Shah v Minister for Immigration
[2014] FCCA 624
•31 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 624 |
| Catchwords: MIGRATION – Review by Migration Review Tribunal of decision refusing applicant Student (Temporary) (Class TU) visa – circumstances in which Migration Review Tribunal may be required to make inquiries in order to properly exercise its jurisdiction to review a decision – whether Migration Review Tribunal, having obtained information that disclosed a state of affairs existing at a time substantially before the date on which it made the decision, was required to make inquiries at or near the date on which it made the decision to determine what that state of affairs was at or near the date on which it made its decision on review. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5(2)(g) Migration Act 1958 (Cth), ss.348, 359, 359A, 359C, 360, 360A, 363A, 379A, 414, 424 Migration Regulations 1994 (Cth), cls.572.223. 572.231 |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 |
| Applicant: | KUSHAL NITINKUMAR SHAH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1953 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 6 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The decision of the second respondent made on 23 July 2013 affirming the decision of the delegate of the first respondent made on 1 February 2011 refusing to grant the applicant a Student (Temporary) (Class TU) visa is quashed.
The second respondent determine according to law the application made to it for review of the decision of the delegate of the first respondent made on 1 February 2011 refusing to grant the applicant a Student (Temporary) (Class TU) visa.
The first respondent pay the applicant’s costs of these proceedings.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1953 of 2013
| KUSHAL NITINKUMAR SHAH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review arises out of the decision of the second respondent (MRT) to affirm the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa (Student visa). The applicant claims that in affirming the delegate’s decision, the MRT made a number of jurisdictional errors. I will examine the applicant’s claims after I set out the background to the MRT’s decision, and the MRT’s reasons for affirming the delegate’s decision.
Facts
On 8 November 2010 the applicant applied for a Student visa. To be granted a Student visa, the applicant had to satisfy the criteria specified under subclass 572 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). One criterion required the applicant to demonstrate that he had the financial capacity to undertake the course.[1] Another required the applicant to be enrolled in a course which had been specified by Gazette Notice.[2] The applicant had to satisfy both criteria at the time the decision-maker decided whether to grant the Student visa.
[1] Migration Regulations 1994 (Cth) cl.572.223
[2] Migration Regulations 1994 (Cth) cl.572.231
On 1 February 2011 the delegate refused to grant the Student visa because the applicant failed to satisfy the delegate that the applicant had access to funds necessary to support himself in Australia. On 14 February 2011 the applicant filed an application with the MRT for a review of the delegate’s decision.
The application form the applicant completed and lodged with the MRT contained a section headed “Section F Where do you want us to send correspondence about your application?” which contained the following information:
You may choose to have all correspondence sent to yourself or you may nominate a person known as an authorised recipient to receive correspondence on your behalf in connection with the review.
If you nominate an authorised recipient, the Tribunal will send all correspondence to your authorised recipient. The Tribunal only sends copies of correspondence to applicants who have nominated an authorised recipient where the applicant is in immigration detention.
If you have a representative and you do not nominate your representative as your authorised recipient, your representative will not receive any correspondence from the Tribunal.
If you do not nominate an authorised recipient, all correspondence on your case will be sent to you.
The form then contained the following text in bold:
Please send all correspondence in connection with this review: (tick one box only)
after which there are one of three boxes to be ticked and completed.
Next to one of the boxes is the text (emphasis in original):
to me at my address
(If you tick this box, all correspondence will be sent only to the address you provide below).
The applicant ticked this box and wrote the address “8/2-6 Priddle St Westmead NSW 2145”.
On 6 March 2013, two years after the applicant lodged his application for review, the MRT accessed a database that recorded the courses for which international students were or had been enrolled. The database, which is known as “Provider Registration and International Student Management System” (PRISMS), revealed that the applicant had enrolled for and had completed the following courses:
4460F082 Advanced Diploma of Management [072054A]
06/08/2012
02/02/2013
Finished
44609021 Diploma of Management [072055M]
01/08/2011
28/07/2012
Finished
44633839 Certificate IV in Frontline Management [072056K]
10/01/2011
09/07/2011
Finished
44607923 Certificate IV in Frontline Management [072056K]
10/01/2011
09/07/2011
Cancelled
05/11/2010 Variation reason: Change to CoE/Student Details
2BF39788 Diploma of Information Technology (Software Development) [060546B]
17/09/10
Finished
10/11/2008
On 14 March 2013, after the MRT had accessed PRISMS, the applicant applied to Australis Institute of Business and Technology to study for a Diploma in Business. The applicant enrolled in that course by 18 March 2013 and he completed it on 15 September 2013.
On 13 June 2013, over three months after it had accessed PRISMS, the MRT sent a letter to the applicant at the address the applicant specified in his application, namely, 8/2-6 Priddle Street Westmead. This letter, which appears to have been written with s.359A of the Migration Act 1958 (Cth) (Act) in mind, stated:
Electronic (PRISMS) records before the Tribunal indicate that you are not currently enrolled in a course of study. The Tribunal notes that you provided the Department of Immigration and Citizenship with a number of Confirmation of Enrolment (CoE) documents. These records indicate:
·You are not currently enrolled in any course;
·You have “finished” CoE it seems an Advanced Diploma of Management course from 6 August 2012 to 2 February 2013; a Diploma of Management course from 1 August 2011 to 28 July 2012; a Certificate IV in Frontline Management from 10 January 2011 to 9 July 2011; and a Diploma of Information technology from 10 November 2008 to 17 September 2010.
Given that by 18 March 2013 the applicant was enrolled for a Diploma in Business, the MRT’s statement “[y]ou are not currently enrolled in any course” was incorrect. Also incorrect was the statement that the “[e]lectronic (PRISMS) records before the Tribunal indicate that you are not currently enrolled in a course of study”. The only PRISMS record that was before the MRT on 13 June 2013 recorded, and only recorded, that the applicant was not enrolled in any course as at 6 March 2013.
The applicant did not receive the MRT’s letter; it was returned uncollected. At the time the MRT sent the letter, the applicant did not reside at the address he specified in the application he filed with the MRT. The MRT proceeded to determine the application for review, which it did by making a decision on 23 July 2013.
In its reasons for decision, the MRT noted that the issue before the delegate was “whether the applicant met the criterion in cl. 572.223”. The MRT, however, did not consider that to be the issue before it. The issue, as the MRT saw it, was “whether, at the time of decision, the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that meets the requirements of the Regulations”.[3]
[3] CB62, [6]
The MRT, after noting it sent the letter dated 13 June 2013 to the applicant and that it received no response, determined to “proceed to assess the application on the material before it”.[4] The MRT affirmed the delegate’s decision for the following reasons:
As detailed above the information before the Tribunal is that the applicant is not currently enrolled in nor has an offer of enrolment in any course. He has not studied it seems for the past 4 months. It appears that he has completed the courses you [sic] sought the student visa for.
There is no evidence before the Tribunal that the applicant is currently enrolled in or the subject of a current offer of enrolment in any course of study. The Tribunal is therefore not satisfied that the applicant is enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course and of a type specified for any of subclasses 570, 571, 572, 573, 574 or 575. On that basis, the Tribunal finds that the applicant does not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Schedule 2 to the Regulations.
[4] CB65, [11]
First ground – failure to accord procedural fairness (failure to inquire)
The applicant claims the MRT failed to accord the applicant procedural fairness because it denied the applicant an opportunity to appear and present arguments. That claim is based on the following contentions:[5]
a)the MRT knew the applicant had not received the invitation to respond;
b)it was reasonably easy for the MRT to obtain updated details as it was aware the applicant had been enrolled until a “very recent time”; and
c)due to the MRT’s dilatory process, the duty to accord procedural fairness required the MRT to properly inform itself by making proper inquiries.
[5] Amended Application, ground 1, particulars.
Although the applicant characterises this ground as one of breach of procedural fairness, in substance the complaint is that the MRT was under an obligation to inquire at the time it made the decision whether or not the applicant was enrolled, and that it failed to so inquire. The applicant submits the MRT was under a duty to inquire because whether or not the applicant was enrolled in a course was a critical fact to the fate of his application for a Student visa, and it was an easily ascertainable fact. That is the tenor of the applicant’s written submissions and the oral submissions made by his counsel. And that is how counsel for the Minister understood the applicant’s claim.
In response, the Minister makes two submissions. First, he submits that, having received no response to the letter the MRT sent on 13 June 2013, the MRT was not only entitled under s.359C(2) of the Act to proceed; s.360(3) and s.360A of the Act gave the MRT no choice but to proceed to determine the application. Second, while acknowledging that an obvious inquiry about a critical fact, the existence of which is easily ascertained, may possibly give rise to a duty to inquire, the circumstances in which the duty to inquire are rare and exceptional, and the circumstances of this case are not rare or exceptional.
The first question I must consider, therefore, is whether the MRT was entitled to consider the application for review in the absence of any response from the applicant to the MRT’s letter of 13 June 2013.
Was the MRT required to proceed in the absence of a response to 13 June letter?
The starting point is s.359A(1) of the Act. That subsection requires the MRT to give the applicant particulars of any information the MRT considers would be a reason or part of a reason for affirming the decision that is under review, inform the applicant of the relevance of the information and the consequences of the MRT relying on the information, and invite the applicant to comment on or to respond to the information. Subsection 359C(2) provides that if a person is invited under s.359A to comment on or respond to information, and the person does not give the comments or the response before the time for giving them has passed, the MRT “may make a decision on the review without taking any further action to obtain the applicant’s view on the information”.
Section 360 of the Act provides:
(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)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 359C(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
Subsection 360(3) of the Act must be read with s.363A of the Act, which 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.
The effect of these provisions is that if a person has been given a notice under s.359A of the Act to comment on or respond to information, and the applicant fails to do so, the applicant forfeits the right conferred by s.360(1) of the Act to be invited by the MRT to appear before it to give evidence and present arguments in relation to the decision under review.[6] Thus, if the method by which the MRT attempted to notify the applicant of the matters set out in its letter dated 13 June 2013 was one that was authorised by the Act, the applicant had no right to be further heard on the matters raised in the letter. Was that method authorised by the Act?
[6] Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 (Jacobson, Gilmour and Foster JJ)
Subsection 359A(2) of the Act provides that, except where the applicant is in immigration detention, the “information and invitation” that may be given under s.359A(1) “must be given by . . . one of the methods specified in s.379A” of the Act. One of the methods specified in s.379A of the Act is dispatch by prepaid post. Subsection 379A(4) provides that the document must be dated and then dispatched within three working days of the date of the document by prepaid post or by other prepaid means to “the last address for service provided to the Tribunal by the recipient in connection with the review”, or “the last residential or business address provided to the Tribunal by the recipient in connection with the review”.
The evidence establishes that the MRT notified the applicant of the matters contained in its letter of 13 June 2013 in the manner specified in s.379A(4) of the Act. The letter was dated 13 June 2013; it was dispatched by registered post; and an Australia Post tracking summary records the letter was in transit on 17 June 2013. I have taken judicial notice that 13 June 2013 was a Thursday, which means that the letter was dispatched within three working days of the date of the letter. That, in turn, means that the Tribunal, “having complied with one of the methods prescribed in [s.379A of the Act], was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant”.[7]
[7] Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]; (2006) 150 FCR 439 at page 446 ([39]) (Spender, French and Cowdroy JJ). This case considered s. 425 and s.425A which apply to the Refugee Review Tribunal. These provisions, however, are mirror provisions to s.360 and s.359A of the Act which apply to the Migration Review Tribunal.
Ground 1, therefore, fails to the extent it relies on the applicant not having been notified of the matters contained in the letter of 13 June 2013. But that does not exhaust ground 1. As I say earlier in these reasons, ground 1 also raises the question whether the Tribunal made a jurisdictional error by not making a further inquiry of PRISMS at or near the time the MRT decided to affirm the delegate’s decision. That issue is to be determined by answering two questions. The first is: are there any circumstances in which it can be said that the MRT will make a jurisdictional error if it fails to make an inquiry? The second question arises if the first is answered in the affirmative: do those circumstances exist in the case that is before me?
When, if at all, does a failure to make an inquiry constitute jurisdictional error?
There are a number of cases that have considered whether a failure by the Refugee Review Tribunal (RRT) to make an inquiry may constitute jurisdictional error. The initial source of these cases was a passage from the reasons for judgment of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs.[8] In Prasad the applicant sought an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of the Minister’s decision to refuse to grant the applicant a permanent entry permit. One of the asserted grounds of review was based on s.5(2)(g) of the ADJR Act, which permitted the Federal Court to make an order for review of a decision where the decision was the result of “the exercise of a power that is so unreasonable that no reasonable person could have so exercised the power”.
[8] (1985) 6 FCR 155
Although it was not necessary for Wilcox J to consider this ground, his Honour thought it “desirable to indicate the conclusions I have formed in relation to that ground”[9] although, in the end, his Honour expressed “no more than a tentative view”.[10] His Honour said:[11]
The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.
[9] (1985) 6 FCR 155 at page 167
[10] (1985) 6 FCR 155 at page 169
[11] (1985) 6 FCR 155 at pages 169-170
As the plurality in the High Court noted in Minister for Immigration and Citizenship v SZIAI,[12] the discussion by Wilcox J in Prasad was adopted or cited in a number of later cases in the Federal Court, and which were referred to by Kenny J in Minister for Immigration and Citizenship v Le.[13] In Le, Kenny J considered those cases as authority for the “limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223”. The flow of cases based on this reasoning, however, was stemmed[14] by the unanimous decision of the High Court in Minister for Immigration and Citizenship v SZIAI.[15] And it is that decision which now governs, or at least sets the boundaries within which to consider the circumstances in which a claimed failure by either the RRT or the MRT to make inquiries may constitute jurisdictional error.
[12] [2009] HCA 39 at [22]; (2009) 259 ALR 429 at page 435 ([22])
[13] [2007] FCA 1318 at [65]-[67]; (2007) 164 FCR 151 at page 174-175 ([65]-[67])
[14] Perhaps only temporarily. Mark Smyth, in his article “Inquisitorial Adjudication: the Duty to Inquire in Merits Review Tribunals” (2010) MULR 230 at page 232, speaking in 2010, said that a “flood of recent Federal Court and Federal Magistrates Court decisions . . . have largely reverted to the pre-SZIAI line of authority, which derives from Prasad . . . .”
[15] [2009] HCA 39; (2009) 259 ALR 429
SZIAI was an appeal from a decision of a single judge of the Federal Court who held the RRT made a jurisdictional error by failing to make certain inquiries.[16] The inquiries the RRT did not make, and which the applicant in that case claimed it ought to have made, were to call two telephone numbers recorded on a document the RRT found to be fake in circumstances where it had made another inquiry for the purpose of determining whether the document was fake. The Federal Court accepted there was a distinct ground of review to the effect that a jurisdictional error will be committed by the RRT where it unreasonably failed to make inquiries; and that whether or not that ground would be made out in any given case “may well depend upon the availability of further information and its importance to the factual issues to be resolved” as well as on “an assessment of the comparative ability of individuals to provide or to obtain relevant information” and of the “importance of a decision upon an individual”.[17] The Federal Court concluded the RRT unreasonably refrained from calling the two telephone numbers on the document it found to be fake. The Federal Court gave significant weight to the fact that the RRT had embarked on an inquiry:[18]
[H]aving embarked upon its preferred course of making an inquiry of the Association, the Tribunal was thereafter committed to making a further inquiry to resolve the diametrically opposed evidence exposed before it.
[16] SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372
[17] [2008] FCA 1372 at [26]
[18] [2008] FCA 1372 at [29]
The High Court reversed the Federal Court’s decision. In so doing, the plurality did not exclude the possibility that a failure by the RRT to inquire might, in certain circumstances, constitute jurisdictional error. The plurality held, however, that whether or not the RRT should make any inquiry in any given case should not be determined by reference to any notion of a “duty to inquire”. That is so because “that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error”.[19] The relevant question is whether a failure by the RRT to make an inquiry can amount to a failure by the RRT to carry out its “duty to review”. And while the plurality did not give a definite answer to that question, the plurality said that it “may be” that a “failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”. The plurality also said that it “may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error”.[20] The plurality, however, said it was “not necessary to explore these questions of principle in this case”, first, because “there was nothing on the record to indicate that any further inquiry by the [RRT] . . . could have yielded a useful result” and, second, the evidence showed that any further inquiry would have been futile.[21]
[19] [2009] HCA 39 at [25]; (2009) 259 ALR 429 at page 436 ([25]).
[20] [2009] HCA 39 at [25]; (2009) 259 ALR 429 at page 436 ([25])
[21] [2009] HCA 39 at [26]; (2009) 259 ALR 429 at page 436 ([26])
The plurality did not identify the circumstances in which a failure by the RRT to make an obvious inquiry may result in a jurisdictional error. Two clues, however, are given. The first is that the failure to make an obvious inquiry of a critical fact must be one which provides “a sufficient link to the outcome to constitute a failure to review”. The “failure to review”, as this expression was employed by the plurality, is synonymous with “a constructive failure to exercise the power” reposed in the RRT, or a “purported but not a real exercise of [the decision-maker’s] functions”.[22] And there will be a constructive failure to exercise such power or functions if the RRT precludes itself from exercising the power or function according to law.[23] A decision-maker purports to, but does not really exercise his or her functions if the decision-maker “misconceived what in law was involved in the exercise of that power”.[24] Thus, a failure to make an obvious inquiry of a critical fact will result in jurisdictional error if the decision can fairly be characterised as one in which, because of the failure to inquire, the RRT did not exercise its functions according to law.
[22] Re Patterson; ex Parte Taylor (2001) 207 CLR 391 at page 453 ([189]) (Gummow and Hayne JJ)
[23] Re Patterson; ex Parte Taylor (2001) 207 CLR 391 at page 453 ([189]) (Gummow and Hayne JJ)
[24] Re Patterson; ex Parte Taylor (2001) 207 CLR 391 at page 453 ([189] (Gummow and Hayne JJ). This notion has been expressed in different ways in the authorities set out in footnote 214 to the reasons of judgment of Gummow and Hayne JJ in this case. The authorities referred to in this footnote are specifically referred to in the reasons of the plurality in SZIAI at [25], footnote 35.
The second clue given by the plurality in SZIAI is that a failure to make an obvious inquiry of a critical fact may result in the decision “being affected in some other way that manifests itself as jurisdictional error”.
From these two clues a positive principle may be advanced. Whether or not in any given case the MRT or the RRT have committed a jurisdictional error because they did not make an obvious inquiry into the existence or non-existence of a critical fact must be determined by reference to whether the proper exercise of their jurisdiction to review in the circumstances of the case required them to make the inquiry, or whether the making of the inquiry was otherwise necessary to prevent them from making a jurisdictional error. The answer to these inquiries in any given case will depend in part on the express provisions of the Act obliging the MRT or the RRT to obtain information, and, in part, whether the RRT or the MRT made inquiries pursuant to powers conferred on each of them to obtain information.[25]
[25] Migration Act 1958 (Cth) s.359; s.424
I first turn to the express obligations imposed on the MRT and the RRT to make inquiries. The principal obligation is that imposed by s.348 and s.414 of the Act, namely, that the MRT and the RRT respectively must “review” the decision the subject of the application before them. That is a duty to inquire into the existence or non-existence of facts relevant to the RRT or MRT determining whether to affirm or set aside the decision under review. As noted by the plurality in SZIAI, however, the extent to which the MRT and RRT are required to inquire before it could be said that the MRT or the RRT has properly reviewed a decision is qualified:[26]
[P]roceedings before the tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the tribunal under s 412 of the Act.
[26] [2009] HCA 39 at [18]; (2009) 259 ALR 429 at page 434 ([18]).
These limits on the MRT’s or the RRT’s obligation to inquire flow from cases that have held that, although the MRT and RRT review decisions by making inquiries, it is for the applicant to satisfy the MRT or the RRT that the criteria for the granting of the relevant visa are met. This feature of the nature of the review the Act requires the MRT and the RRT to carry out has been stated in different ways. Thus, it has been said that “it is for the applicant for a protection visa to establish the claims that are made”;[27] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”;[28] the “function of the Tribunal . . . is to respond to the case that the applicant advances”;[29] and the RRT “is required to deal with the case raised by the material or evidence before it”.[30]
[27] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]; (2006) 228 CLR 152 at 164 ([40])
[28] Abebe v Commonwealth (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ)
[29] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [78] (Kirby J)
[30] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (Black CJ, French and Selway JJ)
Nevertheless, within these limits, circumstances can be imagined where the MRT and RRT may constructively fail to review the decision because they failed to make inquiries. For example, the MRT or the RRT, after inviting the applicant to a hearing to present evidence, may not have questioned the applicant or may have done so in a perfunctory manner. From that failure, it might be inferred the MRT or the RRT did not undertake the review they were required to undertake. Another example may be where the MRT or the RRT fail to make inquiries of the applicant about an essential element of the applicant’s claim. From that failure, it might be inferred the MRT or the RRT failed to properly consider the applicant’s claim or they assessed the applicant’s claim on a mistaken view of what the Act required the MRT or the RRT to consider when reviewing the decision in question. And a third example is where the MRT or RRT fail to inquire of the applicant about a matter which was accepted by the delegate, but which the RRT or MRT did not accept, and on which the MRT or RRT relied to affirm the decision.[31]
[31] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152
There are two other provisions that may give rise in a given case to an obligation on the part of the MRT or the RRT to inquire. These are s.359(1) and s.424(1) of the Act, each of which provides:
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 the review.
These provisions do not oblige the MRT or the RRT to make inquiries. If, however, the MRT or RRT make inquiries under the authority of s.359(1) or s.424(1) of the Act, they may come under a duty to make further inquiries, at least in relation to easily ascertainable and critical facts. That is especially so because s.359(1) and s.424(1) of the Act require the MRT and RRT, in making the decision on the review, to have regard to information each obtains under the respective subsection.
Circumstances can be imagined in which the MRT or the RRT may come under such an obligation. For example, the MRT or the RRT may have made an inquiry about a critical fact and received information about that fact, yet there were available to the MRT or the RRT additional and obvious inquiries in relation to that fact. In those circumstances, it could be said the MRT or the RRT came under an obligation to make those obvious inquiries before it could rely on the information the MRT or the RRT did in fact receive. One basis for such obligation would be the presumption that the power conferred on the MRT or the RRT under s.359(1) or s.424(1) of the Act is to be exercised reasonably.[32] It would be unreasonable for the MRT or the RRT to rely on information about a critical fact which they obtained under s.359(1) or s.424(1) without at the very least undertaking all obvious inquiries as to the existence or non-existence of that critical fact.[33]
[32] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [43]: “The conditioning of a power as the one in s 363(1)(b) of the Act with a requirement of reasonableness occurs because of an implication concerning parliamentary intention in the conferral of such a power. There is, as the High Court said in [Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225] particularly at [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ, and at [88] per Gageler J, a presumption of law that Parliament intends an exercise of power to be reasonable.” (Allsop CJ, Robertson and Mortimer JJ).
[33] As I note at [41] below, the obligation to inquire which I suggest arises in this and the following examples relies on an analysis of the plurality’s reasons in SZIAI which differs from the approach courts have taken after SZIAI was handed down to claims that the MRT or RRT failed to make inquiries.
Another example is that presented by the facts of this case. It is where the MRT or the RRT makes an inquiry, well in advance of the date on which the MRT or RRT make their decision, about a critical fact the existence of which the MRT or the RRT must be satisfied exists at the time they make their decision. If the MRT or the RRT made such an inquiry, they may come under an obligation to renew the inquiry at or immediately before they make the decision. That might be so because if the MRT or the RRT do not make such inquiry, they may make a decision on the basis of facts that existed at the time they made their inquiry, not on the basis of facts that exist at the time they make a decision. And if the MRT or the RRT make a decision on the basis of facts that do not exist at the time of decision, they may be adjudged not to have considered the question the relevant visa criteria required them to consider, and therefore to have made a jurisdictional error.
What I have said in the preceding paragraphs does not reflect the approach that has been taken in cases – of which there are many –which have decided claims that the RRT or the MRT failed to make an inquiry they were bound to make. The approach of these cases has been to take as the starting point the proposition that “a failure by the Tribunal to make inquiries about a critical fact the existence of which could be easily ascertained may mean that no review has been conducted”,[34] and then consider whether the fact into which it is claimed the MRT or the RRT failed to inquire was a critical fact and, if so, was a fact whose existence could have been easily ascertained.[35] An example is the decision of Katzmann J in Minister for Immigration and Border Protection v SZRTF.[36]
[34] Tang v Minister for Immigration and Citizenship [2013] FCAFC 139 at [28] (Rares, Perram and Wigney JJ)
[35] See, for example, Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 (Katzmann J); SZRSC v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 819 at [16] (Davies J); SZROQ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 833 at [28] (Farrell J); SZRUY v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 806 at [22] (Farrell J); SZSEV v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 794 at [22] (Cowdroy J); Khant v Minister for Immigration and Citizenship [2009] FCA 1247 (Cowdroy J)
[36] [2013] FCA 1377
In SZRTF, a judge of this Court held that the RRT made a jurisdictional error because it failed to inquire into a fact. The issue on appeal was whether “the primary judge erred in holding that the [RRT] had fallen into jurisdictional error by failing to make an obvious inquiry into a critical fact”.[37] Katzmann J answered that question by first considering whether the primary judge erred in holding the existence of the fact in question was “readily available”, and then considering whether the fact was a “critical fact”. That involved her Honour considering the meaning of “critical fact”. Her Honour held that for information to be a “critical fact” it “must at least be decisive of, or crucially important to an anterior issue which provides “a sufficient link” to the outcome of the review”.[38] Her Honour concluded that the primary judge erred in finding that the fact in that case was a critical fact.
[37] [2013] FCA 1377 at [1]
[38] [2013] FCA 1377 at [40]
On my reading of the plurality’s reasoning in SZIAI, the fact there is a critical fact whose existence can be readily ascertained by the making of an obvious inquiry does not necessarily trigger an obligation on the part of the MRT or the RRT to make an inquiry into the existence or non-existence of that fact. That is so because, in most cases, the applicant would have accessed or at least would have been in a position to access that information and provide it to the MRT or the RRT. It forms no part of the MRT’s and RRT’s functions to determine whether critical facts are or are not easily ascertainable and, if so, whether an inquiry into their existence has been carried out. However, for the purposes of the application before me, I will also consider, consistently with the Federal Court’s approach in SZRTF, whether the applicant’s enrolment in a course was a critical fact and, if it was, whether the MRT could have easily ascertained that fact at or shortly before it decided to affirm the delegate’s decision.
I now turn to consider whether the MRT was required to make a further inquiry of PRISMS to determine whether the applicant was enrolled.
Was the MRT obliged to inquire PRISMS again?
As I say earlier in my reasons, the MRT accessed the PRISMS database on 6 March 2013. On 23 July 2013 the MRT, in affirming the delegate’s decision, relied on what the PRISMS database disclosed on 6 March 2013. The MRT set out in its reasons the text of the letter dated 13 June 2013 it sent to the applicant. After noting the applicant did not respond to its letter, the MRT said: [39]
“As detailed above the information before the Tribunal is that the applicant is not currently enrolled in nor has an offer of enrolment in any course. He has not studied it seems for the past 4 months. It appears that he has completed the courses you [sic] sought the student visa for”
[39] CB65, [13]
In my opinion, because the MRT obtained the information about the applicant’s enrolment from the PRISMS database on 6 March 2013 pursuant to the power conferred on it by s.359(1) of the Act, and because s.359(1) required the MRT to “have regard to that information in making the decision on the review”, the MRT was obliged to undertake a further inquiry at or near the date it made its decision to be in a position to address the question it was required to address, namely whether at the time the MRT made its decision, the applicant was enrolled. That is so because:
a)whether or not the applicant was enrolled was a time of decision criterion;
b)it was not open to the MRT, therefore, to make its decision on the basis of, or by considering only, information that related to a state of affairs that existed almost five months before it made its decision;
c)by obtaining pursuant to s.359(1) of the Act information on 6 March 2013 about the applicant’s enrolment status as at that date, and by making no other inquiry of the PRISMS database, the MRT, in considering whether the applicant satisfied the enrolment criterion, bound itself to have regard only to information that disclosed a state of affairs that existed almost five months before the date on which the MRT made its decision;
d)by binding itself to have regard only to information about a state of affairs that existed almost five months before it made its decision, the MRT prevented itself from addressing the question it was required to address, namely, whether at the time of decision, the applicant was in fact enrolled; and
e)by preventing itself from addressing the question it was required to address, the MRT constructively failed to review the delegate’s decision.
My conclusion that the MRT was required to make an inquiry of the PRISMS database at or near the date it affirmed the delegate’s decision relies on the MRT’s having made an inquiry of the PRISMS database on 6 March 2013. Even if, however, the MRT had not made any inquiry on 6 March 2013 or at all, then, on the principles applied by Katzmann J in SZRTF, the MRT would have been obliged to make the inquiry at or immediately before the day it made its decision affirming the delegate’s decision.
From the fact the MRT accessed the PRISMS database on 6 March 2013, it may be readily inferred, and I do infer, that an inquiry as to the enrolment status of the applicant was an obvious inquiry that it was open to the MRT to make, and the fact of the applicant’s enrolment status was easily ascertainable. Further, whether or not the applicant was enrolled was a critical fact in the MRT’s decision. The MRT’s determining that the applicant was not enrolled was the only fact on which the MRT relied in affirming the delegate’s decision.
For these reasons, the applicant succeeds on ground 1 of his grounds of review.
Other matters
Before I leave this ground of review, there are two matters I wish to address. First, the MRT did not affirm the delegate’s decision because, or only because, it was not satisfied that the applicant was enrolled as at the date of its decision. The MRT relied, or relied in part, on positive findings of fact based on the results of its accessing the PRISMS database on 6 March 2013. The MRT found that the applicant “is not currently enrolled in any course of study” and that the applicant had not studied “for the past 4 months”. From this, and quite apart from any obligation the MRT may have had to inquire into the PRISMS database at or near the day it made its decision, it would have been open to find that the MRT did not address the question it was required to address, namely, whether, at the time it decided to affirm the delegate’s decision, the applicant was enrolled in an appropriate course or courses. The basis of that finding would have been the MRT’s relying, and only relying, on the applicant’s enrolment status as it existed on 6 March 2013, not as it existed as at 23 July 2013 when the Tribunal made its decision. If such a finding were made, the MRT would have made a jurisdictional error. I do not propose, however, to make such a finding because it was not a ground articulated in the amended application.
The second matter relates to an assumption I have made when dealing with ground 1; and that is that the MRT, when reviewing the delegate’s decision, was required to be satisfied that the time of decision criterion specified in cl.572.231 of Schedule 2 to the Regulations was satisfied at the time the MRT made its decision. In that regard, I have relied on the decision of Smith FM in Kamal v Minister for Immigration & Anor, and in particular, I have relied on the following passage from his Honour’s reasons for judgment:[40]
The normal principle of construction of a decision-making power which is subject to a merits review system such as operates under the Migration Act 1958 (Cth), is that time-of-decision criteria are intended to be satisfied at time of decision by a review agency, even if they are not satisfied as at an earlier time. This is the implication, in particular, from the ‘stand in the shoes’ powers of the Migration Review Tribunal under s.349 of the Migration Act 1958 (Cth), as construed in the light of the long history of similar provisions modelled on s.43 of the Administrative Appeals Tribunal Act 1975 (Cth). In this context, but subject to contrary intention shown in the particular power of decision, a merits review Tribunal such as the present Tribunal is usually intended to have the function of performing completely afresh a primary power of decision, including by addressing criteria at the date of the Tribunal’s decision and not as at the date of a primary decision. The Tribunal does not have only the function of receiving fresh evidence concerning satisfaction of criteria at an earlier date of decision.
[40] [2009] FMCA 238 at [46]
Ground 2 – delay
The applicant claims he was denied procedural fairness because of the length of time that passed between the day on which he lodged his application with the MRT and the time by which the MRT came to consider the application. The applicant submits that the delay prejudiced him because during that time the applicant had moved address which resulted in his not receiving the MRT’s letter of 13 June 2013. The applicant relies on NAIS v Minister for Immigration and Multicultural and Indigenous Affairs.[41] In particular, the applicant relies on three passages from the various reasons for judgment delivered in that case.
[41] [2005] HCA 77; (2005) 228 CLR 470
First, the applicant relies on the following passage from the reasons for judgment of Gleeson CJ:[42]
. . . . On the other hand, when the Tribunal, exercising the control over its own procedures given to it by the Act, without explanation or justification, and without any fault of an applicant for review, draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the Tribunal’s reasons to displace that likelihood, then a case of procedural unfairness arises.
[42] [2005] HCA 77; (2005) 228 CLR 470 at [11]
Second, the applicant relies on the following passage from the reasons for judgment of Kirby J:[43]
. . . in order to make good a claim of unfairness, it is sufficient to establish that there was a substantial risk that the Tribunal’s capacity to assess fairly the appellants’ evidence, and to carry out its decision-making functions conferred by the Act, was impaired by the procedures adopted by the Tribunal.
[43] [2005] HCA 77; (2005) 228 CLR 470 at [106]
Third, the applicant relied on the following passage from the reasons for judgment of Callinan and Heydon JJ:[44]
. . . unfairness can spring not only from a denial of an opportunity to present a case, but from denial of an opportunity to consider it. Failure by the Tribunal to consider a case can arise not only from obstruction by the Tribunal of its presentation but also from self-disablement by the Tribunal from giving consideration to that presentation by permitting bias to affect its mind: either way the case is prevented from having a fair impact on the Tribunal’s mind. Another way in which the Tribunal can disable itself from giving consideration to the presentation of a case arises where it permits so much time to pass that it can no longer assess the evidence offered. That is what happened here. The first respondent contended that the appellants could not succeed in the absence of findings that “delay by the Tribunal actually resulted in a material failure to analyse the oral evidence of the Appellants.” That finding ought to be made because it can be inferred from the delay that, in the absence of contrary evidence, the Tribunal had deprived itself of its capacity to do so, and there is no contrary evidence.
[44] [2005] HCA 77; (2005) 228 CLR 470 at [172]
In my opinion, the prejudice the applicant claims he suffered because of the MRT’s delay is not one for which the MRT was responsible. The form the applicant completed made it clear that the MRT would correspond with the applicant in relation to his application with the MRT at the address the applicant nominated on the application. The prejudice the applicant suffered resulted from his failure to notify the MRT of his change of address.
Ground 2 of the application, therefore, fails.
Ground 3 – failure to provide documents to applicant
The applicant claims that the MRT failed to comply with s.359A and s.360 of the Act by failing to provide to the applicant the documents on which the MRT relied in affirming the decision.
In my opinion, the answer to this ground is that the MRT did provide the substance of what was contained in the document on which the MRT relied, namely what the PRISMS database showed about the applicant’s enrolments. The MRT provided the substance of this information by its letter dated 13 June 2013. As I have concluded earlier in these reasons, the MRT did all it was required to do under the Act to bring this information to the attention of the applicant. That the applicant did not receive the letter does not matter.
Ground 3 of the application for review also fails.
Other grounds
The applicant did not press ground 4 of his application for review. Counsel for the applicant did not make separate oral submissions in support of ground 5. That ground overlapped substantially if not entirely with ground 1 which, I have concluded, has been made out.
Conclusions and disposition
The MRT made a jurisdictional error by not accessing the PRISMS database at or near 23 July 2013, being the date on which the MRT affirmed the delegate’s decision, and by instead relying on the information disclosed by its accessing the PRISMS database on 6 March 2013.
I therefore propose to order that the MRT’s decision affirming the delegate’s decision be quashed and that the MRT determine the applicant’s application for review according to law. I also propose to order that the Minister pay the applicant’s costs of these proceedings.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 31 March 2014
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