Kaur v Minister for Immigration and Border Protection

Federal Court of Australia|2016-02-23|Before: Perry J

The appeal is dismissed.
Costs are reserved.
On or before 4.00pm on 8 March 2016, and if so advised, the first respondent file and serve any submissions as to the appropriate order as to costs.
On or before 4.00pm on 22 March 2016, the appellants file and serve any submissions in response.
On or before 4.00pm on 29 March 2016, the first respondent file and serve any submissions in reply.
Subject to considering any objection by the parties, the decision on the issue of costs will be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRY J:

INTRODUCTION 1
BACKGROUND 2 2.1 The application for the visa and the delegate's decision 2 2.2 The decision of the Tribunal 3 2.3 The decision of the Federal Circuit Court 4
CONSIDERATION 5 3.1 The Tribunal's decision to determine the review despite the appellant's failure to appear 5 3.2 Did the Tribunal err in failing to have regard to the appellant's alleged difficulties in enrolling? 7 3.3 Was there a failure by the Tribunal to comply with s 359A of the Act? 9 3.4 Should relief be refused in the exercise of the Court's discretion? 12
CONCLUSION 13

INTRODUCTION 1 This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal, which is now the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the then Minister for Immigration and Citizenship (the delegate) not to grant the first appellant, Ms Jasjit Kaur, a Student (Temporary) (Class TU) visa and therefore not to grant visas to the members of her family unit. 2 Before this Court, the appellants seek to "quash the decision of the Federal Circuit [C]ourt and the AAT" and, in order to give efficacy to that order, by implication to remit the matter to the Tribunal for a decision according to law. The ground of appeal raised in the notice of appeal is as follows: I had pointed out Jurdictional error in the tribunals judgement in my Application for Federal circuit court but Respected Judge turned my application down. Error in Tribunals judgment: Respected member of Tribunal stated that I do not have my current enrolment or offer and do not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231. my visa was refused for the college I applied to study for. I tried to enrol in the college but no one enrol me as my visa was refused. There was no way I can study. Tribunal should know this problem and should have considered while making decision. Many students face same problem of enrolment after visa refusal. Tribunal made error by not considering this problem of students. (errors in original.) 3 Subject to modifications relevant to the nature of these proceedings as an appeal, the ground of appeal is the same as the ground of judicial review raised in the Federal Circuit Court. 4 The issues as they arise from the ground of appeal and the Minister's careful submissions are whether the primary judge erred in failing to find that the Tribunal: (1) erred in proceeding to make a decision on the review without taking any further action to allow or enable the appellants to appear before it; (2) erred in failing to have regard to Ms Kaur's alleged difficulties in enrolling in a course of study; and (3) failed to comply with s 359A of the Migration Act 1958 (Cth) (the Act) in failing to provide clear particulars and an opportunity to comment on computer database records accessible by the Tribunal (PRISMS) which showed that the appellant was not currently enrolled in any course. 5 Finally, the Minister submitted that, even if the Tribunal erred in a jurisdictional sense, relief should be denied in the exercise of the Court's discretion. 6 For the reasons set out below, I consider that the Tribunal acted in breach of s 359A of the Act in failing to afford the appellant the opportunity to comment on the PRISMS records. However, relief should be denied in the exercise of discretion on the ground that it would be pointless to grant relief in circumstances where, on the appellants' own case, Ms Kaur could not satisfy the statutory criteria for the grant of a student visa and therefore, neither her husband nor their child could satisfy the criteria for a visa applicable to them.

2.1 The application for the visa and the delegate's decision 7 On 1 June 2013, the appellants applied for the visa to undertake study in Australia. The first appellant, Ms Kaur, was the primary applicant for the visa. Ms Kaur applied for eight subclasses of visa: Independent ELICOS Sector (TU 570), Schools Sector (TU 571), Vocational Education Sector (TU 572), Higher Education Sector (TU 573), Postgraduate Research Sector (TU 574), Non-award Sector (TU 575), AusAID/Defence Sector (TU 576) and Student Guardian (TU 580). The second and third appellants are Ms Kaur's husband and child respectively, and were included in the visa application as members of her family unit. 8 On 15 July 2013, a delegate of the Minister refused to grant the visas sought by the appellants. The delegate concluded that Ms Kaur did not meet the legal requirements for the grant of a Vocational Education and Training Sector 572 visa, because she did not provide evidence that she would have access to funds as was required by reg 572.223(2)(a) and cl 5A405 of Schedule 5A of the Migration Regulations 1994 (Cth) (the Regulations). As to the other subclasses, the delegate considered that "no claims have been made against the criteria of any of these subclasses, nor is there any evidence before me to indicate that they could satisfy the criteria of any of the above subclasses." The delegate noted that the appellants did not satisfy the primary criteria for any of the remaining subclasses because: • [they] were not enrolled in, or have not been offered a place in, a principal course of study that has been specified by Gazette Notice as a type of course for any of these subclasses • (in the case of subclass 576) did not have the support of the AusAID Minister or the Defence Minister for the grant of the visa (clause 576.229 of the Regulations). 9 As Ms Kaur's application for the grant of a student visa was refused, her husband and child were also refused visas.

2.2 The decision of the Tribunal 10 On 31 July 2013, the appellants filed an application for review in the Tribunal. 11 On 19 August 2014, an officer of the Tribunal wrote a letter to Ms Kaur inviting her to appear before the Tribunal at 1.00pm on 22 September 2014. In the letter the officer requested that Ms Kaur provide all documents on which she intended to rely to establish that she met the criteria for the visa at least seven days before the hearing. The letter further requested that the appellant provide information to the Tribunal, including relevantly: 1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa. 2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa. 3. … 4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation. 12 However, the appellants failed to attend the hearing on 22 September 2014 and attempts to contact them on Ms Kaur's mobile phone were unsuccessful. 13 On 23 September 2014, the Tribunal affirmed the decision not the grant the visas to the appellants. The Tribunal identified the issue as "whether, at the time of this decision, the applicant [Ms Kaur] meets the enrolment requirements for a student visa" contained in cl 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Regulations, being those provisions applicable to each of the subclasses of visa for which Ms Kaur applied. As the Tribunal explained at [10] of its reasons, subject to limited exceptions not raised by the evidence, the clauses "require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application." 14 The Tribunal found that Ms Kaur did not meet those requirements on the ground that there was no evidence before it that she was enrolled, or had a current offer of enrolment, in any applicable course of study. In so finding, the Tribunal took into account that the computer database records accessible by the Tribunal (PRISMS), which showed a history of the applicant's enrolments since her arrival in Australia, indicated that she had no current enrolment.

2.3 The decision of the Federal Circuit Court 15 On 20 October 2014, the appellants applied for judicial review of the Tribunal's decision in the Federal Circuit Court. That application was refused including on the grounds that the Tribunal's decision was inevitable given that Ms Kaur had put forward no evidence of her enrolment to the Tribunal (at [15]) and that there was nothing unreasonable or capricious about the Tribunal's decision to proceed to determine the review after the appellants failed to attend the hearing. As to the use by the Tribunal of the PRISMS records, the Minister submitted in the Court below (as here) that "the PRISMS information 'represented an absence of evidence that the applicant was enrolled [sic] the study'", relying on the decision in Khadka v Minister for Immigration and Border Protection [2014] FCCA 1461 (Khadka). That submission appears to have been accepted by the primary judge who found at [21] that: The basis of the Tribunal's refusal of the decision was that there was "…no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment, in any applicable course of study".… That should have been so whether or not the Tribunal took the PRISMS document into account. Its importance was that the Applicant had not enrolled and had no offer of enrolment as required for the grant of the visa. As such, the PRISMS information was not "information" for the purposes of s.359A and in any event the Applicant provided no evidence to the Tribunal of meeting the criteria for the grant of the visa.

3.1 The Tribunal's decision to determine the review despite the appellant's failure to appear 16 Section 362B of the Act confers power on the Tribunal to decide to proceed to determine an application for review notwithstanding the failure by the applicant to appear at the hearing in response to an invitation. Specifically, s 362B provides: (1) If the applicant: (a) is invited under section 360 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled. 17 It was not in dispute that the preconditions for an exercise of the power in s 362B of the Act were met. As earlier mentioned, by letter dated 19 August 2014 the Tribunal had invited Ms Kaur to give evidence and present arguments at 1.00pm on 22 September 2014 but none of the appellants appeared. The Tribunal therefore had power to proceed to decide the review without taking further action to enable the appellants to appear. However, that power must nonetheless be exercised reasonably. The standard of reasonableness in this context was explained by the plurality (Hayne, Kiefel and Bell JJ) in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 as follows: 68 ... The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury… ... 72 ... Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense. 18 Their Honours concluded at [76] that, "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification." 19 I do not consider that the Tribunal's decision in this case falls into this category. 20 First, the letter inviting Ms Kaur to appear included an invitation to produce evidence such as a copy of the current certificate of enrolment in a course or an offer of enrolment, and requested that information be provided before the hearing. As such, the letter drew Ms Kaur's attention specifically to the issue on which the Tribunal ultimately affirmed the delegate's decision - a matter of particular significance as it was not the same ground as that on which the delegate had decided the application adversely to the appellants. 21 Secondly, the letter specifically cautioned that: If you are not able to participate in this hearing, you need to advise me as soon as possible. Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment. If the Tribunal does not advise you that an adjournment has been granted you must assume that the hearing will go ahead. If you do not participate in the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it. The Tribunal may make a decision at the end of your hearing. (Emphasis added) 22 As such, the appellants were on notice of the potential consequences of a failure to appear. 23 Thirdly, the Tribunal found in its reasons that the appellants were reminded of the hearing by SMS messages sent to Ms Kaur's mobile telephone on 15 and 19 September 2014. The Tribunal also explained in its reasons at [6] that: Attempts made on 22 September 2014 to telephone the first named applicant [Ms Kaur] on her mobile telephone number were unsuccessful. In addition to the three telephone calls made between 1:20 PM and 1:30 PM, two further calls were made at 2:17 PM and 2:31 PM (Melbourne time being half an hour ahead of South Australian time). The telephone calls were made to the number advised by the applicants and confirmed in the hearing response form which was lodged with the tribunal on the day of the hearing. 24 Thus the Tribunal concluded at [7] of its reasons that: As set out above, the tribunal advised the applicants by letter and by mobile telephone messages of the hearing date and time. The applicants have not subsequently contacted the tribunal to explain their absence or to seek a further hearing. The tribunal is satisfied on the basis of the completed hearing response form that the applicants were aware of the hearing arrangements. No further information has been provided to the tribunal, such as evidence of enrolment. The applicants had been invited to provide such evidence and lodge that with the tribunal seven days prior to the hearing. They have not done so not [sic] or explained that failure. In accordance with section 362B of the Migration Act the Tribunal determined to decide the matter without taking any further action to allow or enable the applicant to appear before it. 25 As such, the Tribunal gave an explanation for its decision for proceeding in the appellants' absence and that explanation cannot be said to be unreasonable. In contrast with the decision of North ACJ in AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 who held that the Tribunal fell into jurisdictional error when it failed to make any attempt to contact the appellants on the phone number they had given to the Tribunal when they failed to appear, the Tribunal here made multiple attempts to contact the appellants.

3.2 Did the Tribunal err in failing to have regard to the appellant's alleged difficulties in enrolling? 26 As in the Court below, the appellant alleges in essence that the Tribunal should have known that her enrolment was refused by her college as she was no longer holding a student visa, and the Tribunal should have taken this into account when considering whether she had a current enrolment. Whether that submission should be accepted depends upon the statutory criteria which the Tribunal was bound to apply. 27 Section 65(1) of the Act provides that, after considering a valid application for a visa, the Minister "is to grant the visa" if satisfied that the criteria prescribed by the Act and regulations are satisfied and, if not so satisfied, "is to refuse to grant the visa". By s 349 of the Act, on a review the Tribunal may exercise all of the powers and discretions conferred by the Act on the person who made the decision. It is well established that the Tribunal therefore "stands in the shoes" of the Minister or Minister's delegate to make the correct or preferable decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 314 [96]-[98] (Hayne and Heydon JJ); SZURL v Minister for Immigration and Border Protection [2015] FCA 864 at [5] (Katzmann J) (by analogy). As such, it is for the Tribunal on review to be satisfied that the relevant criteria have been met. 28 Section 31(3) of the Act provides that the regulations may prescribe the criteria for a visa or visas of a specified class. Regulation 2.03 of the Regulations prescribes the criteria for the grant of a visa for the purposes of s 31(3) and provides that: (1) For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulations 2.03A and 2.03AA, the prescribed criteria for the grant to a person of a visa of a particular class are: (a) the primary criteria set out in a relevant Part of Schedule 2; or (b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria. (emphasis added.) 29 In this case, the primary criteria to be satisfied were those applicable to the relevant subclasses set out above. By way of example, the primary criteria to be satisfied at the time of the Tribunal's decision included cl 570.232 of Schedule 2 of the Regulations which required that: The applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is: (a) a principal course; and (b) of a type that was specified for Subclass 570 visas by the Minister in a legislative instrument: (i) made under regulation 1.40A; and (ii) in force at the time the application was made. 30 An equivalent criterion is prescribed for the other classes of visa for which Ms Kaur applied. Importantly, the primary criteria are prescribed in mandatory and exhaustive terms, as is apparent in particular from the phrase in reg 2.03 that "the prescribed criteria … are". The language does not indicate the existence of any discretion. In this regard, the language used by the legislator is the surest guide to legislative intent: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ). It follows that in my view that the legislator intended that the primary criteria must be met before a visa can be granted in line with s 65(1) of the Act. It also follows that, where these criteria are not satisfied, the Tribunal has no option under s 65(1) but to affirm the decision of the Minister's delegate not to grant the visa. 31 I therefore agree with the primary judge that, where there was no evidence of current enrolment or of an offer of enrolment before the Tribunal, it was not open to the Tribunal to grant a visa for those subclasses for which the appellant applied. The reasons why an applicant may be unable to satisfy those criteria are not relevant in the absence of any discretion.

3.3 Was there a failure by the Tribunal to comply with s 359A of the Act? 32 The Minister submitted that the primary judge was correct to hold that the PRISMS document referred to in the Tribunal's reasons was not "information" required to be disclosed to the appellant under s 359A of the Act. That section provides that: (1) Subject to subsections (2) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. … (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information. 33 By reason of s 359A(2), the means by which the Tribunal may give information here are specified in s 379A of the Act and include handing the document to the person or sending it by post to the last address for service or last known residential or business address provided to the Tribunal. 34 Section 359A imposes a mandatory obligation upon the Tribunal to give information in accordance with the provision and a failure to comply with that obligation is a jurisdictional error which therefore invalidates the decision: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 (SAAP) at 317-318 [68]-[71] and 321-322 [77] (McHugh J), 345-346 [173] (Kirby J) and 353-355 [204]-[208] (Hayne J), and SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (SZBYR) at 1195 [13] (by analogy). Nor is the operation of the provision limited to the pre-hearing stage: SAAP at 315-316 [60]-[63] (McHugh J), 341 [154] (Kirby J) and 348 [185] (Hayne J). However, amendments since SAAP and SZBYR make it clear that the requirement in s 359A(1) does not apply where the Tribunal orally gives the applicant particulars of the information in question at the hearing and invites the applicant to comment or respond (see s 359AA, inserted by the Migration Amendment (Review Provisions) Act 2007 (Cth)). 35 Section 424A and, by analogy, s 359A, depend upon the Tribunal's opinion that certain information "would" be the reason or part of the reason for affirming the decision under review: Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 (SZLFX) at 514 [24] (the Court). In this regard, the High Court has emphasised that it is information that "would", and not "could" or "might", be the reason or part of the reason for affirming the decision under review that attracts the obligation under these provisions (SZLFX at 514 [25]). In turn, the reasons of the Tribunal will reveal what counted against an unsuccessful visa applicant and whether there was information in respect of which the appellants should have been afforded an opportunity to comment under these provisions (SZLFX at 514 [26]). 36 The Tribunal here relevantly found at [11] of its reasons that: Computer database records accessible by the tribunal (PRISMS) , showing a history of the applicant's enrolments since her arrival in Australia, indicate that her enrolment in a Certificate IV in Hospitality course (due to be finished on 30 June 2014) was cancelled on 10 October 2013 for non-commencement of studies. No current enrolment was shown in those records and therefore they are not of assistance to the first named applicant. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl. 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met. 37 As such, the Tribunal's decision turned on the fact that there was no evidence of enrolment or of any offer of enrolment before it and this finding was based in part on its finding that no current enrolment was shown in the PRISMS record. That record was information specifically about Ms Kaur and was not given to the Tribunal by any of the appellants but accessed by the Tribunal. As such, if it was information for the purposes of s 359A of the Act, the Tribunal was not exempted from compliance with the obligation under s 359A(1) by reason of the information being of a kind which fell within s 359A(4). 38 However, as earlier mentioned the Minister submitted that the PRISMS report was not "information" required to be disclosed under s 359A in this case for the reason stated by Cameron J in Khadka. In Khadka, it was also the case that the PRISMS database did not indicate that the applicant was enrolled in any course of study. Given the lack of evidence, the Tribunal was, as in this case, not satisfied that the applicant was enrolled, or was the subject of a current offer of enrolment, in any relevant course of study. In the passage relied upon by the Minister, Cameron J concluded at [23] that: …the Minister referred to the possibility that the Tribunal's reference to or reliance on the information contained in the PRISMS documents reproduced in the Court Book, which was exhibit A in this proceeding, without putting those documents to the applicant, represented a breach of s.359A of the Act. However, those documents represented an absence of evidence that the applicant was enrolled to study, not evidence that he was not enrolled. As such, it was not information which s.359A required be disclosed. 39 As also earlier mentioned, a submission to the same effect appears to have been accepted by the primary judge in this case. 40 With respect, in my view that approach is not consistent with the construction adopted by the High Court in SZBYR with respect to the analogous obligation in s 424A. The submission by the Minister to the contrary must be rejected. 41 In SZBYR, the appellants contended that the requisite "information" for the purposes of s 424A was the appellants' statutory declaration in support of their protection visa applications from which inconsistencies relied upon by the Refugee Review Tribunal adversely to the appellants were said to arise (SZBYR at 1195 [15]). In rejecting that submission, the plurality found, first, that the Tribunal's reason for affirming the delegate's decision is a matter which depends upon the statutory criteria for the making of that decision in the first place (at 1195 [17]). However, their Honours held at 1195-1196[17] that "[w]hen viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be 'information that the Tribunal considers would be the reason , or a part of the reason, for affirming the decision that is under review'" (emphasis added). To the contrary, their Honours pointed out that, if believed, they would have been a relevant step towards rejecting the decision under review. 42 Secondly and more relevantly here, the plurality held at 1196 [18] that: …conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information". does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. (emphasis added.) 43 In short, in my view it is clear from these passages that mere deficiencies in a visa applicant's evidence, such as a lack of evidence on a statutory criterion, do not constitute "information" for the purposes of s 359A. Rather, as their Honours explain in SZBYR, section 359A is concerned with the existence of evidentiary material or documentation on a statutory criterion. 44 So understood it is apparent that the PRISMS record was not a mere absence of evidence on an essential statutory criterion. It was evidentiary material showing that there was no record of any current enrolment by the appellant in that database, contrary to the statutory criterion requiring that there be enrolment. That evidentiary material in turn formed part of the reason for the decision that the appellant had failed to satisfy that statutory criterion and therefore for affirming the decision on review. The fact that the evidentiary material was used by the Tribunal as, in effect, "proof of a negative", that is in support of its finding that there was an absence of evidence in the appellants' favour, did not exempt the Tribunal from complying with s 359A and affording the appellants an opportunity to comment on the adverse evidentiary material.

3.4 Should relief be refused in the exercise of the Court's discretion? 45 The grant of constitutional writs, as is the tenor of the relief sought in this case, is a matter of discretion. As Gaudron and Gummow JJ held in Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 108 [56]: Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd. Their Honours said: "For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld." 46 Thus, for example, in SZBYR at 1198 [29] the Court held that, even if jurisdictional error had been established, it would have declined the grant of relief on discretionary grounds. In particular, the plurality found at 1198 [29] that: The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the tribunal's finding that their claims lack the requisite Convention nexus. The appellants' case… was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse". 47 Equally in this case, the grant of relief would be futile, as the Minister submits. This is because the very issue which Ms Kaur takes with the Tribunal's decision is that she cannot enrol in a course or obtain an offer of enrolment because her application for a visa was refused and this was a matter which the Tribunal failed to take into account. As she explained in her grounds of appeal, "I tried to enrol in the college but no one enrol me as my visa was refused. There was no way I can study. Tribunal should know this problem and should have considered while making decision." However, as I earlier held, these were not difficulties which the Tribunal was entitled to take into account. It had no discretion. If Ms Kaur was not enrolled or had no offer of enrolment, the Tribunal was required to reject her application and, as a consequence, the applications by her family. As such, the appellants ultimately take issue with the criteria laid down by the legislator, rather than with the Tribunal's decision itself.

CONCLUSION 48 For the reasons set out above, the appeal should be dismissed. I will hear the parties as to costs. However, subject to hearing from the parties, I am tentatively of the view that the appropriate order is that there be no order as to costs given the existence of jurisdictional error in the Tribunal's decision, contrary to the Minister's submissions, and the fact that, while relief has been refused, this is not because of any delay or other conduct by the appellant which might be subject of criticism. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

Migration Amendment (Review Provisions) Act 2007(Cth)

Migration Act 1958(Cth)ss 31(3), 359A, 362B

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Judgment (11 paragraphs)

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Cited By (6)