Nguyen v Minister for Immigration and Citizenship [2025] FedCFamC2G 1575

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 354-355);

(e) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(f) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the first applicant that this was not an exhaustive list and she should attempt to tell the Court why she said the Tribunal had fallen into error.

Interpretation issues at the hearing and adjournment

1. Unfortunately, during the course of the first applicant explaining to the Court what she thought the Tribunal had done wrong, the first applicant raised an issue with the interpreter assisting her at the hearing. After further questioning, it appeared that the applicant was not satisfied with the level of interpretation being provided. To ensure that the applicant was afforded procedural fairness and could properly participate in the hearing, the Court stood the matter down for almost an hour and arranged for a new interpreter to attend the hearing to assist the applicant.
2. When the hearing recommenced (with the assistance of the new interpreter), the Court determined that, given the interpretation issues raised by the applicant, it would start the hearing afresh (including again explaining to the first applicant the need to appoint a litigation guardian for her son, confirming she had received the Court Book and the Minister's submissions, admitting the first applicant's affidavit into evidence and taking her through the powers of the Court and the types of errors that often occur in matters of this type).
3. The first applicant confirmed that she could understand the new interpreter and no further interpretation issues arose during the hearing. The first applicant did, however, seek a one hour adjournment of the hearing approximately 40 minutes after recommencing on the basis of health issues. The Court considered it was appropriate to do so and adjourned the hearing to ensure that the first applicant was afforded procedural fairness and had every opportunity to raise any concerns she might have had with the Tribunal's decision or the approach taken by it in this matter.
4. Against this background, the first applicant told the Court that she was very surprised that the Tribunal had sent two emails on 29 September 2022 and that she had not clearly seen the second email. When asked by the Court whether she had not received it or whether she simply had not read the second email, the first applicant told the Court that the emails were sent 28 minutes apart and the first asked for information about her course enrolment and the second "promised" that the Tribunal would hold the hearing via Microsoft Teams.
5. The first applicant stated that she had been "very surprised" to receive the email from the Tribunal on 14 October 2022 stating that the applicants had lost their entitlement to the hearing because it "was the opposite of what [they] were told" in the email received on 29 September 2022. She also reiterated that she had not known that she needed to provide information or she would not have a hearing and that, if she had known that, she would have sought an extension of time from the Tribunal to get a CoE.
6. At the end of the hearing, the first applicant stressed that the email regarding the request for more information was the first email received and the second email stated that there would be a video hearing. Further, the second email from the Tribunal was very clear, stating that the Member had considered the applicants' case to be appropriate for a video hearing and that the time of the hearing and further information would be provided. On that basis, she was expecting to have a hearing and, had that email not been sent, she would have arranged for a CoE from the University of South Australia and sent the confirmation within the required time or sought an extension of time within which to do so.
7. The first applicant's oral submissions relate to the concerns raised in the applicants' grounds of review and will be addressed with those grounds by the Court below.

1. As outlined above, the application for judicial review contained three grounds asserting jurisdictional error. Noting that the applicants were unrepresented in this matter, the Court has endeavoured to interpret the applicants' grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).

1. Grounds one and two essentially allege that the Tribunal erred by failing to invite the applicants to attend a hearing before it and that, by failing to do so, the Tribunal's actions were "grossly inconsistent with its own assurance" (that there would be a Tribunal hearing which would take place by video).
2. The Minister submitted that:

(a) the Tribunal was correct to find that it could not invite the applicants to attend a hearing before it once the applicants failed to respond to the Tribunal's invitation letter (sent pursuant to s 359A of the Act), citing the decision in Hasran;

(b) nothing in s 360 of the Act or the Tribunal's email correspondence could change the legal effect of the well-established principles outlined in Hasran (which are binding on this Court);

(c) the correspondence from the Tribunal to the applicant (being the Tribunal's email sent on 29 September 2022 at CB 126) was simply a response to the first applicant's email requesting an in-person hearing and was not any assurance that there would be a video hearing;

(d) the Tribunal could not have known at the time of sending that email that the applicants would not respond to the Tribunal's invitation letter; and

(e) to the extent that the applicants' suggest that the Tribunal's "assurance" gives rise to an estoppel, that cannot succeed because the Tribunal had no power to invite the applicants to attend a hearing.

1. The Court agrees for the reasons that follow.
2. As explained by this Court recently in Chen v Minister for Immigration and Citizenship [2025] FedCFamC2G 1498, the Tribunal's procedural fairness obligations were set out in Division 5 of Part 5 of the Act (as was in force at the time of the Tribunal's decision in this matter), which provided an exhaustive statement of the natural justice hearing rule (s 357A of the Act and Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [66]). One of the statutory obligations was contained within s 359A of the Act which required that the Tribunal must give to the applicants clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review; ensure that the applicants understood why it was relevant, and the consequences of it being relied upon; and invite the applicants to comment on the information.
3. The Tribunal invited the applicants, pursuant to s 359A of the Act, to comment on information that the first applicant was not enrolled in any course of study. That invitation was sent to the applicants by email to the nominated email address in their review application. The Tribunal's invitation letter clearly set out the particulars of the information relied upon and the consequences of failing to provide information in response. The applicants did not respond to that invitation (or seek an extension of time within which to respond to the invitation) by the due date (being 13 October 2022) or at all.
4. There are clear statutory consequences which follow from a failure to respond to an invitation under s 359A of the Act. Those consequences were explained by the Full Court of the Federal Court in Hasran as follows:
   1. Here, the appellant's failure to respond to the Tribunal's letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.
   2. This was because the appellant was invited by the Tribunal's letter under s 359A to comment or respond to the information stated in the Tribunal's letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the Tribunal.
   3. The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing.
5. As such, the Tribunal was correct to find that the applicants were not entitled to appear at a hearing before it. The Tribunal's invitation letter validly invited the applicants to provide information in accordance with s 359A of the Act as it gave clear particulars of information that would be the reason (or part of the reason) for affirming the decision for review, ensured the applicants understood why the information was relevant to the review, and invited the applicant to comment on or respond to it. As outlined above, the Tribunal's invitation letter stated as follows (CB 124-125):

The Tribunal has obtained information about you concerning your study history in Australia. The particulars of the information are set out in the Provider Registration and International Student Management System ('PRISMS') record dated 15 September 2022 that is enclosed with this letter. Specifically, your attention is drawn to the following information contained in that PRISMS record:

The particulars of the information are;

• Your most recent enrolment in a Bachelor of Business (Accounting) was marked cancelled by the course Provider on 8 August 2021 due to you notifying cessation of studies. According to the PRISMS record, you have not been enrolled in any other registered course of study since that time. You are not enrolled in any course now.

The information is relevant to your review because the information suggests that you are not currently enrolled in a course of study. This, in turn, indicates you do not meet the primary criteria for the grant of a student visa under clause 500.211 of Schedule 2 of the Migration Regulations 1994 (Cth) ('the Regulations'). This was the ground on which your application for this student visa was refused. This is a time of decision criterion which means at the time the Tribunal makes its decision on your application you must be currently enrolled in a registered course of study to be eligible to be granted a student visa.

If the Tribunal relies on the information above in making its decision, it may determine that you do not meet the primary criteria for the grant of a student visa. This may be the reason, or part of the reasons, for the Tribunal affirming the decision not to grant you a student visa.

...

Your comments or response should be received by 13 October 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

...

If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

1. Despite the opportunity provided to the applicants, they failed to respond to the Tribunal's invitation letter within the prescribed timeframe.
2. In failing to respond to the Tribunal's invitation letter, the effect of s 359C of the Act is that, if an applicant is invited to give information under s 359A but fails to do so, the Tribunal may make a decision on the review without taking any further action. The Tribunal was thus not obliged to invite the applicants to attend a hearing pursuant to s 360 of the Act as this obligation ceased due to the applicants failure to respond to the Tribunal's invitation letter. The Tribunal was thus precluded from inviting the applicants to attend a hearing, such that it proceeded in the only manner it could have, by making a decision on the papers (see Hasran at [25]).
3. Whilst the Tribunal had no power to convene a hearing, it nevertheless could take further steps to obtain information and it was required to comply with procedural fairness obligations. The Court considers that the Tribunal did so here by obtaining a further search of the PRISMS database on the day of its decision (the results of which indicated that the first applicant's enrolment status remained unchanged and she was still not enrolled in a registered course of study) (Minister for Immigration and Multicultural and Indigenous Affairs v Jing Shan Sun [2005] FCAFC 201; (2005) 146 FCR 498 at [49]).
4. The Court does not consider that there was any error in the Tribunal's approach in this matter. In circumstances where the first applicant failed to satisfy the enrolment criterion at the time of its decision, the Tribunal made the only decision open to it by affirming the delegate's decision (El-Tawil v Minister for Home Affairs [2019] FCA 1012).
5. Grounds one and two do not disclose any jurisdictional error on the part of the Tribunal.

1. Ground three suggests that the Tribunal's invitation letter was invalid because it failed to reference s 359A of the Act and did not notify the applicants that a failure to respond to the invitation letter would result in the Tribunal proceeding to make a decision pursuant to s 359C of the Act.
2. The Minister submitted that the applicants' assertions had no merit because:

(a) the Tribunal was only required to put "information" to an applicant and legislation (or principles emerging from case law) did not constitute information (citing Minister for Immigration and Ethnic Affairs v Sabri Polat [1995] FCA 1204 at [401] and Singh v Minister for Immigration & Citizenship [2011] FCAFC 27 at [47]- [48]) and the Tribunal put to the applicant information obtained from the PRISMS database for comment (CB 124-125);

(b) the Tribunal put the applicants on notice of the consequences of failing to respond to the Tribunal's invitation letter (CB 125); and

(c) the Tribunal's invitation letter complied with the relevant legislative provisions.

1. The Court agrees for the reasons that follow.
2. As explained by the Court above, s 359A of the Act required the Tribunal give the applicants clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. At the time of the Tribunal's decision, s 359A of the Act relevantly provided as follows:

359A Information and invitation given in writing by Tribunal

(1) Subject to subsections (2) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in section 379A; or

(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non‑disclosable information.

(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

1. The Court is satisfied that the Tribunal's invitation complied with the relevant legislative requirements. In particular, the Tribunal's invitation letter:

(a) gave the applicants clear particulars of the information the Tribunal considered would be the reason, or part of the reason for affirming the decision under review (as required by s 359A(1)(a) of the Act) as follows (CB 124):

The Tribunal has obtained information about you concerning your study history in Australia. The particulars of the information are set out in the Provider Registration and International Student Management System ('PRISMS') record dated 15 September 2022 that is enclosed with this letter. Specifically, your attention is drawn to the following information contained in that PRISMS record:

The particulars of the information are;

• Your most recent enrolment in a Bachelor of Business (Accounting) was marked cancelled by the course provider on 8 August 2021 due to you notifying cessation of studies. According to the PRISMS record, you have not been enrolled in any other registered course of study since that time. You are not enrolled in any course now.

(b) explained why that information was relevant to the review and the consequences of it being relied on in affirming the decision under review (as required by s 359A(1)(b) of the Act) as follows (CB 124):

The information is relevant to your review because the information suggests that you are not currently enrolled in a course of study. This, in turn, indicates you do not meet the primary criteria for the grant of a student visa under clause 500.211 of Schedule 2 of the Migration Regulations 1994 (Cth) ('the Regulations'). This was the ground on which your application for the student visa was refused. This is a time of decision criterion which means at the time the Tribunal makes its decision on your application you must be currently enrolled in a registered course of study to be eligible to be granted a student visa.

If the Tribunal relies on the information above in making its decision, it may determine that you do not meet the primary criteria for the grant of a student visa. This may be the reason, or part of the reasons, for the Tribunal affirming the decision not to grant you a student visa.

(c) invited the applicants to comment on or respond to that information (being that the first applicant was not enrolled in a registered course of study) (as required by s 359A(1)(c) of the Act);

(d) put the applicants on notice that, should they not respond to the invitation, they might lose the right to a Tribunal hearing as follows (emphasis in original) (CB 125):

If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

(e) gave the applicants 14 days within which to respond (being the prescribed period set out in reg 4.17(4) of the Regulations as was in force at the time of the Tribunal's decision) (as required by s 359B(2) of the Act); and

(f) was sent to the applicants' by email (a valid method of notification specified in s 379A of the Act) at the last known email address provided by the applicants in connection with their Tribunal review (as required by s 359A(2)(a) of the Act).

1. For the reasons outlined above, ground three does not identify any jurisdictional error on the part of the Tribunal.
2. The Court asked counsel for the Minister at the hearing of this matter whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention. There were none.
3. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision. The Court is satisfied that, even adopting the broad approach referred to in [58] of these reasons, that no jurisdictional error is apparent.

1. The application for review has failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application for judicial review is dismissed.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.