tribunal that he was most recently enrolled in a Master of Business Administration degree but that he had “voluntarily stopped attending because he was unsure of his visa status and after being advised by others” (decision at [11]). The Tribunal noted that the Applicant’s testimony was that he remained “ready to enrol” (decision at [11]). The Tribunal observed that to “avoid any doubt” the applicant did not seek an adjournment of the hearing to become enrolled at any point (decision at [12]).
The Tribunal concluded that it was not satisfied that, at the time of its decision, that the applicant was enrolled in a course of study as required by cl 500.211 of the Regulations (decision at [13]).
Whilst the enrolment finding on its own would be determinative of the applicant’s entitlement to the Student visa, the Tribunal went on to consider whether the applicant met the English language requirement in cl 500.213 of Schedule 2 to the Regulations as specified in IMMI 18/105. The Tribunal noted that in this regard the applicant provided at the hearing an updated transcript from the King’s Own Institute in respect of the subjects he had completed towards the degree of a Master of Arts (TESOL) (“updated transcript”) (decision at [16]). The updated transcript was issued on 12 April 2018. By administrative oversight, the updated transcript was omitted from the Court Book. It was annexed to an Affidavit of Bethany McNamara affirmed on 29 April 2024 and filed on behalf of the first respondent in these proceedings. The updated transcript recorded that the applicant had successfully completed seven subjects and failed five subjects. The Tribunal considered the updated transcript and, referring to the number of passes and fails, concluded that there “was nothing to confirm that this was a majority completion of the course” (decision at [16]). The Tribunal concluded that it was not satisfied that the applicant met cl 500.213 of the Regulations (decision at [17]).
Having made those findings, the Tribunal affirmed the delegate’s decision not to grant the applicant the Student visa (decision at [19)]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Migration Act 1958 (Cth)
(“the Act”) by an application filed on 11 November 2019. On 2 April 2024 procedural orders were made by this Court that the applicant file and serve on or before 16 April 2024 written submissions; any amended application with proper particulars of the grounds of the application; and any additional evidence on which the applicant seeks to rely. Notwithstanding that order, the applicant filed an amended application on 14 August 2024 being the day before the hearing. The amended application added a ground three to the grounds of review.
The grounds of review set out in the amended application are (without alteration):
Ground One
The Tribunal failed to act on correct principle, correctly applied, in that it wrongly treated “substantial component” and meaning “majority”.
Ground Two
The decision of the Tribunal is affected by legal unreasonableness, in that the Tribunal unreasonably failed to alter the time of the oral hearing.
Ground Three
At the hearing the Tribunal introduced new information orally. However, the Tribunal failed to advise the Applicant could seek an additional time to comment or respond to that information and was in breach of procedural fairness.
In support of the application, the applicant filed three Affidavits. The first is an Affidavit affirmed by the applicant on 8 November 2019 which annexed a copy of the delegate’s decision and a copy of the Tribunal’s decision. Each of these decisions are included in the Court Book. The second is an Affidavit affirmed by the applicant’s solicitor on 18 April 2024 which annexed the transcript of the hearing before the Tribunal and an IELTS Test Report for the applicant dated 29 October 2019. The third is an Affidavit affirmed by the applicant’s Solicitor on 22 April 2024 which annexed a screenshot from ‘LEGENDcom’, the Department’s electronic database of migration and citizenship legislation and policy documents with respect to “Successful completion of a substantial component of a course in Australia’. The first respondent objected to the IELTS Test Report being admitted into evidence on the basis of relevance given that it postdates the Tribunal’s decision. Counsel for the applicant conceded that objection.
The applicant and first respondent each filed an outline of written submissions. The applicant filed further written submissions on 14 August 2024 to address ground three being, the additional ground of review now relied upon by the applicant.
CONSIDERATION
For the applicant to be successful he must satisfy the Court that the Tribunal’s decision is affected by material jurisdictional error: (see; ss 474 and 476 of the Migration Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; MZPAC v Minister or Immigration and Border Protection (2021) 273 CLR 506 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [13] - [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ (“LPDT”).
Ground 1: whether the Tribunal failed to act on correct principle, correctly applied, in that it wrongly treated substantial component and meaning “majority”
Although inelegantly expressed, ground one correctly understood, is that in respect of the Master of Arts degree, the Tribunal erred in treating ‘substantial component’ of a course in
s 6(2)(d)(ii) of IMMI 18/105 as meaning ‘a majority completion’ of a course.
In making this submission, the applicant fixes upon the Tribunal’s conclusion in respect of the updated transcript that, there “was nothing to confirm that this was a majority completion of the course” (decision at [16]).
IMMI 18/105 provides that subclause 500.213(1) of Schedule 2 of the Regulations (which sets out the requirement with respect to specified English language tests) does not, relevantly, apply to:
(d) an applicant, who, in the 2 years before applying for a Subclass 500 (Student) visa, has successfully completed:
(i) the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia and in English; or
(ii) a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher that was conducted in Australia and in English, while the applicant was holding a student visa; or
The updated transcript demonstrated that in the two years prior to applying for the Student visa the applicant had successfully completed seven subjects towards a Master of Arts (TESOL) degree at the King’s Own Institute. The first respondent did not submit that the degree would not lead to the relevant qualification, that it was not conducted in English in Australia, nor undertaken whilst the applicant was holding a Student visa.
The updated transcript did not provide any information as to how many subjects were required to complete the degree, the individual weighting of the subjects or anything else from which a qualitative assessment could be made about the subjects completed relevant to the assessment as to substantial completion. The only other evidence before the Tribunal was the applicant’s statement that he had completed 80% of course (Transcript p4. 37-47; p5. 1-18). The Tribunal’s decision does not refer to that statement. Counsel for the applicant said he did not make any submission about that statement.
As the first respondent correctly submits, the expression ‘substantial component’ (of a course) is not defined: (the first respondent’s submissions (“FRS”) at [19]; Chaudhary v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 732 at [55] (“Chaudhary”)).
The applicant submitted that there is no authority that a substantial component of a course is satisfied by no less than a majority of that course (applicant’s further written submissions (“AS”) at [4]). The applicant submitted that what constitutes a substantial component should be given a purposive interpretation and that the purpose of IMMI 18/105 is to ensure an applicant has sufficient English language capability (AS at [5]). That submission is not particularly helpful in that it does not explain the purpose for which that (sufficient) capability is to be required.
In oral submissions, Counsel for the applicant took the Court to the extract from LEGENDcom in which Officers are instructed that they must not use ‘fixed mathematical formulas’ to determine what equates to a ‘substantial component’ of a course. That instruction is not surprising. Several factors would be relevant to determining whether a person had successfully completed a substantial component of a course including, but not limited to, the percentage of the number of subjects of the overall course that had been completed.
To consider whether a person had successfully completed a majority of the subjects required to complete a course would be but one factor in determining the question of substantial component. It might, in some cases, be a determinative factor. Having regard to the percentage of the course completed (together with the short length of time the applicant had been studying) in Chaudhary at [56], was said not to involve error in the approach taken to assessing substantial component.
The issue here is whether the Tribunal in stating that there ‘was nothing to confirm that this was a majority completion of the course’ can be said to have mistaken the correct approach by thereby precluding itself from having regard to other potentially relevant factors. In other words, did the Tribunal thereby demonstrate that it considered the correct approach was to simply determine whether the applicant had completed more than 50% of the course.
The first respondent submitted that the Tribunal did not fall into error because the Tribunal could not be said to have attached any rigidity to the term ‘substantial’ by instead referring to the word ‘majority’ when read in context, including by annexing IMMI 18/105 to its decision. It was submitted that this did not reveal an intention by the Tribunal to denote a rigid requirement that 50% of the course had to be passed to satisfy substantial component (FRS at [19]).
The Court is of the view that the Tribunal did misconceive the approach it was required to take in determining substantial component. It is clear from its decision (at [16]) that the Tribunal considered that if the applicant had passed more than 50% of the course this would have satisfied the requirement of substantial component. This might have been the case but was not necessarily so. Other factors would need to be considered and evaluated in making that determination. Accordingly, the Tribunal fell into jurisdictional error.
The question then is whether this is a material error. This requires the Court to be satisfied that the decision in fact made could, not would, realistically have been different had there been no error. Realistically is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable: (see; LPDT at [14]).
The applicant submitted that seven passes could satisfy the requirement of substantial component (AS at [5]). That is true but the Tribunal could not have come to a conclusion as to successful completion of a substantial component of the course without more than the updated transcript. On the evidence before it, the Tribunal was simply not, at the time of its decision, in a position to make the required determination according to law. Accordingly, the error was not material.
That does not, however, dispose of the matter with respect to the English language requirement. This is because with respect to ground two, the applicant submitted that the Tribunal acted unreasonably in failing to give him an opportunity to put on further evidence regarding this requirement. Given that opportunity, it was submitted that the Tribunal could have realistically come to another conclusion on the correct approach. This is addressed below in ground two.
Ground 2: Whether the decision of the Tribunal is affected by legal unreasonableness, in that the Tribunal unreasonably refused to alter the time of the oral hearing
As set out in paragraph [7] above, the applicant’s representative made a written request on 27 September 2019 (“the September 2019 request”) that the hearing be relisted at a later date as he (the applicant’s representative) was attending another hearing before the Tribunal on that day (CB 60). By letter dated 1 October 2019, the Tribunal refused the request and confirmed that the hearing would proceed on 17 October 2019 (CB 68 - 69). No reasons were given for refusing the request.
Although ground two is expressed to be limited to the September 2019 request, the applicant’s written submissions (including the further written submissions) did not make any submissions as to why the refusal of this request was legally unreasonable. Instead, the written submissions were about whether the Tribunal had acted unreasonably in failing to deal with what, it was submitted, should have been understood by the Tribunal as requests by the applicant during the hearing to be given time to put on evidence about the English language requirement and the enrolment requirement (AS 8 - 22).
Nevertheless, at the hearing in this Court, Counsel for the applicant made submissions as to why, in refusing the September 2019 request, the Tribunal acted unreasonably.
Accordingly, the Court has dealt with both ground two as set out in the amended application and as dealt with in the applicant’s written submissions with respect to the submission as to time to provide additional evidence about the English language requirement and the enrolment requirement. The first respondent dealt with each of the submissions as to adjournment in written submissions and orally.
The applicant’s submissions in respect of requests for time to put on evidence to satisfy the English language requirement and enrolment requirement were premised on the ground of legal unreasonableness in the exercise of the discretion to adjourn.
The Tribunal has a discretion pursuant to s 363(1)(b) of the Act to adjourn the review from time to time. A statutory discretion must be exercised reasonably: (see; Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 (“Li”) at 348 [22] per French CJ; at 362 [63] per Hayne, Kiefel and Bell JJ, 370-371 [88]-[92], per Gageler J).
The task of the Court is to ask whether the exercise of power by the decision maker was beyond power because it was legally unreasonable: (see; Li at 351-352 [30] per French CJ, 378-380 [114]-[124] per Gageler J). This assessment is made having regard to the scope, purpose and objects of the statutory power: (see; Li at 363-364 [67] per Hayne, Kiefel and Bell JJ, 370-371 [90], 376 [109] per Gageler J).
The concern is with ‘whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and the law: (see; Li at 375 [105] per Gageler J). Further, as was explained by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [84] legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence, that is, the assessment depends on the application of the relevant principles to the particular factual circumstances of the case.
In this case, the scope and purpose of the power to adjourn is connected to the purpose of s 360(1) of the Act which requires the Tribunal to invite the applicant to appear at a hearing to present evidence and arguments: (see; Li at 366 [74] per Hayne, Kiefel and Bell J). That invitation must be meaningful in the sense that it must provide the applicant with a real chance to present their case: (see; Li at 362 [61] per Hayne, Kiefel and Bell JJ).
The September 2019 request and each of the asserted requests for time to put on further evidence are considered having regard to the above principles and statutory purpose.
The September 2019 request to adjourn the hearing
The applicant’s oral submission was that in making the September 2019 request on the basis of the unavailability of the applicant’s representative the clear inference was that the applicant would be prejudiced were he not to have the assistance of his representative at the hearing before the Tribunal. It is difficult to draw that inference from the wording of the request. The request simply states that it is made because the applicant’s representative will be attending a hearing in another matter in the Tribunal on that day.
As the first respondent submitted, the proceedings had been on foot for more than a year and the applicant had been given an opportunity to submit any evidence in support of his application and with the benefit of advice and assistance from his representative (FRS at [24]).
In oral submissions, the applicant’s counsel referred the Court to Thompson v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 776 (“Thompson”) in support of a submission that because the Tribunal’s refusal to adjourn was not accompanied by reasons, there was no evident or intelligible basis for refusing the adjournment. The authority does not support that submission. In Thompson at [53] – [61] per Halley J, the Court was concerned with the adequacy of the Tribunal’s reasons in making a substantive decision in weighing up relevant considerations without demonstrating that it did weigh up the various considerations.
Whilst the Tribunal did not give any reason for refusing the request, it cannot be said that the refusal was so unreasonable as to be lacking in an evident or intelligible justification having regard to the factors referred to by the first respondent (FRS at [24] and taking into account
s 366A of the Act with respect to representation in the Tribunal. It was not outside the range of possible acceptable outcomes having regard to the facts as they were at the time of the request.
An adjournment to meet the English language requirement
The applicant submitted that he sought an adjournment during the hearing (AS 9 – 14) so that he could provide evidence to the Tribunal about his IELTS score and that the Tribunal’s failure to grant that request was unreasonable or plainly unjust (AS [15]).
The applicant relied upon the following exchange between the Tribunal member and himself as the basis for the request for an adjournment (Transcript p4. 1-19):
MEMBER: I can’t see any evidence of an IELTS score on the department file.
MR SAEED: I have with me – not in a hard copy, but I can provide in my –
MEMBER: So where’s your solicitor today?
MR SAEED: He has hearing with other clients, so we have applied for a delay in the – in this hearing. Like, it was denied, so he’s visited the other clients.
MEMBER: But he’s here today?
MR SAEED: Yes.
MEMBER: Have you seen him here today?
MR SAEED: Yes.
The applicant submitted that this demonstrates that he was frustrated in his attempt to give evidence of his IELTS score because of the lack of representation by his Solicitor and the denial of what should have been understood by the Tribunal as a request for an adjournment to give that evidence (AS [10] - [11]). It was submitted that a clear implication from the above exchange in the context of the earlier request to adjourn the hearing is that ‘a short adjournment would provide the evidence’ (AS at [12]).
The first respondent submitted that this exchange should not be understood as a request to adjourn to provide evidence in support of the English language requirement given that the applicant could not be understood to be referring to an IELTS that could have satisfied the requirements of IMMI 18/105 (FRS at [25]).
The Court agrees that, from the above exchange, it could not be understood that the applicant was asking for time in which to put on evidence about an IELTS score that would satisfy the requirements of IMMI 18/105. In his visa application the applicant said that he had not completed an English language test within the last twenty-four months (CB 10). The discussion with the Member could only have been about a previous IELTS score. It follows that the IELTS test the applicant is referring to in his exchange with the Member is not one which could satisfy the English language requirement. This is also evident from the exchange between the Member and the applicant immediately preceding the above extracted exchange (Transcript p3. 7-20):
MEMBER: What steps have you taken to read the English language requirement?
MR SAEED: English requirements? I had – I don’t think I have any issue with the English requirement.
MEMBER: Oday. When did you complete IELTS?
MR SAEED: It was before coming to Australia when I applied for the visa.
MEMBER: Okay. Did you provide your IELTS to the department?
MR SAEED: Yes, sir.
The applicant’s Counsel enlarged on the submission as to further evidence in his oral submissions. It was submitted that from the exchange relied upon (at Transcript p4. 1-19) this Court cannot exclude that the applicant’s Solicitor could have otherwise assisted the Tribunal in respect of the applicant meeting the English language requirement. It is realistically possible that the applicant’s Solicitor could have assisted the Tribunal by providing other evidence concerning whether, for example, the applicant had successfully completed a substantial component of the course with the King’s Own Institute to satisfy the English language requirement. However, the question is, whether in failing to give the applicant time to provide that evidence, the Tribunal acted in a way which was legally unreasonable.
The Tribunal is under no obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence presented: (see; Li at [82] per Hayne, Kiefel and Bell JJ). However, a failure to adjourn to allow a visa criterion to be met, can, in some circumstances, be so unreasonable as to constitute a failure to review:
(see; Li at [101] per Gageler J). This is not such a case when regard is had to the fact that the Tribunal had put the applicant on notice in the hearing invitation that he should provide evidence that he meets the English language requirement. Further, the applicant was not articulating that he had the evidence he sought to provide other than the previous IELTS test.
Additional time to respond to information about enrolment in a course of study
The applicant’s second submission with respect to a request for an adjournment made during the hearing is that the Tribunal acted unreasonably in not giving him additional time to respond to information put to him by the Tribunal regarding the enrolment requirement.
The applicant relies upon the following exchange between the Tribunal member and himself as the basis for this submission (Transcript p4. 21-29):
MEMBER: Okay. Is there anything else you wish to say?
MR SAEED: Regarding the initial (indistinct) to the government?
MEMBER: In relation to the English language or the enrolment requirement?
MR SAEED: Yes, for as I told you about that (indistinct) government and I did the enrol and I have also informed my student agent, and he has made all the arrangement for that.
The applicant’s submission is that the clear implication from this exchange is that the applicant was seeking additional time to respond to the issue of the enrolment requirement (AS 18).
This was not the only exchange between the applicant and the member about whether the applicant was currently enrolled. The other earlier exchange was (Transcript p3. 26-34):
MEMBER: Okay, so look, is there anything else you wish to say in relation to the enrolment requirement?
MR SAEED: For the enrolment? I’m ready to enrol in the course, but I have some problems with the visa – the visa refusal. So I was waiting for some substantial – so I got that. So afterwards, I’m hoping that I’m ready to apply in a course, and I (indistinct) my student agent, and he has read all the arrangement from that.
The applicant’s submission is that this is a case in which the Tribunal should have considered that the applicant reasonably needed additional time to become enrolled (AS at [20]). In oral submissions, the applicant’s Counsel submitted that the Tribunal acted unreasonably in not considering this to be the case and referred the Court to Li.
As stated above, the Tribunal has no general duty to adjourn a review because a review applicant believes that the passage of time will allow a visa criterion to be met: (see; Li at 374 [101] per Gageler) or afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence: (see; Li at 368 [82] per Hayne, Kiefel and Bell JJ). The question is whether, in respect of the exchanges regarding the enrolment requirement, this is a case in which a failure to adjourn to allow a visa criterion to be met is so unreasonable as to constitute a failure to review: (see; Li at 374 [101] per Gageler J).
Here, there is no clear articulation of the evidence that the applicant was or, would shortly, be in a position to provide regarding his enrolment in a course. The applicant’s evidence was that he was not enrolled in a course at the time of the hearing. The applicant’s statements to the Tribunal varied from being ‘ready to enrol in the course’; ‘I’m hoping that I’m ready to apply in a course’; ‘I did the enrol and I have also informed my student agent, and he has made all the arrangement for that’
In those circumstances, this is not a case in which the Tribunal in not providing the applicant with more time to allow a visa criterion to be met acted so unreasonably so as to constitute a failure to review.
Before moving to ground three, it should be noted that whilst the applicant’s oral submissions proceeded on the ground of legal unreasonableness, the written submissions referred to the procedural fairness obligation in ss 359AA (1)(b)(iv) of the Act (AS para [19] footnote 5). As compliance with ss 359AA of the Act raises the question of the interaction between ss 359AA and 359A of the Act, it is more logical to deal with the submission on ss 359AA(1)(b)(iv) of the Act in dealing with ground three.
Ground 3 At the hearing the Tribunal introduced new information orally however failed to advise that the applicant could seek additional time to comment on or respond to that information and was in breach of procedural fairness
By ground three, the applicant squarely raises the procedural fairness duties under s. 359AA of the Act. Relevantly to the applicant’s submissions, s. 359AA(1) of the Act provides:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so – the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and …
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The first respondent submitted (in response to the applicant’s submission with respect to ground two) that, the Tribunal is exempted from the procedural fairness duties in s. 359AA(1)(iv) of the Act because:
(a)the Tribunal did not give particulars to the applicant of information about his enrolment as it was the applicant’s own evidence that he was not currently enrolled, that led to the exchanges between the Tribunal and the applicant about the status of his enrolment and because the Tribunal’s reasoning was solely based on its appraisal of the applicant’s oral evidence that he was not presently enrolled in a course of study (FRS at [30]); and
(b)even if it were information, it was information given by the applicant and so the Tribunal is exempted from the obligation in s 359A of the Act by the operation of s. 359A(4)(b) of the Act, that is, information the applicant gave for the purposes of the review (FRS at [30]).
In oral submissions, the Solicitor for the first respondent stated that in that event, it follows that no jurisdictional error can arise because of any non-compliance by the Tribunal with the procedural fairness duties in s 359AA of the Act. The first respondent’s oral submission is understood to extend to the procedural fairness obligation in s 359AA(1)(iii) of the Act which was raised by the applicant in respect of ground three.
As to the complementary nature of ss 359A and 359AA of the Act, the first respondent took the Court to the decision of the Full Court of the Federal Court in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 (“SZMCD”) dealing with the analogues of ss 359AA and 359A being ss 424AA and 424A of the Act. It is clear from that decision that compliance with s 359A of the Act is obligatory. Non-compliance with its provisions will very often amount to jurisdictional error. Section 359AA of the Act is discretionary. Non-compliance with its provisions will result in the Tribunal not having the benefit of s 359A(3) of the Act in which event, the Tribunal must strictly comply with s 359A of the Act: (see; SZMCD at [73]-[80] per Tracey and Foster JJ). If there is no obligation to comply with s 359A of the Act then the Tribunal choosing to ‘go down the path’ of s 359AA of the Act, will not constitute jurisdictional error if it does not comply with the obligations set out: (see; SZMCD at [2] per Moore J; at [74] and [88] - [94] per Tracey and Foster JJ).
The issue then is whether the information about the status of the applicant’s enrolment fell within the exclusion in ss 359A(4)(b) of the Act. This requires a consideration of whether the applicant not being currently enrolled in a course was information for the purposes of
ss 359A(4)(b) of the Act and if so, whether the applicant gave that information to the Tribunal for the purpose of the review.
To come to a conclusion about these matters, it is helpful to set out all of the passages in the transcript of the hearing at which the enrolment information was discussed. The applicant’s submissions set out only part of the exchange (AS at [24]).
The exchanges were as follows:
(Transcript p2.14 – 45; p3.1 – 5)
MEMBER: Okay. So you are not presently enrolled in a Master of Business Administration
MR SAEED: I was, but not at the moment.
MEMBER: Okay. Absolutely.
MR SAEED: Afterwards, they cancelled me.
MEMBER: So what I’m going to advise you sir, now, is that the enrolment requirements that exist in the regulations required that at the time of the Tribunal’s decision, you are enrolled in a course of study. Arising from your evidence, I’m now informing you that the determinative issue for this Tribunal is the enrolment requirement. Now, the enrolment requirement requires, as I said at the time of decision, that you are enrolled in a course of study, and your evidence is that you’re not enrolled in a course of study. Do you understand what I’ve said to you?
MR SAEED: Yes.
MEMBER: Okay. Sir, how long has it been since you were last enrolled in a course?
MR SAEED: I was enrolled when my last student visa was refused. And I kept going, studying, and afterwards when I approved for it – so at that time, they cancelled my COE.
MEMBER: Okay. So it’s 7 August 2018 you were ---
MR SAEED: And I was ---
MEMBER: You were refused. So when do you think you were last enrolled in a course?
MR SAEED: I think in the – at the start of this year.
MEMBER: That start of 2019?
MR Saeed: Yes.
(Transcript 3.25 – 33)
MEMBER: Okay, so look, is there anything else you wish to say in relation to the enrolment requirement?
MR SAEED: For the enrolment? I’m ready to enrol in the course, but I have some problems with the visa – the visa refusal. So I was waiting for some substantial – so I got that. So afterwards, I’m hoping that I’m ready to apply in a course, and I (indistinct) my student agent, and he has read all the arrangement from that.
(Transcript p4.21 – 30)
MEMBER: Okay. Is there anything else you wish to say?
MR SAEED: Regarding the initial (instinct) to the government?
MEMBER: In relation to the English language or the enrolment requirement?
MR SAEED: Yes, for as I told you about that (indistinct) government and I did the enrol and I have also informed my student agent, and he has made all the arrangement for that.
The meaning of information was considered by a Full Court of the Federal Court in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 95 (“NBKT”). Young J (Gyles and Stone JJ concurring) referring to the decision of Allsop J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 held that information (in s. 424A(1) of the Act) is knowledge communicated concerning some particular fact, subject or event. In this context the word has been taken as referring to knowledge or relevant facts or circumstances communicated to or received by the Tribunal at [29]. This was in contrast to the Tribunal’s subjective appraisals, thought processes or determinations at [30].
In oral submissions, Counsel for the applicant submitted that the information as to the current status of the applicant’s enrolment was not “information” of the type captured by ss 395A(4) of the Act. Counsel submitted that this was because the answers given by the applicant to the Tribunal in response to its questions were not direct or simple but were internally contradictory, and ambiguous. Counsel described the status of the applicant’s enrolment as ‘dynamic’ and ‘fluid’. In support of this assessment, the applicant’s Counsel took the Court to a discussion in NBKT of the decision of Kenny J at [58], in SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 in which her Honour described the appellant as having given direct answers to specific questions by the Tribunal. The Court does not take it that her Honour was there saying anything other than where an applicant affirms a specific fact before the Tribunal that information will be covered and that this is so, even where the Tribunal referred to other material in discussing some aspects of the information with the appellant: (see; NBKT at [58]).
The Court is satisfied, having regard to the exchanges between the Tribunal and the applicant concerning his enrolment (set out above), that the fact of whether the applicant was currently enrolled in a course is information within the meaning of ss 359A and 359AA of the Act.
The next question is whether this was information that the applicant “gave” to the Tribunal for the purposes of the review.
Whether information is given by the application within the meaning s 359A(4) of the Act is a question of fact: (see; Zeng v Minister for Immigration and Border Protection [2016] FCA 627 at [7] per Pagone J (“Zeng”) citing SZTGV v Minister for Immigration and Border Protection & Anor (2015) 229 FCR 90 at [24] (“SZTGV”)). It is clear from the authorities that for information to be “given” by an applicant it is not necessary to distinguish between information volunteered by the applicant; given during evidence in chief; elicited in response to questions from the Tribunal; or, whether it is information that might also have been available to the Tribunal from other sources: (see; e.g. the discussion of the authorities NBKT at [48] – [58] and in Zeng at [7]). What is important, is an assessment of the nature of the information, of the questions asked by the Tribunal and the applicant’s answers: (see; SZTGV at [24]).
Having regard to the exchange between the Tribunal and the applicant and the relevant authorities, the Court is satisfied that the applicant gave the information that he was not currently enrolled to the Tribunal. The Court is satisfied that the applicant gave a direct answer to the question of whether he was currently enrolled in a course. The Court is satisfied that the exchanges which then followed, whilst attended with some ambiguity, does not alter the fact that the applicant was not presently enrolled in a course was information given by him to the Tribunal.
Accordingly, s 359A of the Act is not engaged. It follows from what is said in SZMCD about the interaction between ss 359A and 359AA of the Act, that the Tribunal did not fall into jurisdictional error by not complying with the procedural duties in either ss 359AA (b)(iii) or (iv) of the Act, because it was not required to do so.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 4 September 2024
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