Abdullah v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 986
•4 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abdullah v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 986
File number(s): SYG 538 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 4 October 2024 Catchwords: MIGRATION – judicial review – jurisdictional error – denial of procedural fairness – alleged bias – allegation as to difficulty understanding and communicating with Tribunal member on telephone where interpreter involved Legislation: Migration Act 1958 (Cth) ss 353, 359, 366, 476, 477, 499
Migration Regulations 1994 (Cth) sch 2 cl 500.212
Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 25 September 2024 Place: Sydney Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr J Fyfe of MinterEllison Lawyers Solicitor for the Second Respondent: Submitting appearances save as to costs ORDERS
SYG 538 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABDULLAH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
4 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Kaur-Bains
By an application filed on 5 March 2020, the Applicant seeks judicial review of a decision made by the Second Respondent (Tribunal) dated 5 February 2020. The Tribunal affirmed a decision of a delegate of the First Respondent (Minister), refusing to grant the Applicant a Student (Temporary) (class TU) Student (subclass 500) visa.
This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.
BACKGROUND
The Applicant is a citizen of Indonesia who arrived in Australia on 31 August 2013. The Applicant previously held a Student (Class TU) (subclass 572) visa from August 2013 to
March 2016 and another Student (Class TU) (subclass 572) visa from March 2016 to
March 2018.
On 12 March 2018 the Applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa with the Department of Home Affairs to study a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management with a prospective visa grant until 30 November 2019. On 23 April 2018 a delegate of the Minister refused to grant the said visa. This was because the delegate was not satisfied that clause 500.212(a) of the Migration Regulations 1994 (Cth) (Regulations) was satisfied, being that the Applicant intended genuinely to stay in Australia temporarily.
On 7 May 2018 the Applicant applied to the Tribunal for a review of the delegate’s decision. On 7 November 2019 the Applicant was sent an invitation to provide more information, regarding the requirements that he be both enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. The Applicant responded to this request by completing the relevant form on 15 November 2019 and provided information.
On 13 January 2020 the Applicant received an invitation to attend a hearing before the Tribunal. The invitation specified that the hearing would be conducted by telephone and that if the Applicant wished to attend the hearing in person he would need to advise the Tribunal as soon as possible. The Applicant appeared unrepresented before the Tribunal by telephone with the assistance of an Indonesian interpreter on 30 January 2020. The Applicant was sent a document headed “Information about hearings – MR Division”, which set out information as to how the hearing would be conducted, including that if the hearing is by telephone and at any time the Applicant had difficulty hearing the Member, the interpreter, or the hearing attendant, the Applicant should inform the Member as soon as possible.
RELEVANT LAW
Relevantly, at the material time, cl 500.212 of Schedule 2 to the Regulations provided as follows:
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.
In considering whether the Applicant satisfied cl 500.212(a) of the Regulations, the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Act. The “Genuine temporary entrant criterion” is defined in Direction No. 69 as referring, inter alia, to clause 500.212(a) of the Regulations.
Direction No. 69 makes clear that the Tribunal, in considering the Genuine temporary entrant criterion (that is whether for the purposes of clause 500.212(a) the Tribunal is satisfied that the Applicant intends genuinely to stay in Australia temporarily), regard is to be had to:
(a)The Applicant’s circumstances in his home country, potential circumstances in Australia and the value of the course to his future. This involves, inter alia, considering reasons for not undertaking the study in the home country, personal ties to the home country and to Australia, economic circumstances of the Applicant that would present a significant incentive not to return home, evidence that the student visa programme is being used to circumvent the intentions of the migration programme, whether the student visa is being used to maintain ongoing residence and value of the course to the Applicant’s future.
(b)The Applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries and previous travel to Australia or other countries, the amount of time the Applicant has spent in Australia and whether the visa may be used primarily for maintaining ongoing residence.
(c)Any other relevant information, including information that may be either beneficial or unfavourable to the Applicant.
It is specified in Part 2 of Direction No. 69 that the factors specified were not to be used as a checklist, instead stating that:
1.…The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion
TRIBUNAL’S DECISION
On 30 January 2020 the Applicant appeared by telephone before the Tribunal to give oral evidence and present arguments at the hearing. The Applicant was assisted by an Indonesian interpreter ([4] of the reasons).
The Tribunal correctly set out that it needed to consider whether it was satisfied that the primary criteria in cl 500.212(a) was met ([6] of the reasons). The Tribunal correctly referred to the relevant provision of cl 500.212, Direction No. 69 and how Direction No. 69 was to be used by the Tribunal ([8] and [9] of the reasons). The Tribunal noted that it also had regard to the Applicant’s s 359(2) response.
The Tribunal found it was not satisfied that the Applicant intended genuinely to stay in Australia temporarily and found that the Applicant did not meet cl 500.212(a) and cl 500.212 of the Regulations for the following reasons:
(a)The Tribunal considered the Applicant’s circumstances in his home country, Bali in Indonesia at [12] to [15], concluding these ties were not in and of themselves a significant incentive for him to return to Indonesia [16].
(b)The Tribunal considered the Applicant’s circumstances in Australia at [17] and [18], being as follows:
17. The applicant lives with 4 others from Indonesia. Some of his housemates are students and some are residents. He has lived in the same house since arriving in 2013. He has friends in Australia and socialises with them by way of BBQs, and getting together to play Futsal. He told the Tribunal that he enjoys life in Australia.
18. He has previously worked as an Uber driver and as a delivery driver although is not currently working.
(c)On considering the Applicant’s circumstances in Australia, the Tribunal found that the Applicant had established a comfortable and settled life in Australia over the 6 ½ years he had been living in Australia and the Tribunal found this to be a significant incentive to remain in Australia ([19] of the reasons).
(d)The Tribunal considered the value of the courses of study to the Applicant’s future at [20] to [25], finding the Applicant’s reasons for completion of the courses of study to lack specificity as to any specific career path or plans. The Tribunal concluded that it did not accept the Applicant’s reasons for completion of the courses ([26] of the reasons).
(e)The Tribunal noted that the Applicant had completed several inexpensive low level courses over a period of 6 ½ years. The Tribunal found that the value of the Applicant’s course is that it would allow him to maintain residency in Australia ([27] of the reasons).
(f)The Tribunal found on the evidence no adverse findings as to the Applicant’s immigration history, noting his frequent travel movements were between Indonesia and Australia ([28] of the reasons).
(g)The Tribunal found there being no evidence of civil or political unrest in Indonesia and referenced military service requirements as not being a disincentive to the Applicant to return to Indonesia ([29] of the reasons).
GROUNDS IN THE APPLICATION
The Application for judicial review filed on 5 March 2020 contained the following grounds for review:
(1) The Tribunal hearing was not fair because the Tribunal Member was asking me leading questions which suggests a particular answer or contains the information the Tribunal member was looking for. Specifically, in paragraphs 17 and 19, the Tribunal asked about my social life with my friends. The questions were framed in a way in order to assist the Tribunal Member to draw an adverse inference against me. I fell into the trap of answering these questions in a way that the Tribunal member wanted me to answer and this had allowed the Tribunal Member to draw unfounded inference from my answers and in particular she stated that I have an established life in Australia by virtue of me having a group of friends to socialise, to attend BBQs and play futsal. The Tribunal concluded that this serves as a strong incentive for me to remain in Australia.
(2) Further, I had actually mentioned during the hearing that upon completion of my Advance Diploma in Human Resources Management I intend to go back to my home Country. I had commenced at a Diploma level course and worked my way up advance Diploma, but it does not appear that the tribunal took into consideration this information. And instead the Tribunal member conclude that I was intending to reside in Australia as I have been in Australia for 6.5 years.
(3) The Tribunal drew an unfounded conclusion without adequate basis. In paragraph 27, the Tribunal stated that in its view, I was enrolling in a series of low-level courses as means to maintain residency in Australia. To date, I had undertaken courses in Business, Marketing, Management and Human Resources Management. I respectfully submit that these courses are consistent and appropriate for someone intending to equip themselves with the necessary skills to venture into my own business. I have also explained the relevance of Human Resources and Leadership skills which would equip me in recruiting and training new employees in the future. I consider these skills are pertinent to me as I intend to open my own real estate business in my home country.
(4) The Tribunal Hearing was done over the phone and I had trouble understanding and communicating with the Tribunal Member, especially when there is an interpreter involved.
The Applicant also filed written submissions dated 27 August 2020.
THE PROCEEDINGS IN THE COURT
At the hearing of the matter before me, the Applicant appeared unrepresented. The Applicant was assisted at the hearing by an interpreter in the Indonesian language. At the outset, I ensured the Applicant had before him a copy of the Court Book, the Minister’s Response and the Minister’s Written Submissions. The Applicant said he had drafted the grounds in his application to this Court and he had drafted his written submissions.
Given that the Applicant was a litigant in person, I explained to the Applicant what the Tribunal had found and that this Court’s role was to see if there was a legal error in the Tribunal’s decision. The Applicant was told that only if a relevant legal error was found could I then send the matter back to the Tribunal for reconsideration as to whether to grant the visa. I also explained to the Applicant that if I found there was no legal error then I would dismiss his application. I also explained in that event, the Minister would probably seek an order that the Applicant pay his legal costs. The Applicant said he understood what I had explained.
I raised with the Applicant that orders had been made on 26 March 2024 that any additional evidence the Applicant intended to seek to rely on was required to be filed and served by
12 April 2024. The Applicant said he was aware the order had been made but did not intend to file any further evidence.
CONSIDERATION
Ground 1
In relation to Ground 1, the Applicant’s written submissions dated 27 August 2020 allege the Tribunal asked leading questions and the line of questioning by the Tribunal at the hearing was tainted by bias, consequently resulting in a denial of procedural fairness.
I explained to the Applicant that in relation to Ground 1, the Applicant had not filed any evidence to prove the line of questioning used by the Tribunal and that the questions were what the Applicant says were ‘leading questions’. In response to this the Applicant said that:
(a)the “leading questions that were asked is so the Tribunal could obtain the answers the Tribunal wanted.”
(b)The questions that were directed were something like “Do you have lots of friends?’ and “Are you comfortable here?” and “You’re living here comfortably”. So the Applicant said “Yes, I live here comfortably and I do have lots of barbecue events, and also futsal as well.”
The Applicant said he found the Tribunal’s questions “very unfair” and it resulted in the Tribunal obtaining information from the Applicant which the Tribunal then set out at [17] to [18] of its reasons, to make the finding at [19] as follows:
17. The applicant lives with 4 others from Indonesia. Some of his housemates are students and some are residents. He has lived in the same house since arriving in 2013. He has friends in Australia and socialises with them by way of BBQs, and getting together to play Futsal. He told the Tribunal that he enjoys life in Australia.
18. He has previously worked as an Uber driver and as a delivery driver although is not currently working.
19. The Tribunal considers that the applicant has established a comfortable and settled life in Australia over the 6 ½ years that he has been living here and considers this to be a significant incentive to remain.
The Applicant did not take issue with the fact that he told the Tribunal of the matters set out at [17] and [18] of the Tribunal’s reasons, and that the facts set out in those paragraphs were correct. The Applicant’s complaint was that, notwithstanding the correctness of his answers, the answers were obtained by the Tribunal in an unfair way and the unfair way identified by the Applicant is that the Tribunal asked “leading questions”.
In his written submissions dated 23 September 2020 in relation to Ground 1 the Minister submits the Applicant has not produced any evidence regarding the line of questioning by the Tribunal, but even if they did ask “leading questions”, the Tribunal is not bound by technicalities, legal forms or rules of evidence pursuant to s 353(a) of the Act, which provides that “the Tribunal, in reviewing a Part 5-reviewable decision… is not bound by technicalities, legal forms or rules of evidence”. The Minister also submits that the substance of the questions, which considered the Applicant’s ties with Australia and the community, are included in Direction No. 69, as factors decision makers should take into account. Therefore asking questions on those topics is not fair.
The Minister reiterated at the hearing before me that there is no transcript of the Tribunal’s hearing, so it is difficult for me to make a finding of fact that there were in fact unfair leading questions. The Minister did say that in the absence of such evidence the reasons may be used to enable me to infer certain matters, however, from the Tribunal’s reasons in this case I could not infer that unfair leading questions were in fact asked, so to support an allegation of bias. The Minister also said that the proceedings before the Tribunal are inquisitorial and that the Tribunal needed to ask questions to illicit answers as to the factors listed in Direction No. 69, such as the Applicant’s potential circumstances in Australia.
After the Minister’s submissions, given that the Applicant was a litigant in person, I explained to him that there was a procedure in this Court, where the Applicant could make an application to me to adjourn the hearing to enable him to have time to obtain a transcript of the hearing before the Tribunal. It was explained to the Applicant that absent such a transcript it was difficult to see what questions were asked of the Applicant and whether there was evidence to support what was said in Ground 4 as to the difficulties in understanding and communicating with the Tribunal member. The Applicant said he did not want an adjournment but wished to continue with the hearing before me.
The Applicant frames Ground 1 as a complaint about the procedure the Tribunal adopted to obtain the information it did about the Applicant’s circumstances in Australia and says that such questioning disclose bias by the Tribunal.
Actual bias requires prejudgment in a manner so committed to a conclusion that it is “incapable of alteration”, regardless of arguments or evidence: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) at [72] per Gleeson CJ and Gummow J. Apprehended bias is similarly difficult to establish. It requires that a “fair-minded lay observer might reasonably apprehend” that a decision maker “might not bring an impartial mind” to determination of the matter: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [33] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Serious allegations of this nature must be distinctly made and clearly proved: Jia Legeng at [69].
There is no evidence before me to substantiate the Applicant’s complaint of actual or apprehended bias. As said the suggestion of bias is a serious issue, which when raised should be supported by evidence as establishing a legal basis for the allegation. The Applicant was given an opportunity to seek an adjournment to put on any such material but declined. On my reading of the reasons there is no evidence to support the serious allegation made by the Applicant. The reasons disclose the Tribunal was performing its inquisitorial role and dealing with each of the factors required to be considered when considering whether the Applicant intended genuinely to stay in Australia temporarily.
Ground 1 does not disclose jurisdictional error.
Grounds 2 and 3
The Applicant alleges failure on the Tribunal’s part to give proper weight and consideration to the evidence provided by the Applicant as to the courses he has undertaken in Australia and the natural progression of those courses. Further, the Applicant says the Tribunal drew an unfounded conclusion that the courses the Applicant had enrolled in over a period of 6 ½ years was only a means to maintain residency in Australia.
On a fair reading of the Tribunal’s reasons the Tribunal did in fact consider the evidence referred to by the Applicant as to the courses he undertook (see [20] and [21] of the reasons) and the reasons the Applicant gave for undertaking the courses (see [22] to [25] of the reasons). As the Minister says the weight to be given to the evidence of the Applicant was a matter for the Tribunal and based on the evidence it was not unreasonable for the Tribunal to conclude at [27] of the reasons that the value of the course that the Applicant intended to study for the purpose of the visa was for the Applicant to maintain residence in Australia. It is not permissible for me to engage in a merits review. The finding by the Tribunal was open for it to make on the evidence.
Grounds 2 and 3 do not establish jurisdictional error.
Ground 4
Ground 4 raises a question of whether the Applicant was accorded a fair hearing. The Applicant alleges that because the hearing was conducted on the telephone, the quality of the telephone conference was poor and the Applicant could not understand and communicate with the Tribunal member.
During the hearing of this matter, as said earlier in this judgment, I explained to the Applicant that he needed evidence, such as a transcript, of what occurred before the Tribunal, so that I could consider whether there was technical or interpretation issues that may have deprived the Applicant of having a real and meaningful opportunity to present evidence and arguments. As said, the Applicant declined the opportunity to seek an adjournment of the hearing to obtain such evidence.
The Tribunal is permitted to conduct hearings by telephone pursuant to s 366 of the Act. The Applicant was given the opportunity to notify the Tribunal if he wished to appear at the hearing in person and did not do so. The Applicant has not presented any evidence in the form of a transcript or other probative evidence to demonstrate there were any issues that may have deprived him of having a real and meaningful opportunity to present evidence and arguments before the Tribunal.
Given the Applicant was a litigant in person I reviewed the Tribunal’s reasons to see if I could ascertain whether there were any issues as to communication between the Applicant and the Tribunal member. The reasons suggest no such communication difficulties and I note the reasons set out the questioning and answers during the hearing, for example as noted at [17], [18], [23] and [24] of the Tribunal’s reasons.
Ground 4 does not disclose a jurisdictional error.
CONCLUSION
For the above reasons the application is dismissed. I will hear the parties on costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 4 October 2024
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