Giri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application for leave to appeal made by the appellant on the hearing of the appeal on 19 August 2021 is granted.
2. The appeal is dismissed.
3. The appellant pay the costs of the first respondent of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GREENWOOD J: 1 One class of visa prescribed by Regulation 2.01 (and Schedule 1) of the Migration Regulations 1994 (Cth) (the "Regulations"), for the purposes of s 31 of the Migration Act 1958 (Cth) (the "Act"), is a Student (Temporary) (Class TU) visa (the "Visa"): Schedule 1, cl 1222 of the Regulations. A "Subclass" of that Visa is a subclass described as Subclass 500 - Student (the "Subclass"): Schedule 1, cl 1222(6); Schedule 2, cl 500. 2 The primary criteria to be satisfied by an applicant for such a Visa, within the Subclass, are set out at cl 500.2 of Schedule 2 to the Regulations. Clause 500.211 of Schedule 2 provides that at the time a decision is made on any application, one of four factors set out at cl 500.211(a) to (d) "applies". 3 One factor is that "the applicant is enrolled in a course of study". 4 The appellant applied for such a Visa within Subclass 500 on 15 March 2017 to undertake study in an Advanced Diploma of Business program. 5 On 19 June 2017, the Minister's delegate refused to grant the Visa. The delegate did so on the basis that the appellant had failed to satisfy cl 500.212 of Schedule 2 on the footing that the delegate was not satisfied that the appellant intended "genuinely to stay in Australia temporarily" having regard to the factors set out in cl 500.212(a)(i) to (iv). 6 The appellant applied to the Administrative Appeals Tribunal (the "Tribunal") on 9 July 2017 for review of the delegate's decision. 7 By letter dated 18 February 2019 emailed to the appellant's solicitor and migration agent, the Tribunal invited the appellant to provide "information about the course(s) of study you are undertaking and your entry and stay in Australia as a student". Specific information was sought in accordance with a "Request for Student Visa Information" form. 8 By a letter dated 13 March 2019 to the appellant (also emailed to the appellant's solicitor and migration agent), the Tribunal invited the appellant to appear at a hearing before the Tribunal on 5 April 2019 and give evidence and present arguments relating to the decision under review. The letter requested the appellant to provide all documents upon which he intended to rely to establish that he met the criteria for the Visa and to provide, at least seven days before the hearing date, "a copy of your current Confirmation of Enrolment (COE)" or other documents showing that the appellant was currently enrolled in a "course of study" as defined in cl 500.111 of Schedule 2 to the Regulations. 9 On 3 April 2019, the appellant's solicitor and migration agent requested, by email at 15:43 an "extension of the hearing scheduled for this Friday until at least June 2019" on the footing that first, "we are unable to obtain substantial instructions" from the appellant and, second, the appellant was having difficulty obtaining a "new CoE due to his current visa status". The appellant's representative also said this: Our client will have better opportunities in May 2019 to obtain a new CoE as many institutes will start accepting applications for their July intake, in May 2019. The deadline to apply for the March intake has already passed for many institutions. Our client will therefore be able to start applying for a new CoE in May 2019 and be able to obtain a CoE by June 2019. 10 On 4 April 2019 by email at 12:46, the appellant's representative seems to have sent another email to the Tribunal in very similar (but not the same) terms. 11 By email on 4 April 2019 at 14:41, the Tribunal emailed a letter addressed to the appellant, to the appellant's representative referring to the appellant's request of 3 April 2019 for an extension of the hearing date (that is, an adjournment) advising that the request had been carefully considered by the Member and a decision had been made not to adjourn the hearing although the Tribunal would be happy to hear arguments in support of a request for an adjournment on the day of the hearing which was the next day, 5 April 2019. 12 On 5 April 2019, the appellant appeared before the Tribunal assisted by his representative. The hearing was not adjourned. The Tribunal notes these matters at [11] and [12] of the decision record dated 15 May 2019: 11. On 4 March 2019, the applicant provided a statement to the Tribunal asserting that he held a current Confirmation of Enrolment (COE) in a registered course of study. On 4 April 2019, the applicant's agent wrote to the Tribunal requesting a postponement of the hearing, until at least June as the applicant was having difficulty obtaining a COE. Information on file indicated that the applicant's last COE was cancelled for non-payment of fees in March 2018, and the applicant had been on notice of the hearing date for several weeks. The applicant's agent was advised that the Tribunal had determined not to adjourn the hearings but would be happy to hear arguments about an adjournment during the hearing on April 5. 12. The applicant appeared before the Tribunal on 5 April 2019 and gave evidence that he has not held a COE since March 2018, and that he has not been able to obtain one. 13 At [13], the Tribunal member notes that he orally put to the appellant that "as he had not held a COE since March 2018 and holds no current COE", the appellant did not appear to satisfy the requirements of cl 500.211 of Schedule 2 to the Regulations and that this might be all or part of the reason for affirming the decision under review". The Tribunal Member observed that he was putting these matters to the appellant "[a]dopting the procedures in s 359AA of the Act". The Tribunal Member clearly had in mind s 359AA(1)(a) of the Act. At [13] and [14], the Tribunal Member also makes these observations (which address the matters at s 359AA(1)(b) on the footing that the Tribunal Member saw himself as acting under s 359AA of the Act in putting matters to the appellant): 13. … The Tribunal explained that this [the matters quoted above] was a mandatory requirement for the grant of a Student visa and without it, questions of whether the applicant was a genuine applicant for entry and stay as a student under cl 500.212 of the Regulations, simply do not arise. 14. The Tribunal confirmed with the applicant that he understood this. The Tribunal invited the applicant to respond or comment and to request more time to do so if he wished. The applicant elected to respond and did so at some length, explaining his personal circumstances and emotional suffering, but he said ultimately that he had not been able to get a COE. 14 As noted at [13], the Tribunal Member explained that the matter that caused the Minister's delegate to not grant the Visa application was not a matter that had arisen on the review of the decision as the matter of concern to the Tribunal was the failure to satisfy one of the "primary" criteria for the grant of the Visa (described by the Tribunal Member as a "mandatory" requirement) that the "applicant is enrolled in a course of study" (cl 500.211(a)), at the date of the decision on the application. 15 At [15], the Tribunal Member accepted the evidence of the appellant and concluded that the Tribunal was not satisfied that "at the time of this decision, the applicant is enrolled in a course of study and accordingly cl 500.211 is not met". 16 The appellant did not seek to rely on any other matter in seeking to review the decision and having regard to the findings, the Tribunal affirmed the decision under review. 17 The appellant filed proceedings in the Federal Circuit Court of Australia on 3 May 2019 in the form of a "show cause procedure" calling upon the Minister to show cause why a remedy should not be granted in the exercise of that Court's jurisdiction under s 476(1) of the Act in the form of the grant of the constitutional writs contemplated by s 75(v) of the Constitution (that is, mandamus or prohibition; and certiorari as ancillary to mandamus: Re Refugee Review Tribunal; Ex Parte AALA (2000) 204 CLR 82, Gaudron and Gummow JJ at [14]). 18 Three grounds were relied upon in support of that application. 19 The grounds were expressed in broad general terms with no specificity and no particulars provided. The Federal Circuit Court dismissed the application with costs. 20 The appellant appeared before the primary judge on his own behalf as he does before this Court. However, in filing a notice of appeal from the orders of the Federal Circuit Court, the appellant was represented by "MyVisa Lawyers" (Nilesh Nandan, Lawyer). That lawyer, on 12 May 2021, filed a Notice of Ceasing to Act for the appellant. Thus, the appellant was unrepresented before this Court on the hearing of the appeal on 19 August 2021. 21 The appellant was not able to advance any argument in support of the grounds of appeal recited in the notice of appeal, no doubt formulated by his lawyer at the date of filing of the notice. The grounds recited in the notice of appeal are these: Grounds of appeal 1. The tribunal misconstrued [its] statutory power and function by finding it had no discretion but to affirm the decision under review when in fact it could have exercised a discretion to adjourn the matter. 2. The tribunal failed to act rationally or otherwise infected [its] decision with legal unreasonableness. PARTICULARS a. When purporting to meet [its] obligations under section 359AA [of the Act] the tribunal did not take reasonable steps to ensure that the review applicant understood that the failure to provide a confirmation of enrolment was fatal to his application and that he could have requested an adjournment in order to procure a confirmation of enrolment. Note: the appellant is unable to identify additional grounds as no written reasons have been provided by the court below. 22 The history of the provision of reasons to the appellant for the decisions of the Tribunal and the primary judge is as follows. The Tribunal provided written reasons for its decision on 15 May 2019. Those reasons were enclosed in a letter sent to the appellant by the Tribunal on 15 May 2019 in which the Tribunal said this: At the hearing on 5 April 2019 we notified you of our decision on your case and gave an oral statement of reasons for the decision. On 9 April 2019 we received a request for a written statement of the decision and reasons given orally at the hearing. The written statement is enclosed. A copy of the written statement of decision and reasons is also being given to the Department of Home Affairs. If you have any questions please email [inserting the Migration Review Division email address at the Tribunal] or contact me on the number listed below [number set out], or telephone our national enquiry line on [number set out]. 23 The decision of the primary judge was given orally on 20 July 2020 with orders made and reasons given ex tempore on that day. The ex tempore reasons of the primary judge were reduced to writing and published on 1 September 2020. The notice of appeal was filed by the appellant's lawyer on 17 August 2020. Accordingly, the notice of appeal to this Court recites as a note to both grounds that the appellant was unable to identify additional grounds as no written reasons had been provided by the Federal Circuit Court prior to the appellant being called upon to formulate the grounds of appeal. The reference in the "Note" to the appellant should be understood as a reference to both the appellant and the appellant's lawyer. The appellant's lawyer had formulated the grounds of challenge to the decision of the Tribunal. As already mentioned, in the proceedings filed in the Federal Circuit Court, the grounds upon which the appellant contended that the Tribunal had fallen into jurisdictional error, were expressed in broad general terms with no particularity. Those grounds were these: 1. The [Tribunal] failed to provide natural justice to the Applicant which is an error of law; 2. The [Tribunal] failed to afford procedural fairness to the Applicant as the [Tribunal] failed to take relevant information into consideration; 3. The [Tribunal] refuses to provide an extension of time to afford [procedural fairness] to the Applicant which is an error of law. 24 As to the first ground before the primary judge, the applicant failed to identify in any respect the basis upon which the Tribunal had failed to provide the appellant with natural justice. As to the second ground, the basis upon which the Tribunal was said to have failed to take relevant information into consideration was that the Tribunal had failed to take into account the appellant's explanation of his personal circumstances and emotional suffering arising out of his concern about the circumstances confronting his family in Nepal in reaching its decision to affirm the decision under review. As to the third ground, the appellant contended that the refusal to grant an extension of time was itself a failure to afford the appellant procedural fairness, and that failure was said to constitute an error of law. 25 As to the second ground, the Tribunal took those matters into account and as to the third ground, the basis upon which there was said to be a denial of procedural fairness was that the Tribunal had failed to adjourn the hearing to enable the appellant more time to respond to the Tribunal's concern that he did not hold a Certificate of Enrolment. The only basis put forward by the appellant for his failure to hold a Certificate of Enrolment at the date of the Tribunal hearing were facts going to his financial circumstances and emotional distress due to the circumstances confronting his family in Nepal. As explained later in these reasons in relation to the issue arising under s 359AA(1)(b)(iii) and (iv) of the Act, the provision of further time could not have provided an answer to the failure to hold a Certificate of Enrolment at the date of the Tribunal's hearing. Subject to observations later in these reasons concerning an observation of the primary judge in relation to s 359AA of the Act at [20] of the primary judge's reasons, the reasoning of, and the conclusions reached by, the primary judge in addressing these very broadly unspecified grounds of challenge before the Federal Circuit Court, do not reveal error. 26 As to the difficulty confronting the appellant and the appellant's lawyer in formulating grounds of appeal to this Court in the absence of written reasons for judgment, it must be kept in mind that the written reasons for judgment became available on 1 September 2020. The appellant's lawyer had filed the notice of appeal on 17 August 2020 and the "Notice of intention to cease to act" was given on 3 May 2021 with the "Notice of ceasing to act" filed on 12 May 2021. Accordingly, the appellant's lawyer (and thus the appellant) could have sought to file an amended notice of appeal at any time between 1 September 2020 and at the very least, 3 May 2021 (a period of eight months). However, no application was made for leave to amend the notice of appeal at any time after the receipt by the appellant (and his lawyer) of the written reasons for judgment. 27 As to ground 1 of the grounds of appeal, the Tribunal found that the requirement under cl 500.211(a) that the applicant for the Visa be enrolled in a course of study at the time when the Tribunal was called upon to make a decision on the application (on review) was a "mandatory requirement" otherwise described as one of the "primary criteria" under the Regulations. The Tribunal accepted the appellant's evidence that he had not held a Certificate of Enrolment ("COE") since March 2018 and concluded that the failure to satisfy the relevant requirement at the date of the Tribunal's review decision was fatal to his application. 28 The Tribunal noted that the appellant had been on notice of the hearing for "several weeks". By the date of the Tribunal hearing, the appellant had not held a COE for 13 months. The Tribunal could have elected to adjourn the hearing to enable the appellant to further investigate whether he could secure enrolment in a "course of study" as contemplated by cl 500.111 of the Regulations but the Tribunal was not obliged to do so and did not fall into error in the exercise of the power to adjourn or not, as there was a rational and intelligible basis for the decision to proceed with the hearing. 29 There is no jurisdictional error in the Tribunal electing to proceed with the hearing at the outset in the circumstances of the evidence before it. 30 As to ground 2 of the grounds of appeal, the text of the paragraphs of the Member's decision reasons quoted above make plain that the appellant was told (that is to say, given information about) the facts which the Tribunal considered to be the reason for affirming the decision and the Tribunal sought to ensure, reasonably and practically, that the appellant understood why the matters put to him were relevant to the review, and the consequences for him of the Tribunal acting on the information. 31 The Tribunal invited the appellant to respond and he chose to do so. 32 The appellant explained the personal factors relating to his family in his country of nationality which were said to have had a major emotional impact upon him. The statutory obligation in s 359AA(1)(b)(iii) and (iv) of the Act is that if the appellant seeks additional time "to comment on or respond to the information" (that is, the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, orally given to the appellant), the Tribunal must adjourn the review if the Tribunal "considers that the applicant reasonably needs additional time to comment on or respond to the information". 33 In this case, the relevant information put to the appellant was information concerning his failure to satisfy the requirement to hold a COE at the date of the decision. Thus, the Tribunal was required to consider whether the appellant reasonably needed additional time to comment on or respond to the information put to him orally. 34 In circumstances where the additional comments the appellant might have put to the Tribunal would concern an explanation for non-compliance with the requirement to hold a COE at the date of review (and recognising that the appellant had not held a COE for such a long period of time prior to the Tribunal hearing), due to the emotional factors relating to his family's circumstances in Nepal, any additional time to provide comments on that topic would not answer the Tribunal's proper concern about the appellant's failure to satisfy the primary requirement to hold a COE at the date of the Tribunal's decision. There was no discretion to be exercised by the Tribunal relieving the appellant of the need to comply with the primary criteria should something in the nature of humanitarian considerations have prevented the appellant from complying with the relevant requirement. There was no suggestion at the hearing that a short adjournment would have resulted in a relevant institution providing the applicant with a COE which was otherwise pending or that there was any prospect whatsoever of the appellant obtaining a COE within a reasonable period of time. 35 Neither ground of appeal has any merit or any prospect of success. 36 Before this Court, the appellant sought to support his grounds of appeal on the footing that he had failed to obtain a COE by the date of the hearing before the Tribunal and for a period of many months before that, because he was in a "state of shock" for six to seven months due to the circumstances confronting his family in Nepal as a result of an earthquake and aftershocks from the earthquake; he found himself not in a "proper mental state"; he "could not get over it"; he made the "wrong decisions"; he "couldn't concentrate"; and his family was suffering from financial strain. 37 These circumstances were no doubt very distressing, disturbing and worrying for the appellant. However, the appellant had not held a COE since March 2018 and by 18 February 2019, the Tribunal was making it plain that it would need to have before it information about a course of study being undertaken by the appellant and would need to have produced to it a COE. That matter was pressed again with the appellant on 13 March 2019. 38 The request for the adjournment was not made until late on 3 April 2019 with the hearing commencing on the morning of 5 April 2019. There was no evidence that an enrolment application had been lodged or that a COE was pending from any relevant institution. The evidence before the Tribunal was that the appellant intended to start applying in May 2019 for entry to courses (and in consequence for a COE), and by June 2019 the appellant hoped to be able to produce a COE. The evidence was that he had missed the "March intake" for seeking confirmation of entry to a relevant institution and production of a COE to the Tribunal. 39 The appeal to this Court, based on the grounds of appeal as set out in the notice of appeal, would be unsuccessful. 40 The appeal from the orders of the Federal Circuit Court is an appeal from orders dismissing an application for an order that the Minister show cause, as earlier described. A dismissal of such an application is an "interlocutory" order or judgment: r 44.12(2), Federal Circuit Court Rules 2001 (Cth). That being so, although this Court has jurisdiction to hear appeals from the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth (s 24(1)(d), Federal Court of Australia Act 1976 (Cth)), an appeal shall not be brought from an interlocutory judgment of the Federal Circuit Court without the leave of this Court: s 24(1A). 41 No application for leave was made prior to the hearing of the appeal. Having raised this issue with the appellant at the hearing of the appeal, the Court proceeded on the basis that the applicant is now seeking leave to appeal to agitate the grounds set out in the notice of appeal. 42 The Minister does not assert any prejudice. 43 In relation to the application for leave to appeal, the first question for this Court is whether the decision of the primary judge is attended with sufficient doubt to warrant reconsideration. At [20], the primary judge observes that the Tribunal "bent over backwards to ensure that the Applicant had the fairness to which he was entitled [in] s 359AA, even though it may be thought that there was no need for the Tribunal to utilise that section of the Act". Once the Tribunal elected to orally give to the appellant clear particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review, the Tribunal was required to act in conformity with s 359AA(b) of the Act. Moreover, the Tribunal expressly stated that it was acting, in providing the information to the appellant, under s 359AA of the Act. The primary judge does not appear to have examined whether the elements of the Tribunal's decision meet the mandatory requirements of s 359AA and I would respectfully disagree with the proposition at [20] of the primary judge's reasons that there was "no need for the Tribunal to utilise that section of the Act" if it is intended to convey that there was no need for the Tribunal to meet the requirements of the section once it had elected to engage with the section. Thus, I am satisfied that there is arguable error on the part of the primary judge but I am not satisfied that the grounds of appeal to this Court as framed would be likely to succeed should leave be given. Nevertheless, because I am concerned that the primary judge has not engaged with the elements of s 359AA to which the Tribunal turned, I am not satisfied that the proper course is to refuse leave to appeal. I will turn to the question of prejudice to the appellant shortly. I have considered the grounds of appeal and the material fully for the purpose of determining both the question of whether leave ought to be granted, and the substance of the grounds should leave be granted. For the reasons mentioned, I propose to grant leave to appeal. However, having granted leave to appeal, I am not satisfied that the grounds of appeal as framed have any merit. 44 As to the question of whether the appellant would suffer substantial injustice if leave to appeal were refused, on the assumption that the decision of the primary judge is wrong, it is important to remember that the appellant has not been enrolled in a course of study since March 2018. Even then, the enrolment was cancelled for non-payment of fees. The concerns articulated by the appellant to the Tribunal (and to the Federal Circuit Court and this Court) suggest that the financial circumstances of the appellant have been severe. The Minister also emphasises that of the various courses of study the subject of the Visa application, the latest completion dates were March 2018 for one of the many courses and July 2018 for another. Having regard to all of these factors, the notion that substantial injustice would result if leave were refused, assuming for the purposes of the analysis, the decision of the primary judge to be wrong, seems remote. However, in the face of arguable error as described earlier, I am not satisfied that the proper course is to refuse leave to appeal. 45 Although there is no express contention that the appellant suffered a denial of procedural fairness by having to file a notice of appeal without access to the written reasons of the primary judge, I have considered the chronology of events relating to the publication of the written reasons having regard to the "Note" to the grounds of appeal recited in the notice of appeal. As the written reasons were available for as many as eight months before the appellant's lawyer ceased to act, any ground of appeal identifying contended error on the part of the primary judge that might have been raised, could have been raised within that period. 46 Accordingly, the application for leave to appeal from the interlocutory judgment of the Federal Circuit Court of Australia given on 20 July 2020 will be granted. 47 However, for the reasons indicated, the appeal must be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.