Federal Court of Australia

Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93

ORDERS

THE COURT ORDERS THAT:

1.    The applicants be granted an extension of time and leave to appeal from the orders of Judge Street dated 5 May 2021.

2.    The appeal be allowed.

3.    A writ of certiorari be issued quashing the decision of the second respondent delivered orally on 6 February 2019, and dated 21 March 2019 on the written record.

4.    The matter be remitted to the second respondent, differently constituted, for determination according to law.

5.    The first respondent pay the applicants’ costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The first and second applicants are citizens of Nepal, and wife and husband respectively. They seek an extension of time and leave to appeal from the orders and judgment of the Federal Circuit Court of Australia (FCCA) made on 5 May 2021: Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 935 (Judge Street).

2    The first applicant, Sanju Bhandari, arrived in Australia on 16 October 2013 at the age of 19 as the holder of a Student (Class TU subclass 573) visa which was valid until 11 September 2016. She applied for a Student (Temporary) (Class TU) Student (subclass 500) visa on 8 September 2016 (the visa application). The visa of the second applicant, Anil Chhetri, who is named in the application as an accompanying member of Ms Bhandari’s family unit, is dependent on the grant of Ms Bhandari’s visa.

3    A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs considered the application and was not satisfied that the applicant intended genuinely to stay temporarily in Australia within the requirements of the Migration Act 1958 (Cth) and cl 500.212 of schedule 2 of the Migration Regulations 1994 (Cth). The applicants applied to the Administrative Appeals Tribunal for review of the decision of the delegate and, on 6 February 2019, the Tribunal affirmed the decision of the delegate in an oral decision. The written record of the Tribunal’s decision is dated 21 March 2019.

4    The applicants then applied to the FCCA for orders quashing the decision of the Tribunal. The respondents to that application were (as they are in this court) the Minister and the Tribunal. The primary judge dismissed that application at a show cause hearing conducted pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). Because a show cause decision is interlocutory, leave is required before a party may appeal from such a decision to this Court, and an application for leave must be filed within 14 days from the date of the decision: Federal Court of Australia Act 1976 (Cth) s 24(1A); Federal Court Rules 2011 (Cth) r 35.13.

5    In the present application, the applicants filed their application for leave to appeal some 12 days outside the prescribed time. For this reason they seek leave to appeal and also an extension of time within which to appeal. They rely on an affidavit sworn by Ms Bhandari on 31 May 2021. They press one prospective ground of appeal, which was amended orally at the hearing, without opposition, to take the following form:

The primary judge failed to consider whether the Tribunal should in the circumstances of the case have considered the application of s 363 of the Act.

6    The applicants were represented by Mr J R Young of counsel. The Minister was represented by Mr N Swan of counsel. Counsel presented full argument going to the merits of the appeal on the basis that should leave to appeal and the extension of time be granted, no further hearing would be required.

2.    RELEVANT LEGISLATION

7    Section 29(1) of the Act gives the Minister power to grant a non-citizen a visa to travel to and enter, or to remain in, Australia. There are prescribed classes of visas and regulations may prescribe the criteria for visas of a specified class: ss 31(1) and (3).

8    A non-citizen who wants a visa must apply for a visa of a particular class: s 45(1).

9    After considering a valid application for a visa, the Minister must grant the visa “if satisfied” of the various matters identified in s 65(1)(a) of the Act. One of the matters of which the Minister (or his delegate) must be satisfied is that the criteria prescribed by the Act or Regulations for the visa have been met: s 65(1)(a)(ii). If the Minister is not satisfied of the matters identified in s 65(1)(a), the Minister is to refuse to grant the visa: s 65(1)(b).

10    The criteria for the prescribed classes of visa, including that sought by the applicants, are located in Schedule 2 to the Regulations: reg 2.03(1). The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria. In the present case the primary criteria was applicable to Ms Bhandari. The secondary criteria applied to Mr Chhetri.

11    The following two primary criteria are presently relevant:

500.211

One of the following applies:

(a)    the applicant is enrolled in a course of study;

(b)    if the application is made in Australia–the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;

(c)    if the applicant is a Foreign Affairs student–the applicant has the support of the Foreign Minister for the grant of the visa;

(d)    if the applicant is a Defence student–the applicant has the support of the Defence Minister for the grant of the visa.

500.212

The applicant is a genuine applicant for entry and stay as a student because:

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant’s circumstances; and

(ii) the applicant’s immigration history; and

(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter; and

(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

(c) of any other relevant matter.

12    The decision of the delegate was a Part 5-reviewable decision: s 338.

13    Section 353 provides that the Tribunal, in reviewing a Part 5-reviewable decision, is not bound by technicalities, legal forms or rules of evidence and shall act according to substantial justice and the merits of the case.

14    Section 357A provides that Division 5 of Part 5 of the Act is taken to provide an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 357A(3) provides that in applying Division 5 “the Tribunal must act in a way that is fair and just”.

15    Section 363(1), which is situated in Division 5 of Part 5, of the Act relevantly provides:

363    Powers of the Tribunal etc.

(1)    For the purpose of the review of a decision, the Tribunal may:

…

(b)    adjourn the review from time to time.

3.    BACKGROUND

16    On 8 September 2016 Ms Bhandari made the visa application. Thereafter the Department made requests for further information, to which the applicants responded.

17    On 11 July 2017 the delegate issued a decision refusing to grant the visa. The basis for the refusal was that the delegate was not satisfied that Ms Bhandari met the requirements of cl 500.212 of the Regulations, namely, that she intended genuinely to stay in Australia temporarily.

18    On 31 July 2017 the applicants lodged an application for review in the Tribunal.

19    Thereafter no substantive correspondence appears in the materials until some 18 months later when, on 11 January 2019, the Tribunal sent an invitation to the applicants to attend a hearing scheduled for 6 February 2019. The invitation relevantly provided that the applicants should provide all documents that they intended to rely upon to establish that they met the criteria for the visa. It provided that they should have regard to the reasons given by the delegate for refusal of the visa. In addition, it requested that they provide, at least seven days before the hearing date:

(a)    a copy of Ms Bhandari’s current confirmation of enrolment (COE) or other documents to show that she was currently enrolled in a course of study as defined in cl 500.111 of Schedule 2 to the Regulations;

(b)    documents to show her past studies in Australia;

(c)    a written statement addressing the issue of whether Ms Bhandari was a genuine applicant for entry and stay as a student by referring to Direction No. 69.

20    The applicants responded on 17 January 2019 stating that they would provide the requested information and attaching a completed response to hearing invitation.

21    On 31 January 2019 the applicant sent an email to the Tribunal that attached the following documents:

    the applicants’ passports;

    an undated statement from Ms Bhandari;

    various documents concerning Ms Bhandari’s education history; and

    various medical documents demonstrating that Ms Bhandari had major operative treatment in Nepal in January 2015 and that she needed complete rest for two and a half months as a result.

22    The statement included the following material about Ms Bhandari:

(a)    Soon after she arrived in Australia she commenced studied a Diploma of IT which she completed on 16 January 2015.

(b)    She intended to commence a Bachelor of IT soon thereafter, however, she had to return to Nepal for a period of 52 days to have a major surgery. Included in the documents provided to the Tribunal was relevant medical evidence.

(c)    Upon her return to Australia on 12 March 2015, she enrolled in a university course but could not continue due to her medical condition.

(d)    She then moved to the Sunshine Coast in Queensland to join the family with whom she had previously lived in Australia and decided to re-educate and make a career change from IT to business. She noted that her father ran his own business and that her education would assist him in operating that business.

(e)    She started a Diploma of Business course in October 2015 which she completed in 2016.

(f)    She then began a Bachelor of Business course at the Holmes Institute, however, could not complete her studies due to having to take care of her husband who was, at that time, suffering from illness.

(g)    Following the cancellation of her COE at the Holmes Institute, she enrolled in a hospitality management course in April 2017. However, once she realised that this was a completely different course, she changed to study an advanced diploma of business at the American College which she completed in 2018.

(h)    She expressed her interest in studying a Bachelor of Business majoring in Accounting at the University of the Sunshine Coast and gave the reasons why she thought this course was suited to her and her future employment prospects. She also noted that her father was a person of means and that, as a consequence, she would not experience any financial difficulties during her studies.

23    On 5 February 2019, the day before the hearing, the applicant wrote an email to the Tribunal requesting that the hearing be adjourned because the second applicant had suffered an injury and would be unable to attend. The email was accompanied by supporting medical records.

24    On 5 February 2019, the Registry of the Tribunal wrote to the applicants (5 February letter) indicating that the presiding member of the Tribunal had declined the request for an adjournment on the basis that the second applicant was a secondary applicant in the review application and not required to attend the hearing. The 5 February letter also provided as follows under a heading “what you should do within 7 days of receipt of this letter”:

    a request that the applicants complete and (again) return a “response to hearing invitation”;

    the following request for information:

Additionally, please provide this information so that a decision can be made as quickly as possible:

1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.

We will assess whether you intend genuinely to stay in Australia temporarily.

(emphasis added)

25    The letter went on to conclude, in contrast to the heading set out above:

We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.

However, because this letter was sent the day before the hearing, it was not possible to comply with that request.

26    The following day the applicants replied indicating that they would attend the hearing.

27    At the hearing the applicants provided the following documents to the Tribunal:

(a)    a letter of Unconditional Offer addressed to Ms Bhandari confirming that she had been accepted to study at the University together with supporting materials sent by the University, to which I refer below;

(b)    medical records from Mooloolaba Family Medicine and Sunshine Coast University Hospital confirming that Mr Chhetri had presented to the hospital on 27 January 2019 and required stitches to his finger and that he had sustained a minor head injury. Dr Amanda Wilson provided a medical certificate to certify that Mr Chhetri was receiving medical treatment and that for the period from 5 February 2019 to 19 February 2019 would be unfit to attend the “immigration interview”.

28    The letter from the University is dated 5 February 2019 and refers to the offer from the University as an “Unconditional Offer”. It congratulates Ms Bhandari and says that the offer amounts to a written agreement between herself and the University. The Unconditional Offer specifies that Ms Bhandari has been accepted to study a Bachelor of Business course over three years commencing on 25 February 2019. The tuition fees are said to amount to a total of $69,600. Acceptance by Ms Bhandari was to be communicated electronically and with payment of a first semester tuition fee of $11,600.

4.    THE DECISION OF THE TRIBUNAL

29    The hearing was conducted on 6 February 2019. The applicants attended in person without the assistance of any representation.

30    The Tribunal gave oral reasons affirming the decision of the delegate on the same day and subsequently gave written reasons on 21 March 2019.

31    The Tribunal’s reasons are brief and relevantly provide as follows:

5.    The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that you were a genuine student, who intends genuinely to stay in Australia temporarily.

6.    On 11 January 2019 the Tribunal sent you a letter inviting you to attend a hearing at the Tribunal on 6 February 2019 to give evidence and present arguments relating to the issues in your case. On 5 February 2019 the Tribunal received a request that the hearing be postponed on the basis that your husband and secondary applicant, Mr Anil Chhetri, was unwell. I considered your request, including medical documentation relating to Mr Chhetri, but declined the request to postpone the hearing on the basis that Mr Chhetri is the secondary applicant in the case, and as such is not required to attend the hearing. I advised you the hearing would proceed as set down, and that you should attend the hearing. You were also advised that you should provide to the Tribunal evidence, including your current certificate of enrolment.

7.    You appeared before the Tribunal today to give evidence and present arguments. While the issue before the delegate was whether you are genuine temporary entrant, the issue before the Tribunal now is whether, at the time of decision, you meet the enrolment requirement for a student visa.

8.    The criteria for a subclass 500 student visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa, need only satisfy the secondary criteria. The issue in the present case, in your case, is whether you are enrolled in a course of study as required for the grant of the student visa.

9.    Clause 500.211 relevantly requires that at the time of this decision you are enrolled in a course of study (Cl.500.211(a)). You do not claim to meet any of the alternative criteria in cl.500.211. A course of study is relevantly defined in cl.500.111 of the Regulations as a full-time registered course. Registered course is defined in r.1.03 of the Regulations as a course of educational training provided by an institution, body or person that is registered under the Education Services for Overseas Students Act 2000 to provide the course to overseas students.

10.    On 11 January 2019 a written invitation to attend today’s hearing was sent to you. In that invitation you were requested to provide evidence of enrolment in a full-time registered course to the Tribunal at least seven days before today’s hearing. Such evidence has not been provided.

11.    At the hearing today you were again requested to provide this evidence to the Tribunal, such as a copy of your current COE. You have not done so. Rather, you have provided an unconditional letter of offer, which is dated 5 February 2019, the day before this hearing.

12.    In your sworn evidence before the Tribunal you confirmed that you were last enrolled in an Advanced Diploma of Business, which you completed on 9 November 2018. You further confirmed in your sworn evidence that you are not enrolled in any course of study in Australia, but you have an offer of enrolment.

13.    Accordingly, there is no evidence before me that you are enrolled in any course of study. Therefore the Tribunal is not satisfied that at the time of this decision that you are enrolled in a course of study, and accordingly cl.500.11 is not met. Given the above findings, the Tribunal finds that the criteria for the grant of a subclass 500 student visa are not met.

As confirmed in the hearing, you do not claim to meet the criteria for a subclass 590 Student Guardian visas. For these reasons I have concluded that the decision under review should be affirmed. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (class TU) visa. It follows that the Tribunal also affirms the delegate’s decision in the case of the second named applicant.

DECISION

14.    The Tribunal affirms the decisions under review.

(emphasis added)

32    On 19 February 2019 the applicant sent an email to the Tribunal in which she said:

My name is Sanju Bhandari and my husband’s name is Anil chhetri. We have had a hearing of our student visa refusal on 6th of February 2019 and the oral decision was made on the same day at 1:20pm. My case number is 1716702. In our communication, Member Meredith Jackson asked me the reasons for not getting the COE until the time of hearing day and as I explained to her that, after I finished advanced diploma of business from American college I presented myself to the University of Sunshine Coast (USC) and followed up with an emails as well to proceed my COE as early as possible however, because of long holidays and application of credit transfer they couldn’t provide me the COE on time.

After the hearing, I contacted University of Sunshine coast again to provide me the full offer letter until my credit transfer gets finalised. They are still assessing my credits so until that time, they have provided me the full offer letter and COE for my Bachelor of Business which I have attached with this email.

33    The email attached a COE from the University dated 13 February 2019 confirming that Ms Bhandari had enrolled in the Bachelor of Business course.

5.    THE DECISION OF THE FCCA

34    Only ground one before the primary judge is of present relevance. It involved a contention that the Tribunal had unreasonably refused to exercise its discretion pursuant to s 363(1) of the Act to allow the applicant additional time to “submit crucial information”. As summarised by the primary judge, the particulars contended that: (a) the applicant’s request for additional time due to exceptional circumstances was declined during the hearing; and (b) “further particulars will be provided upon receiving the transcripts of the Tribunal hearing”.

35    The primary judge noted, by adopting the Minister’s submissions, that no transcript of the hearing was provided. Accordingly, the primary judge concluded that there was no evidence before the court to establish that the applicants had requested an adjournment for further time to provide a COE. Furthermore, the primary judge adopted the Minister’s submission that the applicants had been on notice since 11 January 2019 that she was required to provide her current COE or documents to show that she was enrolled in a course of study, but had failed to do so. Nor, in the primary judge’s view, was there an obligation upon the Tribunal to afford every opportunity to the applicant for review to present its best possible case and to improve upon the evidence, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [81].

36    The primary judge’s gave an ex tempore decision as follows:

[4]    At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The applicant explained that she had had difficulties with her university in obtaining a copy of the course of enrolment and continued that she would provide the course of enrolment to the Tribunal after it had delivered its oral decision. The critical date for the applicant to have relied on her course of enrolment was prior to the oral decision, which the applicant did not do.

[5]    None of the grounds identified in the applicant’s application identified an arguable case of relevant error for the reasons identified in the first respondent’s submissions set out above which the Court adopts.

 [6]    Nothing said by the applicant identified any arguable case of relevant error.

[7]    The Court is satisfied that the application has not raised an arguable case for the relief claimed.

6.    THE APPLICATION FOR EXTENSION OF TIME, LEAVE TO APPEAL AND APPEAL

6.1    Application for extension of time and leave to appeal

37    There is no dispute as to the principles relevant to the grant of an extension of time or as to whether or not leave to appeal should be permitted. The relevant considerations for the former involve consideration of the length of the delay, the reasons for the delay, any prejudice to the respondent and the merit of the proposed appeal: see BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 at [17] (Burley J). The relevant considerations for the latter include whether there is sufficient doubt as to the correctness of the judgment below to warrant reconsideration and that, if the judgment below is assumed to be wrong, substantial injustice would flow if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 22 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ).

38    The affidavit of Ms Bhandari indicates that on or about 5 May 2021 she received an email from the associate to the primary judge enclosing a copy of the orders made during the show cause hearing. At the time she believed that the time to appeal was either 28 or 35 days. She also believed that the court would publish its decision before the time to appeal expired. She was not at the time legally represented. By 20 May 2021 she had not received the decision of the primary judge and consulted a solicitor, who informed her that she was required to seek leave within 14 days of the decision. It took her one week to raise the necessary funds to be able to lodge the application with this court.

39    I accept the explanation for the delay provided by Ms Bhandari. The length of the delay is relatively minor and plays no significant role in the present case. Nor is prejudice to the Minister of particular significance. Rather, both parties argued the case on the basis that the merits of the proposed ground of appeal would be determinative of the applications for leave and also, if leave were granted, the appeal itself.

6.2    The submissions on appeal

40    In their proposed ground of appeal, the applicants contend that the primary judge failed to consider whether the Tribunal should have, in the circumstances of the case, considered the application of s 363 of the Act.

41    The applicants submit that in the circumstances of the case the Tribunal was unreasonable in failing to grant them an accommodation of additional time within which to provide a COE, having regard in particular to the Unconditional Offer from the University that was provided at the hearing. They submit that although there is no evidence that it was explicitly requested, having regard to the fact that the applicants were self-represented, the Tribunal ought to have allowed them a short period of time within which to provide a COE from the University, especially having regard to the fact that the issue before the Tribunal as identified in [7] of its reasons was whether or not Ms Bhandari met the enrolment requirement within cl 500.211. The applicants submit that in the circumstances that existed before the Tribunal on the day of the hearing it was clear that the applicant was implicitly seeking an additional short period of time within which to provide the relevant document to the Tribunal. They submit that the basis of the Tribunal’s decision is set out at [13] of its reasons, namely, that as on the day of the hearing there was no evidence that Ms Bhandari was enrolled in any course of study. They submit, however, that it would have been quite obvious to any reasonable Tribunal that the applicants were really seeking a brief period time to be allowed to provide a COE. They submit that the primary judge erred insofar as he failed to find the decision of the Tribunal to be unreasonable.

42    The applicants place emphasis on the decisions of Li; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ) and Kaur v Minister for Immigration and Border Protection [2014] FCA 915; 236 FCR 393 (Mortimer J).

43    The Minister submits that there was no obligation on the Tribunal to grant an adjournment in the absence of a request from the applicants. He submits that the test for unreasonableness is stringent and will only arise in rare cases. In the present case, the Minister submits that the applicants were aware in advance that a current COE was required, and the Tribunal was not under any obligation to afford every opportunity to the applicants to present their best possible case or improve upon the evidence, citing Li at [81]. He submits that the primary judge did not err in so concluding.

44    The Minister contends that the Tribunal had emphasised to the applicants the need to provide the COE before the hearing. The Minister also makes a number of factual submissions to support the decision of the Tribunal. Notably, he submits that: (1) the applicant had previously not completed half of the courses in which she had enrolled in Australia; (2) in her correspondence with the Tribunal, the applicant had not indicated that she was having any issues obtaining the relevant documents; (3) the Bachelor of Business course involved very significant fees when compared with the previous courses in which the applicant had enrolled, and that there was no indication the applicant could afford the course; (4) prior to the hearing date, the applicant had not given any indication as to which course she intended to enrol in, or the reason why she wished to enrol in that course; (5) the day before the hearing the applicant had made a formal adjournment application on another basis, but had not indicated that there was any issue with obtaining relevant documentation from the University; (6) the letter of offer from the University of the Sunshine Coast stated that the applicant’s request for credit was still being processed and that the result of this assessment could readily affect whether the applicant wished to ultimately take up the course; and (7) the letter of offer was dated the day before the hearing and was a last minute thing.

6.3    Relevant principles

45    The question of whether or not a statutory decision maker has exercised its power reasonably is fact sensitive and will depend on the whole of the circumstances prevailing at the time of the decision: Singh at [48] (Allsop CJ, Robertson and Mortimer JJ).

46    It is now clear that jurisdictional error may lie in circumstances where the discretion of the Tribunal in failing to allow an adjournment has miscarried: Li at [47] (Hayne, Kiefel and Bell JJ). Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is that it will be exercised reasonably: Li at [63]. The standard of reasonableness is to be ascertained having regard to the scope and the purpose of the statute conferring the discretionary power: Li at [67]; see also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355.

47    In BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171; 272 FCR 15 the Full Court said at [41] (Middleton, Bromberg and Snaden JJ):

…There are no fixed categories of circumstances by reference to which a failure to exercise, or consider exercising, the discretion might be impugned as legally unreasonable: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [42] (Thawley J). Rather, an assessment of whether, in any given case, the exercise or non-exercise of the discretion is attended by legal unreasonableness must, of necessity, be case-specific: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [42] (Allsop CJ, Robertson and Mortimer JJ). A decision will not be impugned as legally unreasonable simply because it is one about which different minds might form different views: Plaintiff S111/2017 v Minister for Immigration and Border Protection (2018) 263 FCR 310 at [66] (Perry J, with whom McKerracher and Charlesworth JJ agreed).

48    Unreasonableness is not, however, a basis for the court to set aside a decision with which it simply disagrees. As French CJ said in Li at [30]:

The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence." As Professor Galligan wrote:

"The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed."

(citations omitted)

49    In that same case, the majority (Hayne, Kiefel and Bell JJ) noted about the application of the legal standard of unreasonableness that:

[75]    In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”. House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.

[76]    As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

(citations omitted)

50    Ordinarily, it is necessary to prove the element of materiality in order to establish that a breach of an express or implied condition of a conferral of statutory decision-making authority resulted in jurisdictional error: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [1] (Kiefel CJ, Gageler, Keane and Gleeson JJ); see also Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123. A breach of a condition of a decision-making power will be material if there is a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred: MZAPC at [2] and [39]; see also Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421. The party who bears the onus of proving jurisdictional error bears the onus of proving that the breach was material: MZAPC at [2] and [39].

51    In relation to the question of materiality in the context of legal unreasonableness, see BDJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1074 at [44]-[45] (Thawley J).

52    Whether it is legally unreasonable for a decision maker to not exercise a discretion is to be considered in the context of the relevant statutory scheme. That is conveniently addressed by Mortimer J in Kaur at [80]:

The Tribunal’s statutory task, as revealed by a consideration of the Act as a whole and Parts 5 and 6 in particular, is to arrive at the correct or preferable decision in the case before it according to the material before it: Li 249 CLR 332; [2013] HCA 18 at [10] per French CJ, referring to Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J. The fact that it is a tribunal dealing with particular subject matter does not alter the nature of its task, which remains the same as those tribunals on which fundamental aspects of its scheme was modelled, such as the Administrative Appeals Tribunal. The range of powers, discretions and obligations reposed in the Tribunal by Div 5 of Part 5 of the Act, and the way in which the statute conditions them, might on a first reading suggest that the Tribunal has a limited amount of decisional freedom as to how it conducts its review once it has embarked upon it. That would be an incorrect impression. Division 5 is an exhaustive statement of the rules of natural justice only insofar as the “matters” with which it deals: see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [37]-[39] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Li 249 CLR 332; [2013] HCA 18 at [18] per French CJ. Outside those matters, common law procedural fairness principles apply. Those principles, read with facultative provisions such as ss 353 and 357A(3) and general powers in (for example) s 363, combine to confer on the Tribunal the necessary degrees of flexibility to ensure it can fully perform its statutory task. For example, its power of adjournment (s 363(1)(b)), the power to take evidence by telephone (s 366), the power to require the Secretary to make further investigations (s 363(1)(d)) and the power to seek information (s 359) are all illustrations of the flexibility given by the statutory scheme to the Tribunal to enable it to perform its task.

53    Of particular relevance in the present case is the relationship between the power to adjourn in s 363(1)(b) and the power in s 360(1). In Li the majority observed that the purpose of s 360(1) is to provide an applicant for review the opportunity to present evidence and arguments “relating to the issues arising in relation to the decision under review”: at [60], [83].

6.4    Consideration

54    The following facts are relevant to the consideration of the present application.

55    First, the applicants were self-represented before the Tribunal.

56    Secondly, in its letter providing its notice of the hearing on 11 January 2019 the Tribunal requested that within seven days the applicants supply a current COE. However, some weeks later, on the day before the hearing, in its 5 February 2019 letter, the Tribunal ambiguously referred to the need to provide certain requested documents “within 7 days”, which would in effect require the documents to be supplied several days after the hearing. The request provided in paragraph 2:

Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

57    The reference to the alternative incorrectly suggested that an offer of enrolment would be sufficient. The letter concludes with a request that the documents sought be provided “at least 7 days before the hearing date”, which was inconsistent with the request noted earlier on the same page. The Tribunal noted at [6] of its reasons that this letter advised that Ms Bhandari should provide evidence to the Tribunal, including her current COE, but did not make any mention of the fact that the letter also suggested that documents showing an offer of enrolment would be sufficient.

58    Thirdly, the visa application had been on foot for several years, since 2016. The notice of Tribunal hearing was supplied to the applicants some 18 months after the applicants had lodged their application for review with the Tribunal, and listed for hearing within a few weeks thereafter. There was plainly no time sensitive aspect to the Tribunal’s review or, as Mortimer J noted in Kaur at [138], no objective basis for any urgency in making a decision in relation to the visa.

59    Fourthly, the delegate had rejected the application on the basis that the genuine temporary visa requirement in cl 500.212 was not met. Leaving aside the ambiguity to which I have referred, the Tribunal’s approach in its letter of 11 January 2019 for the first time signalled that it intended to rely on the provision of a COE. This was no doubt because of the change in the applicants’ circumstances in the 18 months after the delegate’s decision. Nevertheless, for litigants in person, it represented a change in approach.

60    Fifthly, the applicants had notified the Tribunal at the hearing of the personal difficulties that they suffered arising from injuries suffered by Mr Chhetri which meant that on the day of the hearing his wife, Ms Bhandari, was no doubt under some disadvantage.

61    Sixthly, the applicants had provided the Tribunal with the Unconditional Offer at the hearing. The letter was open for acceptance at any time thereafter up until 20 February 2019, a short period of time.

62    In its reasons the Tribunal noted that “[w]hile the issue before the delegate was whether you are genuine temporary entrant [sic], the issue before the Tribunal now is whether, at the time of the decision, you meet the enrolment requirement for a student visa”: at [7]. The operative reasoning is then set out in [10]-[13]. The Tribunal referred in [10] to the invitation sent on 11 January 2019 and the request to provide evidence of enrolment. It did not make any reference to the 5 February 2019 letter or to the ambiguities present in it to which I have referred. In particular, it did not make any reference to the fact that, prior to the hearing, the applicants had been asked to provide “an offer of enrolment in a registered course” in the alternative to the provision of documents to “show you are currently enrolled in a course”.

63    Although the Tribunal correctly noted in [11] that the applicants had not provided the COE, it makes no reference to Ms Bhandari’s statement or to the fact that the Unconditional Letter met at least the alternative aspect of the requirement requested by the Tribunal in its 5 February 2019 letter, namely, that an offer of enrolment in a registered course be provided in the alternative to documents evidencing a current enrolment. Nor did it advert to the fact at least one aspect of that letter requested that the evidence be provided “within 7 days”, which was several days after the hearing.

64    In [11] the Tribunal refers to the Unconditional Letter without referring to its terms. Those terms included a requirement that acceptance of the offer be communicated by 20 February 2019, a date two weeks after the date of the hearing.

65    Furthermore, the Tribunal made no reference to Ms Bhandari’s statement, where she explained that her father had the means to meet the fee obligations imposed, and that she intended to enrol in the Bachelor of Business course. The Minister’s submissions going to factual matters, summarised at [44] above, also appear to have failed to take into account the content of the statement. Indeed the statement supplies answers to many of the criticisms made.

66    The sole basis upon which the Tribunal determined that it should affirm the decision of the delegate was that it was not satisfied at the date of the hearing that Ms Bhandari was enrolled in a course of study in accordance with cl 500.211. It would appear from the reasons provided that in reaching that conclusion the Tribunal did not give proper consideration to the contents of the Unconditional Offer or to the statement provided by Ms Bhandari. Had it done so, in all of the circumstances that I have summarised in some detail above, any Tribunal acting reasonably according to substantial justice and the merits of the applicants’ case would have appreciated that the self-represented applicants sought a brief period of time in which to accept the Unconditional Offer and provide a COE to the Tribunal. The Tribunal must have appreciated that the applicants did not consider that they had presented their case (see Li at [79]) in circumstances where there was no pressing need for it to conclude the review on that day: Li at [80]. In my respectful view, having regard to the scope and purpose of the power to adjourn in s 363(1)(b) as that is connected to the purpose of s 360(1) of the Act, the Tribunal failed to adjourn and proceeded to deliver its ex tempore reasons in circumstances where it was plainly unjust to do so. The Tribunal acted in a manner that was legally unreasonable and therefore exceeded its jurisdiction.

67    The primary judge erred by failing to so find.

7.    DISPOSITION

68    For the reasons set out above, I allow the extension of time for leave to appeal and grant leave to the applicants to appeal from the decision of the primary judge. I find that ground 1 of the appeal is established. The consequence is that appeal must be allowed, the decision of the Tribunal quashed and the matter remitted to a differently constituted Tribunal for determination in accordance with law. The Minister must pay the applicants’ costs.

Associate:

Dated:    16 February 2022