Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 458
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 458
File number: MLG 1855 of 2019 Judgment of: JUDGE LAING Date of judgment: 2 June 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa – whether the applicant consented to the Tribunal determining the matter without a hearing – materiality – application succeeds Legislation: Migration Act 1958 (Cth) ss 353, 357A, 360, 363A, 425
Migration Regulations 1994 (Cth)
Cases cited: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Khan v Minister for Immigration [2014] FCCA 532
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration & Multicultural & Indigenous Affairs v SZFML [2006] FCAFC 152; (2006) 236 ALR 294
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
SZGWN v Minister for Immigration & Citizenship [2008] FCA 238
Division: Division 2 General Federal Law Number of paragraphs: 46 Dates of hearing: 7 March, 17 May 2023 Place: Sydney The Applicant: Appeared in person Counsel for the First Respondent: Mr A Yuile Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1855 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAVDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
2 June 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue, quashing the decision of the second respondent dated 4 May 2019 in case number 1713809.
2.A writ of mandamus issue directing the second respondent to determine the application for review 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 LAING:
INTRODUCTION
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). By that decision, the Tribunal affirmed a decision made by a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa.
BACKGROUND
The applicant is a citizen of India. On 17 June 2014, the applicant arrived in Australia on a student visa (Subclass 573) which expired on 15 March 2017. The visa was granted on the basis that the applicant would engage in a packaged program of study including a University Diploma and Bachelor of Information Technology.
On 8 March 2017, the applicant applied for the student visa that is the subject of the present proceedings.
On 15 June 2017, the Delegate refused the visa application on the basis that the applicant did not satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 28 June 2017, the applicant applied to the Tribunal for review of the Delegate’s decision.
On 7 February 2019, the Tribunal invited the applicant, through an email sent to his then representative, to provide information to the Tribunal pursuant to s 359(2) of the Migration Act 1958 (Cth) (Act) (s 359 letter). The request involved completing a questionnaire titled “Request for Student Visa Information” (the questionnaire).
The questionnaire was completed and lodged with the Tribunal on 20 February 2019. The completed questionnaire notified that the applicant did not possess a Confirmation of Enrolment in a registered course of study. This was despite indications on the form and in the accompanying letter that this was required for the grant of the visa. Notwithstanding this, the completed questionnaire indicated that the applicant consented to the Tribunal deciding the application based on the evidence before it, without the applicant being afforded a hearing in the matter. The questionnaire response was completed in the first person in parts, indicating that it had been completed by the applicant personally. The declaration at the end indicated that it was completed personally by the applicant.
Despite this, on 18 April 2019 the applicant had a telephone conversation with a representative of the Tribunal to the following effect:
PRA called. Wanted a case update. I mentioned the 359 letter sent in February, with a response received on 20 February 2019. Applicant was a bit taken aback, saying they had not heard anything about this correspondence, and that they had not heard from their agent, who they believe had lapsed.
I said that I could send a courtesy copy of the 359 letter, but I noted that the response indicated it had come directly from the applicant themselves. Placed applicant on hold to confirm with ATL. ATL confirmed and requested I take the action. I relayed again what I would do for the applicant.
They expressed concern as they were not sure what would happen next. I said that the Tribunal will arrange to send our correspondence allowing the applicant to respond and receive correspondence directly in future. Call ended.
The applicant was then sent correspondence from the Tribunal stating the following:
As per our phone conversation, I am sending you a courtesy copy of the correspondence sent 7 February 2019. Please note we received a response from yourself on 20 February 2019, where you indicated that you were waiving your right to a hearing.
If you have any further questions, please contact us at [email protected], or call 1800 228 333.
On 23 April 2019, the Tribunal wrote to the applicant indicating that his agent’s registration had lapsed on 4 September 2018 (some time before his purported response to the questionnaire had been received). The Tribunal observed that it was required to continue to send correspondence to the agent, unless the applicant advised otherwise in writing. The letter indicated that the applicant should discuss whether the agent was able to continue to provide him with assistance. It also provided information regarding how the applicant could change his authorised recipient or otherwise amend his contact details. No response was received by the Tribunal.
On 4 May 2019, the Tribunal affirmed the Delegate’s decision. Notification of this occurred by email on 16 May 2019.
THE TRIBUNAL’S DECISION
At [4]-[7] of its decision, the Tribunal stated:
4.The applicant was assisted in relation to the review by their registered migration agent.
5.On 7 February 2019 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide information about the course(s) of study he was undertaking, and his entry and stay in Australia as a student in writing.
6.On 20 February 2019, the applicant wrote to the Tribunal advising that he consented to the Tribunal determining the review without a hearing. The applicant also advised that he did not hold a current confirmation of enrolment.
7.For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
The Tribunal observed that the issue before it was whether the applicant was currently enrolled (at [8]) before reasoning at [9]-[12]:
9.Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
10.'Course of study' is relevantly defined in cl.500.111 of the Regulations as a 'full-time registered course'. 'Registered course' is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
11.The applicant has informed the Tribunal that he does not hold a current confirmation of enrolment. There is no evidence before the Tribunal that the applicant is currently enrolled in a course of study. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.
12.Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the proceedings before this Court on 13 June 2019. The following was stated under the heading “Grounds of application”:
1.The tribunal failed to act according to substantial justice and merits of the case. In breach of s353(B) of the Migration Act 1958 and/or failed to act in a way that is fair and just, in breach of s357A(3) of the Act.
2.The Tribunal misunderstood and/or misapplied the applicable law or has otherwise fail to rely exclusively on relevant facts and information. The tribunal took into account irrelevant material and considered irrelevant facts, information and material.
The pleaded grounds were unparticularised.
In relation to ground 1, the ground did not specify how the Tribunal’s conduct was said to have breached s 353(b) or s 357A(3) of the Act. Section 353(b) provided generally that the Tribunal was to “act according to substantial justice and the merits of the case”. Section 357A(3) generally provided that, in applying the relevant Division, “the Tribunal must act in a way that is fair and just”. However, such provisions are not an independent source of rights for an applicant but rather condition the exercise of the Tribunal’s powers under Part 5 of the Act: see Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332 at [58]. They are of some relevance to the issues that arise in this case. However, they do not, on their own, provide a basis for finding jurisdictional error.
In relation to ground 2, the pleaded ground did not explain how the Tribunal could be said to have misapplied the law nor what material the applicant contended that the Tribunal ought to, or ought not to, have relied upon.
However, each of the grounds had some relevance to what appears to be the real issue in these proceedings. That issue is whether the applicant consented to the Tribunal determining his application without inviting him to a hearing for the purposes of s 360(2)(b) of the Act. This was the focus of the applicant’s complaint in oral submissions. The applicant contended that although he had ticked the box in an electronic form indicating his consent in this regard, the form was submitted with this indication through technological misadventure. He contended that he was then misled and confused regarding his ability to correct the record. The applicant contended, essentially, that he had not effectively consented to his matter being determined without a hearing.
Did the applicant effectively consent to the Tribunal determining the matter without a hearing?
Section 360(1) of the Act requires the Tribunal to “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.” This obligation does not apply, however, if “the applicant consents to the Tribunal deciding the review without the applicant appearing before it”: s 360(2)(b). If this occurs, the applicant is not entitled to appear before the Tribunal: see ss 360(3) and 363A of the Act.
Relevant principles
Minister for Immigration & Multicultural & Indigenous Affairs v SZFML [2006] FCAFC 152; (2006) 236 ALR 294 (SZFML) is, arguably, the leading authority on consent within this context. In that case, the applicant’s agent had stated in an initial response to an invitation to hearing that the applicant did wish to attend the hearing. In response to a notice rescheduling the hearing, the applicant’s agent subsequently informed the Tribunal, purportedly on the applicant’s behalf, that the applicant did not wish to attend the rescheduled hearing. The Tribunal therefore made a decision in her case without a hearing.
On judicial review, the applicant in SZFML gave evidence that she had not given her agent instructions to waive her right to a hearing. This evidence was accepted. The Court (Spender, French and Cowdroy JJ) found that based upon this evidence, the agent did not have the authority to waive the applicant’s right to a hearing. The Court stated at [65]:
65.The Tribunal determined the application for review without hearing SZFML on the false premise that she had consented to it doing so and therefore on the false premise that she was not entitled to a hearing. That false premise led to a failure of the statutory procedural fairness requirement specified in Div 4. It may be noted that there is nothing in s 441G, relating to authorised recipients, which would have the effect of deeming apparent consent lodged by an authorised recipient without authority, to be a consent for the purposes of s 425(2)(b) of the Act. Moreover the Minister expressly disclaimed any reliance upon principles of ostensible agency. The failure of the statutory requirement of procedural fairness may not have been the Tribunal’s fault. Whether it was or not the Tribunal acted without power and so its decision was amenable to the relief granted by the learned Federal Magistrate.
At [74], the Court in SZFML further stated:
74.In the present case the hearing requirements for procedural fairness are as prescribed in the statute. An effective consent or non-attendance by an applicant at a scheduled hearing are alternative necessary conditions of the Tribunal’s power to determine an application without a hearing. Absent an effective consent, the condition under which the Tribunal may treat the applicant as disentitled from a hearing is not satisfied.
In SZGWN v Minister for Immigration & Citizenship [2008] FCA 238 (SZGWN), the applicant had attended hearings before the Tribunal. Interpretation errors had occurred at one such hearing. The issue of consent arose in response to a submission from the Minister suggesting that the applicant had implicitly accepted that it would be appropriate for the Tribunal to proceed to a decision without conducting a further hearing in that matter. In this regard, Gilmour J stated at [43]:
43. There was no finding nor evidence to warrant a finding that the appellant consented to not having a further hearing such as to trigger the exempting provision in s 425(2)(b) of the Act. No such submission was put in the appeal. I do not regard the above submission concerning the appellant’s "implicit ... acceptance" that it was appropriate for the Tribunal to proceed to make a decision as being to that effect. Even if it was I would not accept the submission. Consent for the purposes of s 425(2)(b) of the Act would be required to be given, in my opinion, in unambiguous terms. It would be an unusual case for such consent to be implied. Accordingly it is not to the point that the appellant did not ask for a third Tribunal hearing…
From the above, it is possible to discern the following principles regarding the question of consent:
(a)effective consent is a statutory precondition to the application of s 425(2)(b) of the Act and its counterpart in s 360(2)(b): SZFML at [74];
(b)in assessing whether effective consent has been given, the written record purporting to communicate the applicant’s consent to the Tribunal is not necessarily determinative. It is permissible to go behind that record in determining whether real and effective consent has been given: SZFML at [65]; and
(c)consent for the purposes of ss 425(2)(b) and 360(2)(b) of the Act must be “in unambiguous terms”. It is unlikely that acquiescence would suffice: SZGWN at [43].
Application to the present case
In the present case, the applicant gave oral evidence at the hearing of this matter on 7 March 2023. The applicant confirmed that he had completed the electronic form selecting the option: “Yes, I/we consent to the Tribunal deciding the review without a hearing”: page 17 of the transcript of the first day of the hearing before this Court (Transcript).
However, the applicant explained why this had been done as follows (page 18 of the Transcript):
APPLICANT: … So as I mentioned earlier that there was a network issue at that time so I did try to put in a – to – I want to go into the court for the hearing at that time. Unfortunately, it didn’t keep going through so I selected the yes option that I want my review without a hearing so it goes through straight away.
MS NYABALLY: Okay. So you said you selected the “Yes, I consent” option so it would go through straight away. Could you explain what you mean by that?
APPLICANT: I mean, like, I tried to select the other options which I wasn’t able – whether my phone was ..... something like that happen. It was a long time anyway, so it would happen that I tried to select other option rather than selecting the yes option that time, but it wasn’t selecting or anything happen with that so unfortunately, when I select the yes option, I tried to, like, just to see whether it goes through to the next or not. It was gone through that time.
MS NYABALLY: Okay. Now, please confirm whether or not I’m correct in understanding that you selected the, “Yes, I consent to the tribunal reviewing the decision without a hearing” so that you could move the form on to the next page?...
APPLICANT: Yes. So I tried to select the other option, but it wasn’t going through so I have to select the option which was only going through.
MS NYABALLY: So you were aware when you were completing the form that you answered yes, you consent to the tribunal deciding the review without a hearing?
APPLICANT: Yes.
MS NYABALLY: But the reason you did that was so that you could get the form moving along?
APPLICANT: Yes. Yes. So I did try to go ..... my agent after that to how I can change, like, the hearing; I want to attend it, so he said, “You already filled out the form”… Well, when I called, the agent wasn’t free so he called me back the next day. So he told me that, “It has already been lodged, so you can’t do anything. You have to wait…
As set out above, after the form was submitted the applicant appears to have had a rather confused conversation with Tribunal staff in which he had appeared “taken aback” by reference to the s 359 letter and had stated that he had “not heard anything about this correspondence” and “had not heard from [his] agent, who [he] believe[d] had lapsed”. The Tribunal then sent him a courtesy copy of the s 359 letter. The Tribunal had observed that a response to this had been received from the applicant, in which he had indicated that he was waiving his right to a hearing.
The applicant’s evidence regarding why he had not informed the Tribunal of the error with the form included the following (at page 21 of the Transcript):
MS NYABALLY: Okay. Now, when you called the tribunal in April, why didn’t you ask them to have a hearing?
THE APPLICANT: That time, I – that form was filled out later. I – I’m pretty sure that form was filled out later, because I didn’t know – I – I actually am confused right now, because when I told them, I told them that, “I am not getting any information from my agent regarding any of these things, so can you please send me email straightaway, rather than sending to my agent.” That’s – that’s what happened, actually. That’s all I said to them, nothing else…
MS NYABALLY: You told the court earlier that you did want to have a hearing?
THE APPLICANT: Yes. That’s right. That’s right. I actually must have forgotten, that time, that – to mention to them… I – I – because I was so scared, because I don’t know who was taking care on my account, so I must have forgotten, that time, to talk to them regarding I can – if I can change it.
MS NYABALLY: Okay. So were you aware that you had said – you selected the “yes” option?
THE APPLICANT: Yes.
MSNYABALLY: In other words, yes, you consent to the tribunal proceeding without a hearing and - - -?
THE APPLICANT: That’s right.
MS NYABALLY: After that, you forgot, because you were scared, to tell them that you wanted a hearing?
THE APPLICANT: I actually – that’s right. I mentioned earlier that I did call my agent that – in the company – that I want to talk to the – whoever is handling my – this case ..... they didn’t answer back until the next day, so that’s why I called the – the tribunal, that time.
When questioned further regarding why he had not told the Tribunal that he wanted a hearing in response to its communications with him, the applicant gave the following evidence (at page 23 of the Transcript):
THE APPLICANT: As I mentioned earlier, that was because I – I – as I mentioned before, that – because I had an agent. I have no idea before that, like, how ..... first of all. So everything I was doing through agent, because, basically, they know everything, so that’s why – what I’ve told. When ..... them, they left. I have no idea who was taking care of it. So that’s why I called tribunal, and when everything getting ..... about it, like, I have no idea what’s going on, so I got scared about it. I did forget many things to ask them the same time. That’s how I must have forgotten, that time, to ask them.
MS NYABALLY: And at any point between you completing that form, where you selected the “yes” option but you didn’t want to, and when you got a copy of the tribunal’s decision… did you ever try to contact the tribunal to say, “I want a hearing”?
THE APPLICANT: I – no.
MS NYABALLY: And I apologise for sounding like I’m asking you the same thing many times, but can you please explain to the court why you didn’t do that?
THE APPLICANT: Because – because I have no idea how the law works here, because I’ve never been to any court or anything before. So I had no idea. So I was going through the agent. That’s all I know. When I realised the agents are not doing too much – so that’s why I start – keep going to the people, but until I know everything – it was too late anyway, because when I – I got the results from the tribunal. Then I had another lawyer – another agent I applied through. So he said, “You can only do one thing” – is, “You can go to the higher court for the review.” That’s all he said. I didn’t go to tribunal. I didn’t go to tribunal or anything after that.
In oral submissions, the Minister did not seek to challenge the applicant’s account and disavowed any previous suggestion in this regard. The Minister did not put to the applicant in cross-examination that his account should not be accepted.
However, the Minister submitted that the Court should find that the applicant effectively consented to determination of his matter before the Tribunal without a hearing. This was in circumstances where his evidence established that he had known he was selecting the box indicating his consent to this on the relevant form, had known that the form had been submitted, but had not subsequently told the Tribunal that this had occurred inadvertently and that he wanted to attend a hearing before the Tribunal. This was notwithstanding the Tribunal’s subsequent interactions with the applicant, in which it had reminded him of its previous correspondence with him including in relation to waiver of the right to a hearing.
I am unable to accept this for two reasons.
Firstly, the applicant’s unchallenged evidence is that he had no intention of consenting to waiver of the hearing at the time that the form was submitted. The submission of the form in this manner was said to have occurred through technological misadventure. Although the applicant was conscious and intentional in his selection of the hearing waiver option on the form, his evidence was that this was only in troubleshooting an electronic form that he was having technical issues with completing. The applicant’s unchallenged evidence is that he did not intend to submit a form that waived his right to a hearing. As in SZFML, the written document that was submitted to the Tribunal did not reflect the reality of whether the applicant was actually consenting to the waiver.
Secondly, although the applicant’s actions subsequent to the form’s submission were less than conscientious in protecting his interests, I am not persuaded that acquiescence was sufficient to displace the applicant’s entitlement to a hearing: see SZGWN at [43]. The evidence in this regard indicates a considerable level of confusion on the applicant’s part in his interactions with the Tribunal after the form was submitted. This appears to have been influenced, at least to some extent, by advice the applicant had received from an agent with lapsed registration that there was nothing he could do to correct the situation once the form had been submitted.
In these circumstances, I am not persuaded that the applicant effectively consented to the waiver of the hearing. This means that the Tribunal’s decision was affected by the species of error considered in SZFML.
Was the error material?
The Minister submitted that any error regarding the applicant’s consent was not material as the applicant had confirmed in his evidence that he had not possessed a confirmation of enrolment at the time of the Tribunal’s decision. This was because he had finished his course by that time. The Tribunal was therefore correct to find that the applicant did not meet cl 500.211 at the time of its decision.
The Minister observed that the relevant inquiry regarding materiality is backward looking and requires consideration of whether the decision that was in fact made could have been different. This “falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [37]-[38] per Kiefel CJ and Gageler, Keane and Gleeson JJ.
The Minister relied upon what was said in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [35]-[36] (per Kiefel CJ, Gageler and Keane JJ):
35.Here the Tribunal breached that implied condition by misconstruing and misapplying the criterion which related to the timing of the making of the application. The breach, however, could have made no difference to the decision which the Tribunal in fact made to affirm the decision of the delegate. That was because the Tribunal was not satisfied that the public interest criterion was met, and, on the findings which the Tribunal made, the Tribunal could not reasonably have been satisfied that the public interest criterion was met. The Tribunal in those circumstances had no option but to affirm the decision of the delegate.
36.The suggestion of Mortimer J in dissent, that the Tribunal might have delayed making its decision to allow Mr Hossain time to meet the public interest criterion had it not erred in construing and applying the criterion relating to the timing of the making of the application, rises no higher than conjecture. The Tribunal was not asked to delay making its decision and, in any event, did not believe Mr Hossain when he said that he intended to pay his outstanding debt to the Commonwealth.
The Minister submitted that similarly, in the present case, it was no more than “conjecture” to suggest that the applicant might have arranged a further enrolment, or been granted further time in which to do so, had the Tribunal afforded him the opportunity to attend a hearing.
The Minister also relied upon Khan v Minister for Immigration [2014] FCCA 532 at [23]-[25]:
23.The Tribunal was in error to state that the applicable law is that which applied at the time the visa application was lodged. Rather, the general rule is that the law to be applied is that which is in force at the date that the decision is reviewed or, if the Applicant has accrued any rights under the repealed legislation, the law in force immediately before the repeal.
24.This error, however, was not material to the Tribunal’s decision because the current enrolment criteria as at the date on which the visa application was lodged, and at the date of the Tribunal’s decision, consistently required the Applicant to give evidence that he was enrolled in or was the subject of a current offer of enrolment in a course of study that is a ‘principal course’ and is of a type that is specified by the Minister for the particular subclass.
25.Accordingly, the Tribunal had regard to the applicable law. Moreover, the Tribunal’s decision accorded with the only decision that was open to it on the evidence. The Tribunal had requested the Applicant to provide evidence of current enrolment. The Applicant was clearly on notice that the current enrolment criteria were in issue, and at no time did the Applicant provide such evidence.
However, each of those cases concerned different factual circumstances. The present is not a case in which the Tribunal misconstrued an applicable criterion in a manner that was incapable of affecting the ultimate outcome. Rather, this is a case in which the applicant was denied the opportunity of a hearing to which he was entitled under s 360 of the Act.
In Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737, it was stated at [33] (per Kiefel CJ, Keane and Gleeson JJ) (footnotes omitted):
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.
Whilst the applicant did not respond to the s 359 letter by enrolling in a relevant course of study, his evidence indicated a level of confusion in relation to this form. It is possible that if he had been invited to a hearing before the Tribunal, and/or if the issue had been further discussed with him at such a hearing, then the applicant may have arranged enrolment in a further course prior to the Tribunal’s decision.
I therefore find that materiality has been established.
CONCLUSION
For the above reasons, the application before this Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 2 June 2023
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