Teo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 671
•12 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Teo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 671
File number(s): SYG 1631 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 12 May 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant not enrolled in a course of study – whether the Tribunal should have adjourned the review to give the applicant the opportunity to enrol considered – no jurisdictional error. Legislation: Administrative Appeals Tribunal Act 1976 (Cth), s 2A
Migration Act 1958 (Cth, ss 360, 363, 368D)
Migration Regulations 1994 (Cth)
Cases cited: Abbas v Minister for Immigration & Anor [2019] FCCA 2577
BUP17Minister for Immigration & Anor [2019] FCCA 3193
EKN17 v Minister for Immigration and Border Protection [2019] FCA 1135
Kaur v Minister for Immigration and Border Protection (2014) 144 ALD 292
Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937
Zhoory v Minister for Immigration and Border Protection & Anor [2015] FCCA 2699
Number of paragraphs: 76 Date of hearing: 6 April 2021 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitors for the Applicant: St George Migration & Lawyers Solicitors for the Respondents: Ms A Roberts of Mills Oakley ORDERS
SYG 1631 of 2019 BETWEEN: LING LING TEO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
10 MAY 2021
THE COURT ORDERS THAT:
1.The amended application filed on 5 November 2019 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant, Ms Teo, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made orally on 31 May 2019 and the Tribunal’s written record of its decision was dated 25 June 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Teo a student visa.
The following statement of background facts is derived from the submissions of the parties.
Ms Teo is a citizen of Malaysia who arrived in Australia on 26 November 2013 as the holder of a tourist visa valid until 26 February 2014. On 25 March 2014, she was granted a student visa which expired on 16 May 2015, and was then granted a further student visa on 12 June 2015 which expired on 15 March 2017.[1]
[1] Court Book (CB) 41
On 14 March 2017, Ms Teo applied for a student (Subclass 500) visa.[2] Ms Teo also submitted a genuine temporary entrant statement[3] and two Overseas Student Confirmation of Enrolment certificates (CoEs). The CoEs were for the following courses:[4]
(a)a Certificate IV in Accounting at York Business Institute Pty Ltd (York Business Institute) to commence on 10 April 2017 and finish on 8 April 2018; and
(b)a Diploma of Accounting at York Business Institute to commence on 9 April 2018 and finish on 7 April 2019.
[2] CB 1-19
[3] CB 23-24
[4] CB 20-21
It was a requirement for the grant of the visa that Ms Teo satisfy the primary criteria including clause 500.211 and clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevantly:
(a)clause 500.211 required Ms Teo to be enrolled in a course of study; and
(b)clause 500.212 required Ms Teo to be a genuine applicant for entry and stay temporarily as a student.
On 24 August 2017, the delegate refused to grant Ms Teo a student visa on the basis that she did not satisfy clause 500.212.[5]
[5] CB 39-43
The Tribunal
On 13 September 2017, Ms Teo applied for review with the Tribunal.[6] She submitted extensive further evidence with the review application, including a statement responding to the delegate’s findings and tax receipts evidencing her payments to York Business Institute for completion of her Certificate IV in Accounting.[7]
[6] CB 44-46
[7] CB 47-55
On 2 April 2019, the Tribunal invited Ms Teo to provide information in a Request for Student Visa Information form. The Tribunal requested a response by 16 April 2019.[8] Ms Teo apparently completed the form on 12 April 2019, although it was extracted from the Tribunal database three months later.[9] Relevantly, a question in the form stated: “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?” Ms Teo responded to this question stating, “No”.[10]
[8] CB 66-72
[9] CB 73-82
[10] CB 77
Ms Teo also submitted evidence of her completion of both the Certificate IV and Diploma of Accounting with York Business Institute and a letter of offer for an Advanced Diploma of Accounting at York Business Institute to commence on 6 May 2019 and be completed on 3 May 2020.[11]
[11] CB 83-89
On 8 May 2019, Ms Teo was invited to a hearing with the Tribunal scheduled for 31 May 2019,[12] which she attended.[13] The Tribunal’s hearing invitation requested that Ms Teo provide a copy of her current CoE or other documents to show that she was enrolled in a course of study as defined in clause 500.111 of the Regulations.
[12] CB 90-94
[13] CB 107-109
Relevantly, the following occurred at the hearing on 31 May 2019:
(a)the Tribunal told Ms Teo that the “question” for her was, “Are you enrolled?” Ms Teo responded, “Yes” and explained that she had just finished a Diploma of Accounting and had “offer letters” to start an Advanced Diploma on 8 May but “I am still waiting because of the appeal at the AAT”;[14]
(b)the Tribunal informed Ms Teo that letters of offer were different from a CoE. Ms Teo explained she was “still thinking that that’s why before after that I appeals for the AAT and then I would decide that for the course of the advanced diploma”. She later reiterated that she had not enrolled in a further course because she needed to “wait for after the appeal on this coming for today. After this I will enrol, yeah.”;[15]
(c)Ms Teo also provided the Tribunal with a letter of offer from the York Business Institute for an Advanced Diploma of Accounting that was due to commence on 6 May 2019;[16]
(d)the Tribunal made an oral decision affirming the delegate’s decision to refuse to grant Ms Teo a student visa.[17]
[14] Transcript of the Tribunal hearing (Annexure A to the affidavit of Fatima Bazzi made on 27 June 2019), page 1
[15] Transcript, pages 1-2
[16] CB 110-117
[17] CB 119-123
On 11 June 2019, Ms Teo (through her solicitor) requested a written statement and reasons for the decision and an audio recording of the hearing.[18] The Tribunal provided an audio recording of the hearing and a written statement of decision and reasons on 12 June 2019 and 26 June 2019 respectively.[19]
[18] CB 124-125
[19] CB 126-133
The Tribunal’s decision
In the written statement of decision and reasons, the Tribunal found the following:[20]
(a)the issue before the delegate was whether Ms Teo satisfied clause 500.212. However, the issue was now whether Ms Teo satisfied clause 500.211, namely whether she was enrolled in a course of study at the time of the decision;[21]
(b)Ms Teo had given evidence at the hearing that she was not enrolled in a course of study. She had provided letters of offer and invoicing information for an Advanced Diploma of Accounting at York Business Institute;[22]
(c)Ms Teo had completed the courses for which she initially applied for the visa;[23]
(d)Ms Teo had been offered a place in a course but had not taken up that offer and had given evidence that she had not paid the first instalment for that enrolment because she was uncertain as to the outcome of the present review application. The Tribunal had taken this into account at [15]; and
(e)the “undisputed evidence” was that Ms Teo was not presently enrolled in a course and therefore could not satisfy clause 500.211.[24]
[20] CB 135-136
[21] [9]
[22] [11]
[23] [12]-[14]
[24] [16]
Accordingly, the Tribunal affirmed the delegate’s decision.[25]
[25] CB 136, [19]-[20]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 2 July 2019. Ms Teo now relies upon an amended application filed on 5 November 2019. There are three grounds in that application:
1.The Administrative Appeals Tribunal ("the Tribunal") has power under s 363 of the Migration Act 1958 (Cth) to "adjourn the review from time to time". During the hearing the applicant, in response to the Tribunal's question "Which way should I proceed?", asked for an opportunity to "enrol for the next course", which in the circumstances was a request for an adjournment under s 363 so that the applicant could promptly enrol for the Advanced Diploma of Accounting. The Tribunal failed to consider the adjournment application, which constituted an unreasonable failure to consider the exercise of a power and a denial of procedural fairness. This is a jurisdictional error. Alternatively, the Tribunal unreasonably refused to adjourn the review which is also a jurisdictional error.
2.Even if the applicant's request for an opportunity to "enrol for the next course" was not a request for an adjournment, the Tribunal unreasonably failed to consider its power under s 363(1)(b) of the Migration Act to adjourn the review, or unreasonably failed to adjourn the review. This is a jurisdictional error.
3.The Tribunal raised with the applicant for the first time at the hearing on 31 May 2019 a new issue of whether the applicant satisfied the enrolment criterion in clause 500.211(a) of Schedule 2 of the Migration Regulations and then. within the next 30 minutes. made a decision affirming the decision under review because the applicant did not satisfy the enrolment criterion. In the circumstances, such conduct by the Tribunal involved procedural unfairness and jurisdictional error. To accord procedural fairness to the applicant, the Tribunal should have given the applicant time to consider the new issue, in which time the applicant would have taken steps to satisfy the enrolment criterion.
The application is supported by an affidavit filed with it by Ms Bazzi made on 27 June 2019. Annexed to that affidavit is a transcript of the hearing conducted by the Tribunal on 31 May 2019. The Minister tendered into evidence the court book filed on 17 September 2019.
Ms Teo and the Minister both provided substantial written submissions and made extensive oral submissions through their counsel at the trial.
CONSIDERATION
Grounds 1 and 2 – did the Tribunal unreasonably fail or refuse to adjourn the review to give Ms Teo the opportunity to attempt to enrol in her chosen course of study?
Ms Teo’s contentions
Section 363(1)(b) of the Migration Act 1958 (Cth) (Migration Act) provides:
For the purpose of the review of a decision, the Tribunal may ...
(b) adjourn the review from time to time; ...
The transcript of the hearing before the Tribunal, annexed to the affidavit of Ms Bazzi, indicates that the hearing was divided into two parts as follows:
(a)first, there was a discussion between Ms Teo and the Tribunal prior to the Tribunal making a decision at pages 1-9.5; and
(b)secondly, at page 9.6 the Tribunal communicated to Ms Teo that it would make a decision now, following which the Tribunal gave reasons for its decision at pages 9.6‑12.1.
Some observations about the discussion between Ms Teo and Tribunal at pages 1-9.5 are as follows.
First, Ms Teo had a letter of offer from York Institute of Business to commence a one year Diploma of Accounting. However, she had not accepted the offer, and she expressed a preference for attending the hearing before the Tribunal before accepting the offer, as appears at:
(a)page 1.6 – “I have offer letters from the college to start [on] 8 May this year but I am still waiting because of the appeal at the AAT”; and
(b)page 2.10 – “Because I need to wait for after the appeal on this coming for today. After this I will enrol…”
Secondly, the Tribunal asked Ms Teo why she did not want to enrol in the Diploma of Accounting course until after she knew the outcome of the hearing before the Tribunal.[26] Ms Teo’s answer at page 4.3 appears to be a repetition of her earlier answer that her preference was to await “the results of my visa first [ie the Tribunal’s decision] and then I will enrol for the next visa Advanced Diploma for Accounting”. Ms Teo needed to pay $1,800 as a first payment or instalment to York Business Institute to commence the Advanced Diploma of Accounting.[27] Although Ms Teo did not expressly state the point, this is likely to be a reason why she preferred to know the outcome of her application to the Tribunal. If the Tribunal was likely to agree with the Minister’s delegate that Ms Teo was not a genuine temporary entrant as a full time student, she did not want to throw away $1,800.
[26] see Tribunal’s question at page 3.6
[27] see CB 110 and 117
Thirdly, the Tribunal noted that Ms Teo had been enrolled in, and completed, accounting courses between April 2017 and April 2018, and then April 2018 and 7 April 2019.[28] It follows that if the Tribunal hearing had occurred 40 or more days earlier, Ms Teo’s problem with clause 500.211(a) would not have arisen.
[28] Transcript, pages 3.10-4.1
Fourthly, the Tribunal noted:
(a)in the two year period between the delegate’s decision and the hearing before the Tribunal, Ms Teo had completed two accounting courses; and
(b)Ms Teo’s student “visa would already have expired had it been not refused because it goes for the length of the course you were in ...”.[29]
[29] Transcript, page 4.7
The latter observation does not take into account that, if Ms Teo’s visa had not been refused by the delegate and she had completed her accounting course at the time, she may have applied for and obtained a further visa to undertake the Advanced Diploma of Accounting.
Fifthly, the Tribunal stated that “it is ... open for me today to give you a decision verbally now, saying that you don’t meet the criteria for enrolment”.[30] The Tribunal continued:[31]
What do you say I do, should I take that course or should I do something, what is your view on that? Which way should I proceed?
[30] Transcript, page 5.7
[31] Transcript, page 5.9
Ms Teo submits that on a fair reading of this part of the transcript, the Tribunal:
(a)was aware that it had the power to adjourn the review under s 363(1)(b) of the Migration Act and permit Ms Teo to enrol in the Advanced Diploma of Accounting course; and
(b)invited Ms Teo to comment.
Sixthly, Ms Teo, in response to the Tribunal’s invitation, says, “I think it is to enrol for the next course”.[32] On a fair reading of this response, Ms Teo submits that she was asking the Tribunal to give her an opportunity to enrol in the Advanced Diploma of Accounting. Further, the Tribunal response, “Tell me what I should take into account in determining whether I should make that decision”,[33] is said to indicate that the Tribunal understood that Ms Teo was asking the Tribunal to give her an opportunity to enrol in the Advanced Diploma of Accounting.
[32] Transcript, page 5.9
[33] Transcript, page 5.9
Seventhly, Ms Teo responded to the Tribunal’s question with an answer to the effect that she likes accounting and the Advanced Diploma of Accounting will give her more knowledge and benefit her on her return to Malaysia.[34]
[34] Transcript, pages 5.10-6.1
Eighthly, the Tribunal, in its discussion with Ms Teo, proposes as the main reason to make a determination today that, “you have already finished the courses for which you applied for your visa”.[35] However, as stated above, this reason does not take into account that, if Ms Teo’s visa had not been refused by the delegate and she had completed her accounting course at the time, she may have applied for and obtained a further visa to undertake the Advanced Diploma of Accounting.
[35] Transcript, page 6.2
At page 9.6 the Tribunal stated:
I am going to give you the decision today, based on the non-enrolment. And I’ll give you some reasons, as well ...”
Ms Teo makes some observations about the Tribunal’s reasons for decision at pages 9.6 to 12.1 as follows:
(a)first, the Tribunal does not expressly explain why it decided to make a decision on the day, rather than exercise its power under s 363 to adjourn the review to allow Ms Teo to enrol in the Advanced Diploma of Accounting;
(b)secondly, the Tribunal states at page 11.2 that “it is clear that the courses for which you applied for the visa, you have already successfully completed”. If the Court considers that the Tribunal considered whether or not to adjourn the review, this is the reason the Tribunal decided not to adjourn the review; and
(c)thirdly, the Tribunal recorded without criticism Ms Teo’s explanation for not enrolling in the Advanced Diploma of Accounting prior to the hearing before the Tribunal, being, “You haven’t done that because you told the Tribunal that you were uncertain as to the outcome of the application for review for your visa before the Tribunal”.[36]
[36] Transcript, page 11.7
On 25 June 2019 the Tribunal published reasons for its decision. In general, the written reasons are a summary of the Tribunal’s oral reasons. The Tribunal, in its written reasons, does not expressly explain why it decided to make a decision on the day, rather than exercise its power under s 363 to adjourn the review to allow Ms Teo to enrol in the Advanced Diploma of Accounting.
Ms Teo submits that, on a fair reading of the transcript of the hearing before the Tribunal, it appears that the Tribunal, although giving no express reasons for its decision not to adjourn the review:
(a)considered whether to exercise its power to adjourn the review under s 363(1)(b); and
(b)decided not to adjourn the review.
Ms Teo contends that the Tribunal fell into jurisdictional error in deciding not to adjourn the review.
In Minister for Immigration and Citizenship v Li[37] Hayne, Kiefel and Bell JJ stated:
[63] Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.
[67] ... where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky v Australian Broadcasting Authority, requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.
[72] …Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd , Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
[74] In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(1)(b), as connected to the purpose of s 360(1). With that in mind, consideration could be given to whether the tribunal gave excessive weight — more than was reasonably necessary — to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached ...
[79] The submission misapprehends the nature and purpose of the discretionary power to adjourn and the requirement of reasonableness which attaches to it. The discussion of the forthcoming second skills assessment during the hearing on 18 December 2009, and the subsequent request for an adjournment of the tribunal’s review while TRA reviewed the second skills assessment, must have conveyed to the tribunal that Ms Li did not consider that she had presented her case. In deciding whether to adjourn, that was what the tribunal had to consider in the context of the statutory purpose of s 360, but it does not appear that it did so.
[80] The decision to refuse the adjournment request was explained by the tribunal on the bases that: (a) Ms Li had been provided with enough opportunities to present her case; and (b) the Tribunal was not prepared to delay the matter any further ... It may be accepted that the Tribunal is to act with some efficiency, as is stated in s 353(1) of the Migration Act, but such a consideration would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5.
[83] The purpose of s 360(1) has already been referred to. It is to provide an applicant for review the opportunity to present evidence and arguments “relating to the issues arising in relation to the decision under review”. The question which remained in issue when the tribunal made its decision was the satisfaction of a visa criterion by a complying skills assessment. Although the tribunal could not be expected to assume that the second skills assessment, when reviewed, would favour Ms Li, it did not suggest that there was no prospect of the second skills assessment being obtained, or that the outcome could not be known, in the near future. In these circumstances it is not apparent why the tribunal decided, abruptly, to conclude the review.
[37] (2013) 249 CLR 332
Section 360(1) of the Migration Act provides that:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Ms Teo submits that her position before the Tribunal had similarities to the position of Ms Li. At the time of the Tribunal hearing, Ms Teo, like Ms Li, could not satisfy a particular criterion for the grant of the visa in question if the Tribunal made a decision on the day. Ms Teo, like Ms Li, sought an adjournment of the review to satisfy the criterion. From one perspective, Ms Teo’s case for an adjournment was stronger than Ms Li’s case, because Ms Teo could probably satisfy the particular criterion by accepting the offer from York Business Institute,[38] while it was less certain whether Ms Li would satisfy the second skills assessment. Even if the Court does not consider that it was likely that Ms Teo could still enrol in the Advanced Diploma of Accounting, as in Li, the Tribunal “did not suggest that there was no prospect of [an enrolment in the Advanced Diploma of Accounting] being obtained ... in the near future”.
[38] It is accepted that the offer from York Business Institute had closed on the papers and the course had commenced a few weeks earlier. But there was no evidence before the Tribunal that the applicant could not obtain an extension of time to accept the offer and commence the year-long course a few weeks late.
Ms Teo further submits that if the Tribunal gave a reason for not adjourning the review, it appears to be because she had completed the courses for which she applied for the student visa in March 2017. However, first, as in Li at [80], this reason “would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5”. Secondly, the Tribunal’s reason is not a legitimate reason in light of the purpose of s 360(1). The Tribunal was deciding whether to grant Ms Teo a student visa. Through no fault of Ms Teo, two years had passed between the date of the visa application (March 2017) and the date of the hearing before the Tribunal (May 2019). It was almost inevitable that Ms Teo, at the time of the hearing before the Tribunal, would be enrolled in, or wanting to enrol in, a different course to the course she planned to undertake at the time she applied for a student visa. That:
(a)Ms Teo had completed one or more courses of study in the period she had been in Australia; or
(b)she had been in Australia for a few years before the date of the Tribunal’s decision, or
(c)she was wanting to undertake a course of study different to the course of study she wanted to undertake at the time she applied for the student visa,
are said to be all matters irrelevant to the Tribunal’s consideration of whether it should adjourn the review for a short time to allow Ms Teo to satisfy a criterion that she could probably satisfy if the hearing was adjourned.
Further, in EKN17 v Minister for Immigration and Border Protection[39] at [91] Thawley J stated in relation to the power of review given to the Immigration Assessment Authority in Part 7AA of the Migration Act:
The jurisdiction to conduct a review under Part 7AA is not properly exercised simply by identifying one matter which tells against a particular conclusion and failing to give real consideration to the other matters which might tell in favour of that conclusion.
[39] [2019] FCA 1135
Ms Teo submits that in the present matter, the Tribunal identified one matter which it believed told against a decision to adjourn the review, and failed to give any consideration, let alone “real consideration”, to other matters which might tell in favour of a decision to adjourn the review, such as:[40]
(a)it was “likely” Ms Teo would be able to enrol in the Advanced Diploma of Accounting;
(b)the review would only need to be adjourned for a short time to allow Ms Teo to try to enrol in the Advanced Diploma of Accounting;
(c)Ms Teo’s reason for not enrolling in the Advanced Diploma of Accounting prior to the hearing, although involving a misunderstanding of the legislative scheme, was not unreasonable in the circumstances;
(d)Ms Teo’s agent was not at the hearing, and an adjournment would give Ms Teo an opportunity to obtain advice from the agent in light of the Tribunal’s comments to her at the hearing;
(e)Ms Teo had been enrolled in courses for most of the period between her visa application in March 2017 and the hearing before the Tribunal in May 2019; and
(f)the Advanced Diploma of Accounting would assist Ms Teo’s career development on return to Malaysia.
[40] CB 78.6
Minister’s contentions
Ms Teo contends that the following exchange indicates that she sought an adjournment[41] (Minister’s emphasis retained):
Tribunal: Ok. It is a requirement that you be enrolled at date of decision. Now date of decision can be today and that information is provided to you by the Tribunal in the hearing invitation. It is of course open for me today to give you a decision verbally now, saying that you don’t meet the criteria for enrolment, so you don’t meet the criteria for the student visa. That would mean a couple of things. Firstly that your application would be refused and the visa would not be granted. You would not be assessed on the genuine entry criteria. You would be assessed on the enrolment criteria. So there wouldn’t be any finding by the Tribunal, by me that you do or don’t meet the genuine entry criteria. That course is open. What do you say I do, should I take that course or should I do something, what is your view on that? Which way should I proceed?
Applicant: Actually, I think it is to enrol for the next course.
Tribunal:And why? Tell me the reasons why. Tell me what I should take into account in determining whether I should make that decision.
Applicant:Actually the more I study for the accounting, for me, the more for me for university, so that I can go back to my country or I can stay here to study get some more knowledge. But I think I would like to work in this [unclear] because I like accounting. Before this I come here [unclear] for the accounting and it means yeah, I like it.
Tribunal:If I was to make a determination today, the determination that you were not enrolled and you don’t meet the criteria. The main circumstance is that you have already finished the courses for which you applied for your visa and that might be something, that would be a consideration for you for the future. Is there anything else you would like to say to me about that or anything else you would like me to consider? Is there anything else you think I should do? You need to have an opportunity to tell me the things, think about this and I want to make sure, you have an opportunity properly. I’m concerned [unclear].
[41] Transcript, page 5
An unreasonable failure to adjourn a Tribunal hearing may constitute jurisdictional error,[42] such as where the administrative decision-maker’s decision is arbitrary or capricious or abandons common sense,[43] or where it lacks an evident and intelligible justification when all things are considered.[44] Similarly, a failure to accede to a reasonable request for an adjournment can constitute a denial of procedural fairness.[45] Ms Teo bears the onus of proving this.[46] Critically, legal unreasonableness does not involve substituting the Court’s view as to how a discretion should be exercised for that of the Tribunal.[47]
[42] Li
[43] ibid at [26]-[28], [31]
[44] ibid at [47], [63], [67]-[68] and [76]
[45] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40], cited with approval by Zhoory v Minister for Immigration and Border Protection & Anor [2015] FCCA 2699 at [41]
[46] BUP17Minister for Immigration & Anor [2019] FCCA 3193 at [76]
[47] Kaur v Minister for Immigration and Border Protection (2014) 144 ALD 292 at [43]; Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 at [41]
The Minister accepts that the Tribunal’s question to Ms Teo, “should I take that course or should I do something?”, was clearly a reference to whether it should either assess Ms Teo on the material before it and make an oral decision (in which case, the applicant could not possibly succeed because she was not enrolled in a course) or exercise its discretion to “do something” such as delay or adjourn the decision. The Minister also accepts that it is reasonable to infer that the Tribunal had in mind that Ms Teo may seek additional time to enrol when asked this question.
However, the Minister submits that Ms Teo’s response, “I think it is to enrol for the next course”, was at best, unclear. This is said to be particularly so in the context of her prior statements that she wanted to wait for the outcome of her review application before she enrolled in the Advanced Diploma course. Ms Teo chose not to respond directly to the Tribunal’s question about what it “should do” and did not ask for more time.
The Minister does not accept that the Tribunal’s response, “tell me what I should take into account in determining whether I should make that decision”, indicates that it understood Ms Teo was asking for an opportunity to enrol. The Minister contends that the Tribunal’s question was its second attempt to elicit a response from Ms Teo about why it should not proceed to make an oral decision on the basis of the enrolment criterion, because it did not receive a satisfactory response from her in response to its previous question.
Reviewing the transcript, the following exchange later in the hearing is said to indicate that the Tribunal made a third attempt to ascertain whether Ms Teo wanted additional time to enrol before proceeding to make its decision:[48]
Tribunal:We are still back to the same problem that you are not enrolled today. What will you do if I give a decision today which results in you not being granted the visa?
Applicant: I am still waiting.
[Laughs]
That the only way we can do. Just still waiting for the result. But I can’t, I am not satisfied with the result and this is unfair to me why my visa is refused…
[48] Transcript, page 7
The Minister submits that the Tribunal is not obliged to prompt an applicant to provide additional evidence[49] or to afford every opportunity to an applicant to present their best possible case.[50] It is not unreasonable for the Tribunal to adopt the approach that “enough is enough”.[51] In circumstances where:
(a)the applicant was represented by a migration agent;
(b)the applicant was invited to provide information about the course of study he was undertaking; and
(c)the Tribunal’s hearing invitation had expressly requested that the applicant provide a CoE,
the Tribunal was entitled to decide the review based on the evidence put forward by the applicant.[52]
[49] SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 at [36]-[37]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 at [40]; Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36]
[50] Abbas v Minister for Immigration & Anor [2019] FCCA 2577 at [40]
[51] ibid at [41]-[42]; Pandey at [41](j)
[52] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [86]
Ms Teo submits that although she did not expressly say so, the likely reason she had not enrolled in the further course was that it would cost $1,800[53] and she “did not want to throw away” that money. The difficulty with this argument is said to be that Ms Teo did not make that submission to the Tribunal, just as she did not clearly articulate any request for an adjournment, so it could not have informed the Tribunal’s decision to either proceed or adjourn the review. Another equally likely reason that Ms Teo did not want to enrol is said to be that she did not have the required funds. The only information before the Tribunal was that Ms Teo did not want to enrol in a further course until she knew the outcome of her review. The Tribunal was clearly cognisant of the fact that the due date for the first instalment of the fees for the Advanced Diploma course in which Ms Teo had been offered a place had already passed on 20 April 2019.[54]
[53] CB 110, 117
[54] Transcript, page 3
The Minister submits that any contention that Ms Teo was not on notice of the requirement to be enrolled in a registered course of study cannot succeed. Ms Teo was informed that it was a requirement for the visa that she be enrolled in a registered course of study.[55] She then expressly informed the Tribunal that she was not enrolled in a registered course of study. Under her answer, the Request for Student Visa Information stated:[56]
Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.
[55] CB 66
[56] CB 77
The Advanced Diploma course, in which Ms Teo claimed she intended to enrol, had commenced on 6 May 2019, more than three weeks prior to the Tribunal hearing.[57] Ms Teo candidly accepts this and that the course had “closed on the papers”. The Tribunal was clearly alert to this and raised it on two occasions with Ms Teo.[58] Ms Teo contends that there was no evidence that she could not obtain an extension of time to accept the offer, but it was for her to provide that evidence.[59]
[57] CB 116
[58] See Transcript, pages 2-3
[59] Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]
Ms Teo contends that “if the Tribunal hearing had occurred 40 or more days earlier, the applicant’s problem with cl 500.211 would not have arisen”. This is said to be immaterial. The issue was that Ms Teo did not meet clause 500.211 at the time of the Tribunal’s decision. In any event, the Tribunal did not have the power to grant Ms Teo a visa and there would have been no utility in remitting the application to the Minister’s Department in circumstances where she was due to complete her course if she was not prepared to re-enrol before a decision was made on her application.
Ms Teo also takes issue with the Tribunal putting to her during the hearing that she had already completed the courses that were the original basis for the visa application, and if her visa had been granted in the first instance, it would have expired.[60] Ms Teo now contends that had the visa not been refused, she may have applied for a further visa to undertake the Advanced Diploma. This is said to be nothing more than a hypothetical argument about what Ms Teo might have said in response to the Tribunal’s questions (but did not). It is said to be irrelevant to the issue of the exercise of the Tribunal’s discretion to proceed to an oral decision.
[60] Transcript, page 4
Ms Teo also asserts that there were “other matters which might tell in favour of a decision to adjourn the review”. However, the Minister submits that, just because there were other matters which “might” have justified an adjournment, it does not necessarily follow that the Tribunal’s decision to proceed to an oral decision was outside the range of possible, acceptable outcomes.[61] There are a number of other issues with these “other matters”.
[61] Pandey at [51]-[52]
Ms Teo asserts that it was “likely” that she would have been able to enrol in the Advanced Diploma, although she also candidly admits in submissions that the course had “closed on the papers”. There was no evidence before the Tribunal that she would likely be able to enrol in the same course or that the review would only need to be adjourned for a short time to enable her to enrol.
Whether Ms Teo’s reason for not enrolling, namely that she misunderstood the legislative criteria, was “unreasonable” or not is said to be irrelevant. In any event, the Minister submits that she was clearly on notice that she was required to be enrolled in a course of study.
Ms Teo’s agent was not at the hearing, but this was by her request.[62] She also did not request or require an interpreter,[63] notwithstanding that the Tribunal had one present and available.[64]
[62] CB 101
[63] CB 101
[64] Transcript, page 1
The Minister submits that the courts will not lightly interfere with an exercise of statutory power involving an area of discretion, and the threshold of establishing legal unreasonableness is a stringent one.[65] In all the circumstances, the Tribunal decision not to adjourn the review and to proceed to make an oral decision was not legally unreasonable, nor did it constitute a denial of procedural fairness. After all, the Tribunal is under a duty to review decisions within a reasonable time,[66] and to pursue the object of providing a mechanism of review that is, among other things, “fair, just, economical, informal and quick”.[67] The Tribunal’s decision to proceed to an oral decision was within “an area of decisional freedom”.[68]
[65] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10]-[11], [52], [86]
[66] Li at [102]
[67] Administrative Appeals Tribunal Act 1975 (Cth), s 2A(b)
[68] Li at [28]
Resolution
I prefer the Minister’s submissions on the first and second grounds of review. It is tolerably clear from the transcript that the Tribunal was alive to the issue of whether it should make its decision orally on the day of the hearing or whether it should adjourn the review or defer the decision in order to give Ms Teo the opportunity to attempt to enrol in the course of study for which she had received an offer of enrolment.
The Tribunal questioned Ms Teo about that issue at the hearing, albeit somewhat obliquely and in circumstances where the responses of Ms Teo were equivocal. She had come to the hearing in the hope that she might get a clearer idea about the fate of her student visa application (in particular bearing in mind the decision of the delegate) before outlaying the first instalment of the course fee of $1,800. That is in effect what she told the Tribunal. Ms Teo should have been aware prior to the Tribunal hearing from the Tribunal’s correspondence that she would need to demonstrate a current enrolment in order to qualify for the visa she sought. She appears to have not paid regard to that stipulation, even though she was assisted by a migration agent.
The Tribunal was unconvinced of any persuasive reason not to proceed to conclude the review at the end of the oral hearing. Relevantly, the Tribunal’s reasons are at [14]-[15] of its decision. There, the Tribunal states:[69]
Your visa application and your evidence today was that in the course of your visa application the further course you now wish to study and in respect of which you have the offer from the York Business Institute, was not included in your visa application. Indeed, on the basis of the evidence before the Tribunal, being your evidence today and what is in the Department's file in relation to the visa application, it is clear that the courses for which you applied for the visa, you have already successfully completed.
On the evidence before the Tribunal, being the letters provided to the Tribunal by you today from York Business Institute, being letters issued on 27 March 2019, you have been offered a place in a course, but you have not taken up that offer and obtained enrolment. And you also gave evidence that you have not paid the first instalment set out in those letters for that enrolment. You have not done that, you told the Tribunal because you were uncertain as to the outcome of your application for review of the visa refusal before the Tribunal, and the Tribunal has taken that information into account.
[69] CB 136
Ms Teo had provided documents to the Tribunal at the hearing about her course offer. Two things were immediately obvious from those documents. The first was that the course had begun three weeks before the Tribunal hearing.[70] Secondly, the first instalment of the tuition fee (including a non refundable component for enrolment) was required to be paid no later than 10 working days after the commencement of the course. It logically followed that the offer had expired. Although the Tribunal might have put this expressly in its reasons, the facts are so obvious that I do not consider that they needed to be expressly stated.[71]
[70] CB 110
[71] As matters transpired, Ms Teo did enrol in her chosen course of study, but about six months later and at a different institution. She completed that course in October 2020. She has since enrolled in another course of study with a completion date of February 2022.
In my view, in the circumstances of this case, there were several possible approaches that a reasonable Tribunal could have taken. The first was to adjourn the review in order to give Ms Teo the chance (should she have wanted to take it up) to attempt to accept the expired offer of enrolment. Secondly, the Tribunal could have elected to make a written decision at some time after the oral hearing which would also have provided Ms Teo with some time to attempt to take up the expired letter of offer. Thirdly, the Tribunal could have done what it actually did, namely to make an oral decision on the day of the hearing on the basis that there was nothing logically preventing the Tribunal from doing so. Ms Teo had not taken up the offer of enrolment afforded to her and her explanation, that she was hoping to get an indication of the fate of her visa application before she outlaid money for the course, was not persuasive.
I see no error in the Tribunal’s approach.
Ground 3 – was the review procedurally fair on the issue of the need to have a current enrolment?
Ms Teo complains that she was, in effect, confronted at the Tribunal hearing for the first time with the determinative issue in the review. That is not correct. I agree with and adopt the Minister’s submissions on that issue.
This ground alleges that the Tribunal raised with Ms Teo “for the first time” a “new issue”, namely that she had to satisfy clause 500.211 and then proceeded to make a decision “within the next 30 minutes”. This is said to have been a denial of procedural fairness and Ms Teo asserts that she should have been given time to consider the new issue.
This ground cannot succeed for the following reasons.
This issue was not raised with Ms Teo for the “first time” at the Tribunal hearing. Ms Teo was informed in writing on 2 April 2019 that it was a requirement for the visa that she be enrolled in a registered course of study and she was invited to provide information in writing to demonstrate that she met that requirement.[72]
[72] CB 66
Ms Teo expressly informed the Tribunal in the Request for Student Visa Information response that she was not enrolled in a registered course of study. Under her answer, the Request for Student Visa Information form stated:[73]
Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.
[73] CB 77
For the purposes of s 360 of the Migration Act, Ms Teo was on notice of the dispositive issue on review, namely that she needed to satisfy clause 500.211.
On 8 May 2019, Ms Teo was requested, in writing, for a second time in advance of the Tribunal hearing to provide evidence of enrolment and she was warned “we may make a decision at the end of your hearing”.[74]
[74] CB 92-94
It was open to the Tribunal to make an oral decision.[75]
[75] Migration Act, s 368D
It was put to Ms Teo at the hearing, in clear terms, that the Tribunal could make an oral decision “saying that you don’t meet the criteria for enrolment”.[76] Ms Teo was invited to respond to that proposal and did not ask for more time. Ms Teo clearly understood the issue. It is not clear why Ms Teo required more time to “consider” it. She was clearly aware that she needed to be enrolled in a course of study.
[76] Transcript, page 5
In these circumstances, it is not apparent how the Tribunal’s decision to make an oral decision could constitute a denial of procedural fairness.
CONCLUSION
Ms Teo has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 12 May 2021
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