Wickramasinghe v Minister for Immigration
[2005] FMCA 1558
•28 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WICKRAMASINGHE v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1558 |
| MIGRATION – Judicial review – Student visa – Migration Review Tribunal education provider ceases operation – no certificate of academic performance as attendance provided – whether Tribunal should make inquiry of Department to determine any notices issued by education provider pursuant to ss.19 and 20 of Education Services for Overseas Students Act. |
| Migration Regulations 1994 Migration Act 1958, ss.363(1)(d), 363(3) Education Services for Overseas Students Act 2000, ss.19, 20 |
| Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 (4 June 2004) Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural Affairs Re; Ex parte Cassim (2000) 175 ALR 209 Azzi & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 195 ALR 166 Majeed v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 470 |
| Applicant: | INESH UDITHA WICKRAMASINGHE |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 120 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 4 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 28 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Gibson |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondents: | Mr R. Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The decision of the Migration Review Tribunal dated 10 February 2003 be set aside and the matter remitted to a differently constituted tribunal to be decided according to law.
The first respondent shall pay the applicant’s costs of this application fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 120 of 2005
| INESH UDITHA WICKRAMASINGHE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 10 December 2003. The application, though originally commenced in the Federal Court of Australia, appears to have been transferred to the Federal Magistrates Court by order of the Federal Court made 20 January 2005.
Both parties were represented and filed contentions of fact and law. The applicant arrived in Australia on a temporary student visa (subclass 560) on 2 February 1997. The respondent's delegate granted further temporary student visas to the applicant on 9 June 1998 and 14 March 2000. The applicant's temporary student visa granted on 14 March 2000 was valid until 14 April 2002 and was subject to condition 8202 of schedule 8 of the Migration Regulations 1994 (the Regulations).
On 11 April 2002 the applicant lodged an application for a temporary student visa (subclass 572). In support of that application the applicant submitted a copy of the following:
a)his academic results and attendance record for the period 1 February 1999 to 6 March 2000, and;
b)correspondence from the Australian Council for Private Education and Technology (ACPET) his previous education provider, dated 5 February 2002, which had stated that the Victorian Institute of Technology (VIT) would "not be reopening for the teaching of classes in 2002". The ACPET letter states in part the following:-
“As you are aware, the Victorian Institute of Technology (VIT) will not be reopening for the teaching of classes in 2002. While this is unfortunate, you will be able to continue your education in Melbourne by enrolling in the same or similar course at another registered private provider of education and training.
The Australian Council for Private Education and Training (ACPET) has been asked to assist in finding you another college so you might continue your studies this year without disruption.”
That letter from ACPET clearly indicates that VIT would not be reopening teaching classes in 2002, though it does not indicate a specific date upon which VIT ceased to operate.
The academic results provided by the applicant appear to be in the form of a statement of results from VIT (court book pp.21-23).
By a letter dated 14 November 2002 the first respondent requested further information from the applicant in relation to academic results and financial circumstances. The letter states in part the following:-
I refer to your application for a student visa that was lodged with the department on 11 April 2002. In order for your application to be considered further, it is necessary for you to provide the following documents;
(1) evidence previous results
We require the results and attendances from previous study in Australia, including your current course.
The letter provided a period of time within which the documents were to be provided, and noted that failure to provide the documentation "will result in a decision to be made on available documents held on file ..."
The applicant, by a letter dated 11 December 2002, provided further information to the first respondent. That further information relevantly included what is described as "Evidence Previous Results". It comprised an attachment, being a statement of results from Holmesglen Institute TAFE dated 26 February 1998, which appears to set out results for the year 1997.
Although the correspondence refers to a statement of result from VIT as “Annexure C”, it seems that that annexure was not specifically included in the court book. That matter was not the subject of any further submissions by either party. In any event, it seems to be common ground that the information which was provided included what is described as academic transcript for the applicant in respect of the 1998 academic year.
A delegate of the first respondent, by a letter dated 19 December 2002 addressed to the applicant, sought further information concerning the applicant's academic results for periods not covered in documents previously supplied. The letter specifically states the following:-
(1) evidence previous results
We require the results and attendance from previous study, including your current course.
That letter requested the documents to be provided within 14 days, and again provided that failure to provide the documentation would result in a decision to be made on the available documents held on file.
In the court book a further relevant document, also dated 19 December 2002, is included and it appears to be from Hales Institute and refers to the applicant's record of attendance as being "unsatisfactory – 57.9 per cent". The letter goes on to state the following:-
I cannot find any results for him - but end of year correction is not quite completed so it is possible that he may have some recent uncorrected assessments in the pipeline. I will check on this further this afternoon and let you know via email.
On 7 January 2003 the respondent's delegate decided to refuse to grant the applicant a temporary student visa on the basis of his unsatisfactory attendance in the 2002 academic year. In the letter dated 7 January 2003 the delegate states the following, after acknowledging receipt of the application lodged on 11 April 2002:-
The information you provided has been carefully considered.
I am sorry to advise you that you have not been granted a visa. The decision made in this matter is based on the applicable migration law and policy relating to the entry and stay of students.
In your case the decision‑maker was not satisfied that you met the following requirements:
560.212If the application is made in Australia the applicant has complied substantially with the conditions to which the visas (if any) held or last held, by the applicant is, or was, subject.
On 3 February 2003 the applicant lodged a review application with the Tribunal. By a letter dated 4 February 2003 addressed to the applicant, the Tribunal acknowledges receipt of the applicant's application and in part states the following:-
You should provide any documents or written arguments you wish the tribunal to consider and which you have not already provided to the tribunal or the department.
By letter dated 4 July 2003 from the Tribunal to the applicant, the following appears:-
Section 359(2) of the Migration Act allows the tribunal to invite a person to give it additional information that is relevant to the review of a decision.
Accordingly, the tribunal now invites you to provide the following additional information:
·Please provide a statement of results and attendance records from Victoria Institute of Computer Training for semester 1 and 2, 2000; and semester 1 and 2, 2001.
· Please provide a statement of results and an attendance record from Hales Institute for semester 1, 2002.
...
Section 359A of the act states that the tribunal must explain and invite comment on 'particulars of any information that the tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review'.
It is noted from the court book that by a letter dated 14 August 2003 the Tribunal writes to the applicant in response to a request for an extension of time to provide information to the Tribunal and grants the extension of time.
The applicant's agent then, by correspondence dated 9 September 2003 addressed to the Tribunal, provides further information which relevantly states the following:
As already stated, that academic results from 06/03/2000 are available which are very good as applicant passed all the subjects, with distinction in five subjects, and attendance during this period was above 80 per cent.
Applicant could not get statement of results for semester 1 and 2, 2000, and semester 1 and 2, 2001, as college is completely closed and there is none to provide statement of results in attendance. But as informed by applicant during above period, his academic results was good and he passed in all subjects he appeared and his attendance during this period was also satisfactory (above 80 per cent).
For semester 1, 2002 in Hales College, applicant informed that due to his family problems and further serious medical problems of his father (letter from his father Nobet Wickramasinge is attached) applicant could not attend the college regularly, affecting his academic result also. [sic]
The attached material referred to the applicant's father's difficulties and social problems which occurred between March 2002 and March 2003, which I accept for present purposes would appear to be irrelevant, as found by the Tribunal.
The Tribunal, by letter dated 17 September 2003 addressed to the applicant, invited the applicant to attend a hearing on 29 October 2003. After that correspondence there appears to be other correspondence passing between the applicant's representative and the Tribunal, none of which is relevant for the present purposes.
The next relevant correspondence appears to be a facsimile message dated 17 November 2003, from the applicant to the Tribunal, where the applicant states:-
I would like to inform that I am not in the position to attend interview due to my mental stress.
I request you to decide the case on the basis of documents already sent to you, to show my substantial compliance of my visa.
The Tribunal's decision
In its decision the Tribunal appropriately set out the criteria to be satisfied accurately in the following passages:-
“24. At the time the visa application was lodged, Class TU contained a number of subclasses. The only subclass in respect of which any claims have been advanced is subclass 572. There is no evidence to suggest that the visa applicant meets key criteria for the other subclasses.
25. One of the criteria to be satisfied at the time of application for the grant of a subclass 572 visa is that `the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject' (clause 572.212 of Schedule 2 to the Regulations). At the time of decision, the visa applicant must continue to satisfy the criterion in clause 572.212 (clause 572.226 of Schedule 2 to the Regulations).
26. At the time of the visa application, the visa last held by the visa applicant was a subclass 560 visa that was granted on 14 March 2000. The visa was subject to a number of conditions, including condition 8202. Generally the Tribunal must have regard to visa conditions that were applied when the visa was granted (Pradhan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 91). However, item 4 of Schedule 4 to the Migration Legislation Amendment (Overseas Students) Act 2000 applied a new condition 8202 to all student visas in effect on 21 December 2000, or granted after 21 December 2000 but before 1 July 2001. The visa applicant's visa was therefore subject to the following version of condition 8202:
(3) The condition is that:
(a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student--the holder is enrolled in a full-time course of study; and
(b) in any other case--the holder is enrolled in a registered course; and
(c) in the case of a holder whose education provider keeps attendance records--the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i) for a course that runs for less than a semester--for the course; or
(ii) for a course that runs for at least a semester--for each term and semester of the course; and
(d) in any case--the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i) for a course that runs for less than a semester--for the course; or
(ii) for a course that runs for at least a semester--for each term or semester (whichever is shorter) of the course.
27. In Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436, Katz J referred to the matters to be taken into account when deciding whether an applicant has substantially complied with a visa condition. These include the nature and significance of the breach, whether or not the applicant deliberately flouted the condition and, if the applicant failed to appreciate the breach of condition, what if anything had contributed to that failure, including whether the Department had misled the applicant.
28. Katz J also held that:
Whether a person can be regarded as having `substantially complied' with a condition is not only a quantitative matter, or a question of proportionality, but also a qualitative matter which may concern factors such as the bona fides of the Applicant, so that a person who has sought to comply with the condition but made an innocent error or was thwarted from complying with the condition through no fault of his or her own may be said to have `substantially complied' with the condition as distinct from a person who knowingly disregards the condition.”
In its decision the Tribunal then goes on to consider the period of the visa applicant's previous visa, namely 14 March 2000 to 14 April 2002, as the relevant period and states that during the relevant period the visa applicant was enrolled at VIT in a diploma of information technology (software development) from semester 1, 2000, until the end of semester 2, 2001, and then at Hale in a Diploma of Information Technology (network engineering) for the last seven days of the relevant period.
Relevantly the Tribunal then states the following:
“30. As the Diploma of Information Technology (Software Development) at VIT ran for at least a semester, and as VIT kept attendance records (as evidenced by the record of the visa applicant's attendance in his previous course at VIT), the visa applicant was required by condition 8202(c)(ii) to attend for at least 80% of the contact hours scheduled for each semester of the course. The visa applicant was also required by condition 8202(d)(ii) to achieve an academic result for each semester that is certified by VIT to be at least satisfactory.
31. As VIT has ceased operations, neither the Department nor the Tribunal has been able to obtain the visa applicant's attendance and results for 2000 and 2001 from the education provider itself. The Tribunal notes that the visa applicant was asked by the Department in November 2002 to provide his attendance and results from his previous courses of study. He was specifically asked by the Tribunal in July 2003 to provide his attendance and results at VIT in 2000 and 2001. The visa applicant has failed to comply with both requests, on the basis that VIT closed in February 2002. At the same time, he claims to have passed all his subjects and attended more than 80% of his classes at VIT in 2000 and 2001. While the Tribunal accepts that the closure of VIT might possibly have affected the provision to its students of attendance and results for semester 2, 2001, the visa applicant has offered no explanation why he is unable to support his claim by providing documentary evidence of his attendance and results at VIT for 2000 and at least semester 1, 2001. The Tribunal also takes into account the visa applicant's election not to attend a hearing at which these matters could have been clarified, when a medical certificate posted more than one week after the date of its issue only supports his inability on medical grounds to "follow his studies" for a period of three days ending the day after the scheduled hearing.
32. In the absence of documentary evidence issued by VIT concerning the visa applicant's attendance and results in 2000 and 2001, the Tribunal is not able to be satisfied that he attended for at least 80% of the contact hours scheduled for each semester. VIT has not certified that the visa applicant achieved an academic result was at least satisfactory for each semester of the course. Having regard to the visa applicant's failure to respond to requests to provide documentary evidence that would most likely have been provided to him by VIT before its closure, and his election not to attend a Tribunal hearing, the Tribunal infers that the documentary evidence would not support the visa applicant's claims. Consequently the Tribunal finds that the visa applicant did not comply with condition 8202(c)(ii) and condition 8202(d)(ii) in semesters 1 and 2, 2000, and at least semester 1, 2001. There is no claim that the Department misled the visa applicant at any time. In all the circumstances, the Tribunal finds the breach of condition 8202(3) to be significant.”
Ultimately the Tribunal affirmed the decision of the first respondent's delegate refusing the grant of the temporary student visa. It found that the applicant did not meet the criteria for the grant of a student visa (subclass 572) because the applicant failed to satisfy the criterion in clause 572.212 of schedule 1 of the regulations. Clause 572.212 relevantly states that:-
If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held or last held by the applicant is, or was, subject.
Significantly the Tribunal found that the visa last held by the applicant, as indicated earlier, was the temporary visa (subclass 560) granted on 14 March 2000 and that that last held visa was subject to a number of conditions, including condition 8202. Condition 8202 is accurately set out in the extract from the tribunal's decision in paragraph 22 hereof.
The crucial finding by the Tribunal was that it found on the basis of the evidence before it that the applicant had failed to comply substantially with condition 8202 in respect of his last held visa. The court notes the following specific finding:-
36Taking all relevant matters into account and applying the test in Baidakova, the guidelines in PAM3 and the definition of "substantial", the tribunal finds that at the time of application the visa applicant did not comply substantially with condition 8202 of the visa previously held by him. Consequently the tribunal finds that the visa applicant does not satisfy clause 572.212 at the time of application.
The Applicant's Contentions
The applicant's contentions set out a number of matters to be relied upon, though during the course of submissions before the court it should be noted that a significant threshold issue, identified by counsel correctly on behalf of the applicant, involved the question of the failure of the Tribunal to exercise jurisdiction by failing to act under ss.363(1)(d) and 363(3) of the Act. It was argued that the Tribunal should in the circumstances have taken action under either of those sections before determining that the applicant had breached condition 8202 of his last held visa.
It is relevant to set out ss.363(1)(d) and 363(3) as follows:
“Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) …
(b) …
(c) …
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
(2) …
(3) Subject to subsection (4), the presiding member in relation to a review may:
(a) summon a person to appear before the Tribunal to give evidence;
(b) summon a person to produce to the Tribunal such documents as are referred to in the summons;
(c) require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and
(d) administer an oath or affirmation to a person so appearing.”
Whilst that was the threshold issue, it is common ground that the applicant's contentions and/or grounds are otherwise satisfactorily summarised by the respondent in the contentions in the following terms:-
“(a)the Tribunal impermissibly drew an adverse inference of fact that the applicant had not complied with condition 8202 on the basis of the applicant’s failure to supply documentary evidence of satisfactory attendance and academic results for the 2000 and 2001 academic years and, in doing so, took into account ‘irrelevant material’;
(b)the absence of any notification of a breach by the VIT pursuant to sections 19 and 20 of the Education Services of Overseas Students Act 2000 (Cth) (“ESOS Act”) in respect of the 2000 and 2001 academic years was ‘relevant material’ which the Tribunal failed to take into account;
(c)the Tribunal failed to make inquiries about the applicant’s attendance and academic results for the 2000 and 2001 academic years in circumstances where it had a duty to do under section 363 of the Act and accordingly acted unreasonably”.
As indicated, the threshold issue in relation to what might be described as the factual inferences or notification of breaches under ESOS Act seem to be inextricably related to the fundamental complaint by the applicant that the Tribunal was bound to make inquiries for the purpose of "ascertaining where the student records were held and obtaining access to them".
In broad terms the applicant in submissions before this court sought to argue that the tribunal, upon becoming aware of the somewhat unusual circumstances in this case of the education provider no longer continuing to operate, should then have made an inquiry of the second respondent's department to determine whether or not any certification had been provided by the education provider, consistent with the obligations of that provider pursuant to s.19 of the ESOS Act.
In making that submission it was conceded that such an inquiry may not necessarily be one which benefits the applicant and/or corroborates what was clearly otherwise deficient material in the sense of there being no documentary evidence from the education provider in relation to the relevant periods concerning the applicant's academic performance and/or attendance.
In other words, one possibility which may arise upon an inquiry being made by the tribunal of the first respondent's department is that a certificate and/or notification may well have been provided pursuant to s.19 and indeed s.20 of the ESOS Act, indicating unsatisfactory performance and/or attendance. To that extent the evidence, if obtained in that form, may well prove fatal to the application.
It was submitted however that the failure to make the inquiry and seek from the department information as to whether indeed notification had been provided by VIT pursuant to ss.19 or 20 of the ESOS Act, that the tribunal had erred not only in its breach of ss.363(1)(d) and 363(3) of the Act but also, as I understood the submissions, had committed a jurisdictional error by denying procedural fairness to the applicant in failing to make an inquiry in relation to a relevant fact as part of its inquisitorial function.
It seemed to be recognised by counsel for the applicant that as a matter of law the Tribunal is not required to make the case for the applicant and to that extent, as I understand the submissions made on behalf of the applicant, the law relied upon by the respondent is correct to the extent that it is not a matter for the Tribunal to necessarily seek other information in order to support an applicant's case.
Specifically, I note and apply the reference to this issue which appears in the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 where the court states the following:-
“20 The primary judge, having set out the passage quoted at [3], expressed the view that the respondent’s claim to have a well-founded fear of persecution "had some substance" or at least could not be rejected out of hand on the basis that the claims had no possibility of success. Later his Honour said that if the Tribunal was not prepared to make findings in respect of the claims on the evidence it had before it, "the remedy lay, at least to some extent, in its own hands". It is not clear whether by this his Honour meant that the Tribunal should have attempted to arrange a new hearing at which it could have pursued the respondent as to the matters it said it would like to have explored with him (see [5]). If that is what he meant, the Tribunal was under no such obligation, as we have explained at [11] to [13]. If his Honour meant that the Tribunal should have sought information from other sources available to it under s 424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J, Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].
21 The respondent submitted that having identified matters it would have liked to explore, it was open to the Tribunal under s 424 of the Act to obtain information it considered relevant in performance of its duty to review. That is true. But as indicated at [20], it was under no obligation to do so.”
In that case the court allowed the appeal, and to understand its decision it is useful to further set out the relevant matter before the primary judge, described by the Full Court in the following paragraph:-
“7 His Honour observed that the Tribunal made no finding against the respondent in respect of his claims. He referred to the various matters recorded at [5] which the Tribunal would have liked to explore with the respondent, and continued:
‘The Tribunal had within its power the means to satisfy itself about each of these issues. It could at least have attempted to schedule another hearing and to invite the [respondent] to attend and give oral evidence and present argument. Its failure to do so, in circumstances in which it made no finding adverse to the [respondent] about his reason for non-attendance, amounted in my view to a dereliction of its duty. If the Tribunal were not prepared to make findings in respect of the first [respondent’s] claims on the evidence it had before it, the remedy lay, at least to some extent, in its own hands.’"
In this case it was submitted that the powers provided under the legislation and/or in pursuit of its normal inquisitorial process both provided the Tribunal with an obligation to make an inquiry of the department as to whether it had indeed received and recorded any notification from the education provider pursuant to ss.19 and 20 of the ESOS Act.
It was further argued that the power should have been exercised by the Tribunal and that it was a matter of ascertaining where the student records were held and obtaining access to them. Whilst acknowledging that the tribunal is not ordinarily under an obligation to use the provisions, it was argued that in the current application the circumstances were so unusual that the Tribunal should at the very least have considered using the powers available to it to make the appropriate inquiry.
In support of the contentions, the applicant relied upon the decision of the Full Court of the Federal Court in the matter of Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 (4 June 2004) and in particular referred to the following paragraphs:-
“80 The appellant’s counsel linked this submission to a contention that the Minister was obliged, on his own initiative, to make further inquiries about the position of the children. Counsel relied on the observations of Toohey J in Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167, a case under the Administrative Decisions (Judicial Review) Act 1977 (Cth). There his Honour said (at 178-179):
‘As a broad proposition, I do not think that the Act imposes an obligation on a decision-maker to initiate inquiries...
But much will depend upon the nature of the material before the decision-maker, the importance of the decision to be made and its consequences for the person to whom the decision relates. In this regard I confine my comments to a decision that a prohibited non-citizen be deported. In such a case it may be that the material placed before the Minister or his delegate contains some obvious omission or obscurity that needs to be resolved before a decision is made. This is more likely to be the case where the person concerned has not had the benefit of any advice.’Counsel submitted that the Minister should have realised that the information provided by the appellant in the questionnaire was inadequate and therefore should have made further inquiries, for example to ascertain why the children were living with the appellant’s mother and what role their own mother was playing in their care. There was no evidence as to what information these further inquiries might have yielded or how they might have assisted the appellant’s case.
81 Toohey J’s comments in Videto must be understood in their context. His Honour was not considering the scope of jurisdictional error for the purposes of s 39B of the Judiciary Act. Moreover, he was concerned with case where the Department had failed to forward information to the delegate (the decision-maker) and had dissuaded Mr Videto from putting forward relevant material on the basis that it had no bearing on the decision.
82 In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, McHugh J said this (at 321):
‘In an number of cases, the Federal Court has found that a failure to make further inquiries constituted an improper exercise of the power granted by the statute or a failure to take into account a relevant consideration in exercising that power. In those cases, the Federal Court has held that further inquiries should have been made because (1) a specific matter was raised by an applicant or was within the knowledge of the Minister and that matter could not be properly considered without further inquiry, (2) the information before the Minister was not up to date or (3) the absence of information before the Minister resulted from the Minister’s officers misleading the applicant. This case does not fit into any of those categories.’ (Citations omitted.)
Although McHugh J was in dissent in that case, there is nothing in this passage inconsistent with the reasoning of the majority of the Court: see at 289-290, per Mason CJ and Deane J; at 302, per Toohey J; cf at 304, per Gaudron J. See also Hourn v Farm Plan Pty Ltd [2003] FCA 1122 at [44]-[53], per RD Nicholson J.”
Both counsel referred the court to the decision of the High Court in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12. The following paragraphs were referred to:-
“[43] This ground of error is misconceived for two reasons. First, there was evidence before the tribunal to assist it in determining how to deal with the question of unreliability. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst s 427 of the Act confers power on the tribunal to obtain a medical report,15 the Act does not impose any duty or obligation to do so. Rather, s 42616 provides that, even if an applicant requests that the tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the tribunal is not required to obtain such evidence. Thus, the tribunal is under no duty to inquire.
…
[124] Under s 427 of the Act, the tribunal may require the Secretary to arrange, and report upon, any investigation or medical examination that the tribunal thinks necessary with respect to a review.107 That does not mean that the tribunal is bound to make particular inquiries or to obtain evidence on medical or other matters.108 There is nothing to suggest in this case however that the tribunal failed, whether it was bound to do so or not, to make all appropriate and sufficient inquiries. The tribunal was faced with a request by the respondent that the hearing proceed, which it did, and it was well aware of the possibility that the respondent was stressed and made due allowance for that. Even if the respondent had made a request that a particular psychologist or psychiatrist give evidence, the tribunal was not obliged to comply with it.109 It certainly made no jurisdictional error in not undertaking further inquiries. It had a discretion and not an obligation to pursue such other inquiries, if any, as it saw fit.”
The applicant further referred the court to Minister for Immigration and Multicultural Affairs Re; Ex parte Cassim (2000) 175 ALR 209 and in particular the following paragraph:-
“[13]Decisions and dicta in the Federal Court of Australia indicate that a failure by the tribunal to make inquiries about the claims or the evidence of an applicant may sometimes be a breach of the rules of natural justice or render the decision unreasonable.1 Even if that proposition is valid, those cases and dicta recognise that the tribunal has no general duty to make inquiries about an applicant's claim. They declare that ordinarily the tribunal should only make inquiries if the material is ‘readily available.’”
It was argued that the material in this case was "readily available" and further, having regard to the authorities relied upon, that in this instance the court could conclude that the Tribunal should have made the relevant inquiry, albeit that the result of that inquiry may not necessarily favour the applicant.
Reliance was placed upon the decision of the Federal Court in Azzi & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 195 ALR 166, where in that case the court states the following:-
“[112] It may be, notwithstanding prevailing authority, that a duty to inquire may exist or be seen to arise in certain circumstances, but these are understood as being exceptional or rare: Prasad, above; Minister for Immigration and Multicultural Affairs v Amani [1999] FCA 1040; BC9904465; W41/01A, above; Raheem, above. Before the High Court's decision in Eshetu it had been said by the Full Court of this court in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 ; 144 ALR 284 in relation to s 420 that any such duty that might exist would arise only in rare cases; cf McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at [13].”
In the present case it was argued that the circumstances should be regarded as exceptional or rare, given the closure of the education provider, and further that the information was readily available, at least to the extent from the department, namely as to whether or not appropriate notification had been given under ss.19 or 20 of the ESOS Act.
In meeting an argument advanced by the first respondent that the inquiry was not suggested by the applicant in correspondence forwarded on his own behalf prior to the hearing, it was submitted that whilst it may have been preferable to make the request of the Tribunal to make the inquiry, that the failure to do so was not fatal to the applicant's assertion before this court that the tribunal had erred in its failure to make the inquiry.
I accept that as a general proposition that in matters of this kind, where this is not specifically part of the claim but rather an inquiry which may be available, that it is not necessarily fatal to an applicant's claim that either the applicant or his advisers did not specifically request the Tribunal to make such an inquiry.
It is clear in this case that a specific matter was raised by the applicant that is, his satisfactory performance and it is equally clear that there may at least have been available information of a kind which would tend to corroborate rather than contradict the assertion of satisfactory performance and attendance made by the applicant in the absence of further documentary material.
The respondent has argued strongly that in this case the court should note, in the decision of the Tribunal set out earlier in this judgment, that it claimed that "neither the department nor the tribunal has been able to obtain the visa applicant's attendance and results for 2000 and 2001 from the education provider itself". Although that was suggested by the respondent in submissions that the Tribunal did make inquiries, it was conceded those inquiries were not made of the first respondent's department. It was argued however that the failure in this case to exercise powers under paragraph 363(1)(d) of the Act is permissive and the failure to exercise that power does not of itself amount to any breach of any duty, unless the failure is accompanied by special or exceptional circumstance (see Majeed v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 470 at [21]-[22] per Ryan J).
Again reference was made to the authorities referred to earlier in this judgment and it was submitted on behalf of the respondent that in this instance the Tribunal acted reasonably and that there was no unfairness accorded to the applicant.
It is further argued on behalf of the respondent that in this instance the tribunal's findings in relation to the lack of documentary material provided by the applicant were findings reasonably open to the tribunal. Specific reference was made to paragraph 32 of the Tribunal's decision set out earlier in this judgment, and in particular the following sentence:-
“Having regard to the visa applicant's failure to respond to requests to provide documentary evidence that would most likely have been provided to him by VIT before its closure, and his election not to attend the tribunal hearing, the tribunal infers that the documentary evidence would not support the visa applicant's claims.”
It is based upon that finding that the Tribunal then draws the conclusion that the visa applicant did not comply with condition 8202 in semesters 1 and 2 of 2000 and at least semester 1 of 2001.
In my view there is some force in the arguments advanced for and on behalf of the respondent that from a practical point of view, given the non‑attendance of the applicant at the hearing and his own reliance upon documentary material, that it is difficult to concede that the applicant would not indeed have possessed relevant documentary material to corroborate his assertion of satisfactory performance and attendance in the relevant periods.
Nevertheless, it is equally clear to me that this is a somewhat unusual, and rare case, where the education provider has ceased to continue its service. It is further clear that the records which were normally available have not been provided, at least to the department or the Tribunal, and it would be open to the tribunal to find that the applicant himself has been denied the opportunity, due to the circumstances of the closure of the education provider, to obtain records which normally would be readily available.
That leaves open the narrow and specific issue as to whether or not the tribunal in this instance, having regard to the authorities to which I referred earlier in this judgment, could properly be claimed to have erred in failing to pursue the inquiries, either pursuant to the powers under the Act or otherwise pursuant to its obligations which it may generally have as part of its inquisitorial function in these circumstances, which I am prepared to accept may be regarded as exceptional.
The narrow inquiry would only have involved seeking from the first respondent's department an indication as to whether or not notification had been given by the provider pursuant to ss.19 or 20 of the ESOS Act. I do not regard that inquiry as necessarily falling into the category of an inquiry designed to make the case for the applicant, nor necessarily to obtain information which would be beneficial to the applicant's case. At best, the information may properly be regarded as information which has the potential to corroborate the assertion of the applicant that he has performed satisfactorily in the sense that the absence of any notification may at least provide one further piece of evidence upon which the Tribunal could rely.
Whether the Tribunal then, in weighing up that evidence, reaches the same conclusion, based on what could only be described as the adverse inference it drew against the applicant due to his failure to respond to requests to provide documentary evidence, would be a matter for the Tribunal.
Nevertheless, in the course of its inquisitorial process and I accept as part of its discretionary option to exercise the powers under the relevant provisions of the legislation, I am satisfied in this case, having regard to the facts and circumstances, that the inquiry should have been made of the first respondent's department as to the existence or otherwise of the notification under the provisions of the ESOS Act. The failure, I am satisfied, constitutes jurisdictional error. Accordingly the matter should be remitted to a differently constituted Tribunal and the decision set aside.
I was concerned in relation to the issue of whether or not a remittal in this instance would be futile. Whilst I appreciate the submissions made for and on behalf of the respondents that remittal in this instance may ultimately lead to the same conclusion, given what presumably is the current inability of any party to obtain records from the education provider who has now ceased to provide a service, it is my view that obtaining at least an indication from the department that there may be an absence of any notification may of itself provide some evidence tending to corroborate the applicant's assertion that he has performed satisfactorily and attended the course appropriately.
To that extent, in this unusual case, I am satisfied that it would not be futile to remit the matter, and orders will be made accordingly.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 October 2005
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