Su v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 859
•29 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Su v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 859
File number(s): BRG 294 of 2020 Judgment of: JUDGE EGAN Date of judgment: 29 April 2021 Catchwords: MIGRATION – Failure by applicant to appear before the Tribunal at a scheduled time and date – no reasonable explanation for non-appearance – dismissal of application for review – application for re-instatement – inability of Tribunal to consider prospects of success of substantive application because of Tribunal being prevented from assessing the quality, content and credibility of the applicant’s evidence because of his non-appearance – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth), Schedule 2, cl 500.317, Schedule 4, PIC 4013.
Migration Act 1958 (Cth), ss 362B(1A)(b), 362B(1) – (1C), 379A(5).
Cases cited: Singh v Minister for Immigration & Border Protection & Anor (2018) 266 FCR 459.
AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503.
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.Number of paragraphs: 36 Date of last submission/s: 27 April 2021 Date of hearing: 27 April 2021 Place: Brisbane Solicitor for the Applicant: Mr McComber of Sentry Law Counsel for the First Respondent: Mr Byrnes Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
BRG 294 of 2020 BETWEEN: ZIYI SU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
29 APRIL 2021
IT IS ORDERED THAT:
1.The Originating Application for Review filed on 25 May 2020 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
The applicant is a citizen of China who, on 1 December 2016, was granted a Student Visa on the basis of his enrolment in a Bachelor of Business course of study which was to commence on 27 February 2017 and conclude on 15 December 2018. The applicant had previously completed a Diploma of Management which was undertaken between 26 January 2015 and 1 November 2015, as well as an Advanced Diploma of Leadership and Management which was undertaken between 1 January 2016 and 4 October 2016.
The applicant had made an application for a Student (Temporary) (Class TU) Visa on 28 August 2017. [1]
[1] Court Book (CB) p. 30 – 45 inclusive.
On 5 December 2018, a delegate of the Minister wrote to the applicant advising him that the visa application had on that date been refused. [2]
[2] CB p. 95.
The delegate found that the criteria for the grant of a Student Visa had not been met by the applicant, in that he had failed to satisfy the relevant criteria for the grant. In particular, the delegate found that cl. 500.317 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) had not been satisfied. Clause 500.317 of Schedule 2 to the Regulations relevantly provided as follows:
“500.317
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.
(2) If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.
(3) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(4) The applicant (other than a member of the family unit of a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005.
(5) The applicant, being a member of the family unit of a Foreign Affairs student or Defence Student, satisfies public interest criterion 4007.”
Clause 4013 of Schedule 4 to the Regulations provided as follows:
“4013
(1) If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A) or (3):
(a) the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or
(b) the Minister is satisfied that, in the particular case:
(i) compelling circumstances that affect the interests of Australia; or
(ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa within 3 years after the cancellation or determination.
(1A) A person is affected by a risk factor if a visa previously held by the person was cancelled:
(a) under section 109, paragraph 116(1)(d), subsection 116(1AA) or (1AB) or section 133A of the Act; or
(b) under section 128 of the Act because the Minister was satisfied that the ground mentioned in paragraph 116(1)(d) of the Act applied to the person; or
(c) under section 133C of the Act because the Minister was satisfied that the ground mentioned in paragraph 116(1)(d) or subsection 116(1AA) or (1AB) of the Act applied to the person.
(2) A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116, 128 or 133C of the Act:
(a) because the person was found by Immigration to have worked without authority; or
(b) if the visa was of a subclass specified in Part 2 of this Schedule--because the person did not comply with a condition specified in that Part in relation to that subclass; or
(c) if the visa was a Subclass 773 (Border) visa and, at the time of grant of the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part 2 of this Schedule--because the person did not comply with a condition specified in that Part in relation to that subclass of substantive visa; or
(ca) because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or
(d) because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(ea), (i), (ia) , (j), (k), (ka), (kb), (kc), (m), (o), (oa), (ob), (s) or (t) applied to the person.
(2A) A person is affected by a risk factor if a visa previously held by the person was cancelled under section 137J of the Act.
(3) A person is affected by a risk factor if a visa previously held by the person was cancelled because the Minister was satisfied that a ground mentioned in paragraph 116(1)(e) of the Act applied to the person.”
The delegate found that the applicant had been affected by a risk factor, in that a previous visa issued to the applicant had been cancelled. The delegate then considered whether there was any compelling circumstance, or other compassionate reason, why compliance with the relevant criteria ought to be waived. [3]
[3] CB p. 101 – 102.
Having considered all of the information provided to the Department, including information as to why there were compelling or compassionate reasons for waiver of non-compliance by the applicant with the criteria, the delegate found as follows: [4]
“I have reviewed the claims and supporting information the applicant has provided and I am not satisfied there are grounds to justify the waiver of PIC 4013 and the grant of the visa.
The statement provided by the applicant focuses on the reasons the applicant's student visa was cancelled. The applicant has advised that as he withdrew from studies and lodged a student visa application as a dependant of his wife, he held the belief that he did not need to attend school as he had withdrawn from being a student. The applicant also comments on some family and personal issues which contributed to him withdrawing from studies.
Exclusion periods may be waived if there are compelling circumstances that affect the interests of Australia, or compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen.
Policy suggests that there may be compelling circumstances if Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa. Policy also suggests that there may be compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen if a business operated by an Australian citizen would have to close down because it lacked the specialist skills required to carry out the business.
In assessing the applicant's claims I find that the applicant's entire statement focuses on the circumstances surrounding his previous visa cancellation. During the cancellation proceedings the department sent the applicant correspondence indicating an intent to cancel their visa and the applicant was given an opportunity to comment. The applicant did not provide a response to this request, and subsequently their student visa was cancelled. 1 have no evidence before me that the department has made an error in cancelling the visa applicant's student visa.
I find that the applicant has made no claims in relation to compelling circumstances that affect the interests of Australia if they were not granted this visa. In addition, the applicant has made no claims in regards to compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen if they were not granted this student visa.
After reviewing all information provided as part of this student visa application. I am not satisfied that either compelling circumstances that affect the interests of Australia; or compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen exist.”
[4] CB p. 102 – 103.
On 20 December 2018, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
On 21 December 2018, the Tribunal acknowledged receipt of the Application for Review of the decision of the delegate by sending a letter to that effect to a migration agent appointed by the applicant. The agent had been nominated as the authorised recipient of documentation to be sent to the applicant. [5]
[5] CB p. 107.
On 23 March 2020, the Tribunal wrote to the applicant’s authorised representative and invited the applicant to appear before the Tribunal at 11.00 am on 7 April 2020 to give evidence and present arguments in support of the applicant’s application before the Tribunal.
On 26 March 2020, an application for an adjournment of the Tribunal hearing listed for 7 April 2021 was made by email on the basis that because of the COVID-19 outbreak, the migration agent’s office had been closed, and that the agent intended to cease working for some time. An extension for the hearing was sought to a time “after the pandemic has disappeared”. [6]
[6] CB p. 115.
On 30 March 2020, the Tribunal wrote to the applicant, care of his representative, and advised the applicant that the hearing before the Tribunal would remain listed for 11.00 am on 7 April 2020. The Tribunal had stated that it was not known as to when the pandemic would end, and further, that the hearing had been scheduled to proceed by telephone. It was further indicated that an interpreter who spoke the Mandarin language would be available for the purposes of translation during the course of the hearing. [7]
[7] CB p. 119 – 120.
On 2 April 2020, the applicant sent an email to the Tribunal again asking for an adjournment of the hearing. The applicant gave a number of reasons as to why he thought the hearing should be adjourned. One reason was that the applicant’s migration agent had ceased working and that the applicant had only had five days to prepare himself for the hearing. Another reason was that he claimed that he was very upset and depressed, and that he wanted help from a psychologist. No expert report from a qualified psychologist or psychiatrist accompanied the adjournment request.
On 3 April 2020, the Tribunal sent an email at 1.44 pm to the applicant’s authorised representative which confirmed that issues raised concerning the adjournment of the hearing could be discussed with the presiding Member appointed to conduct the hearing. The adjournment application was refused. [8]
[8] CB p. 125 – 126.
At 2.54 pm on 3 April 2020, the applicant’s migration agent emailed the Tribunal to advise that he was no longer representing the applicant.
At 4.10 pm on 3 April 2020, the Tribunal sent an email to the applicant, and to the applicant’s authorised representative, which attached letters addressed to each of them concerning the question of the applicant’s ongoing representation. [9]
[9] CB p. 129 – 135.
A short time prior to the commencement of the hearing scheduled for 7 April 2020, the applicant telephoned the Tribunal and again requested a change to the time and date of the hearing on the basis that he was without the support of a registered migration agent. The Tribunal granted the request and adjourned the hearing to 20 April 2020. At [7] – [11] inclusive of its reasons handed down on 21 April 2020, the Tribunal relevantly set out the ongoing history of the hearing before the Tribunal as follows:
“[7] On 7 April 2020, 20 minutes before the scheduled hearing, the applicant phoned the Tribunal and stated that he wanted to change the time and date of his hearing. He stated that he was without the support of an agent, and didn't feel able to attend the hearing on his own. The applicant was advised that he could send in a written request by email, but that it was unlikely it would be received in time to be considered. The Tribunal told the applicant the hearing would be going ahead, and confirmed his phone number
[8] The applicant did not attend the hearing scheduled for 7 April 2020. Attempts to call the applicant on the number provided went unanswered. The Tribunal decided to reschedule the hearing, in recognition of the applicant's statement that he was without the support of a representative.
[9]On 8 April 2020, the applicant was invited to a hearing on 20 April 2020, at 10:00 am. The Tribunal notes that this date allowed as close to the two week extension requested by the applicant in his email of 2 April 2020 as could be fitted into the Tribunal's hearing schedule. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
[10]On 14 April 2020 the Tribunal was advised by Mr Peter Wei, of SOL Migration, Level 2, 8 Zamia Street, Sunnybank, Queensland, that he had been appointed by the applicant as his representative and authorised recipient.
[11]Prior to the scheduled commencement of the hearing on 20 April 2020, the Tribunal phoned the applicant. The applicant answered the call and identified himself, but ended the call while being addressed through the interpreter. Subsequent calls to the applicant, until 11.52 am, went unanswered. The Tribunal attempted to call the applicant's representative Mr Peter Wei of SOL Migration on the daytime phone and mobile numbers on his appointment form provided to the Tribunal, but these calls were not answered.”
It is to be noted that on 14 April 2020, the Tribunal was advised by a different registered migration agent that such agent had been appointed by the applicant to represent him before the Tribunal.
At [12] of its reasons handed down on 21 April 2020, the Tribunal found that the applicant had been duly invited to attend the 20 April 2020 hearing at 10.00 am, and that such invitation was duly made pursuant to the provisions of s. 379A(5) of the Migration Act 1958 (Cth) (‘the Act’).
At [13] and [14] of its reasons, the Tribunal noted that no satisfactory explanation had been given by the applicant for his non-appearance before the Tribunal on 20 April 2020, and that in such circumstances, the Tribunal had decided to dismiss the application without further consideration of the application or the information before the Tribunal. The Tribunal had power to do so pursuant to the provisions of s. 362B(1A)(b) of the Act. Section 362B(1) – (1C) of the Act relevantly provided as follows:
“Section 362B
Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision of the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.
Note: Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or
(b) confirm the decision to dismiss the application, by written statement under section 368.
Note 1: Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.”
Having had the application for review dismissed by reason of the applicant’s non-appearance at the Tribunal hearing, on 28 April 2020, the applicant’s newly appointed migration agent sent an email to the Tribunal seeking reinstatement of the application. [10] It was said in such email that the applicant had a compelling reason which should be considered. The applicant’s statement attached to the email of 28 April 2020 was as follows: [11]
[10] CB p. 152.
[11] CB p. 154.
“To Administrative Appeals Tribunal:
Dear AAT member,
I am writing this letter to request reinstatement the decision make on 21 April 2020 to my AAT review.
I would like to demonstrate the reasons that the decision should be reinstated in the following aspects.
The prospects of the application
I applied a student visa as a dependent to my wife's student visa. Although my previous visa was cancelled, I do believe I have companionate and compelling reason to have the restriction of PIC4013 waived and I have enough ground to meet the rest visa criterion. That was the reason I applied to AAT to review the visa decision. I have been maintained and continuously complied the visa condition that attached to me since I make the visa application. I do would like to demonstrate what I have been through to the AAT to re-consider previous visa decision. However, things always out of tract of schedule.
The reason for failing to attend hearing
Since I appointed my previous agent to assist me to prepare the AAT hearing, they were not responsible and not response promptly. I even did not receive any advice regarding what documents I need to prepare for the hearing, and what is the procedure of the hearing. Therefore, I was so helpless when I received the hearing notice. After I first receive the hearing notice, my previous representative even refused to help me because of the COVID 19 situation. Although they request to postpone the hearing for me, they did not take any action when the request to postpone was refused. I left no choice but to find a new agent on 14 Apr 2020 to assist me preparing the hearing. But from 14 Apr to 20 Apr, there was only few days. I still felt that I was not prepared. And my English level was not good enough to understand and answer the question over the phone. Eventually, I think phone interview is not a good way for me to explain my situation and answer the hearing properly.
Therefore, I would like to request your honour to reconsider my application and reinstate the decision. It is very important for me to have a chance to present in person to AAT.
It would be much appreciated if another chance can be provided for me.
Yours sincerely
SU Ziyi
28 Apr 2020”
On 8 May 2020, the Tribunal advised the applicant’s newly appointed migration agent that the application for reinstatement had been refused in reasons handed down on 6 May 2020.
Grounds of Review
On 25 May 2020, the applicant filed an Originating Application for Review of the decision of the Tribunal made on 6 May 2020. At the hearing before the Court, the Grounds of Review relied upon were as follows:
“1. The decision of the Second Respondent (the Tribunal) dated 6 May 2020 involved jurisdictional error as the Tribunal failed to consider the prospects of the Applicant’s application for review in making its decision to confirm the dismissal of the Applicant’s application for review.
Particulars
A. On 21 April 2020 the Tribunal elected to dismiss the Applicant’s application for review under s 362B(1A)(b) by issuing a written statement under s 362C of the Migration Act 1958.
B. In accordance with s 362B(1B) of the Act, the application applied for reinstatement of his application.
C. In accordance with s 362B(1C)(a), the Tribunal was required to reinstate the Applicant’s application for review if it considered it appropriate to so. Otherwise, it was required to confirm the decision to dismiss the Applicant’s application for review.
D. In considering whether it was appropriate to reinstate the Applicant’s application for review, the Tribunal did not consider the prospects of the Applicant’s application for review.
E. The prospects of the Applicant’s application for review were a relevant consideration in determining whether it was appropriate to reinstate the Applicant’s application for review.
F. In the premises, the Tribunal’s failure to consider the prospects of the Applicant’s application for review when determining whether it was appropriate to reinstate his application amounts to jurisdictional error.
2. In the alternative to Ground 1, the Second Respondent’s failure to consider the prospects of the Applicant’s application for review in determining whether it was appropriate to reinstate the application for review was unreasonable in the legal sense. “
Both grounds of review asserted that the Tribunal erred in failing to consider the prospects of success of the applicant’s substantive application for review for the purpose of determining whether or not the dismissed application for review ought to be reinstated or not. It was submitted that before the Tribunal could find that it was not appropriate to reinstate the application, the Tribunal was first required to consider the merits of the substantive application. There is no merit to such submission.
Firstly, at [7] of its reasons, the Tribunal, when considering the nature of the application, and the individual circumstances of the applicant relating to the applicant’s failure to meet Public Interest Criterion 4013 (PIC 4013), addressed that question as follows:
“[7] The hearing was scheduled during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold it by telephone. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. As noted in the interim decision record, the Tribunal specifically considered the particulars of the issues to be explored in this case, namely the failure of the applicant (as a secondary applicant) to meet Public Interest Criterion 4013, and the cessation of the primary visa holder's Student visa, matters suitable for a telephone hearing. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.”
Secondly, the Tribunal specifically referred to the applicant’s own submissions about “The prospects of the application”, as set out in the reinstatement request letter dated 28 April 2020, [12] at [8] of its reasons. The Tribunal, at [8] and [9] of its reasons, considered the fact that the applicant had failed to attend the hearing before the Tribunal via telephone which was a means by which he could have addressed all relevant questions put to him by the Tribunal member. The Tribunal’s understandable inability to otherwise make comment in its reasons about the prospects of success of the substantive application was no doubt related to the fact that the Tribunal had, by the applicant’s non-appearance at the hearing, been robbed of the opportunity to arrive at any concluded view in that regard. Any concluded view as to the prospects of success of the substantive application would have been dependent upon a number of factors, not the least being those related to the nature and quality of any evidence which might have been given by the applicant at any Tribunal hearing, as well as the Tribunal’s appreciation of the consistency and credibility of any such evidence.
[12] CB p. 154.
The facts in Singh v Minister for Immigration & Border Protection & Anor (2018) 266 FCR 459 were distinguishable from the facts of the present matter in that, unlike in Singh, the Tribunal in the matter before this Court was dealing with an unarticulated and vague assertion about which the Tribunal was prevented from deciding upon by reason of the applicant’s non-appearance before it. The broad discretion to not re-instate vested in the Tribunal under s. 362B(1A) of the Act was duly exercised by it in such context. The Tribunal was not dealing with how it ought to consider questions of fact going to the very question as to the reason for the non-appearance before the Tribunal of an applicant, which was something of an entirely different character.
Further, a Tribunal is only required to consider clearly articulated argument, and claims which clearly emerged from the relevant evidence before it. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:
“[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
·The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b)clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).
·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
“… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).”
(Emphasis added.)
·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
[37] While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
[38] Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”
It cannot be said that anything under the heading “The prospects of the application” in the applicant’s letter of 28 April 2020 constituted a clearly articulated argument arising from the material before the Tribunal. The applicant merely stated that he believed he had compassionate and compelling reasons for reinstatement, but failed to say why.
Otherwise, at [10] of its reasons, the Tribunal pointed out that the applicant, contrary to his protestations, had had since 5 December 2018 to prepare for the Tribunal hearing. He was not being called upon to do anything in a rapid way. The Tribunal had granted a requested adjournment, and even then the applicant had subsequently failed to appear before it. The Tribunal performed its statutory task in a considered and logical way. It was not legally unreasonable in the performance of its statutory duty.
A Court ought not to approach a consideration of how a Tribunal approached its statutory task with an eye too keenly attuned to error. The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46]-[47]:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
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[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
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[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Originating Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 29 April 2021
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