Australian Immigration Daily News

How can you tell whether the Tribunal’s decision-making process has “gone off the rails” and that your client may have strong prospects for success with a judicial review application? 

And under what circumstances can it be said that the Tribunal has a responsibility to make an inquiry and to consider information held in the Department’s files, so that when it fails to make such an inquiry, it can be said that the Tribunal has failed to meet its statutory obligation to conduct a review? 

These very important questions were explored in a decision that was handed down on 15 July 2016 by Justice Neville of the Federal Circuit Court, and which appeared this morning on Austlii: Al Mamun v Minister for Immigration & Anor (2016) FCCA 1777. 

The case involved an application for review of an application for a student visa. 

The application was refused in the first instance by a Departmental officer on the basis that the applicant had not satisfied requirements then in force under the former Part 572 to Schedule 2 relating to the adequacy of funds to meet living and tuition costs. 

What happened in this case was that there was an exchange during the hearing between the applicant and the Tribunal member concerning the bank statements that the applicant sought to rely upon to demonstrate to the member that he did in fact satisfy requirements concerning the adequacy of funds. 

Then, after the hearing, the applicant sent a copy of a further bank statement to the Tribunal. 

After receiving this second bank statement, the Tribunal member issued a decision in which he stated that: 

“The applicant’s response (concerning whether he satisfied financial capacity requirements) has been to submit a bank statement without comment. There is no apparent evidence from that statement or any other source that the Applicant had access to those funds or that he now has access to funds for the purposes of undertaking further study. The Tribunal has formed the view that the Applicant has had sufficient time and opportunity to provide the evidence required from him regarding his ability to satisfy the financial requirements and it finds that he has not provided sufficient evidence to indicate that he does satisfy those requirements.” 

So how did the Tribunal go wrong? 

The first indication, as reflected in Justice Neville’s judgment, was that the Tribunal’s decision was “very short”.  Justice Neville observed that the Tribunal’s decision ran to only 18 paragraphs.  His Honour stated that: “In such short compass, it is difficult to see how the Tribunal carried out its statutory function to weigh evidence and give due consideration to it against the claims made by the Applicant”. 

There you have it! If you get a decision from the Tribunal that is very short, and doesn’t seem to show that the Tribunal has gone through a process of carefully “weighing” or evaluating the applicant’s claims, then that may be at least a starting point for considering that the Tribunal has not carried out a proper review, and that it may well be worthwhile to think about taking the case to the Federal Circuit Court. 

In this particular case, Justice Neville concluded that the Tribunal did not “weigh” the evidence that the applicant had given at the hearing concerning his bank statement, or the evidence of the second bank statement that was provided following the hearing.  

It was Justice Neville’s finding that what the Tribunal had done was to simply reject the second bank statement that was provided after the hearing as a “document provided without comment” and that it then declared that the applicant had had a sufficient opportunity to submit the financial information.  Justice Neville described the Tribunal’s assessment as being merely a “blanket dismissal” of the financial information that the applicant had sought to provide, and that there had been no “weighing” process at all by the Tribunal. 

Reading between the lines, it appears from Justice Neville’s opinion is that what His Honour would have required from the Tribunal at a minimum would have been some identification and discussion of the financial information (bank statements) that the applicant had sought to rely on, what information was contained in the bank statements, and the reasons that the Tribunal had concluded that the information was not sufficient to satisfy the relevant criterion concerning the adequacy of funds. 

Also troubling to Justice Neville was that the Tribunal’s decision contained what his Honour described as being only a “passing reference”  that the financial criteria had been “discussed with the Applicant at the hearing”.  

It was Justice Neville’s view that this short reference to “discussions with the applicant” was not sufficient.  His Honour found that such a reference, without more, was insufficient.  Justice Neville observed that the Tribunal should, at the least, have outlined in its decision the content of the “discussions” that had occurred with the applicant at the hearing had been .  His Honour noted that without a more complete description of the evidence that had been given at the hearing, there was no way of knowing how the Tribunal had come to its decision. 

Justice Neville noted that many court rulings have held that the reasons given by the Tribunal need to outline the evidence that the Tribunal has relied upon and the reasoning process it has used to arrive at its conclusions.  

So – when the Tribunal’s decision does not include these elements, it will be found that the Tribunal has “failed to conduct a review”, and the Tribunal’s decision will be vulnerable to challenge. 

And what about a “duty to inquire” on the part of the Tribunal? 

The governing case on whether there is a duty to inquire is the High Court’s decision in Minister for Immigration and Citizenship v SZAI.  In that case, the Court held that the Tribunal’s duty to conduct a review encompasses an obligation to make “an obvious inquiry about a critical fact, the existence of which can be easily ascertained”. 

What inquiry did the Tribunal fail to make in this case?  The “Court Book” that was prepared in connection with the judicial review proceedings contained Departmental records which included notations to the effect that the applicant met financial capacity requirements.  

However, in this case the Tribunal’s reasons did not indicate that the Tribunal had considered the Department’s records concerning the applicant’s financial circumstances, or that it had made any inquiry about them. 

It was Justice Neville’s view that in light of the fact the Tribunal member had canvassed the applicant’s financial records with him during the hearing that the Tribunal should have made an effort to find out what information was in the Department’s files, and should have considered that information when making its decision. 

So the moral of the case is that even if an applicant loses at the Tribunal level, all is not necessarily lost. If it can be shown that the Tribunal did not properly carry out its review functions, there is a fighting chance to get the Tribunal’s decision quashed in the Federal Circuit Court!!

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