CONSIDERATION
33 Broadly speaking, the appellants challenge the Tribunal's decision on the grounds that the Tribunal did not discharge its obligations under s 360 and misconstrued paragraph 101.213(1)(c) of the Regulations.
34 Although the framework of the Act is familiar to those who regularly apply it, it is necessary to refer to some of its provisions. The Act, in s 360, requires the Tribunal to "invite the applicant to appear before the Tribunal to give evidence and present argument relating to the issues arising in relation to the decision under review". It is convenient to note here that obligations under s 360 are equivalent to the obligations imposed on the Refugee Review Tribunal by s 425. The Tribunal is not bound to extend an invitation to an applicant under s 360 (cf s 425), if it considers that "it should decide the review in the applicant's favour on the basis of the material before it": see ss 360(2) and 425(2). The Act, in s 359(1), empowers the Tribunal to seek additional information that it considers relevant, and, in s 359A(1), obliges the Tribunal to give an applicant 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". This latter obligation does not, however, apply to information "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": see s 359A(4)(a) [sic]. The Tribunal must also ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review and invite the applicant to comment on it.
35 Section 363(1)(b) is also relevant in this case. This gives the Tribunal power to adjourn the review of a decision from time to time. Further, by virtue of s 349(1), the Tribunal may, for review purposes, exercise all the powers and discretions conferred by the Act on the person who made the primary decision. This includes the power conferred on the Minister by s 56(2) to invite an applicant to give additional information.
36 The Tribunal's decision is a "privative clause decision" within the meaning of s 474. This Court cannot set it aside except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506-508 and 511.
37 The decision in NAFF is central to the appellants' case. In that case, the High Court held that the Refugee Review Tribunal denied a visa applicant procedural fairness when it failed to act on its own statement at the end of a hearing that it would write to the applicant about inconsistencies in his evidence and allow him time to respond. In their joint judgment at 10, McHugh, Gummow, Callinan and Heydon JJ commented that:
One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.
38 Their Honours drew certain inferences from the Tribunal's decision to adjourn: see NAFF at 11. These inferences were that the Tribunal considered that: (1) the visa applicant's evidence had potential significance in the review; (2) the visa applicant had not done himself justice in the circumstances of the hearing; (3) the procedure had not been entirely satisfactory because it had not been wholly fair to him; (4) the process of review should not be brought to an end so far as the visa applicant's participation in it was concerned until he had been given a further opportunity; and (5) a fair technique by which to take the matter forward was for the visa applicant to be asked to explain the inconsistencies in less stressful conditions. They continued, at 11-12:
It is possible that the reason why the Tribunal member failed to send the promised questions was that, on reflection, she thought that everything she required had in fact already been put before her, or that a resolution of the perceived inconsistencies in the appellant's statements was not crucial in deciding the review against him. If either of these explanations, or any other explanation, existed, it is to be expected that the Tribunal member would have advanced it, either by a letter to the appellant or in her detailed reasons for decision. She did not do so. It is probable, when the workload under which the Tribunal labours is borne in mind, that the Tribunal member did not send the promised questions because she had forgotten or overlooked the promise to send them. Her failure to give any indication otherwise suggested that her original impression that the review process was incomplete had not altered on reflection, and was soundly based. It would not be complete until the steps which she had thought could remedy its defects had been carried out. The failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant.
39 The joint judgment held that the appellant in NAFF did not lose his entitlement to relief because he did not tender evidence that he had been misled or prejudiced by the Tribunal's failure to act as promised. It also rejected the respondent Minister's submission that there had been no material breach because the suggested internal inconsistencies were not crucial to the Tribunal's reasoning. This was because the Tribunal's "scepticism about particular parts of the appellant's evidence existed to some extent because of [its] scepticism about other parts of [the evidence]": see NAFF at 14.
40 Section 422B (which is equivalent to s 357A in connection with the Tribunal in this case) did not apply in NAFF, although it would in the present case. The reasoning in the joint judgment in NAFF (though not perhaps in Kirby J's judgment) did not, however, depend on the residual operation of the common law requirements of procedural fairness. On the contrary, the reasoning in the joint judgment turns on the operation of s 425 (as well as s 414). Section 348, which applies to the Tribunal here, is equivalent to s 414.
41 The appellants also relied on the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 ('SZBEL'). The decision in SZBEL is not especially relevant to the present case, although, taken in the broad, SZBEL emphasizes that conformity with s 360 requires the provision of a real, as opposed, to merely a formal opportunity to give evidence and present submissions. In SZBEL at 600, the Court noted that the Act provides that the applicant for review is to be given an opportunity to be heard on "the issues arising in relation to the decision under review": compare ss 425(1) and 360(1). The Court went on to say that these issues were to be "identified having regard not only to the fact that the tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker . . . but also to the fact that the tribunal is to review that particular decision, for which the decision-maker will have given reasons": see SZBEL at 600. Thus, said the Court, the issues arising on review will ordinarily be the issues that the original decision-maker identified "as determinative against the applicant", plus any other issues identified by the Tribunal: see SZBEL at 600. The Court held that, in the circumstances of the case, the review applicant was not on notice that two aspects of his account were in issue on the review because the primary decision-maker had not based his decision on them, and the Tribunal did not identify them as important issues. On this basis, the Court held that the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about these determinative issues.
42 Other authorities figuring in the appellants' submissions make the same essential point that, where the Tribunal is not minded to make a decision on the papers in a review applicant's favour, s 360 requires that he or she have a real opportunity to present evidence and submissions to the Tribunal. These other authorities included Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 ('SCAR') and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ('SZFDE'). SZFDE was a case about fraud and is therefore a different case from the present. Whatever the correct approach to the decision in SCAR, SCAR also raises different issues from the present. The Full Court in SCAR dismissed an appeal from a judge who had granted relief by way of certiorari for want of procedural fairness. Unknown to the Tribunal, on account of his father's recent death, the review applicant was suffering from extreme distress, for which he had received medication. The Full Court had regard to the obligation that s 425(1) imposed and said, at 560, that the invitation to attend a hearing "must not be a hollow shell or an empty gesture".
43 Did the Tribunal in this case proceed in conformity with s 360, by affording a real opportunity to present evidence and submissions to it? For the following reasons, this question should be answered in the negative.
44 The transcript of the hearing on 21 October 2005 showed that the Tribunal had some difficulty in taking evidence from the second appellant in Cambodia. Most importantly given subsequent events, just after the Tribunal member had ascertained from the second appellant that he started at the ELTI from the end of 2001, she commented to his representative (in the hearing room in Melbourne) that "we're running out of time for you and the interpreter". When she asked whether there was anything the representative wanted her to raise with the second appellant "before we finish up", there was the following exchange:
Migration agent: I'm not worried about time, your Honour, and the interpreter…
Tribunal member: Yes, we can speak to him again on another occasion if you need to. We will have to come back, I'm sorry.
Migration agent: That's okay. Not at the present moment, no, your Honour.
Tribunal member: Sorry, not at the moment?
Migration agent: No, not at the present moment.
Tribunal member: Okay. Mr Tang, we're going to finish up with you in a minute. Is there anything you'd like to say before we say goodbye to you?
Mr Tang through interpreter:I would like the member to make a decision as soon as possible because this application has been going on for seven or eight years now.
Tribunal member: Yes, anything else?
Mr Tang through interpreter: That's all.
Tribunal member: Okay. Thank you. Goodbye.
[Emphasis added]
45 Two matters appear. First, the evidence being given by the second appellant came to an end because the interpreter was obliged to leave. It is unclear whether or not the Tribunal was about to conclude its questions. If it was, it might have been said so and it did not. Secondly, the Tribunal specifically said, "We will have to come back". The statement from the appellants' representative that he did not wish to raise anything further "at the present moment" must be understood in this context. That is, it is clear from the context that the representative understood, reasonably, that there would be a further hearing. The second appellant's statement that he had nothing to say beyond asking for a speedy decision must also be understood in the same light. Presumably, the second appellant wanted the resumed hearing to occur at a relatively early date and not to be postponed indefinitely.
46 Shortly after this and before the hearing ended, the Tribunal member reiterated that there would be a further opportunity to present evidence. She told the first appellant that:
…we're going to have to finish up now because we can't keep our interpreter but we can come back on another day and I can take evidence from you. I'm going to send a letter to your agent asking him to get hold of certificates about your son's education because there's still quite a bit of confusion about what he's been doing for the last few years.
47 At the hearing, the Tribunal made it clear that it wanted better documentation of the appellants' claims, although precisely what it wanted was less clear. The Tribunal member told the appellants' representative that:
…I think a 359 is appropriate to try and get the documents to back up the oral evidence because the documents at the moment just don't help at all. I suspect that year 7 that we were looking at before is the year 7 Chinese school. It's got nothing to do with the secondary, which means I have nothing to show me that he completed secondary school or when. So I think that may not have a negative impact on the case but I've still got a vacuum, you know. There really isn't the documentary evidence to back up the claim. I mean, it's up to you. We can continue the hearing in a week or two or do the 359 first. Do you have a preference? I'm not wedded to either course.
[Emphasis added]
48 A discussion about the further conduct of the hearing followed. The appellants' representative indicated a preference for "a 359", saying "then we'll know…specifically what you want and if we haven't - then I think I'll call a new hearing" [Emphasis added]. Thereafter the Tribunal member and the appellant's representative said:
Tribunal member: Okay. So we'll do the 359 first and then see what we end up with.
Migration agent: Yes.
Tribunal member: And then come back again if we need to.
Migration agent: Absolutely.
…
Tribunal member: All right. It will spell it out obviously in the 359 but what I'm after is evidence of the educational history because there's nothing to say - nothing from secondary school. I think there's translation problems with the names of the schools.
Migration agent: Yes.
Tribunal member: Though I will need the original Khmer or Chinese, depending on which school it's coming from and a translation.
…
Tribunal member: …So I will spell out what we need but basically I need a record of his studies because it hasn't been provided to date for some reason, and if he has to apply to the ministry it might take time…
[Emphasis added]
At this point, the Tribunal was informed that in fact it held the original certificates for primary and high schools.
49 The hearing ended with the following exchanges:
Tribunal member: …Okay. I'll have a look at all that. We don't have anything current in relation to the university, do we? Yes…
Migration agent's assistant: There's a receipt.
Tribunal member: Yes, that's not going to help me much.
…
Migration agent's assistant: I understand Tola tried to go to the university to get something and he was fairly intolerant …
Tribunal member: Rebuffed.
…
Tribunal member: No, that wouldn't do it for me , I'm afraid. Okay. I'll go through it all, my mountain of files, and tell you what I need. All right?
Migration agent: Yes.
Tribunal member: Okay. …We're going to see if we can fix the case up and maybe come back again if we need to. Okay?
…
Tribunal member: …Okay. Thanks everyone for coming today. Sorry we haven't been able to get through it but it's a very complicated case, as you can see. Probably taking it just one bite at a time is not a bad idea.
[Emphasis added]
50 The Tribunal's position at the end of this adjourned hearing was clear. There were, in its view, problems with the documentation of the appellants' claims. In order that the appellants might understand and meet these problems, the Tribunal was to send their representative a letter seeking additional information under s 359. That is, the Tribunal apparently had in mind that the appellants might "fix up" their case by providing the documents that the Tribunal was to identify in the s 359 letter. Further, the appellants were to have a chance to present evidence and arguments at a resumed hearing unless a further hearing was unnecessary. As can be seen, the Tribunal did not introduce the idea that a further hearing might not be needed until the very end of the discussion. It did not elaborate on what it intended by this reference. I infer from what had been said previously on the subject that the Tribunal had in mind that there might be no need for a further hearing if the appellants presented the Tribunal with the documentary evidence sought in the foreshadowed s 359 letter, because the Tribunal might then be satisfied that it should make a decision favourable to the appellants.
51 As the High Court held in NAFF, it is undisputed that the duty to review involves the duty under s 360 to invite the applicant to a hearing to give evidence and present arguments. On the one hand, as Full Courts of this Court have said, the invitation must afford a real, in the sense of fair, opportunity to the applicant to present evidence and arguments. On the other, as the High Court also said in NAFF, the Tribunal must consider that evidence and arguments. If it concludes that it cannot give such consideration until other steps in the review process are taken, then it cannot complete that review without taking those steps (or indicating that it has, for some reason, changed its mind).
52 I would infer from the Tribunal's statements at the adjourned hearing that there would be a further opportunity to present evidence and arguments that the Tribunal considered that: (1) the adjourned hearing had not afforded the appellants an adequate and fair opportunity to present evidence and arguments in support of their case; (2) further documentary and oral evidence from the appellants might be significant on the review; (3) a fair and proper way to advance the process of review was to identify the missing documentary evidence that the Tribunal considered important, by means of a letter seeking additional information under s 359; (4) the process of review should not be completed until the appellants had had an opportunity to provide the Tribunal with that documentary evidence; and (5) the appellants should be afforded a further opportunity to present evidence and arguments at a resumed hearing if the Tribunal were not satisfied that it should make a decision in the appellants' favour.
53 As we have seen, the Tribunal did indeed send a letter (dated 24 October 2005) under s 359, as it had said it would, and, presumably, after it had perused the "mountain of files" it held for the appellants. In this respect, the case is distinguishable from NAFF where the promised letter was never sent. Having regard to the Tribunal's ultimate reasons for decision, however, it is apparent that the letter did not identify for the appellants the missing documentary evidence that the Tribunal considered important. The letter specifically sought the second appellant's year 12 results, as well as statements from the ELTI and the Liang Ly School (also referred to in the Tribunal's reasons as the "Leang You School"). The letter did not request any further documentation relating to the second appellant's course at the ITM. In particular, contrary to the Tribunal's belief (as stated in its reasons), the letter did not request "results for the visa applicant's associate degree or bachelor degree courses" or "verifiable documentary evidence of his studies at the ITM".
54 In sending its letter of 24 October 2005, the Tribunal purported to give effect to its view that a fair and proper way to progress this case was to send a s 359 letter identifying the missing documentary evidence that it regarded as important for the appellants' case. This letter was not the letter described by the Tribunal in its reasons for judgment as being sent after the adjourned hearing. The letter described in the Tribunal's reasons invited the appellants to provide much more than the letter they actually received. Thus, for example, the Tribunal's reasons refer to a letter inviting the appellants to provide a "[s]tatement from the ITM indicating whether the visa applicant enrolled in an Associate Diploma, Associate Degree or Bachelor Degree course in 2002 and the estimated date of completion of that course. Statement of the visa applicant's academic results in 2002/2003 and 2003/2004, as well as confirmation of his current enrolment". The letter that the Tribunal actually sent contained no such request. The letter referred to by the Tribunal in its reasons was said to have requested details of the Duon Hoa Chinese School and the Atlanta Centre, whereas the letter that the Tribunal actually sent contained no such specific request.
55 As already noted, when the Tribunal adjourned the hearing on 21 October 2005, the Tribunal member apparently believed that a fair and proper way to progress the case was for her to send the appellants a s 359 letter identifying for them what she saw as the important missing documentary evidence for their case. She did not send such a letter. That is, the letter of 24 October 2005 did not identify for the appellants what she saw as the important missing documentary evidence. This much is clear from the Tribunal's reasons. First, as noted above, the Tribunal twice referred to the fact that the appellants had not provided the documentation regarding the ITM, which she mistakenly thought she had specifically sought from them. It drew strong adverse inferences from their failure to provide these documents and the lack of explanation for the perceived deficiency. These failures weighed heavily against the appellants, in the Tribunal's consideration, because of the visa applicant's "bogus claim" regarding Norton University. Secondly, the Tribunal, in its reasons, referred to the fact that it had invited the appellants to provide detailed documentary evidence of studies at various other institutions, including the Atlanta Centre and the Doun Hoa Chinese School. The Tribunal was mistaken if it thought it had specifically requested documentation about these institutions in its letter of 24 October 2005. Thirdly, had the Tribunal sent the letter described in its reasons instead of the letter it actually sent, it appears that it would in fact have identified what it perceived to be the important missing documentary evidence in the appellants' case.
56 There is nothing in the Tribunal's reasons to indicate that the Tribunal member was aware of the fact that the letter actually sent to the appellants sought much less than the letter she described in her reasons as being sent. On the contrary, the Tribunal's clear mistake about the ITM documents strongly indicates that the Tribunal member did not realise that the appellants had not received a letter in the terms she described. It would follow that the Tribunal member was unaware that the appellants had not in fact received a letter identifying for them the documents that she regarded as missing and important for their case. There is nothing in her reasons or in the attendant circumstances that would indicate that she had changed her view that the review process should not be completed until a letter identifying these documents had been sent to the appellants in order that they might direct their attention to providing them (or explaining their absence). As in NAFF, the failure to complete the review process was a failure to comply with the duty, imposed by s 348, to conduct the review and the duty, under s 360(1), to hear from the appellants.
57 It is not sufficient to say, as the first respondent does, that there was discussion at the adjourned hearing about the need for further documentation and some indication from the Tribunal that it did not regard enrolment receipts as sufficient. The whole point of the s 359 letter, as the transcript of the discussion between the Tribunal and appellants' representative shows, was that it would identify for the appellants what the Tribunal saw as the important missing documentation after the Tribunal had gone through the relevant files. Since the Tribunal was to complete this task before sending the s 359 letter, and the files were apparently voluminous, the appellants' representatives were reasonably entitled to rely on the s 359 letter sent to them as stating what the Tribunal perceived to be the documentary deficiencies in the appellants' case. There was nothing in this letter to indicate that the Tribunal considered that the appellants needed to provide further ITM documentation, such as transcripts of ITM results, in order to fill a gap in their case.
58 The fact that the appellant's representatives later provided the Tribunal with additional unsolicited documentation, including some receipts from the ITM, does not alter the significance of the s 359 letter. It is scarcely surprising that the representatives would send additional supportive material, though not specifically sought by the Tribunal, on the straightforward basis that such material was confirmatory of the appellants' position. It does not, however, follow from the fact that this additional material was sent that the appellants' representatives were on notice that the Tribunal considered that documentation beyond that sought in the s 359 letter was, in the Tribunal's view, necessary (or important) to complete the documentary aspects of the appellants' case.
59 There is, moreover, a further difficulty with the Tribunal's conduct of the review in this case. This relates to the fact that the Tribunal did not convene a resumed hearing before delivering its decision, although it had stated it would do so at the conclusion of the October hearing. What led to this happening? In late January-early February 2006, an officer of the Tribunal contacted the appellants' representative about a further hearing. There were some telephone conversations and the representative apparently indicated that he would confirm the appellants' position by faxed letter. This he did. The faxed letter of 6 February 2006 reads as follows:
I refer to your telephone messages today about whether the applicant requires a further hearing of this matter.
The applicant is happy not to have a further hearing of this matter if it is unnecessary. However, if the Tribunal has any adverse issues to put to the applicant then there should be a hearing.
Perhaps the letter might have been clearer than it was. In the context of this case, however, its purport was clear enough. The letter could not properly be taken as saying that the appellants did not want a resumed hearing if the Tribunal's mind was already against them, as at one stage the first respondent's argument suggested. Presumably, the letter intended to say that the appellants did not want a further hearing if a further hearing was unnecessary because the Tribunal was satisfied that it should make a decision in the appellants' favour. Given the relatively limited terms of the Tribunal's s 359 letter and the appellants' response, which was more ample than required, this may well have seemed a reasonable possibility to the appellants' representatives. The letter also addressed the alternative possibility by saying "if the Tribunal has any adverse issues to put", then the appellants desired a hearing. In the context in which the letter was written, it seems unlikely that the representative was using the expression "adverse issues" in anything other than a very general way to signify points that the Tribunal was not yet minded to resolve in the appellants' favour. This broad request was consistent with the fact that, for reasons already explained, the Tribunal had itself indicated at the adjourned hearing that there would be a further hearing if the appellants wanted it. I reject the first respondent's submission that the "adverse issues" mentioned in the letter "could only relate to matters about which the appellants and their representatives were not and could not reasonably have been expected to be aware". This would introduce a refinement that simply was not there.
60 Despite this letter and the Tribunal's stated attitude at the end of the hearing in October, the Tribunal did not convene a resumed hearing and proceeded to make its decision. As its reasons show, there were a number of "adverse issues" in the sense just referred to that the Tribunal might have put to the appellants at a resumed hearing.
61 I accept, as the appellants said, that the failure to convene a further hearing involved a departure from the process for review that the Tribunal had determined was fair and proper in the circumstances that had arisen by the end of the hearing in October. That is, at this stage, the Tribunal apparently considered that, after the appellants had responded to the foreshadowed s 359 letter, they should be given an opportunity to present evidence and arguments at a resumed hearing if necessary (i.e., if the Tribunal were not satisfied by that stage that it should make a decision in the appellants' favour).
62 Perhaps the Tribunal member failed to reconvene the hearing because, on reflection, she thought that there was no further evidence or arguments that the appellants could usefully present and that nothing they could say could affect her decision. If so, the Tribunal member might be expected to say so, either by a letter to the appellants or in her reasons for decision. As we have seen, she did not say anything about the matter before the decision was given or in her reasons. Perhaps, the Tribunal member had forgotten the discussion that had ensued between her and the appellants' representative at the end of the adjourned hearing, or she had simply misunderstood what the appellants' representatives had intended to convey in their last letter to the Tribunal. Again, her failure to say anything about the matter indicates that her original view, based on what had happened by the end of the adjourned hearing had not altered - that the review process would fairly and properly be completed only after a reconvened hearing. In the circumstances of the case, the failure to convene a further hearing amounted to a failure to complete the review process. There was therefore a further failure to comply with the duty to conduct the review and the duty to hear from the appellants.
63 Generally speaking, it is, of course, for an applicant to make out his or her case before the Tribunal. As the first respondent said, the Tribunal is not required to go out of its way to assist an applicant to do this. The Tribunal is not required to make inquiries about what the case might be and to obtain further information to support that case. Nor is it obliged, generally speaking, to tell an applicant about any preliminary adverse views it may have about the evidence. None of this answers the problem that arose in this case, however, where the Tribunal, which was in the best position to assess the matter, formed a view about the steps that were fairly and properly to be taken to complete the review process and did not take them. These circumstances call for a different response. Furthermore, it is not enough in such a case to refer to the fact that there had been some presentation of evidence at a hearing and some opportunity for the delivery of post-hearing evidence and submissions, when on the Tribunal's own assessment, the hearing had not afforded the appellants an adequate and fair opportunity to present evidence and arguments and the steps that it considered should be taken fairly and properly to complete the review were not been taken.
64 It follows from the foregoing that the Tribunal's finding that it was not satisfied that the two year period that preceded the second appellant's enrolment at the ITM was reasonable in all the circumstances was the product of a failure to conduct a review in accordance with s 348 and to hear from the appellants as s 360 required. This amounted to jurisdictional error and would entitle the appellants to the relief they seek.
65 The first respondent sought to support the Tribunal's decision on the basis of the alternative Tribunal finding that it was not satisfied that there was sufficient evidence that the visa applicant had been undertaking a full-time course of study at the ITM. As we have seen, however, this finding, which was clearly induced by the appellants' failure to provide the documentation that the Tribunal wrongly thought it had asked for in its letter of 24 October 2005, was also the outcome of the failure to conduct a review and to hear from the appellants as the Act required. Accordingly, the Tribunal's decision cannot be supported on the basis of the alternative finding, which is also infected by jurisdictional error.
66 There are two other comments I would make, although neither are strictly necessary. First, it may be that the Tribunal departed from the text of paragraph 101.213(1)(c) when it held that there was insufficient evidence "to justify" the two year delay between completing year 12 studies in 1999/2000 and enrolling at the ITM. The paragraph does not require there to be justification for the lapse of time; rather, the paragraph requires that an applicant has been undertaking a full-time course "within…a reasonable time after completing the equivalent of year 12". Of course, the Tribunal's assessment of what is a reasonable time necessarily depends on all the circumstances of the case; and if, in using the word "justify", the Tribunal merely sought to capture this idea, then there was no error. Secondly, it may be doubted whether the word "undertaking" is synonymous with "actively participating" as the Tribunal apparently thought. As the first respondent noted, the word can relevantly be defined as "engaging in" or "entering upon" some enterprise: see The Australian Oxford Dictionary and The Oxford English Dictionary. It may therefore have been enough for the Tribunal to have asked itself whether, on the material before it, the visa applicant had established to its satisfaction that he had been engaging (or participating) in, or entering upon, a full-time course of study. The inclusion of the word "actively" in the expression "actively participated" may have introduced an additional notion, to which the paragraph does not refer. If, however, in using the word "actively", the Tribunal meant merely to indicate that a visa applicant must in fact have been undertaking a full-time course as distinct from merely claiming to have done so, then there was no error.
67 For the reasons stated, I would allow the appeal. I would set aside the orders of the learned Federal Magistrate and, in lieu thereof, order that: (1) there be an order in the nature of certiorari quashing or setting aside the decision of the Tribunal dated 16 February 2006; and (2) there be an order in the nature of mandamus remitting the matter to the Tribunal, differently constituted, for determination according to law. I would invite the parties to state their respective positions on the question of costs.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.