Achchige v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 577

1. On 5 September 2019 the Tribunal issued its statement of decision and reasons (Tribunal Decision).
2. At paragraph [3] of the Tribunal Decision, the Tribunal noted that the issue before the Delegate was whether the applicant was a genuine temporary entrant pursuant to cl 500.212 of Schedule 2 of the Regulations.
3. At paragraphs [4] - [5] of the Tribunal Decision, the Tribunal noted that pursuant to s 359 of the Act, it wrote to the applicant at the applicant's email address, inviting the applicant to provide further information, in writing, about his entry and stay in Australia as a student and about the course of study being undertaken. The Tribunal further noted that within the letter the applicant was advised that should the information not be provided in writing by 21 August 2019, the Tribunal may make a decision without taking further steps to obtain the information, meaning that the applicant would lose any entitlement he may otherwise have had under the Act to appear and give evidence before the Tribunal.
4. At paragraph [6] of the Tribunal Decision, the Tribunal found that it had no power to permit the applicant to appear as a result of the operation of s 363A, given that the applicant did not provide the information within the prescribed time period and no extension of time had been granted which enlivened ss 359C and 360(3).
5. At paragraphs [7] - [10] of the Tribunal Decision, the Tribunal considered whether it should adjourn the review pursuant to s 363(1)(b) of the Act in order to afford the applicant additional time to provide further evidence. The Tribunal found that the applicant was afforded a fair opportunity to provide the relevant information, having regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 28 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to "indefinitely defer its decision-making processes". Further, the Tribunal relied on the Court's findings in Minister for Immigration and Citizenship v Li [2013] HCA 18, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 and Kaur v Minister for Immigration and Border Protection [2014] FCA 915 to determine the reasonableness of a request for an adjournment.
6. At paragraph [13] of the Tribunal Decision, the Tribunal identified that Part 500 of Schedule 2 of the Regulations set out the criteria for the Visa and that the primary criteria are set out at cl 500.211 to cl 500.218.
7. At paragraph [14] of the Tribunal Decision, the Tribunal identified that the issue before it was whether the applicant satisfied cl 500.211(a) of Schedule 2 of the Regulations which required the Tribunal to be satisfied that the applicant was enrolled in a course of study at the time of its decision.
8. Accordingly, the Tribunal found there was no evidence before it that the applicant was enrolled in a course of study, and concluded that cl 500.211 of Schedule 2 of the Regulations was not met. For those reasons, the Tribunal found the applicant did not meet the criteria for the grant of the Visa and affirmed the decision under review.

1. The applicant applied for judicial review of the Tribunal Decision on 18 September 2019 and filed an Amended Application on 22 January 2025. The Amended Application contained the following grounds for judicial review (without amendment):
   1. The decision of the Administrative Appeal Tribunal is affected by jurisdictional error in that it did not exercise its discretion under se.362(1)(b) of the Migration Act to adjourn the review to allow the review applicant more time and fair opportunity to respond to the notice under sec.359 of the Migration Act.
   2. The decision of the Administrative Appeal Tribunal is affected by jurisdictional error on the basis that it came to the wrong conclusion that it did not provide the procedural fairness to the applicant by not providing another opportunity to respond to the notice under sec.359 of the Act.
   3. The Administrative Appeal Tribunal fell into jurisdictional error on the basis that it came to the wrong conclusion that there was no evidence before the tribunal, the applicant is currently enrolled in a course of study under cl 500.211 and summarily dismissed the application for review, when his Certificate of Enrolment bearing Code 97848112 commencing 15/10/2019 and ending 14/04/2020 on the record.

1. The hearing took place on 19 February 2025.
2. The applicant was represented by Mr Bandara, solicitor for PLS Lawyers and the Minister was represented by Mr O'Shannessy, solicitor for Mills Oakley.

1. A "privative clause decision" as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority's decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76].
2. The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [175].

1. At the hearing the applicant informed the Court that he no longer pressed Ground 3. Accordingly, only Grounds 1 and 2 fall for consideration.

1. It is convenient to address Ground 2 first. By Ground 2 of the Amended Application the applicant submits that he was not accorded procedural fairness as he was not given a further opportunity to provide the information sought in the 7 August Letter. At the hearing the applicant submitted that:

(a) s 357A(3) of the Act provides that the Tribunal must act in a way that is fair and just;

(b) the common law notions of procedural fairness therefore apply;

(c) the denial of a further opportunity for the applicant to provide material was a denial of procedural fairness;

(d) the 7 August Letter does not expressly provide that it is issued pursuant to s 359(1); and

(e) 14 days was an insufficient period of time within which to require the applicant to provide the information requested.

1. Section 357A of the Act (as it was at the relevant time) was headed "Exhaustive statement of natural justice hearing rule" and provided, relevantly, as follows:

(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(3) In applying this Division, the Tribunal must act in a way that is fair and just.

1. Accordingly, pursuant to s 357A(1) of the Act, Division 5- Part 5 of the Act (Division 5) is "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". As such, notions of common law procedural fairness do not apply in relation to the matters Division 5 deals with; although there can be no doubt that the Tribunal is required to apply the provisions of Division 5 in a fair and just way.
2. Division 5, amongst other matters, deals with the following matters:

(a) information the Tribunal may seek (s 359);

(b) requirements for written invitations (s 359B);

(c) failure to give information, comment or response in response to written invitation (s 359C);

(d) when an applicant must be invited to appear before the Tribunal and when an applicant is entitled to appear before the Tribunal (s 360); and

(e) the Tribunal's power to permit a person to do something he or she is not permitted to do (s 363A).

1. The full text of these provisions is set out in Annexure A to this judgement.

1. Whilst the 7 August Letter does not expressly refer to s 359, I consider it clear from the text of the letter that it was an invitation to the applicant to provide information pursuant to s 359(2) of the Act.
2. Firstly, the 7 August Letter invited the applicant, consistent with the language of s 359(2), to give information to the Tribunal.
3. Secondly, the 7 August Letter specified that the information could be given by completing the online form or returning a hard copy of the form. This is consistent with, and was required by, the provisions of s 359B of the Act.
4. Thirdly, the time by which the information was required to be provided by the applicant was specified in the letter as 21 August 2019. Section 359B(2) provides, inter alia, that information requested in writing is to be given by the period specified in the letter, being a prescribed period. Regulation 4.17(4) of the Regulations at the relevant time provided that for the purposes of s 359B(2) the prescribed period, for the present purposes, ends at the end of 14 days after the day the person receives the information (reg 4.17(4)(b)(i)). The 7 August Letter was sent by email to the applicant pursuant to s 379A(5)(b) of the Act and was thereby taken to have been received at the end of the day it was transmitted, being 7 August 2019 (s 379C(5)). Accordingly, 21 August 2019 was 14 days after the day the applicant received the 7 August Letter.
5. Fourthly, the 7 August Letter advised the applicant that if the information was not provided by 21 August 2019 (or any further period as extended), the Tribunal may make a decision on review without taking any further action to obtain information. Further, the letter advised the applicant that in those circumstances he would also lose any entitlement he might otherwise have had under the Act to appear before the Tribunal. This is consistent with the provisions of ss 359C(1), 360 and 363A.
6. Further, the decision of the High Court of Australia in Minister for Immigration and Citizenship v SZKTI & Anor [2009] HCA 30 is instructive in this regard. In that case the High Court considered the operation of s 424 of the Act (as it then was) and related provisions. Relevantly, those provisions provided as follows:

"(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.

(3) The invitation must be given to the person:

(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or

..."

...

...Section 424B relevantly provides:

(a) invited under section 424 to give additional information; or

...

the invitation is to specify the way in which the additional information ... may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2) If the invitation is to give additional information ... otherwise than at an interview, the information... [is] to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3) If the invitation is to give information... at an interview, the interview is to take place:

(a) at the place specified in the invitation; and

(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

Section 424C provides that the failure of any person to respond within time to a formal invitation under s 424(2) does not prevent the RRT from proceeding to make a decision.

1. As can be seen, those provisions are largely similar to the provisions of Division 5.
2. In relation to the powers in ss 424(1) and 424(2) the Court said at [45]:

...Section 424(1) puts into statutory form a power to obtain information by asking questions. This is an obvious power to give to an inquisitorial body. Subject to not interfering with the liberty of another, making an enquiry with no power to compel an answer is not an unlawful activity. No adverse consequences flow against the applicant for review if the applicant, or any other person questioned, fails to co-operate or to give the information sought. By comparison, the specific power in s 424(2) governed by ss 424(3) and 424B, to give an invitation in writing to provide additional information, results in the adverse consequence that an applicant who fails to respond to an invitation in writing is deprived of the entitlement to a hearing. These critical distinctions emphasise the fact that the powers in ss 424(1) and 424(2) are, in law, significantly dissimilar.

(Footnotes omitted).

By way of comparison, the Minister construed s 424(2) as a special or particular method (other than compulsory process) by which the RRT can obtain additional information. Failure by the applicant to respond to an invitation under s 424(2) carries the consequence that the RRT may make a decision on the review without inviting the applicant for review to appear at a hearing (ss 424C(1) and 425(2)(c)). The applicant in those circumstances is not entitled to a hearing (s 425(3)). That consequence distinguished this method of obtaining information from the general informal power to get information under s 424(1). Refusal to provide information under s 424(1) carries no adverse consequences for the applicant in respect of the right to a hearing under s 425...For the reasons which follow, these submissions of the Minister should be accepted despite an argument from the first respondent that emphasised procedural fairness...

1. Accordingly, I consider that the 7 August Letter was clearly an invitation to the applicant to provide information in writing to the Tribunal pursuant to s 359(2) of the Act and that no denial of procedural fairness arises from not allowing the applicant a further opportunity to provide information or appear before the Tribunal. Further, in circumstances where the legislation articulates the consequences should the applicant fail to provide the information within the time frame requested and the applicant was put on notice of those consequences, most specifically that the Tribunal may make a decision without taking further action to obtain the information and that the applicant will lose any entitlement he might otherwise have had to appear before the Tribunal, I consider the Tribunal acted in a fair and just way. As to the submission that 14 days was insufficient time for the applicant to provide the information, as set out above, that timeframe was prescribed by the Regulations, the invitation was sent to the email address most recently provided to the Tribunal and the applicant makes no complaint that it was not received. Further, no request for an extension of time to provide the information was made by the applicant. It is also to be noted that the Tribunal did not make its decision until 5 September 2019, being 15 days after the date by which the applicant was required to provide the information. There is no evidence before the Court, nor did the applicant contend, that he communicated with the Tribunal in that further period prior to the decision or sought to provide the information requested.
2. Ground 2 therefore discloses no jurisdictional error.

1. By Ground 1 of the Amended Application the applicant submits that the Tribunal erred in not exercising its discretion under s 363(1)(b) of the Act to adjourn the review. At the hearing, the applicant submitted that it was the fact that an adjournment was not provided was that which was unreasonable.
2. Section 363(1)(b) provides the Tribunal with the express power to adjourn a review of a decision. It is uncontentious that the Tribunal is required to exercise this power reasonably.
3. The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of extensive analysis by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [63] and the Federal Court of Australia Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh).
4. In Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] Wigney J summarised the relevant principles at [41], which included the following:

(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

(e) Regard can also be given to the outcome of the decision: whether the "decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law": Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].

1. For the reasons that follow, I do not consider that the Tribunal erred in not adjourning the review.
2. As set out above, at paragraphs [4] and [5] of its decision the Tribunal stated that it wrote to the applicant pursuant to s 359 of the Act on 7 August 2019, the invitation was sent to the last address provided by the applicant, the applicant was informed that if the information requested was not provided by the date requested the Tribunal may make a decision without taking further steps to obtain the information and that the applicant would lose any entitlement to appear before the Tribunal.
3. As also set out above, at paragraph [6] of its decision the Tribunal set out that the applicant had not provided the information requested within the prescribed period, that in those circumstances s 359C applies and pursuant to s 360(3) the applicant is not entitled to appear. The Tribunal also set out that the effect of s 363A in those circumstances was that it had no power to permit the applicant to appear.
4. At paragraph [7] - [10] the Tribunal said:

The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

The Tribunal has given consideration to whether it should adjourn the review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection.

In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

(Footnotes omitted).

1. The Tribunal therefore considered whether it should adjourn the review under s 363(1)(b) of the Act and concluded it should not. It considered whether the applicant had a fair opportunity to provide the information and considered relevant case law. The reasons of the Tribunal therefore disclose an evident, transparent and intelligible justification for its decision. Further, at no time did the applicant seek that the review be adjourned. Additionally, as already set out, the Tribunal did not issue its decision for a further 15 days, during which time the applicant did not communicate with the Tribunal or provide, or seek to provide, the requested material. As such, adjourning the review would not have resulted in a different outcome.
2. Ground 1 therefore discloses no jurisdictional error.

1. For the reasons set out above, the Amended Application must be dismissed.
2. The Minister seeks that the applicant pay its costs in the fixed amount of $7,000.00. I note that this is below the amount provided in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

ANNEXURE A

s 359 Tribunal may seek information

(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

(a) except where paragraph (b) applies - by one of the methods specified in section 379A; or

(b) if the invitation is given to a person in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

s 359B Requirements for written invitation etc.

(1) If a person is:

(a) invited in writing under section 359 to give information; or

(b) invited under section 359A to comment on or respond to information;

the invitation is to specify the way in which the information, or the comments or the response may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2) If the invitation is to give information, or comments or a response otherwise than at an interview, the information, or the comments or the response are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3) If the invitation is to give information, or comments or a response at an interview, the interview is to take place:

(a) at the place specified in the invitation; and

(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

(a) a later time within that period; or

(b) a time within that period as extended by the Tribunal for a prescribed further period;

and then the response is to be made at an interview at the new time.

s 359C Failure to give information, comments or response in response to written invitation

(1) If person:

(a) is invited in writing under section 359 to give information; and

(b) does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the information.

(2) If the applicant:

(a) is invited under section 359A to comment on or respond to information; and

(b) does not give the comments or the response before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.

s 360 Tribunal must invite applicant to appear

(1) 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.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 359C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

s 363A Tribunal does not have power to permit a person to do something he or she is not entitled to do

If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.