Singh v Minister for Immigration and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1449
•23 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1449
File number: MLG 3526 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 23 December 2024 Catchwords: MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – extension of time previously granted – hearing of substantive application – whether the Tribunal erred by denying the applicant procedural fairness in respect of its obligations under s 360 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 and 25 in Schedule 16
Migration Act 1958 (Cth), ss 359A, 360, 363, 425 & 477
Migration Regulations 1994 (Cth), cll 500.211 & 500.212 in Schedule 2
Cases cited: AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v MZAIV [2016] FCA 251
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 515
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 91 Date of hearing: 22 August 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr C Orchard Second Respondent: Submitting order, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 3526 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
1.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
2.The application be dismissed.
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 KENDALL:
BACKGROUND
Recent amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended significantly on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 3 September 2019 and thus predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
The Court notes that the Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, proceedings will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court will make an order substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
The applicant’s migration history
The factual background to this matter was set out by this Court in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 515 (“Singh”) at [1]-[14] & [17]. That factual background is equally relevant to this decision and, with minor amendments and additions, is repeated below.
The applicant is a citizen of India (Court Book (“CB”) 3-5 & 21-22).
The applicant was granted an initial student visa on 14 July 2009 (valid until 21 February 2012). He arrived in Australia in August 2009 as the holder of that visa (CB 39).
The applicant subsequently held either a student visa or an associated bridging visa (CB 39).
On 3 March 2017, the applicant applied for the Student (Temporary) (Class TU) (Subclass 500) visa the subject of this proceeding (the “visa”) (CB 1-15). The applicant provided various identity documents, educational records and Overseas Student Confirmation-of-Enrolment (“COE”) documents with that visa application (CB 16-31). At the time of his visa application, the applicant was enrolled in Diploma and Advanced Diploma of Leadership and Management courses (CB 39).
On 6 June 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 37-42). The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily and, as such, did not meet the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 41).
On 19 June 2017, the applicant sought review of the delegate’s decision by the Tribunal (CB 43-48).
On 13 August 2019, the Tribunal invited the applicant (via email) to attend a hearing before it scheduled for 3 September 2019 (CB 52-54). In that hearing invitation, the Tribunal also put the applicant on notice that, having considered the material before it, it was unable to make a favourable decision on that information alone (CB 53). The Tribunal also asked the applicant to provide any additional documents or information to it by 27 August 2019 (CB 54).
On 3 September 2019, the applicant appeared at the hearing before the Tribunal to give evidence and present arguments (CB 64-66). The applicant was assisted at that hearing by an interpreter (CB 64).
The Tribunal made an oral decision at the completion of the hearing (on 3 September 2019) affirming the delegate’s decision refusing to grant the applicant the visa (CB 68).
The applicant was notified of the outcome of the review via email on 3 September 2019 (CB 67).
On 11 September 2019, the applicant wrote to the Tribunal (by email) and requested a written statement of decision (CB 71).
On 3 October 2019, the Tribunal reduced its oral decision to a written statement of its decision and reasons (CB 68-70). A copy of the written reasons was provided to the applicant via email on 3 October 2019 (CB 72-73).
On 15 October 2019, the applicant applied to this Court for judicial review of the Tribunal’s decision. Unfortunately, that application was filed seven days outside of the 35-day time limit specified in s 477 of the Act.
In the circumstances, the applicant required an extension of time to pursue the substantive proceeding in this Court.
On 20 November 2019, procedural orders were made by Registrar Carlton in the then Federal Circuit Court of Australia giving the applicant an opportunity to file an amended application, any additional evidence and written submissions.
On 23 May 2024, the applicant sent an email to the Court with three documents attached, as follows:
(a)a Statement of Attainment from Ironwood Careers & Training outlining the units the applicant had attained forming part of the Diploma of Leadership and Management qualification;
(b)a COE for a Diploma of Leadership and Management (with course dates from 3 June 2024 to 30 May 2025); and
(c)a COE for an Advanced Diploma of Leadership and Management (with course dates from 4 August 2025 to 2 August 2026).
THE EXTENSION OF TIME HEARING
The applicant first appeared before this Court (via video link) on 24 May 2024 at a hearing of an application for an extension of time without legal representation. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
The materials before the Court (at that time) included the application for judicial review (including an application for extension of time within which to make that application) and supporting affidavit filed by the applicant on 15 October 2019, a court book numbering 73 pages (marked as Exhibit 1), materials sent to the Court by the applicant on 23 May 2024 (outlined above, marked as Exhibit 2) and written submissions filed on behalf of the Minister on 28 February 2024.
Following the hearing, the Court handed down its decision in Singh (on 7 June 2024). By that decision, the Court determined that it was in the interests of the administration of justice for the Court to grant the applicant an extension of time within which to file his substantive application.
Relevantly, the Court made orders (on 7 June 2024) as follows:
1.The time allowed for the applicant to make an application for judicial review in this matter is extended to 15 October 2019 pursuant to s 477(2) of the Migration Act 1958 (Cth).
2.The matter will now be listed for a final hearing on 8 August 2024 at 2.00pm (AEST) / 12.00pm (AWST) by video link.
3.The applicant file and serve written submissions and any further evidence by 27 June 2024.
4.The first respondent file and serve any further written submissions and any further evidence upon which he relies by 18 July 2024.
5.Costs be reserved.
The reasons in relation to the granting of the extension of time were set out in this Court’s decision in Singh and, to the extent that it is necessary to do so, will be discussed below.
On 17 July 2024, Mr Christopher Orchard (“Mr Orchard”) from Sparke Helmore (solicitor for the Minister) contacted the Court to request additional time to file further evidence (including a transcript of the Tribunal hearing) and written submissions on behalf of the Minister. The Court granted additional time (to 1 August 2024) within which to do so.
On 25 July 2024, an affidavit of Mr Orchard (affirmed on 25 July 2024) was filed (the “Orchard affidavit”). That affidavit annexed a transcript of the Tribunal hearing (which took place on 3 September 2019).
On 30 July 2024, the parties were notified that the final hearing in this matter would occur on 22 August 2024 (at 2.00pm (AEST) / 12.00pm (AWST)).
On 1 August 2024, further written submissions were filed on behalf of the Minister.
THE FINAL HEARING
A final hearing was held in this matter on 22 August 2024.
The applicant appeared before this Court at that hearing. He appeared without legal representation and via video link. Mr Orchard appeared at the final hearing on behalf of the Minister (also via video link).
The additional materials before the Court included the Orchard affidavit (which was taken as read and in evidence at the final hearing) and further written submissions filed on behalf of the Minister on 1 August 2024.
Noting that the applicant was unrepresented, the Court gave him a further opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court again explained to him that (as discussed at the extension of time hearing) the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. It was again stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. The Court again explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background the applicant stated that the Tribunal “could have given him some time, even just a week, by adjourning the matter” so that he could enrol in the course. The applicant stressed that, if he had been given another week and another hearing before the Tribunal, he could have provided the Tribunal with a COE.
The applicant’s oral submissions at the final hearing largely echoed the concerns raised by him at the extension of time hearing. The submissions will be addressed by the Court below.
APPLICATION TO THIS COURT
Grounds of review
As explained by this Court in Singh (at [60]-[63]), the application for judicial review (filed by the applicant on 15 October 2019) contained eleven “grounds of review” as follows (without alteration):
1.I wish to submit my application to review my case in court as it was dismissed by DIBP and MRT. I applied for Student visa subclass 500 which got refused as both the authorities refused my study intentions as genuine.
2.With the aim to fulfill my professional and academic needs to have future in the sector of my liking I fetch the knowledge and academic qualification in nursery Horticulture. I currently have qualifications that are very much industry based and centered on the ‘hands on’ practicalities of being in the horticulture industry. These qualifications do not help when it comes to·running a business within this industry when I return to India on completion of my studies.
3.I have completed Certificate III in Horticulture (Wholesale Nursery), Certificate IV in Horticulture and Diploma of Horticulture and Advanced Diploma of Agribusiness Management to achieve future goals. I have also equipped me with skills in Agri Business.
4.To finish off with my academic journey and be benefitted to lead and mange my own business in the chosen field, I also wanted to gain knowledge and skills which I don’t possess at present, in leadership and management by completing Diploma and Advanced Diploma of Leadership and Management.
5.I wish to submit that I wanted to complete all my studies from Australia because in my chosen field of studies, Australian institutes provide detailed knowledge of course contents. There are no institutes in India that provide in depth professional knowledge in the field of Horticulture. It is a very new concept in India and Indian institutes lack new techniques and practical knowledge in this field. In addition Australian Qualification is highly regarded in India and it gives a solid impact in your resume or business profile to be trained in Australia in this field. The added advantage of doing this course from Australia is that it would provide me exposure on international level as well, which is highly valuable for export department of any nursery.
6.The reason I chose horticulture was that I’d been interested in it for a long time, it will bring together all my interests in the one craft, and will allow me to work ‘hands on’. The thing I most admire about this career is creating beauty for people to enjoy. The job is so rewarding that it’s what I’ll continue doing for a long time yet. Unlike the obsolescence of many technical jobs, the horticulture skills and knowledge I learn today and tomorrow will last a lifetime. There is a wide range of career paths available in horticulture part of the beauty of horticulture as a career option is that it lets me carve out a niche that meets my own talents and aspirations. Therefore I wish to complete the proposed studies to prepare myself educationally for productive role in this fast growing Horticulture (Nursery) industry.
7.For efficiency and success in this field, related studies is must in the desired areas for example varieties of various ornamental plants like shade loving foliage plants, flowering plants, creepers, plants are suitable for domestic market like parks, gardens and roadside plantations, offices, business houses, hospitals, residential buildings. And on the other hand export potentiality of nursery products is also very high. Seeds, bulbs, tubers, cactus, flowering plants, foliage plant, unrooted cuttings and cut flowers are exported from India to many countries such as Australia, Netherlands, UAE, Japan, UK, Singapore, Germany, New Zealand, etc.
8.I am from Punjab region, one of the most fertile states of India. The region’s mild climate, fertile soils and abundant water are the major driving factors for me to get into this industry. In addition, India’s economy is growing significantly. Housing, highway construction, beautification and scenic programs etc. have increased the demand of the demand for nursery stock. All these factors and my related studies would definitely play a vital role in success of my business plans.
9.But my visa application was refused, as I was not considered as genuine student. The AAT member did not provide me opportunity to give reasons for not having current CoE and how the college got signature from me to cancel my CoE even after paying course fees.
10.The AAT member just said that he could only continue the hearing if I had current CoE. But the fact was the college refused me to issue CoE without valid visa. I had already completed 5 units out of 12 units of Diploma of leadership and Management. I wanted to explain to the member that it was some sort of conspiracy at the institute end as they might not have enough students to continue the batch, they cancelled my CoE after visa application refusal otherwise even after the refusal I would d have continued and finished all my studies till AAT hearing. The tribunal member has not followed the hearing procedure by not providing me opportunity to put my claims and reasons in front of AAT for fair decision. Hence AAT had committed Jurisdictional error in my case. AAT also not provided me any written decision for 30 days after the oral decision was provided on 03/09/2019. I requested them for it after my hearing and I even emailed them on 11/09/2019 (which is within 14 days) and confirmed the same by phone. AAT took 22 days to provide written decision. I then have to prepare my file for Federal Circuit court in a short time. I have been unfairly treated by AAT.
11.I earnestly look forward to do finish these 3 courses and would be highly thankful for your kind consideration towards my case.
Having considered all of the materials before the Court (including the applicant’s grounds of review, his oral submissions before this Court and the documents contained in Exhibit 2) and noting that the applicant was unrepresented in this matter, the Court has interpreted the applicant’s concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391).
On that basis, the Court considers the applicant to be asking the following questions:
(a)whether the Tribunal erred by failing to provide the applicant with written reasons for its decision within 14 days of the applicant’s request; and
(b)whether the Tribunal erred by denying the applicant procedural fairness in respect of its obligations under s 360 of the Act.
These two questions will be discussed below.
Whether the Tribunal erred by failing to provide the applicant with written reasons for its decision within 14 days of the applicant’s request
Having already determined that no arguable case of jurisdictional error arose in relation to this first question at the extension of time hearing (see Singh at [64]-[73]), the Court does not need to revisit that issue in this judgment.
In circumstances where no arguable case of error arises, no jurisdictional error can be found.
Whether the Tribunal erred by denying the applicant procedural fairness in respect of its obligations under s 360 of the Act
This question was also addressed by this Court in Singh (at [74]-[92]). On the evidence before the Court at the extension of time hearing, the Court considered that there was at least an arguable case (judged at a reasonably impressionistic level) that the Tribunal had erred by denying the applicant procedural fairness in respect of its obligations under s 360 of the Act: Singh at [92].
The analysis provided in Singh is repeated below (with some minor amendments and additions).
The applicant (at the extension of time hearing) complained that the Tribunal did not “ask” him to provide a COE and that, had they done so, he could have obtained a COE “within a week”. Essentially, the applicant appeared to suggest that he was not aware that he was required to have a COE at the time of the Tribunal’s decision.
The applicant echoed these concerns at the final hearing before this Court.
The Court notes that as per s 360 of the Act (as was in force at the time of the Tribunal’s decision) the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 360 of the Act is in relevantly identical terms to s 425 of the Act (in force at the time of the Tribunal’s decision and relevant to any review of decisions relating to protection visas). The High Court considered the Tribunal’s procedural fairness obligations in a protection visa context (relating to the Tribunal’s compliance with s 425 of the Act) in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”) at [33].
In SZBEL, the High Court explained as follows (footnotes omitted):
32. In Alphaone the Full Court rightly said:
“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.” (emphasis added)
…
35.The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. 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.
The Court notes the further explanation provided by Justice Mortimer (as the Chief Justice then was) in Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 (“MZAIV”) regarding the Tribunal’s compliance with its obligations (again in relation to s 425 of the Act, which largely mirrored the provisions in s 360 of the Act), as follows:
54.There are any number of ways a Tribunal can comply with its procedural fairness obligation, as understood in SZBEL. One way is by including in the hearing invitation particular issues it wishes to raise with an applicant, and this is often done. If that is not done, then there may be a greater obligation on a Tribunal to give an applicant a meaningful and reasonable opportunity to present further evidence, or provide further information, if matters are not raised in advance of a hearing. What happens at a hearing under s 425 may mean, in a particular case, that a failure to give advance notice, combined with what occurs at the hearing, results in a denial of procedural fairness. In my opinion that was how the Federal Circuit Court, and the first respondent in his submissions, approached the matter in this appeal.
…
57.Section 425 has been consistently construed, in this Court and in the High Court, as imposing an obligation to afford procedural fairness which extends beyond the Tribunal ensuring that an applicant is able to attend for a hearing. Section 425 has been consistently construed as going to the manner in which the Tribunal must conduct a hearing, and the kinds of issues it may need to raise with an applicant, including that the opportunity to appear and present evidence and arguments must be a real and meaningful one.
The Court also highlights an additional passage from MZAIV, which provides as follows:
63.The question will always remain whether a particular applicant in the particular circumstances of her or his review by the Tribunal was afforded a meaningful opportunity to appear before the Tribunal, and to make arguments and present evidence. Not a token, or unfair opportunity, but a meaningful one. Nevertheless, it is an opportunity - the Tribunal does not have to go out of its way to ensure an applicant makes the most of the opportunity that is given. With hindsight, an applicant may invariably consider she or he could have made more of the opportunity she or he was given. In my opinion that is the case here.
In this matter, the dispositive issue before the delegate was whether the applicant met what is known as the “genuine temporary entrant criterion” (as required by cl 500.212 in the Regulations). The dispositive issue before the Tribunal, however, was different. Before the Tribunal, the issue was whether the applicant was enrolled in a registered course of study (as required by cl 500.211 in Schedule 2 of the Regulations).
The Court notes that the delegate’s decision was made on 6 June 2017 (CB 37-42).
The applicant sought review of that decision by the Tribunal on 19 June 2017 (CB 43-48). On 13 August 2019 (more than two years later), the Tribunal invited the applicant to attend a hearing before it to “give evidence and present arguments relating to the issues arising in [his] case” (CB 52-54).
Nowhere in that hearing invitation was the applicant informed that, in order to be eligible to be granted the visa, he was required to be enrolled in an approved course of study at the time of the Tribunal’s decision. Nor did the letter inform him that he needed to show that he was “currently” enrolled in any course of study. The letter simply asked that “any additional documents or information that [the applicant] may wish to rely on during the hearing be provided [to the Tribunal] by 27 August 2019” (CB 54).
As explained by the High Court in SZBEL, unless the Tribunal identifies some other issue than that which arose before the delegate, an applicant is entitled to assume that the issues the delegate considered dispositive are the issues that arise in relation to the decision under review: SZBEL at [35].
As outlined above, the determinative issue before the delegate differed to that which was before the Tribunal.
Whilst the Court acknowledges that there is no obligation to give an applicant notice of the issues of concern in advance of the hearing (as explained in AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156 at [39]), as highlighted by Justice Mortimer (as the Chief Justice then was), the Court must look at whether the applicant in “the particular circumstances of … his review by the Tribunal was afforded a meaningful opportunity to … present evidence”: MZAIV at [63].
The Court acknowledges that it appears the Tribunal was alive to the fact that the issue before it differed to the issue before the delegate. It is unclear, however, from the Tribunal’s reasons, the extent to which that was discussed with the applicant at the hearing before it.
The Tribunal’s reasons in this regard are as follows:
8.The issue before the delegate was whether the applicant met the criterion in clause 500.212, known as the genuine, temporary entrant requirement. However, the issue is now whether, at the time of the decision, the applicant meets the enrolment requirements for a student visa.
9.In considering this question, the tribunal has had regard to PRISMS records, but did not rely on them because the applicant gave evidence about the matters covered in those records and the tribunal accepts the applicant’s evidence and relies on that.
10.The applicant’s evidence in that respect was that he is not enrolled and does not have a confirmation of enrolment. The tribunal also has regard to documentation provided by the applicant, including the delegate’s decision at first instance. The tribunal did not rely on other documents.
It is clear from the passages above that the applicant was asked whether he was currently enrolled in a course of study or if he otherwise had a current COE.
However, in the circumstances of this matter, where the issue before the delegate was whether the applicant was a genuine temporary entrant, and where no mention was made prior to the hearing of any further issue regarding the requirement to be enrolled in a registered course of study, the Court was concerned that the applicant may not have been given a “meaningful opportunity” to present evidence in relation to the issue before the Tribunal (being whether or not the applicant was enrolled in a course of study).
The Court noted that the applicant in this matter had arguably attended the Tribunal hearing assuming that he would be asked to provide evidence to address the genuine temporary entrant criterion. This is not a case where the applicant “with hindsight” considers he could have “made more of the opportunity … he was given”: MZAIV at [63]. This is a case where the applicant was arguably “caught off guard” by questions relating to a completely different visa criterion.
The Minister (in further written submissions filed in this Court on 1 August 2024) considered that the Court’s main concern was that the Tribunal had erred in the manner set out in SZBEL because it had not put the applicant on notice of a mandatory requirement for his visa in advance of the hearing.
That was not the Court’s main concern. Rather, the Court was concerned that, having not put the applicant on notice ahead of time (for example, by way of the hearing invitation) of an issue that it wished to raise with the applicant, the applicant may not have had a meaningful opportunity to provide evidence. In that regard, the Court relied upon the following statements made by Justice Mortimer (as the Chief Justice then was) in MZAIV, as follows (emphasis added):
54.There are any number of ways a Tribunal can comply with its procedural fairness obligation, as understood in SZBEL. One way is by including in the hearing invitation particular issues it wishes to raise with an applicant, and this is often done. If that is not done, then there may be a greater obligation on a Tribunal to give an applicant a meaningful and reasonable opportunity to present further evidence, or provide further information, if matters are not raised in advance of a hearing. What happens at a hearing under s 425 may mean, in a particular case, that a failure to give advance notice, combined with what occurs at the hearing, results in a denial of procedural fairness. In my opinion that was how the Federal Circuit Court, and the first respondent in his submissions, approached the matter in this appeal.
…
57.Section 425 has been consistently construed, in this Court and in the High Court, as imposing an obligation to afford procedural fairness which extends beyond the Tribunal ensuring that an applicant is able to attend for a hearing. Section 425 has been consistently construed as going to the manner in which the Tribunal must conduct a hearing, and the kinds of issues it may need to raise with an applicant, including that the opportunity to appear and present evidence and arguments must be a real and meaningful one.
The Court also highlighted the following additional passage from MZAIV which provides as follows (emphasis added):
63.The question will always remain whether a particular applicant in the particular circumstances of her or his review by the Tribunal was afforded a meaningful opportunity to appear before the Tribunal, and to make arguments and present evidence. Not a token, or unfair opportunity, but a meaningful one. Nevertheless, it is an opportunity - the Tribunal does not have to go out of its way to ensure an applicant makes the most of the opportunity that is given. With hindsight, an applicant may invariably consider she or he could have made more of the opportunity she or he was given. In my opinion that is the case here.
As noted above, the Orchard affidavit was filed on 25 July 2024 (on behalf of the Minister). That affidavit annexed a transcript of the Tribunal hearing and provides some context to the discussions the Tribunal had with the applicant at that hearing and the opportunity afforded to the applicant by the Tribunal to give evidence about his lack of enrolment. It is unfortunate that this was not provided to the Court before the extension of time hearing.
The transcript of the Tribunal hearing (annexed to the Orchard affidavit) relevantly shows that the following discussion was had with the applicant about his enrolment (see pp 3-4 of the transcript):
Yes. Okay. Well, thank you for that. I suppose one of the things I am interested in is whether you’re studying at the moment?---I’m not studying at the moment.
And why is that?---Because (indistinct) when I was enrolled in the college, and when I was doing the course, they have, like, contract system and I have to pay the fees first, but the thing is that I got the visa refusal, and if I pay now fees for the whole semester, and I (indistinct words) hearing. So just in case in the hearing if I got the refusal, then (indistinct words). So that’s why I stopped going to college, and then I got a call from college that you have to come to the college to sign on some papers.
All right. There’s a contract system, you have to pay the fees first. When you got the refusal - - -?---(Indistinct.)
When you go the refusal, you cancelled, did you? Or you stopped going?---Yes.
Cancelled it? Did you cancel it or just stop (indistinct)?---(Indistinct). I got a call from college that if you are not coming, then we have to report it to the immigration, and they will deport you. (Indistinct) and they asked me to sign some papers so that they can see that I’ve cancelled COE.
They said they’ve cancelled your COE, and you would be deported?---(Indistinct) we have to inform to immigration if you don’t (indistinct).
And was that before you made your application for review - application to the AAT (indistinct)---Yes.
Yes. Okay. You went in and signed some papers at the college?---I think 2017, just (indistinct) the AAT.
Sorry?---I’m not sure of the exact date.
That’s okay. In about 2017?---Yes. It happened just after the – when I got the visa refused.
Yes. And then you put your appeal into the AAT?---Yes.
As correctly submitted by the Minister (in further written submissions filed in this Court on 1 August 2024), this discussion is reflected at paragraphs [9]-[10] in the Tribunal’s reasons (as set out above).
The Court also notes that the applicant gave oral evidence to the Tribunal that he was “not studying at the moment” (in response to the question of whether he was studying). Pursuant to s 359A of the Act (as was in force at the time of the Tribunal’s decision), the Tribunal was requited to “give the applicant … clear particulars of any information that the Tribunal consider[ed] would be the reason, or part of the reason, for affirming the decision” under review. However, that requirement does not extend to information that the “applicant gave for the purpose of the application for review”: s 359A(4)(b) of the Act. As is evidenced by the exchange between the Tribunal and the applicant (set out above), the applicant in this matter gave very clear evidence to the Tribunal that he was not studying at the time of the Tribunal hearing. There was thus no requirement for the Tribunal to comply with the requirements set out in s 359A (or s 359AA) of the Act.
The Tribunal also had a further (lengthy) discussion with the applicant about why he was not enrolled in a course of study and had not been studying.
That further discussion was as follows (see pp 4-7 of the transcript annexed to the Orchard affidavit):
Have you got a bridging visa?---Yes.
How much of your course did you have to do at this stage?---For the – for the half (indistinct) or the whole (indistinct).
Well, you’ve done, you said, just under have the course?---Yes, half of the course. I think 5,000 approximately, 4000, 5000 approximately.
Dollars?---Yes.
Yes?---(Indistinct) the six month (indistinct words) I finish only half.
You had about four or $5,000 left- - -?---Approximately.
- - - that you still had to pay. Yes. All right. Well, this is an important issue because I can’t give you a visa if you’re not enrolled in anything. I don’t have the power. At the time of my decision, you have to be enrolled in a course for me to be able to give you visa?---Yes, I can ask them to – they can enrol me. The thing is, I don’t even know that why they asking for me to come to cancel the COEs. There are certain (indistinct) that if (indistinct) pay the fees, I can keep studying on the same subject which (indistinct).
Okay. You’re saying you didn’t know why they asked you to sign the papers?---Yes, but they only – they only went – they only told me that if you do not sign the paper, we have to inform the immigration, because immigration ask for (indistinct words) immigration, and they can deport you. So that’s why I signed the papers.
Were you going to – were you attending college at that stage?---No, not at that stage. The thing is if I attend to college I have to pay the fees, but the thing is, I don’t even know that the hearing takes too long. So if hearing comes at, like, after two months or three months, but I paid the full amount of the fee, I can’t study. I can’t finish the whole study.
Did you ask anyone how long it would take for the AAT hearing to come up?---No. No. (Indistinct words) migration agent.
Why not?---Because he asked for money.
All right?---And (indistinct) I think they gave the same reason with which one I will tell to them, and they will give me any written paper to submit to you submission. (Indistinct) I can directly talk to you sir.
Yes. Look, I understand what you’re saying, but the problem is I can’t give you a visa because you’re not enrolled in anything. I don’t have the power to give you a visa because it’s a requirement that you’re enrolled at the time of my decision. When the delegate considered this matter, the delegate was concerned about whether you were just enrolling in a series of short, cheap courses to stay in Australia, and that you weren’t a genuine student. That’s the basis that he made his decision, but it’s come before me, and when you went before the-when the delegate made their decision, you were enrolled in this diploma of leadership and management at Ironwood, but you come before me without any enrolment, then you don’t satisfy the time of decision criteria, and I can’t give you a visa?---Okay, but- sorry.
Yes?---The thing is, if I get enrolled on that time, my hearing is open after two years, if I come to you, within two years I would (indistinct) – how can I come here with an enrolment? Because the visa – only – my study was, like, only for one and a half year, and appeal the hearing is open after two years. So how can I come with the COE?
You’re asking how you could come with a confirmation of enrolment after waiting two years for the appeal to come up because you probably would have been finished?---Because my study was (indistinct words).
But isn’t the point that you’re here to get those qualifications then go home?
That’s the whole point of a student visa?---Yes.
How does that help you?---When – (indistinct) the visa?
Just a minute. You’ve got a couple of different issues here. You’ve asked me how you would come before me with a confirmation of enrolment if you’d continued to study because the appeal took so long to come before me that you would have finished all your studies?---Yes.
Yes. When you say that to me, it sounds like you’re just getting your enrolment so that you can stay in Australia. You’re not really here to study?---Sorry?
Well, if you’re concerned that you would have finished your study before your appeal came up, wouldn’t that be a good thing? You’d then have your qualifications and you could go home?---Yes, that’s a good thing but if I want to do another study because I’m planning – I was planning to do agriculture which is (indistinct) degree.
Yes. You’ve done some of that, and you’ve done some horticultural stuff, have you, too?---Yes.
That’s referred to in the delegate’s decision I think?---I’ve done the horticulture certificate III, IV.
Yes. Well, how long do you want to stay in Australia?--- I only want to finish this study right now because the thing is, I can go back.
Yes?---But the thing is I don’t want to tell to my parents that I got deported or I got (indistinct) in Australia, just in case if I want to come in the future. The thing is I am only here for the study, and soon my dad is going to be retired and (indistinct words).
All right. Well, whatever the answer is there, it comes back to the same thing?---Yes.
You’re not enrolled, I can’t give you a visa?---But there’s still the concern that if I get enrolled, I finish the study, but the finish the study (indistinct words) one and a half year, and the hearing is not – it even takes two years.
So if I finish the study first, and then I come to the hearing, and you told me that you can’t get the visa because you don’t have a COE. How can I get the COE?
Well, wouldn’t you enrol in the further study that you were talking about?---Yes. Then after I finish both studies, I was planning to enrol in the agriculture, but the thing is if the visa is refused, how can I – how can I study?
Okay?---I don’t – I don’t – I mean, I only want to finish this study. The thing is, I understand - - -
How long have you been here?---10 years.
And this course that you’re doing is leadership and management?---Leadership and management.
And what’s that got to do with agriculture?---Because I’ve done the horticulture certificate III, IV, and the business management, and the diploma of business management, and after that I want to do the leadership and management because I’m planning to go back to the country after finishing this study to start a business, because as you can see the payslip, I used to work with a landscaping company, and responsibility was to do with leadership.
Well, look, I’ve heard what you say, and I’m not going to make any comment about the genuine temporary entrant issues because we just don’t get that far.
You’re not enrolled. I can only grant you a visa if you’re enrolled so my hands are tied. My decision will be to refuse your application, and that’s the decision I do make. Is there anything else you’d like to say?---I’m still confused with the – I mean, the hearing time is two years. If I finish the study before the hearing – I’m still a bit confused.
Okay?---I mean, I don’t have the COE, but if you can just explain this to me?
It’s quite simple. The Act says that if you don’t have a – if you’re not enrolled, and you don’t have a COE, we don’t have the power to grant you a visa?---The thing is if I – if I come – if I come to you after I finish the study, and you ask the same question again - - -
Well, you need to be enrolled in something to get a student visa. It’s a very simple concept?--- I can start (indistinct).
No. You’ve come to me, and you’ve asked for my decision. You’re not enrolled. My decision has to be to refuse your visa application. All right. Twenty-one minute mark, and I'll provide my oral decision.
As can be seen from the above passages, the Tribunal asked the applicant questions about why he was not studying (at the time of the Tribunal hearing), how that came about and when he stopped studying (and why) and why he had chosen not to enrol in a course of study or continue progressing his studies by enrolling in the subsequent courses that the applicant told the Tribunal he intended to enrol in (upon completion of the studies for which he had sought the student visa the subject of this application).
The Court is satisfied, based on the discussion that was had with the applicant at the Tribunal hearing (set out above and extracted from the transcript of the Tribunal hearing) that the applicant was provided with a “meaningful opportunity” to give evidence to the Tribunal about his lack of enrolment or lack of a COE.
To the extent that the applicant suggests that he requested (and was not granted) an adjournment or additional time within which to provide or obtain a COE, the Court disagrees for the reasons that follow.
Whilst the Tribunal had the power (pursuant to s 363(1)(b) of the Act as in force at the time of the Tribunal’s decision) to “adjourn the review from time to time”, that power was discretionary and there was no obligation on the Tribunal to do so.
There is no evidence (in the transcript of the Tribunal hearing annexed to the Orchard affidavit or in the Tribunal decision) to suggest that the applicant requested additional time from the Tribunal to obtain a COE or that he asked the Tribunal for an adjournment of the hearing.
Whilst the Tribunal may still adjourn a matter (and, as noted above, has the power to do so pursuant to s 363(1)(b) of the Act) from time to time, the Court is satisfied that there was no reason to suggest that in this particular matter an adjournment would result in a different outcome. There was not, for example, any evidence to suggest that the applicant had an offer of enrolment, that he had contacted any educational institutions to enquire about any enrolment or that he had commenced any studies and was in between semesters.
The Court also notes that, as correctly submitted by the Minister, the Tribunal made its decision based on the evidence provided to it by the applicant. That evidence indicated, unequivocally, that the applicant was not currently studying and that he had no COE. There was no obligation for the Tribunal to afford every opportunity to the applicant to present his best possible case or to “press an applicant to call for further evidence on [the] issue or to seek an adjournment of the hearing to enable him to do so” or, in fact, “to seek out such evidence itself”: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [22] (in relation to analogous provisions set out in s 425 of the Act as in force at the time of the Tribunal’s decision).
No jurisdictional error arises in this regard.
Additional documents provided by the applicant
As outlined above, on 23 May 2024, the applicant sent an email to the Court with three documents attached, as follows:
(a)a Statement of Attainment from Ironwood Careers & Training outlining the units the applicant had attained forming part of the Diploma of Leadership and Management qualification;
(b)a COE for a Diploma of Leadership and Management (with course dates from 3 June 2024 to 30 May 2025); and
(c)a COE for an Advanced Diploma of Leadership and Management (with course dates from 4 August 2025 to 2 August 2026).
Those documents were referenced as Exhibit 2 at the extension of time hearing.
The applicant also sent emails to the Court following the final hearing annexing the following documents:
(a)a COE for a Diploma of Leadership and Management (with course dates from 2 September 2024 to 29 August 2025);
(b)a COE for a Diploma of Leadership and Management (with course dates from 2 December 2024 to 15 December 2025); and
(c)a COE for an Advanced Diploma of Leadership and Management (with course dates from 1 December 2025 to 29 November 2026).
An application for judicial review is, ordinarily, limited to the material that is before the Tribunal: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145. Further, any new evidence should not be permitted for the purpose of showing a finding of fact was wrong or to better support an applicant’s claims and evidence.
Here, the materials detailed above were not before the Tribunal and the Court considers that the purpose for which the applicant has provided the documents to the Court is, in effect, to engage in impermissible merits review.
The Tribunal’s decision was made on the evidence before it at the time of its decision (being on 3 September 2019). The fact that the applicant has now provided COE documents (dated some five years after the Tribunal’s decision) to the Court that were not provided to the Tribunal is not evidence of any error on the part of the Tribunal.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review, the applicant’s oral submissions and the documents provided to the Court by the applicant have not identified any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 December 2024
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