Khant v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 By Notice of Appeal filed on 12 May 2009 and Amended Notice of Appeal dated 21 September 2009, the appellant appeals from the decision of Federal Magistrate Raphael delivered on 21 April 2009. His Honour's judgment dismissed an application for judicial review of a decision of the Migration Review Tribunal ('the Tribunal') which was handed down on 17 September 2008. That decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the delegate') made on 1 April 2008 to cancel the Higher Education Sector (Student) Subclass 573 visa ('Subclass 573 visa') which had been issued to the appellant.

FACTS 2 The appellant was born on 1 February 1987 in Myanmar. He arrived in Australia on 3 February 2006 holding a Subclass 573 visa. On 10 April 2006 the appellant was granted a further Subclass 573 visa valid to 30 July 2010. The visa contained conditions, one of which, namely condition 8202, stipulated that the holder of the visa comply with the educational requirements of the institution at which the student was enrolled. 3 The appellant enrolled at Curtin International College ('the college') for a Diploma of Engineering. The course commenced on 6 March 2006. On 16 October 2006 the appellant transferred to the Diploma of Information Technology course at the same college. The appellant was due to complete such course on 15 October 2007. 4 By letter dated 1 February 2007, the college wrote to the appellant advising him that he had been reported to the Department of Immigration and Multicultural Affairs ('the Department') for non-compliance with the conditions of his Subclass 573 visa. The college referred to his poor attendance and unsatisfactory record. On the same day the college issued the appellant with a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) stating that in the period from 16 October 2006 to 25 January 2007 he had attended 69% of the scheduled contact hours and therefore that he had failed to comply with the extant version of condition 8202(3)(a) of the visa which required him to attend 80% of classes.

First Notice of Intention to Consider Cancellation 5 On 14 February 2007 the Department issued the appellant with a written Notice of Intention to Consider Cancellation ('the first notice') under s 116 of Migration Act 1958 (Cth) ('the Act') because of his failure to meet the attendance requirements of his visa. The appellant was invited to provide comments at an interview to be held at the Department on 21 February 2007 in respect of the first notice and to provide reasons why his visa should not be cancelled. The appellant attended the interview and provided information including evidence establishing that his maternal grandfather had died. In these circumstances a delegate from the Department decided not to cancel the appellant's Subclass 573 visa on the basis that there were exceptional circumstances beyond his control that led to his non-compliance with the conditions attaching to his visa.

Second Notice of Intention to Consider Cancellation 6 On 23 November 2007 the Department (now the Department of Immigration and Citizenship) wrote to the appellant stating that it had been advised that he had ceased his studies at the college in June 2007 and that his failure to be enrolled could lead to the cancellation of his visa. On 21 January 2008 the Department forwarded an email to the appellant concerning his failure to attend an interview fixed for that date and advised him that he should arrange another appointment. On 5 February 2008 the Department arranged a second interview at 9.00 am on 11 February 2008. The appellant did not attend such interview. On 13 February 2008 the appellant contacted the Department by telephone and advised that his non-attendance was due to poor health. A further interview was scheduled for 19 February 2008. The appellant again failed to attend and attempts to communicate with him by telephone were unsuccessful. 7 On 26 February 2008 the Department issued the appellant with a Second Notice of Intention to Consider Cancellation of his visa ('the second notice') on the ground that he had ceased to be enrolled in a registered course of study.

Departmental Interview 8 By the letter dated 26 February 2008 the Department invited the appellant to attend an interview scheduled for 10.00 am on 10 March 2008. The invitation informed the appellant that it had come to the Department's attention that there might be grounds for cancellation of his visa under ss 116(1)(b) and 116(3) of the Act and under reg 2.43(2)(b) of the Migration Regulations 1994 (Cth)('the Regulations'). The letter stated: At the interview you will be asked:

· Why you think the ground(s) for cancellation does or does not exist;

9 There is no record of any interview having occurred before the delegate on that day. However, there is a Decision ('the primary decision') signed on 1 April 2008 at 10.15 am and also a Notification of decision signed 1 April 2008 at 10.20 am and verified by the appellant's signature on the same day at 10.40 am. 10 The primary decision and Notification of decision constitute the record relating to the interview. Such documents (relevantly identical) suggest that the appellant raised three issues before the delegate on 1 April 2008 (there being no other record of an interview pertaining to the second notice). Item 3 of the primary decision and Notification of decision contains the following: Provide a summary of the reasons the visa holder considers the GROUNDS for cancellation DO NOT exist.

Mr KHANT has been unable to demonstrate exceptional circumstances under the following circumstances:

11 Item 5 of the aforementioned documents are entitled: Evidence of and reasons why GROUNDS for cancellation DO OR DO NOT EXIST.

Beneath such heading the identical entry is included as for Item 3. 12 Item 7 of the aforementioned documents require the decision maker to state whether the reasons for cancelling the visa outweigh the reasons not to cancel. In the space provided, the decision maker is required to give reasons. The decision maker repeated exactly the same response as stated in Item 3 and 5. 13 On 1 April 2008 the delegate cancelled the appellant's visa for non-compliance with condition 8202 pursuant to ss 116(1)(b) and 116(3) of the Act and reg 2.43(2)(b) of the Regulations. The delegate found that the appellant had not been enrolled and studying in a full-time registered course since June 2007.

TRIBUNAL PROCEEDINGS 14 The appellant made an application for review of the primary decision to the Tribunal on 8 April 2008. On 1 August 2008 the Tribunal sent a letter to the appellant by registered mail, addressed in accordance with the residential address for correspondence provided by him in his application for review ('the invitation'). The invitation invited the appellant to comment upon numerous issues including his failure to attend several interviews before the Department. The invitation relevantly stated: · On 26 February 2008 the Department issued you with a second Notice of Intention to Consider Cancellation on the basis that you had ceased to be enrolled in a registered course of study and invited you to provide your comments at an interview scheduled for 10 March 2008;

· You subsequently provided to the Department untranslated medical records relating to Ms Daw Ong Saw Lyan, aged 79 years, and a translated birth certificate for her daughter, Ms Ng Han Chong, born on 10 December 1958;

· However, there is no record on the departmental file that you were interviewed by the Department at an interview held on 10 March 2008;

· On 1 April 2008 the Department cancelled your subclass 573 visa on the basis that you had not been enrolled in and studying a fulltime registered course since June 2007 and there was no evidence of exceptional circumstance beyond your control;

15 The invitation advised the appellant that if the Tribunal found that he did not comply with condition 8202 of his visa it would need to consider whether that non-compliance was 'due to exceptional circumstances beyond the non-citizen's control'. It therefore invited the appellant to provide any evidence that the non-compliance was due to exceptional circumstances beyond his control. It stated that if no comments or additional information was received by 19 August 2008, the decision could be made without reference to him. 16 The appellant did not provide information or comment to the Tribunal. Pursuant to s 359C(1) and (2) of the Act, the Tribunal proceeded to hand down its decision on 17 September 2008 on the premise that by virtue of the operation of s 360(3) of the Act the appellant lost any entitlement to appear before the Tribunal. 17 The unchallenged facts establish that the invitation was never received by the appellant. It was returned after the decision was handed down and marked 'unclaimed'.

TRIBUNAL FINDINGS 18 In its findings the Tribunal referred to relevant authorities and statutory provisions of the Act, noting that the appellant failed to give information within the prescribed statutory period. The Tribunal proceeded to make a decision without taking any further action in accordance with s 359C of the Act. It did so on the alternative stated assumptions that it did or did not retain a discretion to invite the applicant to a hearing after he had failed to respond to the invitation. 19 The Tribunal then considered the matters raised before the delegate and in reciting the facts, the Tribunal noted the following (at [19]-[21]): On 26 February 2008 the Department issued the review applicant with a second Notice of Intention to Consider Cancellation on the basis that he had ceased to be enrolled in a registered course of study and invited him to provide his comments at an interview scheduled for 10 March 2008 (D1, f.38-46).

The review applicant subsequently provided to the Department untranslated medical records relating to Ms Daw Ong Saw Lyan, aged 79 years, and a translated birth certificate for her daughter, Ms Ng Han Chong, the review applicant's mother (D1, f.48-62).

However, there is no record on the departmental file that the review applicant attended and was interviewed by the Department at an interview held on 10 March 2008.

20 The Tribunal then referred to the primary decision under review as follows (at [22]): On 1 April 2008 the delegate proceeded to cancel the review applicant's student visa pursuant to subsections 116(1)(b), 116(3) and subregulation 2.43(2)(b) for non-compliance with condition 8202 (D1, f.71-76). The delegate found that the review applicant had not been enrolled in and studying a fulltime registered course since June 2007. In addition, the decision record stated that the review applicant was unable to demonstrate that the wrong student had been reported, that the section 20 notice had been defective or that there had been a critical incident that constituted exception circumstances and which led to his non-compliance in relation to the requirement to maintain his enrolment in a registered course.

21 The Tribunal, having considered the relevant authorities to the application then before it, said (at [63]-[64]): In the case currently before the Tribunal, the review applicant put forward to the Department untranslated medical records relating to his maternal grandmother. However, no submissions were provided to the Department to explain the significance or relevance of this evidence to the possible cancellation of the review applicant's student visa. In addition, the Tribunal notes that, in its section 359A letter dated 1 August 2008, the review applicant was invited to provide comment and further information relating to the issues arising in relation to his application for review. However, the review applicant failed to do so within the prescribed period, namely, 19 August 2008, or at any time thereafter.

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. However, based on the limited evidence before it, the Tribunal is not satisfied that having regard to Ministerial Direction No 38, the tests in Wang and Chen and the dictionary definition of "exception", that these circumstances, even once cultural matters are factored in, constitute exception circumstances beyond the review applicant's control. Nor does the evidence before the Tribunal provide any causal link between the circumstances cited by the review applicant and the non-compliance that has occurred in relation to the cessation of his enrolment.

22 The Tribunal concluded by stating that it was satisfied that the relevant conditions existed for a cancellation of the visa under s 116(3) of the Act and reg 2.43(b) of the Regulations and upheld the primary decision.

APPLICATION TO FEDERAL MAGISTRATES COURT 23 The appellant then applied to the Federal Magistrates Court of Australia for a review of the Tribunal's decision. The grounds of application raised numerous issues relating to the alleged failure of the Tribunal in the conduct of the proceedings. 24 In support of such application the appellant swore an affidavit on 19 February 2009. The affidavit makes no reference to the events on 10 March 2008 but states that a few days before 1 April 2008 the delegate telephoned him. The appellant deposed: Ms Krishnan telephoned me a few days before 1 April, 2008 and told me to come for the interview at 10.0[sic] am on 1 April, 2008 or the visa would be cancelled. I received the medical records about this time and took along copies of file notes of my grandmother's doctor to the Department 1 April, 2008. These were notarised by a Notary Public. I had made up my mind to tell Ms Krishnan about the trouble that my family had suffered in Burma during 2007 and that my father had had trouble making payments in Australia as a result of those problems. I was also going to tell her about my wish to transfer to the University of Technology in Sydney.

On 1 April, 2008, I arrived at the Department at 10.00 am and went to the reception counter. I said words to the effect that I had a meeting with Ms Krishnan. I was given a ticket and asked to wait. I waited for about 20 minutes. Ms Krishnan then asked me to the counter and I spoke to her there.

The conversation that I had with Ms Krishnan was to the following effect:

Myself: At that time, my grandmother was sick, and I was not healthy enough. My family also has had some other problems. Here are the medical records for my grandmother.

Ms Krishnan: This is not a good reason. Have you got a Doctor's certificate?

Ms Krishnan left the counter for about 5 minutes. I had not had a chance to tell her about my family's problems. Ms Krishnan came back and gave me the document titled "Decision" on pages 67 and 69 of the Court Book. She also gave me a document titled "Notification of cancel visa under s116 of the Migration Act, 1958". A copy of this document is at pages 71 and 73 of the Court Book.

25 At the hearing before Raphael FM on 1 April 2009 the Minister objected to numerous portions of the affidavit on the ground of relevance. The transcript suggests that Raphael FM admitted both the affidavit of the appellant and an affidavit sworn by his father. No cross-examination was made on the allegations made in the appellant's affidavit by the Minister for the reason, expressed before this Court, that the affidavit was not relevant to any issue then being considered by the Federal Magistrate. However, in his Honour's decision, it is apparent that several portions of the appellant's affidavit were relied upon by him in reaching his decision. There is simply no other source for many of the factual findings made by his Honour. 26 Raphael FM dismissed the application for judicial review.

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.

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) shall act according to substantial justice and the merits of the case.

Section 357A(3) states: (3) In applying this Division, the Tribunal must act in a way that is fair and just.

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.

NEW ISSUES 34 The Minister submits that all grounds raised on appeal are fresh grounds, that is, grounds that were not relied upon before the Federal Magistrate. Consequently the Minister submits that such grounds should not be entertained by this Court. In particular the Minister objects to grounds one, three and four and suggests that such grounds are prejudicial because had they been put earlier there might have been (not necessarily would be) more evidence that the Minister would have put before the Court in answer to such grounds. 35 The appellant's counsel acknowledges that the issues raised for consideration by the Amended Notice of Appeal were not raised in the hearing before the Federal Magistrate in the precise form currently argued. However, the appellant submits that since the delivery of judgment by the Federal Magistrate, the High Court of Australia has delivered its decisions in SZMOK and in SZKTI which were on 2 July 2009 and on 26 August 2009 respectively, each of which the appellant submits are pertinent to the issues raised by the appeal. 36 The Court granted leave to the appellant to make supplementary submissions highlighting where the submissions as put before this Court were before the Federal Magistrate. The appellant has done so. The Court also granted leave for the Minister to make supplementary submissions in answer to the appellant's supplementary submissions. The Minister, in making its supplementary submissions, acknowledged that the appellant's first ground of appeal was partly raised in written and oral submissions before the Federal Magistrate. The Minister maintains that grounds two, three, four and five were not raised before the Federal Magistrate in any form similar to that which is now argued before this Court.

Authorities 37 A detailed overview of authority discussing when leave should be granted for new grounds to be argued on appeal is to be found in the decision of Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11]. The Court has had regard to those authorities, particularly the decision of Madgwick J in NAJT v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2005)147 FCR 51 at [166] in which his Honour stated eight factors guiding the exercise of discretion to grant leave for an appellant to rely on new grounds of appeal. Those grounds were: 1) Do the new legal arguments have a reasonable prospect of success?

2. Is there an acceptable explanation of why they were not raised below?

3. How much dislocation to the Court and efficient use of judicial sitting time is really involved?

5. Will the resolution of the issues raised have any importance beyond the case at hand?

6. Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

8. If not, where, in all the circumstances, do the interests of justice lie?

Overall, the leave will be granted where it is 'expedient in the interests of justice to allow the new ground to be argued and determined': see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26].

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].

FURTHER SUBMISSIONS 43 The decision of the High Court in Minister for Immigration and Citizenship v SZIAI and Another (2009) 259 ALR 429was due to be handed down shortly after the hearing of these proceedings. The Court granted leave to the appellant and Minister to make further submissions in reliance upon this decision and for both the appellant and Minister to make further submissions in reply to each other's further submissions. Both the appellant and Minister took advantage of the leave to make submissions on the effect of SZIAI, and the Minister has also made submissions in reply to the appellant's submissions on the effect of SZIAI. As will become apparent, the Court finds such submissions to be highly relevant to its decision.

FINDING 44 The Court will make its decision in the present matter having reliance only on the first ground of appeal made by the appellant and submissions on the effect of SZIAI. The Court does not need to, and therefore declines to, make any findings in relation to the other grounds of appeal, though it should be noted that submissions in relation to the other grounds of appeal are partially relevant for the consideration of ground one.

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?

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".

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.

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.

65 In Videto and Another v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167, Toohey J at 178 said: In such a case [potential deportation] it may be that the material placed before the Minister or his delegate contained some obvious omission or obscurity that needs to be resolved before a decision is made.

66 In Luu and Another v Renevier (1989) 91 ALR 39 at 50 the Full Court observed: But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.

67 Therefore a failure of a Tribunal to make inquires in certain circumstances may also constitute jurisdictional error due to 'Wednesbury unreasonableness' (see [62] of Le regarding Wednesbury). Despite comments in SZIAI at [13]-[15] and [22]-[23] noting the difference between judicial review under the Administrative Decisions (Judicial Review) Act 1977 and judicial review under s 75(v) of The Constitution, SZIAI would not appear to disturb Le. Indeed at [26] of SZIAI the majority stated: 'no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonableas to support a finding that the tribunal's decision was infected by jurisdictional error' [emphasis added]. Such statement would appear to confirm that a failure to make an inquiry could constitute jurisdictional error for at least two different reasons. Those are, a constructive failure to exercise jurisdiction in fulfilling the role of the Tribunal to review, and 'Wednesbury unreasonableness'.

…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.

…an obvious inquiry… 73 Further to the above, SZIAI requires that the inquiry be an obvious one in the circumstances. The exact nature of the inquiry could have been to seek to contact the appellant by another means such as email or telephone since the Tribunal had his details. Alternatively, the Tribunal could have contacted the delegate or Department. The Minister submits that it would be strange that in the circumstance that s 359C and s 360(3) prevented the Tribunal from inviting the appellant before it that it should be able to seek oral evidence under s 359(1) and s 366. However, that informal mechanism is exactly what the High Court has said is available in SZKTI at [47]. Even if the Tribunal did not seek oral evidence, the Tribunal could have sought to clarify whether the appellant had, in fact, received the invitation. To repeat, this is not to suggest that such step is always required of the Tribunal, merely that in certain circumstances it should be taken. 74 As to the alternative source of information, the Department or delegate, the Minister submits that the Tribunal was entitled to proceed on the assumption that it had all the relevant documentation pursuant to s 352(4) of the Act which requires the Secretary, upon being notified of an application for review, provide to the Registrar all documents considered by him or her to be of relevance to the review. The problem is that it was obvious that such documentary record was flawed. As the Tribunal was acutely aware, the documentary record lacked any documentation regarding 10 March 2008 and there was little useful information regarding the interview on 1 April 2008. In such circumstance, an enquiry of the delegate regarding these discrepancies could have resolved the issue.

…the existence of which is easily ascertained. 75 Both SZIAI and Le make it plain that the inquiry must be directed towards information, 'the existence of which is easily ascertained' (in SZIAI at [25])or 'which the decision-maker knows, or ought reasonably to know is readily available' (in Le at [63]). 76 In SZIAI the majority found (at [26]): …there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry.

77 In Le, Kenny J found (at [77]-[78]): At the least, a decision-maker, acting reasonably in the Wednesbury Corporation sense, would have sought to verify whether the primary decision-maker's statements regarding Mr Nguyen's supposed admissions derived from what the primary decision-maker mistakenly understood to be the effect of Mr Nguyen's written statement. Additionally, a decision-maker, acting reasonably in this sense, would have enquired whether the interviewing officer, acting under the misapprehension that Mr Nguyen said that his marriage relationship had ended, had advised Mr Nguyen to withdraw his sponsorship. In the circumstances of this case, especially the mistranslation, a decision-maker acting reasonably might also have made some enquiry as to whether the interpreter at the Departmental interview was adequately qualified and, perhaps, whether the interpreter had accompanied the others to Mr Huynh's residence that day.

These enquiries were not difficult to make. The Tribunal ought to have known that they might readily be made. Presumably, they would have yielded at least some relevant information on issues that were plainly critical to the outcome of the Tribunal's review.

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.

Is there a jurisdictional error? 81 It is not enough that the Tribunal makes an error, that error must be a jurisdictional error if the decision is to be quashed: see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [83]. As outlined above, two alternative grounds of jurisdictional error would appear to be Wednesbury unreasonableness or a constructive failure to exercise jurisdiction in failing to fulfil the role of the Tribunal, that is, to review. 82 The Court considers that the latter ground is relevant for the current circumstances. The Court considers that traditionally Wednesbury unreasonableness has been seen as only applicable in the most extreme of circumstances. That may well be why the High Court allowed the appeal in SZIAI. The Court does not consider that the Tribunal's failure to make further inquiries was so unreasonable that no reasonable person would have adopted such course. Rather, the Court prefers the view that the failure to make further inquires of the appellant, or to inquire of the delegate or Department; coupled with the ease at which such inquiry could be made; coupled with the paucity of information the Tribunal had to make its decision; coupled with the type of inquiry required by reg 2.43(2)(b) of the Regulations leads to the conclusion that the Tribunal failed to conduct a proper review. Despite the prolixity of the Tribunal decision, in reality, the Tribunal only served as a 'rubber stamp' for the primary decision, a decision that was obviously highly problematic, even on the evidence before the Tribunal.

The affidavit 83 The Court makes such finding in the absence of reliance on the affidavit of the appellant. The Court does not need to rely on such affidavit, and it would be problematic to do so, given that the appellant has not been cross-examined on it, although the Minister declined the opportunity to do so in both the Federal Magistrates Court and before this Court. 84 The Court accepts that when the appellant's affidavit was provided to Raphael FM the Minister was justified in considering that it was not relevant to any issue which was then identified. However, since the Federal Magistrate relied upon the affidavit in reaching his decision, this Court was obliged to take it into consideration. 85 The appellant's affidavit suggests that the delegate's three reasons for cancelling the visa have no relationship to the matters allegedly raised by the appellant at the interview on 1 April 2008. Therefore if regard is paid to the contents of that affidavit and to the appellant's description of events before the delegate (which the Court has not needed to in order to come to a decision), the decision of the Court is fortified.

The invitation 86 There is no explanation for the invitation having been returned to the Tribunal. The envelope discloses that it was 'unclaimed'. Accordingly, no inference can be drawn that the appellant was responsible for its non-delivery.

Conclusion 87 For the above reasons the Court upholds the appellant's contention that there has been a jurisdictional error on the part of the Tribunal. Consequently, the Court will make no finding on the other grounds of appeal sought by the appellant. In making its decision, the Court emphasises that there is no error on the part of Raphael FM since the arguments as put before this Court were not put before his Honour. Nevertheless for reasons already given the Court has found that it is in the interest of justice to entertain those arguments. His Honour's decision should be set aside, the Tribunal decision quashed, and the matter be remitted to the Tribunal for rehearing.

COSTS 88 In the circumstances where the appeal has been upheld on grounds that were not before the Federal Magistrate, or at least not before the Federal Magistrate in the form now put, the usual rule that costs follow the event should not apply. This is because there was no fault on the part of the Federal Magistrate in making the decision he did. Rather, the Court considers that each party should pay their own costs of the appeal, similarly to the basis for the costs order in Snedden v Republic of Croatia (No 2) [2009] FCAFC 132. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 5 November 2009 Counsel for the Appellant: Mr Mitchell

Solicitor for the First Respondent: DLA Phillips Fox