Federal Court of Australia

Truong v Minister for Immigration and Multicultural Affairs [2025] FCA 323

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    The first appellant Ms Thi Bich Duyen Troung is a citizen of Vietnam. On 13 March 2017 she applied for a Student (Temporary) (class TU) Student (subclass 500) visa under the Migration Act 1958 (Cth). The second appellant Mr Thanh Nhan Nguyen was included as a family member on the visa application. A delegate of the now-named Minister for Immigration and Multicultural Affairs refused to grant the visa and that decision was affirmed on review by the now-named Administrative Review Tribunal. A judge of the Federal Circuit and Family Court of Australia (Div 2) dismissed the appellants’ application for judicial review of the Tribunal’s decision: Truong v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 304. This is an appeal from that judgment.

2    For the appellants to be successful before the Tribunal it was necessary that the first appellant fulfil the criterion in cl 500.211(a) of Sch 2 to the Migration Regulations 1994 (Cth) at the time of the Tribunal’s decision. It required that the first appellant be “enrolled in a course of study” (enrolment criterion). There is no dispute that at the time of the delegate’s decision, the first appellant fulfilled the enrolment criterion by virtue of her enrolment in a Certificate III TAFE course in barbering. The delegate refused to grant the visa for reasons unconnected with the enrolment criterion.

3    Following a hearing of the appellants’ application for review, the Tribunal concluded that the decision of the delegate to refuse to grant the visa should be affirmed. In oral reasons for that decision, the Tribunal member said that he was not satisfied that the first appellant was enrolled in a course of study. Written reasons to the same effect were provided shortly afterward.

4    In the proceeding before the primary judge the onus was on the appellants to show that the Tribunal’s decision was affected by jurisdictional error:  Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Craig v South Australia (1995) 184 CLR 163. By their grounds of review, the appellants contended (among other things) that the Tribunal committed such an error by failing to comply with the obligation imposed under s 359AA of the Act. It then provided (relevantly):

359AA Information and invitation given orally by Tribunal while applicant appearing

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 360:

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

(b)    if the Tribunal does so—the Tribunal must:

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

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

5    The grounds of appeal are to the effect that the primary judge erred in concluding that the Tribunal had complied with that obligation in connection with information contained in a database referred to as a “PRISMS record” relating to the first appellant’s enrolment status in a TAFE course. The Tribunal relied upon that information, among other things, as the basis for concluding that the enrolment criterion was not fulfilled.

6    The appellants contended that Tribunal did not give them adequate details of the information it was relying on, did not provide them with the record containing the information, did not “meaningfully advise” them that they could seek further time to comment on that information, and did not adjourn the review in circumstances that mandated an adjournment.

Tribunal’s decision

7    The Tribunal hearing took place more than two years after the delegate’s decision. It is common ground that at the time of the Tribunal hearing, the first appellant was the holder of a bridging visa that permitted her to be enrolled in a course of study and to in fact study in Australia.

8    The appellants appeared before the Tribunal together with a representative. At the commencement of the hearing, the Tribunal member informed the appellants that it was necessary for him to be satisfied that the first appellant was enrolled in a relevant course at the time of the Tribunal’s decision. The Tribunal member continued:

Now, there’s some information before me that would be a reason, or part of the reason, for affirming the delegate’s decision. I’ll explain that information to you, so that you can understand it. And I’ll explain why it’s relevant to my decision. I’ll also ask you to comment on the information. After I’ve explained it to you, please let me know if you don’t understand the information, or you don’t understand why it’s relevant. And if you want more time to comment on the information, please tell me and I’ll consider then whether to give you more time to comment.

9    The Tribunal told the appellants that the material before him showed that the first appellant was not currently enrolled in a Certificate III barbering course, that the course had been due to commence on 24 July 2017, and that the course had been cancelled. The Tribunal then questioned the first appellant as follows:

MEMBER:    You didn’t start that course did you?

MS TRUONG:    No, I didn’t.

MEMBER:    That was cancelled just after the delegate’s decision - about two days after the delegate’s decision, was it?

MS TRUONG:    I did try to study, but because the (indistinct) they said they couldn’t give me the theory to study. So, because my appeal to - I applied for the appeal. So that’s why they said if I wouldn’t appeal so that you’d need the theory to study again. I did to pay for all the fee for the first term, and I just tried to a couple of weeks and they said they cancelled my (indistinct) for the appeal.

MEMBER:    Did you enrol in any other relevant courses?

MS TRUONG:    No, I haven’t.

10    It appears that the word “theory” in that passage should instead read “visa”, but the parties did not address that in their submissions and I will say nothing further about it.

11    Following those responses the Tribunal said that the information in the PRISMS record was “essentially the same as what you’ve just told me”. The Tribunal member went on to say that, subject to the appellants’ comments, the information might lead him to find that the first appellant did not satisfy “clause 500.212” [sic] and that he would then be obliged to affirm the delegate’s decision. The hearing continued:

MEMBER:        …  Do you understand that?

MS TRUONG:        M’mm.

MEMBER:        Now it seems to me that what’s in this information is the same as the evidence that you have given me today. But, out of fairness, I’ll invite you to consider whether you want to make some sort of comment on the information that I’ve told you about. And I’m prepared to break for five minutes for you to discuss it with your representative, if you think going to help. I should tell you that it now seems to me that this will be the issue that might determine the outcome of this hearing, rather than the other questions that the delegate was concerned about. All right, so I just want to make it clear. If I rely on this information - and I might rely on your evidence instead, because they’re effectively the same thing - but if I rely on this information, it would be the reason, or part of a reason, to affirm the delegate’s decision. So, do you seek a short adjournment?

MS TRUONG:    Yes.

MEMBER:        Yes, very well. I’ll give you until quarter past to have a discussion with your representative.

MS TRUONG:        Thank you.

(emphasis added)

12    Following a short adjournment, the appellants, through their representative provided the Tribunal with a number of emails relating to the first appellant’s enrolment status, including an email from TAFE to the first appellant dated 28 June 2017 (shortly after the delegate’s decision). It was as follows:

Dear Mrs Thi Bich Duyen TRUONG,

We have recently been notified by Australian Immigration that your Student Visa application has been refused on the 27th June 2017. As a result we wonder if you wish to apply for a deferred offer or if you wish to withdraw from the course. If you wish to defer we will need to receive a copy of the Visa Refusal Letter from DIBP so that we can determine of [sic] a deferral is possible. Please note that the current COEs have been cancelled.

If you wish to withdraw please advise so that we can forward the required paperwork for this to be processed.

Your prompt response is appreciated. We look forward to hearing from you.

Kind Regards

13    Later, on 28 June 2017 there was a further email exchange in which the first appellant informed TAFE that it was her intention to appeal the delegate’s decision. That material became subject to further submissions before the Tribunal, advanced by the appellants’ representative. The transcript of those submissions is difficult to follow as some of the submissions are described as “indistinct”. However, the broad effect of the submissions was that the certificate of enrolment had been cancelled by TAFE because the delegate had refused the first appellant’s visa application, that TAFE might have misunderstood something about the effect of the delegate’s decision, and that the record might change if the Tribunal “remits it”. The representative said that the enrolment “was cancelled based on the fact that [the first appellant] had her visa refused”. The representative referred to a deferral application having been sent to TAFE in order for the course to be deferred. The representative then referred to the email in which the first appellant had informed TAFE of her intention to appeal the delegate’s decision. The Tribunal member asked whether they were the emails the appellants wish to draw attention to, and the first appellant responded “yes”. The hearing continued:

MEMBER:        Seeking a deferral, but we understand that there was never a response from TAFE to that request. All right. I’m going to take a few minutes to consider the situation. My provisional feeling is that my hands are tied - that you require a COE for me to be able to grant you a visa and that it’s very brutally simple. I do understand that in some circumstances the conduct of the educational institution can have an impact on my decision, and I’m not sure whether this situation might attract the benefit of that. As I say, I’m not sure. So, I’m going to take probably 15 minutes to consider that and I’ll either deliver a decision or proceed to consider the genuine temporary entrant criteria at that point. All right, so we might - - -

REPRESENTATIVE:    Sorry Member - - -

MEMBER:        Yes.

REPRESENTATIVE:    If I could add that we would argue that it was a conditional offer, and therefore it is and (indistinct) accepted it, therefore a COE is available.

MEMBER:    All right, well I hear what you’re saying but I don’t think there’s sufficient evidence before me to support that. Okay, I will ask you to vacate the hearing so I can turn off the audio equipment. Madam Interpreter, I’m not sure how much longer - we’ll either be about another, sort of, 20 minutes or we’ll be an hour and a half. I’m just not sure.

14    The Tribunal delivered oral reasons at the conclusion of the hearing. They included the following finding (later recorded in the written reasons at [11]):

There was no response from the TAFE to that request for a deferral and the Tribunal is not satisfied that a deferral was granted. The applicant, through her representative, has submitted that a conditional offer of a deferral was made and that it was accepted and that therefore a Confirmation of Enrolment is available. The Tribunal is not satisfied that the applicant is enrolled as required to satisfy criterion 500.211. Aside from the documents referred above and the records that were put to the applicant under section 359AA, the tribunal has not relied on any other documents in reaching this decision.

Reasons of the primary judge

15    I am not satisfied that the primary judge erred in rejecting the contention that the Tribunal failed to comply with the obligation under s 359AA of the Act in the manner contended for at first instance. I too would reject the contention for substantially the same reasons, set out in the pages that follow. In the circumstances it is not necessary to separately summarise the reasoning of the primary judge.

Submissions and consideration

16    The appellants submitted that the obligation under s 359AA involves an obligation to give a meaningful opportunity to both comment upon and respond to the relevant information. Here, the relevant information was to the effect that the PRISMS record showed that the first appellant was not in fact enrolled in a course of study at the time of the Tribunal hearing.

17    By their written submissions the appellants asserted that the Tribunal ought to have provided them with a copy of the PRISMS record. That submissions should not be accepted. It is plain from the transcript of the Tribunal hearing that the appellants through their representative fairly understood that the Tribunal had before it a document containing information to the effect that the first appellant was not presently enrolled in any course. The material before the primary judge (and now before this Court) did not demonstrate that the appellants could not properly understand the content and significance of the information unless provided with a printout of the document in which that information was contained. The Court’s attention was not drawn to the document itself.

18    It is also clear that the Tribunal explained to the appellants that the information was critical to the review because the circumstance of the first appellant not being enrolled in a course of study would mean that the Tribunal would be obliged to affirm the delegate’s decision to refuse to grant the visa. The circumstance that the Tribunal mentioned the wrong clause is of little moment, as the Tribunal otherwise made plain that the question of the first appellant’s enrolment status was a dispositive issue. The Tribunal referred to the possibility that educational institutions could make errors but added that its hands were tied. In doing so the Tribunal emphasised that the reasons for the first appellant not being enrolled in a course were immaterial in its consideration of whether the enrolment criterion was fulfilled. That statement accords with the law: Giri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1046.

19    It was next submitted that by granting the appellants only a five minute adjournment, the Tribunal failed to provide them with a meaningful opportunity to comment on or respond to the information, given the “complex” and “nuanced” factual circumstances. It was submitted that the Tribunal instead engaged in a recitation of s 359AA in a tick-a-box fashion and so failed to afford a real and meaningful opportunity having proper regard to the nature of the issues.

20    It may readily be accepted that the practical content of the obligation under s 359AA must depend upon the facts and circumstances of the particular case.

21    In the present case, the Tribunal first gave the appellants clear particulars of the information that it considered would be the reason for affirming the delegate’s decision (so fulfilling s 359AA(1)(a)) and informed the appellants that they could respond to it. At that early juncture the Tribunal told the appellants that if they needed more time to consider the information they may make a request for it and that any such request would be considered. The appellants in fact made an initial response to the information. It was in that context that the Tribunal’s suggestion that there be a five minute adjournment must be considered. The appellants, through their representative, confirmed that they did wish to have an adjournment. By doing so, they sought additional time to comment on or respond to the information. There was a short adjournment granted for that purpose and then they were in fact given more time to address the information. The circumstance that the Tribunal suggested that there be a five minute adjournment to allow the appellants to speak with their representative did not preclude the appellants from seeking additional time to comment on or respond to the information, including by seeking an adjournment. Had they made such a request, the obligation under s 359AA(1)(d) would then have been enlivened and it would have been necessary for the Tribunal to consider whether the appellants reasonably needed additional time to comment on or respond to the information. But no such request was made. In my view, the submissions made on the application for judicial review about why an adjournment was necessary are the very kinds of submissions the appellants could have made before the Tribunal in support of any application for more time. However, as I have said, that was not done and the Tribunal’s obligation to consider an adjournment under s 359AA(1)(d) therefore did not arise.

22    On this appeal, much of the appellants’ submissions concerned their desire to obtain further material from TAFE (including by having the PRISMS record rectified) so as to persuade the Tribunal that the first appellant was in fact enrolled in a course of study (albeit a course of study in which the obligations of the course were deferred). I am satisfied that the purpose of granting an adjournment under s 359AA may encompass the purpose of obtaining additional evidence to show that the information the Tribunal proposed to rely upon was outdated, incorrect, or should be interpreted in a different way to that foreshadowed by the Tribunal when explaining its significance. Had an adjournment been sought for that purpose, I would have readily concluded that the Tribunal would have been obliged under s 359AA(1)(d) to grant it.

23    However, as I have said, the appellants did not make a request for additional time to respond over and above the time they had been provided. The Tribunal could not reasonably have been understood to have foreclosed any further request by the appellants for more time to provide a response (including a response in the nature of contrary or correcting evidence). The Tribunal’s conduct in granting a five minute adjournment is to be understood in light of what it had earlier said about the ability of the appellants to make a request for additional time to respond. Following that adjournment the appellants expressly confirmed they had provided the Tribunal with the emails they relied on.

24    I should add that the appellants otherwise confirmed that they did not seek to argue that it was not reasonably open to the Tribunal to conclude, on the information before it, that the first appellant did not satisfy the enrolment criterion.

25    There will be an order dismissing the appeal.

Associate:

Dated:    9 April 2025