Minister for Immigration and Border Protection v Pandey

The Tribunal hearing and decision 11 The Tribunal's reasons reveal that at the hearing on 14 May 2013 the Tribunal referred to its letter of 27 March 2013 and noted that it had not received any documents. Ms Pandey confirmed that she did not have a current certificate of enrolment. She said that she had been studying and had completed a course in January 2013. The Tribunal then indicated that without a certificate of enrolment the applicant would not be able to satisfy the essential criteria for her student visa, and that her current enrolment was also the crucial starting point in relation to her meeting other criteria. The reasons (at [20]) then record the following course of events at the hearing: Both applicants indicated to the Tribunal that after the first named applicant finished her studies in January 2013, the second named applicant had found a sponsor for a subclass 457 visa, and they had applied for such a visa. They had understood from their agent that because of this, the first named applicant 'no longer needed to have a CoE'. The Tribunal explained that it was considering the criteria for a student visa, and their evidence seemed to suggest that the first named applicant was not proposing to continue with her studies because she and her husband were pursuing an option relating to subclass 457 visas. The Tribunal indicated this might raise the issue of whether the first named applicant was a genuine applicant for stay as a student, but in any event, a crucial issue was that she did not have a current certificate of enrolment. The applicants indicated that they may have misunderstood or been misguided by their agent, and that the first named applicant had been studying in the past and would have continued to study if she knew it was a requirement. They indicated that they would need more time to arrange relevant evidence relating to the student visa requirements. The first named applicant also indicated that she had only recently received a copy of the Tribunal's hearing invitation letter inviting her to provide additional evidence. 12 It would appear that the Tribunal then made a decision to refuse the adjournment application and to affirm the delegate's decision. The Tribunal gave reasons orally and then provided written reasons two days later. The critical paragraph (at [24]) of the Tribunal's written reasons should be set out in full: At the hearing, the applicants requested additional time to provide further evidence, including a current certificate of enrolment, along the lines of the Tribunal's invitation in its letter of 27 March 2013. The Tribunal considers the applicants have had ample opportunity to provide a current certificate of enrolment relating to the primary applicant, and other evidence relating to relevant criteria for a student visa. As discussed with the applicants at the hearing, the Tribunal had invited the applicants to provide additional evidence in its letter of 27 March 2013. The first named applicant claimed at the hearing that she only received a copy of the Tribunal's letter a few days before the hearing. In the circumstances that the applicants had appointed a registered migration agent as their representative and authorised recipient for the review, the Tribunal is satisfied that its letter of 27 March 2013 which included the invitation to provide additional evidence, is taken to have been given to the applicants on that date, which is when it was sent by fax to the last fax number of the authorised recipient provided in relation to the review. In addition, the Tribunal considers that the applicants' evidence strongly indicates that after the first named applicant finished a course of study in January 2013, their focus was no longer on the first named applicant continuing her studies, but on pursuing subclass 457 visa options based on the second named applicant's employment. The Tribunal has decided in the circumstances not to grant additional time for the applicants to provide evidence in relation to meeting the criteria for a student visa. 13 Once the Tribunal had refused the adjournment application, it was inevitable that Ms Pandey would not be able to meet the criteria in clause 572.222(1). It was therefore inevitable that the Tribunal would affirm the delegate's decision. That is what occurred.

Proceedings in the Federal Circuit Court 14 Ms Pandey and Mr Cheema commenced proceedings in the Federal Circuit Court pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) seeking an order that the Tribunal's decision be quashed and that a writ of mandamus issue directed to the Tribunal requiring it to determine their application according to law. This relief is available only for jurisdictional error: Plaintiff S157/2002 v Commonwealth (2001) 211 CLR 476 at [83]. The grounds specified in their application did not disclose any proper basis upon which this relief could be granted. They simply asserted that the Tribunal had committed an error of law and had not considered "the relevant information provided." 15 Ms Pandey and Mr Cheema were not legally represented in the Federal Circuit Court. It appears that they did not advance any meaningful submissions in support of their application. The primary judge rejected the two grounds in the application. Nothing turns on that rejection. 16 The primary judge then turned his attention to the exercise by the Tribunal of its discretion to adjourn the hearing to enable Ms Pandey to furnish evidence of her enrolment. The primary judge found (at [13]) that the Tribunal's decision to refuse the request for additional time was based on two grounds. The first was that the applicants had had adequate time to provide a certificate of enrolment. The second, according to the primary judge, was "in essence, that [Ms Pandey] was not a genuine student." 17 In relation to the first ground, the primary judge found (at [14]) that the Tribunal was correct to conclude that the Tribunal's "invitation letter" was deemed to have been given to Ms Pandey and Mr Cheema when sent to and received by their nominated migration agent. It followed that they had been given "some time in which to gather the evidence in question and place that evidence before" the Tribunal. The primary judge also observed that, given the evidence Ms Pandey and Mr Cheema gave to the Tribunal concerning the advice they had received from their agent, "no amount of time would have made any difference." 18 The primary judge was referring here to the fact that, even if, contrary to their evidence, Ms Pandey and Mr Cheema had received the Tribunal's letter in March 2013, it is unlikely they would have turned up to the hearing with a certificate of enrolment. That is because the agent had, according to Ms Pandey, advised that because Mr Cheema was pursuing a different visa (a subclass 457 visa), Ms Pandey no longer needed a certificate of enrolment. 19 In relation to the supposed second basis of the decision, the primary judge found (at [15]) that it "seemed" to be implicit in the Tribunal's decision that Ms Pandey was not a genuine student because she "would only be seeking to enrol in a course in order to maintain the visa status of herself and her husband". The primary judge pointed out that clause 572.22 refers in three places to criteria involving the Minister's satisfaction or belief that the visa applicant was a "genuine student". The primary judge then concluded as follows (at [17]-[18]): The way the relevant clause is drawn indicates to me that the concern of the Regulations is that a person who is granted a student visa actually undertakes the study for which the visa is granted. The clause does not appear to me to be concerned with what motivates a person to be a student. When determining whether to grant the applicants more time to furnish evidence of enrolment, the Tribunal only considered what it perceived to be the reason why the first applicant wanted to enrol in further study, not whether she would genuinely undertake that study. It did not ask her anything about that and so could not have known anything about it. It might not have been entirely irrelevant to the Tribunal's considerations whether any further enrolment was just a device to maintain the applicants' visa status, but the failure to consider an issue relevant to the genuineness of the first applicant's intention to be a student, namely whether she would genuinely undertake the study for which she might enrol, satisfies me that the Tribunal's exercise of discretion on this occasion miscarried. 20 On this basis the primary judge concluded that the Tribunal's decision was affected by jurisdictional error. The jurisdictional error appears to have been that the Tribunal was required to, but did not, consider whether Ms Pandey would genuinely undertake the further study for which she had yet to enrol.

Appeal grounds and submissions 21 The Minister's Notice of Appeal advances two grounds of appeal. The first is that the primary judge erred in concluding that the Tribunal had failed to take into account a consideration it was bound to take into account. The second ground is that, in arriving at this finding, the primary judge denied the Minister procedural fairness. 22 At the hearing of the appeal, the Minister only faintly pressed the procedural fairness ground. Counsel for the Minister agreed that it was unnecessary to consider it if the Court found that the primary judge erred in concluding that the Tribunal had failed to take into account a relevant consideration. He also conceded that if the Court rejected the first ground of appeal and found that the Tribunal did fail to take into account a relevant consideration, the Court would not allow the appeal even if there had been a denial of procedural fairness. 23 As will be seen, it is unnecessary to consider further the procedural fairness ground. 24 The Minister submits that in considering whether to grant an adjournment to allow Ms Pandey time to enrol in a course and therefore satisfy one of the visa criterions, the Tribunal was not bound to take into account whether Ms Pandey would undertake the study for which she might enrol. That was a matter which might, at most, go to whether or not Ms Pandey was ultimately entitled to the student visa she had applied for. The only considerations that the Tribunal was bound to take into account on Ms Pandey's adjournment application were considerations that related to whether she had been afforded an opportunity to give evidence and present arguments relating to her decision under review, or whether she reasonably required a further opportunity. 25 The Minister accepts that there may be cases where matters that go to the ultimate merit of the review application might be relevant on an adjournment application. But that would depend on the facts, circumstances and arguments advanced by the applicant on the adjournment application. In the Minister's submission, the question whether Ms Pandey would undertake the study in any course for which she might enrol was something the Tribunal could have had regard to if it thought it relevant and important. But it was not bound to have regard to it. 26 The Minister accepts that whilst the primary judge did not consider whether the Tribunal's decision to refuse the adjournment was unreasonable in a legal sense (cf. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) (at [47], [72]) that is nonetheless an issue on appeal. That concession is properly made. Even if the primary judge erred in the way contended by the Minister, the Court would not allow the appeal if it is found that the Tribunal's decision was otherwise vitiated by legal unreasonableness. 27 In relation to unreasonableness, the Minister submits, in effect, that the Tribunal's reasons disclose a reasonable basis for refusing the adjournment application. The essential reason given by the Tribunal for refusing the adjournment application was that Ms Pandey and Mr Cheema had been put on notice of the need to provide a certificate of enrolment. They had been given sufficient time to obtain and provide evidence of her enrolment and had not done so mainly because they had been focusing on alternate visa possibilities for Mr Cheema. 28 Ms Pandey and Mr Cheema are not legally represented. They did not furnish any written submissions. Perhaps not surprisingly the submissions made by Ms Pandey at the hearing did not address the legal arguments advanced by the Minister. Rather, her submissions were directed to the merits of the Tribunal's decision.

Did the Tribunal fail to take into account a relevant consideration? 29 It is well accepted that a failure by an administrative decision-maker to take a particular matter into account will only constitute a jurisdictional error if the decision-maker was bound to take that matter into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. What factors a decision-maker is bound to consider is determined by the construction of the statute conferring the discretion. Where the relevant statute does not expressly refer to the factors which the decision-maker is bound to consider, they must be determined by implication from the subject matter, scope and purpose of the Act. 30 In short terms, Part 5 of the Act provides for review of certain migration decisions by the Tribunal. Division 3 imposes a duty on the Tribunal to review decisions. Division 4 contains provisions concerning the Tribunal's exercise of power, including (in s 353) an obligation to provide a mechanism of review that is "fair, just, economical, informal and quick", not "bound by technicalities, legal forms or rules of evidence", but rather based on "substantial justice and the merits of the case". 31 Division 5, which contains provisions relating to the Tribunal's conduct of reviews, provides, amongst other things, that the Tribunal may invite a person (including an applicant) to give information (s 359) and must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 360). Section 363(1) provides that for the purposes of the review of a decision, the Tribunal may, amongst other things, "adjourn the review from time to time." 32 The Tribunal's discretion in s 363 to adjourn the review (which will include a hearing convened following an invitation under s 360) may appear to be relevantly unconstrained. No mandatory considerations are spelt out. The scope, subject and purpose of Part 5 of the Act, however, would suggest that the Tribunal is bound at least to consider whether the applicant has been given a reasonable opportunity to give evidence and present arguments concerning the issues arising in relation to the decision under review. In a case where an applicant is seeking more time in which to provide evidence to the Tribunal, that may in turn require the Tribunal to consider the matters placed before it by the applicant to explain why he or she requires more time. That would generally include matters relating to the further evidence that is to be supplied, the reason that the evidence has not been provided to date and the length of time required. 33 Here, Ms Pandey sought further time to provide evidence. She explained that the evidence she wanted time to provide was a certificate of enrolment. She had not, however, enrolled in a course at this time. She needed time to enrol in a course. She also provided an explanation for why she had not provided this evidence, despite having been invited to do so in the Tribunal's letter of 27 March 2013. She said, amongst other things, that she had understood from her migration agent that she no longer needed a certificate of enrolment because Mr Cheema was pursuing a subclass 457 visa. She may have misunderstood or been misguided by her agent. She also said that she had only recently received a copy of the Tribunal's letter of 27 March 2013. 34 The question whether the Tribunal considered the matters Ms Pandey put before it on her adjournment application is best considered in the context of whether the Tribunal's refusal of the adjournment application was reasonable in a legal sense. For present purposes, the question is whether, in light of these matters, the Tribunal was, as the primary judge found, bound to consider whether Ms Pandey would genuinely undertake the study in any course that she might enrol in if given time to enrol. 35 The finding by the primary judge that the Tribunal was bound to consider this matter appears to flow from his reading or interpretation of the Tribunal's reasons for refusing to adjourn the application. The primary judge found that one of the two reasons given by the Tribunal for refusing the adjournment application was that Ms Pandey was not a genuine student. The primary judge reasoned, in effect, that if that was a reason for refusing the adjournment application, in assessing whether Ms Pandey was a genuine student, the Tribunal was required to consider whether she would genuinely undertake the study. 36 But a fair reading of the Tribunal's reasons reveals that the Tribunal did not find that Ms Pandey was not a genuine student. Nor was this given as a reason for refusing the adjournment application. 37 It is true that in the course of the hearing the Tribunal raised with Ms Pandey that the evidence suggested that she was not proposing to continue with her studies because Mr Cheema was pursuing a different visa option. The Tribunal indicated that this "might" raise the issue of whether Ms Pandey was a genuine applicant for stay as a student. But the Tribunal did not make any finding in that regard. Nor did it give this as a reason for refusing the adjournment application. 38 In its reasons for refusing the application (at [24]) the Tribunal referred to the fact that following the conclusion of Ms Pandey's studies in January 2013 her focus was on Mr Cheema's subclass 457 visa option. But this was referred to as being part of the reason or explanation for why Ms Pandey had turned up to the hearing without a certificate of enrolment. It was part of the Tribunal's reasons for concluding that Ms Pandey had been given ample opportunity to provide a certificate and should not be given more time. 39 In these circumstances the Tribunal was not bound to consider the somewhat hypothetical question whether Ms Pandey would genuinely undertake any course of study she might enrol in. The primary judge erred in so concluding.

Was the decision legally unreasonable? 40 But that is not the end of the matter. As the Minister concedes, the question also arises whether the Tribunal's decision was otherwise vitiated because it was unreasonable as a matter of law. 41 The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows: (a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43]. (b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44]. (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or "plainly unjust": Li at [28], [110]; Singh at [44]. (d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47]. (e) Regard can also be given to the outcome of the decision: whether the "decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law": Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45]. (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49]. (g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52]. (h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102]. (i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that "enough is enough": Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102]. (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113]. 42 The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal's decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal's reasons disclose an evident and intelligible justification for refusing the adjournment application? 43 The critical considerations are as follows. First, Ms Pandey had been enrolled as a student in various courses from 2008 up until the time of the delegate's refusal decision. The delegate's refusal related to a criterion relating to financial support. Ms Pandey remained enrolled in a course or courses until January 2013. She did not enrol in any course after January 2013 and therefore was not enrolled in any course at the time her review application came on for hearing in May 2013. 44 Second, a reason why Ms Pandey was not enrolled in a course in May 2013 was that she and Mr Cheema were focusing on the possibility of Mr Cheema obtaining a different visa. This, coupled with advice apparently given by Ms Pandey's migration agent, led Ms Pandey to erroneously believe that she no longer needed a certificate of enrolment. Her evidence was that had she known that this was a requirement she would have continued to study. The Tribunal did not doubt or reject this evidence. 45 Third, Ms Pandey's evidence was that she only received the Tribunal's invitation letter shortly before the hearing. The letter had, however, been sent to her nominated migration agent. It was open to the Tribunal to find that Ms Pandey should be taken to have received the notice when it was sent to her migration agent. Her apparent late receipt of the letter did not provide a reasonable excuse or justification for her not producing any of the information requested in the letter. 46 Fourth, upon becoming aware at the hearing that she required a certificate of enrolment in order to qualify for the visa, Ms Pandey sought time for the specific purpose of enrolling in a course and thereby obtaining a certificate of enrolment. There was nothing before the Tribunal to suggest that she would not be able to enrol in a suitable course and therefore would not be able to produce the complying certificate if given time. Her past study history suggested that this was likely. 47 Fifth, Ms Pandey had not previously applied for any adjournment of the review. 48 Sixth, the inevitable consequence of the refusal of the adjournment was that the delegate's refusal decision would be affirmed. 49 Seventh, there was no evidence about any reason why the Tribunal needed to make a decision in May 2013, particularly given the time that had passed since the review was instituted. There was no obvious prejudice to anyone from a short adjournment. That said, the Tribunal could validly have pointed to the fact that it was required to manage its case load and that adjournments potentially prejudiced other applicants who were waiting for their cases to be heard and determined. 50 Eighth, the Tribunal's reason for refusing Ms Pandey's request for more time was that she had been given ample opportunity to provide a current certificate of enrolment. The Tribunal referred to the fact that Ms Pandey's focus was no longer on continuing her studies. The relevance of this was that it explained why Ms Pandey was not enrolled in a course and, as a result, had not turned up at the hearing with a certificate of enrolment. It explained why she had not responded to the Tribunal's invitation to furnish evidence. The Tribunal did not find that if Ms Pandey did enrol she would not be a genuine student and that the adjournment request should be refused on that basis. 51 The legal reasonableness of the Tribunal's decision is borderline. The circumstance whereby Ms Pandey was pursuing a review of a refusal to grant her a student visa at a time when she was no longer a student was unusual. Ms Pandey had been put on notice of the information that she was required to provide to the Tribunal, and had attended the Tribunal hearing without any of that information. It was plainly open to the Tribunal to conclude that Ms Pandey had been given ample opportunity to produce a certificate of enrolment. However was that enough, in all the circumstances, to reasonably justify a refusal of the adjournment application? 52 In my opinion, the circumstances of this case put it into the category of case where the Tribunal had a "genuinely free discretion" or "decisional freedom": Li at [28], [66]; Singh at [44]. Minds may differ and reasonable decision-makers may reach different conclusions about the correct or preferable decision. The decision did not fall outside the range of possible, acceptable outcomes which are defensible in respect of fact and law. Nor could the Tribunal's decision be described as arbitrary, capricious, lacking in common sense or plainly unjust. 53 Whilst the Tribunal's reasons are short and could perhaps have been expressed in clearer terms, the decision could not be described as lacking in an evident and intelligible justification. Ms Pandey was pursuing a review application in respect of a student visa in circumstances where she was no longer enrolled as a student. She had already completed the courses listed as intended courses in her visa application. She had been put on notice that she was required to provide certain information, including a certificate of enrolment, before the hearing. She was put on notice that if she did not provide that information, the Tribunal would require "good reason" to grant additional time. 54 The Tribunal found, in effect, that Ms Pandey did not provide a good reason. She and her husband had been focusing on obtaining a different visa. The advice apparently provided by her migration agent must be understood in that context. It was open to the Tribunal to find that this was not a good reason, that Ms Pandey had been given ample opportunity to produce the requested information and that she should not be given more time in which to do so. 55 Whilst a different Tribunal might have reasonably arrived at a different decision and granted an adjournment, that fact alone does not mean that the decision was legally unreasonable. Nor does the fact that the Court, on review, might also have exercised the discretion differently. The Tribunal's decision was not legally unreasonable.

Conclusion and disposition 56 The Minister has succeeded in demonstrating error on the part of the primary judge. The Tribunal did not fail to take into account a relevant consideration. The Tribunal's decision was not legally unreasonable. It is unnecessary to consider the Minister's procedural fairness ground. 57 The appeal is allowed with costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.