Singh v Minister for Immigration
[2012] FMCA 634
•30 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 634 |
| MIGRATION – Review of decision of Migration Review Tribunal – application for student visa – where applicant injured at time of hearing – where applicant’s agent overseas at time of hearing – where request to adjourn hearing refused – where hearing previously adjourned on two occasions – whether Tribunal unreasonable in refusing adjournment – where Tribunal may conduct hearing by telephone on applicant’s request – where Tribunal imposed telephone hearing upon applicant – whether Tribunal acted unlawfully – where Tribunal questioned applicant about requirement to have current enrolment certificate – where applicant informed Tribunal he did not have certificate at time of hearing – whether Tribunal failed to identify critical issue to the decision – whether applicant informed of nature and content of adverse material – whether applicant denied opportunity to be heard – where Tribunal made decision on same day as hearing – whether applicant denied chance to address certificate issue identified by Tribunal – where substantive reason for Tribunal affirming original decision was applicant’s lack of certificate of enrolment at time of hearing and decision – where evidence shows certificates of applicant cancelled prior to hearing – whether Tribunal fell into jurisdictional error. |
| Migration Regulations 1994 Migration Act 1958 (Cth), ss.3631(b), 360, 366A, 429 Interpretation Amendment Bill 2011 (Cth) Acts Interpretation Act 1901 (Cth) s.13 Migration Legislation Amendment Act 1994 Migration Legislation Amendment Bill (No.1) 1998 |
| Minister for Immigration & Anor v Li [2012] FCAFC 74 Waters v Mercedes Holdings Pty Ltd [2012] FCAFC 80 Minister for Immigration & Anor v Maltsin [2005] FCAFC 118 Korovata v Minister for Immigration & Anor [2001] FCA 1446 SZBEL v Minister for Immigration & Anor (2006) 228 CLR 152 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 Minister for Immigration & Anor v Applicant A125 of 2003 & Anor [2007] 163 FCR 285 |
Applicant: | MANINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 99 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 19 June 2012 |
| Date of Last Submission: | 18 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Dobbie and Devine |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The decision of the Second Respondent be quashed.
A writ of mandamus directed to the Second Respondent to determine the Applicant’s application for review according to law.
First Respondent to pay the Applicant’s costs assessed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 99 of 2012
| MANINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 25 November 2010 Mr Maninder Singh, who had previously been permitted to remain in Australia on the spouse visa of his wife, the holder of a student visa, lodged his own application for a student visa, being a student (Temporary) Class TU visa. There are several sub-classes of this visa of which one is a sub-class 572 visa. In order to obtain such a visa the applicant was required to meet the criteria of it found in cl.572.222 and cl.572.223. The relevant provisions are set out below:
572.222 (1) Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).
(2) If a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment and the Minister is satisfied that the applicant needs to travel urgently, the applicant gives to the Minister satisfactory evidence that the applicant is enrolled in an acceptable course.
(3) If the application was made on form 157E, the applicant is enrolled in an acceptable course.
572.223 (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
…
(b) the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under regulation 2.07AO:
(i) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; and
(iii) 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; or
(b) for an applicant who is a person designated under regulation 2.07AO — the Minister is satisfied that:
(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative; and
(ii) the applicant’s proficiency in English is appropriate to the proposed course of study; and
(iii) the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter.”
certificate of enrolment, means a paper copy, sent by an education provider to an applicant for a student visa, of an electronic confirmation of enrolment relating to the applicant.
electronic confirmation of enrolment, in relation to an applicant for a student visa, means confirmation that:
(a) states that the applicant is enrolled in a registered course; and
(b) is sent by an education provider, through a computer system under the control of the Education Minister, to:
(i) a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia; or
(ii) an office of a visa application agency that is approved in writing by the Minister for the purpose of receiving applications for a student visa; or
(iii) any office of Immigration in Australia.”
The applicant sought, at the time he made his application, to undertake a single course of study in a course specified for sub-class 572. He had received three confirmations of enrolment in respect of this total course. The first being a general English course starting on 15 November 2010 and ending on 13 May 2011 [CB 31]. The second being a certificate III in hairdressing starting on 27 June 2011 and ending on 8 June 2012 [CB 30] and the third being a diploma of hairdressing salon management starting on 25 June 2012 and ending on 15 March 2013 [CB 29]. The applicant had paid $1,000.00 in respect of prepaid course fees of the two later courses and $2,000.00 in respect of a prepaid course fee in respect of the first course. The applicant was required, as a condition for obtaining a visa, to have the requisite English language proficiency specified in cl.5A404 of the Migration Regulations 1994[1]. This is known as “Assessment level 4”.
[1] “Regulations”
His application was considered by a delegate of the Minister, and was refused on 12 January 2011. The decision record [CB 77 – 80], after setting out the relevant parts of reg.572.223(2)(a)(i), sets out in detail the English language proficiency requirement found in cl.5A404. The decision notes that on 8 December 2010 a letter was sent to the applicant’s agent requesting further information including “evidence to show that you meet the English requirements”. The decision refers to a response from the agent on 3 January 2011 before saying:
“Evidence has not been provided to show you satisfy the English language proficiency as requested. As no evidence of your English proficiency has been received. I can not be satisfied that you meet the legal requirement set out in 572.223(2)(a)(i) and clause 5A404 in Schedule 2 of the Migration Regulations. … As you do not meet 572.223(2)(a)(i) and clause 5A404 of the Regulations, I find that you do not meet the criteria for the grant of a Vocational education and training sector 572 visa.”
On 1 February 2011 the applicant sought review of that decision from the Migration Review Tribunal. For reasons which are not explained, the applicant’s request for review remained within the Tribunal until 14 September 2011 when an invitation to appear was sent to him. Mr Singh was at that time living in South Australia. The invitation to appear was to appear at the AAT in Adelaide for a video hearing with the Tribunal in Melbourne on 17 November 2011. On 10 October 2011 the Tribunal wrote again to the applicant and informed him that the hearing had to be rescheduled because the Tribunal member was unable to conduct the hearing on that day. The hearing was rescheduled for 8 December 2011 again by video-link from Adelaide to Victoria. On 5 December 2011 the applicant’s agent wrote to the Tribunal asking for an adjournment of the hearing on 8 December and attaching a medical certificate stating that the applicant, who had fallen and was bedridden, was “unfit for work” from 5 December 2011 until 11 December 2011 inclusive. In the Court Book this medical certificate [CB 106] has a notation on it in handwriting:
“As opposed to a 30 minute Tribunal hearing.”
under which is placed the word “refused”.
At [CB 107] there is a case note which states:
“Case Number: 1100900 State Processed: VIC
Primary Review Applicant:
Mr Maninder Singh
Gender: Male DOB: 13/05/1982
Case Note Info:
Date & Time: 07/12/2011 09:23:00 AM
User: Channelle Fitzgerald
Note Type: Case Note
Comments:
As per Member’s instructions, I contacted the rep’s office to inform him that the request for hearing postponement has been refused. The receptionist advised that the rep had just left to go overseas as there had been an emergency. She advised that she would contact the RA and let him know that the hearing is going ahead as scheduled.”
I believe these comments allow me to draw an inference that the handwritten words on the medical certificate were written either by the Tribunal member or by Ms Fitzgerald, the writer of the case note, upon instructions of the Tribunal.
Also on 7 December 2011 the Tribunal received from the office of the representative a faxed letter dated 6 December. This stated:
“06th December 2011
Migration Review Tribunal
Level 12, 460 Lonsdale Street
MELBOURNE VIC 3000Subject: Medical Emergency
Dear,
Migration Lawyer Amarjit Singh has been called away on a Family Medical Emergency overseas and will not be returning until February 2012. The Cases that may come up for Review are the following:
1. Applicant
2. Applicant
3. Applicant
4. Maninder Singh MRT Case No: 1100900
5. Applicant
It is my request that these abovementioned clients hearings be heard after 1st February 2012 when Amarjit Singh will be back in the country.
An early response form your side would be much appreciated.
Kind regards
Mandie Rymell on behalf of Amarjit Singh”
Following receipt of this faxed letter another case note was prepared at [CB 110]:
“Case Number: 1100900 State Processed: VIC
Primary Review Applicant:
Mr Maninder Singh
Gender: Male DOB: 13/05/1982
Case Note Info:
Date & Time: 07/12/2011 01:58:00 PM
User: Channelle Fitzgerald
Note Type: Enquiry By Phone
Comments:
Mandie from the rep’s office called in regards to her fax sent this morning requesting a postponement of hearing as the rep has been called overseas for a family emergency. I advised that I would speak with the Member and call her back. After discussion with the Member, I called Mandie and advised that the request is refused and that the rep may provide a landline number for overseas and participate in the hearing by telephone. I advised that whether or not the rep participates by phone, the hearing will be going ahead as scheduled. Mandie stated that she will attempt to contact the rep and obtain a telephone number from him.”
On 8 December, the date set for the hearing, there was sent to the Tribunal, another medical certificate. It states:
“This is to certify that I have examined Maninder Singh on 07-Dec-2011.
Maninder is suffering from a medical condition and is unable to travel or perform any lifting or bending.
Maninder will be unfit for work from 07-Dec-2011 to 13-Dec-2011.
Maninder should be fit to resume work on 14-Dec-2011.
Signed…………………… 07-Dec-2011
Dr. Malcolm Mackay”
The applicant did not attend at the hearing. The hearing record is struck through with the words “postponed at applicant’s request”. On 8 December 2011 a letter was sent to the applicant via his agent’s office informing him that the hearing would take place on 14 December 2011 at 11.00am South Australia time at the AAT in Adelaide by video-link to Melbourne. On 13 December 2011 a letter was sent from the applicant’s agent’s office stating:
“13th December 2011
Migration Review Tribunal
Subject: Prayer for Adjournment of the Hearing scheduled for 14th December 2011
Name: Maninder Singh
MRT Case Number: 1100900
Dear,
Please find attached herewith a Medical Sick Certificate of Maninder Singh whose hearing is fixed for 14th December 2011 in the Migration Review Tribunal. Maninder is still unable to attend the hearing as he is still in a lot of pain (please see certificate).
Also the Migration Lawyer Amarjit Singh has been called away on a Family Medical Emergency overseas and will not be returning until February 2012, there is no contact number for Amarjit at present.
In view of these peculiar circumstances I hereby pray to this Honourable Court to adjourn the hearing fixed for 14th December 2011 to some later date as Maninder is not in a position to attend the hearing fixed for the 14th December 2011 nor is his Laywer Amarjit Singh.
Kind Regards,
Mandie Rymell
Signed on Behalf of Amarjit Singh”:
There was attached to the letter a medical certificate that stated that Mr Singh was:
“Suffering from a lumbar spine disc injury and is unfit for work (because he is unable to travel or perform any lifting or bending and requires complete rest at home).
Maninder will be unfit for work from 12-Dec-2011 to 18 Dec-2011.”
The request for a further adjournment was taken to the Tribunal member. There appears on the fax cover sheet at [CB 120] another handwritten notation:
“Both requests refused:-
1. Applicant has had ample time to find a new agent.
2. A 20 minutes Tribunal hearing by telephone is not contraindicated by the Doctor’s certificate.”
At [CB 124] appears another case note:
“Case Number: 1100900 State Processed: VIC
Primary Review Applicant:
Mr Maninder Singh
Gender: Male DOB: 13/05/1982
Case Note Info:
Date & Time: 13/12/2011 01:50:00 PM
User: Channelle Fitzgerald
Note Type: Case Note
Comments:
As per Member’s instructions, I contacted the rep’s office in response to the request for hearing postponement and advised Mandie that the request has been refused. I advised that the Member is willing to conduct the hearing by telephone and asked that Mandie contact the applicant and obtain a number that he can be contacted on for a 20 minute hearing at the scheduled time. I advised that if the applicant is unfit to participate in a 20 minute telephone hearing, the Member requires a medical certificate explicitly stating this to be the case and the reasons why he is medically unfit to participate. Mandie advised that she will contact the applicant and call me back.”
It appears that the applicant consented to the telephone conference which was held on 14 December 2011. The Tribunal’s decision record commences at [CB 132], the relevant parts of the Regulations are set out between [CB 133 – 135]. At [CB 136 - 137] the Tribunal’s decision appears set out in full below:
“[16]The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.
[17] After several postponements at the applicant’s request, he appeared before the Tribunal by telephone on 14 December 2011 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
[18] The Tribunal welcomed that applicant and explained the issues to be considered and the rationale for the hearing. It pointed out that while the primary decision maker had refused the visa because the applicant had not demonstrated the requisite Schedule 5A English language competence, there was a logically and legally prior question, viz. whether he was enrolled in any registered course of study, as required by cl.572.222, and could produce a certificate to that effect. The applicant indicated that he was not so enrolled, and had not been enrolled in any course since about November 2010.
[19] The applicant briefly explained some background matters, and the hearing was concluded after the applicant had indicated that he had nothing further to add or ask.
FINDINGS AND REASONS
[20] The applicant has applied for a Student (Temporary) (Class TU) visa. On the basis of the evidence before it, the Tribunal finds that the relevant subclass for this review is Subclass 572. The Tribunal finds on the evidence before it, that the applicant is not a person designated under r.2.07AO of the Regulations, and that at the relevant time held an eligible passport of India.
[21] According to IMMI 10/003, 16 March 2010, the Gazette notice in force at the time of the application, the applicant is subject to consideration under Assessment Level 4.
[22] In the present case, the delegate found that the applicant did not meet cl.572.223(2)(a)(i) because the applicant did not have the requisite English language proficiency as specified in cl.5A404.
[23]However, on the basis of the evidence before it, including the evidence discussed at par.18 above, the Tribunal finds that the applicant is not currently enrolled in any course that has been specified for Subclass 572 by the Minister in the relevant instrument under r.1.40A of the Regulations. The Tribunal finds on the evidence before it, that the applicant did not apply on Form 157E, and there is no claim or evidence of any failed transmission of the kind envisaged at cl.572.222(2). He has not provided a certificate of enrolment, as required at cl.572.222(1). He therefore fails to meet cl.572.222 as a whole, and the application must fail. It is not necessary for the Tribunal to consider the remaining matter, viz. the applicant’s English language competence.
CONCLUSIONS
[24] As the Tribunal has found the applicant does not meet an essential requirement of cl.572.222, and as no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for any of the other Student (Temporary)(Class TU) visa subclasses, the decision under review must be affirmed.”
I have been provided with a copy of the transcript of the telephone hearing between the Tribunal and the applicant. The applicant was assisted by an interpreter not present at his home. After the applicant was sworn the following exchange took place:
“Q3Yes, thank you. Thank you both gentlemen for your attendance. Mr Singh, my name is David Young as you just gathered. Right. Right. I’ll keep this brief because I realise you’re felling [sic] unwell. The matters I have to look at are quite straightforward and the first question I have to ask you is whether you are currently enrolled in any registered course?
A(1)Yes, I am making …. Course because my other … because this school wasn’t very good.
Q4Sure, but no, my question is are you currently enrolled in a course?
A(1)No, not at the moment.
Q5Not at the moment. Thanks very much. Indeed that was quite straightforward. The, the other question is, which is the reason why the delegate actually refused the application is that you, you hadn’t met the English proficiency requirement.
A(1)Yes, that’s correct.”
The discussion continued:
“Q6Do you believe that you now have met that requirement Mr Singh?
A(1)Yeah, my English is not very well and that was the reason that I had enrolled myself in …. school.
Q7Right. O.K. But, sorry go on.
A(1)Yeah … have any Visa and then I had to stop going to that college. That is the reason I wish to make a request to the, to the Tribunal to be, to be lenient on me.
Q8Why? Why?
A(1)5-7-0.
Q9Oh, right.
A(1)When I made the application to be … to the … officer they did not consider that I had my admission in 5-7-0.
Q10Right, right, right. Mr Singh, as a matter of interest you say you’re not current enrolled when were you last enrolled in a course?
A(1)Yes, I’ll have a look for that. Hello.
Q11Yeah.
A(1)I had a note into that course on 15th of November, 2010, 10th of January my refusal was provided to me.
Q12Right.
A(1)And there upon I did not have any student visa. When I went to the college they told me that I did not have any student visa and I stopped going to the college because I did not have the student visa.
Q13Sure.
A(1)I thought that maybe I do not have permission to study any more.
Q14Sure, sure. So you were last enrolled in November 2010?
A(1)Yes.
Q15Yes. Oh well, look thank you very much. That covers my questions Mr Singh. Is there anything that you’d like to ask me?
A(1)I wish to make, make an enrolment on 5-7-0 again.”
On 17 January 2012 the applicant filed an application for review of the decision of the Tribunal with this court. There were four grounds of application but ground 3 is not pressed. At the commencement of the hearing the court advised the parties that there might be an additional ground available to the applicant based upon the apparent existence of the three confirmations of enrolment found at [CB 29 – 31]. The parties were given leave to file written submissions in relation to that issue and it will be considered later in these reasons. The first ground of the original application was:
“1.The Tribunal failed to give the Applicant the hearing required under s360 of the Act
Particulars:
(a)The Applicant requested that the hearing date scheduled for 14 December 2011 be rescheduled, on the basis that he was too ill to attend the hearing and or because his registered migration agent was overseas.
(i)Despite the request, the Tribunal did not adjourn and reschedule the hearing and proceeded to take evidence from the Applicant by telephone.”
This is what I shall refer to you as the “adjournment issue”.
The applicant believes that the second and fourth grounds of application can be dealt with together. They are:
“2. The Tribunal failed to accord the Applicant procedural fairness
Particulars:
(a)The visa application was refused by the delegate of the First Respondent on the basis that the Applicant did not meet the English language requirement for the visa.
(i)The Tribunal raised at the hearing, for the first time, an issue of whether the Applicant was enrolled in a registered course of study, and whether he had a certificate of enrolment, for the purposes of clause 572.222 of the Migration Regulations 1994.
(ii)The Tribunal proceeded to make a decision on the same day the hearing was concluded, without giving the Applicant any opportunity to meet that criterion.
(iii)This was so despite the significant measures that had to be taken in order to be enrolled in a registered course, such as locating an education provider that could enrol the applicant in a registered course, paying the funds required by the education provider and having the education provider record the Applicant as being enrolled in a registered course such that the certificate of enrolment could be issued.
4.The Tribunal misinterpreted and misapplied the law (or failed to accord the Applicant procedural fairness) in relation to Clause 572.222 of Schedule 2 of the Migration Regulations 1994
Particulars:
(a)The Tribunal affirmed the delegate’s decision on the basis that the Applicant was not enrolled in a registered course and that he did not have a certificate of enrolment, such that he did not satisfy clause 572.222 of Schedule 2 of the Migration Regulations 1994.
(i) Subclause 572.222(1) relevant prescribed that:
572.222
(1) Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).
(ii)Clause 572.222 and or procedural fairness required the Tribunal to allow the Applicant an opportunity to give the Tribunal a certificate of enrolment. The Tribunal failed to do so, in breach of clause 572.222 and or the rules of procedural fairness.”
This is what I shall call the “SZBEL issue”. There is a second limb to the adjournment issue which involves the nature of the hearing itself. This I shall call the “telephone hearing” issue.
The adjournment issue
The Tribunal has the power to adjourn a review from time to time (s.363(1)(b)). The nature of the power was considered by a Full Bench of the Federal Court Greenwood, Collier and Logan JJ in Minister for Immigration & Citizenship v Li [2012] FCAFC 74. At [34] the majority Greenwood and Logan JJ said:
“[34][T]he power, conferred by s 363(1)(b) of the Act, to adjourn the hearing of an application is discretionary. If that discretion is exercised unreasonably such that the result is that a visa applicant is not afforded a meaningful appearance, the MRT will not, for the reasons given above, have conducted a review of a decision according to law. Read as a whole rather than narrowly, the passage which we have quoted from the reasons of the learned federal magistrate stands for nothing more than this. So read, the passage is unremarkable. In the circumstances, an unreasonable refusal of an adjournment did indeed, as his Honour concluded, “go to the very jurisdiction”.
Collier J expressed the same conclusion slightly differently at [102]:
“[102]As a matter of law, I consider that a failure by the Tribunal to give proper consideration to an application for adjournment by a visa applicant amounts to a failure of the Tribunal to give the applicant a reasonable opportunity to present evidence and argument within the meaning of s 360. The strictures imposed by s 357A(1) are not contravened – in such circumstances an order by the Court to quash the decision of the Tribunal accords with s 357A(1) of the Act. However there is clearly a breach of the obligations imposed on the Tribunal by s 360.”
The question in the instant case is not whether the Tribunal considered the request for the adjournment but whether his discretion miscarried when he refused it. It is clear from the evidence that the only way the applicant was able to attend the hearing on that day was by telephone, the medical evidence being that he could not travel and required complete rest at home. It is further clear from the Tribunal’s reasons that the Tribunal was under the impression there had been “several postponements at the applicant’s request”. This was not the case. There had only been two postponements of the hearing, the first was at the direction of the Tribunal. If the hearing had taken place when originally planned, both the applicant and his advisor could have been present. Although the applicant made four requests for an adjournment he in fact only received one from 8 December to 14 December. This misconception would have clouded the Tribunal’s view of the applicant’s request. Another matter of concern was that the Tribunal clearly thought that the applicant had ample time to find a new agent. Section 366A of the Migration Act 1958 (Cth)[2] allows an applicant to be assisted by another person whilst appearing before the Tribunal. Whereas the heading to a section of an Act was previously not to be taken to be a part of the Act, that position has changed since the passing of the Acts Interpretation Amendment Bill 2011 (Cth) (see Acts Interpretation Act 1901 (Cth) s.13, Waters v Mercedes Holdings Pty Ltd [2012] FCAFC 80 at [36]). However, it remains the case that the wording of a section bears greater weight than the wording of the heading in the interpretation of a section. This difference in weight was acknowledged in the Explanatory Memorandum to the Bill which at states at [96]:
“Historically in the United Kingdom and Australian colonies, elements like marginal notes and section headings were added to the text of a Bill after passage through Parliament, and the current subsection 13(3) reflects that history. However, from federation, marginal notes and section headings have been included in Bills as part of the text considered by the Commonwealth Parliament. They are able to be amended by Parliament or under the supervision of Parliament. It is appropriate for this material to be treated as part of the Act, and given appropriate weight in interpreting the terms of the Act. This weight will ordinarily be less than the words of the section itself, given the function of such notes and section headings (see Wacando v The Commonwealth (1981) 148 CLR 1 at 16, Gibbs CJ).” [emphasis added] (See also [96]).
Section 366A states:
[2] “Act”
“Applicant may be assisted by another person while appearing before Tribunal
(1) The applicant is entitled, while appearing before the Tribunal, to have another person (the assistant) present to assist him or her.
(2) The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so.”
This provision was described as a right by the Full Bench of the Federal Court in Minister for Immigration & Anor v Maltsin [2005] FCAFC 118 at [35], but it is not a right that can be used to frustrate the exercise of the Tribunal’s functions. It is a right that must be utilised reasonably. Thus the Tribunal would fall into jurisdictional error if it refused a person who had been produced by an applicant at a hearing and was ready willing and able to assist unless there were proper grounds, such as security. It would not be a jurisdictional error to require a hearing to take place without an assistant where the applicant has not found an assistant or where the assistant’s absence is unexplained. In the instant case the Tribunal thought that the applicant could obtain the services of another agent, his own being overseas, albeit for reasons apparently beyond his control. Whilst the Tribunal might have been justified in thinking that the request for an adjournment until February was excessive and not based upon particularly convincing evidence on the part of the agent it did not say so. In my view it was not reasonable to expect a person in the position of the applicant unable to travel, as he was, to find a new agent between 8 December and 14 December: 8 December was a Thursday so the applicant really only had 9, 12 and 13 to find and bring an agent up to speed on his case. That strikes me as unreasonable. Additionally, the Tribunal did not tell the applicant that his ability to find another agent within those three days was a matter to be taken into consideration or that he would be expected to have found one.
Another basis upon which the applicant argues that the refusal of the adjournment was unreasonable was that the only way the Tribunal could proceed on the scheduled day was by telephone. This is not the “telephone issue” but it meant that the applicant would be at a further disadvantage in the hearing because he would not be face-to-face with the Tribunal via the video screen, would not have direct access to the interpreter and would not have his agent there. It is the combination of all these matters and the applicant’s medically supported invalidism that makes the Tribunal’s decision, based as it was on a misconception and an unreasonable precondition, that sees this decision fall to be considered an improper exercise of discretion that prevented the applicant from obtaining the hearing under s.360 to which he was entitled.
The telephone hearing issue
The ability of the Tribunal to conduct a telephone hearing is provided for in s.366:
“Oral evidence by telephone etc.
(1) For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
(2) If, when a review is in public, a person appears or gives evidence by a means allowed under subsection (1), the Tribunal must take such steps as are reasonably necessary to ensure the public nature of the review is preserved.”
The explanatory memorandum to the Migration Legislation Amendment Act 1994 the power is described in the following form:
“Section 134A
169This section gives the Immigration Review Tribunal a general power to allow a person to appear before the Tribunal or give evidence by telephone, closed circuit television or any other means of communication. The Tribunal is also directed by the new section to take such steps as are reasonably necessary to ensure that the public nature of the review is preserved when evidence is being given by telephone, closed-circuit television or other means of communication.”
The respondent pointed me to the identical sub-section in the Refugee Review Tribunal legislation at s.429A of the Act. That sub-section was inserted by the Migration Legislation Amendment Bill (No 1) 1998 and in the Explanatory Memorandum the following appears:
“Item 7
127This item inserts new section 429A into the Migration Act. This amendment allows the Tribunal to direct that an appearance by the applicant before it, or the giving of evidence by the applicant or any other person, can be by telephone, closed-circuit television or any other means of communication. This will broaden the range of methods the Tribunal may use to facilitate a personal appearance by an applicant or another person at a formal hearing.”
The respondent argues that this Explanatory Memorandum indicates that there is more to the word “allow” than the word “permit” but it seems to me that the wording of the Act is clear and one need not be driven to the Explanatory Memorandum to understand it. The clarity with which s.366 was written was considered by Emmett J in Korovata v Minister for Immigration & Anor [2001] FCA 1446 a case in which the Tribunal had indicated on the invitation letter that the hearing would be one to be conducted by telephone. His Honour said of the section:
“Section 366(1) provides:
For the purposes of the review of a decision the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person to be by:
(a) telephone; or
(b) closed circuit television, or
(c) any other means of communication."
That provision does not, in my opinion, authorise the Tribunal to require that an appearance be by telephone. It is a discretionary power conferred upon the Tribunal to permit an applicant to appear by telephone if the applicant wishes to do so. However, it is not, in my view, a power that overrides the requirements of s 360 and s 360A.
The right is to appear before the Tribunal wherever the Tribunal chooses to sit. It appears that this Tribunal Member decided to sit in Brisbane. The applicant was entitled to be given notice of the place at which he was scheduled to appear. It may well be that it would have been convenient for the applicant, had he been informed of that place and known where the hearing was to take place, to ask the Tribunal to exercise its discretion under s 366(1) to allow his appearance in Brisbane to be by telephone. The applicant, however, was not given that opportunity.”
I accept that in the instant case the first invitation to a hearing was one in proper form. It invited the applicant to attend either via video-link from Adelaide or, if he wished, in Melbourne personally. It did not actually say where he would have to go if he wanted to go to Melbourne personally but it gave him an opportunity to find out by contacting the Tribunal. But what happened later was that the Tribunal imposed the telephone hearing on the applicant. That was the only type of hearing that could have been carried out and the only type of hearing that the Tribunal proposed after it had declined to give the applicant his adjournment. Section 366 does not entitle the Tribunal to impose a telephone hearing upon an applicant, only to permit one if the applicant requests it. The evidence of the Tribunal’s notes makes it clear that the Tribunal envisaged a telephone hearing and nothing else. I am of the view that the Tribunal acted unlawfully in requiring the applicant to attend by telephone independently of its failure to exercise its discretion relating to the adjournment and that this is an additional ground for finding that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.
The SZBEL issue
It will be recalled from the extracted parts of the decision record and the transcript that the Tribunal alighted upon the question as to whether or not the applicant was enrolled in any registered course of study and could produce a certificate to that effect as a matter to be resolved prior to any consideration of the applicant’s holding or otherwise of an ELICOS assessment. I am afraid that I cannot agree that the Tribunal acted in the manner set out in paragraph 18 of the decision record because I do not see in the transcript any explanation of that particular issue as one to be considered. Neither did it suggest that there was “logically and legally a prior question to that decided by the delegate”. In SZBEL v Minister for Immigration & Anor (2006) 228 CLR 152[3] the High Court approved the views of the Full Bench of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 when their Honours defined the requirement for procedural fairness as extending:
“To require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.”
The High Court also approved the statement in Alphaone at [27] that:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”
[3] “SZBEL”
The High Court went on to consider what were the nature of the issues arising in relation to the decision and said at [35]:
“And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.”
And at [36]:
“[But] unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.”
The respondent points out that the Full Federal Court Emmett, Weinberg and Lander JJ considered the extent to which SZBEL went in Minister for Immigration & Anor v Applicant A125 of 2003 & Anor [2007] 163 FCR 285 and at [80] said:
“Put simply, the applicant argues that the RRT failed to identify the significance of the questions that were asked of him regarding the timing of his leaving Nepal. He claims that he could not reasonably have anticipated that matter to be a critical issue in the proceeding.”
and determined the issue at [88]:
“The short answer to the applicant’s submission based upon SZBEL is that s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL, and is an attempt to import the requirements of s 424A(1) into s 425.”
In my view the applicant who was at the time appearing by telephone without in interpreter present and without his agent would have expected that the only matter in issue was that identified by the delegate. When the Tribunal said to the applicant “The first question I have to ask you is whether you are currently enrolled in any registered course” the Tribunal was also required to tell him that this was an issue because it had not been an issue before the delegate. The Tribunal had not said to the applicant words to the effect that he was examining the whole application afresh and that meant consideration of each of the requirements under the regulation. The Tribunal does not even explain to the applicant that his answer may be determinative of the application. In my view the action of the Tribunal in this case was of the type that was considered by the High Court in SZBEL, and by failing to inform the applicant that the questions related to a new and determinative issue in the proceeding the Tribunal did not provide him with procedural fairness. The applicant was asked a question which had important legal ramifications for him. The evidence in the court book suggests that there were before the Tribunal existing certificates of enrolment carrying through to 2013. The applicant’s stumbling responses to the Tribunal’s questions were interpreted as a negation of those documents without him understanding how important it was that he gave proper consideration to the question in the context of the requirements of the Regulations.
The applicant also argues that even if I am wrong in my views about the relevance of SZBEL to this case the Tribunal failed to give the applicant procedural fairness in deciding the matter on the same day as the hearing so that the applicant was effectively prohibited from addressing the situation that the Tribunal had identified. The requirement for the certificates of enrolment was a current requirement so if the applicant had obtained such certificates before the Tribunal had come to its decision then the requirement would have been met. But the Tribunal did not give the applicant that opportunity to really determine the matter upon receiving the applicant’s response to its first question. The applicant points out that his application to the Tribunal was made ten months before the hearing and that there was no suggestion that the delay was in any way the fault of the applicant. He submits:
“[35]The Tribunal also failed to provide the Applicant procedural fairness, even if it is found that the issue of enrolment was raised in compliance with s360.
[36] Subclause 572.222(1) provides:
572.222
(1)Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course ).
(emphasis added)
[37]It is submitted that it is implicit in the language of subclause 572.222(1) that the Applicant have an opportunity to give evidence of enrolment for the decision maker to consider. This is because the language of subclause 572.222(1) is written in the present tense, being ‘gives” as opposed to ‘has given’.
[38]The language of the subclause recognises that a CoE might well have expired by the time a decision maker considers the application, despite being current at the time of the visa application. This is what occurred in the present case, the Tribunal’s decision being made approximately 13 months after visa application, and on the same day as the hearing held by the Tribunal. Furthermore, the process of obtaining a CoE is by no means automatic upon a request for a CoE being made. Annexures B, C and D of Mr Liu’s affidavit show that the process involves significant administrative process. The language of subclause 572.222(1) and its context supports the conclusion that the Applicant has to be provided with the opportunity to give a CoE to a decision maker for consider before a decision is made. The Tribunal failed to do so, and therefore failed to accord the Applicant procedural fairness required by subclause 572.222(1). That failure constitutes jurisdictional error.”
29.In my view the applicant’s submissions are too informed by what actually took place before the Tribunal. If they do anything they add weight to the concept of unfairness in the Tribunal not providing the applicant with procedural fairness in relation to the issue itself rather than being a separate ground for review. If the Tribunal had acted in the manner required by SZBEL and told the applicant that it was discussing with him a determinative issue and given him an opportunity to respond properly in the full knowledge that the issue was determinative, then making the decision on the same day as the hearing would not to my mind constitute an error of the type suggested. I would not accede to the applicant’s submissions in this regard.
Confirmation of enrolment issue
The substantive reason for the Tribunal affirming the original decision was that it found that at the time of the hearing and decision the applicant was not enrolled in a registered course of study as required by cl.572.222 [18] [CB 136]. The applicant had indicated in response to a question to that effect that he had not been enrolled for some considerable period of time. At [CB29, 30 and 31] are found three confirmations of enrolment relating to courses starting on 5 November 2010 and ending on 13 May 2011, a course starting on 27 June 2011 and continuing until 8 June 2012 and a course commencing on 25 June 2012 and ending on 15 March 2013. In response to the leave given to the parties to provide me with written submissions in relation to this matter, the respondent provided an affidavit of Richard Jones exhibiting documents from the Provider Regulation International Student Management System (PRISMS). The exhibit revealed the current status of certificates of enrolment relevant to the Migration Regulations in respect of the applicant. All the certificates referred to and appearing in the Court Book were shown to have been cancelled prior to 14 December 2011, the date of the decision. The applicant, in his own outline of submissions, states that whilst the he did not understand what the Tribunal was saying at the hearing he accepted that he did not have a confirmation of enrolment certificate on 14 December 2011. In those circumstances the existence of the certificates of enrolment in the Court Book is of no relevance to the issue.
I have found that in this case the Tribunal did fall into jurisdictional error in the manner in which it reached its conclusions. The Respondent has not suggested that there would be no utility in referring the matter back to be heard and determined according to the law, so I would not exercise my discretion to decline to remit. I shall make the orders sought in the application and also order that the respondent pay the applicant’s costs assessed in the sum of $6,471.00.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 19 July 2012
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