The first respondent pay the appellant's costs of the appeal.
By 4.30pm (AWST) on 17 January 2025:
the appellant file an agreed minute of proposed orders; or
the appellant and the first respondent each file a minute of proposed orders and short outline of written submissions (limited to 5 pages) in support of the proposed orders,
to be made in lieu of the orders made by the Federal Circuit and Family Court of Australia (Division 2).
The appeal be relisted on a date to be fixed for further or other orders following from paragraph 3 of these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FEUTRILL J:
[2]
Introduction
This is an appeal from the judgment of a judge of the Federal Circuit and Family Court of Australia (Division 2). The primary judge dismissed the appellant's application for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a student visa (Subclass 500).
There is a single ground of appeal raising the issue of whether the Tribunal's failure to consider certain financial information the appellant provided to it was material and a jurisdictional error. Relevantly, the Tribunal was required to consider two criteria in its review of the delegate's decision. The first criterion was whether the appellant had given the Minister evidence of her financial capacity. The Tribunal's error was relevant to that criterion. The second criterion was whether she was enrolled in a course of study. The appellant was not enrolled at the time of the Tribunal's decision and, therefore, could not satisfy that criterion.
The Minister contends that the Tribunal's failure to consider financial information was not a jurisdictional error because, even if the Tribunal had considered that information and had been satisfied that the appellant met the financial capacity criterion, she could not, at the time of the Tribunal's decision, satisfy the enrolment criterion. The appellant contends that, absent the error, the Tribunal could have adjourned the hearing to allow her to provide evidence of her enrolment because, at the time of the Tribunal's decision, she had been offered a place in a course and merely had to accept that offer and pay the tuition fees for the first semester in order to obtain a certificate of enrolment. That is, absent the error, there was a realistic possibility that the outcome of the Tribunal's review of the delegate's decision could have been different.
The appeal raises a similar question to that which was before the High Court (and decided against the visa applicant) in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123. The Minister contends that the facts of this case are materially the same and, therefore, the appeal must be dismissed. The appellant contends the facts of this case are distinguishable and, on the facts of this case, the Tribunal's error was jurisdictional.
For the reasons that follow, I agree that the facts of Hossain are distinguishable and that the Tribunal's error in this case was material and, therefore, it was a jurisdictional error. Accordingly, the appeal should be upheld and the primary judge's orders set aside. There should be an order setting aside the Tribunal's decision, however, having regard to the recent abolition of the Tribunal and its replacement by the Administrative Review Tribunal, I will hear the parties on the appropriate form of orders to give effect to the conclusion that the Tribunal fell into jurisdictional error. Otherwise, the Minister should pay the appellant's costs of the proceeding below and the appeal.
[3]
Legislative framework
Section 29(1) of the Migration Act 1958 (Cth) gives the Minister power to grant a non-citizen a visa to travel to and enter, or to remain in, Australia. There are prescribed classes of visa and regulations may prescribe the criteria for visas of a specified class: s 31(1) and s 31(3). A non-citizen who wants a visa must apply for a visa of a particular class: s 45(1).
After considering a valid application for a visa, the Minister must grant the visa 'if satisfied' of the various matters identified in s 65(1)(a) of the Act. One of the matters of which the Minister (or his delegate) must be satisfied is that the criteria prescribed by the Act or the Migration Regulations 1994 (Cth) for the visa have been met: s 65(1)(a)(ii). If the Minister is not satisfied of the matters identified in s 65(1)(a), the Minister is to refuse to grant the visa: s 65(1)(b).
The power to grant the visa is non-discretionary in that the Minister is under an obligation to grant the visa 'if satisfied' of the various matters identified in s 65(1)(a). The satisfaction of the Minister (or the delegate or Tribunal on review) that the prescribed criteria have been met is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa and is a 'jurisdictional fact': Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [37] (Gummow and Hayne JJ).
Regulation 2.01(1)(a) of the Regulations provides that the prescribed classes of visas include the classes set out in Sch 1 to the Regulations. Clause 1222 of Sch 1 prescribes the Student (Temporary) (Class TU) visa. The criteria for the prescribed classes of visa are located in Sch 2 to the Regulations: reg 2.03(1). The criteria for the subclass 500 visa for which the appellant applied included 'primary criteria' (cl 500.2) and 'secondary criteria' (cl 500.3).
The 'primary criteria' are to be satisfied at the time of the decision. Relevantly, cl 500.211 provides that the applicant must be enrolled in a course of study and cl 500.214 provides (notes omitted):
500.214
(1) The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2) While the applicant holds the visa, sufficient funds will be available to meet:
(a) the costs and expenses of the applicant during the applicant's intended stay in Australia; and
(b) the costs and expenses of each member of the applicant's family unit (if any) who will be in Australia.
(3) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
(4) The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).
The Tribunal considered the applicable legislative instrument as to evidence of the financial capacity requirement in cl 500.214 was Migration (LIN 19/198: Evidence of financial capacity - Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (Cth). Relevantly, LIN 19/198 provided (notes omitted):
6 Subclause 500 (Student) visa - primary applicants
(1) For the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, a primary applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsections (2), (3), (4), (5) or (6).
(2) The evidence of financial capacity
(a) is in the form specified in section 10; and
(b) demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:
(i) travel expenses; and
(ii) the following living costs and expenses:
(A) if the primary applicant intends to stay in Australia for a period of 12 months or more - AUD21,041 (annual living costs); and
(B) if the primary applicant intends to stay in Australia for a period of less than 12 months - the pro rata equivalent of annual living costs, calculated as specified in section 11; and
(iii) the following course fees, minus any amount already paid:
(A) if the duration, or the remainder, of the primary applicant's period of study in Australia is less than 12 months - the fees for the course of study or the remaining components of the course of study; or
(B) if the duration, or the remainder, of the primary applicant's period of study in Australia is more than 12 months - course fees for the first 12 months of the period study in Australia; and
…
(3) The evidence of financial capacity:
(a) is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and
(b) demonstrates that the primary applicant's parent, spouse or de facto partner has a personal annual income, in the 12 months immediately before the application is made, that is:
(i) if there is no secondary applicant- at least AUD62,222; or
(ii) if there is a secondary applicant - at least AUD72,592.
…
10 Evidence of financial capacity
The following forms of evidence of financial capacity are specified:
(a) money deposit with a financial institution;
(b) loan with a financial institution;
(c) government loans;
(d) scholarship or financial support.
[4]
Background
The appellant is a citizen of Malawi and first arrived in Australia on 25 December 2005. She enrolled in a number of courses of study in Australia, many of which were cancelled or not completed. On 12 February 2019 the appellant applied for a further student visa to complete a Bachelor of Social Science course. On 13 May 2019 a delegate of the Minister refused to grant the student visa under s 65 of the Act on the basis that the appellant had not provided sufficient evidence of access to funds in the form required by cl 500.214 in Sch 2 of the Regulations. On 17 May 2019 the appellant applied to the Tribunal for the review of the decision of the delegate.
Pending the determination of the Tribunal's review, the appellant was granted a bridging visa. Further, notwithstanding the delegate's view that she did not have sufficient access to funds to complete the relevant course, in December 2019 the appellant completed the Bachelor of Social Science course. After December 2019 the appellant remained in Australia on the bridging visa, but during 2020 was not enrolled in any courses for further study.
Almost a year after she had completed the Bachelor of Social Science course and about 18 months after she had applied for review of the delegate's decision, on 17 September 2020, the Tribunal invited the appellant to a hearing on 23 October 2020 and requested the appellant to provide a copy of her confirmation of enrolment and further information about her financial position. On 21 September 2020 the appellant requested additional time to respond to the request for further information about her financial position. The Tribunal responded to the additional time request and asked for the information to be provided seven days before the Tribunal hearing, which was scheduled for 23 October 2020.
On 6 October 2020 the appellant supplied the Tribunal with documents in response to the request for further financial information. These documents included financial information comprising a letter of financial support for the appellant written by Dean Griffiths, Mr Griffiths' identity documents and certain bank statements. The bank statements comprised an account held with Bendigo Bank in the name of D S Griffiths recording a balance of about AUD17,000 as of 21 September 2020 and what appear to be two accounts held with Rural Bank in the name of G S & C M Griffiths & Son recording balances of about AUD71,500, as of 6 October 2020, and AUD41,000, as of 16 September 2020, respectively. Mr Griffiths said in a letter supporting the appellant's visa application that he was a farmer and he and his mother traded as G S & C M Griffiths & Son.
On 16 October 2020 the appellant notified the Tribunal that she had enrolled in a Bachelor of Social Work degree, but her application had not then been accepted and would take about four weeks to process. On 22 October 2020 the appellant sent the Tribunal a letter of offer and a scholarship offer she had received from Edith Cowan University. The letter of offer indicated that the course fees were $12,320 per semester and the total indicative tuition fees were $49,280. The letter also contained instructions regarding the manner in which the appellant was to accept the offer. Relevantly, the appellant was able to accept it online and pay the first semester tuition fees. After taking those steps, the offer letter indicated that the university would issue a confirmation of enrolment.
On 23 October 2020 the Tribunal held a hearing and made an oral decision affirming the decision of the delegate. On 2 November 2020 the appellant requested the Tribunal to provide written reasons. On 11 November 2020 the Tribunal provided the appellant with a written decision record (T).
On 25 November 2020 the appellant filed an originating application in the Federal Circuit Court, as that court was then known, for judicial review of the Tribunal's decision. On 19 August 2022 the primary judge dismissed that application and published reasons for his judgment (PJ). On 15 September 2022 the appellant commenced this appeal.
[5]
Tribunal's reasons
The Tribunal's reasons commence by identifying the requirement of cl 500.214 of Sch 2 of the Regulations and LIN 19/198 to give the Minister evidence of financial capacity (T [1]). The Tribunal said:
You were required to provide the Minister with evidence of sufficient funds to meet your travel expenses, your living costs, and your annual course fees. The Department [has] calculated your total costs to be expenses of Australian $21,290.
You provided a letter of financial support from a gentleman called Dean Griffiths. I note that you nominated Mr Griffiths as a witness for you today. I have not received evidence from him for reasons I will outline. You provided lending application review forms from the Rural Bank in the name of Coral Griffiths and Dean Griffiths. A farm lease agreement, a payslip, and a list of assets.
But as the documents did not show a dated current available balance of funds they could not be expected. The delegate was not satisfied that you have provided evidence of sufficient funds to meet your travel expenses, your living costs, and your annual course fees.
To satisfy the financial requirements specifi[ed] by legislative instrument you may have provided evidence that your financial sponsor has a personal annual income that is above $60,000 Australian in the form of official government documentation of personal income that has been issued in the 12 months before the application was made. You provided the 2018 individual tax return for Mr Griffiths. But that document was considered not to be an official government notice of assessment and was not acceptable.
You were considered not to meet the Australian $60,000 personal annual income required to satisfy the financial requirement. Considered as a whole the delegate was not satisfied that you have sufficient evidence of financial capacity as required by the legislative instrument.
So, in a nutshell they were the reasons your initial application was refused. I have explained to you that my role in this hearing is to consider everything you provided to the Department and to the tribunal. I should say this, my decision is [at the] time of [this] decision, that being this tribunal's decision. It is not whether the decision made by the delegate back in May of last year was correct or incorrect. I am conducting what is called a de novo hearing, which is a hearing from the beginning. What that means is I have to be satisfied as of the time that I give my decision being now that you satisfy the requirements.
The Tribunal described the nature of the evidence and other materials before it, and the process by which the oral hearing was held by telephone and that the appellant was not represented (T [8]-[11]). The Tribunal set out the appellant's Australian student history and movement records (T [12]-[22]).
The Tribunal then noted that the financial capacity was not the only criterion that the appellant was required to satisfy and that she also was required to demonstrate a current confirmation of enrolment. That is, the requirement of cl 500.211(a) of Sch 2 of the Regulations (T [23]-[25]). The Tribunal then addressed each of the financial capacity criterion (T [27]-[29], [34]-[38], [42]-[43], [47]-[48], [55]-[57]) and confirmation of enrolment criterion (T [30]-[33], [39]-[41], [50]-[53], [58]-[67]).
It is clear from the following passages of the Tribunal's reasons that it had disregarded or ignored the financial information the appellant had provided in response to the Tribunal's request for that information referred to at para [15] of these reasons.
So, the issue identified by the Department was this issue about your financial capacity. It's clear to me that certainly from the date the Department gave its decision on 13 May 2019 you were put on notice that there were issues concerning your capacity to pay. You then applied to the tribunal for review and you must then have been aware of the importance of this issue about your financial capacity to pay for your living expenses, your travel, and your studies.
You have provided nothing of any particular weight or value to this tribunal for the hearing today upon which it could determine your capacity to pay. Even if you had been able to provide a certificate of enrolment there was no sufficient evidence before me upon which I could make a finding in your favour as to your capacity to pay. You did not provide any documents or information in the form that is required to do so. And the evidence of financial capacity are actually specified in the instrument and they needed to be evidence of a money deposit with a financial institution or a loan with a financial institution, government loans, a scholarship or financial support.
I give some credit to the letter concerning a scholarship and I will address that in a moment. But I note that the scholarship is for an amount of about 20 per cent of the required fees in any event.
…
Whilst I'm not required to give findings of fact as to the financial aspect in this decision for reasons I am about to outline it would appear to me to be a very, very hard struggle based upon your current financial situation and your hours of work and your anticipated income for you to be able to meet that amount of money. There is no evidence in an admissible form as required for me to find that you would have that capacity. I accept that you would be entitled to recognition of prior learning for some aspects of this degree.
…
You have no children. You are not currently in a relationship. You do get work on a piecemeal basis at the moment as a casual. You said to me you have a friend or friend of a friend called Dean who I have already mentioned and you believe that through this Dean you might have been able to satisfy the financial requirements.
…
But I think it is fair to say you are a not a wealthy person and your access to moneys is not great. I have no other evidence before me in an admissible form as to your sources of any other moneys.
(Emphasis added.)
When addressing the enrolment criterion the Tribunal made the following observations and conclusions.
Specifically you were requested to provide the following information and that is a copy of your current confirmation of enrolment or other documents that show that you are currently enrolled in course of study as defined in clause 500.111 and as required by clause 500.211(a) of schedule 2 to the Migration Regulations for the grant of the visa as well as documents showing the fees charged by your course provider for your current course of study and any payments of those fees that you have made.
…
You wrote to the tribunal on 16 October 2020 and you wanted to advise the tribunal that you might not be able to get a confirmation of enrolment in time from Edith Cowan University before the hearing. You indicate that you had enrolled. Strictly speaking that is not correct, you had applied for enrolment in a Bachelor of Social Work at Edith Cowan University and that your application for the course is still pending. You believed it may take about four weeks to process the application. You were not able to provide your current confirmation of enrolment as requested. I have taken that into consideration.
There was a further email yesterday Thursday, 22 October 2020 that you had received a letter from Edith Cowan University. The letter, which I have read, is as follows. It advises that you have been awarded the 2021 international Australian alumni scholarship and that the scholarship provides 20 per cent fee reduction for the duration of the course. I understand that to mean the course that you wish to pursue, then sets out some requirements for you to accept the scholarship. It's signed by the vice chancellor.
It is accompanied by a course offer and the course is at the Bunbury campus, it's called a Bachelor of Social Work. The duration is two years, four semesters, and the course is due to start on 22 February 2021 and to end on 31 December 2022. The current indicative fee per semester is $12,320. The total tuition fee, which would include the 20 per cent fee reduction would amount to $49,280.
…
I then needed to give you the opportunity to consider the issue about confirmation of enrolment under section 359AA of the Act. I raised with you that the records indicated and you confirmed this yourself, that you are not currently enrolled, and your enrolment had ceased in about December of 2019. I indicated to you that that information, if accepted, would be the reason or part of the reason for affirming the decision under review by me.
I indicated to you that I would give you some time, if you wished, to go away and have a think about how you would respond to that, and you did go away. We came back 35 minutes or so later and I again raised this issue with you and whether you would like to say anything to me. Your response was that it was a hard question to answer for you. You knew that you must have a confirmation of enrolment. You did not know what to do. You wanted to first hear from the tribunal and you did not know it would take the tribunal so long to get to your matter and to make a decision. But you then qualified that and said that you did not realise that at the time you came before the tribunal you would need another confirmation of enrolment.
That is difficult to reconcile because, as I said, the invitation to come here issued to you on 17 September 2020 made it quite clear in my view that the certificate of enrolment or the current certificate of enrolment or other documents to show you are currently enrolled was an issue that would likely be canvassed in that hearing. So that was roughly five weeks ago that you would have been put on notice that confirmation of enrolment was an issue.
I asked you as we were finishing bearing in mind you have been here for 15 years what is your plan student visas being temporary visas only. I asked you that because I wanted to know when it was that you had in mind for returning to Malawi. When would the point in time be reached that you had satisfied your study interests in this country so that you could go back to Malawi to, as you claim, be of value in the social context in your home country. It is clear to me that you are not sure but you did say to me that after you get your next degree that would be possible for you.
I have listened carefully in relation to your answers about that and how long you have spent here in Australia and the lack of occasions you have sought to return back home to Malawi and it is clear to me that you want to stay here in Australia and that you consider Australia to be your home where you want to live your life. That is my assessment of what you have told me.
So I have considered all of that information individual and cumulatively, the criteria for this type of visa set out in part 500 of schedule 2 to the Regulations. The primary criteria in clause in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. No family unit issues arise in your case because you are single and you have no children.
The issue before the delegate was whether you met the financial obligations and that was the basis upon which the application was refused. Another matter has arisen before this tribunal and that is whether you meet the strict requirements of clause 500.211. Clause 500.211 requires that at the time of me giving this decision that you are enrolled in a course of study; the provision is clause 500.211(a). You do not claim to meet any of the other alternative criteria in clause 500.211.
Course of study is relevantly defined in clause 500.111 of the Regulations as a fulltime registered course. Registered course is defined in regulation 1.03 of the Regulations as a course of education or training provided by an institution or body or person that is registered under division 3 of part 2 of the Education Services for Overseas Students Act 2000 to provide the course to overseas students.
The tribunal raised this with you, the requirement of enrolment, and referred to this several times during the hearing. You confirmed you were not currently enrolled and you gave explanations for that. I have considered your responses as to why you were not enrolled. The evidence from you and the PRISMS record is that your last enrolment would have finished on 31 December 2019 when you finished the Bachelor of Social Science degree. I gave you half an hour or so to think about how you would respond to that particular issue.
You have not provided me with any evidence to suggest that you are currently enrolled and I have considered your evidence or explanation as to why you are not enrolled but that does not persuade me in any degree that there are any extenuating or compelling reasons why you are not enrolled as of today. I am not satisfied that at time of this decision that you are enrolled in a course of study and clause 500.211 is not met.
The Tribunal concluded that it was not satisfied that the appellant met the criteria for the grant of the subclass 500 student visa and affirmed the delegate's decision to refuse the appellant a student (subclass 500) visa (T [68]).
[6]
Primary judge's reasons
The appellant advanced one ground of review in the proceeding below by which she asserted that the Tribunal made a jurisdictional error in failing to take into account relevant material that was before it. The appellant contended that at para [28] of the Tribunal's reasons it failed to consider the financial information the appellant had provided to the Tribunal on 6 October 2020 in determining whether the appellant had sufficient financial capacity (PJ [9]-[10]).
The primary judge observed that s 6 and s 10 of LIN 19/198 set out the requirements of financial capacity that an applicant must discharge to be successful and the forms of evidence necessary to discharge those requirements (PJ [14]). The primary judge concluded that the bank statements provided by the appellant met only one of the requirements under s 10 of LIN 19/198 and the remainder of the documents provided by the appellant were 'vague, unclear and inadequate' (PJ [18]). The primary judge considered that the financial information did not assist the appellant as there was no basis for concluding that the evidence of financial capacity relates to the appellant's 'parent, spouse or de facto partner'. Further, that the financial information provided was for the periods within the year 2020 which, at best, would be taken to be evidence of financial capacity of a period after the time the decision was made by the delegate on 12 February 2019 (PJ [21]). For those reasons, the primary judge concluded that the appellant had not established that there was a jurisdictional error in the Tribunal's decision (PJ [22]-[23]).
The primary judge went on to consider that the Tribunal was correct in its decision because there was a separate basis for concluding that the appellant had not satisfied the primary criteria under cl 500.211(a) of the Regulations; namely, that the appellant was not enrolled in a course of study at the time of the Tribunal's decision (PJ [24]-[30]). The primary judge concluded that, as a consequence, any error of the Tribunal was not material and could not have been a jurisdictional error because 'there was no realistic possibility that the Tribunal could have decided the matter differently' (PJ [31]-[32]). The primary judge then said:
32 At hearing it was suggested for Ms Chikweu that the Tribunal ought to have adjourned to allow for a COE to issue in relation to her Letter of Offer from ECU. The Court notes that a Letter of Offer is not a COE meeting the requirement under cl 500.211(a) of the Migration Regulations, but in any event it is not apparent that Ms Chikweu had a Bridging visa entitling her to study at the relevant time, and it would appear that because she did not have a Bridging visa entitling her to study she was "not sure … [she] could go back to school": CB 236 at [53]. There was therefore nothing in the evidence to affirmatively suggest that Ms [Chikweu] might obtain a COE within any reasonable period of time warranting an adjournment of the Tribunal Hearing. In all the above circumstances, it was open to the Tribunal, on the evidence before it, to conclude that Ms Chikweu did not meet the Student Visa criteria because she did not have a COE.
[7]
Ground of appeal
The appellant's notice of appeal pleads one ground of appeal:
The Federal Circuit and Family Court erred in failing to find that the Second Respondent's decision was affected by jurisdictional error in that it failed to take into account relevant material.
Particulars
a. The primary judge erred in finding that the documents provided to the Second Respondent were not capable of meeting the requirements listed in the Migration (LIN 19/198: Evidence of financial capacity - Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 s10.
b. The primary judge erred in finding that there was no reasonable possibility of the Second Respondent adjourning the hearing to allow the appellant time to complete her course enrolment, had it considered all relevant material provided to it.
[8]
Summary of the parties' submissions
The appellant submits that the Tribunal had failed to 'consider' the financial information in the course of its determination that the appellant had not met the financial capacity criterion. Further, that the primary judge was in error in concluding, in effect, that the appellant was required to satisfy the requirements of both subs 6(2) and subs 6(3) of LIN 19/198 in order to demonstrate evidence of financial capacity. The appellant submits that it is sufficient to satisfy the requirement of subs 6(2) or subs 6(3) and the financial information was capable of satisfying subs 6(2). For the purposes of s 10 of LIN 19/198, the financial information was evidence of 'money deposits with a financial institution' of Mr Griffiths and of 'financial support' of Mr Griffiths. Therefore, while the primary judge was correct to determine that the financial information met the requirement in subsection 6(2) of LIN 19/198, he was wrong to conclude that the financial information did not assist the appellant because she could not meet the requirement of subs 6(3).
There was no real contest from the Minister that the Tribunal and primary judge had made the errors the appellant asserts. However, the Minister contends that the primary judge was correct to conclude that the Tribunal made no jurisdictional error because the appellant had not satisfied the enrolment criterion and that was an independent reason for the Tribunal to affirm the delegate's decision. Put another way, the primary judge was correct to conclude that the error was not material because there was no realistic possibility that the Tribunal could have made a different decision even if it had considered the financial information and concluded that the appellant met the financial capacity criterion.
The appellant contends, in substance, that the financial capacity criterion and enrolment criterion were not entirely independent. She submits that if the Tribunal had considered the financial information and understood that she was able to satisfy the financial capacity criterion, in circumstances in which she had received an offer of enrolment and needed only to accept it and pay the first semester's tuition fees, the Tribunal, acting reasonably, could have exercised its power to adjourn the oral hearing under s 363(1)(b) of the Act and, thereby, given the appellant a reasonable period of time to satisfy the enrolment criterion.
The Minister submits, in substance, that the contentions raised by the appellant as to the relationship between the financial capacity criterion and the enrolment criterion are unsupported by evidence. The Minister contends that the Tribunal specifically identified the enrolment criterion as a matter separate to the appellant's financial capacity (T [64]). Particularly, that the conclusion reached by the Tribunal in relation to the appellant's inability to satisfy the enrolment criterion was its own matter and the consideration of the appellant's financial capacity or financial information had no bearing on its conclusion as to enrolment. Put another way, the appellant's failure to satisfy the enrolment criterion formed the basis upon which the Tribunal made its decision. Any error, if proven, involving the consideration of the financial capacity criterion or the lack thereof could not have materially affected the basis upon which the decision was made, and, therefore, could not be said to be jurisdictional.
In support of his submission, the Minister also relies on the Tribunal's reasons and the transcript of the Tribunal hearing. Specifically, the Minister refers to the Tribunal Member's remarks that 'at any event, the key issue really is the confirmation of enrolment': Transcript at 20. Further, that the Tribunal made only findings in respect of the enrolment criterion and did not make conclusive findings as to whether the financial capacity criterion of cl 500.214 was satisfied (T [42]). As such, any consideration of the financial capacity criterion had no bearing on the Tribunal's final decision.
The Minister further contends that the primary judge was correct in finding that, at the time of the Tribunal hearing, there was no evidentiary basis to suggest that the appellant might have been able to obtain a certificate of enrolment within a reasonable period of time to warrant the adjournment of the hearing (PJ [32]). Relying on Hossain at [36] (Kiefel CJ, Gageler and Keane JJ), the Minister also submits that the argument that the Tribunal may have delayed its decision to allow sufficient time for the appellant to satisfy the enrolment criterion if it had considered the financial documents, is mere conjecture. Although undemanding, the materiality threshold cannot be said to be crossed for such conjectures. The appellant submits that the facts of this case are distinguishable from those of Hossain and, on the facts of this case, as a matter of 'reasonable conjecture' there was a realistic possibility that the Tribunal could have adjourned the hearing for a reasonable period to allow the enrolment criterion to be satisfied.
Otherwise, it was common ground that the following legal principles are applicable.
In the exercise of its power of review the Tribunal was required to determine if it was satisfied of the matters set out in s 65(1)(a) of the Act. In so doing, the Tribunal was required to address the same statutory question as the delegate. It was required to stand in the shoes of the delegate and determine for itself, on the material before it, the decision that should be made in the exercise of the power conferred on the delegate: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 at [51]; Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [142].
The Tribunal was required to address the statutory question at the time of its decision, not at the time of the delegate's decision. Numerous authorities were cited and relied upon for the proposition that the financial capacity and enrolment criterion were 'time of decision' criteria meaning that these criteria must be satisfied at the time of the decision of the delegate or Tribunal: Yu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 209 at [41]-[74] (Thawley J); SFLB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1610 at [15] (Mansfield J); Pintos v Minister for Immigration & Multicultural Affairs [2001] FCA 1400 at [9] (Katz J).
In determining the statutory question, the Tribunal was permitted to take into account all the facts and materials before it at the time of its decision: Shi at [142]-[143]. In this respect, the parties appear to be in agreement and accept that the financial information was relevant and could have been taken into account by the Tribunal even though it was evidence of financial capacity that post-dated the delegate's decision.
In determining the statutory question, the Tribunal was subject to the same general constraints as the delegate and the law as it existed at the time the delegate made the decision under review: Frugtniet at [14]. That required, in point of law, the Tribunal to apply Migration (IMMI 18/010: Evidence of financial capacity for Subclass 500 (Student) visas and Subclass 590 (Student Guardian) visas) Instrument 2018 and not LIN 19/198. However, the differences between IMMI/010 and LIN 19/198 were not material.
It follows that it was common ground that the Tribunal was permitted to have regard to the financial information in determining whether the financial capacity criterion was satisfied. Further, it was not relevant to the Tribunal's decision that the appellant had met the enrolment criterion at the time of the delegate's decision and had, in fact, completed the relevant course of study for which the visa application had been made. What was relevant was whether the appellant satisfied the enrolment criterion at the time of the Tribunal's decision. That is, even though almost two years had passed since she had applied for the visa and she had completed the course for which the visa had been sought, if the appellant was able to satisfy the enrolment criterion (that is, enrolment in another or new course) at the time of the Tribunal's decision, the Tribunal could take that into account and, in effect, grant a visa in respect of a different course of study. While I have some reservations about the parties' common position on that matter, for the purposes of this appeal I am prepared to assume, without deciding, that it is correct as a matter of law.
[9]
Was the error of the Tribunal material?
The High Court recently revisited and explained the principles applicable to jurisdictional error and materiality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12. That judgment was pronounced after this appeal was heard and judgment was reserved. The parties were given an opportunity to make and made further written submissions on the extent to which, if at all, LPDT had any bearing on the issues raised in this appeal.
In the joint reasons in LPDT (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ), their Honours said:
Two Questions
9 Where it is alleged in an application for judicial review that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and, if so, was that error material.
10 The inquiry posited by each question is wholly backward-looking [MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at 523-524 [37]]. Both questions are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. Those are facts in respect of which the applicant for judicial review bears the onus of proof on the balance of probabilities [MZAPC at 524-525 [38]-[40], 531 [60]]. Proof of these facts ought to be neither difficult nor contentious.
11 What must be proved to show what decision was made and how it was made will depend upon the nature of the error. In a common case - of which the present is an example - where the error alleged is breach of a condition governing the reasoning to be undertaken by the decision-maker, the applicant's onus of proving the relevant facts is discharged by nothing more than the tender of the decision-maker's statement of reasons.
12 Where the jurisdictional error alleged is one concerned with the process of the decision making, such as a denial of procedural fairness, what must be proved by the applicant will depend upon the precise error alleged to have occurred in the decision-making process, having regard to any relevant statutory provisions within the applicable legislative framework. Examples of the types of evidence that have been sufficient for establishing the relevant facts in such cases include the appellate record [Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at 108 [48], referring to Stead v State Government Insurance Commission (1986) 161 CLR 141. See also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 111 [66]], and evidence of the content of a document or information that was required to be provided as part of the decision-making process [See, eg, Aala at 115 [74]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 446 [50]]
13 The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred [SZMTA at 451 [69]; MZAPC at 524 [39], 538-539 [85]-[86], 563 [159]]. Unless the error is of a type such as those identified at [6] above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.
14 The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error [Nathanson at 103 [32], 107-108 [46], 113 [63]]. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable [SZMTA at 445 [45]; MZAPC at 514 [2], 538 [85]. See also Hossain at 134-135 [30]-[31]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at 467 [62]]. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous [Nathanson at 107-108 [46]-[47], 134 [127]].
15 What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision [See, eg, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) 276 CLR 136.]]. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind [Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 342-343 [58]-[60]; Nathanson at 103 [33], 110-111 [55]-[56], 113 [63], 116-117 [76]]. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome [Stead v State Government Insurance Commission [1987] HCA 54; (1986) 161 CLR 141 at 145-146. See also Aala at 122 [104]; Minister for Immigration and Borden Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at 343 [60]]. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker:28 the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16 In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
It follows that materiality is a question of fact that will usually largely, if not entirely, be capable of determination by reference to the decision that was made and how it was made. And, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once error is established and a realistic possibility that the outcome could have been different is demonstrated, the threshold of 'materiality' is met.
As alluded to in the parties' submissions, the facts of this case bear some resemblance to the facts in Hossain. Further, the parties accept that LPDT has not cast doubt on the correctness of the legal principles pronounced in Hossain. But, while Hossain is manifestly binding on the question of legal principle, it does not and cannot dictate the manner in which the legal principle is to be applied to the facts of this case. Therefore, the reasoning in Hossain may be distinguished on the facts.
In Hossain the visa applicant made a valid application for a partner visa. A delegate of the Minister refused the application. On review the Tribunal affirmed the delegate's decision because it was not satisfied that two prescribed criteria had been met. The first was that the application had not been lodged within a prescribed time and there were no compelling reasons for not applying that criterion. The second was that the visa applicant satisfied a public interest criterion which required the applicant to have no outstanding debts to the Commonwealth unless the Minister was satisfied that appropriate arrangements had been made for payment. The visa applicant sought judicial review of the Tribunal's decision. The Minister conceded that the Tribunal had erred in law in its application of the first criterion. However, the Minister argued that the error was not jurisdictional because the public interest criterion was not met at the time of the decision and that provided an independent basis upon which the Tribunal affirmed the delegate's decision.
When the matter came before the Full Court of this Court, a majority concluded that, whether the legal error of the Tribunal regarding the first criterion was characterised as jurisdictional or otherwise, neither the delegate nor the Tribunal had authority to grant the visa applicant the visa because he had not satisfied the public interest criterion at the time the decision was made: Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82; 252 FCR 31 at [23]-[30] (Flick and Farrell JJ). Although the majority was considered wrong to distinguish between a decision involving jurisdictional error and a decision wanting in authority because they are one in the same, the High Court dismissed an appeal from the Full Court's judgment. The High Court concluded that the Tribunal's error was not jurisdictional because it was not material in that it could not have made a difference to the outcome of the review as there was an independent reason for refusing the visa application: Hossain at [24]-[26], [29]-[31], [34]-[35] (Kiefel CJ, Gageler and Keane JJ), [67]-[72], [39]-[41], [76]-[79] (Edelman J, Nettle J, agreeing).
Justice Mortimer (as her Honour then was) was in dissent in the judgment of the Full Court. Her Honour was of the view that the error was jurisdictional and that the question of whether the Tribunal's decision should be set aside was a question of discretion, and in that instance, that it was not futile to set aside the Tribunal's decision because the outstanding Commonwealth debt had been paid: Hossain FCAFC at [100]. Her Honour also indicated that, if she were wrong in that conclusion, she would have been inclined to the view that the two visa criteria were not entirely independent of each other. The connection her Honour postulated was that if the Tribunal had been satisfied of the first criterion relating to the timing of the application, it might have been persuaded to delay making its decision until such time as the visa applicant was able to satisfy it that he had either paid his debt to the Commonwealth (as he had told the Tribunal he intended to do and as he in fact later did) or enter into an arrangement for payment to occur: Hossain FCAFC at [75]-[77].
In the joint reasons of the High Court their Honours said that the possibility of the Tribunal delaying its decision to allow the visa applicant to meet the public interest criterion in the manner Mortimer J suggested, on the facts of that case, was 'no higher than conjecture'. The reason it was no higher than conjecture was because the Tribunal had not been asked to delay making its decision and, in any event, it had not believed the visa applicant when he had said that he intended to pay the debt: Hossain at [36]. Put another way, it was speculative to consider that the Tribunal might have adjourned to allow Mr Hossain to fulfil a criterion that the Tribunal did not believe he could fulfil.
In the emphasised parts of para [28] of the Tribunal's reasons referred to earlier, the Tribunal said that even if there had been evidence of financial capacity the appellant was not able to meet the enrolment criterion. Likewise, at para [42] of the Tribunal's reasons it, in effect, indicated that it was not necessary to reach any conclusion on financial capacity because the appellant was not able to meet the enrolment criterion. While at first blush these may be regarded as supporting the Minister's contention that the Tribunal treated the criteria independently, that 'independent' treatment was in the context of the Tribunal having ignored the existence of the financial information that indicated the appellant may have been able to satisfy the financial capacity criterion. Her ability to satisfy the financial capacity criterion was relevant to the probability of her paying the tuition fees and obtaining a certificate of enrolment within a reasonable period of time. In my view, on the facts of this case, the criteria of 'financial capacity' and 'enrolment in a course' were not entirely factually independent. Further, unlike the facts in Hossain, the Tribunal made no findings and drew no conclusions about whether or not the appellant could or would satisfy the enrolment criterion. That is, the Tribunal made no findings and drew no conclusions about whether or not it believed that the appellant could or could not or would or would not accept the offer and pay the tuition fees for the first semester. Therefore, absent the error the Tribunal had made regarding financial capacity, the Tribunal could have formed a view about the probability of the appellant paying the tuition fees and, thereby, satisfying the enrolment criterion within a reasonable period of time.
If the only criterion remaining to be satisfied was enrolment and the appellant's ability to produce evidence of a certificate of enrolment although unsatisfied was imminent, given the lengthy delay in the Tribunal's review process, it is arguable that, in those circumstances, it would be legally unreasonable for the Tribunal not to adjourn the hearing, or at least consider adjourning the hearing, so as to afford the appellant an opportunity to adduce evidence to the effect that the enrolment criterion was satisfied at a later time when the decision was made: e.g., Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [23]-[31] (French CJ), [63]-[76], [82]-[85] (Hayne, Kiefel and Bell JJ), [88]-[92], [99]-[100], [105]-[113], [124] (Gageler J). Therefore, on the facts of this case, I do not consider the possibility of an adjournment and satisfaction of the enrolment criterion to be mere conjecture or speculation.
It follows that, absent the Tribunal's error, there was a realistic possibility that the outcome of the review could have been different. Moreover, on the facts of this case, I am not able to affirmatively conclude that the outcome would have been the same absent the error. Thus, the appellant has discharged her onus of demonstrating error and materiality and, therefore, jurisdictional error.
[10]
Disposition
The primary judge was in error for failing to conclude that the Tribunal's failure to consider the financial information was material and a jurisdictional error. The appeal should be upheld.
After the hearing of the appeal and judgment was reserved the Administrative Review Tribunal Act 2024 (Cth) came into force and the Administrative Appeals Tribunal Act 1975 (Cth) was repealed by Sch 17 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Having regard to the conclusions I have reached and that the Tribunal no longer exists, I will hear the parties on the appropriate form of the orders that should be made in lieu of the orders of the primary judge. Otherwise, the Minister should pay the appellant's costs in the court below and of the appeal.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.
Parties
Applicant/Plaintiff:
Chikweu
Respondent/Defendant:
Minister for Immigration, Citizenship and Multicultural Affairs