Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 395
•24 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 395
File number: MLG 1250 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 24 May 2022 Catchwords: MIGRATION – application for judicial review of decision made by Administrative Appeals Tribunal – student visa – whether Tribunal acted unreasonably by failing to adjourn the review – whether the Tribunal’s decision was affected by a reasonable apprehension of bias – whether the Tribunal constructively failed to exercise its jurisdiction or to perform its duty – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 360, 376, 477
Migration Regulations 1994 (Cth), cll 572.222, 572.223, 5A407
Cases cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 ; [2019] HCA 50
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1571
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Maestro v Minister for Immigration and Border Protection (2016) 308 FLR 48; [2016] FCCA 1095
Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534; [2017] FCAFC 136
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Sullivan v Department of Transport (1978) 1 ALD 383
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 11 May 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J Wherrett Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1250 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GAURAV SHARMA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
24 MAY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs fixed in the amount of $7,206.
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 LADHAMS:
INTRODUCTION
The application before the Court is an application under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 29 June 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) Subclass 572 visa (student visa) on the basis that the applicant did not meet the English language requirements.
The applicant’s grounds of application allege that the Tribunal acted unreasonably in failing to adjourn the hearing, that the Tribunal was biased as a result of having access to prejudicial information about the applicant, and that the Tribunal failed to complete its statutory task because it did not consider different limbs of the legislation by which the applicant could meet the English language criteria.
For the reasons explained below, I find that there is no jurisdictional error in the Tribunal decision and I dismiss the application for judicial review.
BACKGROUND
The applicant arrived in Australia in March 2014 as the holder of a student visa.
On 12 May 2016 the applicant applied for a further student visa, the subject of this application. The applicant provided supporting documents in relation to his English language ability including an International English Language Testing System (IELTS) Test Report Form showing that the applicant completed an IELTS test on 14 March 2015 and achieved an overall band score of 5.0, and a letter from South Pacific Institute advising that the applicant completed a 12 week Certificate III in English as an Additional Language (EAL) (Access) between 15 June 2015 and 6 September 2015.
The application for the student visa was refused by a delegate of the Minister on 16 September 2016. The delegate was not satisfied that the applicant met the English language requirements in Schedule 5A of the Migration Regulations 1994 (Cth) (Regulations). The delegate specifically considered the following criteria:
(a)cl 5A407(a), which applies when an applicant will not undertake an English Language Intensive Course for Overseas Students (ELICOS) before commencing his or her principal course, and has achieved an overall band score of 5.5 in an IELTS test taken less than two years before the application: the delegate found that the applicant did not meet this criteria because his overall band score on the IELTS test was less than 5.5;
(b)cl 5A407(b), which applies when an applicant will undertake an ELICOS of no more than 30 weeks duration before commencing his or her principal course and achieved an overall band score of at least 4.5 in an IELTS test taken less than two years before the application: the delegate found that this criteria was not met as the applicant had not provided any evidence that he was enrolled to undertake an ELICOS prior to commencing his principal course; and
(c)cl 5A407(d)(iii), which applies when an applicant as the holder of a student visa has successfully completed a substantial part of a course (other than a foundational course) that was conducted in English and was leading to a qualification at the Certificate IV level or higher: the delegate found that the completion certificate for the Certificate III in EAL (Access) that the applicant provided was not for a course at the Certificate IV level or higher.
On 3 October 2016 the applicant lodged an application with the Tribunal for review of the delegate’s decision and provided a copy of the delegate’s decision with the application.
On 24 April 2017 the Tribunal sent to the applicant, via his migration agent, an invitation to attend a hearing on 18 May 2017. That invitation also requested that the applicant provide various evidence to the Tribunal including, relevantly, evidence to show that he was enrolled in a course of study and evidence that he met the English language proficiency requirements. The applicant provided a completed ‘Response to hearing – MR Division’ form, but did not provide any evidence.
The applicant attended the hearing on 18 May 2017 to give evidence and present arguments. At the conclusion of the hearing, the Tribunal made an oral decision to affirm the delegate’s decision not to grant the applicant the student visa. The Tribunal then provided a written record of its decision on 29 June 2017.
TRIBUNAL DECISION
The Tribunal found that the confirmation of enrolments provided by the applicant had all expired and acknowledged his evidence that the last time he studied was when his visa was refused by the delegate back in September 2015. The Tribunal commented that the fact that the applicant was not enrolled and did not have an offer of enrolment meant that he was not eligible for the grant of the student visa.
The Tribunal nevertheless proceeded to consider whether the applicant met the English language proficiency requirement, being the basis on which the delegate refused to grant him a student visa. The Tribunal recorded that it asked the applicant whether he had any evidence to show he met the English language proficiency requirement and he responded that he had no further evidence. Without further evidence, the Tribunal was not satisfied that the applicant met the English language proficiency requirements in Schedule 5A of the Regulations and therefore he did not meet cl 572.223.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed on 14 June 2017, which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
On 1 November 2021 the applicant, with the assistance of a lawyer, filed a proposed amended application and submissions addressing the proposed grounds and reasons why he should be granted leave to rely on the amended application. On 16 November 2021 I made an Order by consent granting leave to the applicant to rely on the proposed amended application and making further directions for the filing of submissions.
The grounds in the amended application are:
1.The Administrative Appeals Tribunal (Tribunal) acted unreasonably, and thus contrary to the legislative scheme established by the Migration Act 1958 (Cth) (Act), by failing to adjourn the review.
Particulars
(i)At the Tribunal hearing on 18 May 2017, the Applicant (a) presented without a migration agent and without any material in support of his application; (b) indicated that he had seen a psychologist the day before and that a letter could be provided to the Tribunal in the coming days.
(ii) The Tribunal hearing had not previously been adjourned.
(iii) The Applicant was not in detention.
(iv) There was no particular urgency to the review.
(v)In the circumstances, including those described in (i)–(iv), it was unreasonable for the Tribunal not to adjourn the review.
3. The Tribunal’s decision was affected by a reasonable apprehension of bias.
Particulars
(i)The Department provided the Tribunal with material, in the form of departmental file notes, that impugned the Applicant’s credibility or character (prejudicial material).
(ii) The Tribunal did not disclose the prejudicial material to the Applicant.
(iii)In the circumstances, including those described in (i)–(ii), a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the review.
3.The Tribunal constructively failed to exercise its jurisdiction or to perform its duty in s 348(1) of the Act.
Particulars
(i)The Tribunal affirmed the decision to refuse the Applicant a visa on the basis that ‘I am not satisfied you meet the English language proficiency requirements of schedule 5A and therefore do not meet clause 572.223’.
(ii)In so doing, the Tribunal did not engage in an individualised assessment of the different limbs by which an applicant may satisfy the English language proficiency requirement in cl 5A407 of Sched 5A of the Migration Regulations 1994 (Cth).
(iii)In particular, the Tribunal failed to consider whether the Applicant satisfied cl 5A407(b) or cl 5A407(d)(iii).
(iv)By reason of (i)–(iii), the Tribunal constructively failed to exercise its jurisdiction or to perform its duty in s 348(1) of the Act.
The applicant’s legal representatives withdrew from the record before the final hearing of this matter and the applicant was self-represented at the hearing on 11 May 2022. The Minister filed written submissions on 8 March 2022 and was represented by Mr Jackson Wherrett of counsel.
ISSUES RAISDED BY THE APPLICANT AT THE HEARING
At the hearing, the applicant confirmed that he relied on the amended application and written submissions filed by his former lawyer.
The applicant also said at the hearing that he received bad advice from his migration agent and applied for the student visa relying on the advice of his agent. After questioning the applicant about this at the hearing, I am satisfied that the applicant, by his oral submissions, was not alleging any additional jurisdictional error. Incorrect advice from an agent, even if established, does not of itself amount to jurisdictional error.
GROUND 1
Applicant’s submissions
The applicant submitted that the Tribunal acted unreasonably in failing to adjourn the review in circumstances where the applicant informed the Tribunal that he had seen a psychologist the day before the hearing and indicated that he would provide a letter from his psychologist in a few days. The applicant submitted that the reference to seeing a psychologist should have been understood as an indication that the applicant was unprepared for the hearing due, in part, to his health issues. The applicant also submitted that the failure to adjourn was unreasonable as:
(a)there was no particular urgency about this review as the applicant was not in detention and the matter had not been previously adjourned;
(b)the request for an adjournment was to be supported by a medical certificate;
(c)a short adjournment would have shed light on the applicant’s psychological state in circumstances where the applicant had indicated to the Tribunal that a letter from his psychologist would be provided in a few days;
(d)the applicant was provided incorrect information in the request for more information letter sent to the applicant by the Department on 24 May 2016, and the applicant’s unpreparedness needed to be understood in this context; and
(e)as the review pertained to the applicant’s ability to remain in Australia, the nature of the review was such that it was capable of having serious consequences for the applicant.
Minister’s submissions
The Minister accepted that the Tribunal’s power to adjourn a hearing has to be exercised reasonably, but submitted that the threshold to establish unreasonableness was high and was not met in the present case.
The Minister submitted that in deciding whether to grant an adjournment on medical grounds, courts generally expect the applicant to provide supporting medical evidence. The Minister submitted that the applicant did not provide any documentary evidence to show that he had consulted a psychologist the day before the Tribunal hearing, and in the absence of any medical evidence, it was open to the Tribunal to determine that an adjournment was not necessary.
The Minister further submitted that if the applicant was suffering from a medical condition that affected his ability to prepare for the hearing, the applicant had a reasonable period of time during which he could have obtained the necessary medical evidence to show this.
In response to some of the particular factual circumstances on which the applicant relied to support his submission that the Tribunal’s failure to adjourn the hearing was unreasonable, the Minister submitted:
(a)even if the review was not strictly urgent, the grant of the adjournment on the day of the hearing would mean that the resources allocated to that hearing would be wasted, and the Federal Court has recently recognised that the Tribunal’s resources are not unlimited: FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1571 (FAK19) at [46];
(b)in relation to any misunderstanding based on incorrect information from the Department, the applicant had clearly been on notice of the relevant issues since the delegate’s decision, and the Tribunal had also sent correspondence to the applicant about the issues in the proceeding; and
(c)the ‘serious consequences’ of the review is a factor that could be said to apply to all proceedings before the Tribunal.
Resolution
I note at the outset that there is no evidence before the Court to suggest that the applicant ever expressly requested an adjournment of the hearing. I do not accept the applicant’s submission that his reference to attending a psychologist the day before the hearing could only have been understood as an indication that the applicant was unprepared for the hearing due to medical reasons. There are any number of reasons why the applicant might have mentioned attending a psychologist including, for example, as an attempt to explain why he had not been studying. However, nothing turns on the lack of evidence that the applicant had expressly requested an adjournment, or the reasons that he might have referred to attending a psychologist. The Minister accepts that whether or not the applicant actually requested an adjournment is not determinative of whether the Tribunal acted unreasonably in failing to adjourn the hearing, referring to Sullivan v Department of Transport (1978) 1 ALD 383 at 403 where Deane J said:
…The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment.
The Tribunal did not provide reasons for failing to adjourn the hearing, presumably because there was no express request for adjournment. In any event, the Tribunal was not obliged to give reasons in relation to a procedural issue.
The only reference to the possible evidence from the psychologist at all is at [13], where the Tribunal said:
When asked for evidence of English, you respond that you have not got any evidence. When asked whether there is any further evidence, you say you went and saw a psychologist yesterday and asked for a letter which he is going to provide on 23 May. You went and saw a psychologist as far as I’m concerned because you were coming here today.
In the absence of reasons, I consider whether proceeding with the hearing was legally unreasonable in all the circumstances. As the Full Court of the Federal Court said in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [45]:
In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law.
In the present case, I do not consider that the Tribunal acted unreasonably in failing to adjourn the hearing.
First, there was no medical evidence to support any adjournment on medical grounds. While the Tribunal did acknowledge that the applicant said he would provide a psychologist’s report in the days after the hearing, there was no medical evidence before the Tribunal at the time of its decision. The mere fact that the applicant consulted a psychologist does not make it unreasonable for the Tribunal to fail to adjourn the hearing. An adjournment on medical grounds would ordinarily need to be supported by medical evidence showing not only that an applicant has a medical condition, but that because of that medical condition the applicant is unable or unfit to participate in the hearing. There was no evidence before the Tribunal at the time it decided to proceed with the review to show that the applicant was unable to participate in the hearing for medical reasons. Nor is there any evidence provided to the Court to show that the applicant was in fact unable to participate in the hearing.
Second, I accept the Minister’s submission that the resources of the Tribunal are not infinite. Adjourning a matter on the day that it is listed for hearing, without conducting any part of the hearing, may result in the resources allocated to hearing the matter being wasted. As the Federal Court said in FAK19 at [46]:
Had there been an application for a stay of the August 2020 orders, the Court may well have weighed in the balance considerations affecting the resources of the Tribunal, among other things. It may well have afforded considerations of that kind considerable weight. The concerns expressed by the Tribunal about the allocation of its resources are very real. This Court faces the same concerns in respect of its judicial and administrative resources. They are not unlimited and there are ever-increasing pressures on them. I have no reason to doubt that the same pressures affect the considerable workload of the Tribunal…
That does not mean that the Tribunal should never grant an adjournment on the day of the hearing for medical or other reasons. The Tribunal has an obligation to afford an applicant a real and meaningful opportunity to participate in a hearing: s 360 of the Migration Act; Minister for Immigration and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [37]. There may be occasions where an applicant is unfit to participate in the hearing on the day that it is scheduled and the Tribunal needs to adjourn the hearing in order to ensure that the applicant has a real and meaningful opportunity to participate in the hearing. But the Tribunal is not required to afford an applicant the best possible opportunity to present their case and, as mentioned above, there is no evidence to suggest that the applicant was unable to participate in the hearing.
Third, I accept that the applicant was on notice of the critical issues well in advance of the hearing. If there was any misunderstanding prior to the delegate’s decision, there was no basis for misunderstanding what the English language requirements were from the date of the delegate’s decision. The delegate’s decision is very clear in setting out the legislation and the reasons why the evidence provided by the applicant was insufficient. Further, the invitation to attend a hearing sent to the applicant on 24 April 2017 requested that the applicant provide various evidence, including evidence to confirm his enrolment as well as evidence that he met the English language proficiency requirements.
Fourth, the invitation to attend a hearing had been sent to the applicant on 24 April 2017, over three weeks before the hearing. The applicant has not provided any reason why he did not seek medical evidence at an earlier stage if he was medically unfit to prepare for or participate in the hearing.
Finally, I do not accept that the lack of urgency to the review, or the consequences to the applicant, otherwise made it unreasonable for the Tribunal to fail to adjourn the hearing.
Ground 1 is not established.
GROUND 2
Applicant’s submissions
The factual basis on which the applicant relies in advancing ground 2 is that the Department provided to the Tribunal a series of Department file notes, including two that suggested that the applicant had provided non-genuine information to the Department.
A file note dated 9 August 2016 recorded that (emphasis in applicant’s submissions):
Funds provided in father’s name (see docs received by email at [Department file number]) – consider referral to post if further assessing this criteria given non-genuine outcome of referral in previous Student visa applications refused under 5A.
A further file note dated 15 September 2016 recorded that (emphasis in applicant’s submissions):
Funds referral has been finalised as non-genuine - refer to referring officer’s notes. Not pursued further as the FD have been confirmed as genuine however the assessing officer had doubts regarding how the funds to create the FD was obtained. As application is being refused on other grounds, no further action taken regarding this criteria at this time.
The applicant submitted that the file notes appear to allege an offence of providing false or misleading information, and the file notes were not disclosed to the applicant. Relying on CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 (CNY17), the applicant submitted that a fair-minded lay observer might apprehend that the decision-maker in this matter might decide the case other than on its merits, on the basis that the Tribunal had access to prejudicial information about the applicant, which was hidden from the applicant. The applicant submitted that that apprehension would likely have been strengthened by the short duration of the hearing, being 18 minutes, which suggested a ‘rush to judgment’.
Minister’s submissions
The Minister submitted that in assessing whether the Tribunal decision was affected by apprehended bias it was appropriate to apply the two-stage test identified in cases such as CNY17 at [57], [69], [92] and Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 (Isbester) at [21]. The two stages identified in those cases require the Court to:
(1)identify what it is that might lead a decision-maker to decide a case other than on its legal and factual merits; and
(2)articulate a logical connection between the identified thing and the feared deviation from deciding the case on its merits.
The Minister acknowledged that the applicant had identified the irrelevant and prejudicial information in the file notes as being capable of leading a decision-maker to decide a case other than on the legal and factual merits. However, the Minister submitted that there was no logical connection between the possession of the information and the feared deviation for three reasons.
First, the Minister submitted that the information relating to financial documents could not have rationally affected the Tribunal’s assessment of the applicant’s English language proficiency under Schedule 5A as the criterion is an objective test and required no assessment of the applicant’s credibility.
Second, the Minister submitted that the prejudice to the applicant caused by the Department file notes was slight and a fair-minded observer would not consider that the prejudice arising from any consideration of the irrelevant material could be substantial.
Third, the Minister submitted that Tribunal members are professional decision-makers in specialised areas and would be perceived by the fair-minded lay observer to have the expertise to consider the information in the file notes as being irrelevant and put them aside in conducting its review.
In relation to the duration of the hearing, the Minister submitted that the short duration reflected the lack of supporting evidence provided by the applicant, and there was nothing to suggest that the Tribunal reached a foregone decision prior to the commencement of the hearing.
Resolution
There is no dispute between the parties that the possession of prejudicial but irrelevant information by a decision-maker may lead to a decision being affected by apprehended bias: see, for example, CNY17 at [23], [57], [110]; Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534; [2017] FCAFC 136 at [75]. There is also no dispute between the parties that the relevant test for apprehended bias is the ‘double might’ test, namely, whether a hypothetical fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], Isbester at [57]; CNY17 at [18], [56], [132].
However, the mere existence of prejudicial information in the possession of the decision-maker does not of itself give rise to apprehended bias. In CNY17, Nettle and Gordon JJ said at [101]:
This conclusion [that there was apprehended bias] depends on the facts of this case. There may be other cases in which the material given to the IAA was somewhat prejudicial to an applicant, but not such as might lead a fair-minded lay observer to apprehend the lack of impartiality. The particular point at which prejudicial information will lead to apprehended bias cannot be identified in the abstract. Here, the information was such that a fair-minded lay observer might think it would bias the decision-maker against the grant of a visa to the appellant.
In a separate judgement in CNY17, Edelman J said at [126]:
… For instance, just as a violation of the hearing rule requires real, or practical, injustice, so too does a violation of the rule against bias require an apprehension of bias to be reasonable. Contrary to the submissions of the appellant, the receipt of prejudicial information, no matter how trivial, will not necessarily give rise to a reasonable apprehension of bias.
I am not satisfied that the possession of the file notes by the Tribunal, or any failure on the part of the Tribunal to disclose the prejudicial information in the file notes to the applicant, gave rise to apprehended bias in the context of this matter.
The hypothetical fair-minded lay observer is taken to be aware of the nature of the Tribunal decision and the context in which it was made, and to have knowledge of the circumstances leading to the decision: Isbester at [23]; CNY17 at [58]. The hypothetical fair-minded lay observer is imputed with a basic understanding of the statutory regime: see CNY17 at [17], [51], [94].
In the present matter, the fair-minded lay observer would understand that there were a number of mandatory time of decision criteria that the applicant needed to satisfy in order to be granted a student visa, and the failure to satisfy any one of the mandatory time of decision criteria would mean that his application is unsuccessful.
The Tribunal decision was based on its conclusion that the applicant did not meet the English language proficiency requirement in cl 5A407 of the Regulations, which was one of the mandatory time of decision criteria. The Tribunal also made a finding that the applicant was not enrolled in a course of study at the time of its decision, which meant that the applicant was also unable to meet the enrolment criteria. It was not necessary for the Tribunal to consider or make any findings about whether the applicant met the financial capacity criteria. The adverse information related only to the financial capacity criteria.
Although it is not inconceivable that the information in the file notes may impugn the credibility of the applicant, the applicant’s credibility was irrelevant to the decision ultimately made by the Tribunal. Whether the applicant met the English language proficiency requirement, or the enrolment criteria, was an objectively ascertainable fact that did not in any way turn on the credibility of the applicant.
In these circumstances, a fair-minded lay observer would not consider that there is a logical connection between the Tribunal’s possession of the information in the file notes and the feared deviation from deciding the case on its merits. A fair-minded lay observer would not reasonably apprehend that the Tribunal might not have brought an impartial mind to its decision-making task.
For completeness, I accept the Minister’s submission that the short time that it took for the Tribunal to reach a decision is not indicative of bias in any way and was instead the consequence of the lack of evidence provided by the applicant.
Ground 2 is not established.
GROUND 3
Applicant’s submissions
The applicant submitted that the Tribunal did not engage in an individualised assessment of the limbs under cl 5A407 of Schedule 5A of the Regulations in assessing the applicant’s English language proficiency. The applicant submitted that it instead appeared that the Tribunal simply proceeded on the basis of the delegate’s finding that cl 5A407(a) had not been met, and that the Tribunal should have but did not consider whether the applicant satisfied cl 5A407(b) and 5A407(d)(iii).
In relation to cl 5A407(b), the applicant submitted that he had achieved an IELTS overall band score of 5.0 less than two years prior to the date of his visa application and he therefore satisfied cl 5A507(b)(ii). The applicant also submitted that the Tribunal should have, but did not, ask him whether he intended to undertake an ELICOS before commencing his principal course, which would be relevant to whether he satisfied cl 5A407(b)(i).
In relation to cl 5A407(d)(iii), the applicant submitted that he had completed a Certificate III in EAL (Access) from South Pacific Institute less than two years prior to the date of his application. The applicant submitted that as this course was conducted in English, he satisfied cl 5A407(d)(iii)(A). The applicant further submitted that the Tribunal should have considered whether that course ‘was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher’ to ascertain whether he satisfied cl 5A407(d)(iii)(B).
The applicant also submitted that the error was material as the Tribunal ‘made no findings as to the other criteria for the grant of a student visa’.
Minister’s submissions
The Minister submitted that the Tribunal did not fail to conduct its review as the applicant was put on notice of the requirements necessary to satisfy cll 5A407(b)(ii) or 5A407(d)(iii) both by way of the delegate’s reasons and correspondence provided by the Tribunal. There was no duty to inquire that arose in the present case, and the Tribunal was only required to consider the case articulated by the applicant.
The Minister referred to the delegate’s reasons in relation to cll 5A407(b)(ii) and 5A407(d)(iii) and submitted that these reasons showed that the applicant was aware of what he needed to do to satisfy the Tribunal that he met these criteria. The Minister also submitted that the invitation to attend a hearing sent to the applicant on 24 April 2017 clearly put him on notice that he should have regard to the delegate’s reasons as an explanation of why he did not meet the criteria, and take this into account in providing evidence to the Tribunal. That invitation also specifically asked the applicant for evidence that he met the English language proficiency requirement in Schedule 5A of the Regulations.
The Minister submitted that the only evidence the applicant provided at the hearing was three cancelled confirmations of enrolment. The Tribunal asked the applicant at the hearing for further evidence that he met this criterion and the applicant confirmed that he had no further evidence. The Minister submitted that in these circumstances, it was open for the Tribunal to make the finding that the applicant did not meet the English language proficiency criterion and affirm the decision.
The Minister submitted that there was no duty on the Tribunal to ask the applicant whether he intended to undertake an ELICOS before commencing his principal course, or to consider whether the applicant’s Certificate III course was leading to a qualification at the Certificate IV level or higher. The delegate’s decision clearly explained to the applicant why he failed to satisfy those criteria, and the applicant had been provided a reasonable opportunity to put on evidence that he met those criteria. The applicant did not expressly make a case that he met either cll 5A407(b) or 5A407(d)(iii) and no such case arose squarely on the materials before the Tribunal.
The Minister further submitted that even if there was an error, it was not material because:
(a)The applicant did not provide any evidence that he intended to undertake an ELICOS before commencing his principal course. Accordingly, even if the Tribunal had asked the applicant whether he intended to undertake an ELICOS, the applicant has not shown that he could have satisfied cl 5A407(b).
(b)A course referred to in cl 5A407(d)(iii) is one that must on completion have the consequence of a qualification at the Certificate IV level or higher: Maestro v Minister for Immigration and Border Protection (2016) 308 FLR 48; [2016] FCCA 1095 at [31]. It is clear that the applicant’s Certificate III in EAL (Access) is not such a course.
(c)Even if the applicant could have satisfied the English language proficiency requirement and met cl 572.223, the Tribunal decision could not have been different because the applicant did not satisfy the separate and wholly independent criterion in cl 572.222, which required the applicant to provide ‘a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider’.
Resolution
The applicant’s ground is premised on an assumption that the Tribunal considered the criterion in cl 5A407(a) but not cl 5A407(b) or cl 5A407(d)(iii). The basis of this assumption is not apparent. After noting that the delegate refused the applicant’s visa on the basis of his failure to meet the Schedule 5A component, the Tribunal said:
13.When asked for evidence of English, you respond that you have not got any evidence. When asked whether there is any further evidence, you say you went and saw a psychologist yesterday and asked for a letter which he is going to provide on 23 May. You went and saw a psychologist as far as I’m concerned because you were coming here today.
14.You come to the Tribunal with no evidence and simply say you did not get round to bringing any.
15.Your visa was refused because you failed to provide evidence you met the English language proficiency requirements and you come to the Tribunal today and say you have no further evidence.
16.Therefore, without further evidence I am not satisfied you meet the English language proficiency requirements of schedule 5A and therefore do not meet clause 572.223.
As can be seen from this extract, the Tribunal did not refer to any of the separate limbs of cl 5A407. There is no basis for me to infer that the Tribunal specifically considered
cl 5A407(a), but not cll 5A407(b) and 5A407(d)(iii). It seems to me that the only inferences open on the face of the Tribunal reasons are that:
(a)the Tribunal did not specifically consider any of the limbs of cl 5A407; or
(b)the Tribunal considered all of the potentially relevant limbs of cl 5A407 and found that the applicant had not provided evidence to satisfy any of them.
On a fair reading of the Tribunal’s reasons as a whole, in my view, the latter inference is the one that should be drawn.
There is no doubt that the Tribunal could have offered a much better explanation in its reasons as to why the evidence that the applicant had provided to the delegate was insufficient for the applicant to meet the English language proficiency requirement. However, that does not mean that the decision is affected by jurisdictional error, and in circumstances where I have inferred that the Tribunal considered all of the potentially relevant limbs of cl 5A407 and found that the applicant had not provided evidence to satisfy any of them, I find that there is no jurisdictional error.
In relation to the specific complaints made by the applicant, I make the following observations.
The applicant’s submission that the Tribunal should have asked him about particular matters does not establish jurisdictional error. In considering this submission, it is important to bear in mind that the applicant bears the onus of establishing jurisdictional error: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [41]; MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [2]. I cannot conclude, for example, that the Tribunal did not ask the applicant whether he intended to enrol in an ELICOS because there is no transcript, or other evidence of what was said at the Tribunal hearing, in evidence before the Court.
Further, and in any event, the applicant was on notice, at least since the delegate’s decision, of what was required to meet the English language proficiency requirement. The applicant had a registered migration agent during the Tribunal review, although that representative did not attend the hearing. The applicant did not, independently or assisted by his representative, provide any evidence to the Tribunal to show that he satisfied the relevant requirements. The Tribunal clearly recorded in its reasons that it asked the applicant whether he had any further evidence in relation to the English language requirements and he said no.
In these circumstances, there was no need for the Tribunal to specifically ask the applicant about whether he intended to undertake an ELICOS before his principal course of study. I note in passing that such a question may have lacked any real meaning in any event in circumstances where the applicant was not enrolled in a principal course of study.
I do not accept that the Tribunal had to specifically address in its reasons whether the applicant’s Certificate III was a course leading to a qualification at the Certificate IV level or higher. It is clear on the face of the certificate that the applicant’s past studies were in relation to a Certificate III and not a Certificate IV course.
Given these conclusions, it is not strictly speaking necessary to address materiality. However, given the brevity of the Tribunal’s reasons, and the possible alternative inference that I identified above, I address materiality in the event that on appeal I am found to have drawn the wrong inference.
An error will only amount to jurisdictional error if it is material, in the sense that the error could realistically have deprived the applicant of the opportunity of a successful outcome: SZMTA at [2], [45].
In the present matter, if there was an error by the Tribunal, I am satisfied that it was not material.
I accept the Minister’s submissions summarised at [64(a) and (b)] above to the effect that, even if the Tribunal had expressly considered the requirements in cl 5A407(b) or cl 5A407(d)(iii), the applicant could not have met them for the reasons articulated by the Minister.
However, more fundamentally, the Tribunal made a finding which supports an entirely different basis for affirming the delegate’s decision. At [10]-[12], the Tribunal said:
10.In response to questions, at today’s hearing you say you are enrolled and as evidence you provide three CoE’s’. Those CoE’s have all been cancelled, two because you did not commence studies in the courses and the other because you advised the college you are no longer studying.
11.You say the last time you studied was when the decision was made to refuse your visa which was back in September 2015.
12.The fact you are not currently enrolled or do not have an offer of enrolment means you are not eligible for the grant of a visa…
I am satisfied that this amounts to a finding that the applicant did not meet the enrolment criteria in cl 572.222 in Schedule 2 to the Regulations. This is a mandatory time of decision criteria and the Tribunal was correct to say that the fact that the applicant was not enrolled or did not have an offer of enrolment meant that he was not eligible for the grant of the visa. Accordingly, there was an independent basis for the Tribunal to affirm the delegate’s decision and any failure to properly address the English language proficiency criteria would not be material: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [41]-[42].
Ground 3 is not established.
CONCLUSION
I have found that there is no jurisdictional error in the Tribunal decision. Accordingly the application must be dismissed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 24 May 2022
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