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[2019] FCA 1036
Federal Court of Australia
2019-07-05
Griffiths J
Original judgment source is linked above.
GRIFFITHS J: 1 This appeal is from a judgment and orders of the Federal Circuit Court of Australia (FCCA). The judgment, which is dated 18 December 2018, is reported as Ding v Minister for Home Affairs [2018] FCCA 3782. The appellant also seeks by an interlocutory application filed on 14 June 2019 to have leave to adduce further evidence, being copies of two confirmations of enrolment which were not in evidence below. 2 For the following reasons, both the interlocutory application and the appeal will be dismissed, with costs.
Summary of background matters 3 The appellant is a citizen of Malaysia. She has a long migration history in Australia, dating back to 1989 when she was apparently granted her first student visa. There is evidence that she has lived in Australia, although not continuously, from that time and that she undertook various educational courses. On 25 November 2016, she applied for a Student (Temporary) (Class TU) subclass 500 visa (visa). 4 The Minister's delegate refused the visa application on 8 February 2017 because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student and that she intended to stay in Australia only temporarily. The delegate concluded that the appellant failed to satisfy the genuine temporary entrant criterion in cl 500.212 of Sch 2 to the Migration Regulation 1994 (Cth) (Regulations). 5 The appellant sought a review of that decision in the Administrative Appeals Tribunal (AAT). The application for review was unsuccessful. The AAT found that, at the time of its decision (i.e. 5 July 2018), the appellant did not satisfy the requirements of cl 500.211 of Sch 2 to the Regulations. 6 Prior to the hearing in the AAT, the AAT sought further information from the appellant by letter dated 13 April 2018 sent to her then migration agent, with specific reference to Ministerial Direction No 69 and the assessment of applicable temporary entrant criteria. A copy of Ministerial Direction No 69 was provided to the appellant with the request for further information. The appellant was asked to provide the information by responding to a questionnaire, which was titled "Request for Student Visa Information under s 359(2) of the Migration Act 1958". Question 6 required the appellant to give information about the educational courses she was enrolled in while in Australia, while question 9 asked whether she had "a current Confirmation of Enrolment or letter of offer in a course of study". The 13 April 2018 letter also stated that it was a requirement for the grant of the visa that the appellant was enrolled in a registered course of study and a genuine applicant for entry and stay as a student. The AAT acceded to the appellant's new migration agent's request for an extension of time to respond to the questionnaire. 7 The appellant's response to the AAT's request was provided by an email dated 14 May 2018 from her migration agent, which attached a copy of the completed questionnaire. In response to question 6, the appellant gave details of various educational courses she had been enrolled in since October 2006. She also stated that she had been enrolled in a Diploma of Marketing and Communications at the Australian Study Link Institute between the period November 2016 and October 2017. Further, she stated that she was enrolled in a Advanced Diploma of Marketing and Communications at the same institution during the period November 2017 to November 2018. 8 As noted above, the appellant was asked in question 9 whether she had a current Confirmation of Enrolment or letter offer in a course of study and was asked to circle either "yes" or "no". The appellant did not respond to this question in the questionnaire, leaving both the "yes" and "no" options on the form uncircled. The appellant made a declaration at the end of the questionnaire that all the information in it was true and correct and she signed that declaration. 9 By letter dated 13 June 2018, the appellant was informed by the AAT through her new migration agent that her hearing would be conducted on 5 July 2018. She was asked to provide a copy of her current Certificate of Enrolment or other document which showed that she was currently enrolled in a course of study as defined in cl 500.111 of the Regulations, as required for the grant of a student visa. 10 It is undisputed that the appellant did not provide any such material either at least 7 days before the hearing date (as requested) or indeed at the hearing itself. 11 The appellant attended the AAT's hearing on 5 July 2018, accompanied by her migration agent. It is evident from the hearing record that the appellant gave sworn evidence. 12 On 5 July 2018, the AAT gave an oral decision and oral reasons for affirming the delegate's decision. Written reasons for decision were subsequently provided by the AAT on 27 July 2018. 13 In its reasons for decision, the AAT referred to the applicable requirements for the visa as set out in the Regulations. Clause 500.211 in Sch 2 thereof required that, at the time of the AAT's decision, the appellant must be enrolled in a course of study. The AAT noted, that notwithstanding the request that the appellant provide evidence of enrolment at least seven days before the AAT's hearing, no such evidence had been provided, nor was the appellant able to provide any such evidence at the hearing. 14 In its reasons for decision, the AAT noted the appellant's request made at the hearing that she be given further time to produce such evidence and that she claimed to have at her home "offers of enrolment". Her request for an adjournment was refused on the basis that she had had several months to provide the requested information and had been reminded on 13 June 2018 of the need to provide such evidence. 15 It is also notable that at [10] of its reasons for decision, the AAT referred to the appellant's sworn evidence before it that "she was last enrolled in a Diploma of Marketing and Communication, and the Advance Diploma of Marketing and Communication [and that her] evidence is that she is not currently enrolled, and nor does she have a valid offer of enrolment in any course of study in Australia at the time of decision". 16 In these circumstances, the AAT concluded that there was no evidence before it that the appellant was enrolled in, or had a current offer of employment, in any course of study, hence she did not comply with cl 500.211. Accordingly, the delegate's decision was affirmed.
The FCCA proceeding 17 The appellant sought judicial review in the FCCA, claiming that she had not been afforded procedural fairness as required by s 353 of the Migration Act 1958 (Cth) (Act). She was represented by a solicitor. It is evident that her solicitor also contended before the FCCA that the AAT's decision refusing her an adjournment was legally unreasonable, a matter which was raised in the particulars to the procedural fairness ground. Reference was made, amongst other things, to the fact that the appellant had not answered the specific question in the questionnaire which is referred to in [8] above. In support of her claims of procedural unfairness and unreasonableness, the appellant relied upon ss 353, 357A, 360 and 363 of the Act. She contended that s 363 conferred a discretion on the AAT to adjourn the proceedings. She also referred to Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) in support of her unreasonableness claim and, in particular, at [58] per Hayne, Kiefel and Bell JJ: 58. In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review. The act of the Tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole. 18 The appellant contended in the FCCA that the AAT's reasons for refusing her an adjournment were similar to those of the AAT in Li. 19 The primary judge's ex tempore reasons for rejecting the judicial review challenge are brief, as is reflected in [13] of his Honour's reasons (without alteration): 13. There is no substance in ground 1. It is not reasonably arguable. The Tribunal provided logical and rational reasons for the refusal of the decision. Those reasons cannot be said to lack an evident and intelligible justification. The opportunity already given to the applicant by reason of the time period from the lapse of the delegate's decision, as well as the reference to the letter of 13 June 2018, were logical and rational reasons in support of the Tribunal's refusal to adjourn. Given the Tribunal's reasons there was no failure to afford the applicant procedural fairness and the refusal to adjourn was not legally unreasonable. These proceedings, the Court finds, have no reasonable prospect of success under s 486E of the Act. No jurisdictional error as alleged in ground 1 is made out.
The proceedings in this Court 20 The notice of appeal contains a single ground of appeal, namely that the FCCA erred in finding that the AAT did not act unreasonably in refusing the appellant's application for an adjournment. 21 It is evident from the terms of the notice of appeal that the appellant had not seen a copy of the primary judge's reasons for judgment when the appeal was lodged. 22 As noted above, the appellant also sought the Court's leave to adduce further evidence on the appeal.
The appellant's submissions summarised 23 At the heart of the appellant's claim of legal unreasonableness is a claim that she had certificates of enrolment at home and thus, if she had been permitted an adjournment so as to collect that material and show it to the AAT, the basis upon which her review application was refused would have disappeared. 24 The appellant acknowledged that there had been a dispute in the FCCA as to whether or not the appellant had told the AAT that she had certificates of enrolment at home. She contended that this matter was resolved in two ways. First, she pointed to [9] of the AAT's decision record where it is noted that she advised the AAT that she had "offers of enrolment" at home. 25 Secondly, she relied upon an interlocutory application dated 14 June 2019 for the Court to receive fresh evidence on the appeal. The evidence included a copy of a confirmation of enrolment No 86535E57 which stated that the appellant had been enrolled in a Diploma of Marketing and Communication course at the Australian Study Link Institute and that the course start and end dates were 15 November 2016 and 31 October 2017 respectively. The appellant also sought to adduce another confirmation of enrolment certificate No 86535F38 which recorded that she was enrolled in an Advanced Diploma of Marketing and Communication course at the same institution and that the start and end dates were 15 November 2017 and 14 November 2018 respectively. 26 The appellant contended that the AAT's failure to adjourn the proceeding was a material error and gave rise to a jurisdictional error within the meaning of the relevant discussion in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1.
The Minister's submissions summarised 27 The Minister emphasised that the Court had to form its own view on the issue of legal unreasonableness and not simply ask whether or not there was some error in this regard on the part of the primary judge, citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 (SZVFW). 28 The Minister submitted that it was not legally unreasonable for the AAT to refuse the adjournment on the basis of the reasons it gave and in the context of the circumstances of the case and the material before it. The Minister defended the primary judge's reasons for concluding that the AAT had given an evident and intelligible justification for its decision not to adjourn and he submitted that the AAT's decision was within its area of "decisional freedom" and that the AAT had, in effect, decided that "enough is enough" (referring to Li at [81] per Hayne, Kiefel and Bell JJ). 29 As to the appellant's contention that her case mirrored Li, the Minister emphasised that the issue of legal unreasonableness is a fact-specific inquiry which is not assisted by comparisons with other cases, citing Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [41]-[42] and that the primary focus should be on the AAT's reasons for refusing the adjournment (citing Singh at [47]). 30 The appellant's application to adduce the fresh evidence on the appeal was opposed by the Minister because: (a) no satisfactory explanation had been given as to why the material was not adduced in the FCCA; (b) the material is irrelevant to the question whether the AAT's refusal to adjourn was legally unreasonable because the AAT did not have the confirmations of enrolment before it and the AAT did not need to make a finding that such documents did not exist; (c) the second confirmation of enrolment document does not of itself prove that, at the date of the AAT's decision, the appellant was still enrolled in the course indicated on the form, particularly in circumstances where, the timestamp revealed the document was created on 10 November 2016 and that according to PRISMS records before the AAT, the appellant's enrolment in the Advanced Diploma of Marketing and Communication course had been cancelled prior to the AAT's hearing; and (d) although the appellant told the AAT that she had at her home "offers of enrolment", she made no reference to having a current confirmation of enrolment thus evidence of the same did not bear on the question of her credit.
Analysis and determination 31 It is convenient to first deal with the interlocutory application to adduce further evidence. 32 The relevant principles are well settled (see NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [42]). There are two conditions: (a) the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and (b) the evidence must be such that very probably the result would have been different. 33 The appellant submitted that even where the first condition is not satisfied, leave may still be granted, citing DZF17 v Minister for Home Affairs [2019] FCA 979 at [30] per Thawley J. 34 For the following reasons, the interlocutory application was dismissed. First, I accept the Minister's submission that no sufficient explanation has been provided as to why the relevant material was not adduced below. The highest it was put was in the appellant's solicitor's supporting affidavit, in which he said that the evidence had not been adduced in the FCCA because the appellant "did not deem it to be material to the ground of application raised in the Court below". This statement was not given any further elaboration. 35 Secondly, and more importantly, assuming without deciding that the certificates are relevant to an assessment of legal unreasonableness notwithstanding that they were not before the AAT when it made its decision (see Li at [83] and Ellis v Central Land Council [2019] FCAFC 1; 364 ALR 446 (Ellis) at [174]), the certificates contradict the appellant's own sworn evidence as recorded by the AAT at [10] of its reasons for decision (see [15] above). Before me, the appellant did not dispute the correctness of the AAT's statement there that she had given sworn evidence that she was not currently enrolled, nor that she did not have a valid offer of enrolment in any course of study in Australia as at 5 July 2018. At the highest, the appellant submitted that there was a conflict in the AAT's reasons and that, in the absence of a copy of the AAT transcript, the matter should be resolved in her favour. One of the difficulties with this submission is that, notwithstanding the end date recorded in the second certificate of enrolment (i.e. 14 November 2018), as the Minister pointed out, it appears from other evidence before the AAT that, quite independently of the appellant's own sworn evidence, the appellant's enrolment for the second course (i.e. the Advanced Diploma of Marketing and Communication) was cancelled before the AAT's hearing. It appears from the PRISMS records that the cancellation took effect on 15 November 2017. It is true that the AAT made no explicit reference to these records but they form part of the material to be taken into account by the Court in determining whether or not the adjournment refusal was legally unreasonable. 36 As was pointed out during the course of the hearing in this Court, if the appellant wished to contend that the transcript of the AAT hearing was inconsistent with the AAT's reasons, she had the burden of adducing a copy of that transcript. 37 Having regard to all these matters, I cannot see how the further evidence could have any probative value in the present proceeding. Accordingly, the interlocutory application was dismissed. 38 I turn now to explain why the appeal should also be dismissed. 39 It may be accepted that, in the light of SZVFW, the Court must determine for itself whether it was legally unreasonable for the AAT to refuse the appellant's adjournment request. 40 It may also be accepted that, in the light of Singh, the issue of legal unreasonableness turns very much on the individual facts and, in a case such as the present, the reasons given by the decision-maker for the impugned decision. 41 The relevant circumstances here include the fact that the appellant was represented at all relevant times and that she and her migration agent were on clear notice that a relevant matter was whether she had a current confirmation of enrolment or letter of offer to undertake a course of study. These matters were raised not only the in AAT's pre-hearing questionnaire provided on 13 April 2018, but also in its letter dated 13 June 2018 which is described in [9] above. 42 Another important relevant circumstance is the recorded statement in the AAT's reasons that the appellant gave sworn evidence on 5 July 2018 that she was not currently enrolled in any course of study and did not have a valid offer of enrolment in any course of study in Australia at the time of the AAT's decision. Both the appellant and the Minister acknowledged that it was open to the Court to take into account what the AAT said in [10] in determining whether or not the AAT's refusal decision was legally unreasonable. The appellant also urged the Court to take into account what was said in [9] but it is difficult to see how that takes the appellant's case any further when it is appreciated that the relevant visa criterion required evidence that the appellant was enrolled in a course of study at the time of the AAT's decision. It is difficult to see how an offer of enrolment (if in fact there was one) could satisfy that mandatory requirement. 43 No reference was made by the primary judge to the important findings of the AAT in [10] of its decision record. His Honour relied upon other matters in rejecting the legal unreasonableness claim. Those other matters are relevant to the issue of legal unreasonableness but so was the finding in [10]. That is for two reasons. First, the material was relevant to the Court's assessment of legal unreasonableness. Secondly, it demonstrated the immateriality of any error on the AAT's part in refusing the adjournment request because, on the appellant's own sworn evidence, she was not enrolled in a course of study at the relevant time.
Conclusion 44 For these reasons, the interlocutory application to adduce fresh evidence is dismissed, as also is the appeal. The appellant should pay the Minister's costs as agreed or assessed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.
Ding
Minister for Home Affairs