Singh v Minister for Immigration and Multicultural Affairs (No 3)
[2024] FedCFamC2G 1304
•28 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs (No 3) [2024] FedCFamC2G 1304
File number(s): SYG 914 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 28 November 2024 Catchwords: MIGRATION – Judicial Review – Where Tribunal had before it information containing allegations against applicant – Where Tribunal failed to consider such information – Where Tribunal failed to put the allegations to the applicant – Whether such failure breaches statutory procedural fairness and natural justice requirements – Error established – Materiality – Where it is unknown what the applicant’s response to the allegations would be – Utility – not futile to grant relief Legislation: Migration Act 1958 ss 116, 338, 348, 353, 357A, 376, 359A, 359AA, 360, 360A, 368, 430, 477 Cases cited: Abebe v Commonwealth 197 CLR 510
Khan v Minister of Immigration and Citizenship (2011) 192 FCR 173
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 380
SZASX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 680
SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297; [2007] HCA 26
Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 115 Date of hearing: 6 November 2024 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr Hillyard Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 914 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURPARTAP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
28 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the Second Respondent is amended to the ‘Administrative Review Tribunal’.
3.A writ of certiorari issue quashing the decision of the Second Respondent made on 19 February 2020.
4.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
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 SKAROS:
By application filed 16 April 2020, the applicant sought an order under s 477(2) of the Migration Act 1958 (the Act) to extend the time for him to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 19 February 2020, affirming the decision of a delegate (the delegate) of the First Respondent (the Minister) to cancel the applicant’s Student (Class TU) (Subclass 500) visa (the visa). On 11 October 2024, the Court made orders pursuant to s 477(2) of the Act extending time for the originating application to be made up to and including 16 April 2020.
Accordingly, this judgment is in respect of the substantive grounds of judicial review contained in the application filed on 16 April 2020.
BACKGROUND
The applicant is a 30-year-old male citizen of India. He first arrived in Australia on 21 December 2014 as the holder of a Student (Class TU) (subclass 573) visa. On 13 November 2018, he was granted the subclass 500 visa which was valid until 25 December 2020.
One of the conditions imposed on the visa was that the applicant must be enrolled in a full-time registered course: Condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (the Regulations).
On 15 October 2019, the delegate issued the applicant a ‘Notice of Intention to Consider Cancellation’ (NOICC) on the basis that the applicant had not complied with condition 8202(2) of his visa: s 116(1)(b). The NOICC explained that the applicant appeared not to have complied with the condition to remain enrolled in a registered course. The NOICC invited the applicant to give reasons why his visa should not be cancelled.
On 22 October 2019, the applicant sought an extension of time in which to provide those reasons, and an extension was granted. Nevertheless, the applicant did not provide any response to the NOICC.
On 14 November 2019, the delegate cancelled the visa pursuant to s 116(1)(b) of the Act and was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel it.
On 22 November 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 2 January 2020, the Tribunal invited the applicant to appear before it at a hearing on 24 January 2020, which he attended and gave evidence and presented arguments.
On 20 January 2020, the applicant provided the Tribunal submissions and evidence in support of his application.
On 24 January 2020 the applicant attended the hearing before the Tribunal. On 19 February 2020, the Tribunal affirmed the delegate’s decision to cancel the visa.
THE TRIBUNAL’S DECISION
The Tribunal identified the issue on review as whether the ground for cancellation is made out and if so, whether the visa should be cancelled. The Tribunal then outlined the relevant condition 8202 and the documents provided to the Tribunal by the applicant.
The applicant confirmed to the Tribunal that he had not been enrolled in a registered course since 29 July 2019.
The Tribunal then set out the consideration of the discretion as to whether the visa should be cancelled. It noted that the Act and Regulations did not specify any particular considerations and that it had regard to matters in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’ (the departmental policy).
The reasons given by the applicant to the Tribunal as to why he was not enrolled in a course of study and why he had not completed any course of study since 13 November 2018 was that his mother had a car accident in July 2019 which caused him severe stress and anxiety and he had forgotten to enrol in a course. The Tribunal noted that the applicant’s mother was discharged from hospital on 8 August 2019 in a satisfactory condition and the applicant confirmed that his mother had now fully recovered. The applicant also said he failed some units of his bachelor’s degree in the second semester of 2018 and went to India to visit family from December 2018 to February 2019.
The Tribunal then considered whether the applicant’s visa should be cancelled in accordance with the departmental policy:
·The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia: The Tribunal gave some weight to the stress and pressure the applicant may feel upon returning to India due to disappointment from his parents but noted that this did not ameliorate his failure to prioritise his studies.
·The extent of compliance with visa conditions: The Tribunal noted the applicant’s evidence that he had complied with all other conditions of his visa and that there was nothing before it to indicate this was not the case. It also noted the applicant’s evidence that he complied with all conditions in respect of his initial student visa and noted that the evidence supported his assertions. The Tribunal gave some weight in favour of the applicant, however, it gave considerable weight to the extent of the applicant’s current non-compliance with the condition 8202 of the visa.
·Degree of hardship that may be caused: The Tribunal accepted that the cancellation of the visa would be disappointing, that the applicant’s family members may feel let down and disappointed, and that a cancellation may contribute to the applicant’s emotional pressure and stress. However, this did not outweigh the breach of the conditions of the visa and the Tribunal, therefore, gave it little weight.
·Circumstances in which the grounds of cancellation arose: the Tribunal gave some weight to the applicant’s difficulties with his studies and the impact of his mother’s accident. Noting that the applicant had not completed any courses since the grant of the visa, the Tribunal did not accept that this created a compelling need to remain in Australia in light of the period of time in which the applicant had not studied. Further, the Tribunal noted student visas are granted for the purpose of studying and achieving a qualification. Overall, the applicant’s circumstances were not sufficient to outweigh the reasons for cancelling the visa because of the seriousness of the breach.
·Past and present behaviour of the applicant toward the Department: the Tribunal found there was nothing before it to indicate any adverse conduct by the applicant and gave this some weight in favour of the applicant.
·Whether there are mandatory legal consequences arising from a cancellation: the Tribunal noted the applicant would need to obtain a bridging visa if the visa was cancelled and that he would face a three-year exclusion period, however, these are natural consequences of a cancellation, and the Tribunal gave them minimal weight.
The other considerations in the departmental policy were not considered relevant to the Tribunal’s decision in this case.
Considering all the circumstances as a whole, the Tribunal concluded that the visa should be cancelled.
APPLICATION TO THIS COURT
The application which commenced proceedings in this Court contained five proposed grounds of review which have been considered by the Court further below.
In compliance with orders made on 18 June 2020 by a Registrar of this Court, the Minister filed the Court Book on 27 July 2020. The Minister’s written submissions were filed on 22 October 2020.
On 23 August 2024, the Minister filed further written submissions which replaced those filed on 22 October 2020.
On 3 September 2024, the parties were notified by email that the matter was listed for an extension of time hearing in person at the Parramatta Registry on 10 October 2024.
On 4 October 2024, the Minister filed an Affidavit of Emily Maker, affirmed on the same day, which annexed two documents containing redacted information (the Maker Affidavit). Ms Maker is a solicitor employed by the law firm representing the Minister. Ms Maker stated that while reviewing the Department’s file she identified material which had not been included in the Court Book. That material comprised of an email dated 20 June 2019 sent to the Border Watch Allegations and Referral Team (annexure marked EM-1) and a document titled ‘Job Details Report’ dated 20 June 2019 (annexure marked EM-3). The documents contained allegations made about the applicant. The allegations were that the applicant was working ‘overtime/ even on cash’, that his Confirmation of Enrolment (COE) had been cancelled and that the applicant had not complied with visa conditions 8105, 8202 and 8216 (the dob-in information). The redacted information related to the identity of the person who made the allegations and to third-party information not relevant to the proceedings.
The Minister sought orders pursuant to ss 55(1), 56(2) and 130(1) of the Evidence Act 1995 that the redacted information not be adduced as evidence.
On 10 October 2024, the parties appeared before the Court and made submissions in respect of the Minister’s claim of public interest immunity, the request for third party information not relevant to the proceedings not be adduced, and the extension of time application.
As noted above, the Court made orders pursuant to s 477(2) of the Act that time for making the originating application be extended up to and including 16 April 2020 and gave ex tempore reasons for that order. The matter was listed for final hearing on 6 November 2024.
In respect of the claim of public interest immunity and the request for third party information not relevant to the proceedings not be adduced, the Court reserved judgment.
On 11 October 2024, the Court made orders that the applicant and Minister file and serve, at least 14 and 7 days before the final hearing, respectively, any further submissions they wished to rely upon.
The applicant did not file any further submissions, the Minister filed updated submissions.
On 6 November 2024, the Court made orders which upheld the Minister’s claim of public interest immunity. It also ordered the redacted third-party information, not relevant to the proceedings, not be adduced.
The parties appeared before the Court at the final hearing on 6 November 2024. The applicant appeared in person. Mr Hillyard, a solicitor advocate, appeared on behalf of the Minister.
The Court Book, filed on 27 July 2020, was tendered by the Minister at the hearing and was marked Exhibit CB.
The Affidavit filed by the applicant on 16 April 2020, in support of the application, included a copy of the Tribunal’s decision and notification letter. As these documents were included in the Court Book, it was not necessary to read them into evidence. Information provided in the affidavit, in so far as it related the proceedings, was taken into account as submissions.
The Maker Affidavit, which annexed the redacted documents, was taken as read.
Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
As no amended application or written submissions had been filed by the applicant, he was invited to make oral submissions in support of the grounds of review set out in his originating application. The Minister also made oral submissions at the hearing which developed the written submissions.
GROUNDS OF REVIEW
The originating application for judicial review raised the following grounds (without alteration):
1. The Tribunal failed to have proper regard to the Applicant’s circumstances and hardship and consequently failed to exercise its discretion properly.
2. The Tribunal erred in finding that the applicant’s visa should remained cancelled and failed to give proper weight and consideration to the oral and written statements and documents submitted by the applicant. By doing so, the tribunal erred jurisdictionally by failing to objectively and fully consider the evidence before it or by discounting the evidence before it.
3. The Tribunal has accordingly breached Sections 338, 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
4. The Tribunal has further breached Section 368 of the Migration Act by its failure to provide proper reasons for its decision and the findings on the material questions of fact on which the decision was made.
5. The decision of the Tribunal 19 February 2020 under review was and is invalid in that:
a. the Second Respondent (“the Tribunal”) wrongly affirmed the decision of the delegate;
b. the Tribunal reached a mistaken conclusion by saying that it does not accept that the Applicant’s present circumstances and failed to decide whether the circumstances were exceptional, whether there was non-compliance on behalf of the Applicant;
c. The Tribunal erred in finding that the Applicant has no compelling need to travel or remain in Australia;
d. The Tribunal failed to properly consider that the Applicant may be caused and faced with hardship if her visa was cancelled;
e. In light of the foregoing, the Tribunal acted improperly and unreasonably by affirming the decision of the delegate.
For reasons that will become apparent, the Court will consider the grounds in the following order: grounds one and two, ground four, ground five, and then ground three together with a ground raised by the Minister regarding the dob-in information.
Ground one and two
By grounds one and two the applicant asserts that the Tribunal failed to consider his circumstances, failed to give proper weight and consideration to his evidence, and thereby did not exercise its discretion properly.
No particulars were provided in support of these grounds. When invited to speak to these grounds at the hearing, the applicant said at the time his visa was cancelled by the Department he had not continued his studies. He said some things happened in his life. He started studying after completing his diploma, he then travelled to India, he returned to recommence studies in the bachelor’s degree, but he experienced financial hardship and could not cope with the situation. He said he tried to clarify the situation so that his COE would not be cancelled. He got the emails for payment and tried to pay the fees, but he was not given time. He said he informed the Tribunal about his circumstances and about his mother’s injuries in India, but they did not take it into account.
At [8] and [12]-[18] of its decision record, the Tribunal set out the documentary and oral evidence, as provided by the applicant, to which the Tribunal said it had regard. The Court accepts, as submitted by the Minister, that the Tribunal considered that evidence in determining whether to exercise its discretion to cancel the visa. Having recorded the applicant’s evidence in relation to his circumstances, the hardship he may experience, and his mother’s injuries, it is evident that the Tribunal had regard to that evidence when considering the circumstances in which the ground of cancellation arose: [29] – [32]. In respect of that consideration, the Tribunal gave some weight to these circumstances in favour of not cancelling the visa, but did not consider it sufficient to outweigh the reasons for cancelling the visa due to the seriousness of the breach.
The Court is satisfied that the Tribunal had regard to the evidence given by the applicant pertaining to his circumstances and the hardship he may experience if his visa was cancelled. To the extent the applicant’s complaint relates to the weight given by the Tribunal to his circumstances, it is well established that the weight given to evidence is a matter for the Tribunal: Abebe v Commonwealth 197 CLR 510, 580; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 [5]-[7]. No error can be found in the way the Tribunal apportioned weighed and, it is not for this Court to consider whether greater weight should have been given to the applicant’s circumstances. This would, as submitted by the Minister, be an invitation to impermissibly engage with the merits of the decision.
For these reasons, grounds one and two do not establish jurisdictional error.
Ground four
By ground four, the applicant alleges that the Tribunal had breached s 368 of the Act by its failure to provide proper reasons for its decision and its findings on material questions of fact.
Section 368 relevantly requires the Tribunal, where it makes its decision on a review (other than an oral decision) and, subject to ss 375A(2)(b) and 376(3)(b), to make a written statement that sets out the decision of the Tribunal on review, sets out the reasons for the decision; and the findings on any material questions of fact; and refers to the evidence or any other material on which the findings of fact were based; and records the day and time the statement was made.
The Tribunal’s written statement plainly sets out the decision of the Tribunal and the day and time on which the statement was made. It also sets out the evidence on which it found that the applicant had not complied with condition 8202(2) of the visa. In considering whether the visa should be cancelled, the Tribunal said it had regard to the evidence before it relevant to the circumstances set out in the departmental policy, including matters raised by the applicant. The Tribunal gave weight to the different circumstances to which it had regard and ultimately concluded at [39] that the visa should be cancelled.
As to the Tribunal’s findings on material questions of fact and the evidence or other material on which those findings were based, the Court refers to the comments made in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 in which McHugh, Gummow and Hayne JJ explained the purposes and operation of s 430 (the equivalent provision in Part 7 of s 368) at [68]–[69]:
A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.
It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material (Repatriation Commission v O’Brien (1985) 155 CLR 422 at 446, per Brennan J; Sullivan v Department of Transport (1978) 20 ALR 323 at 348–349, per Deane J; at 353, per Fisher J; cf Fleming v The Queen (1998) 197 CLR 250 at 262–263 [28]–[29]). This may reveal some basis for judicial review by the Federal Court…. For example, it may reveal that the Tribunal made some error of law... It may reveal jurisdictional error (Craig v South Australia (1995) 184 CLR 163 at 179). The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration (Ministerfor Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
The Tribunal set out its findings on the questions of fact that it considered to be material and referred to the evidence on which it made those findings.
As discussed further below, however, the Court has concluded that the Tribunal failed to take into account information (which was before it, but not known to the applicant) that was relevant to the circumstances it was required to consider as part of its discretion. So, while the statement of reasons revealed an error on the part of the Tribunal, it does not follow that a failure to comply with s 368 of itself, provides a separate ground for establishing jurisdictional error: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 at [46] and [47]).
Ground four does not establish jurisdictional error.
Ground five
By ground five, and the stated particulars, the applicant contends that the Tribunal, in affirming the decision under review, had acted unreasonably because; it did not accept the applicant’s present circumstances, it failed to decide whether the circumstances were exceptional and whether there was non-compliance; it erred in finding that there was no compelling need to remain in Australia; and failed to properly consider the hardship that may be caused if the visa was cancelled.
The Tribunal’s decision indicates that the Tribunal made the findings it was required to make regarding whether or not there had been non-compliance. The Tribunal found, on the basis of evidence before it, including that which had been provided by the applicant at the hearing, that the applicant had ceased to be enrolled in a registered course. The Tribunal’s finding that the applicant had not complied with condition 8202(2) of his visa was clearly open to it on the evidence.
In respect of the discretion, the Tribunal’s decision also indicates at [19], [24]-[28] and [31]-[32] that the Tribunal had regard to the applicant’s circumstances, including the evidence provided by him about why he wanted to remain in Australia and any hardship that may be caused if the visa was cancelled. The weight given to the various circumstances that were considered by the Tribunal (to the extent they were disclosed in its reasons) were a matter for it.
While the applicant may emphatically disagree with the Tribunal’s consideration of the evidence (to which it had regard) and its conclusions (based on that evidence), this is not a basis for challenging the decision on the ground of unreasonableness.
Ground five does not establish jurisdictional error.
Ground three
By ground three, the applicant contends that the Tribunal breached various provisions of the Act and thereby failed to conduct the review in manner that was fair and just.
No particulars were provided in support of these contentions and the applicant was unable to articulate at the hearing in what way the Tribunal had breached those provisions.
Sections 338 relates to the definition of Part 5 reviewable decisions and s 348 provides that, if an application for review of a Part 5 reviewable decision has been properly made, the Tribunal must review that decision. The applicant in this case lodged a valid application for review of a Part 5 decision and the Tribunal conducted a review of that decision.
Section 353 of the Migration Act provides that the Tribunal, in reviewing a Part 5 reviewable decision, is not bound by technicalities, legal forms or rules of evidence; and shall act according to substantial justice and the merits of the case. The Court accepts the Minister’s submission that this provision does not impose an obligation on the Tribunal. There is no basis upon which this provision, of itself, could give rise to a jurisdictional error.
Section 357A, in respect of Part 5 reviewable decisions, provides that Division 5 of Part 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule.
Subsection 357A(3) requires the Tribunal, when applying the Division, to act in a way that is fair and just.
The applicant has not specified which provision of Division 5 Part 5 the Tribunal breached when conducting a review of his matter. The Minister submitted that the Tribunal complied with its obligations under Division 5 of Part 5 of the Act.
The Court accepts, as submitted by the Minister, that the applicant was properly invited to a hearing in compliance with s 360 and s 360A of the Act. It also accepts that the applicant attended the hearing and was given the opportunity to provide evidence and present arguments on the issues in the review, being whether there had been non-compliance with condition 8202(2) and, if so, whether the Tribunal should exercise its discretion to cancel the visa.
A question arose as to whether the Tribunal was required, as a matter of procedural fairness, to disclose to the applicant the dob-in information. The Minister contended that the Tribunal was not required to do so because it was not relevant to the decision that was made.
The Minister informed the Court that the documents containing the dob-in information were provided to the Tribunal by the Department. The Court was also informed that the subject documents were not covered by any non-disclosure certificate under ss 375A or 376 of the Act.
In considering whether the Tribunal had erred in its handling of the dob-in information, the Court has had regard to the Minister’s written and oral submissions.
Was there a failure on the part of the Tribunal to disclose to the applicant adverse information and/or a failure to have regard to information relevant to the issues it was required to consider?
The dob-in information was received by the Department on 15 May 2019 via its online facility. It contained allegations that the applicant was ‘working overtime/even on cash’, that his COE had been cancelled ‘a long time ago’, and that he did not enrol in a course so as to maintain his visa conditions. It also alleged that the applicant had not complied with conditions 8105 (work limitations), 8202 (enrolment) and 8516 (maintain eligibility). It alleged that the applicant was not a genuine overseas student.
The dob-in information appears to have prompted the Department to access the applicant’s PRISMS records. Those records showed that the applicant’s enrolment in a registered course had been cancelled on 29 July 2019. That information was disclosed to the applicant in the NOICC which was issued by the delegate on 15 October 2019.
Neither the delegate nor the Tribunal made any reference to the dob-in information. Despite the dob-in information alleging breaches of conditions 8105, 8202 and 8516, the delegate only relied upon a failure to comply with condition 8202 to cancel the visa.
At [21] of its decision, the Tribunal stated:
The applicant has stated that he has complied with all other conditions on his visa. There is nothing before the Tribunal to indicate that this is not the case.
This appears contrary to the dob-in information which alleges breaches of other conditions, as well as 8202.
The Court, being mindful that the applicant was unrepresented and thus being alert to the possibility of error, sought submissions from the Minister as to whether the Tribunal made a jurisdictional error by failing to put the applicant on notice (or have regard to) the dob-in information.
In summary, the Minister submitted that the Tribunal either did not consider the dob-in information, and it did not need to, or it did consider it, but it was not material to its task.
The Minister submitted that the Tribunal’s statement at [21] was open to it, and no error can be established because of it, because the dob-in information was not relevant, credible or significant to the decision in fact made by the Tribunal and did not need to be considered by it. This is so, because the dob-in information was provided anonymously by a third party and the allegations were unverified and unsubstantiated.
It was submitted that whilst the dob-in information led to the Department reviewing the applicant’s PRISMS records, which demonstrated that he was not enrolled in a course and led to the cancellation of the visa, there was no information to suggest that the Department had verified or investigated the other allegation as to the applicant working overtime or in cash. Therefore, it lacked ‘sufficient cogency’ to warrant consideration in the Tribunal’s decision: Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 380 [46].
The Minister submitted that the decision of the Tribunal reflects the matters it considered credible, relevant and significant to the decision it made and that it had no obligation to refer to or refute, each and every piece of evidence before it. It was submitted that the Tribunal can determine what evidence is credible, relevant and significant, and what weight to assign it.
It was submitted that whilst the dob-in information was relevant, generally, to the Tribunal’s task, it was not considered by the Tribunal to be subjectively relevant to the decision it actually made. The PRISMS records and the applicant’s non-enrolment were relied on as a separate and proper basis for the visa cancellation.
Subsequently, the Minister submitted that the statement by the Tribunal at [21] of its decision should be read to mean that the Tribunal did not consider the unsupported allegation in the dob-in information credible, relevant and significant, not that it did not consider it at all. Such that it can be inferred that any matter not mentioned in the decision means that the Tribunal did not consider it to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346. The Minister contended that this inference was further supported by the fact that the delegate and Tribunal make no mention of any other possible non-compliance and limited their consideration to the non-enrolment issue.
The Minister submitted that if the Court was not willing to infer that the Tribunal had considered the information but did not consider it to be credible, relevant and significant, it was not an error for it not to have done so because the information was of such passing relevance and cogency to the determinative issue before the Tribunal that any omission to consider the information was not an error.
At the hearing, the Court invited the Minister to make submissions as to whether there may have been non-compliance by the Tribunal with s 359A (or 359AA) of the Act in not inviting the applicant to comment on or respond to the adverse dob-in information, which the Court observed may have prompted the applicant to provide information relevant to the exercise of the discretion. The Minister submitted that the dob-in information was not the reason or part of the reason for affirming the decision under review. It was submitted that the information relied upon by the Tribunal (being the non-compliance with condition 8202(2)) was the same as what was contained in the PRISMS records, which had been given to the applicant via the NOICC and the delegate’s decision. The Minister further contended that the Tribunal did not consider the dob-in information to be cogent and did not take it further, or did not (and did not need to) have regard to the information at all, or if it did have regard to the information, it did not consider it relevant.
Consideration
The Court is not persuaded by the Minister’s submissions as to why the Tribunal did not disclose the dob-in information to the applicant when conducting the review or why it made no mention of that information in its decision.
For reasons that follow, the Court has concluded that the Tribunal failed to comply with its procedural fairness obligations in s 359A of the Act. It has also concluded that the Tribunal failed to take into account information that was relevant to circumstances it had regard to when determining whether to exercise its discretion to cancel the visa under s 116 of the Act.
The obligation to disclose adverse information
Sections 359A of the Act requires the Tribunal to give an applicant particulars of certain information which would be the reason or a part of the reason for affirming the decision under review (adverse information) and to invite them to comment on or respond to it. This obligation can also be complied with if the adverse information is disclosed at the hearing, in accordance with the procedure provided in s 359AA of the Act (as it then applied).
In SZASX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 680 at [18] citing Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109, it was stated, in the context of the equivalent provision in s 424A(1)), that this provision:
‘is concerned with knowledge of a fact or circumstance communicated to or received by the Tribunal'. This view of the application of the section is reinforced by the Macquarie Dictionary definition of `information' as `knowledge communicated or received concerning some fact or circumstance'. The obligation in s 424A(1) is to give `particulars' of information. The focus of the section is on knowledge communicated about some fact or circumstance `that is material to the review and is adverse to the applicant', Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 196.
(emphasis added)
In SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297 (SZYBR) at [17], it was said, in respect of information that ‘would be the reason, or part of the reason, for affirming the decision that is under review’:
The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case.
(emphasis added)
While inferences may, in some cases, be drawn from the reasoning of the Tribunal about whether or not it considered information to be relevant and/or whether it formed part of the reasons for affirming under review, the High Court in SZBYR makes clear that the operation of s 359A (and consideration of whether particular information falls within that provision) is independent of the Tribunal’s reasoning (or its published reasons) and must be determined in advance by reference to the criteria for the making of that decision.
It would, therefore, not be the correct approach to determine whether or not the dob-in information fell within s 359A of the Act by first considering whether the Tribunal had referred to it in its reasons.
The facts and issues of this case bear some similarity those in Khan v Minister of Immigration and Citizenship (2011) 192 FCR 173 (Khan). In that case, Mr Khan, who was the holder of a Subclass 457 work visa, had his visa cancelled under s 116(1)(a) of the Act on the basis that the circumstances which permitted the grant of his visa no longer existed. The information which triggered the cancellation of the visa was contained in a letter sent by Mr Khan’s sponsoring employer (Mr Sangha) to the Department indicating they wanted to cancel their sponsorship of Mr Khan, that Mr Khan’s employment with them had ceased, and alleging that Mr Khan had engaged in fraudulent conduct. In its decision, the Tribunal made no mention of the letter, or the adverse information contained therein alleging that the applicant had engaged in fraudulent conduct. The Tribunal was sympathetic to Mr Khan and had accepted his version of events (that he had been mistreated by his sponsor regarding the terms and conditions of his employment) when considering the circumstances in which the ground of cancellation arose. Notwithstanding this, the Full Federal Court found that the omission of the adverse information from the Tribunal’s reasoning did not operate to exclude its obligation to comply with s 359A.
His Honour, Buchannan J (with whom Flick and Yates JJ agreed), stated at [44]-[45]:
As to particular (iii), s 359A(1) (and similar provisions in the Act) require advice of information which (subject to stated exceptions) “would be” the reason (or a part of it) for affirming the decision of a delegate. The obligation is an ongoing one. The High Court made it clear in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 (“SZLFX”) at [23]-[26] that an obligation of the kind which arises under s 359A(1) does not extend to every piece of information that “could” affect the outcome of a decision on an application for review. The Minister’s argument is that s 359A(1) did not apply to the decision made by the MRT in this case because there is no indication that the accusations made in the letter of 13 October 2008 were (or that at any time the MRT considered that they would be) the reason or part of the reason for affirming the delegate’s decision.
In part, this argument depends on the reliability of the assumption, to which I earlier referred, that the MRT had definitely put Mr Sangha’s accusations out of its consideration at the outset, and had other information permitting it to do so. The assumption is a critical one because, otherwise, the accusations made would clearly be relevant to matters which the MRT had to consider, including whether Mr Khan had breached his visa conditions or been untruthful to the Department. It is very difficult to see how credible information of that kind could be excluded at the outset from the class of information that would be part of a reason for affirming a decision to cancel a visa. As the obligation arises during the course of the review it is not sufficient, in order to exclude it, merely to point to the reasoning disclosed in the decision after the review has been conducted and completed. And, as I earlier pointed out, it became clear after the appeal was heard that the Minister was not in a position to defend the assumption which was offered in argument. I would therefore not accept the Minister’s argument on this point.
His Honour concluded that as none of the exceptions to the obligation in s 359A(1) applied, the Tribunal had failed to discharge its statutory duty under s 359A of the Act.
Another issue which arose in Khan was whether the Tribunal had given sufficient (or any) attention to matters which bore directly upon the exercise of its discretion: at [57]. It was held that the adverse information contained in the employer’s letter was relevant to the Tribunal’s consideration of the circumstances in which the ground of cancellation arose.
At [61] of the judgment, Buchanan J noted that the necessity to give consideration to those circumstances was not adequately addressed by the Tribunal’s sympathetic response to Mr Khan’s version of events, which had been given under the disadvantage of not knowing what the Department had been told about why his employment had ended. His Honour formed the view that the adverse information was not rendered irrelevant or unimportant where the Tribunal accepted Mr Khan’s version of events. His Honour observed that at the very least, it would have been relevant to know Mr Khan’s response to the allegations made against him and that it was conceivable that his response may have revealed extenuating or compassionate circumstances that outweighed the failure to find another sponsor. The Full Federal Court unanimously concluded that the Tribunal’s failure to properly consider the adverse information, which was relevant to the exercise of the discretion under s 116, was a jurisdictional error.
While not on all fours, the facts and issues in the present case are in many respects analogous to those in Khan.
Application to the present case
In the present case, the dob-in information was before the delegate at the time their decision was made. The delegate made no mention of that information in their decision record, nevertheless, the documents containing the dob-in information were provided to the Tribunal.
Section 352(4) of the Act provides that the Secretary of the Department must give to the Registrar (of the Tribunal) each document (or part of a document) that is in their possession or control which the Secretary considered to be ‘relevant’ to the review of the decision. As the documents containing the dob-information were given to the Tribunal, the Department must have considered them to be relevant to the review of the delegate’s decision. Further, as confirmed by the Minister at the hearing, the documents were not covered by a non-disclosure certificate. Thus, the Tribunal was not prohibited from disclosing to the applicant the documents or the dob-in information contained in those documents.
In seeking to explain why there had been no mention of the dob-in information by the Tribunal in its reasons, the Minister contented that neither the delegate nor the Tribunal considered the information to be subjectively relevant to the decision that was actually made. It was suggested that because the Tribunal had said (at [21] of its decision) that there was nothing before it to indicate that the applicant had not complied with all other conditions of his visa, the Court should infer that the Tribunal did not consider the information to be relevant, credible or significant to its decision. That inference, as suggested, should be made on the basis that the dob-in information contained allegations provided anonymously by a third party which were unverified and unsubstantiated. It was suggested that the dob-in information did not warrant consideration by the Tribunal because it lacked sufficient cogency, and that the Tribunal was not obliged to refer to every piece of evidence before it.
The Court acknowledges that there was a separate basis, being the PRISMS records which indicated that the applicant had not been enrolled in a registered course, which was relied upon by the delegate to issue the NOICC and to cancel the applicant’s visa. The Tribunal also relied on the PRISMS records and the applicant’s own evidence at the hearing to find that the applicant had not been enrolled in a registered course (since July 2019) in breach of condition 8202(2). However, the dob-in information alleged that the applicant breached other conditions of his student visa, as well as ‘working overtime/even on cash’ and that he was not a genuine overseas student.
The dob-in information, in the Court’s view, was highly adverse to the applicant and relevant to a number of matters to which the Tribunal had regard to when considering whether it should exercise its discretion to cancel the visa. Those considerations included the purpose of the applicant’s stay in Australia and whether he had a compelling need to remain and the extent of compliance with conditions. The allegations that the applicant was working overtime and ‘even on cash’ and not being a genuine student were surely relevant to whether he was fulfilling the purpose of his travel to and stay in Australia as the holder of a student visa. The allegations that the applicant was working in breach of work limitation (condition 8105) and had not maintained eligibility for the student visa (condition 8516) were also relevant to considering whether there were other conditions imposed on the applicant’s student visa which had not been complied with.
The Tribunal’s statement (at [21] of its decision) that there was nothing before it to indicate that the applicant had not complied with all other conditions of his visa was incorrect on two bases. First, there was evidence, being the dob-in information which alleged that the applicant had breached the work limitation condition (8105) and condition 8516 to maintain eligibility for the visa. Second, there was evidence before the Tribunal which plainly indicated that the applicant had not complied with condition 8516, which required him to continue to satisfy the criteria for the grant of the visa. It was a requirement for the grant of the student visa that the applicant be enrolled in a course of study: cl 500.211(a). Both the PRISMS records and the applicant’s own evidence indicated that he did not continue to satisfy cl 573.211(a) for the grant of the Subclass 500 visa and was thereby in breach of condition 8516. The Court considers that the Tribunal failed to have regard to (or properly engage with) the information actually before it pertaining to the applicant’s compliance (or otherwise) with other visa conditions.
Receipt of dob-in information from an anonymous source, even if unverified or unsubstantiated, does not necessary mean that the information lacked cogency such that it did not warrant consideration. Invariably, it will depend on the nature of the dob-in information and its bearing upon the issues which the Tribunal must determine in each case.
In this case, the dob-in information came from a source which had knowledge that the applicant was the holder of a student visa. The allegation that the applicant had ceased to be enrolled in a course was subsequently substantiated by the PRISMS records, and the informant appeared to also be aware of the conditions to which the applicant’s student visa was subject.
The Court accepts, as contended by the Minister, that it was for the Tribunal to determine what weight (if any) should be given to the dob-in information. It was also for the Tribunal to prefer the applicant’s evidence over the information contained in the allegations. However, given the nature of the dob-in information, which was relevant to the Tribunal’s consideration of the discretion and was adverse to the applicant, the Court rejects the Minister’s suggestion (which was entirely unsupported) that the Tribunal did have regard to the dob-in information but did not consider it sufficiently cogent to warrant consideration.
The Tribunal’s lack of reference to the dob-in information strongly suggests that the Tribunal either did not consider it necessary to deal with the dob-in information or it overlooked it. In either case, it was an error.
The allegation that the applicant breached his work limitation condition, was working overtime and ‘even on cash’, and was not a genuine overseas student clearly undermined the applicant’s own claim that the purpose of his travel to and stay in Australia was to complete his qualifications and that he had complied with all other conditions of his visa. Having regard to the circumstances that the Tribunal was required to consider (as set out in the departmental policy) when determining whether to exercise its discretion to cancel the visa, the dob-in information was necessarily of the kind which ‘would’, subject to the applicant’s comments or response, be part of the reason for affirming the decision under review. The dob-in information therefore fell within s 359A(1) of the Act and the Tribunal was required to provide particulars of that information to the applicant and invite him to comment on or respond to it before proceeding to make its decision. Its failure to comply with the obligations in s 359A(1) of the Act constituted an error on its part.
Further, given the matters set out in the departmental policy, to which the Tribunal was required to have regard when considering whether to exercise the discretion to cancel the applicant’s visa, the dob-information was plainly relevant to those considerations, and it was necessary for the Tribunal to expressly refer to (and engage with) that information in its reasons. Its failure to do so constituted an error on its part.
Was the error material?
The Minister submitted that even if the Court was satisfied an error has been made, it was not a jurisdictional error because it was not material to the Tribunal’s decision: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT).
This is so, the Minister submitted, because if the dob-in information was considered by the Tribunal there was no realistic possibility that the decision could have been different. It was submitted that the information was plainly adverse to the applicant, and could only have provided another basis for cancellation of the visa or given more adverse weight in support of the Tribunal’s exercise of the discretion to cancel the visa. It was submitted that the Tribunal, in its decision, gave some weight in the applicant’s favour for his compliance with visa conditions and it was the extent of the applicant’s non-compliance with condition 8202 that weighed considerably in favour of cancellation.
It was submitted that any omission by the Tribunal to consider, or refer to, the dob-in information could only have been in the applicant’s favour. In other words, the outcome of the decision would inevitably have been the same: LPDT at [16].
The threshold of materiality is not onerous or demanding: LPTD at [14]. The Court does not accept that if the error(s) had not occurred that a different decision could not realistically have been made. The High Court observed that ‘realistic’ is used to distinguish a possible different outcome from an outcome that is fanciful or improbable: LPDT at [14].
The High Court further observed at [15]–[16] that:
[15] …Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained.
[16] In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
Had the Tribunal taken into account the dob-in information and complied with its obligation in s 359A(1), the applicant may have presented further evidence relevant to the circumstances to which the Tribunal was required to have regard when considering whether the visa should be cancelled. Notwithstanding that the Tribunal accepted the applicant’s evidence that he wished to remain in Australia to obtain a qualification and had complied with all other conditions of his visa, that evidence was given by the applicant without the benefit of knowing that the Tribunal had other (highly adverse) information before it which suggested that he was not a genuine overseas student, had been working overtime, ‘on cash’, and in breach of his work limitation condition.
The applicant not being given the opportunity to comment on or respond to the dob-in information deprived the applicant of presenting further evidence which may have outweighed the reasons for the Tribunal exercising its discretion to cancel his visa. He was thereby deprived of the possibility (which was not fanciful or improbable), of the discretion being exercised in his favour. The error was not immaterial and is therefore jurisdictional.
Utility
Notwithstanding that the applicant’s Subclass 573 visa would (had it not been cancelled) have ceased on 25 December 2020, the Minister has accepted that there may be some utility if the delegate’s decision were to be set aside by the Tribunal, as Item 1222(4)(c)(ii) of Schedule 1 to the Regulations provides 28 days from the date of the Tribunal’s decision for the applicant to make a valid application for a further student visa onshore.
Whether the delegate’s decision is set aside or affirmed is entirely a matter for the Tribunal upon reconsideration of the review. However, it cannot be said that there would be no utility in the Court granting relief because no useful result could ensue.
CONCLUSION
As the Tribunal’s decision was affected by jurisdictional error and as it is not futile to grant relief, it is appropriate for the Court to issue writs of certiorari and mandamus in this matter.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 28 November 2024
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