Sok v Minister for Immigration
[2006] FMCA 1393
•12 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SOK & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1393 |
| MIGRATION – Application for review of Migration Review Tribunal decision – procedural fairness – requirement to provide a real and meaningful invitation to applicant by Migration Review Tribunal – requirement to give applicant an opportunity to comment on matters likely to be a reason or part of a reason for the Tribunal’s decision – claim of inflexible interpretation of Migration Regulations – meaning of ‘undertaking a full time course of study’ under clause 101.213 of the Migration Regulations – meaning of ‘reasonable time’ under clause 101.213 of the Migration Regulations – appeal dismissed. |
| Migration Act 1958, ss.29, 30, 31, 65, 338, 348, 357A & 360 Migration Regulations 1994, rr.101.21, 101.211, 101.212, 101.213, 101.22 & 101.221 |
| Abebe v Commonwealth (1999) 197 CLR 510 Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 Commissioner for Australian Capital Territory State Revenue v Alphaone (1994) Gherga v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 351 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 Minister for Immigration & Multicultural & Indigenous Affairs v SGJB [2003] FCAFC 290 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 Re Minister for Immigration and Multicultural Affairs and Ors: ex parte Cassim (2000) 175 ALR 209 Re Minister for Immigration and Multicultural Affairs: Ex parte Lam (2003) 195 ALR 502 Sok v Minister for Immigration [2005] FMCA 190 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 SZDLA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1048 SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 SZEMB v Minister for Immigration [2005] FMCA 448 VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC Zekiroski v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1288 Zekiroski v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 29 |
| First Applicant: | HUN CHEA SOK |
| Second Applicant: | TOLA TANG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 394 of 2006 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 29 August 2006 |
| Date of Last Submission: | 29 August 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Hughan |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondents: | Mr. Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
All extant applications be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 394 of 2006
| HUN CHEA SOK |
First Applicant
| TOLA TANG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application filed on 17 March 2006 to set aside the decision made by the Migration Review Tribunal (“the Tribunal”) dated 16 February 2006. By that decision, the Tribunal affirmed the decision made by a delegate of the first respondent to refuse the application made by the second applicant for a child (Migrant) (Class AH), sub-class 101 (Child) visa.
Background
A convenient summary to the background to the proceedings was contained in the respondent’s contentions of fact and law and appears to accurately reflect the material before the Tribunal and documents which are in the Court Book (“CB”).
I adopt the following paragraphs from the first respondent’s contentions of fact and law for the purposes of this judgment:
“2.1 The applicants are citizens of Cambodia (CB 9 and 24-25). The first applicant is the holder of a spouse visa (see, for example, CB 174.5 and 233.5). The second applicant is her son (CB 12). He turned 18 years old on 16 October 1997 (CB 9 and 23).
2.2 On 7 April 2003, the second applicant (“applicant”) lodged with the Department of Immigration and Multicultural Affairs (‘Department”) an application for a child (migrant) (class AH) visa, sub class 101 (child) (“child visa”) (CB 1-30). He was sponsored by the first applicant. (“sponsor”).
2.3 In a decision dated 8 April 2003, the delegate of the first respondent refused to grant the applicant a child visa (CB 31-35).
24. On 13 May 2003, the applicants lodged with the Migration Review Tribunal (“Tribunal”) an application for review of the delegate’s decision (CB 36-43). The applicants subsequently submitted other material in support of the review application (CB 44-109).
2.5 In a decision dated 16 June 2004, the Tribunal affirmed the delegate’s decision (CB 112 – 121).
2.6 On 19 July 2004, the applicants filed with the Federal Court an application for judicial review of the Tribunal’s decision of 16 June 2004 (CB 122-124). The matter was transferred to the Federal Magistrates Court on 6 September 2004 (CB 125).
2.7 On 4 March 2005, the Federal Magistrates Court ordered that the Tribunal’s decision of 16 June 2004 be set aside and the matter be remitted to the Tribunal for determination according to the law (CB 131-144).
2.8 Upon remittal of the matter to the Tribunal, the Tribunal wrote to the applicants’ representatives on 10 August 2006 (sic) (CB 150 – 153). The Tribunal invited the sponsor pursuant to
s.359 of the Migration Act 1958 (Cth.) (“Act”) to give additional information in support of the review application (CB 150-151). The Tribunal also invited her comments pursuant to s.359A of the Act about information which the Tribunal considered would be the reason, or part of the reason, for its decision (CB152 -153).
2.9 On 15 September 2005, the applicants’ representative responded to the Tribunals’ letters dated 10 August 2005, lodging written submissions and various supporting documents (CB 155-192). Further material was lodged on 13 October 2005 (CB 195-200).
2.10 On 21 October 2005, The Tribunal conducted a hearing at which the applicant gave evidence (CB237.8)
2.11 In correspondence to the sponsor dated 24 October 2005, the Tribunal requested that she provide further information about the applicant’s academic activities (CB 201-202).
2.12 On 25 January 2006 the applicants’ representatives responded to the Tribunal’s letter dated 24 October 2005 lodging written submissions and various supporting documents (CB 209 -224).
2.13 On 16 February 2006, the Tribunal handed down its decision in which it affirmed the delegate’s decision (“Tribunal’s decision”) (CB 231 -274).”
The applicants have relied upon contentions of fact and law filed 16 June 2006. The respondents have relied upon contentions of fact and law filed 24 July 2006. A case book was filed on behalf of the respondents and a supplementary case book (“SCB”) on behalf of the applicants.
Counsel for both parties made detailed and considered written and oral submissions which were of great assistance to the Court.
One additional matter (not contained in the above summary) was that on 6 February 2006 the applicants’ representative advised the Tribunal:
“The applicant is happy not to have a further hearing of this matter if it is unnecessary. However, if the Tribunal has any adverse issues to put to the applicant then there should be a hearing.” (see SCB 56)
The law
By virtue of a combination of the Migration Act 1958 (“the Act”) and the Migration Regulations 1994 (Cth.) (“the Regulations”) made under the Act there is a statutory scheme by which visas exist and are granted. Section 29 of the Act provides that the Minister may grant a visa to non citizens. Section 30 provides for visas to be permanent or temporary. Section 31 provides that there are classes of visas and for the Regulations to prescribe the criteria for particular classes of visa.
Item 1108 of Schedule 1 of the Regulations provides for Child (Migrant) (Class AH) visas. So far as is relevant for present purposes this class includes the subclass 101 (Child) visa. Schedule 2 of the Regulations sets out the criteria to be observed before a visa of this class (subclass 101 (child)) can be granted.
Before a subclass 101 (Child) visa can be granted, the visa applicant must, at the time of application, satisfy the criteria in clause 101.21 which so far as is relevant for present purposes provides:
“Criteria to be satisfied at time of application.
101.211 (1) The applicant:
(a)is a dependent child of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(b)subject to subclause (2), has not turned 25; and
(c)either:
(i) is:
(A) the natural child; or
(B) the step-child within the meaning of paragraph (b) of the definition of step child.
of the Australian citizen, holder of Australian permanent resident or eligible New Zealand citizen mentioned in paragraph (a); or
(ii) was adopted overseas by a person who, at the time of the adoption, was not an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen but later became an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Paragraph (1) (b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b) (ii) of the definition of “dependent child.”
(i) is dependent on that person; or
(ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
101.212 The applicant is sponsored by a person who:
(a) has turned 18; and
(b) is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and
(c) is:
(i) the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 101.211 (1); or
(ii) the cohabiting spouse of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 101.211.
101.213 (1) If the applicant has turned 18:
(a)the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse; and
(iii) has never had a spouse; and
(b)The applicant is not engaged in full time work; and
(c)Subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of professional, trade or vocational qualification.
Paragraph (1) (c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b) (ii) of the definition of “dependent child.”
101.22 Criteria to be satisfied at time of decision.
101.221 (1) In the case of an applicant who had not turned 18 at the time of application, the applicant:
(a) continues to satisfy the criterion in clause 101.211; or
(b) does not continue to satisfy that criterion only because the applicant has turned 18.
(2) In the case of an applicant who had turned 18 at the time of application:
(a) the applicant:
(i) continues to satisfy the criterion in clause 101.211; or
(ii) does not continue to satisfy that criterion only because the applicant has turned 25; and
(b) the applicant continues to satisfy the criterion in clause 101.213.
Section 65 of the Act requires the Minister to grant a visa if the criteria set out in the Act and the Regulations are satisfied. Section 338 provides for certain decisions to be reviewed by the Tribunal, and subject to the application being properly made, section 348 provides that the Tribunal must review the decision.
The Tribunal’s decision
It was contended on behalf of the visa applicant at the Tribunal that he met the criteria for the grant of a subclass 101 (Child) visa. Documentary material was submitted on his behalf (CB 165 to 192) and he gave oral evidence (SCB 2-21).
The decision of the Tribunal demonstrates that having set out the background and having directed itself to the relevant parts of the Regulations and Departmental policy, the Tribunal summarised how it would approach the assessment of the visa applicant’s claim (CB 243):
“49. In order to be entitled to the grant of a subclass 101 child visa the applicant must be dependent on his mother at the time of application and at the time of decision as required by clauses 101.211 and 101.221. However, as the visa applicant was over 18 years at the time of application he must also satisfy the additional requirements in clause 101.213. Before assessing whether the visa applicant was dependent on his mother at the time of application and whether he continues to be dependent on her at the time of decision, the Tribunal will assess whether the visa applicant satisfies the additional requirements in clause 101.213. If he does not satisfy clause 101.213, an assessment of his dependence at the time of application and the time of decision would be pointless…”
Having focused on whether the visa applicant satisfied the requirement of clause 101.213, the Tribunal’s decision indicates it was satisfied the visa applicant met the requirements of paragraphs (1) (a) & (b) of 101.213: (CB 243)
The Tribunal then went on to consider whether the visa applicant also satisfied paragraph 1(c) of clause 101.213.
“…51. The Tribunal accepts that the visa applicant commenced primary school at the age of nine years and he completed year 12 studies at Toul Tum Poung High School in 1999/2000, at the age of 20 years. The Tribunal accepts at in 2002/2003 the visa applicant enrolled in an associate degree course at the Institute of Technology and Management which was converted to a bachelor degree course at the 2003/2004 or 2004/2005. The Tribunal accepts that the visa applicant is currently enrolled at ITM.
52. The review applicant claimed that the visa applicant did not complete the equivalent of year 12 studies in Australia in 2000 because the standard of his secondary education was inadequate to prepare him for tertiary studies. The Tribunal notes that clause 101.213 does not require an applicant to have successfully completed the equivalent of year 12, or to have reached an acceptable standard of tertiary studies. Even if the Tribunal was to accept that the visa applicant’s studies at Toul Tum Poung High School were inadequate to properly prepare him for tertiary study, there is no evidence before the Tribunal to indicate that year 12 in the Cambodian public school system is not the final year of secondary education under the state sponsored education system in that country. The Tribunal finds that the visa applicant completed the equivalent of year 12 in the Australian system when he completed year 12 at Toul Tum Poung High School at the end of the 1999/2000 academic year.
53. The visa applicant also claimed that his part-time English language, Chinese school and computer studies between 2000 and 2002 were equivalent to full time study which would satisfy the requirements of clause 101.213. The Tribunal applies policy and finds that the visa applicant was not enrolled in a single full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification between 2000 and 2002.
54. The Tribunal must now determine whether the visa applicant has, within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The visa applicant did not enrol at ITM or any other full-time course leading to the award of a professional, trade or vocational qualification until the 2002/2003 academic year. The Tribunal finds that the visa applicant did not enrol at ITM until two years after he completed year 12 in 2000.”
The Tribunal reviewed the evidence of the visa applicant’s education between 2000 and 2002 at paragraphs 55-59. The Tribunal then turned its mind to whether for the purposes of paragraph 1(c) of clause 101.213 this period was reasonable. It turned first to what the visa applicant did during that period. In doing so the Tribunal had regard to Departmental policy and previous decisions of the Court.
“60. Policy provides that an assessment of the reasonableness of the period between completing year 12 and commencing post-secondary should include an examination of the reasons why the decision to study was deferred and whether the applicant remained dependent on their parents during that time. The Federal Magistrate’s Court in Sok v Minister for Immigration [2005] FMCA 190 (4 March 2005) provided further direction on the matter, indicating that it is necessary to take into account the following matters.
a) the actual period of time involved.
b) what activities if any there were undertaken during that period of time;
c) the purpose for which those activities were undertaken;
d) if no activities connected with the ultimate course of study were undertaken the reason for not undertaking activities related to the course of study.
61. The actual period of time is two academic years, being 2000/2001 and 2001/2002.
62. The visa applicant claimed that his attendance at Leang You Chinese school and Duon Hoa Chinese School, the English Language Training Institute and the Atlanta Centre was for the purpose of improving his academic standing before he enrolled in post-secondary education at ITM in 2002. The visa applicant did not advise whether he attempted, unsuccessfully, to enrol at ITM or any other tertiary institution before 2002. He did not advise whether he undertook an entrance examination for ITM, the basis on which he was granted entry to an associate degree course at ITM. That is, whether the visa applicant was admitted to ITM in 2002 on the basis of his year 12 results from Toul Tom Poung High School in 2000, his year 6 results from Leang You Chinese School in 2000/2001, the short course at the Atlanta Centre in early 2002 or by some other assessment of his academic readiness for tertiary study. The visa applicant’s claim that his education at from Toul Tom Poung High School was inadequate preparation for tertiary study was not supported by any document evidence from tertiary institutions or other education or government bodies in Cambodia.
63. The visa applicant did not indicate how his studies at Chinese School, ELTI and the Atlanta Centre were related to his tertiary studies in 2002. However, as the visa applicant enrolled in an associate degree course in computer studies and later a bachelor degree course in computer science, it is fair to assume that his computer and mathematics course at Chinese School and the Atlanta Centre were undertaken to prepare him for his intended course of study at ITM. The visa application did not provide evidence to indicate the language of tuition at ITM or a list of subjects attempted in any of the years during which he was enrolled at ITM. The Tribunal notes that the certificates provided by ITM appear to be written in Khmer and English, not in Chinese. It is therefore reasonable to assume that the visa applicant’s extra studies in Khmer and English language at the Chinese school and ELTI were relevant to his proposed course of study at ITM. There is no evidence before the Tribunal to indicate the relevance of the visa applicant’s general secondary studies in Chinese, History, Geography, Accounting, Arts or Physical Education to his proposed tertiary studies.
64. The Tribunal finds that, on the evidence before it, the visa applicant undertook general studies in year 6 at Lean You Chinese School in 2000/2001 but was not attending any Chinese school in the 2001/2002 academic year. The Tribunal rejects the visa applicant’s claim that he attended the Duon Hoa Chinese School in 2001/2000. The Tribunal finds that the visa applicant attended one three-month computer course at the Atlanta Centre between December 2001 and February 2002. The Tribunal is able to find only that the visa applicant attended English language courses of an indefinite duration at some time in early 2002, 2004 and 2005.”
The Tribunal then went on to assess whether the “delay of two years between completing year 12 and commencing post-secondary education was reasonable” in the light of its assessment of the visa applicant’s credibility and the evidence in support of the claim that such a period was reasonable.
“65. A determination of whether the delay of two years between completing year 12 and commencing post-secondary education was reasonable in all the circumstances necessarily includes an assessment of the credibility and reliability of the evidence provided in support of that contention and an assessment of the weight to be given to that evidence.
66. The Tribunal notes that the visa applicant provided false documents to the Department in relation to his claimed enrolment at Norton University in 2001. The visa applicant later claimed that he paid a friend to enrol him at Norton University, but the friend kept the money and gave him false papers. The Tribunal notes that the bogus documents referred to the visa applicant’s enrolment in a marketing course in the 2002/2003 academic year. After that enrolment was repudiated by Norton University, the visa applicant provided evidence that he enrolled in a computer course at ITM in 2002 and claimed that he undertook additional studies at Chinese School, ELTI and the Atlanta Centra between 2000 and 2002 to prepare himself for tertiary studies in computer science at ITM. It is difficult to reconcile the visa applicant’s claim that he believed he was genuinely enrolled in a marketing course at Norton University with the current claims. The Tribunal has already rejected some of the visa applicant’s claims made in relation to his part-time studies between 2000 and 2002.
The Tribunal does not accept that the visa applicant was an innocent victim of fraud perpetrated by his friend in 2002, and finds that his credibility is compromised by his previous conduct and the overstatement of his case in the current application.
67. The Tribunal will assume that the visa applicant was dependent on his mother between 2000 and 2002, without assessing the evidence provided in relation to the review applicant’s financial support for the visa applicant during that time. The Tribunal is not satisfied that the visa applicant was engaged in activities related to the course of study for the entire period between the completion of year 12 studies in 1999/2000 and his enrolment at ITM in 2002/2003. The Tribunal finds that, whilst the visa applicant did undertake some relevant study in preparation for his computer course at ITM during that period, there is insufficient evidence before the Tribunal to justify a delay of two years between finishing year 12 and enrolling at ITM.
The Tribunal is not satisfied that the period of two years between completing year 12 and enrolling at ITM was reasonable in all the circumstances.”
The Tribunal reached a conclusion that the applicant did not meet the criteria for the grant of a visa. Specifically, the Tribunal concluded at CB 246:
“69. Taking into account all of the evidence before it, the Tribunal is not satisfied that the visa applicant has since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The Tribunal finds that the visa applicant does not satisfy clause 101.213.”
The Tribunal was not satisfied the visa applicant met the requirements of paragraph 1(c) of clause 101.213.
Application for review of the Tribunal’s decision
The grounds of the application filed 17 March 2006 are:
“1.The Second Respondent failed to accord to the Applicants procedural fairness.
Particulars:
1.1 On 21 October 2005 the Second Respondent commenced a hearing of the Applicant’s application to review the decision of the delegate of the First Respondent.
1.2 The hearing ended before the Second Applicant had concluded giving evidence and before the First Applicant and her husband could give any evidence.
1.3 At the end of the part hearing the presiding member indicated to the Applicants her intention to resume the hearing at a later date if required to do so.
1.4 On 6 February 2006 the Applicants, through their migration agents, informed the Second Respondent that there should be a further hearing if the Second Respondent had any adverse issues to put to the Applicants.
1.5 Despite this letter, the Tribunal handed down its decision by which it made substantial adverse findings against the Second Applicant without resuming the hearing of the review application.
2. The Second Respondent failed to comply with section 348 of the Migration Act 1958 in that it failed to conduct a review of the Applicants’ application.
Particulars
2.1 The Applicants refer to and repeat the particulars numbered 1.1 – 1.5.
3. The Second Respondent failed to comply with section 359A of the Migration Act 1958.
Particulars
3.1 The Second Respondent found that the Second Applicant did not provide evidence of the inadequacies of his previous schooling as preparation of a tertiary course, that he did not advise whether he had attempted to enrol in his current course at an earlier time and had not demonstrated the relevance of his post- secondary studies to his current course.
3.2 However the Second Respondent did not give to the Applicants an opportunity to comment on this information prior to handing down it decision.
3.3 Further the Second Respondent concluded it was difficult to reconcile the Second Applicant’s evidence as to the course he had undertaken between 2000 & 2002 with the evidence he previously gave about his enrolment in Norton University.
3.4 However the Second Respondent did not give to the Applicants an opportunity to comment on this information prior to handing down its decision.
4. In deciding to affirm the decision of the delegate of the First Respondent, the Second Respondent erred in law, such error amounting to jurisdictional error, in that misapplied or misunderstood the paragraph 101.213 of the Second Schedule of the Migration Regulations 1994 causing it to ask itself the wrong questions and/or address the wrong issues and/or take into account irrelevant material.
Particulars
4.1 The Second Respondent misinterpreted sub-clause (c) of paragraph 101.213 as requiring that the Second Applicant must have been engaged in a single “full time course of study at an educational institution.”
4.2 The Second Respondent misinterpreted the meaning of the words “reasonable time” contained in sub-clause (c) of paragraph 101.213.
5. The Second Respondent failed to take into consideration that there is not a National Office of Overseas Skills Recognition profile for the Cambodian education system in concluding that the Applicant had completed the equivalent of the end of year 12 in the Australian education system at the end of the 1999/2000 academic year.
6. In deciding to affirm the decision of a delegate of the First Respondent, the Second Respondent inflexibly applied a policy formulated by the First Respondent without regard to the merits of the Applicants’ case.”
Consideration of issues in application
Counsel for the respondents approached consideration of the issues raised in the application by reference firstly to the claim/s in relation to procedural fairness and then by reference to the claims grouped under the heading of statutory construction.
For the purpose of these reasons it is convenient to approach the consideration of the issues raised by the application on the same basis.
Claim regarding procedural fairness
Submissions of the applicant
Section 357A of the Act provides that the subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: see Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 (Lay Lat) see also SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62.
Counsel for the applicants indicated that the application in this matter had been filed prior to the decision in Lay Lat. Nonetheless Counsel for the applicants maintained the claim that they were denied an opportunity to a full hearing and that this constituted a breach of either ss.348, 359A or 360 of the Act.
The applicant claimed that the conduct of the Tribunal “both at the adjourned hearing of 21 October 2005 and subsequently, leads inevitably to the conclusions that the review hearing was not complete and that the process of reviewing the decision of the first respondent was not undertaken properly in this case.”[1]
[1] Applicant’s Contentions of Fact and Law paragraph 14
The applicants argued that the circumstances may be considered as either a breach of the requirements of procedural fairness (to the extent to which those requirements apply) or, a breach of the duty imposed to conduct a review: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117.
It was submitted that “significant findings adverse to the Second Applicant were made” by the Tribunal “without giving him an opportunity to comment on those matters as required by s359A.”[2]
[2] Applicant’s Contentions of Fact and Law paragraph 18
The applicants submitted that if the documents provided following the hearing didn’t satisfy the Tribunal there should have been a further hearing.
Finally, in support of a claimed breach of section 360 it was said that the invitation to the hearing in the circumstances was not real and meaningful: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 (“SCAR”).
Put simply, it is claimed “this case involved a hearing which commenced but did not conclude.”[3]
[3] Applicant’s Contentions of Fact and Law Paragraph 16
The applicant relied on the decision in SZEMB v Minister for Immigration [2005] FMCA 448 where FM Smith at [30] said:
“Section 425(1) provides that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising to the decision under review.” This duty does not arise if one of the events described in s.425 (2) arises, but they have no application to present case. The Tribunal was, therefore, obliged to hold a hearing in the present matter and to invite the applicant to attend. It has been held that the legislation intends the invitation to be “real and meaningful” and not to be “a hollow shell or an empty gesture” (see NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30], and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]). The scheme of the legislation plainly holds out to applicants an entitlement to a hearing at which they can attempt to persuade the Tribunal to accept their claims.”
The applicant also relied on Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 (“NAFF”) at [27] where McHugh Gummow, Callinan and Heydon JJ said:
“One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments have been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before the direction was complied with or withdrawn.”
Submissions of the respondent
The respondent submitted the visa applicant was given an invitation, there was no indication it was not real and meaningful, he was asked questions about his claims and evidence, given a reasonable opportunity to give oral evidence, had an opportunity to lodge post hearing submissions and material and was aware of the critical issues upon which the matter might turn.
The respondent referred to the decision in SZDLA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1048 Conti J. said at [20] in relation to NAFF that:
“The facts in that case were that the Tribunal member had promised the applicant during the course of the hearing that he would be able to address questions the member had in mind in relation to certain inconsistencies identified by the member in the applicant’s evidence. Their Honours McHugh, Gummow, Callinan and Hayden JJ considered whether the Tribunal’s failure to send the promised questions led to an incomplete review and that section 425 was thereby infringed because it imposed a duty to hear from the applicant.”
At [44] His Honour said:
“Pursuant to s 425, the Tribunal is therefore under a statutory obligation to issue an invitation to an applicant to attend a hearing. While so much indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting submissions, the obligation imposed by the section is directed to the issuing of an invitation, rather than to the manner of subsequent conduct of the hearing itself.”
The respondents placed considerable emphasis on the word “invite” in section 360 (the mirror provision is s.425 for the Refugee Review Tribunal) and referred to the decision in SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 (“SZDPB”) where the Full Court said at [17]:
“Section 425 of the Migration Act 1958 (Cth) requires the Tribunal to invite an applicant to a hearing. This can be done by adoption of the process referred to in s 425A. This was done in this case. It is not to the point that actual notice was not received by the child until after the hearing. Compliance with the regime referred to in ss 425, 425A and 441G satisfies the requirements of procedural fairness to an applicant: s 422B.”
The respondent also referred to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 (“SZFHC”) where the Full Court at [41] said:
“The current version of s 425 is in different terms. It requires that the Tribunal invite an applicant to appear, and provides a method which the Tribunal must follow to satisfy this requirement.”
The respondent referred to and relied on the decisions in SZDPB and SZFHC.
In relation to NAFF the respondent submitted that what occurred here was not the sort of “egregious” conduct that occurred in that case.
The respondent said in this case the Tribunal had made clear the concerns it had regarding the documentation provided to support the claims. There had already been a section 359A letter and hearing at which the Tribunal’s concerns had been voiced. The request for further information after the hearing was evidence of this. In relation to the asserted breach of section 359A the respondent submitted that “adverse issues” referred to in the facsimile from the applicants’ representative could only relate to matters about which the applicants and their representatives were not and could not have been expected to be aware.[4]
[4] Respondent’s Contentions of Fact and Law paragraph 5.29
The respondent submitted the term “information” in section 359A did not encompass the Tribunal’s subjective appraisals, thought processes or determinations: See SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [206].[5] The respondent said in the alternative that the information was information supplied by the applicants and accordingly fell within the scope of s.359A (4)(b).[6]
[5] Ibid at paragraph 5.45
[6] Respondent’s Contentions of Fact and Law paragraph 5.45
In relation to the hearing, both parties drew the Court’s attention to the decision of Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 (“Antipova”). In that matter Gray J found that the Tribunal in that case had not given the applicant a fair hearing in two respects. His Honour found at paragraph 79 that the Tribunal:
“sought to impose an arbitrary time limit on her, and it interrupted her to the extent that she was prevented from giving evidence as she wished to.”
His Honour went on to consider SCAR, noting at paragraph 83 that:
“at [38] the Full Court recognised that compliance with s.425 (in this case s.360) is a ‘precondition to the valid exercise of the Tribunal’s jurisdiction’, and that a failure to comply involves a jurisdictional error.”
At paragraph 85 His Honour said:
“In the present case, because it interrupted her and imposed an arbitrary time limit on her, the Tribunal did not permit Ms Antipova to give evidence and present arguments as she wished to do….The Tribunal failed to observe a precondition of the exercise of the jurisdiction conferred on it. Its decision was made without an invitation to attend a hearing of the kind required, because such a hearing has not yet been conducted.”
The decision in Antipova notes that his Honour’s reasons for judgment were made before becoming aware of Lay Lat. His Honour indicated to the extent that Lay Lat:
“…might be taken to be authority on the meaning and effect of s357A of the Migration Act, it does not bind me to hold that Ms Antipova’s only entitlement to procedural fairness is to be found in the meagre provisions of Div 5 of Pt 5 of the Migration Act.”
In this case neither party suggested the Court was not bound to follow the decision of the Full Court in Lay Lat. Rather the applicant submitted that the Court ought note that what happens at the hearing can “colour” the invitation for the purposes of s.360.
The respondent submitted that Antipova followed the decision in SCAR (and in turn Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946) and that at paragraph 92 in Antipova His Honour said the question was “whether what took place at the hearing…was so defective as to render the invitation to a hearing other than real and genuine.”
Finally, and the applicant did not take issue with this submission, the respondent submitted that what occurred in this case could not be said to approach how the hearing in Antipova was conducted.
Consideration of the issues
Section 360 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 was provided: see CB 193.
In this case the transcript from the hearing is clear. The visa applicant’s evidence occupied almost the whole of the time of the hearing on
21 October 2005: (SCB 1-21)
The Tribunal member asked the visa applicant: (SCB 21)
“MEMBER: Okay. Mr Tang, we’re going to finish up with you in a minute. Is there anything you’d like to say before we say goodbye to you?
INTERPRETER: I would like the member to make a decision as soon as possible because this application has been going on for seven or eight years now.
MEMBER: Yes, anything else?
INTERPRETER: That’s all.”
It is true that this conversation followed an exchange between the Tribunal Member and the visa applicant’s representative where the Tribunal Member made reference to a possible further hearing (SCB 21):
MEMBER: Now Mr Rodan, I can see we’re running out of time for you and the interpreter. Is there anything you want me to raise with him before we finish up?
MR RODAN: I’m not worried about time, your Honour, and the interpreter---
MEMBER: Yes we can speak to him again on another occasion if you need to. We will have to come back, I’m sorry.”
It is also true that the transcript from the hearing, following the conclusion of the hearing of evidence from the visa applicant, discloses the following exchange where a similar reference was made (SCB 21):
<THE WITNESS WITHDREW
MEMBER: Mrs. Sok, we’re going to have to finish up now because we can’t keep our interpreter but we can come back on another day and I can take evidence from you. I’m going to send a letter to your agent asking him to get hold of certificates about your son’s education because there’s still quite a bit of confusion about what he’s been doing for the last few years. Mr. Rodan, do you want to – I think a 359 is appropriate to try and get the documents to back up the oral evidence because the documents at the moment just don’t help at all. I suspect that year 7 that we were looking at before is the year 7 Chinese school. Its got nothing to do with the secondary, which means I have nothing to show me that he completed secondary school or when. So I think that may not have a negative impact on the case but I’ve still got a vacuum you know. There really isn’t the documentary evidence to back up the claim. I mean, it’s up to you. We can continue the hearing in a week or two or do the 359 first. Do you have a preference? I’m not wedded to either course.
MR RODAN: If you do a 359 and then we’ll know ---
MEMBER: See what we can put together
MR RODAN: - - - specifically what you want and if we haven’t – then I think I’ll call a new hearing.
MEMBER Okay. So we’ll do the 359 first and then see what we end up with.
MR RODAN: Yes.
MEMBER: And then come back again if we need to.
MR RODAN: Absolutely.
MEMBER: Perhaps do it that way.
MR. RODAN: Yes.
However, it is important to note that it was Mr Tang, not the review applicant or her husband, who was the visa applicant in this case and as set out at paragraph 50 his evidence had concluded and had been asked whether there was anything else he wanted to say.
It could not be said that the conduct of the Tribunal in this case precluded the visa applicant from giving evidence or having his case understood.
Also it could not be said that the visa applicant did not know of the concerns the Tribunal had with whether he met the essential criterion for the grant of the visa. There is much force in the submissions of the respondent that when regard is had to whole of the proceedings, it is abundantly clear that the Tribunal is concerned with the absence of documentary evidence. The exchanges in the transcript of the Tribunal’s hearing are replete with references to the Tribunal’s concerns regarding the lack of evidence.
At SCB 2, line 27 at the beginning of the Tribunal hearing the Presiding Member says:
“What’s been submitted doesn’t match the documents.”
At SCB 3, line 22 the Presiding Member says:
“..I’m concerned about the documents.”
At SCB 7, line 35 the Presiding Member asks the visa applicant:
“Can I ask why you don’t have one of those year 12 certificates?”
At SCB 11-12 the Presiding Member raised concerns with the visa applicant and his representative regarding the documentary evidence.
At SCB 16 the Presiding Member made requests for certificates substantiating study at the Atlanta centre.
At SCB 18 the Presiding Member raised concerns regarding conflicts in claims made in the visa application and the evidence concerning study at Norton University:
“MEMBER: Did you study at all at Norton University at any time?
INTERPRETER: I asked him to repeat this in the year 2002 I intended to study at that university and I asked my friend to pay for the fee, the fee course, the course fee, and then when I went to study there my name was not on the list because the fee was not paid. My friend cheated on me, he didn’t pay the fee to the school and then Immigration Department in Phnom Penh said that I lied to them but actually I didn’t lie. I asked my friend to pay the fee but he didn’t pay the fee for the course.
MEMBER: I actually asked you if you did any studies at Norton University. Did you go to any classes there?
INTERPRETER: I went there to study only for one week and then they said that my name was not on the list.
MEMBER: And when does the university year start? What week was it you studied at Norton?
INTERPRETER: I did the one week over there probably in late September or early October 2002.
MEMBER: Your visa application-you lodged a visa application on 11 October 2002 in which you claimed that you were a student at Norton University but from what you’ve just told me, you would already have known that you were not enrolled.
INTERPRETER: As I told you, I was told after one week that I studied there that my name was not on the enrolment.
MEMBER: But if you already knew that you were not enrolled, why did you put your application into the Department saying you were a uni student at Norton?
INTERPRETER: I actually had lodged the application before I was aware.
MEMBER: I asked you a little while ago if you had studied at any other university and you said no. I was asking you about the Institute of Technology and Management. I’m wondering why you didn’t mention one week of studies at Norton University?
INTERPRETER: Because it means that my name was not on the enrolment. That’s why I didn’t mention it because my friend cheated on me.
MEMBER: I didn’t ask you if you were enrolled. I asked if you did any studies at any other school or college or university.
INTERPRETER: I want to ask you back, what do you mean by “to study”? In order to study to become a student, you need to be properly enrolled and you need to have a student ID but in my case I didn’t have all these things. That’s why I didn’t mention it.”
As set out at paragraph 52 at the conclusion of the evidence from the visa applicant on 21 October 2005 the Tribunal indicated to the review applicant it was “going to send a letter to your agent asking him to get hold of certificates about your son’s education because there’s still quite a bit of confusion about what he’s been doing for the last few years.”
The visa applicant’s representative was given the notice under s. 359 of the Act the need for which was agreed between the visa applicant’s representative and the Tribunal: (CB 201)
It is clear that the Tribunal indicated it would “come back again if we need to” (SCB 22). It is also clear that the visa applicant’s representative, following the receipt by the Tribunal of the material requested in the second s.359 letter (CB 201) was offered the option of another hearing.
The Tribunal received a facsimile from the migration agent which said that the applicant was “happy not to have a further hearing of this matter if it is unnecessary”: (SCB 56)
This point was reached after:
(a)an invitation to provide information (see CB 150).
(b)an invitation to comment on information (see CB 152).
(c)an invitation to a hearing (see CB 193)
(d)a hearing (see CB 1-21).
(e)a further invitation to provide information (see CB 201).
(f)extensions to the period to provide information (see CB 205 & 208); and
(g)an opportunity for a further hearing (see SCB 54) was given to the migration agent (see SCB 56).
The Tribunal was required to be satisfied that the visa applicant met the criteria for the grant of the visa. The visa applicant and his representatives were aware of this and had expended considerable resources to assist the Tribunal in reaching the requisite state of satisfaction. It is hard to see on what is before me how the visa applicant could possibly have been unaware of the issues that had to be decided. This history of the claim alone is a testament to this.
It was pointed out by the respondent that the proceedings before the Tribunal were inquisitorial, that the Tribunal was not in the position of a contradictor and that it was for the applicants to advance whatever evidence or argument they wished to in support of the claim: see Abebe v Commonwealth (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ.
The applicant in submissions emphasised the statement in the facsimile from the migration agent on 6 February that “…if the Tribunal has any adverse issues to put to the applicant then there should be a hearing.” Contrary to submission made on behalf of the applicants it was for the visa applicant to put before the Tribunal whatever evidence or argument he relied on to support his case and for the Tribunal to rule on that evidence and argument: see Re Minister for Immigration and Multicultural Affairs and Ors: ex parte Cassim (2000) 175 ALR 209 at [22].
Section 359A requires the Tribunal to advise the visa applicant of material which may be a reason or part of a reason for its decision.
In this case such a letter was sent: (CB 152). There also had been a hearing at which the visa applicant had an opportunity to give evidence and present arguments relating to the decision under review.
It cannot be said that the Tribunal’s decision constituted an adverse conclusion arrived at which would not obviously be open on the material: see Commissioner for Australian Capital Territory State Revenue v Alphaone (1994) 49 FCR 576 at 592.
The concerns the Tribunal had with the evidence provided in support of the application were raised with the visa applicant and his representative in both the section 359A letter (CB 153) and at the hearing including the concerns the Tribunal had regarding the enrolment at Norton University: (SCB 19)
Ultimately, the Tribunal’s decision indicates that it was not satisfied that the visa applicant satisfied an essential criterion (in this case the provisions in paragraph 1(c) of clause 101.213) for the grant of the visa.
In this case the visa applicant did have an opportunity to “attempt to persuade the Tribunal to accept [his] claims.” (SZEMB at [30]).
Moreover in this case what took place at the hearing, when regard is had to the claim overall (including the conduct of the matter before the Tribunal) cannot be regarded as “so defective to render the invitation other than real and genuine.” (Antipova at [92] ).
The visa applicant was aware of the concerns of the Tribunal. He was given ample opportunity to provide corroborative evidence. Over and above what occurred prior to and at the hearing with the agreement of his representative a further opportunity was provided. Then he was given the option of a further hearing before the decision was made.
On what is before me, and for the reasons set out above, it appears:
a)the visa applicant did receive a “real and meaningful” invitation to a hearing at which he could appear and give evidence in relation to issues likely to arise in relation to the decision under review;
b)the Tribunal did not mislead the visa applicant about what was likely to arise before the Tribunal;
c)the visa applicant did have an opportunity to comment on the matters likely to be a reason or part of the reason for the Tribunal’s decision as required by s.359A.;
d)the visa applicant did know what the Tribunal’s concerns were and had an opportunity to “persuade” them in a hearing;
e)that the Tribunal did not represent (in the sense set out in NAFF) that the “review could not be completed until…” there was another hearing; (emphasis added)
f)the visa applicant did have an opportunity to provide further evidence after the hearing and did so; and
g)that the Tribunal did carry out a review in relation to the visa applicant’s claim.
Having regard to the evidence given by the visa applicant at the hearing it can not be said that the invitation was a hollow shell or an empty gesture or that it was not a real and meaningful invitation. (see SCAR).
In any event since this matter was heard the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 per Graham J at [212] has considered the Tribunal’s obligations (in the context of s.425) with respect to the invitation to the hearing and said they are to do just that-invite the applicant to appear-which occurred in this case.
The transcript of the hearing shows the visa applicant had concluded his evidence. The Tribunal member said to the visa applicant: (SCB 21)
“MEMBER: Okay. Mr Tang, we’re going to finish up with you in a minute. Is there anything you’d like to say before we say goodbye to you?
INTERPRETER: I would like the member to make a decision as soon as possible because this application has been going on for seven or eight years now.
MEMBER: Yes, anything else?
INTERPRETER: That’s all.”
An issue that does arise for consideration is the conduct of the hearing on 21 October 2005 in relation to the other witnesses.
On 13 October 2005 a form titled ‘Request For Hearing’ was completed by the review applicant. The form indicated that a request was being made to take oral evidence from the visa applicant, the review applicant and the review applicant’s husband as “[H]e knows of my support for Tang Tola and the matter”: (see CB 197).
At the commencement of the hearing on 21 October 2005 the transcript discloses the following exchange: (see SCB 2)
“MEMBER: Good Morning, everyone. We’re here today, Mrs Sok, in relation to your son’s application for a dependent child visa. It was refused by the department because they did not accept that he continued to be a dependent child. As I discussed with your agent just before, I’m going to have another chat with you know and then we’ll telephone Cambodia and speak to your son, and then I can take evidence from you and your husband.
If we run out of time to do that we can come back another day to take your evidence and your husband’s.”
As set out at paragraph 52 above after the visa applicant had completed his evidence and withdrawn the Presiding Member had the following exchange with the review applicant and the migration agent:
“MEMBER: Mrs. Sok, we’re going to have to finish up now because we can’t keep our interpreter but we can come back on another day and I can take evidence from you. I’m going to send a letter to your agent asking him to get hold of certificates about your son’s education because there’s still quite a bit of confusion about what he’s been doing for the last few years. Mr. Rodan, do you want to – I think a 359 is appropriate to try and get the documents to back up the oral evidence because the documents at the moment just don’t help at all. I suspect that year 7 that we were looking at before is the year 7 Chinese school. Its got nothing to do with the secondary, which means I have nothing to show me that he completed secondary school or when. So I think that may not have a negative impact on the case but I’ve still got a vacuum you know. There really isn’t the documentary evidence to back up the claim. I mean, it’s up to you. We can continue the hearing in a week or two or do the 359 first. Do you have a preference? I’m not wedded to either course.
MR RODAN: If you do a 359 and then we’ll know ---
MEMBER: See what we can put together
MR RODAN: - - - specifically what you want and if we haven’t – then I think I’ll call a new hearing.
MEMBER Okay. So we’ll do the 359 first and then see what we end up with.
MR RODAN: Yes.
MEMBER: And then come back again if we need to.
MR RODAN: Absolutely.
MEMBER: Perhaps do it that way.
MR. RODAN: Yes.”
It is clear from the transcript (SCB 23) that the Tribunal had concerns with the documentation in support of the visa applicant’s claim.
The Presiding Member said:
“MEMBER: …So I will spell out what we need but basically I need a record of his studies because it hasn’t been provided to date for some reason, and if he has to apply to the ministry it might take some time.”
The Presiding Member also said to the review applicant at SCB 25
“MEMBER: Okay, I’m hoping you speak a little bit of English, Mrs Sok. We’re going to see if we can fix the case up and maybe come back again if we need to. Okay? Are you able to take instructions in English at all?
MR RODAN: Through the husband.
MEMBER: Okay, good. So you can explain that.
MR RODAN: Yes.”
In Re Minister for Immigration and Multicultural Affairs: Ex parte Lam (2003) 195 ALR 502, Gleeson CJ said at 511 “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”.
In this case, when regard is had to the history of the matter, it is clear the applicant was on notice about the concerns the Tribunal had with aspects of the claim. It is also clear the Tribunal did not mislead the applicant or the migration agent in the way in which it conducted the hearing.
The transcript of the hearing of 21 October 2005 indicates that the migration agent agreed that the Tribunal could come back again if it needed to (see SCB 25).
Documents contained in the SCB at 54 and 55 show that the Tribunal made several attempts to contact the migration agent to confirm whether a further hearing was required. The Tribunal’s file notes contained in the SCB at 54 show the ball was in the migration agent’s court and that the Tribunal would list a further hearing if the migration agent wanted it.
Unlike the decision in Minister for Immigration & Multicultural & Indigenous Affairs v SGJB [2003] FCAFC 290 the Tribunal did not make statements that the evidence provided would be accepted. Nothing was said to the applicant or the migration agent which would have indicated that the evidence of the review applicant or her husband should not be pursued.
Also unlike Gherga v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 351 the migration agent who was also a solicitor was not misled about the need for further witnesses. In this case the migration agent’s response was:
“The applicant is happy not to have a further hearing of this matter if it is unnecessary. However if the Tribunal has any adverse issues to put to the applicant then there should be a hearing” (SCB 56).
The concerns the Tribunal had with the visa applicant’s claims had been detailed during the hearing on 21 October 2005 (see paragraphs 56 to 61 above). The applicant and the migration agent knew this and were aware that the absence of documentation concerning the visa applicant’s education was and continued to be a live issue for the Tribunal.
That the applicant and the migration agent knew this can be gleamed from the migration agent’s letter to the Tribunal following the hearing which said in part:
“It has taken time to gather documents requested by the Tribunal, and some of the level of detail requested by the Tribunal in those documents has not been possible to obtain.”(CB 209) (emphasis added)
It was for the applicant to advance whatever evidence or argument he wished in support of his claim and for the Tribunal to decide whether the claim is made out. The migration agent would have been aware that the Tribunal had to be satisfied that the visa applicant met the criteria for the grant of the visa.
In the circumstances of this case and given the presence of the migration agent at all relevant times I am not satisfied that any statement of the Tribunal could have created an expectation that the visa applicant’s evidence would be accepted.
In Zekiroski v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1288, Finkelstein J. held that there was no denial of procedural fairness where in that case the first interview was cut short due to time constraints imposed at the prison where the applicant was serving his sentence but there was a second interview.
At [49] His Honour said:
“If there were any deficiency in the fairness of the decision making procedures resulting from the failure to complete the earlier interview (and there probably was), that deficiency was remedied by the opportunity afforded to the applicant during the 8 August interview.”
On appeal the Full Court agreed with His Honour that “any prejudice suffered by the appellant as a result of the truncation of the 18 February 2003 interview, was redressed at the second interview.” See Zekiroski v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 29 at [22].
In this case the visa applicant was offered the opportunity of a further hearing. The migration agent’s response at (SCB 56) was as follows:
“The applicant is happy not to have a further hearing of this matter if it is unnecessary. However, if the Tribunal has any adverse issues to put to the applicant then there should be a hearing.”
Nothing was said to the migration agent which would have indicated that the evidence of the review applicant or her husband should not be pursued. It was for the applicant to advance whatever evidence or argument he wished in support of his claim and for the Tribunal to decide whether the claim is made out (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]). The applicant through the migration agent was given the opportunity of adducing further oral evidence.
This response from the migration agent came after his statements at the Tribunal hearing (SCB 22) that he would “call a new hearing.” In this case the SCB shows the Tribunal made repeated contact with the migration agent and his office over the course of almost a 5 day period to see whether he wanted to call a further hearing (see SCB 54-56).
Furthermore, as referred to at paragraph 81 above, whilst it was indicated the review applicant’s evidence was of “my support for Tang Tola and the matter” the Tribunal, as set out in its decision at CB 243, looked firstly at whether he satisfied the requirements of clause 101.213. As a part of this determination the Tribunal assumed that the visa applicant was “dependent on his mother between 2000 and 2002, without assessing the evidence provided in relation to the review applicant’s financial support for the visa applicant during that time” (CB 246).
Given this, in the event that I am wrong and the first hearing was unfair then I would find that any unfairness was remedied by the Tribunal’s offer of a further hearing to the migration agent or alternatively there was no practical injustice in any event.
Accordingly, for the above reasons this ground is not made out.
Claims regarding statutory construction
The applicants’ claims in this regard fall under the following broad headings:
a)erroneous application of clause 101.213 of the Regulations and inflexible application of policy; and
b)failure to take into account that there is not a skills recognition profile for Cambodia;
(a) erroneous application of clause 101.213 of the Regulations and inflexible application of policy;
The applicant submitted that Tribunal “failed to appreciate the meaning of the words ‘reasonable time’ ”[7] in the context of this case and what the Regulations required.
[7] Applicant’s Contentions of Fact and Law paragraph 27
It was submitted that the Tribunal failed to appreciate that “on its proper construction sub-cl 101.213 (1)(c) would be satisfied” if the visa applicant was “contemporaneously undertaking study at more than one tertiary institution, leading to a qualification of the specified kind”.[8]
[8] Ibid paragraph 24
The applicants also claim that the Tribunal did not accept that the “undertaking of three courses contemporaneously could qualify as a ‘full-time course of study. ”[9]
[9]Ibid paragraph 22
It was submitted that the inadequacies of the visa applicant’s education “afforded a cogent reason for departure from the policy.”[10] It was also submitted that the approach adopted by the Tribunal was “at odds with s.23 of the Acts Interpretation Act 1901 (Cth.) which provides that words in the singular number include the plural and words in the plural include the singular.”
[10] Ibid Paragraph 23
The Tribunal’s decision not surprisingly, given the history of the matter, considered the issue of “reasonable time.” The Tribunal’s decision at paragraph 60 specifically refers to (and sets out the matters that would be relevant to that issue) Sok v Minister for Immigration [2005] FMCA 190 (4 March 2005) (Sok): see CB 244.
The Tribunal’s ultimate conclusion (at paragraph 67 of the decision: (CB 246) was reached following consideration and evaluation of each of the matters relevant to the issue of whether the time between completing year 12 and commencing post secondary study was “reasonable time”: (CB 244)
The Tribunal considered the actual period of time involved (at paragraph 61 of the decision), the activities undertaken (and the purposes of same) during the period (at paragraph 62) and if the activities were unconnected to ultimate course of study the reason why the activities were undertaken (at paragraph 63): (CB 245)
In doing so the Tribunal specifically took into account the part time courses and whether they were related to the studies in 2002.
On what is before me I cannot see that the Tribunal failed to appreciate the meaning of the words “reasonable time.” The Tribunal was entitled to (and did) turn its mind to the task required of it (in accordance the guidance provided by Sok) and in light of the evidence before it.
In doing all of this the Tribunal did so on the assumption “that the visa applicant was dependent on his mother between 2000 and 2002”: (CB 246).
Ultimately, the Tribunal was not satisfied that the period of two years between completing year 12 and enrolling at ITM was reasonable in all the circumstances.
In doing so the Tribunal embarked upon a fact finding process. It examined the visa applicant’s evidence and reached a conclusion reasonably open to it. As was submitted by the respondent the Tribunal had “regard to all of the matters advanced by the applicant to explain why, in his submission, this period of time was reasonable.”[11]
[11] Respondent’s Contentions of Fact and Law paragraph 5.58
It is understandable that the applicant may take issue with the Tribunal’s finding as to whether the period was reasonable. However, it is not the role of the Court to interfere in the Tribunal’s factual findings.
In relation to the issue of whether ‘undertaking study at more than one tertiary institution, leading to a qualification of the specified kind’ would satisfy paragraph 1(c) of clause 101.213 the respondent pointed out that the clause refers to:
“a full time course of study at an educational institution leading to a professional, trade or vocational qualification.” (emphasis added)
In Sok, FM Riethmuller at [15] said:
“Regulation 101.213(1)(c) appears to contemplate a single full-time course of study at a specific educational institution leading to an award of a qualification. To read this clause, all parts of which are in the singular, as including multiple courses of study appears to me to be beyond the clear terms of the regulation.” (emphasis added)
I agree with and respectfully adopt the comments of FM Riethmuller in relation to this issue. On what is before me I can see no warrant to depart from this reasoning. Nor in this case can I see why the Tribunal’s reference to and application of “policy” at paragraph 53 of its reasons was not a “proper” construction of paragraph 1(c) of the clause. The Departmental policy indicates the criterion in the Regulations regime that the course be a “full time course” and sets out the reason for this requirement. (See CB 242)
It needs to be remembered that the decision to grant a visa depends on the decision maker being satisfied as to the visa applicant meeting the criteria. As submitted by the respondent the provision states the single course must be “full time.” It also needs to be remembered that the Tribunal considered the issue of part time courses in the context of whether the period between 2000 and 2002 was reasonable.
In the context of this case the Tribunal’s decision shows that it understood the role of the policy in the decision making process.
The Tribunal’s reasons show it considered the criteria in clause 101.213 and importantly considered the arguments put forward by the visa applicant for a departure from the policy. (See CB 244-246)
On the evidence, the Tribunal did not accept the argument (CB 161) that three part-time courses could comprise a full time course for the purposes of clause 101.213. I can not find that the Tribunal’s decision discloses any jurisdictional error. Any analysis of the Tribunal’s reasons shows it considered the matters advanced by the visa applicant.
(b) failure to take into account that there is not a skills recognition profile for Cambodia;
The claim put in relation to this ground was that the Tribunal failed to take into account that there was not a National Office of Overseas Skills Recognition profile (NOOR) for the Cambodian education system and that as a result any consideration of whether the time after the visa applicant finished year 12 in Cambodia was reasonable was flawed by virtue of such a failure.
The applicants maintained that the starting point in determining whether any delay in starting year 12 was reasonable had to be a “comparative assessment of the two year 12’s” and that any such assessment required the Tribunal to avert to the absence of a NOOR for Cambodia.
The difficulty with this claim is two-fold. Firstly, and as submitted by the respondent, the Tribunal’s reasons show there was no evidence that year 12 in the Cambodian public school system is “not the final year of secondary education under the state sponsored education system in that country.” (CB 243).
Secondly, the applicants failed to point to any statutory requirement that made consideration of such a matter mandatory.
As was submitted by the respondents it is not for the Tribunal to advert to every item of evidence or engage in a line by line refutation of the applicants claims: see Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407 at 423.
On what is here before me I cannot find any error in the Tribunal’s approach to this issue.
Alternate and independent reason
The respondent submitted that the Tribunal’s decision also included an “alternate and independent” finding that it was not satisfied the visa applicant had been “undertaking” a full time course of study (CB 246.9).
At paragraph 68 of its decision the Tribunal said:
“In all the circumstances the Tribunal is not satisfied that there is sufficient evidence before it that the visa applicant has been undertaking a full-time course of study at ITM.”
The respondent submitted that should the Court find the Tribunal erred in relation to the issue of whether the period since the visa applicant had completed the equivalent of year 12 was reasonable this finding provided a separate and independent ground for the Tribunal’s decision.
The respondent relied on the discussions in VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [23]:
“The respondent said in the event the Tribunal erred in its approach to other aspects of Clause 101.213 this “alternative and independent finding” meant such could rise to the level of jurisdictional error. See Minister for Immigration and Multicultural Affairs v Yusef (2001) 296 CLR 323 at [82].
The relevant sections of the Act and the Regulations require that a visa must not be issued unless the Minister is satisfied the Tribunal, having afforded the visa applicant an opportunity to furnish information, that the visa applicant was “undertaking” a full time course and hence the requirements of paragraph (1)(c) of clause 101.213.
For the reasons set out above it is not necessary to decide this issue. However, in the event I am wrong and the Tribunal fell into error in relation to the issue of whether the period was reasonable I agree with the submissions of the respondent that this finding provides a separate and independent ground for the Tribunal’s finding.
Conclusion
For the reasons set out above I am not satisfied that the applicant has demonstrated jurisdictional error in the Tribunal’s decision.
Consequently, the application should be dismissed.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Associate: J Naughton
Date: 5 October 2006
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