FEDERAL COURT OF AUSTRALIA

Chava v Minister for Immigration and Border Protection [2014] FCA 313

THE COURT ORDERS THAT:

1.    The name of the first respondent in the proceeding be amended to “Minister for Immigration and Border Protection”.

2.    Leave is granted for the appellant to rely on the amended notice of appeal filed on 25 February 2014.

3.    Leave is granted for the appellant to rely on the following evidence which was not before the Federal Circuit Court: a transcript of the Migration Review Tribunal hearing on 18 December 2012, the affidavit of the appellant sworn 25 February 2014, a certificate of enrolment with Brighton Institute of Technology dated 26 November 2012, and two cancelled certificates of enrolment with Brighton Institute of Technology dated 26 November 2012.

4.    The appeal is dismissed.

5.    The appellant pay the first respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SUMMARY

1        This is an appeal from a decision of the Federal Circuit Court made on 8 August 2013, dismissing the appellant’s application for judicial review of a decision of the Migration Review Tribunal made on 19 December 2012.

2        For the reasons set out below the appeal will be dismissed.

BACKGROUND

3        The proceeding before the Federal Circuit Court concerned the review of a decision of the Migration Review Tribunal made on 19 December 2012, in which the Tribunal affirmed a decision made on 27 May 2011 by a delegate of the Minister for Immigration and Citizenship to refuse to grant a Student (Temporary) (Class TU) visa to the appellant. Orders were made by the Federal Circuit Court on 8 August 2013 dismissing that application. The appellant was unrepresented before the Federal Circuit Court and the application he filed provided scant particulars of his grounds of review. He did not comply with the Federal Circuit Court orders for the filing of affidavits and any amended application setting out the grounds of review he sought to agitate. The process by which the Federal Circuit Court was compelled to consider the application for judicial review was, sadly, all too typical in proceedings of this nature and there was in reality little possibility the appellant could make effective use of the judicial supervision of merits decisions for which the Migration Act 1958 (Cth) (the Act) provides.

4        The grounds relied on before the Federal Circuit Court were:

1.    Review was affirmed not to grant the visa, wrong coe has been submitted to     member [sic]

2.    Tribunal member was rude and has not given one day to provide new coe

3.    Apart of the coe every single document has been submitted perfectly

5        The appellant’s proceeding in the Federal Circuit Court arose in the following way.

6        He had applied on 16 April 2011 for a student visa. To be granted that visa he needed, relevantly, to satisfy the Minister he was a genuine student and also to satisfy the criteria set out in cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), read with those other parts of the Regulations which gave further content to the requirements in that clause. The key criteria related to giving evidence of his enrolment in an appropriate course of study, of his financial capacity to meet his living expenses, course fees and travel to the amounts specified by the Minister, and to demonstrate the requisite level of health insurance.

7        His application was refused by the Minister’s delegate on 27 May 2011. One of the bases for the refusal was that the appellant had not provided evidence in accordance with the requirements of cl 5A405 of Schedule 5A to the Regulations, because the person he identified as holding a loan in the amount of Rs 1,755,000, which the appellant could access, was not an “acceptable individual” for the purposes of the Regulations.

8        On 10 June 2011, the appellant applied to the Tribunal for review of the delegate’s decision. On 18 October 2012, he was sent an invitation to attend a hearing on 18 December 2012. The invitation also asked him to provide:

a)    a certificate of enrolment (CoE) as required by cl 572.222, or evidence that he was enrolled in a registered course as set out in cl 572.231; and

b)    current evidence that he satisfied the financial capacity criteria.

The invitation requested that evidence “as soon as possible but no later than 7 calendar days prior to the hearing date”, noting that the Tribunal would “seek to make a decision at the conclusion of the hearing”.

9        The appellant’s migration agent responded to the Tribunal’s request for documents in a letter dated 13 December 2012. That letter attached two certificates of enrolment: one for a Certificate IV in Frontline Management (for a course running between 15 February 2013 and 15 August 2013); and one for a Diploma of Management (for a course running between 15 October 2013 and 30 July 2014). The letter also attached some documentation establishing the appellant had health insurance current until the expiry of his student visa on 5 March 2014, and affidavit and other evidence from the appellant’s father, to the effect that he had taken out a loan in the amount of Rs 1,215,000 to cover the appellant’s studying and living expenses in Australia.

THE TRIBUNAL’S DECISION

10        The Tribunal conducted the hearing on the review on the basis of the material provided by the appellant through his migration agent on 13 December 2012, including that the appellant was intending to study two separate courses, running over different periods of time. The appellant’s migration agent accompanied him to the review hearing. The Tribunal gave an oral decision at the end of the hearing, and followed this with written reasons a day later.

11        The Tribunal calculated that the appellant was required to give, in accordance with cl 5A405, evidence of funds from an acceptable source to meet total expenses of $39,000 (comprising course fees in the amount of $7,000, living expenses for 20 months in the amount of $31,000, and travel costs in the amount of $1,000). Converting the loan as stated in the evidence to have been taken out by the appellant’s father, the Tribunal found that loan equated to $21,004, which was considerably less than the funds required in accordance with cl 5A405.

12        In its reasons, the Tribunal described the course of the review hearing before it on 18 December 2012. It recorded there had been some exchanges between the Tribunal and the appellant, after the Tribunal had indicated its view that the appellant had not given evidence of sufficient funds to cover living expenses, tuition and travel for the courses set out in the CoEs.

13        The Tribunal then described what occurred in the following way:

The applicant interrupted and said he wished to be assessed only for the Diploma of Management and not for the Certificate IV in Frontline Management thereby reducing the requirements.

14        The Tribunal’s reasons then set out how the Tribunal dealt with this matter, both in terms of its reasoning about what the appellant had said, and how in its reasons it recorded what occurred at the hearing.

45. The Tribunal asked on what basis he made this decision. The applicant told the hearing he believed the Diploma of Management would give him all the academic background required for him to get a job.

46. In response to a question by the Tribunal, the applicant said he had decided to cancel his enrolment in the Certificate IV course on 15 November 2012.

47. The Tribunal asked if this was the case, why he had provided the Tribunal with the two CoE’s on 13 December 2012 as evidence of his intended studies. The Tribunal further noted that the CoE’s provided had been printed 16 November 2012 the day after he claims to have made the decision to cancel his enrolment in the Certificate IV course.

48. The Tribunal told the applicant this oral evidence conflicted with all the other evidence previously provided including the two CoE’s provided within the last week.

49. The Tribunal observed that earlier in the hearing it had on two separate occasions referred to the applicant’s intended study of two courses being Certificate IV in Frontline Management and a Diploma of Management. On neither occasion had the applicant taken the opportunity to advise his amended intention to only study only one of the courses, but when the Tribunal advised the applicant that evidence presented did not satisfy the requirements, only then did he advise of his changed study plans.

50. The Tribunal told the applicant it was more persuaded by his previous submissions and therefore intended to assess his application with his intended studies being both a Certificate IV in Frontline Management and a Diploma of Management scheduled to run until July 2014.

15        There are some discrepancies between the way the Tribunal records what occurred at the hearing and what the transcript reveals in fact occurred. Those matters are dealt with at [64] to [65] below.

16        The Tribunal’s conclusion was expressed in the following way.

55. On the basis of the evidence before it, the Tribunal finds that the applicant is enrolled in a Certificate IV in Frontline Management and a Diploma of Management. The Tribunal finds that the applicant’s principal course is a Diploma of Management which was specified for Subclass 572 by the Minister in the relevant instrument under r.1.40A of the Regulations. Accordingly, the relevant subclass for this review is Subclass 572. The Tribunal finds that the applicant is not a person designated under r.2.07AO of the Regulations and that he holds an eligible passport of India.

56. According to IMMI 11/011, 2 April 2011, the instrument for r.1.41 that was in force at the time of application, the assessment level for Subclass 572 and a passport of India is Assessment Level 4. Accordingly, the highest assessment level in this case, and that to which the applicant is subject, is Assessment Level 4.

The Schedule 5A requirements

57. To be eligible for the grant of a visa the applicant needs to provide evidence he satisfies the Schedule 5A requirements detailed in 5A405, by providing evidence he has access to funds to support study and living expenses in Australia.

58. The issue for the Tribunal is whether the applicant meets the requirements of cl.572.223 of Schedule 2 to the Migration Regulations. The primary decision was based on the applicant’s failure to provide satisfactory evidence he had the necessary financial capacity.

59. To satisfy the financial capacity requirements as per 5A405, the applicant needed to show access to a total of $39,000. The evidence provided by the applicant was that his father was his sponsor and as evidence of funds presented a loan the equivalent of approximately $21,000.

60. On the basis of the above, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and the assessment level to which he is subject, in relation to the necessary financial capacity. Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i).

CONCLUSIONS

61. For the reasons given above, the Tribunal is not satisfied that the applicant meets an essential requirement of cl.572.223 of Schedule 2 to the Regulations. As explained earlier in these reasons, the subclass of Student visa that can be granted to an applicant is determined by the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course. The relevant subclass in this case is Subclass 572. As the Tribunal has found the applicant does not meet cl.572.223, it follows that the applicant cannot be granted a visa of that subclass. As no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria tor any of the other Student (Temporary)(Class TU) visa subclasses, the decision under review must be affirmed.

THE REVIEW IN THE FEDERAL CIRCUIT COURT

17        As can be seen from the grounds set out at [4] above, the appellant’s grounds were not expressed in legal terms. Nevertheless, he was complaining that the Tribunal had not understood that he submitted the wrong confirmation of enrolment, and also had not given him any time to provide the correct one.

18        The Federal Circuit Court dismissed the application for judicial review: see Chava v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1032. It noted that the appellant had not filed any affidavits or submissions pursuant to the directions made. There was, however, an originating affidavit filed with the Court, and the Court referred to this in its reasons. The Court’s reasoning is set out in the following two paragraphs of its judgment:

17.    The weight to be given to the Applicant’s claims and the evidence was a matter for the Tribunal to assess as part of its fact-finding function Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282). The Tribunal was not required to accept the Applicant’s contradictory evidence provided late in the hearing that he no longer wished to study a Certificate IV in Frontline Management and it was entitled to proceed to assess him against the Schedule 5A of the Regulations criteria for undertaking that course. These were factual findings open to the Tribunal on the evidence before it and cannot be reviewed by this Court.

18.    In the Applicant’s Affidavit sworn 14 January 2013 the Applicant deposes to making a mistake by submitting an old CoE to the Tribunal which had been cancelled. He claimed that he tried to explain this to the Tribunal member but that the Tribunal member did not understand and “was not listening at all”. He also claimed to have “implored [the] tribunal member could (sic) investigate with my institute people whether my new Coe is issued or not before the hearing date that (sic) should have solved the situation”. There is no evidence that the Applicant required further time to submit any other evidence to the Tribunal, nor that he made any request of the Tribunal for any adjournment of his proceeding, or for the Tribunal to make any inquiries with his education provider. There is no transcript of what occurred at the Tribunal hearing and the Applicant’s contentions are contrary to the content of the statement of decision and reasons. They lack an evidentiary basis and cannot succeed. Furthermore, the Tribunal was under no duty to make inquiries of the Applicant’s education provider (Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12).

19        A bias claim was also dealt with and dismissed. Since that matter is not pursued on appeal no more need be said about it.

20        There were thus three matters which actuated the Federal Circuit Court’s decision to dismiss the application, and which are relevant to the grounds of this appeal. First, it considered the Tribunal had made an adverse evaluation of the credit of the appellant in the way he sought to change the information on which he asked the Tribunal to make its decision, and by reason of that adverse view (being part of the fact-finding function and therefore a matter for the Tribunal) it was open to the Tribunal not to give the appellant further time as he requested.

21        Second, it considered there was a paucity of evidence before the Court on which it could base any decision in the appellant’s favour by way of what was really a procedural fairness contention.

22        Third, it relied on authorities to the effect the Tribunal was under no duty to make its own inquiries.

COURSE OF PROCEEDINGS IN THIS COURT

23        The appellant sought to appeal from the orders of the Federal Circuit Court, but was out of time to do so. Rule 36.03 of the Federal Court Rules 2011 (Cth) requires a notice of appeal to be filed and served within 21 days after the date when the orders or judgment were pronounced. Accordingly, the notice of appeal in this matter should have been filed by 29 August 2013, but was in fact filed on 4 September 2013. Ultimately, the first respondent consented to the application for an extension of time, and the appeal has been dealt with on its merits.

24        The appellant was unrepresented initially in this Court. However he did secure some legal representation and submissions were filed by solicitors acting on his behalf, and were signed by counsel. With those submissions there was filed an affidavit by the appellant. A court book was prepared which contained, in addition to the material before the Tribunal, three further certificates of enrolment and a transcript of the Tribunal hearing.

25         The appellant’s affidavit went to the matters set out in r 36.57 of the Federal Court Rules, in respect of the matters governing an exercise of discretion by the Full Court pursuant to s 27 of the Federal Court Act 1976 (Cth) to receive evidence which was not before the primary judge. The affidavit was, as counsel for the appellant frankly conceded at the hearing of the appeal, deficient. Counsel explained, and I accept, that his brief to appear at the hearing was confirmed only the evening before the hearing. That does not explain the failure on the part of the appellant’s solicitors to take the necessary steps to ensure sufficient material was before the Court for the purposes of an application under r 36.57.

26        The failure meant counsel sought some indulgences to cure the evidentiary deficiencies on the morning of the hearing. Properly, the Minister did not object to the appellant being given leave to cure those evidentiary deficiencies, although the Minister pressed his objection to the reception by the Court of any further evidence beyond what was before the primary judge.

27        The appellant gave oral evidence as to why he had not sought to obtain the transcript of the Tribunal hearing to place before the primary judge. He gave evidence in English, with the assistance of an interpreter at some points. His English was adequate but he is clearly far from completely fluent. He was cross-examined on his evidence. He stated that he did not know the Tribunal hearing was recorded and that he could obtain a transcript of it. In cross-examination he accepted that the Minister’s submission prior to the Federal Circuit Court hearing had pointed out he had not obtained a transcript but he said he did not know what this meant, a “transcript”.

28        The appellant was cross-examined about the orders made by a registrar of the Court in preparation for the Federal Circuit Court hearing. He asked for those orders to be interpreted for him. By his answers, it was clear he did not understand the contents of the orders, because he maintained in his evidence that he sought to comply with those orders by bringing documents to the Federal Circuit Court hearing. He then described how the Minister’s lawyers had objected to the use of these documents and the judge had not allowed the documents into evidence.

29        The inference I draw from the whole of his affidavit and oral evidence is that the appellant was not aware he was able to secure a written record of the Tribunal hearing. He did not understand the import of the orders made in the Federal Circuit Court and thought he could simply bring documents to the Court at the time of trial. Until his recent legal representation, I infer he was also not aware of the importance and significance of the Tribunal transcript to the matters he wished to argue. When he was made aware of these matters, he took steps to pay for and acquire the transcript and adduce the evidence necessary to provide a foundation for the arguments he sought to make.

30        The established approach to the exercise of the discretion in s 27 of the Federal Court Act was set out in NASB v Minister for Immigration and Multicultural Affairs and Citizenship [2004] FCAFC 24 at [42]:

In order for [an appellate court] to receive further evidence … two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 (‘of such importance as very probably to influence the decision’ and ‘of such weight as, if believed, would probably have an important influence on the result’); Orr v Holmes at 636 (‘high degree of probability that the admission of the new evidence would result in a different verdict’); Florance v Andrew (1985) 58 ALR 377 at 381 (‘such a different complexion on the case that a reversal of the former result ought certainly to ensue’); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) ‘almost certain that, … , an opposite result would have been reached by the primary judge’).

31        In SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133 at [54]-[59], Kenny J discussed the approach to the exercise of the discretion conferred by s 27 of the Federal Court Act, which must be read with the contents of r 36.57 of the Federal Court Rules, and sub-rule (2) in particular. I agree with and adopt, with respect, the observations her Honour makes in those passages about the manner in which the concept of “reasonable diligence” should be applied to an unrepresented litigant from a non-English speaking background who is unaccustomed to the Australian legal system. Further, care should be taken in approaching what should or should not be seen as “reasonable diligence” with the benefit of hindsight: see Dodds-Streeton J in MZYSU v Minister for Immigration and Citizenship [2012] FCA 1073 at [125].

32        In terms of the second condition referred to in NASB [2004] FCAFC 24, I do not understand this to require the Court to be affirmatively satisfied of success on the argument which is founded in the additional evidence sought to be adduced. In other words, the discretion is not confined to circumstances where the Court has already decided that the appellant’s argument should succeed so that the result of the case would be different. Rather this condition requires the Court on appeal to be satisfied that if the appellant’s arguments are correct and the evidence is accepted, then “very probably” the result in the court below would have been different.

33        This aspect of the test for the reception of new evidence should also be understood in the context of authorities which have considered it, and which deal with appeals from trials where there is the prospect of remitter for a new trial. For example, in CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 at [111], McHugh, Gummow and Callinan JJ said, in the context of the discretion conferred on the Full Court of the Family Court by s 93A(2) of the Family Law Act 1975 (Cth):

Nevertheless, it is highly unlikely that parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction.

34        The circumstances are somewhat different on judicial review. The nature of the evidence sought to be admitted will not relate to material facts necessary to support a civil claim. Nevertheless, the evidence sought to be admitted may go to a fact-finding exercise undertaken either by the merits decision-maker or by the court below. In NASB [2004] FCAFC 24, the appellant sought before the Full Court to adduce documents from third party sources in Iran which he contended substantiated his claims under the Refugees Convention, and therefore were capable of impugning the correctness of the decision of the Tribunal that he was not owed protection obligations under the Convention. In that context it is unremarkable that the Full Court, considering whether certiorari should lie against the Refugee Review Tribunal for its decision made without access to the documents the appellant subsequently produced and which he asserted buttressed his claims, concluded that those new documents were irrelevant to whether certiorari should have properly been granted by the primary judge against the Tribunal’s decision.

35        Applications to adduce evidence of the kind made in this proceeding stand on a different footing. That is because a transcript of a tribunal hearing is simply a record of what occurred in the very decision-making process under review. The documentary evidence sought to be adduced by the appellant (ie the “correct” certificate of enrolment and the two cancelled certificates of enrolment) are adduced for the purpose of making good the submission that, if the Tribunal had conducted itself in the way the appellant contends the law required, there was in fact further material the Tribunal could have considered in its review and which might have led it to a different outcome: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 at [85] per Kirby J.

36        In my opinion, there being no prejudice at all identified by the Minister in respect of this application, and taking into account the nature of the evidence sought to be adduced, together with the purpose for which it is sought to be adduced, it is in the interests of the administration of justice for the evidence to be admitted. In the circumstances I am satisfied the appellant with reasonable diligence in his position as an unrepresented litigant, for whom English was not a first language, and lacking familiarity with the Australian legal system, could not have adduced this evidence before the Federal Circuit Court. That is because I am satisfied he did not understand what a transcript was, let alone how to secure one. Nor did he understand its importance to the grounds he was raising, which would take a person with legal training or experience to appreciate. I have already found he did not understand the directions made by the Court in advance of the hearing before the primary judge, and thought he could arrive with documents at the hearing. He did attempt to present the certificate of enrolment at the Federal Circuit Court hearing.

37        The appellant’s grounds on the notice of appeal are centrally concerned with what was said to the Tribunal at the review hearing: in particular whether the appellant, in effect, asked for an adjournment so he could present what he said was the correct certificate of enrolment. The transcript is therefore integral to his argument. Whether his argument is characterised in terms of a refusal of an adjournment which was legally unreasonable, or a denial of procedural fairness, or a failure by the Tribunal to adhere to its obligations under s 360 of the Act, at least at a discretionary level it is important for the appellant to be able to identify what documents he would have put before the Tribunal and how they were capable of affecting the outcome of the review. The three documents he sought to adduce on the appeal were necessary for that purpose. I am satisfied that, if the appellant’s arguments about the Tribunal’s decision being affected by jurisdictional error are correct, they depend heavily on the new evidence, and that, if this evidence had been put before the primary judge, it would probably have affected the result of the judicial review application before her.

38        The Minister’s objection should not be upheld. The appeal should be decided on a basis which includes the new evidence sought to be adduced by the appellant.

39        There was some uncertainty at the hearing of the appeal concerning the accuracy of the transcript in the appeal book. The parties were granted leave to file and rely on an amended and corrected transcript, which was filed after the hearing of the appeal.

GROUNDS OF APPEAL

40        A proposed amended notice of appeal was filed with the affidavit evidence and submissions. Leave was granted at the hearing to the appellant to rely on this notice of appeal, without objection by the Minister.

41        There are four grounds relied upon in the amended notice of appeal:

    the Federal Circuit Court was wrong to see the issues raised by the appellant as going only to questions of fact for the Tribunal to deal with;

    the Court should have found the Tribunal:

    first, failed to comply with the Tribunal’s obligations under s 360 of the Act;

    second, failed to consider the appellant’s request for an adjournment (really, failure to grant an adjournment) and, or alternatively,

    third, failed to make inquiries it needed to make to carry out its statutory tasks on review.

CONSIDERATION

42        The Minister contended that in reality the notice of appeal attacked the Tribunal decision rather than identifying error in the Federal Circuit Court decision. I do not accept this contention. The first ground correctly identifies the principal reason for the orders made by the primary judge. The remainder of the reasoning flows from this conclusion.

43        If there was a jurisdictional error in the Tribunal’s decision of the kind identified by the appellant, the Federal Circuit Court was in error to determine the application on the basis that the Tribunal’s decision turned on matters of fact. If, however, there is no jurisdictional error of the kind alleged affecting the Tribunal’s decision, then the Federal Circuit Court was correct to find the appellant’s complaints were with the Tribunal’s fact finding.

44        Accordingly, the three jurisdictional errors alleged by the appellant to affect the Tribunal’s decision should be considered.

Was there a failure to comply with s 360?

45        This ground is put as an alternative to the failure to grant an adjournment. The appellant’s submissions apprehended it may be necessary because there is, on the evidence, a question whether it can be said the appellant in fact sought an adjournment from the Tribunal at the review hearing. If no adjournment was sought, then the principles of legal unreasonableness set out by the High Court in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18 and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 might not be applicable. For the reasons I set out below, in my opinion the appellant did in substance request an adjournment, and the Tribunal clearly understood that was what he was requesting. The principles in Li 297 ALR 225; [2013] HCA 18 and Singh [2014] FCAFC 1 apply. This is, in my opinion, the better characterisation of what occurred at the review hearing.

46        However, in case I am wrong in that conclusion, I have considered the appellant’s arguments concerning the application of s 360 to the Tribunal’s conduct of the review.

47        Section 360 provides:

360 Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 359C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

48        It is uncontroversial that s 360 is central to Div 5 of Part 5 of the Act, and to the conduct of the review for which Div 5 provides. The purpose of s 360 is to give an applicant a meaningful opportunity to present evidence and argument relating to the issues arising in the review, which in turn requires that the invitation given by the Tribunal pursuant to s 360 must afford an applicant a real chance to present her or his case: see Li 297 ALR 225; [2013] HCA 18 at [60]-[61] per Hayne, Kiefel and Bell JJ; Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 at [36] per Hely J.

49        There is no clear line between the content of the obligation in s 360 and the common law obligation of procedural fairness which inheres in consideration by the Tribunal of whether to grant an adjournment. In Li 297 ALR 225; [2013] HCA 18, French CJ saw the Tribunal’s consideration of an adjournment application as controlled by the common law duties of procedural fairness, this not being one of the “matters” for which Div 5 of Part 5 of the Act provides, for the purposes of the limiting provisions in s 357A of the Act. Thus, his Honour stated (at [20]):

An application for review by the MRT may require the presentation by the applicant of material demonstrating compliance with a criterion to be satisfied at the time of the MRT’s decision. The relevant criterion may involve evidence of a fact in existence. That fact may be, as in this case, the formation by a third party of an opinion or assessment on a matter of fact. It requires a fine distinction to accept that procedural fairness applies to a request for an opportunity to obtain evidence of a fact and to reject its application to a request for an opportunity to obtain a statutory assessment as to the existence of a fact. A reasonable opportunity to present an applicant’s case with respect to a time of decision criterion will extend to the opportunity to obtain evidence of the necessary fact or to obtain the necessary opinion or assessment. The Minister’s submission drew a distinction which might be thought antithetical to the legislative direction and facultative purpose of s 353 and indeed that of s 357A(3).

50        In that sense, there is no clear line between the appellant’s ground of appeal in relation to s 360, and his ground of appeal in relation to the alleged failure to grant an adjournment.

51        Although the Tribunal’s conduct of the review hearing might be seen as impatient and somewhat overbearing in parts, in the present case, whether looked at through the prism of s 360 or through the procedural fairness analysis described by French CJ in Li 297 ALR 225; [2013] HCA 18, the appellant was given a reasonable opportunity to present his case.

52        The evidence which he sought to “give” to the Tribunal for the purposes of cl 572.223(2)(a) and cl 5A405 was that sent with his migration agent’s letter of 13 December 2012. There remains no evidence of how it is said to be the case that the appellant’s migration agent sent the wrong certificates to the Tribunal: for example, there is no evidence from the migration agent about this. There is no evidence whether the migration agent possessed what is now said to be the correct certificate of enrolment, which appears to have been issued on 26 November 2012, well before the migration agent sent the material to the Tribunal on 13 December 2012.

53        Having provided the materials sent with the 13 December letter prior to the review hearing, both the appellant and his migration agent participated in approximately half of the review hearing on the basis that this was the evidence on which the Tribunal should decide the student visa application. As the Minister pointed out in his submissions, the transcript reveals that, at early points in the review hearing, the Tribunal referred to the two certificates of enrolment for two courses — a Certificate IV in Frontline Management and a Diploma of Management — without correction by either the appellant or his agent.

54        When the Tribunal raised with the appellant squarely that the funds for which he had provided evidence were insufficient for the two courses, it was only then that the appellant sought to clarify that he had cancelled a course, and sought only to pursue one course. I accept the Minister’s submission that the revised transcript is, even with hindsight, unclear in terms of whether the appellant was telling the Tribunal he had cancelled both courses and re-enrolled in another one, or had only cancelled the Frontline Management course.

55        For example, the following exchange occurred:

In your case, the COEs that you have provided indicate that you are enrolled in a Certificate IV in Frontline Management and Diploma of Management and that those courses have fees of $7000. There’s a requirement if you stay here till the end of those courses that you have 20 months (MR CHAVA: sir ) living expenses, which is $31,0000.

MR CHAVA: …..sir

MR CONNELLAN: Yes?

MR CHAVA: I cancelled the Diploma… Certificate IV in the Frontline Management and I only took the Diploma of Management so only for 10 months.

MR CONNELLAN: I beg your pardon?

MR CHAVA: I -– before which I was shown the my funds …..I only for Diploma of management sir So I took only the COE.

MR CONNELLAN: That’s not the evidence before me. Yes?

MR CHAVA: So I will provide the my COE sir new COE that was I made for funds sir….. I cancelled the Certificate IV in Frontline Management.

MR CONNELLAN: Why did you do that?

MR CHAVA: Because the Diploma of Management is now still for my enhanced the skills and knowledge….. that’s why - - -

MR CONNELLAN: Mr Chava, the situation is - - -

MR VEDLAKANDU: …..is it cancelled?

MR CHAVA: Yes …..it is cancelled.

MR VEDLAKANDU: …..do you have evidence

MR CHAVA: Yes, I have other evidence

MR CONNELLAN: Mr Chava, the situation is that a matter of a couple of days ago, you provided me with evidence of your intended studies.

…

MR CONNELLAN: What has happened is I have come here today and have just said to you, you have not got adequate health insurance because it doesn’t cover the period of your studies, and you do not have adequate finances. And so you say, well, that being the case, I will cancel one of the courses. I question whether you’re a genuine student, Mr Chava.

56        Without hindsight, and in the course of a review hearing such as this, it was not unreasonable that the Tribunal could have understood the appellant to be saying the Diploma in Management course was still current. That explains why the Tribunal made the remark it did about the health cover relied on by the appellant not covering the requisite period.

57        There are many aspects of the transcript which reveal some skepticism on the Tribunal’s part about whether the appellant was a genuine student. Even if the Tribunal had been satisfied the appellant had provided the requisite evidence, the Tribunal would have needed to also be satisfied, for the purposes of cl 572.223(2)(a)(ii), that the appellant was a genuine applicant for entry and stay as a student.

58        For example, after the passage cited above:

MR CHAVA: Yes, sir. I’m really genuine student.

MR CONNELLAN: I beg your pardon?

MR CHAVA: I’m really genuine student.

MR CONNELLAN: I question whether you’re a genuine student.

MR CHAVA: Yes, sir, I am a genuine student, sir.

…

MR CONNELLAN: When did you decide to cancel one of your courses?

MR CHAVA: At the same time, sir.

MR CONNELLAN: When did you decide to cancel one of your courses?

MR CHAVA: 15 November.

MR CONNELLAN: On 15 November.

MR CHAVA: November, yes, and I took the new COE of Diploma of Management.

MR CONNELLAN: So you decided to cancel - - -

MR CHAVA: 15 November.

MR CONNELLAN: 15 November.

MR CHAVA: Yes …..

MR CONNELLAN: Then if you decided to cancel it on 15 November - - -

MR CHAVA: Yes.

MR CONNELLAN: - - - why were COEs provided here to the tribunal on 14 December?

MR CHAVA: Yes, because I send it to my agent, sir, so that was - I send him those ones and the other one by mistake. He send it previous ones.

MR CONNELLAN: What do you mean those ones and the other ones?

MR CHAVA: Other one is Diploma of Management.

MR CONNELLAN: Yes.

MR CHAVA: And these ones, sir, Certificate IV in Frontline Management and - - -

MR CONNELLAN: Mr Chava, the situation is that - - -

MR CHAVA: Yes.

MR CONNELLAN: - - - what has also been provided with this is an affidavit from your father dated 6 December - - -

MR CHAVA: Yes.

MR CONNELLAN: - - - health insurance policy dated 6 December.

MR CHAVA: Yes.

MR CONNELLAN: It seems to me that you’ve provided all this information to him well after 15 November.

59        The Tribunal was very clear with the appellant about its skepticism. That was a legitimate part of the Tribunal discharging its obligations under s 360 and giving the appellant a reasonable opportunity to deal with the views the Tribunal expressed. Those views were, it seems, buttressed by the course of events during the review hearing over the certificates of enrolment. It cannot be said it was not open to the Tribunal to take the view it did at [49] of its reasons about the appellants’ sudden insistence that the wrong certificates of enrolment had been produced. There is no contravention of s 360, nor of any procedural fairness obligations, in doing so: Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [40], citing Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67] per McHugh J.

Was the Tribunal’s decision not to adjourn legally unreasonable?

60        The principles attending an assessment whether an exercise of power is legally unreasonable have been set out by the High Court in Li 297 ALR 225; [2013] HCA 18 and the Full Court of this Court in Singh [2014] FCAFC 1.

61        In Singh, the Full Court said (at [48]-[50]):

The standard of legal reasonableness will apply across a range of statutory powers, but 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. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.

In the case of discretionary powers vested in either the Refugee Review Tribunal or the Migration Review Tribunal under the Act, the location of those powers in the statutory scheme as aids to the performance of a review function is important. As French CJ observed in Li 297 ALR 225; [2013] HCA 18 at [10], in these tribunals there is no contradictor, the review is not adversarial and therefore a balancing exercise by the tribunal in terms of prejudice to other parties is unlikely to be necessary. As the plurality observed in Li at [80] the position of the tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. It might be said there is a different kind of balancing required as between the statute’s exhortation to the tribunals to discharge their functions in ways which are “fair, just, economical, informal and quick” (see ss 353(1), 420(1)), and “according to substantial justice and the merits of the case” (ss 353(2), 420(2)), and the interests of individual applicants. However, the entire function of a review under Pt 5 or Pt 7 of the Act (and, indeed, any similar statutory administrative merits review process) is to make the correct or preferable decision in respect of an individual applicant or application: Li 297 ALR 225 at [93] per Gageler J; Bushell v Repatriation Commission (1992) 175 CLR 408 at 425. In reality, no tension exists between provisions like ss 353 and 420, which are facultative rather than restrictive (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [49] per Gleeson CJ and McHugh J; Li 297 ALR 225; [2013] HCA 18 at [15] per French CJ, at [52] per Hayne, Kiefel and Bell JJ), and the manner in which these tribunals are required to perform their functions and exercise their powers:

That context makes clear that it [s 353] cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law.

(Li 297 ALR 225; [2013] HCA 18 at [14] per French CJ.)

A further control on the manner in which these tribunals may exercise discretions reposed in them is the interaction between their obligations of procedural fairness in the conduct of a review, and the standard of legal reasonableness. In some circumstances, an exercise of power which is said to be legally unreasonable may overlap with an alleged denial of procedural fairness because the result of the exercise of power may affect the fairness of the decision-making process. That will commonly be the case where the exercise of an adjournment power is under review, because refusing an adjournment may deny a person an opportunity to present her or his case: see for example Deane J’s comments in Sullivan v Department of Transport (1978) 20 ALR 323 at 343.

62        And, referring to the particular context of the Act and the powers of the Tribunal to adjourn its review, the Full Court said (at [53]):

The power in s 363(1) is expressly conferred on the Tribunal for the purposes of the review it is undertaking. It is to be exercised consistently, and not inconsistently, with the purposes of the review, which include the obligation in s 360 to offer a meaningful hearing to a visa applicant. Where the Tribunal considers the exercise of power in s 363(1)(b), the approach cannot be a generalised one: the particular context and circumstances of the review before it are what must inform the exercise of the power.

63        Before it can be said those principles are apposite to apply to what occurred in the Tribunal at the appellant’s review hearing, a factual matter must be resolved. Did the appellant seek an adjournment?

64        The Minister submits that on the basis of the revised transcript it is not clear that he did. That submission should be rejected. The following extracts contain the relevant exchanges between the appellant and the Tribunal:

MR CHAVA: Yes. Yes, sir, based upon the COE, I have to make the - all the funds ….. and based upon the COE and only I can get the health care card and all that stuff, so that’s - so that I made on the - get them all for my management COE, sir.

MR CONNELLAN: Sorry?

MR CHAVA: Based upon the Diploma of Management COE only, I made the all funds

MR CONNELLAN: No, no, no. But it’s not based on the COE for that only. The COEs that I have before me are for a Certificate of Frontline Management and a Diploma of Management. And the Diploma of Management runs until July 2014.

MR CHAVA: Yes, but that was - that was - my agent send you - send you to - send you, sir, that was - that one is ….. and that one is a cancelled one sir, …..the Diploma of management is starting February - 15.2.2013, sir.

MR CONNELLAN: No, that’s the date that the Certificate IV in Frontline Management was due to start, Mr Chava. Mr Chava, the situation is I believe that you have changed your story here at the tribunal today because I have just told you that you do not have adequate finances and you do not have adequate health insurance. The situation is that the evidence that is before me is the evidence - I mean we started this hearing and I said to you, “Is this what’s happening, is this what’s happening?” and you said, “Yes, yes, yes.” And then when I say you don’t have adequate finances or you don’t have adequate health insurance, “Oh no, well, I’ve cancelled one of those COEs.”

MR CHAVA: Sir I will submit my COE sir.

MR CONNELLAN: Mr Chava, the situation is there is no point in you submitting your other COEs. The decision of this tribunal is that on the evidence that is before this tribunal, you do not have adequate health insurance to cover the period of your studies, which the tribunal believe your intended studies were both a Certificate IV and a diploma. And the financial evidence that you have provided is not sufficient to meet the requirements for you to do the studies that you have proposed. On the basis of those things, the decision of this tribunal is that the decision of the department is affirmed, that your visa application is refused. Do you understand me?

(Emphasis added.)

65        It can be seen from those exchanges that the appellant asked for time to put in what he described as the correct certificate(s) of enrolment. More importantly, it is plain from the Tribunal’s response — “Mr Chava, the situation is there is no point in you submitting your other COEs” and then in the very next line announcing its decision, that the Tribunal well understood the appellant was asking for an adjournment to provide more material. However, the Tribunal had firmly made up its mind not only to refuse that, but there and then to give a decision adverse to the appellant.

66        On the basis therefore that the appellant in fact sought an adjournment, and the Tribunal understood this was what he was doing, can it be said the Tribunal’s decision to refuse to adjourn the review was legally unreasonable?

67        The Tribunal’s written reasons do not in terms give any explanation of why it chose to make an oral decision and refuse to allow the appellant any further time to provide another certificate of enrolment. Inferences must be drawn from both the reasons and the transcript. Since there was an oral decision made by the Tribunal which is recorded in the transcript, in my opinion it is appropriate to examine that part of the transcript for the purposes of drawing inferences about why the Tribunal acted as it did. Therefore, in terms of the principles in Li 297 ALR 225; [2013] HCA 18, this is a situation where the reviewing court must examine the outcome of the exercise of power, in the circumstances revealed by the evidence, rather than any express reasons given for the way in which the adjournment power was exercised.

68        In my opinion, it cannot be said the Tribunal’s decision was legally unreasonable. The circumstances reveal matters which not only could be said to provide an intelligible justification for the Tribunal’s refusal to adjourn or continue the review, but which the Tribunal itself articulated as actuating the way it brought the review to a conclusion on the day of hearing.

69        Those matters are as follows. First, the Tribunal — tasked as it is to determine the merits of an application — clearly harboured some skepticism about whether the appellant was a genuine student at all. This seemed to be based in part on how many courses the appellant had been doing over a long period of time, without bringing the courses to a close and finding employment based on the qualifications he had obtained. So much is obvious from the portions of the transcript extracted at [58] above. The question whether the appellant was a genuine student formed part of the Tribunal’s task on review, albeit that the non-satisfaction of the criteria in cl 572.223(2)(a)(i) meant the Tribunal did not need to base its decision on this matter. Nevertheless, there is no doubt this issue could legitimately inform the Tribunal’s approach to the exercise of its powers over the continuation or finalisation of the review.

70        Second, there does appear to have been some conflict between what the appellant said at the review hearing and what he now contends he meant to say about which courses he was enrolled to undertake. The transcript reveals that the appellant did make it tolerably clear at the review hearing he had cancelled the Certificate IV in Frontline Management. The Tribunal decided, in substance, to ignore what the appellant said about the cancellation of that course, because in the Tribunal’s view it made no difference to the shortfall in funds and the issues of the extent of the appellant’s health cover. That is because what the appellant did not make clear, so far as the transcript reveals, is that he had changed his Diploma in Management course from one to be run over 2013/2014, to one to be run over 10 months in 2013 only. Even if one takes a generous reading of the transcript and what it could be found to reveal, the appellant informed the Tribunal he needed time to provide “other COEs” without making it clear that he had cancelled both courses, and enrolled in a new Diploma of Management course to be conducted over a different period of time.

71        Further, not only did the appellant himself not make this clear, neither did his migration agent who was present at the review hearing. It might have been expected that the agent’s professional obligations to the appellant required him to assist the appellant to ensure the Tribunal understood more precisely what the correct position was. That did not occur. The Tribunal received no clarification or assistance from the migration agent.

72        Third, the timing of the appellant’s intervention to inform the Tribunal he had not given the Tribunal the correct certificates of enrolment was such that it was open to the Tribunal to treat the timing as significant, in a way which was adverse to the appellant. Paragraph [49] of its reasons, extracted at [14] above, makes it clear that was the view the Tribunal formed. So much is also clear from the transcript where the Tribunal states:

Mr Chava, the situation is I believe that you have changed your story here at the tribunal today because I have just told you that you do not have adequate finances and you do not have adequate health insurance.

73        Without an overlay of excessive hindsight or document-based logic inappropriate to a busy tribunal conducting a review hearing, it is not possible to characterise the Tribunal’s reliance on the timing of the appellant’s intervention as lacking in rational or plausible justification.

74        Finally, there did appear to be some inconsistencies between what the appellant told the Tribunal about when he decided to cancel the Certificate IV on Frontline Management, and the date annotations on the certificates of enrolment as they appeared before the Tribunal. In response to a question from the Tribunal, the appellant stated he decided to cancel this course on 15 November 2012. The Tribunal pointed out the certificates (and other material) were not given to the Tribunal until 13 December 2012. The appellant responded he sent them to his migration agent by mistake. However, in its reasons (extracted at [14] above) the Tribunal noted that the annotations on the purportedly cancelled and incorrect certificates of enrolment showed they had been “printed” on 16 November 2012 — the day after the appellant said he had cancelled those enrolments. This is some objective basis to support the Tribunal’s inclination not to accept the account the appellant had given.

75        The transcript reveals a fairly firm disposition by the Tribunal against the appellant’s review application from the outset. It is also apparent that disposition had arisen from the Tribunal’s consideration of the materials prior to the start of the review hearing. This was a process open to the Tribunal to adopt, especially given it left the appellant (by its questions) in no doubt about the concerns it had. The transcript also reveals a level of impatience by the Tribunal, and a tendency to cut the appellant off without allowing him to finish (or sometimes even to start) what he wishes to say. Neither of those approaches are desirable and they do not enhance the perception of fairness in the Tribunal’s processes. However, it is no part of this Court’s function to take a less than ideal approach to questioning (as revealed through an imperfect medium of a written transcript) and transform that into conduct which meets the definition of legal unreasonableness.

Was this a case where the Tribunal had a duty to inquire?

76        The use of the term “duty to inquire” directs attention away from the correct inquiry on judicial review, which (relevantly to these kind of arguments) concerns whether the Tribunal’s performance of its review function is affected by jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25].

77        The appellant relied on a sentence in this paragraph of SZIAI as setting out the applicable boundaries for ascertaining jurisdictional error:

It may be that a failure to make an obvious inquiry about 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.

78        It would be wrong to take that sentence out of its context in the plurality judgment. In context, it is no more than an acknowledgment that the terms of Div 5 of Part 5 of the Act and the content of the Tribunal’s obligation to conduct a review conformably with that division will vary according to the circumstances of each case. The plurality acknowledges no more than the possibility of a constructive failure to exercise jurisdiction. As their Honours note, such a failure would depend on the kind of factual issue before the Tribunal, the nature of the inquiries that might be made, the centrality of the factual issue to the Tribunal’s task of arriving at the correct or preferable decision on the material before it and no doubt other circumstances bearing on how the review has been conducted.

79        Those circumstances do not arise in this case. The appellant consciously put forward, through his migration agent, the documents he asked the Tribunal to rely upon. They were not obviously infirm or incorrect. Despite saying he changed his mind and cancelled his enrolment well prior to the Tribunal hearing, neither he nor his migration agent informed the Tribunal of the change until the Tribunal made it clear his application for review was going to fail. Even then, and despite subsequently producing evidence of the “correct” certificates being available to him almost three weeks before the Tribunal hearing, he did not have them with him (and nor did his migration agent) at the review hearing.

80        There is no reason to consider the Tribunal itself in those circumstances should have made any inquiry of its own motion as a necessary part of exercising its jurisdiction to review. There was no vulnerability, incapacity, or infirmity in the appellant or his circumstances which might have made some proactivity on the part of the Tribunal necessary. Especially so when he was represented by a migration agent. It would be inappropriate to adapt obiter statements such as that in SZIAI 259 ALR 429; [2009] HCA 39 to become the means to remedy what at least appear to be failures of professional obligations in migration agents appearing before the Tribunal. In any event, on the evidence there were other explanations open to the Tribunal about why the appellant came to the review hearing continuing to rely on the documentation as submitted on 13 December 2012 by his migration agent. The circumstances of this review hearing are far removed from those contemplated by the plurality’s obiter statement in SZIAI.

CONCLUSION

81        Given my conclusions that the Tribunal’s decision is not affected by jurisdictional error in any of the three ways alleged, there was no error in the Federal Circuit Court’s assessment of the appellant’s grounds as attacking the Tribunal’s fact finding.

The appeal will be dismissed. There is no basis to apply anything but the usual order as to costs.

Associate:

Dated:    4 April 2014