Khant v Minister for Immigration and Citizenship

Khant v Minister for Immigration and Citizenship - [2009] FCA 1247 - FCA 2009 case summary — Zoe

[33]

APPEAL TO THIS COURT 27 By Notice of Appeal filed on 12 May 2009 the appellant raised three grounds of appeal. At the hearing the appellant sought to rely upon an Amended Notice of Appeal containing five grounds of appeal. The Minister objected to the appellant being granted leave to rely upon both the original Notice of Appeal and the Amended Notice of Appeal on the ground that the issues raised in both the Notices of Appeal had not been raised before the Federal Magistrate. To enable the Court to consider both the appellant's and the Minister's submissions the Court granted leave to the appellant to file in Court the Amended Notice of Appeal. 28 The first submission of the appellant, as it was made orally, contended that there was a discretion vested in the Tribunal, pursuant to s 359(1) and s 359C of the Act, to not proceed to make a decision on the facts before it, even though the appellant had failed to respond to the invitation seeking more information. The appellant submits that the Tribunal retains a discretion to gain more information in such situation, and pursuant to Minister for Immigration and Citizenship v SZKTI and Another (2009) 258 ALR 434, it may do that by telephone or other means. The appellant submits that in the very particular factual circumstances of these proceedings the Tribunal should have sought more information before making its decision. These circumstances include the uncertainty surrounding 10 March 2008; the unclear decision of the delegate; the unclear purpose of the medical documents provided to the delegate; and the obligation of the Tribunal, pursuant to reg 2.43(2)(b) of the Regulations, to be positively satisfied that there were no exceptional circumstances explaining the appellant's failure to comply with condition 8202 of his visa. 29 Secondly, the appellant submits that the Tribunal, pursuant to SZJBA v Minister for Immigration and Citizenship and Another (2007) 164 FCR 14, was obliged to undertake reasonably open and regular administrative steps to permit or facilitate fulfilment of the 'real and meaningful nature of the invitation to comment' (at [53]). The appellant submits that such obligation arises where the Tribunal is aware that the record of claims made by an applicant and received by the Tribunal is incomplete. It is submitted by the appellant that the Tribunal was aware of a 'conspicuous absence of any explanation' of the medical records submitted by the appellant. 30 Thirdly, the appellant submits that, following the submissions in ground one (namely that the Tribunal retains a discretion pursuant to s 359(1) and s 359C of the Act to obtain further information even if a reply to an invitation is not forthcoming), that exercise of discretion is guided by s 353 and s 357A(3) of the Act. Section 353 states: (1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical and quick.

[37]

31 The appellant acknowledges that Minister for Immigration and Multicultural Affairs v Eschetu (1999) 197 CLR 611 and Minister for Immigration and Citizenship v SZMOK and Others (2009) 257 ALR 427 make clear that s 353 and s 357A(3) of the Act are not a source of rights for an applicant, but comprise only 'facultative' (Eschetu at [49], [77], [108]-[109], [158] and [179]) or 'exhortative' (SZMOK at [13]-[18]) provisions. The appellant submits, however, that while the provisions might not give rise to positive rights for an applicant before the Tribunal, they must be given some meaning, and they must govern the exercise of discretion of the Tribunal. On the basis of this submission the appellant points out that the Tribunal did not explain why the appellant was not contacted by means such as email or telephone. Following from similar considerations outlined in other grounds of appeal, the appellant submits that there was an obligation on the Tribunal to make such further inquiries. 32 Fourthly, it is submitted that the Tribunal failed to consider the appellant's claims as made before the delegate. The appellant seeks to rely on his affidavit as admitted before the Federal Magistrate as unchallenged evidence of what was put by him in the interview before the delegate. Such evidence suggests that the decision of the delegate had nothing to do with the grounds put by the appellant. The appellant submits therefore that the Tribunal did not consider his claims. 33 Fifthly, and finally, the appellant claims that the Tribunal applied the wrong test in determining whether grounds existed for the cancellation of his visa. The appellant submits that rather than form a positive state of satisfaction that there were no exceptional circumstances beyond the appellant's control which explained his non-compliance with condition 8202 as reg 2.43(2)(b)(ii) of the Regulations requires, the Tribunal referred to the discussion in Chen v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 257 at [107]-[116]. That discussion is based on s 137L(1)(b) of the Act which is phrased in different terms to reg 2.43(2)(b)(ii). That section requires an appellant to satisfy the Tribunal that certain circumstances do exist. In contrast, reg 2.43(2)(b)(ii) requires the Tribunal to form a positive state of satisfaction that exceptional circumstances don't exist. The appellant submits that such application of the wrong test constitutes a jurisdictional error.

[46]

Consideration 38 The Court has considered the matters raised before the Federal Magistrate and is satisfied that the issues now sought to be raised on appeal are different to the issues raised before the Federal Magistrate. The Court, having considered the eight factors referred to in NAJT, will grant leave for the appellant to rely on the new grounds of appeal for the following reasons. 39 In regards to the first factor, the Court considers that the legal arguments have a reasonable prospect of success. The explanation for the failure to raise the arguments below, that being recent High Court authority, is sufficient. The Court accepts that the decisions of SZMOK and SZKTI are highly relevant for the purposes of the appellant's arguments. The Court considers that there is no inconvenience to it in allowing the appellant's arguments, given that it was open to the Court to hear arguments in favour of granting leave and, if granted, then to proceed into a consideration of the new grounds of appeal in the hearing of the proceedings. As to the fourth factor referred to in NAJT, obviously much is at stake for the appellant. An unsuccessful appeal will see his visa cancelled and his deportation to Myanmar. Indeed, one could imagine few more significant consequences for an individual in a hearing before the Federal Court. 40 The Court does not consider that this decision will have wider application than the present circumstances. Indeed, as will become apparent in the Court's findings, the Court emphasises the very specific factual circumstances of these proceedings. 41 Finally, as to the issue of prejudice to the respondent, the Minister relied upon Water Board v Moustakas (1988) 180 CLR 491 at 497 where the majority said 'more than once it has been held by this Court that a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence below'. However, Moustakas relates to a situation distinct from the present circumstances. The appeal court described in Moustakas was an appeal court from a first instance trial. In that circumstance, it is far more understandable that a court of appeal would seek to constrain grounds of appeal that could call for more evidence. While this Court is acting as a court of appeal, it is so acting in respect of a decision of the Federal Magistrates Court which itself was acting as a court of judicial review of a Tribunal decision, not a trial court. In that sense, this Court is just as well placed as the Federal Magistrates Court to receive evidence or review the decision of the Tribunal. In the circumstance that this Court is effectively judicially reviewing a decision of the Tribunal, being the practical effect where new grounds are relied upon and no error is shown on the part of the Federal Magistrate, then this Court is in just as good a position as the Federal Magistrates Court to fulfil that role. Consequently, the Court does not believe that Moustakas is apposite in the present circumstances and prefers to rely on the considerations of minimising prejudice discussed in the decision of NAJT. 42 The Court notes the prejudice identified by the Minister relating to grounds one, three and four relied upon by the appellant and the assertion that the Minister might have chosen to lead evidence in the Federal Magistrates Court had it been on notice of the grounds as now raised. The Court also notes that the Minister, in supplementary submissions, noted that ground one had been partially raised before the Court below in similar terms to those now put. The Court notes that the Minister was afforded the opportunity to cross-examine the appellant and was also granted the opportunity to adjourn the proceedings in order that it be able to put on further evidence. Such offer was declined. An offer to allow the Minister to cross-examine the appellant on his affidavit in the Court below was also declined by the Minister. In the circumstances, the Court believes the Minister has been given adequate opportunity to rectify any prejudice identified, particularly as this Court is in just as good a position to take evidence to review a decision of the Tribunal as the Federal Magistrates Court. Even if such prejudice is not overcome, the Court considers that it is 'expedient in the interests of justice to allow the new ground to be argued and determined': VAAC at [26].

[49]

The factual matrix 45 The present proceedings arise out of very distinct factual circumstances. All of the following observations are made based on the information that was before the Tribunal. 46 Firstly, it appears that there was no interview between the delegate and the appellant on 10 March 2008, as had been scheduled. No record existed explaining why there was no interview. There was no record of the rescheduling of the interview to 1 April 2008 when the decision was made. These facts must be considered against the background of detailed records of communications made and received between the Department and the appellant in previous communications such as those regarding the first notice. The absence of any information explaining what occurred on 10 March 2008 is, to say the least, puzzling. One would have expected there to be some record of events which occurred on that day, even if the proceedings were simply adjourned. 47 Secondly, it was clear that there had to have been some kind of discussion between the appellant and the delegate concerning the proposed cancellation of the appellant's visa, given that the box in Item 3 of the Notification of decision was entitled 'RESPONDED to the notice of intention to consider cancelling the visa' was ticked. The Court assumes that such notation was made on 1 April 2008, the day of the decision, and therefore that the interview occurred on that day, rather than 10 March 2008. 48 Thirdly, it was apparent that medical records were provided by the appellant to the delegate, though it is entirely unclear when this occurred. It is also unclear what they evidenced. 49 Fourthly, the reasons provided by the delegate for making the primary decision were lacking in detail and profoundly unhelpful in determining the basis of the decision, let alone what evidence was presented to the delegate by the appellant to show exceptional circumstances. The cryptic reasons, namely 'the wrong student was reported'; 'the section 20 notice was defective'; 'the event of a critical incident', because of their brevity, do little to inform. Even the Minister acknowledges before this Court that the primary decision is most unclear. 50 Fifthly, there was no apparent mention in those reasons, such as they were, that would explain the purpose of the medical records that were apparently provided to the Tribunal by the appellant, let alone what the delegate's opinion was in answer to them. There is also a clear discrepancy in that the medical records, which were presumably evidence of something, were not listed under Item 5 in the primary decision as 'Evidence of reasons why GROUNDS for cancellation DO OR DO NOT EXIST'. 51 This was the state of the facts and evidence before the Tribunal at the time it made its decision. One does not even need to consider the affidavit of the appellant, setting out his account of the circumstances, to be aware that there was a dearth of information upon which the Tribunal could make its decision. The Tribunal recognised that this was a problem, as it wrote to the appellant on 1 August 2008 in the invitation seeking information under s 359A and s 359(2) of the Act and specifically sought information concerning 10 March 2008 and 1 April 2008. 52 The issue, therefore, is given that no reply was forthcoming from the appellant to such invitation, was the Tribunal entitled to proceed to make its decision upon the factual matrix as outlined above?

[50]

Section 359C of the Act 53 The Court recognises that the Act, for practical reasons, allows the Tribunal to make decisions in circumstances where it has less than a perfect understanding of relevant events. For example, despite the reality, the Act deemed the invitation to have been received by the appellant seven days after it was sent provided that certain procedures were followed (s 379C(4)). Such procedures were followed. The Act also allowed the Tribunal to proceed to make a decision in the absence of a reply by the appellant (s 359C). 54 However, it is imperative to note that section s 359C(1) and (2) are phrased as 'the Tribunal may make a decision on the review without taking any further action to obtain the additional information [emphasis added]'. That is a discretionary power. If the Tribunal may proceed without seeking further information, the corollary is that it is possible for the Tribunal to not proceed without seeking additional information. That information could be sought by contacting the appellant through other means (than that for which there was no response), or by seeking to contact someone other than the appellant who might have the relevant information, for example, the delegate or Department. Whatever course the Tribunal adopts ought to depend on the circumstances of each case. 55 The Tribunal addressed such issue obliquely at [33] to [38] of its decision. However, it concentrated on the narrower issue of whether it could have invited the appellant to appear before it, notwithstanding his failure to reply to the invitation. The Tribunal referred to conflicting authority which considered whether s 360(3) and s 363A of the Act mandates that upon the failure to respond under s 359C of the Act, an applicant is not entitled to appear before the Tribunal. The Federal Magistrate also considered such issue. Since SZKTI it is clear that a Tribunal may obtain information without an appellant appearing before it, for example by telephone: see SZKTI at [47] (referring to s 424(1) which is in identical terms to s 359(1)) and s 366. Therefore, the Tribunal never addressed the issue why it was not exercising its discretion to attempt to seek further information. Instead it appears that the Tribunal either felt it had no power to invite the appellant to appear before it, or, even if it did, it refused to do so. 56 This is not to suggest that the Tribunal must positively state in every decision similar to the current one why it is not going to seek additional information when an applicant fails to provide a response. However, it is notable that the Tribunal did feel it necessary to explain its decision not to seek more information in the present circumstances, albeit on the narrower issue of whether it could have attempted to invite the applicant to appear before it. 57 In many situations, the Tribunal's decision to proceed to a final decision in the absence of comment by the applicant may not be problematic, as the reasons for not seeking further information would be obvious. 58 One of the reasons for the provision of invitations to provide more information or make comment under s 359A of the Act is procedural fairness. For example, the requirement that an applicant ought to be able to make comment on information adverse to his or her position (s 359A(1)). In the situation where no comment is forthcoming, there will usually be no difficulty with the Tribunal exercising its discretion to proceed to a decision because the applicant has been afforded procedural fairness, in the sense of being invited to comment, even if such offer is not accepted. It is possible that, as demonstrated by the current circumstances, the Tribunal can proceed upon a fiction, that being that the applicant had been provided with notice when, in reality, the notice had not been received. The Act, pursuant to sections such as s 379C(4), makes it clear that such a course is open to the Tribunal. 59 However, the current situation is distinct. Although the Act allowed the Tribunal to proceed to decision in the absence of a reply from the appellant, if it did so it would be proceeding on a paucity of facts on an issue critical to the eventual finding, that being whether there were exceptional circumstances which justified the appellant's failure to comply with condition 8202 of his visa. As the Tribunal itself said in the invitation, If the Tribunal ultimately finds that you did not comply with condition 8202 of your student visa…the Tribunal will need to consider whether the non-compliance was "due to exceptional circumstances beyond the non-citizen's control".

[51]

60 There is no clearer demonstration of the problem with progressing to decision upon the paucity of information on such issue than [63] to [64] of the Tribunal's decision. It was entirely unclear when the medical records were provided, and for what purpose. Such issue was highlighted by the Tribunal at [63]. Yet at [64] the Tribunal stated: 'accordingly, the Tribunal has had regard to the evidence presented to the Department, and accepts that the review applicant may well have been concerned about his maternal grandmother's health at the time that he ceased to be enrolled in a registered course'. 61 There is no evidence before this Court of any information available to the Tribunal upon which it could have based such statement, other than an assumption that that was the reason for the medical records having been provided. Such records might have been for that reason, but they might equally have been for another reason, for example, that the appellant's parents were unable to give him sufficient funds because they were paying for treatment of his sick grandmother. Those records might have gone to proving any number of exceptional circumstances. That was entirely the problem, yet the Tribunal made a guess as to what the exceptional circumstances might be, and then took no further steps to verify the purpose of the records. While the assumption may be that the Tribunal was merely taking the appellant's position at its highest, in doing so it exposed the paucity of information it had before it to make its decision. 62 Further, the statement 'evidence presented to the Department' does not accord with the circumstance that the Tribunal had before it a record of the primary decision which cited three grounds that appeared to have nothing to do with the medical records. The Tribunal clearly had no idea what, if any, evidence supported those grounds, given that the evidence section of the decision merely repeated those three grounds. The Tribunal did not appear to have any real understanding of what the grounds even meant.

[52]

Failure to inquire: SZIAI and Le 63 In the circumstances, the Court considers that the test at [25] of SZIAI may be apposite. It 'may be that a failure to make an obvious inquiryabout a critical fact,the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review'. The majority in SZIAI found that a failure to make an inquiry in the above circumstances could constitute a jurisdictional error because of a constructive failure to exercise jurisdiction. As will be discussed, the majority also left open the door for failure to make an inquiry being a jurisdictional error for other reasons. 64 In Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 Kenny J at [63] observed: The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceeded [sic] to make the decision without making the enquiry: see Prasad 6 FCR at 169-170 per Wilcox J; Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178 per Toohey J (Videto); Luu v Renevier (1989) 91 ALR 39 at 47-50 per Davies, Wilcox and Pincus JJ (Luu v Renevier); Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 139 at 143 per Pincus J (Detsongjarus); Rahman [2000] FCA 1277 at [30] per French J; Tickner v Bropho (1993) 40 FCR 183 at 197-198 per Black CJ; Ahamed v Minister for Immigration and Multicultural Affairs [2000] FCA 1325 at [12] per French J; Yang v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 571 at 579 per Ryan and Finkelstein JJ (Yang). This proposition is also discussed in other cases, such as Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288 per Foster J and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289-90 per Mason CJ and Deane J and 321 per McHugh J.

[56]

…about a critical fact… 68 Both SZIAI and Le formulate the type of information similarly: 'an obvious inquiry about a critical fact' (in SZIAI at[25]) or 'obtain important information on a critical issue' (in Le at [63]). The Court believes that the information in the present circumstances satisfies such test. It was critical to the review whether the appellant's failure to comply with his visa conditions was due to exceptional circumstances beyond his control. The Tribunal was on notice that there evidently were exceptional circumstances claimed through the decision record of the delegate, and the unexplained medical records. However, on the information before the Tribunal, it could not be clear precisely what those grounds were. 69 The Minister submits that a Tribunal is not required to make the case for an applicant before it, it is for the applicant to make their submissions: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] and Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at [57]. This is undoubtedly correct. However, the inquiry in question would not make the appellant's case for him. Rather, it would seek clarification of the grounds already provided to the delegate, in the circumstance where the delegate's record was wholly unsatisfactory. It is true that the appellant did not reply to the invitation of the Tribunal on these matters. However, the Act, specifically s 359C, envisages the circumstance that no reply is forthcoming and the Tribunal may still need to seek additional information before it should make its decision. This was such a circumstance. 70 Such finding is strengthened by the fact that the relevant test in reg 2.43(2)(b)(ii) of the Regulations is that the Tribunal 'is satisfied that…the non-compliance was not due to exceptional circumstances beyond the visa holder's control'. That is, that a positive state of mind must be found on the part of the decision maker that there are no exceptional circumstances. The Tribunal could scarcely have positive satisfaction that the appellant's non-compliance was not due to exceptional circumstances if it had evidence before it that might go to exceptional circumstances, namely the medical records, but did not know to what issue such evidence related. 71 The Minister submits that as the Tribunal, in essence, conducts a de novo review on the merits, it is not essential that the record of the delegate be complete before the Tribunal. This submission overlooks two important considerations. Firstly, whether or not the Tribunal needed to, the Tribunal did have regard to the primary decision. In its decision at [64] it stated, 'accordingly the Tribunal has had regard to evidence presented to the Department…based on the limited evidence before it, the Tribunal is not satisfied…that these circumstances…constitute exceptional circumstances beyond the review applicant's control'. The only source of that evidence was the medical records and the primary decision itself. Therefore, the Tribunal, because it paid regard to, and embellished the primary decision, made the primary decision an issue. 72 This leads to the second point which is that the critical inquiry to be made is not of the primary decision in the sense of what the delegate decided, but what evidence or submissions were put to the delegate in support of the claim of exceptional circumstances. It was clear that there were some submissions made to the delegate and medical records provided to the delegate. It was also clear that there were discrepancies regarding the nature of those submissions and the evidence provided which should have been apparent to the Tribunal. In short, the Minister misconstrues the true nature of the inquiry which is required.

[61]

78 The Court considers that a further inquiry of the appellant would have clarified the key issue, that being whether or not there were exceptional circumstances explaining his non-compliance with condition 8202 of his visa. The mere failure of the appellant to reply to the invitation was not evidence that there were no exceptional circumstances. As subsequent facts showed, such failure was because he never received the invitation. The Tribunal was not to know that, but it could have emailed or phoned the appellant to find out with certainty whether there was evidence of exceptional circumstances. Such step would not have posed any difficulty, since the Tribunal held the appellant's email and telephone contact details. Positive contact with the appellant himself could have put beyond any doubt whether there were, in fact, exceptional circumstances. It is absurd to claim in the light of SZKTI that a simple telephone call or email to the appellant to make contact with him did not render such information 'easily ascertainable'. 79 Alternatively, a call or email to the delegate or Department would be highly likely to have provided at least some degree of clarification of the exceptional circumstances claimed by the appellant. Kenny J found in Le at [77], as extracted above,that an enquiry of the primary decision-maker was a step that could be taken by the Tribunal. It is possible that the delegate would not recall the circumstances of 10 March 2008, 1 April 2008, or the exceptional circumstances claimed by the appellant at that time, as submitted by the Minister, but such possibility is unlikely. 80 Even if information was not forthcoming from either of these sources, had such enquiries been made the Tribunal would have put beyond all doubt that it had before it all the information it could to make its decision. In such circumstance s 359C of the Act would have allowed it to proceed to its decision and there would have been no ground for criticism from this Court. As it stands, however, the Court finds that there was a failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable.

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