Singh v Minister for Immigration
[2018] FCCA 1684
•29 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1684 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a Student Class TU (Subclass 572) visa – Administrative Appeals Tribunal was not satisfied that applicant was a genuine applicant for entry and stay temporarily as a student – however Administrative Appeals Tribunal failed to consider and determine the main substantive claim of the applicant – jurisdictional error affected the decision of Administrative Appeals Tribunal – application for constitutional writs of certiorari and mandamus granted. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.2A Migration Act 1958 (Cth), ss.414, 425, 427 Migration Regulations 1994 (Cth) |
| Cases cited: Kaur v Minister for Immigration and Border Protection [2014] FCA 1046 SZVVR v Minister for Immigration and Border Protection [2016] FCA 1364 |
| Applicant: | BEANT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3461 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 28 June 2017 |
| Date Judgment Reserved: | 10 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2018 |
REPRESENTATION
| The Applicant appeared in person via videolink from Perth. |
| Counsel for the First Respondent: | Ms B. Griffin |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The decision of the Second Respondent made on 28 November 2014 affirming the decision of the Delegate of the First Respondent made on 30 June 2014 not to grant to the Applicant a Student (Temporary) (Class TU) (Subclass 572) visa is quashed.
The Second Respondent is to determine according to law the Applicant’s application for review of the decision of the Delegate of the First Respondent made on 30 June 2014 not to grant to the Applicant a Student (Temporary) (Class TU) (Subclass 572) visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3461 of 2014
| BEANT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of India aged 31 years, having been born on 3 February 1987.
By Application filed in this Court on 12 December 2014 he seeks to quash and impliedly have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of decision the Migration Review Tribunal) (Tribunal), dated 28 November 2014 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 30 June 2014 refusing to grant to him a Student (Temporary) (Class TU) (Subclass 572) visa (572 Student visa).
Background
The Applicant was granted his initial Higher Education Sector (Class TU) (Subclass 573) visa (573 Student visa) offshore on 6 March 2008 which was valid until 24 April 2008, and arrived in Australia on 17 April 2008.
The Applicant was subsequently granted a second 573 Student visa on 24 April 2008, which was valid until 15 March 2014.
On 15 March 2014 the Applicant applied for the 572 Student visa the subject of this proceeding on the basis that he was enrolled to undertake study for a Certificate IV in Accounting and a Diploma of Accounting.
Relevant Criteria Applicable to the Student Visa Application
Relevantly for present purposes, the Applicant had to satisfy cl.572.223 of Sch.2 to the Migration Regulations 1994 (Cth) at time of decision, and in particular cl.572.223(1)(a), which provided as follows:
572.223
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
(emphasis supplied)
Decision of Delegate
Upon receipt of his 572 Student visa application the Department of the Minister (Department) wrote to the Applicant’s migration agent by letter dated 26 March 2014 and advised that it had received unfavourable information which did not support his application, and so requested that he provide further information regarding the following matters within 28 days:
a)the four month period between 24 July 2011 and 27 November 2011 in which he did not appear to be enrolled in any course of study;
b)the three month period between 24 July 2011 and 28 October 2011 in which he did not appear to have been in Australia;
c)his failure to commence the Bachelor of Business course of study, which had been the subject of his second 573 Student visa and had been cancelled on 12 August 2013, or to secure enrolment in another course in the Higher Education sector;
d)the report by his education provider on 12 May 2010 to the Department that he had not achieved satisfactory course progress as required; and
e)his future intentions and the value of the courses of study the subject of the 572 Student visa.
The Applicant did not respond to this letter of 26 March 2014.
On 10 April 2014 the Applicant lodged an application for a Temporary Work (Skilled) (Class UC) (Subclass 457) visa (Subclass 457 visa) in which he nominated his occupation as a Customer Service Manager and which was still pending at the time of the decision of the Delegate.
The Department forwarded a further letter dated 29 May 2014 to the Applicant requiring additional information from him but he also did not respond to this letter.
The Delegate refused to grant the 572 Student visa to the Applicant. In his Decision Record of 30 June 2014 the Delegate recorded the 24 courses in which the Applicant had been enrolled since his arrival in Australia and noted that he had only completed seven of those courses and that the highest qualification which he had obtained was a Diploma of Business in 2012. The Delegate expressed his view that he did not consider this to be a reasonable completion level for a student whose primary purpose for being in Australia was to study and progress academically. The Delegate gave weight to the fact that the Applicant had undertaken a series of short, inexpensive courses but only completed seven of them in the 74 months during which he had held a Student visa in Australia. The Delegate referred to the fact that although the Applicant had held 573 Student visas in Australia from 17 April 2008 to 15 March 2014 he had never commenced a course in the Higher Education sector.
The Delegate was further concerned that the Applicant had failed to respond to the Department’s request for comment and additional information and regarded such failure as inconsistent with the behaviour of a genuine student who wanted to secure a 572 Student visa to successfully continue his studies. The Delegate also took the view that the Applicant’s application for a Subclass 457 visa indicated that he was not a genuine student.
In the result, the Delegate was of the view that the Applicant appeared to be using the Student visa program as a means of maintaining ongoing residence in Australia and that he did not genuinely intend to stay in Australia temporarily and he refused to grant a 572 Student visa to the Applicant.
Decision of the Tribunal
The Applicant lodged an application for merits review of the Delegate’s decision on 19 July 2014 and appeared before the Tribunal to give evidence and present arguments on 26 November 2014.
By its letter dated 27 October 2014 inviting the Applicant to a hearing on 26 November 2014, the Tribunal requested that the Applicant provide to it all documents that he intended to rely on to establish that he met the criteria for a 572 Student visa and in particular to provide the following information:
a)a copy of the Applicant’s current Certificate of Enrolment (CoE);
b)documents that showed the Applicant was currently enrolled in a course, or had an offer of enrolment in a registered course;
c)documents that showed the Applicant’s past studies in Australia; and
d)“An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.”
This letter from the Tribunal also invited the Applicant to provide a written statement addressing the issues of whether he was a genuine temporary entrant with reference to Direction No. 53 of the Minister and enclosed a copy of Direction No. 53 which included the following paragraph:
ANY OTHER RELEVANT MATTERS
16.Decision makers must also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
This letter from the Tribunal further enclosed a Response to Hearing Invitation (RHI). The RHI had not been returned to the Tribunal by 18 November 2014, so on that date a Tribunal officer telephoned the Applicant’s migration agent who advised the officer that he would see the Applicant that day. Shortly afterwards the migration agent advised that the Applicant would be attending the hearing before the Tribunal on 26 November 2014 and attached the completed RHI.
Then by letter dated 20 November 2014, the Applicant’s registered migration agent submitted several documents, including a current CoE, for the courses identified in the application for the 572 Student visa, and a letter from the Applicant’s education provider stating that the Applicant had completed more than 70% of one of the courses he was undertaking. A request was also made to postpone the Tribunal hearing scheduled for 26 November 2014 because the Applicant wanted to travel back to India on 25 November 2014 to be there when his father was to undergo a coronary artery bypass operation scheduled for the first week of December 2014 and to reschedule the hearing to a later date in January 2015 (Tribunal hearing adjournment application).
One of the documents forwarded by the registered migration agent was a letter from the Applicant dated 20 November 2014 (Applicant’s letter) to the Tribunal substantially in the following terms:
20/11/2014
Migration Review Tribunal
Level 11, 83 Clarence Street
Sydney NSW 2000
Re: MRT Case No: 1412610
Beant Singh
Dear Tribunal Member,
Please note that I wish to apply for an extension to provide some information and attend my hearing. The reason for this request is as follows:
During my entire stay in Australia since I first arrived on 17th April 2008, there have been a number of circumstances that have put an impact on my studies. The major issue has been my father’s health in India. My father has been suffering from a Severe Coronary Artery disease for the last 7 years and have further developed severe conditions.
Since my arrival in Australia in 2008, I have travelled back to India for 7 times and majority of my visits relate to my father’s health issues. My travel dates have been as follows:
19 January 2009 to 19 February 2009
24 October 2009 to 15 December 2009
22 January 2010 to 5 February 2010
8 October 2010 to 23 October 2010
28 October 2011 to 27 November 2011
3 September 2012 to 19 September 2012
18 October 2013 to 12 November 2013
The above travels and my pending work on my subjects have greatly put an impact on my education careers… Many of these Gaps [in my studies] do relate to my visit overseas due to my father’s poor health.
The other relevant document forwarded by the registered migration agent under cover of his letter of 20 November 2014 was a medical certificate dated 19 November 2014 from Dr. Sukesh Bhatia of the Bhatia Heart Care Centre (medical certificate) which stated:
This is to certify that S.MOHAN SINGH father of BEANT SINGH has been under my treatment for Severe Coronary Artery disease for last seven years. Now he is suffering from Rest Angina. CAG shows Triple Vessel Disease with poor L V functions. He is advised CABG which they are planning to undergo in first week of December. He needs close monitoring and care.
By letter dated 21 November 2014 the Tribunal conveyed to the Applicant its decision not to postpone the scheduled hearing but offered to allow him to attend via telephone from India and repeated its request for the provision of any additional information, including an explanation of any gaps in his study course enrolments. However, on 24 November 2014 the Applicant’s migration agent advised the Tribunal that the Applicant would delay his flight to India for two days and would attend the Tribunal hearing in person, which he did.
At the hearing the Applicant informed the Tribunal that he had in fact only completed three courses in Australia and not seven courses as suggested by the Delegate.
Further, consistent with the Applicant’s letter, he sought to excuse his inability to fulfil the criteria of being a genuine student on the basis that his father had been suffering from heart disease since he had arrived in Australia, which had meant that he had to travel to India every year, being seven times since his arrival in Australia, and this had impacted on his studies.
The Applicant also asked the Tribunal to delay making its decision on his merits review application “for a few months” so that the Applicant could provide medical certificates to the Tribunal regarding his father's illness (Tribunal decision delay request). This request was not agreed to by the Tribunal.
At [16] of its Decision Record the Tribunal recorded that when the Applicant was asked why he had not responded to the letters of enquiry from the Department he had “said he was stressed because of his father and shocked when his visa was refused”. The Tribunal noted that it considered this explanation disingenuous given that at the time of the request for information from the Department no decision on the 572 Student visa application had been made. At [19] of its Decision Record the Tribunal recorded that the Applicant had said at the hearing that he was studying Accounting so he could return to India and restart his father’s petrol station business. The Tribunal noted that it responded that if such was the case it was curious that less than one month after the Applicant had applied for his 572 Student visa he had applied for a Subclass 457 visa to work in Australia as a customer service manager and that this might suggest that he was using his 572 Student visa in order to prolong his stay in Australia. The Tribunal recorded that the Applicant responded to this by stating that his former boss at a petrol station where he worked had suggested that he get a Subclass 457 visa.
In the result the core findings of the Tribunal were as stated by it at [21] – [23] of its Decision Record as follows:
[21] Further, the Tribunal raised with the applicant its concern that he had been in Australia as a student for over six years, during which time he had, by his own evidence, only completed 3 courses of the 24 in which he had enrolled; and that, although he held a TU573 visa during this time, he had never enrolled in the Higher Education courses, but in short, inexpensive, vocational sector courses. The Tribunal noted that this might suggest that he was using the Student visa program to maintain his residence in Australia.
[22] The applicant responded that he wanted to go back to India, but asked that the Tribunal defer making the decision for a few months so he could prove that what had happened was out of his control by providing certificates regarding his father’s illness. The Tribunal declined the request and queried why the applicant had not explained all this to the Department when invited to do so; nor sought a deferral or gone back to India instead of remaining in Australia with a gap in his studies (at paragraph 11.c). The applicant said he had no idea about the gap. The Tribunal finds this explanation disingenuous. As put to the applicant completion of only three courses over a period of more than six years is inconsistent with the intention of the student visa program.
[23] On the basis of all the evidence before it, including the evidence regarding the applicant’s circumstances, immigration history, and other matters it considers relevant, as well as the significant, multiple and cumulative concerns detailed above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal finds that the applicant does not meet cl.573.223(1)(a).
Accordingly, the Tribunal affirmed the decision of the Delegate not to grant a 572 Student visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant in his Application are verbatim as follows:
1.My application for student visa was refused by Dept of Immigration due to not meeting the genuine temporary entrant criterion. I had various issues related to my father’s health and that was the reason I travelled to India at various occassions and could not concentrate on my studies.
2.While my application was lodged in Migration Review Tribunal, I explained my situation to the Tribunal Member and also provided my evidences of why I could not attend to a good coures progess during my previous studies. I also provided evidences of my current enrolment and course progress. I also provided evidences father’s illness and my various travels to India.
3.During the interview I explained all my situation to the Tribunal Member and I even said that my current course progress is up to date.
4.I was also due to go overseas due to my fathers operation but I had to cancel my travel since MRT did not want to postpone the hearing.
5. I believe MRT did not consider any of my request and did not weight on my submission and affirmed the decision.
6.I am therefore applying to Federal Court for a justice and request to provide me a better and favourable decision.
In the consideration of these Grounds I am of course not concerned with the merits of the Tribunal’s factual conclusions nor its actual decision but with the processes leading to its decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160 [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
Consideration of the Grounds
The Grounds do not identify with any coherent particularity the nature of the jurisdictional error asserted with respect to the decision of the Tribunal. However, clarified by the Applicant’s submissions at the hearing and the submissions of Ms. Griffin, who appeared for the Minister, I take the Grounds to be asserting that the Tribunal committed jurisdictional error in the following respects, namely:
a)the Tribunal wrongly in a legal sense refused the Tribunal hearing adjournment application;
b)the Tribunal wrongly in a legal sense refused the Tribunal decision delay request; and
c)with specific reference to Ground 5, that the Tribunal failed to consider and deal with the case raised by the Applicant, namely that the Tribunal did not deal with the Applicant’s claim that his father’s health in India and his visits to see his father there had impacted on his studies in Australia. In this connection, it is of course a well-established principle that the Tribunal is required to deal with the case raised by the material or evidence before it and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts”, that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ.
Tribunal Hearing Adjournment Application and Tribunal Decision Delay Request
The refusal by the Tribunal of the Tribunal hearing adjournment application and the Tribunal decision delay request involved the exercise of discretion by the Tribunal. The exercise of a discretionary power of such a kind is subject to judicial scrutiny in order to determine whether it was exercised in a legally unreasonable way: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 per French CJ, Hayne, Kiefel, Bell and Gageler JJ. Under s.427(1)(b) of the Migration Act 1958 (Cth) (the Act) the Tribunal has the power to adjourn a review from time to time. The Tribunal is exhorted by s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to carry out its functions in a way that is “fair, just, economical, informal and quick”. However, these discretionary powers to adjourn a hearing, to proceed with a hearing, to delay delivery of a Tribunal decision and to operate economically, informally and quickly must be exercised reasonably in a legal sense and not arbitrarily, capriciously or without common sense, having regard to the central obligation of the Tribunal under s.414 of the Act to review decisions and to give the relevant applicant a meaningful opportunity and a real chance to appear and to present evidence and arguments pursuant to the invitation extended under s.425.
In my view, the Tribunal did not act in a legally unreasonable way in refusing either the Tribunal hearing adjournment application or the Tribunal decision delay request. With respect to each decision the Tribunal did not “lack an intelligible justification”, nor was it “irrational” or “illogical”. The Applicant was requested by the Department’s letter of 26 March 2014 to provide important and relevant information: see [7] above. The Applicant had ignored that letter and the further letter dated 29 May 2014 from the Department requesting information. He had lodged his application for merits review of the Delegate’s decision on 19 July 2014 and must be taken as having known that the Delegate had adversely commented in his Decision Record on the Applicant’s failure to provide information. At the time of his Tribunal hearing adjournment application on 20 November 2014 a period of nearly 8 months had elapsed since he had first been asked for information. It appears that he had also ignored the Tribunal’s letter of 27 October 2014 until the Tribunal contacted his migration agent on 18 November 2014, which then led to the provision of information to the Tribunal under cover of the migration agent’s letter of 20 November 2014: see [18] – [20] above.
In my view it was incumbent on the Applicant to be active in his own interests in relation to his 572 Student visa application, but he was not. In any event, the Tribunal offered to the Applicant what I consider to have been a reasonable alternative of having the Tribunal hearing conducted via telephone from India. In the result, the Applicant delayed his flight to India for two days and physically attended the Tribunal hearing in Sydney. He has not established that anything has resulted to his detriment from the decision of the Tribunal to refuse the Tribunal hearing adjournment application.
The Applicant’s expressed reason for the Tribunal decision delay request was “so he could prove that what had happened was out of his control by providing certificates regarding his father’s illness”: see [22] of the Decision Record reproduced at [26] above. However, the Applicant had already provided the medical certificate concerning his father’s health and the Applicant had already had 8 months to provide any other evidence in that regard. Further, no reason seems to have been advanced by the Applicant as to why it would take him “a few months” to provide further certificates regarding his father’s illness. In my view, the Tribunal’s denial of the Tribunal decision delay request was also not legally unreasonable.
Accordingly, no jurisdictional error affects the decisions of the Tribunal in the above respects.
Tribunal Considering and Dealing with the Case Raised by the Applicant
On the other hand, I do consider that the Applicant has established that the decision of the Tribunal is affected by jurisdictional error in that it failed to consider and deal with the Applicant’s major substantive claim, which was to the effect that his father’s adverse health condition for seven years in India had negatively impacted upon and affected his studies in Australia and also provided an explanation of the gaps in his studies in Australia. I have come to this view notwithstanding that I am conscious that merely because documents have not been referred to by the Tribunal does not necessarily mean that they have been overlooked and that the Tribunal is not necessarily bound in its reasons for decision to refer to every piece of evidence and every contention made by an applicant.
In its letter dated 27 October 2014 the Tribunal had specifically requested that the Applicant explain any gaps in his enrolments for study in Australia and for him to provide documentary evidence relevant to his explanation: see [15] above. The Tribunal was required by cls.572.223(1)(a)(i) and (ii) to take into account the Applicant’s circumstances and immigration history, as also did [13] and [14] of Direction No. 53. Paragraph [16] of Direction No. 53 further obliged the Tribunal to “have regard to any other relevant information provided by the applicant… either beneficial or unfavourable to the applicant.” The Applicant responded by the Applicant’s letter, which enclosed the medical certificate. The Applicant’s letter and medical certificate were not forwarded to the Tribunal merely in support of the Tribunal hearing adjournment application, but also in support of his substantive claim that his father’s adverse health in India and the asserted necessity for him to return to see him there had impacted on his studies and were given in explanation of the fact that he had only completed three courses out of the 24 courses in which he had been enrolled.
In other words, I take the Applicant as contending to the Tribunal that his father’s medical condition constituted an extenuating circumstance beyond his control, which explained his failure to more extensively attend to his studies in Australia and which countered any suggestion that he was using the Student visa program merely to maintain his residence in Australia and that he did not have a real intention to stay in Australia temporarily to study. The Applicant’s claim in this regard was expressly and squarely raised by the Applicant and corroborated by the medical certificate, which on its face has the appearance of being a genuine and not a bogus document.
However, in my view the Tribunal never engaged with and considered this claim of the Applicant’s. There is no reference at all to the medical certificate in the Decision Record of the Tribunal, including at [13] where the Tribunal referred to the materials forwarded under cover of the migration agent’s letter of 20 November 2014, and where one might have expected the Tribunal to have referred to it, or at [22] where the Tribunal referred to the Tribunal decision delay request to allow the Applicant to obtain “certificates regarding his father’s illness” and where once again it would have been natural for the Tribunal to have referred to the medical certificate as already having been given to it.
In Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at 79 [54] the Full Court of the Federal Court of Australia comprised of Katzmann, Griffiths and Wigney JJ, in approving the judgment of Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 127 – 128 [98], stated that:
[54]… the tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction…
I am not prepared to find that the Tribunal was unaware of the existence of the medical certificate in the sense that it had never been seen by the Tribunal. However, I am persuaded that it gave no consideration to the medical certificate in the context of the Applicant’s substantive claims. My view in that regard, in the absence of any specific reference to the medical certificate, is not outweighed by the Tribunal’s general and somewhat formulaic statement in [23] of its Decision Record that it had considered “all the evidence before it, including the evidence regarding the applicant’s circumstances, immigration history, and other matters it considers relevant…”. I do not accept the submission made for the Minister at the hearing in this Court that [23] incorporates or evidences “a consideration of the Applicant’s evidence provided at [the Tribunal] hearing, his letter dated 20 November 2014 and the medical certificate dated 19 November 2014 in relation to his father’s ill health”. There is simply nothing in the Decision Record of the Tribunal to indicate its views one way or the other about the Applicant’s substantive claim concerning his father’s illness in the sense of bringing to bear an “active intellectual process”: SZVVR v Minister for Immigration and Border Protection [2016] FCA 1364 per Collier J at [22]. There is no evidence that the Tribunal gave a real and genuine consideration to the Applicant’s claim concerning his father’s illness and the medical certificate. The Tribunal failed in my view to respond to a substantial, clearly articulated argument which relied on the fact of the father’s illness seemingly established by the medical certificate. The Tribunal has failed to consider the entirety and totality of the Applicant’s claim as made and accordingly failed to accord procedural fairness and failed to exercise its jurisdiction: see generally Kaur v Minister for Immigration and Border Protection [2014] FCA 1046 per Mansfield J.
I note that at [15] of its Decision Record the Tribunal records that the Applicant:
[15] ….. said he had been unable to fulfil the criteria of being a genuine student because his father had been suffering from heart disease since the time he arrived in Australia, which meant he had to travel to India every year (seven times since his arrival in Australia) and this had had an impact on his studies.
The balance of [15] would appear to indicate that the Tribunal regarded this claim as going only to the Tribunal hearing adjournment application. However, it is unnecessary to further speculate in this regard. The fact is that the mere recording by the Tribunal of a submission, a statement or a claim as made by an applicant is inadequate to discharge the Tribunal’s duty to review. The Tribunal has to resolve and determine the submission, claim or argument and give it a proper, genuine and realistic consideration, which in my view has not occurred in the present case.
Conclusion
Accordingly an order will be made that the decision of the Tribunal be quashed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 29 June 2018
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