Bhandari v Minister for Immigration

[2015] FCCA 1712

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHANDARI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1712

Catchwords:
MIGRATION – Judicial review of Migration Review Tribunal decision – application for Student Temporary Class TU (Subclass 572) (Vocational Education and Training Sector) visa – exceptional reasons for grant of student visa refused – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03
Migration Regulation 1994 (Cth), Sch.2: cl.572.227

Minister for Immigration and Ethnic Affairs v Guo (1997) HCA 22
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
NADH of 2001 v the Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 328

Applicant: ANAND BHANDARI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 149 of 2014

Judgment of: Judge Hartnett

Hearing date: 22 May 2015

Delivered at: Melbourne

Delivered on: 22 June 2015

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Clayton Utz

ORDERS MADE 22 MAY 2015

1. The Application filed on 17 March 2015 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $8,584.50.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 149 of 2014

ANAND BHANDARI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was before the court on 22 May 2015 wherein the Applicant appeared in person and Mr Knowles of Counsel appeared on behalf of the First Respondent.  On that day, the Court ordered:-

   “1. The Application filed on 17 March 2015 is dismissed.

   2. The Applicant pay the costs of the First Respondent fixed in the sum of $8,584.50.”

2. What follows hereafter are the reasons for the making of those orders on that day. 

Background

1. On 28 January 2014, the Applicant applied to this Court for judicial review of the decision of the Migration Review Tribunal (‘the Tribunal’) dated 6 January 2014.  The Tribunal affirmed a decision of a Delegate of the First Respondent not to grant the Applicant a Student Temporary Class TU (subclass 572) (Vocational Education and Training Sector) visa (‘student visa’).  In support of that Application for judicial review, the Applicant filed an Affidavit affirmed by him on 24 January 2014. 

2. The Application of the Applicant sought orders that the decision of the Tribunal be quashed and that a writ of mandamus be directed to the Tribunal requiring it to determine the Applicant’s Application according to law.  The grounds of Application were as follows:-

   “(1)   The MRT made a jurisdictional error in that the learned member exhibited bias and hostility towards the Applicant at the review in such manner as to make the decision unsafe.

   (2)     The learned member demanded that the Applicant provide on-the-spot translations of French words.  This was hostile, as the Applicant clearly stated he knew about preparing French cuisine and not that the Applicant spoke French.  Upon the Applicant not being able to provide translations, the learned member displayed open scorn and ridicule towards the Applicant.

   (3)     The learned member further stated that the member had lived in India and that a fusion restaurant would not be successful, implying that the Applicant’s business plan could not succeed.  The Applicant was caught by surprise and was not invited to comment on such an adverse statement.  The learned member went so far as to cross-examine the Applicant on cricket sessions and games in India which was not in issue on the review. 

   (4)     The learned member created an environment of hostility in the manner of questioning and ridiculing the Applicant, which can easily be shown on the recording and transcript of the review.”

3. The Affidavit affirmed by the Applicant essentially restated those grounds, concluding that the Applicant wished for a new review hearing before a member who was fair and would not make fun of him. 

4. The Application filed on 28 January 2014 was set down for hearing on 29 October 2014 in Orders made by Registrar Caporale on a directions hearing of 14 April 2014.  Also provided for in orders by consent made that day was a requirement that each of the parties file and serve written submissions and other orders preparing the matter for trial. 

5. The First Respondent filed a Response on 5 February 2014 opposing the application for an order to show cause filed by the Applicant on the grounds that the decision of the Tribunal was not affected by jurisdictional error. 

6. The hearing date of 29 October 2014 was administratively adjourned to 11 March 2015.  Such adjournment was requested by the Applicant and not opposed by the First Respondent. 

7. On 23 February 2015, the Applicant filed a Notice of Discontinuance. On 10 March 2015, the Court made orders granting leave to the Applicant to discontinue his Application filed on 28 January 2014 and vacating the hearing date then fixed for 11 May 2015. 

8. On 17 March 2015, the Applicant filed an Application in a Case seeking effectively that his Notice of Discontinuance be set aside and his earlier Application for judicial review filed on 28 January 2014 be reinstated.  The Applicant swore an Affidavit on 17 March 2015 in support of that Application.  The Applicant claimed that he withdrew his earlier application because he did not know much about the law, and that his migration agent and solicitor had tricked him.  He determined that he would attend upon another agent who advised him to apply to the First Respondent.  He would like to:-

   a)“re-apply my case in Federal Court.”

9. The First Respondent filed on the Application in a Case hearing, an Affidavit sworn by Thomas Edward Middleton on 11 December 2014 and filed on 1 May 2015.  Further, the First Respondent relied on Written Submissions filed on 1 May 2015.  The Affidavit of Mr Middleton, solicitor employed by Clayton Utz, the lawyers for the Respondent, annexes a transcript of the tribunal hearing conducted in Melbourne on 21 November 2013 at which the Applicant was present.  Between 25 September 2014 and 29 September 2014, Mr Middleton listened to the audio file of the hearing and reviewed the transcript of the hearing.  To the best of his knowledge and belief, the transcript contained, at “TEM-1” annexed to his Affidavit, is a verified copy of the transcript of the hearing and an accurate reflection of what was said by the various participants at the hearing.  The First Respondent contends that the Application in a Case does not disclose a proper basis to set aside the Applicant’s Notice of Discontinuance and reinstate the proceeding, on the basis that the Applicant’s claims in his application for judicial review of actual and apprehended bias are not made out. 

History

1. The Applicant is a citizen of India.  He entered Australia in early 2013 as the holder of a Tourist (Class TR) visa (subclass 676) (‘tourist visa’).  The tourist visa was granted on 15 January 2013 and was due to expire on 19 April 2013.  Before the expiration of that visa and on 27 March 2013, the Applicant applied for a student visa. 

2. On 13 August 2013, a Delegate of the Minister (‘the Delegate’) refused to grant the Applicant a student visa. The Delegate found that the Applicant did not meet the criteria for the grant of a student visa and, in particular, the criterion in cl.572.227 of sch.2 to the Migration Regulations 1994 (Cth) (‘Regulations’).

3. Clause 572.227 states that:-

   “If:

   (a)the application was made in Australia; and

   (b)subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

   (c)at the time of application, the applicant met the requirements of clause 572.211:

   (i)as the holder of a visa of one of the following classes or subclasses:

   A.     Border (Temporary) (Class TA);

   C.     Cultural/Social (Temporary) (Class TE);

   D.    Educational (Temporary) (Class TH);

   E.     Electronic Travel Authority (Class UD);

   IA. Maritime Crew (Temporary) (Class ZM);

   J.  Medical Practitioner (Temporary) (Class UE);

   K. Retirement (Temporary) (Class TQ);

   LA. Superyacht Crew (Temporary) (Class UW);

   N. Temporary Business Entry (Class UC);

   NA. Subclass 400 (Temporary Work (Short Stay Activity));

   NB. Tourist (Class TR);

   NC. Visitor (Class TV);

   O. Working Holiday (Temporary) (Class TZ);

   P. Temporary Work (Long Stay Activity) (Class GB);

   Q. Training and Research (Class GC);

   QA. Subclass 403 (Temporary Work (International Relations)) other than a visa in the Domestic Worker (Diplomatic or Consular) stream;

   R. Temporary Work (Entertainment) (Class GE);

   S. Special Program (Temporary) (Class TE);

   T. Subclass 600 (Visitor); or

   (ii)as the holder of a special purpose visa; or

   (iii)as the holder of a visa of one of the following subclasses:

   A.     Subclass 303 (Emergency (Temporary Visa Applicant));

   B.     Subclass 427 (Domestic Worker (Temporary)--Executive);

   BA. Subclass 485 (Temporary Graduate);

   C.     Subclass 497 (Graduate--Skilled); or

   (iv)as a person:

   A.     who was not the holder of substantive visa; and

   B.     who, immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii);

   the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.”

4. Of course cl.572.227 relevantly required that the Applicant establish exceptional reasons for the grant to him of a student visa. The Applicant was obliged to satisfy this criterion because, in particular:-

   a)he had made his application for a student visa in Australia; and

   b)at the time of making his application he held a tourist visa.

5. The Delegate noted the Applicant was required to demonstrate exceptional reasons for the grant of his first student visa onshore, given that he had never held a student visa. The Delegate inquired of the Applicant as to information he had to support that exceptional reasons existed for the grant of a student visa as required by cl.572.227 of sch.2 to the Regulations.

6. The Delegate noted in its consideration of the information provided to her by the Applicant, that policy required to be considered by her provided examples of exceptional reasons for the grant of a student visa onshore, and set out those in her Decision Record of 13 August 2013. 

7. The Delegate was not satisfied that the Applicant had established exceptional reasons for the grant of a student visa.

8. On 2 September 2013, the Applicant applied to the Tribunal for a review of the Delegate’s decision.  In a letter to the Tribunal, dated 18 November 2013, the Applicant’s representative made submissions on his behalf.  Under cover of the letter, the representative also lodged, among other things, references from two New Zealand restaurants at which the Applicant claimed to have worked.

9. The Tribunal conducted a hearing on 21 November 2013, to which the Applicant had been invited to give evidence and make submissions.  The Applicant did so.  His representative also attended the hearing.  On 7 January 2014, the Tribunal handed down its decision in which it affirmed the Delegate’s decision not to grant the Applicant a student visa.  The Tribunal questioned the Applicant’s evidence about his expertise and experience in restaurants.  The Tribunal otherwise noted that in respect of the Applicant’s claimed exceptional reasons for the grant of a student visa, and as set out in paragraph 17 of its Decision Record:-

   “The only reasons provided by Mr Bhandari, were that study and subsequent employment would be a good experience for him and may lead to the opportunity for him to open a restaurant catering to international sporting crowds.”

10. The Tribunal affirmed the Delegate’s decision because it found that the Applicant did not satisfy criterion in cl.572.227 of sch.2 to the Regulations, which is a prerequisite for the grant of a subclass 572 visa, because the Applicant had not established exceptional reasons for the grant of a student visa.

Consideration

1. The Court, on 22 May 2015, was asked to consider the Applicant’s reinstatement Application.  The Court found that the Applicant, on his own evidence, filed his Notice of Discontinuance on 23 February 2015 in respect of his earlier proceedings commenced on 28 January 2014.  Such Notice of Discontinuance was knowingly and voluntarily filed by the Applicant.  He was aware that he was discontinuing his earlier proceedings. 

2. The Applicant did not put before the Court any evidence that such Notice of Discontinuance was filed by him as a result of fraud or duress, or that somehow it might amount to an abuse of process.  Further, there was no evidence put before the Court by the Applicant that he was unaware of the consequences of filing his Notice of Discontinuance.

3. Whilst the Court has power to reinstate the earlier proceedings pursuant to r.13.03 of the Federal Circuit Court Rules 2001 (Cth), the Court requires evidence before it of fraud or duress, or a lack of the Applicant’s knowledge in the filing of the Notice of Discontinuance for a favourable, to the Applicant, exercise of its discretionary power. There is nothing before the Court to suggest that the Applicant’s discontinuance of his earlier proceedings and the resulting costs order had given rise to any injustice to the Applicant.

4. Further, I considered, should reinstatement be allowed, whether the Applicant’s earlier Application for judicial review had a reasonable prospect of success.  I concluded that the grounds of application as set out by the Applicant in his substantive application are not made out.  Reinstatement would therefore be futile and thus the Applicant’s Application on this basis also must be refused.

5. As submitted by Counsel for the First Respondent, in order to make out a case of actual bias on the part of the Tribunal, the Applicant must establish that before it reached its decision, the Tribunal had made up its mind and was incapable of being persuaded differently. The question is not whether the Tribunal’s mind was blank but, rather, whether it was open to persuasion.[1]

   [1] Minister for Immigration and Multicultural Affairs v Jia (2001) HCA 17; (2001) 205 CLR 507, 531.

6. Actual bias is a grave condemnation of the ability of the decision-maker to discharge his or her functions with impartiality.  The Applicant made the allegation, but failed to establish, let alone firmly establish, that the Tribunal had a predisposition about the outcome of its review, and any predisposition was incapable of alteration.  On the evidence that was before the Tribunal at the hearing, in the conduct of the hearing itself, and in the decision of the Tribunal, the Applicant cannot argue that the Tribunal pre-judged the Applicant’s case.  The Applicant made various claims to support the finding of exceptional reasons for the grant of a student visa.  These included that he intended to return to India and establish a restaurant which would, amongst other things, cater to international cricket fans.  This would produce an improvement of bilateral relations between Australia and India, he argued.  He put before the Tribunal that he had past experience in the hospitality industry, including in French restaurants in New Zealand.  In the context of those claims, the Tribunal was entitled to ask relevant questions of the Applicant and did so.  The Tribunal was not obliged to accept the Applicant’s claims and evidence at face value or uncritically.[2]  Ultimately, the Tribunal’s finding that the Applicant did not establish exceptional reasons for the grant of a student visa and thus did not meet the necessary criterion was open to it on the evidence before it.  It was a factual finding which is a matter for the Tribunal.

   [2] Minister for Immigration and Ethnic Affairs v Guo (1997) HCA 22.

7. As submitted by Counsel for the First Respondent, for the Applicant to prove that the Tribunal’s decision was affected by apprehended bias, he must establish that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on its decision.[3] Such an apprehension might arise from consideration of the Tribunal’s conduct of the hearing or its reasons for its decision or both.

   [3] NADH of 2001 v the Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 328; (2004) 214 ALR 264, 14.

8. The Court had put before it by the First Respondent, the relevant transcript of the Tribunal hearing.  That evidence was not put by the Applicant nor did the Applicant make any submissions that would particularise the grounds of his claim further.

9. It cannot be said that a fair-minded and informed person might regard the Tribunal’s questions of the application at the hearing as indicative of the possibility of an unaltered predisposition on the part of the Tribunal.  There was clearly a testing of the evidence, but not in such a way that the Applicant was overborne or intimidated by the Tribunal.  Further, the Applicant was represented at the hearing, and neither he nor his representative made any complaint about the conduct of the Tribunal member at or around the time of the hearing.  The Applicant’s claim of apprehended bias cannot be made out.

10. In these circumstances, there was no utility in a reinstatement of the application, and thus the Application in a Case was dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  22 June 2015