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

Review by the Tribunal 11 As has already been said, Mr Khadgi applied to the Tribunal on 17 July 2017 for a review of the decision to refuse him a student visa. By email dated 20 July 2017, the Tribunal wrote to Mr Khadgi's migration agent acknowledging the application for review and enclosing a document entitled 'Information for migration review applicants - MR Division'. 12 The Tribunal wrote again to Mr Khadgi's migration agent by email dated 20 February 2019 for the purpose of inviting Mr Khadgi to provide information, as was required by s 360 of the Migration Act 1958 (Cth). Of significance to the subsequent decisions that have been made in respect of Mr Khadgi's visa application, that letter stated: As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be: • enrolled in a registered course of study; and • a genuine applicant for entry and stay as a student. Accordingly, you are now invited to give, in writing, information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. The letter included a link to the 'Request for Student Visa Information form' (RSVI form) which could be completed on-line or printed and returned in hard copy to the Tribunal. The letter also attached Ministerial Direction No 69 'Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications'. The RSVI form was required to be returned to the Tribunal by 6 March 2019. 13 Mr Khadgi completed the RSVI form on-line and submitted it to the Tribunal on 26 February 2019. In so doing, Mr Khadgi answered the following question affirmatively: Do you and any other applicants consent to the Tribunal deciding the review without a hearing? Under the drop box in which the answer was given, the following appears: Note: If you consent to us deciding your review without a hearing: • We will make a decision on your application based on the information and evidence before us, and you will not be invited to appear at a hearing to give evidence and present arguments relating to the issues arising from the decision under review. This means we may either affirm or set aside the decision under review. Please see our Information about Decisions fact sheet for more information about different types of decisions and what happens once we've made our decision. • Please provide us with all the information you would like us to consider in deciding whether you meet the criteria for a student visa. We may make our decision at any time after the period for responding to this invitation has passed. You can upload additional information at the end of this form. • If there is more than one review applicant, you may only consent to us deciding the review without a hearing if you have the authority of each applicant to do so.

Appeal from the FCC 14 Although not entirely clear, ground one as framed either asserts an error of law by the FCC in failing to find jurisdictional error on the part of the Tribunal in receiving consent in an ambiguous manner, or jurisdictional error committed by the FCC, namely that the decision was legally unreasonable. 15 As to whether there was jurisdictional error by the FCC, it must be kept in mind that the FCC is an inferior court and its decisional freedom and corresponding immunity from jurisdictional error is broader than that of an administrative decision maker: SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 at [20]. This was made clear in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, at 179-180 where the High Court said in relation to the difference between administrative decision makers and inferior courts: If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise of purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. 16 Before the primary judge, Mr Khadgi argued that he did not understand the wording in the RSVI form under the heading 'Hearing Information' and that he completed the form in a rush without adequate time to reflect before he made certain answers. 17 The primary judge extracted the relevant sections of the RSVI form, including Mr Khadgi's response to the question 'Do you and any other Applicants consent to the tribunal deciding the review without a hearing?' and the notation which described the consequences of consenting to a review without a hearing. In circumstances where Mr Khadgi was at all times represented by a migration agent, the primary judge's finding that Mr Khadgi failed to demonstrate that the wording in the RSVI form was confusing or unintelligible was neither illogical nor irrational such as to reach the high bar required to demonstrate jurisdictional error on the grounds of unreasonableness. 18 Nor was there any error within jurisdiction. The Tribunal proceeded to make its decision without a hearing on the basis of the consent that had been given by Mr Khadgi, as it was entitled to do by virtue of s 360(2)(b) of the Migration Act. The Tribunal recorded Mr Khadgi's consent to the Tribunal's deciding the review without a hearing. The primary judge's conclusion that there was no ambiguity as to whether consent was given (Reasons [22]-[23]) cannot be criticised. 19 Ground one cannot succeed. 20 Grounds two and three challenge the manner in which the Tribunal sought to determine the review on the papers, without, it is contended, providing full disclosure regarding the consequences of such consent. Mr Khadgi contends that the Tribunal acted outside the scope of its jurisdiction and against 'the spirit' of the Migration Act, and that the primary judge erred in failing to so find. 21 There is no substance in Mr Khadgi's contention that it is contrary to the 'spirit' of the Migration Act to ask an applicant if he or she consents to a review without an oral hearing. The text of the Migration Act itself contemplates that the Tribunal is not required to invite an applicant to appear before it in circumstances where the applicant consents to the Tribunal deciding the review without the applicant appearing before it (s 360(2)(b)). An applicant can only consent, or decline, if an applicant is asked the question. That is what the RSVI form did. In fact, the text of the Act goes further by providing, in s 360(3), that if any of the paragraphs of subsection (2) apply, the applicant is not entitled to appear before the Tribunal (emphasis added). 22 As is apparent from the 'Note' under the question in which consent is sought, the consequences of giving consent are explained on the RSVI form. An applicant is told: We will make a decision on your application based on the information and evidence before us, and you will not be invited to appear at a hearing to give evidence and present arguments relating to the issues arising from the decision under review. 23 It is not clear what more could be required to explain the consequences. Any applicant has the opportunity to decline to provide consent and to proceed to a hearing. 24 The primary judge considered that there was nothing apparent in the electronic form which amounted to a solicitation and there were no circumstances that meant Mr Khadgi's will was overborn when asked the straightforward question of whether or not he consented to a review without a hearing. Mr Khadgi did not challenge the primary judge's finding that Mr Khadgi had conceded that the migration agent was helping him (Reasons [31]). 25 Again, particularly in circumstances where Mr Khadgi was represented by a migration agent at the time when he was sent the RSVI form, no error on the part of the primary judge is demonstrated. 26 Grounds two and three cannot succeed. 27 Ground four complains that the FCC failed to find that Mr Khadgi was not provided with a meaningful review process on the basis that the review was finalised on the papers without a hearing. 28 The primary judge found that the wording on the RSVI form made it very clear that, should Mr Khadgi consent to the Tribunal's deciding the review without a hearing, there would be no hearing. The primary judge extracted the relevant section of the RSVI form (Reasons at [4]). 29 In addition to the parts of the RSVI form that have already been referred to above, the form asked the question: Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study? Mr Khadgi answered, 'No'. 30 Under the heading 'Document upload', the RSVI form says: The information requested on this page relates to all applicants included in the review application. Any additional information you wish to give in support of your application may be uploaded here. Information in a language other than English must be accompanied by a translation from a qualified translator. If you wish to provide additional information after you have submitted this form, do not complete this form again. You may instead provide information by one of the methods on the Contact Us page of our website. You can upload multiple files by clicking the Add Document button. … (emphasis in original) In answer to the question, 'Do you want to provide any additional documents now?', Mr Khadgi answered, 'No'. 31 No error is shown in the primary judge's finding that the completed RSVI form, once submitted, became part of the record of the Tribunal. The information that the Tribunal had before it included direct evidence from Mr Khadgi that he did not have a current CoE in a registered course of study, nor had he been enrolled in a registered course since November 2017 as the holder of a student visa. The Tribunal therefore had before it all the information which was relevant to the issue that was dispositive. No obligation under s 359A of the Migration Act arose: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. Further, as observed by the primary judge, Mr Khadgi had been notified in the letter of 20 February 2019 that, as he had applied for the visa on the basis of undertaking a course of study, it is a requirement of the visa for you to be enrolled in a registered course of study (Reasons [25]). 32 The primary judge was correct to find that Mr Khadgi was put on notice that a current CoE was a requirement of the visa and that Mr Khadgi had an opportunity to put information before the Tribunal in and through the RSVI form, which Mr Khadgi submitted to the Tribunal (Reasons at [27]). As is indicated in the relevant extract from the RSVI form under the heading 'Document Upload', Mr Khadgi also had the opportunity to provide additional information after he had submitted the form. 33 No criticism can be made of the primary judge's finding that Mr Khadgi himself elected not have a hearing and that the Tribunal did nothing to limit Mr Khadgi's ability to put arguments before it (Reasons at [27]). 34 Similarly, no error is shown in his finding that, in the absence of a current CoE, Mr Khadgi did not satisfy the requirements of cl 500.211 of the Regulations and there was therefore no obligation on the Tribunal to consider the requirements of cl 500.212 (Reasons at [28]). That would have been an exercise in futility. 35 Ground four cannot succeed.

Conclusion 36 For the reasons given, the appeal must be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice SC Derrington.