Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 515
•7 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 515
File number: MLG 3526 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 7 June 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – application for an extension of time – minimal delay – no prejudice – satisfactory explanation provided – arguable case of jurisdictional error identified – extension of time granted – matter to be programmed and listed for a substantive hearing. Legislation: Migration Act 1958 (Cth), ss 360, 368D, 425, 476 & 477
Migration Regulations 1994 (Cth), reg 4.27B and 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
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gadapa v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 606
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
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 & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
Raj v Minister for Immigration & Multicultural Affairs [2000] FCA 74
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of hearing: 24 May 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr J Mangos Second Respondent: Submitting appearance, 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:
7 JUNE 2024
THE COURT ORDERS THAT:
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.
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
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 Administrative Appeals Tribunal (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 from it (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 those 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 Migration Act 1958 (Cth) (the “Act”).
In the circumstances, the applicant requires an extension of time to pursue the substantive proceeding.
This judgment addresses whether an extension of time should be granted.
For the reasons that follow, the Court has concluded that an extension of time should be granted.
CONSIDERATION
The Court notes that 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 applicant appeared before this Court (via video link) on 24 May 2024 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 Court noted that the application for judicial review filed by the applicant only sought relief by way of an order quashing the Tribunal’s decision. It did not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act was not properly invoked. The Court explained this issue to the applicant and made an order amending the application for judicial review to include seeking a writ of mandamus.
The materials before the Court include 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.
Noting that the applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. In this matter, the Tribunal’s decision is dated 3 September 2019 (being the date of the Tribunal’s oral decision in this matter). The date by which the applicant was required to file his application in this Court was 8 October 2019. Unfortunately, the applicant did not file his substantive application until 15 October 2019. The delay here is thus seven days.
The Court explained, however, that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided a “ground” explaining why he believes that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting that the applicant appeared without any legal assistance, the Court explained to him that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
The Court invited the applicant to highlight anything he considered relevant to his request for an extension of time. The applicant’s responses are discussed in the consideration that follows.
Length of delay
The Court notes that an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
Whilst limitation periods are not to be taken lightly, as outlined above, the delay in this matter is only seven days.
This delay is minimal and weighs in favour of granting an extension of time.
Prejudice
In written submissions filed in this Court, the Minister conceded that there is no prejudice to the Minister.
The Court agrees.
This also weighs in favour of granting the extension of time.
Explanation
In his judicial review application, the applicant provides one “ground” for the extension of time which, relevantly, provides as follows (without alteration):
1.I was thinking that the date of submitted start from the date of written decision. I was thought its 3 Oct when I got my written decision but it was 3 Sep.
The applicant raised similar concerns to those outlined above in oral submissions before this Court. In particular, the applicant explained that he “asked a migration agent for assistance with filing an application with the Court” and “they were going to charge” him money but they told him that “they could not make an application with the oral decision” and that he needed written reasons from the Tribunal. The applicant also told the Court that he called and emailed the Tribunal on 11 September 2019 (within the allowed 14-day time period) requesting written reasons. He also stressed that no one had told him that he could apply for review without the written reasons from the Tribunal.
To the extent that the applicant claims that he was confused about the date from which the time period started or was confused about the timeframe within which such an application must be made, the Court sympathises. However, ignorance is no excuse in matters of this sort. In this regard, the Court references comments made by the Federal Court in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, as follows:
38.In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
The court notes that, as outlined above, the Tribunal in this matter made its decision orally on 3 September 2019 (CB 68). Section 368D(1) of the Act provides that a decision on a review that is given orally by the Tribunal is “taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally”.
Under s 477(3)(b) of the Act, the “date of the migration decision” means the day the decision is taken to have been made under subsection … 368D(1)” of the Act.
In Raj v Minister for Immigration & Multicultural Affairs [2000] FCA 74, the Federal Court of Australia confirmed that the time to bring a judicial review application must commence from the date of an oral decision: (emphasis added):
27.There is, at best, an ambiguity about a matter which is of great importance to an applicant's rights. Its presence emphasises the importance of careful compliance by the Tribunal with the provisions of the legislation as to the ways in which it is to make known its decisions. The terms of the notification provisions prompt a further comment. As I have mentioned, s 368D requires the Tribunal, where it has given an oral decision, to “give” the applicant and the Secretary a copy of the s 368 statement within 14 days after the decision is made. But it is not immediately clear how that copy is to be “given”. It is not one of the documents referred to in s 379A(3) (particularly – see s 379A(3)(c) – it is not a statement given under s 368B(6)) and therefore taken to be given when despatched by one of the methods specified in s 379A. It is possible – I have not made a detailed search and no argument was directed to this – that there is some other, more general, provision which would apply. It is clear at least (s 368B) that in the case of an oral decision time runs from the moment it is pronounced even though, at that stage, no statement of reasons will have been given. It is clear also that such a statement must be “given”. It is less clear how that is to be done.
In this matter, the Court accepts that, despite clear jurisprudence (outlined above), the applicant was indeed confused. This is, unfortunately, not uncommon. English is not the applicant’s first language and the legal system can be confusing. The Court also highlights the applicant’s lack of legal representation and the fact that he made genuine inquiries with the Tribunal to obtain written reasons. It appears he also sought assistance from an individual to lodge a judicial review application (and appears to have been provided with incorrect advice).
In these circumstances, the Court determines that the explanation for the delay is satisfactory.
This favours the granting of an extension of time.
Merits
The most critical factor for consideration when determining if an extension of time ought to be granted is, generally, whether the proposed substantive application, viewed at an impressionistic level, has any “arguable prospect of success”.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicant in this matter was unrepresented, the Court gave him an opportunity to outline any concerns that he might have in relation to the Tribunal’s decision. This is now the standard procedure in this Court following the decision 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 explained to him that the only issue before the Court is whether there is an arguable case that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, 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 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 decisions or grant the applicant the visa he now seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that 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 told the Court that the Tribunal asked him if he had a COE but he did not have one. The applicant explained that, had the Tribunal asked him to provide a COE, he could have given it to them. The applicant claimed that he could have obtained a COE within a week. Further, he explained that the college had cancelled his COE even though he had completed five units and had paid his fees. The applicant stressed that he did not know why the college had done so.
The applicant’s oral submissions, to the extent that they address an arguable case of error, will be considered by the Court below.
The Tribunal’s decision
In determining whether there is an arguable case of error, it is useful to first detail the Tribunal’s decision in some detail.
The Tribunal’s decision is three pages in length and spans 14 paragraphs.
The Tribunal began by explaining that the applicant had applied for the visa on 3 March 2017 and that a delegate of the Minister had refused to grant the applicant that visa on 6 June 2017 because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student (as required by cl 500.212 in Schedule 2 of the Regulations). The Tribunal also outlined that the applicant appeared at a hearing before it on 3 September 2017 and that the applicant was assisted by a Hindi interpreter. Further, the Tribunal confirmed that it made an oral decision at that hearing (at [1]-[6]).
The Tribunal explained that while the issue before the delegate was whether the applicant was a genuine temporary entrant, the issue before the Tribunal was whether, at the time of decision, the applicant met the enrolment requirements for a student visa. Further, when considering that question, the Tribunal had regard to PRISMS records, but ultimately did not rely on those records, choosing instead to accept and rely on the applicant’s evidence (at [8]-[9]).
The Tribunal outlined the applicant’s evidence, as follows:
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.
The Tribunal then set out the criteria for the grant of a student visa noting, in particular, the requirement for applicant to be enrolled in a course of study (as required by cl 500.211 in Schedule 2 of the Regulations) (at [11]).
The Tribunal continued:
12.The applicant has given evidence that he is not enrolled in any such course and does not hold a confirmation of enrolment. Therefore, the tribunal is not satisfied that, at the time of the decision, the applicant is enrolled in a course of study and accordingly, clause 500.211 is not met.
The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicant the visa (at [13]-[14]).
Proposed application for judicial review
The application for judicial review (filed by the applicant on 15 October 2019) contains eleven proposed “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 proposed 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).
On that basis, the Court considers the applicant to raise the following concerns:
(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 issues will be considered 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
The applicant appears to broadly take issue with the Tribunal making an oral decision at the hearing before it and the “delay” in the Tribunal providing the applicant with written reasons for its decision.
To the extent that the applicant has concerns about the Tribunal giving an oral decision, the Court notes that the Tribunal is empowered to do so under s 368D(1) of the Act, which provides as follows:
368D Tribunal’s decisions given orally
How and when oral decisions are taken to have been made
(1)A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.
The Tribunal made an oral decision in this matter on 3 September 2019 at 10.17am (SA time) (CB 68).
In circumstances where a decision is made by the Tribunal orally, the applicant is entitled to request that a written statement of reasons be provided by the Tribunal pursuant to s 368D(4) of the Act, which provides:
368D Tribunal’s decisions given orally
…
Written statement to be provided on request of applicant
(4)If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the Tribunal must:
(a) reduce the oral statement to writing; and
(b)within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:
(i)to the applicant by one of the methods specified in section 379A; and
(ii)to the Secretary by one of the methods specified in section 379B.
The time period within which the applicant may make such a request is set out in reg 4.27B of the Regulations which relevantly provides as follows:
4.27B Prescribed period for requesting written statement
For subsection 368D(4) of the Act, the prescribed period for requesting a written statement in relation to an oral statement made by the Tribunal under paragraph 368D(2)(a) of the Act starts when the Tribunal makes the oral statement and ends at the end of 14 days after the day on which the Tribunal makes the oral statement.
The applicant was advised by the Tribunal (on 3 September 2019) that he could request a written statement of the Tribunal’s decision in its letter providing him with confirmation of the oral decision (CB 67).
The applicant did so on 11 September 2019 (being within the 14-day time period set out in reg 4.27B of the Regulations) (CB 71)
The Tribunal reduced its oral statement to writing on 3 October 2019 (CB 68-70) and a copy of those written reasons was provided to the applicant (via email) on that same date (being on 3 October 2019) (CB 72-73).
Whilst the written reasons were not provided within the requisite 14-day timeframe (as set out in s 368D(4)(b) of the Act, this does not amount to an arguable case of jurisdictional error on the part of the Tribunal. As explained by this Court in its decision of Gadapa v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 606, such a procedural irregularity does not result in invalidity to the Tribunal’s decision: s 368D(7) of the Act.
No arguable case of error arises in relation to the Tribunal making an oral decision in this matter or in the delay in the provision of written reasons by the Tribunal.
Whether the Tribunal erred by denying the applicant procedural fairness in respect of its obligations under s 360 of the Act
The applicant complained that the Tribunal did not “ask” him to provide a COE and that, had they done so, he could have arranged to obtain 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 Court notes that as per s 360 of the Act 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 (regarding 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 mirrors 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 the dispositive issue before the Tribunal.
Whilst the Court acknowledges that there is no obligation to give an applicant advanced 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 passage 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 considers that it is arguable, at a reasonably impressionistic level, that the applicant was not 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).
Context matters. Here, the applicant 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 Court considers that, in the circumstances of this matter, there is at least an arguable case (judged at a reasonably impressionistic level) that the Tribunal erred by denying the applicant procedural fairness in respect of its obligations under s 360 of the Act.
This weighs heavily in favour of granting the extension of time.
Conclusion regarding merits of the substantive application
The applicant’s proposed grounds of review and oral submissions, assessed at an “impressionistic level” only, identify an arguable case of jurisdictional error on the part of the Tribunal.
This weighs in favour of the granting of an extension of time.
CONCLUSION
The satisfactory explanation for what is a minimal delay, the lack of any prejudice to the Minister and the existence of an arguable case of error on the part of the Tribunal (judged at a reasonably impressionistic level only) all weigh in favour of granting an extension of time.
In the circumstances, the Court determines that it is in the interests of the administration of justice for the Court to grant the applicant an extension of time in this matter.
The application for an extension of time is, accordingly, granted.
A hearing of the applicant’s substantive application will now be programmed and listed as expeditiously as possible.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 7 June 2024
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