Temple v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 214
•8 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Temple v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 214
File number(s): SYG 2121 of 2019 Judgment of: JUDGE LAING Date of judgment: 8 March 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – where the Tribunal’s decision was based upon the first applicant’s lack of current enrolment at the time of decision – where information regarding enrolment had been sought months previously with a response indicating that the first applicant’s then current enrolment was due to expire shortly before the Tribunal’s decision was ultimately made – where the Tribunal’s decision was made within weeks of the communicated expiry of the enrolment without seeking updated information – where the Tribunal gave reasons for not allowing the first applicant any further opportunity to provide information – where the Tribunal’s reasons did not expressly engage with the effect of its own timing but generically referred to the first applicant having been given a “fair opportunity to provide relevant information” – where that reasoning relied upon an erroneous statement of the applicants’ period of delay in providing information and did not engage with the reasons for the actual delay that had been provided – legal unreasonableness – application succeeds Legislation: Migration Act 1958 (Cth) ss 359, 360
Migration Regulations 1994 (Cth) Sch 2 cll 500.211, 500.212
Cases cited: Cai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 483
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103
Maharjan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 373
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; (2014) 314 ALR 146
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 9 February 2024 Date of hearing: 25 January 2024 Place: Sydney First and Second Applicants: In Person Solicitor for the First Respondent: Mr L Dennis of Mills Oakley Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2121 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ELWOOD TEMPLE
First Applicant
KATHRINA TEMPLE
Second Applicant
ELIJAH BRYANT TEMPLE (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 17 July 2019.
2.A writ of mandamus issue directed to the second respondent requiring it to determine the review of the decision of a delegate of the first respondent dated 8 August 2017 according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Student (Temporary) (Class TU) visas (student visas).
INTRODUCTION
The first applicant (Applicant) applied for the student visas that are the subject of these proceedings on 24 April 2017. The other applicants, his wife and children, applied as members of the family unit.
The Delegate refused the application on 8 August 2017 on the basis that that the Applicant had not met cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The applicants applied to the Tribunal for review of the Delegate’s decision on 16 August 2017.
In their application to the Tribunal, the applicants identified as their representative an “education agent” (Agent). A contact email address was provided for the Agent. The same email address was provided in respect of the Applicant (Email Address).
On 20 February 2019, the Tribunal sent an invitation to provide information (Invitation to Provide Information) to the Email Address. The Invitation to Provide Information relevantly stated:
As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you are now invited to give, in writing, information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.
The information was required by 6 March 2019. On 10 March 2019 (a Sunday), the Agent appears to have emailed a completed Request for Student Visa Information form to the Tribunal. A related case note made on 14 March 2019 states:
Rep called to confirm whether the Tribunal has received the Response to 359(2) letter. I advised her the response has been received however it is out of time. The Rep advised that it is due to server issues on her side. I requested the Rep to provide the reason in writing for Member to consider. Call ended.
At question 14, the completed form responded “yes” to the question: “Does the Main Applicant have a Confirmation of Enrolment (CoE) in a registered course of study?”. Question 15 sought details of the Applicant’s enrolments, including any “current or future enrolments”. Details regarding enrolment in an Advanced Diploma of Community Sector Management starting in June 2018 and scheduled to end in June 2019 were provided in response.
On 17 July 2019, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal set out what was said to be the background to the matter at [1]-[8] of its decision. In relation to the lateness of the applicants’ response to the Invitation to Provide Information, however, the extent was incorrectly stated. As observed above, the response was provided on 10 March 2019, after two business days had passed subsequent to the Tribunal’s deadline. An explanation of server issues had been provided by the Agent. The Tribunal incorrectly stated at [8] of its decision that the Applicant had not provided the Tribunal with a response until 30 April 2019, nearly two months after the deadline. No reference was made to the Agent’s explanation of why the response had been provided late.
The Tribunal stated that it was satisfied that the invitation had been properly sent under s 359(2) of the Migration Act 1958 (Cth) (Act) (at [9]). The Tribunal observed that as the response had not been received within the required period, the Applicant had lost his entitlement and ability to appear before the Tribunal (at [10]). However, the Tribunal recognised that it had a discretion as to whether to make a decision on the review or to allow further opportunity for the Applicant to provide evidence. The Tribunal gave the following explanation for why it had decided to proceed to a decision (at [10]-[15]):
10. As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2-010] FMCA 890 at [40].
11.The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.
12. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigrationand Citizenship v Li [2013] HCA18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC (4 February 2014) which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection [2014 FCA 915 (28 August 2014).
13.In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.
14. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.
15. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
The Tribunal gave the following reasons for affirming the Delegate’s decision at [18]-[23]:
18. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
19. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
20. Clause 500.211 provides:
500.211 One of the following applies:
(a) the applicant is enrolled in a course of study;
(b)if the application is made in Australia – the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c)if the applicant is a Foreign Affairs student – the applicant has the support of the Foreign Minister for the grant of the visa;
(d)if the applicant is a Defence student – the applicant has the support of the Defence Minister for the grant of the visa.
21. The Tribunal has carefully considered the delegate’s decision record dated 8 August 2017, a copy of which was provided to the Tribunal by the review applicant with the application for review.
22. In his written response to a s.359(2) request for information the applicant advised the Tribunal he was enrolled in a course of study, an Advanced Diploma of Community Sector Management. He advised the completion date for this course was June 2019. He did not provide a Confirmation of Enrolment (COE) for this course. He did not provide proof of enrolment in this course. He did not provide advice of future enrolment in any courses of study. He did not provide any COE’s or other forms of proof of enrolment in any other courses in the future.
23.Crucially however, the Tribunal does not have before it recent evidence that the review applicant is presently enrolled in a course of study as required by cl.500.211(a). It follows that the Tribunal is not satisfied that the review applicant is presently enrolled in a course of study as required by cl.500.211(a).
PROCEEDINGS BEFORE THIS COURT
The applicants commenced the current proceedings through an application filed on 19 August 2019. Although an extension of time was sought in the application form, it was not required as the application was filed within time.
At the hearing, it was observed that a box on the application form seeking mandamus appeared to have been inadvertently not selected. It was explained why this may be an issue: see Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103 at [26]-[35] per Judge Given and the cases cited therein. A consent order was made rectifying this at the commencement of the hearing before the Court.
The application stated the following under the heading “Grounds of application”:
1. We are unhappy with the Tribunal’s decision due to the following reasons:
2.My son Elijah Temple is still completing his Year 1 at school which is due to finish on December 2019;
3.Both of my sons were born and raise here in Australia and they are still in need of more time physically and psychologically to accept the fact.
I accept the Minister’s submission that the grounds raised do not identify jurisdictional error. As I explained at the hearing, the Tribunal’s decision may only be set aside by this Court if the Court finds that it was relevantly affected by a serious and legally recognisable error. This Court has no power to set aside the Tribunal’s decision on the basis of compassionate circumstances alone.
However, noting that the applicants in this matter are unrepresented, I have reviewed the materials before me with a view to remaining “astute and alert to the possibility of legal error”: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [100] per Mortimer J (as her Honour then was). As was discussed at the hearing of this matter, there appears to be an arguable basis for finding that the Tribunal’s decision was affected by a similar species of error to that which was considered by Judge Cameron in Maharjan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 373 (Maharjan). I note that the potential for legal unreasonableness to be raised was sensibly anticipated in the Minister’s written submissions, although not expressly by reference to Maharjan.
In Maharjan, as in the present case, the Tribunal found that the applicant had been unable to satisfy cl 500.211(a). This was in circumstances where a Request for Student Information form had been sent with correspondence seeking information relevant to the applicant’s ability to meet the enrolment criterion for the visa. The applicant had replied with information regarding his then current enrolment, which was due to expire on a certain date. The Tribunal did not make its decision until after that date. The Tribunal’s decision was made without seeking updated information from the applicant regarding his enrolment.
At [21]-[23], his Honour reasoned:
21.A review applicant is entitled to be confident that their review will be determined by the Tribunal’s reasoning, not by other behaviour of the Tribunal that prejudices the review’s outcome. By not deciding the review before the first applicant’s Diploma of Leadership and Management COE became stale for the purposes of cl.500.211, the Tribunal put a successful outcome beyond the reach of the applicants because, from that point the review’s outcome was certain, absent additional evidence of enrolment. Because the Tribunal did not alert the applicants to the possibility that the review would be determined after the COE expired, they would have had no reason to think that any additional evidence of that sort would be required.
22.The Tribunal gave no indication in its reasons that it had been unable to conclude the review before it did or of any other reason why the decision was made precisely when it was. Given the significance of those matters for the applicants, such reasons might have been expected. I am not persuaded that there was a satisfactory reason for the Tribunal not deciding the review before the COE became stale. That being so, I conclude that the decision to decide the review when it was decided was arbitrary and lacking in rational foundation or evident or intelligible justification. The decision to decide the review on 5 November 2019 rather than earlier denied the applicants the support of the COE for the Diploma of Leadership and Management course and the possibility of a different outcome to the review. For all those reasons the decision to decide to review on 5 November 2019 is affected by jurisdictional error.
23.Further, and again in light of the very significant consequences for the applicants of the decision on the review not being made before the COE expired, if the Tribunal had not been able to render its decision before then it should have alerted the applicants to the risk that its own behaviour might lead to evidence on which they relied becoming stale and the review being determined contrary to their interests for want of a current COE. Its failure to do so is unexplained. That unexplained failure, in circumstances where the Act exhorts the Tribunal to act according to substantial justice and the merits of the case, does not appear to have a rational foundation or an evident or intelligible justification and I conclude that it lacks those qualities. The failure to alert the applicants to the possibility that the Tribunal’s own behaviour might render, or had rendered, some of their evidence stale denied them the opportunity to consider whether to provide the Tribunal with the COE for the course that started on 4 November 2019 and, again, the possibility of a different outcome to the review. For those reasons, that decision is also affected by jurisdictional error.
I accept, as was submitted by the Minister, that there are differences between Maharjan and the present case. In Maharjan, a Confirmation of Enrolment (COE) was provided and the response to the request for information appears to have been submitted within time. The Tribunal’s decision in Maharjan was made only two days after the expiration of the COE. On judicial review, the applicant provided evidence that he had been enrolled in another course at the time of the Tribunal’s decision.
The Minister submitted that this matter was more analogous to the case of Cai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 483 (Cai), in which Judge Humphreys rejected that it was unreasonable, in the circumstances of that case, for the Tribunal to have proceeded to a decision after the Tribunal had been advised that the applicant’s enrolment was due to expire. There are similarities, but also significant differences, between that case and the present. In particular, it is not apparent that the Tribunal in Cai gave the reasons that were given by the present Tribunal for the exercise of discretion.
Regardless, determining unreasonableness by factual analogy, or disparity, between cases is not the correct approach: see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh) at [42] per Allsop CJ, Robertson J and Mortimer J (as her Honour then was). Cases where legal unreasonableness is in issue are to be determined on their own particular facts and circumstances. It is not a question determined simply by analogy, by comparing the circumstances in one case to the circumstances in another.
In the present case, although the applicants had lost their entitlement to appear before the Tribunal under s 360 of the Act, the Tribunal retained a discretion as to whether to adjourn the review to invite or allow the applicants to submit additional evidence, or to proceed to a decision at the point that it determined to do so. The Tribunal’s discretion had to be exercised reasonably.
Reference was made in the Minister’s submissions to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [20], in which it was found per French CJ, Gummow, Hayne, Crennan JJ, Kiefel J (as her Honour then was) and Bell J that:
20.The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
It may be accepted that such findings will be rare and exceptional: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [113] per Gageler J (as his Honour then was). Significant judicial caution must always attend findings of legal unreasonableness, lest the Court stray into impermissible merits review. However, cases like Maharjan, Singh and others nonetheless underscore the requirement that exercises of discretion be undertaken in a manner that is not legally unreasonable. A failure to give active consideration to the exercise of a discretion, on its merits and in context at the time that it is exercised, may result in a finding of legal unreasonableness: see Singh at [66]-[68].
The Minister accepted that this is a case in which the Tribunal gave reasons for the exercise of its discretion. In Singh, it was stated at [47]:
47.… where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not…
The Minister acknowledged, appropriately, that the reasons provided by the Tribunal in the present case were “somewhat generic”. However, the Minister observed that this did not necessarily lead to error: SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; (2014) 314 ALR 146 per Siopis, Perram and Davies JJ.
The reasons relied upon by the Tribunal are set out above. They included general reference to cases on legal unreasonableness, including the principle that “the Tribunal is not required to indefinitely defer its decision making processes” (at [12]). The Tribunal also referred generally to having considered whether the relevant information was “likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already” (at [12]).
At [13], the essential reason that the Tribunal gave for its exercise of discretion was its consideration that the Applicant “had a fair opportunity to provide relevant information”. The Tribunal did not meaningfully elaborate upon why this had been found, except by reference to “circumstances” it had identified “above” in its decision. Those circumstances had been expressed to include the Applicant’s failure to respond to the Invitation to Provide Information within the time required (by 6 March 2019). In this regard, the Tribunal incorrectly understood at [8] of its decision that the response had not been provided until 30 April 2019. The evidence before the Court indicates that a response was actually provided on 10 March 2019, after a mere two business days had passed following the deadline.
The Minister submitted that this involved no more than a typographical error, which was of no material consequence to the Tribunal’s decision. Such a construction is possible. However, I am not convinced that it is the most likely interpretation of what occurred. The error in the date was of some significance to the exercise of the discretion, given the heavy reliance placed by the Tribunal upon the sufficiency of the opportunity that had been given to the Applicant and the lateness of his response. The incorrect date that was stated was not entirely unrelated to the review, but fell within the period between the response being provided and the date of the Tribunal’s decision. The Tribunal had no express regard to the Applicant’s explanation for why the response had been late (by reference to server issues), further indicating that the Tribunal may not have accurately (or at least fulsomely) understood the context of its exercise of discretion. On balance, I find this to be the more likely interpretation and find that the Tribunal’s reference to the incorrect date reflected its incorrect understanding of what had occurred. This resulted in a misunderstanding that rather than providing information mere days late and with an explanation for the delay, the applicants had inexplicably provided the information nearly two months after the specified deadline.
The Tribunal’s reasoning at [1]-[15] also does not demonstrate any consciousness of the fact that it was making its decision in July 2019 on the basis of the Applicant’s lack of enrolment at that time, when the Applicant had responded to the Invitation to Provide Information in March 2019 indicating that his then current enrolment was scheduled to conclude when his course was completed in June 2019. This was in circumstances where the Tribunal had sought no update regarding the Applicant’s enrolment situation at the time that its decision was made. It is not apparent why the Tribunal did not do so from [1]-[15] of its decision, except by reference to the general assertion that the Applicant “had a fair opportunity to provide relevant information”. That assertion did not, at least expressly, engage with the particular situation that had occurred on account of the timing of the Tribunal’s decision, nor why the Applicant’s opportunity to respond was considered “fair” in the circumstances.
Even if the Tribunal’s reasons were read broadly to include the matters subsequently raised in the decision (despite the Tribunal’s express confinement of its reasoning at [13] to matters raised “above”), then the Tribunal was aware that the contended completion date of the Applicant’s course was in June 2019. The Tribunal observed that proof such as a COE had not been provided and that evidence of “future enrolment” had not been provided (at [22]). However, this was, presumably, at the time that the response to the Invitation to Provide Information had been received (on 10 March 2019, although the Tribunal erroneously appears to have considered that this occurred much later on 30 April 2019).
The lack of corroborative evidence such as a COE also does not appear to have been the “crucial” matter upon which the Tribunal’s decision was based. Rather, the Tribunal expressed at [23] that it regarded as “[c]rucially” determinative the fact that the Tribunal did not have before it any “recent evidence” that the Applicant was “presently enrolled in a course of study as required by cl 500.211(a)” at the time of its decision. The Tribunal’s reasoning does not expressly engage with the fact that this was because the Tribunal had elected to make its decision in July 2019, some months after it had sought “information about the course(s) of study the main applicant [was] undertaking” and just over two weeks after the month in which the Applicant had indicated in March that his then current course was scheduled to expire.
Although (as the Minister submitted) the Tribunal’s decision was made after a somewhat longer period following the course’s expiry than in Maharjan, and following a less precisely articulated course conclusion date, it was still a limited period after the Tribunal had been informed that the course relied upon by the applicants would expire. The lack of any consideration of the issue created by the timing of the Tribunal’s decision at [1]-[15], where the Tribunal gave reasons for the exercise of its discretion, remains of some concern.
In the above circumstances, I consider that the Tribunal’s exercise of discretion was affected by legal unreasonableness. The Tribunal’s generic reference to the Applicant having been given “a fair opportunity to provide relevant information” (based in part upon an incorrect understanding of when that information had been provided) did not sufficiently provide an “evident and intelligible justification” for the Tribunal’s exercise of discretion in the particular circumstances of this case. I note that in Li and Singh, the Tribunal’s general references to the applicants in those cases having been provided with sufficient opportunities were considered to have been similarly inadequate. As is always the position in cases raising questions of legal unreasonableness, whether or not expressed reasons are capable of providing such a justification will depend upon the particular circumstances of each case. What is clear, however, is that generic references to matters such as sufficiency of opportunity will not necessarily suffice, in the absence of evidence that a decision maker has engaged with the particular circumstances of the case affecting the sufficiency of the opportunity given.
The Minister submitted that any error in the Tribunal’s approach was immaterial, relying upon cases such as MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123. The Minister submitted that materiality had not been demonstrated in circumstances where the applicants had not provided evidence that the Applicant was, in fact, enrolled at the time of the Tribunal’s decision. The Minister submitted that even if the Tribunal had exercised its discretion in the Applicant’s favour, then the result would have been the same.
I am unable to accept this. If the Tribunal had not decided to determine the review without further action but had instead provided the applicants with further opportunity to demonstrate enrolment, then enrolment may have been demonstrated. The Applicant had provided evidence demonstrating an ability to obtain enrolment in the past. I do not accept that the applicants are required to demonstrate that the Applicant was in fact enrolled, at the time of the Tribunal’s decision (when made, and in the circumstances considered above): see Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 at [33] (per Kiefel CJ, Keane and Gleeson JJ).
The Tribunal’s exercise of discretion was of central significance to the outcome in this matter. Its inevitable consequence was that the Applicant was unable to meet the criterion in issue. In these circumstances, I find that jurisdictional error has been demonstrated.
CONCLUSION
For the above reasons, the application before the Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 8 March 2024
SCHEDULE OF PARTIES
SYG 2121 of 2019 Applicants
Fourth Applicant:
ELLIOT AVDEL TEMPLE
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