ZHENG v Minister for Immigration
[2015] FCCA 298
•17 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHENG v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 298 |
| Catchwords: MIGRATION – Student (Temporary) (subclass 573) Higher Education Sector visa – cancellation – whether decision to cancel is affected by jurisdictional error – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958, ss.116, 116(1), 140, 363, 357A, 359, 360, 360A, 361, 362, 363, 474(1) Migration Regulations 1994, rr.2.43 2.43(2)(b), conditions 8202, 8202(2), 8202(3), 8202(3)(a) of schedule 8 |
| Arora v Minister for Immigration [2014] FCCA 2091 Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304 Patel v The Minister for Immigration and Citizenship [2012] FCA 958 |
| Applicant: | ZHIXIONG ZHENG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 210 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 29 January 2015 |
| Date of Last Submission: | 29 January 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 17 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Yu |
| Solicitors for the Applicant: | Pi-En Hsu Lawyers and Migration Agents |
| Solicitor for the First Respondent: | Mr Lucey |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 10 March, 2014 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 210 of 2014
| ZHIXIONG ZHENG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his application filed on 10 March, 2014, the applicant seeks judicial review of a determination of a migration review tribunal made on 11 February, 2014 wherein the tribunal affirmed a decision of a delegate of the first respondent to cancel the applicant’s Student (Temporary) (subclass 573) Higher Education Sector visa.
The first respondent opposes the application. The second respondent enters a submitting appearance.
This matter had its first court date before a judge of this Court on 9 April, 2014. At that time the Court ordered that the matter be listed for hearing on 18 December, 2014. Directions were made for the preparation of the matter for hearing, including orders requiring the filing and service of written outlines of submission by each of the parties. The applicant filed written submissions on 7 November, 2014. In addition, the applicant filed an affidavit by himself and an affidavit by his solicitor both on 1 December, 2014. The respondent filed an outline of submissions on 11 December, 2014.
The matter came before me for hearing on 18 December, 2014. The applicant sought and obtained leave to file a further affidavit sworn by Ziqi Gao, interpreter. Argument ensued as to whether the applicant could rely upon the affidavit of his solicitor and his affidavit both filed 1 December, 2014. For reasons that I delivered on that day, I refused to permit the applicant to rely on his solicitor’s affidavit or the applicant’s affidavit filed on 1 December, 2014.
Again, for reasons that I delivered on that day the application was adjourned to 29 January, 2015 for hearing. Thereafter, the applicant filed an amended outline of submissions on 19 January, 2015 (which appears to have been re-filed on 22 January, 2015). The respondent filed a supplementary outline of submissions on 23 January, 2015.
Background
The applicant was granted a Student (subclass 573) visa on 16 December, 2010.
On 20 February, 2011 the applicant came to Australia to study a Master of Food Studies degree at The University of Queensland.
On 24 January, 2013 the university certified that the applicant was not achieving satisfactory course progress in relation to his Master of Food Studies.
On 19 January, 2013 the applicant was issued with a notice of intention to consider cancellation under s.116 of the Migration Act 1958.
On 1 March, 2013 a delegate of the first respondent cancelled the applicant’s visa on the basis that he had not complied with condition 8202(3) of his visa.
The applicant applied for a review of that decision by a migration review tribunal on 14 March, 2013 however, on 11 February, 2013 the tribunal decided to affirm the delegate’s decision.
The tribunal’s decision
At the outset, the tribunal recorded that there had been a significant change in the law between the date of the delegate’s decision to cancel the applicant’s visa and the date upon which the tribunal was called on to determine the review application. At the time of the delegate’s decision, reg.2.43(2)(b) of the Migration Regulations 1994 provided the grounds upon which the first respondent must cancel a visa for breach of a visa condition. The only exception to cancellation was where the applicant was able to establish that the non‑compliance was due to exceptional circumstances beyond the visa holder’s control. In the absence of exceptional circumstances, cancellation was mandatory.
However, by the time of the hearing and decision by the tribunal, the Migration Regulation Amendment Legislation 2013 (No.1) had come into effect. Regulation 2.43 was repealed and cancellation of the applicant’s visa for a breach of condition 8202(2) was subject to a broad and general discretion to cancel provided for in s.116(1) of the Act. The law as provided for by s.116(1) and reg.2.43(2)(b) as it applied at the time of the delegate’s decision, was no longer applicable: Singh v Minister for Immigration and Border Protection [2014] FCCA 1837; Arora v Minister for Immigration [2014] FCCA 2091.
The first question to which the tribunal turned its mind was whether the applicant complied with condition 8202 of Schedule 8 to the Migration Regulations1994. The tribunal recorded that the applicant did not dispute that on 24 January, 2013 he was certified by The University of Queensland as not achieving satisfactory course progress in relation to his course – Master of Food Studies. The tribunal determined that the certification from The University of Queensland engaged condition 8202(3) and on that basis, the tribunal found that the applicant did not comply with condition 8202(3)(a). The tribunal therefore found that circumstances had arisen in which the first respondent (and therefore the tribunal) might cancel the applicant’s visa.
The balance of the tribunal’s decision is devoted to a consideration of the matters that the tribunal thought were important to the exercise of that discretion. The tribunal had regard to the first respondent’s policy guidelines and in particular:
a)The purpose of the visa holder’s travel to and stay in Australia;
b)The circumstances in which the grounds of cancellation arose (for example whether extenuating or compassionate circumstances outweigh grounds for cancelling the visa);
c)The degree of hardship that may be caused to the visa holder and any family members;
d)The visa holder’s past and present behaviour towards the department;
e)Whether there are persons in Australia whose visa would, or may, be cancelled under s.140;
f)Whether Australia has obligations under relevant international agreements that would or may be breached as a result of a visa cancellation; and
g)Any other matter that the visa holder raises.
Of those matters, it was the second which attracted the most attention from both the applicant and the tribunal. In that respect, the applicant claimed that he was denied an opportunity to lodge an internal appeal to the university because the “notice of failure” and reminder that the applicant admitted that the university had sent to him, was sent by email on 6 December, 2012 and 8 January, 2013. The applicant claimed before the tribunal that he was still suffering the mental effects of a car accident and was unable to concentrate and therefore did not check his email regularly. Whilst the applicant acknowledged to the tribunal that email was the usual method of correspondence with the university and that he was aware that his academic progress was poor, he said that he was feeling unwell and he did not want to check his emails because he was afraid of what he might find. He said that after he received the s.20 notice issued by the university, he checked his email account and saw the “notice of failure” and reminder that had been sent by the university.
The tribunal did not accept that those circumstances gave rise to any grounds for the tribunal not to exercise its discretion to cancel the applicant’s visa. The tribunal did not think there was any evidence of any error or omission by the university in communicating warning notices by email in circumstances where that was the usual method of communication between the applicant and the university. The tribunal found that the evidence showed that the applicant failed to check his emails at the time not because he was unwell but because he knew that his academic results were unsatisfactory.
The second significant matter to which the tribunal gave attention was a claim by the applicant that he was affected by the sequelae of a car accident which occurred on 10 April, 2012. He claimed that the accident triggered a range of medical conditions including agoraphobia, anxiety and depression which adversely affected his academic progress in 2012 leading to his certification for unsatisfactory progress.
In respect of that claim the tribunal noted that:
a)there was no direct evidence of the applicant being involved in a car accident;
b)the applicant provided photocopies of photos showing damage to a vehicle and a written estimate of repairs to the vehicle;
c)however, the name of the owner of the vehicle on the estimate form was blank when the applicant gave it to the tribunal. The applicant said that the vehicle belonged to his uncle who bought the car for the applicant’s use.
The tribunal considered that the applicant’s failure to explain that the car belonged to his uncle and the provision of the repair invoice with the name of the owner of the vehicle deleted or not provided, was misleading. The applicant provided to the tribunal details of transactions from his bank account which he claimed showed the payment of money from the insurer of the motor vehicle for the cost of repairs to the car on 18 May, 2010. However, the tribunal sought but did not receive an explanation as to why the money was paid to the applicant rather than his uncle, given that his uncle was the owner of the vehicle, according to the applicant.
The tribunal noted that there was no letter from the insurance company confirming the details of the payout – to whom it was paid or in relation to which claim. Moreover, there was no evidence from the applicant’s uncle. When the tribunal asked about some evidence from his uncle, the applicant told the tribunal that he did not want his family to know about his illness.
There were other matters that caused the tribunal concern. The applicant said that there was no one else in the car at the time of the accident, he was not taken to the hospital or treated by a doctor at the time of the accident and the police were not called. The tribunal thought those matters were inconsistent with the applicant’s evidence that the accident was “serious” and the applicant’s own GP’s reference to the accident (based on the applicant’s information) as “life threatening”. The applicant gave to the tribunal explanations for those difficulties but the tribunal thought that those explanations sounded contrived.
The applicant relied upon some corroborative evidence from Mr Gao Mr Lin. They told the tribunal that while they had no direct knowledge of the accident, the applicant had told them about it soon after it happened. Mr Lin told the tribunal about the applicant breaking his glasses, which the tribunal thought was consistent with other evidence the applicant had provided.
The tribunal specifically referred to some medical evidence relied upon by the applicant and in particular the evidence of Dr Ip and Dr Chen. The tribunal placed no weight on that evidence because their evidence relied upon accounts from the applicant about the accident given by him to them long after the event and after the applicant was aware that his visa was at risk of being cancelled.
The tribunal considered the applicant’s claims that as a result of the accident he suffered from agoraphobia, anxiety and depression. The tribunal analysed the applicant’s evidence about that and challenged the applicant’s evidence about that having regard to some inconsistencies that the tribunal considered existed with other evidence. The tribunal was not satisfied that the applicant satisfactorily explained those inconsistencies.
The tribunal dealt with the applicant’s claim that a research project upon which he was working as part of his degree was “dropped” by him in July, 2012 because of his health problems. The applicant claimed that he did that with the agreement of his “professor” who encouraged him to look after himself. The applicant claimed that the university was aware of his health problems and was happy with his progress. However, the tribunal recorded that those claims were not consistent with the applicant’s evidence that he did not get a letter of support from his “supervisor” because the supervisor of the applicant’s lab work was not sympathetic and forced him to do the lab work even though the applicant was is a “bad situation” because the supervisor wanted to finish the project.
As to the applicant’s claim about the car accident and his subsequent injuries the tribunal summarised the position as follows:
23. The Tribunal considers the applicant’s evidence in relation to the car accident to be unsatisfactory. Even if the Tribunal were to accept that the applicant was involved in a car accident on 10 April 2012 as claimed, it considers that the applicant has exaggerated both the seriousness of the accident and any harm he suffered as a result. For the reasons already given, the Tribunal does not accept that the applicant has raised any matters circumstances in which the grounds for cancellation arose outweigh the grounds for cancelling the visa.
The tribunal affirmed the decision under review.
The grounds of review
Before setting out the grounds of review, it is necessary to record that the applicant’s initial written submissions and then his subsequent amended written submissions go beyond the grounds of review specified in his application. Although the first respondent objected to the applicant expanding the grounds of his application in his written submissions, I will nonetheless deal with those expanded grounds.
Secondly, and as the first respondent points out, the applicant’s submissions proceed on a legally incorrect basis. The applicant’s submissions are premised on the basis that reg.2.43 (discussed above) applied to the decision made by the tribunal and that the tribunal was obliged to apply the law as set out in reg.2.43. That is clearly erroneous. The tribunal’s discretion was at large.
The tribunal recorded that there were no matters specified in the Migration Act or the Regulations that were required to be considered by the tribunal when it considered cancelling the applicant’s visa. The tribunal was clearly correct to so observe. In Kaur v Minister for Immigration and Border Protection [2014] FCA 1046 Mansfield J suggested that neither s.116 nor the Regulations set out any mandatory relevant considerations for a tribunal when exercising the discretion conferred by s.116(1)(b) of the Act. His Honour noted that a Procedures Advice Manual existed to guide the first respondent’s delegates but his Honour recorded that a tribunal is not obliged to recite verbatim the matters in the manual. In the present case, the tribunal considered that it should have regard to the matters set out in the Procedures Advice Manual that bore on the discretion conferred by s.116(1)(b) of the Act.
However, in Kaur (above) Mansfield J further observed that a tribunal was required to understand or engage with all the matters which an applicant put forward as to why the discretion should be exercised in the applicant’s favour.
The first ground of review specified by the applicant is in the following terms:
The Tribunal erred in that it failed to take into consideration the issue whether the applicant is deprived of natural justice due to the education provider’s failure to send the important documents by ordinary mails or registered mails.
This ground is clearly a reference to the university seeking to engage with the applicant prior to the issue of the s.20 notice by email. I have recorded the applicant’s case about those emails above. He now argues that the rules of natural justice suggest that he must be given every opportunity to put his or her case and that he needed to be given notice of any adverse material that was going to be taken into account against him. In this respect, he refers to Division 5 of Part 5 of the Migration Act which deals with the conduct of reviews by a migration review tribunal, including specifically s.357A.
The applicant’s argument on this ground, however, is confused and confusing. The provisions of Division 5 of Part 5 of the Act do not apply to the university’s decision to send him a notice and a reminder about his academic performance. Those provisions have no relevance to the university’s policy about academic performance.
Further, the rules of natural justice, if they apply at all, do not require the applicant to be given every opportunity to put his case, but rather, only a reasonable opportunity.
He argues that he did not check his emails regularly over the period in which the university sought to engage with him. But as the tribunal recorded, his own evidence to the tribunal was that he did not check his emails because he was aware that his academic progress was poor and he did not want to check his emails “because he was afraid of what he might find”.
The applicant argues that had he received the relevant notices from the university he would have lodged an internal appeal. He argues that “if he had been given an opportunity to present his case in the internal appeal, he might not have been reported to the immigration department as his unsatisfactory progress was resulted from his medical conditions including agoraphobia, anxiety and depression which were triggered by a car accident occurred on 10 April 2012”.
The difficulty with this argument is that the applicant was provided with that opportunity. That he should choose not to check his emails as he told the tribunal he did, is a matter entirely for him. What is important is that he was given the opportunity to respond to the matters raised in the notice that the university sent to him. He was given that opportunity by the university but for his own reasons he chose not to take it up.
In any event as the first respondent points out, the tribunal was not entitled to look behind the validity of the university’s certification: Hassan v The Minister for Immigration and Citizenship [2012] FCA 816; Patel v The Minister for Immigration and Citizenship [2012] FCA 958 at [57] – [58], [74]. Once the university has issued the relevant certification, condition 8202(3) has not been complied with and the power to cancel the applicant’s visa is enlivened.
In my view, this ground has no merit.
The second ground of review is expressed in the following terms:
The Tribunal erred in that it took irrelevant factors into consideration. The Tribunal, while determining whether the applicant’s medical conditions were exceptional circumstances that affected his ability to study, focused on timing issues and other irrelevant matters such as who owned the car, why the money for the car damage was paid to the applicant instead of the owner of the vehicle.
The critical issues of fact for the tribunal were whether the applicant had been involved in a car accident and whether he had suffered the sequelae claimed by him as a result of that accident. The tribunal was not bound to accept uncritically anything said by the applicant. The tribunal was entitled to test the applicant’s claims. The tribunal did so by reference to material which was likely to be of some assistance in assessing the applicant’s claims about the accident and its aftermath. The matters which attracted the attention of the tribunal, but which the applicant now says were irrelevant, were matters which clearly went to assisting the tribunal to assess the applicant’s credit. The tribunal was entitled to be concerned about the circumstances of the accident and was entitled to be sceptical about it given the circumstances described by the applicant concerning the accident, the ownership of the motor vehicle and the repairs to the vehicle that were allegedly carried out.
Moreover, as the first respondent points out, this ground of review relies upon an erroneous view of the law. The applicant did not need to establish that there were exceptional circumstances that affected his ability to study before the tribunal had a discretion not to cancel the applicant’s visa. Rather, the tribunal had a discretion to cancel the applicant’s visa if in all of the circumstances it thought it should do so. As the first respondent points out, the matters said by the applicant to be irrelevant were explored by the tribunal in the course of assessing the veracity of the applicant’s credibility and his version of events and assessing whether the tribunal should exercise its broad and general discretion under s.116(1)(b) of the Act. More than being “perfectly permissible” as the first respondent submits, it was the duty of the tribunal to undertake those matters as part of the hearing process.
The applicant submits that the tribunal mistakenly believed that the applicant’s supervisor and his tutor was the same person. By doing so, the applicant submits that the tribunal fell into error because it took into account an irrelevant consideration. In this respect the applicant suggests that paragraph 22 of the tribunal’s decision record reveals the error. That paragraph is in the following terms:
22. The applicant said that he dropped the research project in July 2012 because of his health problems with the agreement of his professor who encouraged him to look after himself. This suggestion that the university was aware of his health problems and was happy with his progress is not consistent with the applicant’s his evidence at the hearing that he did not get a letter of support from his supervisor because the supervisor of the lab work was not sympathetic and forced him to do the lab work even though the applicant was in a bad situation, because the supervisor wanted to finish the project.
The applicant’s submissions, explained more fully in oral submissions before me, suggest that the tribunal member failed to draw a distinction between the applicant’s “supervisor” and his “tutor”. The applicant’s supervisor was a professor whereas his tutor was not.
The applicant explains in his written submissions that both “supervisor” and “tutor” can be translated in the same way in Chinese. They have similar meanings in Mandarin.
But whether that is the case or not, what the tribunal did in paragraph 22 of that decision record is to record precisely the evidence given to the tribunal by the applicant. The applicant points me to the transcript of the hearing before the tribunal, page 17 line 27, where there is recorded a conversation between the member and the applicant. The transcript is as follows:
Member: What about your supervisor?
Applicant: (in Chinese)
Interpreter: My upervisor is called S. He forced me to do the labwork. I told him I was unwell. But what he wanted was to finish the project. Back then I was in a really bad situation and condition. He didn’t seem to care about it.
Representative: There is missing translation. He also said that he was ashamed.
Interpreter: He said “he’s ashamed to tell his supervisor about his condition” sorry about that.
The applicant submits that the interpreter interpreted “supervisor” in a way which caused the applicant to believe that the tribunal was asking about the applicant’s “tutor” and that when the applicant answered in Chinese, the interpreter interpreted his answer as “supervisor” rather than “tutor”.
Whether that is so or not (and I note the applicant’s representative did not interrupt to correct the interpreter as he did about the missing translation), the tribunal’s recitation of the evidence before it was not incorrect. Nor was it misleading. The purpose of the tribunal’s reference to that evidence was to demonstrate an inconsistency between the applicant’s evidence in that respect and what the applicant claimed was the agreement of his professor. Whether the tribunal and the interpreter used the words “supervisor” or “tutor” in the relevant exchange, the purport of the evidence was the same. And it was, at least according to the tribunal, inconsistent with the applicant’s evidence about the agreement that he had with his professor.
Moreover, even if the tribunal has made the error that the applicant suggests, the error is an error of fact. As the first respondent points out those factual findings are of an “intra-mural” nature and there is no jurisdictional error in making such a wrong finding of fact: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [37] – [39].
This ground of review has no merit.
The applicant’s third ground of review is expressed as follows:
The Tribunal erred in that it failed to make inquiries to ascertain whether the applicant did in fact advise his education provider of his medical conditions when it had serious concerns
The applicant argues that the tribunal’s role is inquisitorial. By reason of s.363 of the Act, the tribunal has power to investigate and inquire into anything it thought necessary with respect to the review before it. He argues that because he had told the tribunal that he had seen a psychiatrist on no less than 10 occasions and because the applicant and his representative informed the tribunal that Dr Chen (the psychiatrist) was unable to attend the hearing to give evidence due to personal reasons, the tribunal ought to have contacted the doctor to speak with Dr Chen about the applicant.
The applicant points out that during the hearing the following transpired:
“Tribunal: I’m not going to have another hearing for that. That’s up to you now to provide evidence from Dr Chen if you wish to. I still have to say to you Mr Zheng. I will consider any evidence you get from Dr Chen. But the problem for me still is she didn’t see you until 12 months after the accident and 5 months, or 4 months at least after the period that I’m interested in. So I have to weigh up anything that she tells me against the timing of it, because I don’t know what she’s going to write and it seems to me that it’s not going to assist me a great deal about the period I’m most concerned about, which was the events leading up to why you get certified by The University of Queensland and what should happen now. You see what I’m saying there”
Moreover, the applicant points to statements made by the tribunal member which suggests that certain information might be important:
“Tribunal: I understand what you are saying. I notice that there are some people whom you might have letters from, eg you uncle, professor B or somebody from university to confirm that you spoke to them about your problem etc. Why don’t you have that information? I would have thought that you were living with your uncle.”
The applicant argues that pursuant to s.359 of the Act, the tribunal has power to seek information and given the significance of evidence from the persons identified by the tribunal, it ought to have obtained information from those persons itself.
The first respondent submits that ss.359 and 363 of the Act are permissive only. Their operation must be read subject to the other provisions within Part 5 Division 5 of the Act. The submission is plainly correct. The first respondent argues that once regard is had to ss.360, 360A, 361, 362, the tribunal has done all that it is required to do.
The tribunal wrote to the applicant and invited him to appear before the tribunal. In his response to the hearing invitation, the applicant requested that the tribunal take evidence from Xiang Yu Gao and Min Xia Lin. The applicant pointed out that:
“PS: we are still contacting Zheng’s doctor to know if she can appear to testify.”
The response to the hearing invitation states:
“Unless you advise the tribunal otherwise we will assume that you will make arrangements for any witnesses to be available to given evidence”.
Subsequently, on 29 January, 2014 the applicant’s representative wrote to the tribunal in the following terms:
“Our client has invited his doctor to be his expert witness in the MRT but she cannot come for some reason. For the purpose of verifying Mr Zheng’s medical condition, the contact number of Mr Zheng’s doctors clinic is [number supplied]. My client agrees to authorise the tribunal to request his personal information from the clinic.”
The first respondent points me to Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377. In that case, Katzmann J pointed out at [48] that it was for the applicant to provide evidence in support of her claim in that case. The first respondent submits that this is an analogous case. If there was evidence to support the applicant’s claims, he ought to have provided it. I agree.
More importantly, I accept the first respondent’s submission that the evidence from Dr Chen was not likely to be of any assistance. The tribunal did not accept the applicant’s evidence regarding the alleged car accident. The tribunal said that even if the car accident occurred, it considered that the applicant had exaggerated both the seriousness of the accident and any harm he suffered as a result. As the first respondent submits, the tribunal was alive to the evidence which Dr Chen could have given but was unlikley to give any weight to what Dr Chen might say given that the applicant did not consult Dr Chen until 1 May, 2013, some 12 months following the car accident.
Further, I accept the first respondent’s submission that a duty to inquire further was not imposed upon the tribunal in the sense explained in SZIAI v Minister for Immigration & Anor [2008] FMCA 788. I accept that given the conclusions reached by the tribunal regarding the veracity of the applicant’s version of events, it was unlikely that anything said by Dr Chen would bear upon a “critical fact”. Information will be critical or centrally relevant if it is capable of making a difference to the outcome of the proceedings: Minister for Immigration & Citizenship v Dhanoa (2009) 180 FCR 510 and Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377.
The applicant places considerable emphasis on Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304. In particular he points to the judgment of Kenny and Lander JJ at [36] where there honours say:
[36] The provisions of Pt 5 of the Act, including ss 361(3) and 366D, emphasise that the tribunal’s process is essentially inquisitorial in nature. A review by the tribunal is not to be conducted on the adversarial model of the courts. Under the regime established by the Act it is for the tribunal, not the applicant, to gather the evidence for the purposes of a review and to decide the manner in which the evidence will be taken. The use of the word “obtain” in s361(2) and (2A) must be understood in this context. In this context it is the tribunal, and not the applicant, who “obtains” or “acquires” the evidence for the purposes of a review, whether or not the evidence is volunteered or compulsorily acquired. Unlike a court, the tribunal does not “receive” evidence from a party to the proceeding. Only the tribunal can examine a witness whose oral evidence the tribunal has determined to obtain. On the respondents’ construction, the tribunal would lose control of a function that defines its inquisitorial character. One may illustrate this by the example discussed in the argument of the appeal. If, for example, there were a hundred witnesses to a ceremony of marriage and an applicant gave notice that he wanted to call them all – to establish that he had been through the ceremony – then, assuming this was a relevant fact and they all attended the hearing, on the respondents’ argument, the tribunal would be obliged to hear from all hundred witnesses. Plainly enough, this would deny the tribunal’s inquisitorial nature and defeat the objectives set out in s 353(2) of the Act.
The applicant submits that by reason of that passage, the obligation on the tribunal in this case was clear. Dr Chen’s evidence was important as far as the applicant was concerned. He had indicated to the tribunal that Dr Chen was not available to attend in person but had invited the tribunal to contact her by telephone. In those circumstances, the applicant argues that the tribunal’s failure to do so amounts to a jurisdictional error because it has not conducted the type of hearing that is envisaged by the Migration Act.
The first respondent submits that their Honours reasons set out above ought to be read in context. In particular, that paragraph ought not be taken in isolation and ought to be read with the paragraphs around it. I agree. In paragraph [38] of the same judgment, their Honours said:
[38] It does not follow from this, however, that the appeal in this case should be upheld. By virtue of s 361(2), the Tribunal is obliged to have regard to any notice given by an applicant under s 361(2) or (2A) of the Act. This means that the Tribunal must genuinely apply its mid to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. As the respondents’ counsel said, the authorities establish that the invitation to appear before the Tribunal must be “real and meaningful and not just an empty gesture”. It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal. These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”: see s 353(1). The tribunal must bear in mind this statutory objective when considering the weight to be given these matters.”
(citations omitted)
The applicant did not demonstrate to the tribunal that Dr Chen had been provided with any written authorisation to divulge the applicant’s medical information to the tribunal. Moreover, the information to be provided by Dr Chen was not evidence which the tribunal determined would have any weight. The tribunal’s decision record reveals that it turned its mind to the evidence which Dr Chen might potentially give but determined that that evidence would have no weight having regard to the fact that Dr Chen’s consultations with the applicant did not take place until a year after the relevant motor vehicle accident. Moreover, Dr Chen’s opinions must necessarily rely upon the applicant’s reporting of those events. For the reasons already discussed, the tribunal had difficulty with the applicant’s credibility concerning those claims.
In my view, ground three has no merit.
Conclusion
In my view, the decision of the tribunal is not attended by jurisdictional error. It is a privative clause decision for the purposes of s.474(1) of the Act and it is not reviewable.
Accordingly, the application filed on 10 March, 2014 is dismissed with costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 17 February 2015
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