Brar v Minister for Immigration

[2014] FCCA 2616

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRAR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2616

Catchwords:
MIGRATION – Application for Student (Temporary)(Class TU) visa – where interpreter made comments not by way of translation – whether tribunal relied upon those matters – whether tribunal took into account an irrelevant consideration – where tribunal did not rely upon those matters  – tribunal did not take into account irrelevant consideration.

MIGRATION – Application for Student (Temporary)(Class TU) visa – where tribunal asked applicant for corroborative documents – where applicant sought time to provide documents – where tribunal would not allow time but told applicant it would consider any documents received from him before decision made – where tribunal told applicant that it may deliver a decision the day following the hearing – where tribunal’s decision to not provide time for delivery of further documents “legally unreasonable” – where tribunal failed to conduct a review according to law because the tribunal failed to discharge its statutory function of review by failing to afford the applicant a proper opportunity to present his case.

Legislation:

Migration Act 1958 (Cth), ss.353, 360, 363(1)(b), 363A, 366A(3)

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: PARMINDER SINGH BRAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2026 of 2013

Judgment of: Judge Jarrett

Hearing date: 23 July 2014

Date of Last Submission: 23 July 2014

Delivered at: Melbourne

Delivered on: 17 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Albert

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance.

ORDERS

1. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 29 October, 2013. 

2. A writ of mandamus issue directed to the second respondent requiring the second respondent to determine the application for review according to law.

3. The first respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2026 of 2013

PARMINDER SINGH BRAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to review a decision of a migration review tribunal made on 29 October, 2013 whereby the tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) visa.

2. The written and oral submissions of the parties agree that there are two issues that arise on the application, namely:

   a)did the tribunal commit a jurisdictional error in connection with it recording, in its statement of reasons, the applicant saying at the hearing on 17 October, 2013 that he “didn’t prepare himself” to bring documentary evidence in support of a particular claim, when he made no such statement?

   b)did the tribunal commit a jurisdictional error by not waiting longer than it did after the hearing and before making its decision on the review, in case the applicant might provide documentary evidence in support of that claim?

3. I have been assisted in preparing these reasons for judgment by the fulsome written submissions of both parties.  Those written submissions accurately summarise the background to this application, as it appears from the reasons of the tribunal and the documents in the Court Book filed on 19 February, 2014.  I have drawn upon the written submissions of both parties for the preparation of these reasons.

Background

1. The applicant was born in Punjab, India on 25 November, 1986.  He first came to Australia on 7 June, 2009 on a student visa.  Soon after, he successfully completed an Advanced Diploma of Hospitality at the Hospitality Management Institute of Australia.  He also began a Certificate IV in Business at the Baxter Institute but he could not complete his studies there.

2. The applicant’s first student visa expired on 15 March, 2012.  Before it expired, on 24 February, 2012 the applicant applied for a second student visa. 

3. At the time the applicant made his second visa application cl.572.223 in Schedule 2 of the Migration Regulations 1994 provided a criterion for the grant of a subclass 572 visa (the subclass appropriate for the applicant in this case) as follows:

   (1)   The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)     the Minister is satisfied that 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 meets the requirements of subclause (2).

4. Further, at that time, the Minister had also issued a direction under s.499 of the Migration Act1958 which set out certain factors guiding decision-makers in assessing the “genuine applicant” criterion in cl.572.223: Direction No 53. In particular, decision makers were directed to have regard to the “value of course to the applicant’s future” and whether the applicant was “seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country”.

5. The applicant had obtained a Bachelor of Arts in India in September, 2006 and he had completed an Advanced Diploma of Hospitality in Australia in October, 2011. The applicant indicated in his visa application that he now intended to obtain a Certificate IV in Business and a Diploma of Business.

6. On 27 February, 2012 a delegate of the first respondent requested that the applicant provide, amongst other information, a statement setting out his reasons for undertaking the Certificate IV in Business and the Diploma of Business.  On 25 March, 2012 the applicant provided to the delegate a “statement of purpose”, in which he indicated that he wished to study those courses in order to set up a restaurant business in India.

7. On 27 March, 2012 a delegate of the first respondent found that the applicant was not a genuine applicant for entry and stay as a student. The delegate found that the courses that the applicant sought to undertake were inconsistent with his overall educational background.  The delegate also found that the applicant had already studied several units that would assist him in managing a business. The delegate concluded that undertaking further studies in a Certificate IV in Business and a Diploma of Business would not be of value to his future career prospects given he already had knowledge to assist him to operate and manage a restaurant.   The delegate emphasised that the applicant had “enrolled in a series of short, inexpensive courses and the lack of value of these courses to the applicant’s future … indicates that he does not genuinely intend to stay in Australia temporarily”.

8. On 16 April, 2012 the applicant applied for review of the delegate’s decision by a migration review tribunal.  On 13 September, 2013 the applicant was invited to appear on 17 October, 2013 before a tribunal.  In the letter inviting him to attend the hearing, the applicant was also invited to provide, among other things:

   a)a certificate of enrolment or evidence that he was enrolled in, or subject to a current offer of enrolment in a registered course;

   b)evidence of his academic achievements and evidence of enrolment in courses since his arrival in Australia;

   c)a statement as to why he was seeking to undertake his current or intended future course, taking into account the qualifications already achieved;

   d)a statement as to whether he genuinely intended to stay in Australia temporarily.

9. On 17 October, 2013 the applicant attended the tribunal hearing.  The tribunal was assisted by a Punjabi-English interpreter.  As the applicant points out, the tribunal emphasised to the applicant that “the most important thing here today… is of course clear communication”.  The tribunal suggested that the hearing proceed in English and that if the applicant needed to refer to the interpreter he could do so.  The applicant agreed to that course.  The hearing proceeded mostly in English, although the applicant called upon the interpreter from time to time.

10. The applicant provided only some of the documents that were requested of him in the letter of invitation.  He did not provide any statement about why he was seeking to undertake his current or intended future course, taking into account the qualifications he had already achieved.  He did provide evidence to the effect that, in addition to his Bachelor of Arts degree and his Advanced Diploma of Hospitality, he had by that time also completed a Certificate IV in Hospitality (Commercial Cookery) and a Certificate IV in Business. The applicant indicated that he was currently undertaking a Diploma of Management course, and that he intended to pursue an Advanced Diploma of Management course in the future.

11. The applicant provided the tribunal with two further certificates of enrolment for a Certificate IV in Business and a Diploma of Management.

12. At the hearing the tribunal asked the applicant why he wished to undertake the Diploma of Management and Advanced Diploma of Management. The applicant indicated that he wanted to go to university, but the fee was too high.  He had been advised by a friend that if he obtained the Diploma and the Advanced Diploma, he would get “credit” for those courses from a university and “half [the] degree will be done with half the amount of money”. He said that Deakin University had “confirmed” it would give him “credit” for the Diploma and the Advanced Diploma. He said “I checked the uni and they are happy to give me credit”. He also said “I had checked everything and wanted to get admission into the degree and then I did investigation and found out that if I do this way I will save a lot of money”.

13. The tribunal twice asked the applicant whether he had any documentary evidence to support his claim that Deakin University had offered to give him “credit” for the Diploma of Management and the Advanced Diploma of Management.  The following exchange occurred between the tribunal, the applicant and the interpreter that was present (pages 10-11 of the transcript of the tribunal hearing):

    Tribunal:what evidence have you got to show me

    *translated*

    * Applicant speaks Punjabi*

    Interpreter:  I will get the credit for that

    Tribunal:Well you’re making an argument, the delegate 18 months ago said that I don't think it will be of much assistance. *translated* So now you've finished the business courses and you proposed to do management courses. *translated*  So you've been aware that there's been an argument that maybe you just keep repeating these courses, they're overlapping, *translated* you say it is of benefit to you and that you have investigated and that you will have an advantage through doing it this way,

    Applicant:Yeah..

    Tribunal:No please let him interpret..

    *translated*

    Tribunal:So what evidence do you have to show me today that supports your assertions.

    *translated*

    Applicant:Ah, but I am not sure that you are going to ask me about this.  Everything mentioned in the letter, I grab and come here already

    Interpreter:  I didn't prepare myself. Because (inaudible - both the Interpreter and Applicant speak) but other things that I read in the letter I prepared myself for that

    Tribunal:No no no no no no no no, Mr Brar. The delegate rejected your application 18 months ago. You provided a copy of the delegate's decision to this tribunal 18 months ago. Or 20 months ago. You have known for 20 months exactly what the department is saying and that there are concerns about the overlap in subjects. So, we are here now, today is your day for the hearing, I would expect you to be fully prepared-to present your arguments, knowing exactly what the issues are. So I say to you, why isn't it that you've got evidence in support.

    *Applicant and Interpreter speak Punjabi*

    Applicant:     Reading the letter these are the things I have provided you.

14. Towards the end of the hearing, the tribunal asked the applicant multiple times whether there was anything else he wanted to say, or documents he wanted to give. The applicant answered “[n]o I think I already provided everything”.  However, the applicant then said “if you want I can contact the university and get that information that after finishing my principal Diploma, what credit I will be able to get if I start my degree here”.  The tribunal indicated that it was not asking him to do so, that it would not delay making its decision, but that if the applicant provided evidence before it made its decision it would take the evidence into account.  The applicant said he would need “at least a couple of days, 3 or 4 days” to “go to the universities” to get the evidence.  The tribunal indicated the applicant could “do it”, but he had “better do it quickly”.  The applicant said he would “try to go today if I can, but it may be tomorrow”.  He then said “I’ll try to get it now and I’ll try to submit to you tomorrow”.

15. Some twelve days later, on Tuesday, 29 October, 2013 the tribunal made its decision.  The applicant had not provided any further evidence to the tribunal nor had he contacted the tribunal any further.

16. On 30 October, 2013 the applicant was notified of the tribunal’s decision to affirm the earlier decision not to grant him a student visa. The tribunal found that:

    a)the applicant had already completed subjects in the management field;

    b)there was no value to the applicant undertaking the Diploma of Management and Advanced Diploma of Management courses, taking into account the qualifications he had already gained;

    c)having regard to the applicant’s failure to enrol in degree level studies, the tribunal did not accept that he intended to pursue a degree level course in the future;

    d)in the circumstances, the tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and he did not therefore meet cl.572.223(1)(a) of the Regulations.

17. In that part of its decision record which summarised the evidence given at the hearing, the tribunal twice summarised the exchange set out at paragraph 16 above as follows:

    [15] The applicant responded stating that he had checked everything. He wishes to obtain entrance to a degree course. He has analysed everything and if he does it this way he will save a lot of money. The Tribunal asked, if he had undertaken such research, what evidence there was in support of his claims. The applicant said that he didn’t prepare himself. The Tribunal noted that similar issues were raised by the delegate in his or her decision in February 2012 and queried why the applicant had not obtained some evidence in support of those assertions. The applicant referred to his desire to undertake an Advanced Diploma of Management course in the future. The Tribunal asked the applicant whether he was repeating units. The applicant said he did not think so, he didn't think he had repeated any subject in the Advanced Diploma of Hospitality.

    …

    [22] … Despite being uncertain as to whether he will pursue studies to a degree level the applicant contends that he has “checked everything” and will save a lot of money “if I do it this way”. When asked what evidence he has to support his claims the applicant said that he didn’t prepare himself. The Tribunal put to the applicant that the delegate’s reasons for decision were fairly clear and that the decision had been made some 18 months earlier. The Tribunal, in issuing the hearing invitation, had also invited the applicant to lodge a written statement and evidence in support of that statement. Despite claiming he had “analysed everything” the applicant presented very little detail at hearing which would satisfy the Tribunal that he had in fact undertaken the analysis he had claimed.

The grounds of review

1. The first ground of review is expressed in the further amended application for review filed on 10 July, 2014 as follows:

   The tribunal erred by taking into account an irrelevant consideration, namely statements of the interpreter immediately after the applicant himself gave sworn evidence in English. Alternatively, the tribunal acted in breach of s363A of the Migration Act 1958 (Cth) by allowing the applicant to be assisted or represented by a person, contrary to s.366A. Alternatively, non-translations by the interpreter gave rise to jurisdictional error under ss 348 and 360 of the Migration Act 1958 (Cth).

2. The applicant submits that a critical issue in this case was the question of whether the applicant could demonstrate that he would benefit from his previous study by way of credits when undertaking a future bachelor’s degree in Australia.  I accept that it was a critical issue.  The tribunal focussed on that matter when it determined whether the applicant was a genuine applicant for entry and stay as a student and in that context, whether the courses proposed by the applicant had value to the applicant’s future.  Relevant to that issue is the exchange that I have extracted above.  It occurred entirely in English.

3. There is no doubt that the tribunal took into account what was said by the interpreter.  I have already extracted the relevant paragraphs of the tribunal’s reasons.

4. I accept that the transcript makes clear that the applicant did not ever give evidence that “he didn’t prepare himself”. Those words were not his. They came from the interpreter and they did not follow upon anything said by the applicant in Punjabi that required translation.  In that sense, I think that the submission that the interpreter was not acting in the role of interpreter when he said them is correct.  The interpreter could only have been adding his own thoughts to what was passing between the applicant and the tribunal member.  If he was interpreting anything, he was interpreting the words spoken in English by the applicant.  That was something that the tribunal member was perfectly capable of doing for himself.

5. The applicant argues that the legal error which flows from the exchange that I have set out above can be characterised in three alternative ways:

   a)first, the tribunal took into account an irrelevant matter, namely the words spoken by the interpreter, when those words were not the applicant’s and were not the product of anything said by the applicant;

   b)secondly, given that the interpreter did not interpret anything said by the applicant when the subject words were spoken by the interpreter, the tribunal must have considered the interpreter to be a representative of the applicant, something which is prohibited by the Act (see ss.363A and 366A(3) and Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413); and

   c)thirdly, departure by an interpreter from what is actually said by an applicant at a tribunal hearing can amount to a denial of a tribunal hearing to that applicant, contrary to ss.348 and 360 of the Act.

6. Of these three matters, only the first has substance.  I do not think that by speaking the offending words the interpreter was acting as the applicant’s representative.  I do not think that on a fair reading of either the tribunal’s reasons or the relevant passage of transcript from the tribunal hearing, the tribunal member treated the interpreter as the applicant’s representative.

1. Moreover, I do not think that the present is a case of mistranslation.  The words spoken by the interpreter were not an interpretation of anything that the applicant had said.  The transcript makes it clear that the whole of the relevant exchange took place in English.  There was no occasion for interpretation from Punjabi to English.  The words spoken were clearly the interpreter’s own words.

2. The applicant argues that a hearing where the interpreter says his or her own words and those words are preferred to the applicant’s is not a fair hearing. In this way, the tribunal did not provide a hearing that was compatible with ss.348 and 360, and in so doing committed jurisdictional error.  I accept that might be so in some cases, but in my view that is not this case.

3. As to the first characterisation suggested by the applicant, however, the interpreter’s statements appear to have been wrongly attributed by the tribunal to the applicant rather than to the interpreter.  The offending statement, “I didn’t prepare myself. Because (inaudible) but other things that I read in the letter I prepared myself for that.” was not a statement made by the applicant.  It was not an interpretation of anything said by the applicant to the tribunal in Punjabi.

4. I accept that the offending statement was irrelevant to the issue to be determined by the tribunal because it did not emanate from the applicant.  The statement was adopted in the reasons of the tribunal on an issue that was critical to the resolution of the applicant’s application.  Taking an irrelevant consideration into account is an error of law.

5. The first respondent argues that context is important, because although the applicant did answer this particular question from the tribunal in English, the interpreter had just translated the tribunal’s question from English to Punjabi, and the applicant had been giving evidence intermittently in English or broken English, Punjabi, and mixed English/Punjabi.  It is therefore unsurprising that the interpreter “translated” the applicant’s answer given in broken English. The first respondent submits: “It is apparent that the interpreter perceived that it would be useful to “translate” the applicant’s answer, or perhaps that the interpreter was “on a roll” so to speak”.  The first respondent argues that the interpreter fairly translated the gist of the applicant’s answer: in effect, the applicant had not been “prepared” to give documentary evidence about the “credit” issue at the hearing, he had only “prepared” to give the evidence requested in the tribunal’s letter of 13 September, 2013.

6. But none of these matters have substance.  The fact remains that whatever the applicant said in English himself (broken or otherwise) could, and was to be “interpreted” and assessed by the tribunal member alone.  According to the transcript promulgated by the first respondent, the applicant spoke no Punjabi during the relevant exchange.  The Punjabi interpreter had no part to play in that process.

7. In my view, however, taking into account what the interpreter said did not affect the tribunal’s decision.  The applicant’s own statements were consistent with him not having been prepared to provide evidence that a university would allow him the subject credits in the event that he enrolled in a degree course. 

8. His evidence about his unpreparedness on that issue was restated, in substance, on numerous occasions throughout the hearing and as the first respondent points out, underlay the applicant’s late request for more time to obtain such documents.

9. I accept the first respondent’s submission that the applicant’s first ground of review should be rejected.  I accept the first respondent’s submission that the applicant had not brought to the hearing any documentary evidence to support his claim about Deakin University and the credits he might receive from his previous study in a degree level course at the university.  The use made by the statement of the interpreter set out above was neither here nor there on that issue, notwithstanding the tribunal’s wrongful attribution of that statement to the applicant in its reasons. 

10. The second ground of review is expressed in the further amended application for review filed on 10 July, 2014 as follows:

    2. The tribunal erred by acting unreasonably in that it:

    a. failed to adjourn the hearing until the Applicant had a reasonable time to obtain and provide documentary evidence from a tertiary institution that his prior study would be credited in a future degree course;

    b. alternatively, gave no weight or rejected the sworn oral evidence of Mr Brar about the same topic without explanation.

11. Before dealing with this ground, it is necessary to deal with an application the applicant that he might have leave to rely upon an affidavit deposed by him and filed on 27 June, 2014.  In that affidavit he deposes to certain facts that occurred after the tribunal hearing.  He seeks to give an explanation as to why he did not provide further documents to the tribunal following the tribunal hearing.  The first respondent opposes the applicant’s reliance upon that evidence. 

12. I accept the first respondent’s submission that whether it was unreasonable for the tribunal to proceed to make a decision on the review when it did can only be assessed by reference to the material before the tribunal when it made its decision, and not by reference to material that was not before the tribunal, let alone evidence about events that had not even occurred at the time of the tribunal’s decision

13. The applicant’s affidavit is irrelevant and therefore inadmissible.  I refuse the leave sought by the applicant.  I have paid no attention to that further evidence sought to be relied upon by him. 

14. The first limb of this ground focuses upon the discretion indisputably reposed in the tribunal to adjourn the review before it and permit the applicant to place further material before the tribunal in support of his claims.

15. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 the High Court explained that the tribunal’s discretionary power to adjourn a review under s.363(1)(b) of the Migration Act must be exercised reasonably. The requisite standard of reasonableness is informed by the “true construction of the statute” (Li at [67]) and in the present context by s.353 of the Migration Act which provides that the tribunal shall pursue the objective of providing a mechanism of review that is “fair, just, economical, informal and quick”. I accept the first respondent’s submissions that it is also informed by s.360 of the Migration Act, the purpose of which is to ensure that a visa applicant is given an opportunity to present evidence and arguments relating to the issues arising in relation to the decision under review: Li at [59] – [62], [80] and [83].

16. However, the plurality (Hayne, Kiefel and Bell JJ) in Li cautioned that applying a standard of legal reasonableness did not involve substituting a court’s view as to how a discretion should be exercised for that of the administrative decision-maker.  The discretion is for the tribunal to exercise and, drawing an analogy with appellate review of a judicial discretion, before a court interferes with the exercise of that discretion “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 account”: Li at [75].

17. I have before me a transcript of the hearing before the tribunal.  The transcript reveals how this issue arose.  The following parts of the transcript (to be found as annexure “A” to the affidavit of Bromley Hornsby filed on 16 July, 2014) are relevant:

    Tribunal:OK, just… you completed your degree 5 years ago, your Bachelor's degree, and you've still not attained a similar education qualification, in Australia. So why haven't you progressed further.

    *Applicant and Interpreter speak mixture of Punjabi and English*

    Interpreter:      I went to find out university but the fee was too high, 50,000, 60,000, one of my friend advised me if I do this Diploma, Advanced Diploma I will get credit to the course *Applicant says: and half degree will be done* and half degree will be done,

    Applicant:With half the amount of the money.

    Tribunal:     OK most people will rely on experts to give them advice rather than friends. So have you got this confirmed from a university that you will be given credits

    Applicant:Yes I do sir

    Tribunal:Which university?

    Applicant:That was Deakin, and then I went to Bundoora campus [inaudible] and I matched their units. I matched all the units.

    Tribunal:wait a minute, you've done a range of studies. Obviously if you study medicine you won't be given credit from hospitality management. So you would go to a university and say if I did this course, would I get, possibly, because they won't tell you in advance definitely, will I likely get credit for these sorts of subjects. So what specifically did you ask the uni about?

    Applicant:Because my plan is to do Bachelor in Business and all courses are related to that and I checked the uni, and they are happy to give me the credit [inaudible]. But the second thing is the family thing. Because I have two another brothers and when I finished this course, Advanced Diploma, I go back to India and help my father and things and look how Indian industry is going, hospitality, and might be opening restaurant or something. And yeah if I feel comfortable and enough money to survive, I no bother with the degree after that.

    …

    Tribunal:Now there were issues raised by the delegate in terms of the crossover of subjects. The delegate suggested that you had already undertaken numerous units in the advanced Diploma of hospitality, which would overlap or would assist you in managing a business. So you've done the advanced Diploma of hospitality you've got subjects that would assist you in managing a business. They then said that there'd be the overlap with subjects you intend to take in the Certificate IV in Business and the Diploma of business, that was the delegate.  Now, sorry I’ll just repeat that. The delegate said you had undertaken numerous subjects in the advanced Diploma in Hospitality that would assist you in running a business.

    *translated*

    Tribunal:The delegate considered that there would be an overlap with subjects

    *translated*

    Tribunal:between the advanced Diploma in Hospitality and the Certificate IV in Business and Diploma in Business.

    * Applicant speaks Punjabi*

    Interpreter:  I had checked everything and wanted to get admission into the degree *Applicant speaks mixture of Punjabi and English* and then I did investigation and found that if I do it this way I will save a lot of money.

    Tribunal:what evidence have you got to show me

    *translated*

    * Applicant speaks Punjabi*

    Interpreter:  I will get the credit for that

    Tribunal:Well you’re making an argument, the delegate 18 months ago said that I don't think it will be of much assistance. *translated* So now you've finished the business courses and you proposed to do management courses. *translated*  So you've been aware that there's been an argument that maybe you just keep repeating these courses, they're overlapping, *translated* you say it is of benefit to you and that you have investigated and that you will have an advantage through doing it this way,

    Applicant:Yeah..

    Tribunal:No please let him interpret..

    *translated*

    Tribunal:So what evidence do you have to show me today that supports your assertions.

    *translated*

    Applicant:Ah, but I am not sure that you are going to ask me about this.  Everything mentioned in the letter, I grab and come here already

    Interpreter:  I didn't prepare myself. Because (inaudible - both the Interpreter and Applicant speak) but other things that I read in the letter I prepared myself for that

    Tribunal:No no no no no no no no, Mr Brar. The delegate rejected your application 18 months ago. You provided a copy of the delegate's decision to this tribunal 18months ago. Or 20 months ago. You have known for 20 months exactly what the department is saying and that there are concerns about the overlap in subjects. So, we are here now, today is your day for the hearing, I would expect you to be fully prepared-to present your arguments, knowing exactly what the issues are. So I say to you, why isn't it that you've got evidence in support.

    *Applicant and Interpreter speak Punjabi*

    Interpreter: Reading the letter these are the things I have provided you.

    …

    Tribunal:Well I don't know if you're answering the question. I am putting it to you that you have provided details of subjects in the advanced Diploma of hospitality, they include management, business and personnel.

    *translated*

    Tribunal:So what will you gain in your future courses, that you haven't got already.

    Applicant:Because I'm leading to degree (speaks Punjabi).

    Interpreter:  Because I want to do a degree after that

    Tribunal:Do you think you've answered the question Mr Brar?

    *Applicant speaks Punjabi*

    Interpreter:  I didn't understand this question properly and I don't think I am answering properly.

    Tribunal:Mr Brar then stop, stop looking at other documents. This is not a difficult concept *translated*. The delegate refused to grant you a visa 18 months or 20 months ago *translated*. The delegate said you're not a genuine student because you gonna do the same subjects in the past pretty much, you've already done *translated*. Now you are proposing to do further studies, *translated* further studies in management and I put to you, should I consider you've already done subjects in management so you're not a genuine applicant for entry and temporary stay in Australia.*translated*

    * Applicant speaks mixture of Punjabi and English*

    Interpreter:  When I went to enquire about the degree, I was told that if I had done any of those subjects or units [inaudible] I would get a credit for that.

    Tribunal:and it's not just that you're attempting to extend your stay in Australia?

    Applicant:No as I mentioned (speaks Punjabi).

18. It is clear from those extracts from the transcript that the applicant was clearly advancing a case that he would use subjects already studied (or which he proposed to study at the Diploma and Advanced Diploma level) to obtain credits in a bachelor’s degree course at a university.

19. The suggestion by the tribunal member that the delegate who initially determined the applicant’s visa application had raised the question of credits to be given for subjects in a bachelor’s degree course at university with the applicant does not appear to be correct.  Certainly the delegate was concerned about the value to the applicant of the courses that he intended to study having regard to the course that he had already completed, but the question of credits for a university level course was not considered.  That, no doubt, is because the applicant did not raise that as a reason for wishing to undertake further study at the diploma or advanced diploma level at that stage.

20. Further, whilst it is correct to say that the tribunal wrote to the applicant seeking further information on 13 September, 2013 that letter did not request the applicant to provide any documents which supported his assertion that he would be able to obtain credit in a university level degree course for subjects completed in the diploma and advanced diploma courses that he intended to undertake.  The particular documents sought by the letter from the tribunal to the applicant are set out in the letter quite specifically.  None of the items requested in the letter are apt to cover the documents which the tribunal sought when it said: “what evidence have you got to show me” in response to the applicant’s evidence: “I had checked everything and wanted to get admission into the degree … and then I did investigation and found that if I do it this way I will save a lot of money..” and later when the member said: “So what evidence do you have to show me today that supports your assertions”.

21. It is clear from the transcript of the tribunal hearing that the applicant asked the tribunal to postpone making its decision until he had obtained and provided to the tribunal some further documents from Deakin University which established his claim that he would receive credit for his diploma level subjects.  It is also clear that the tribunal understood the applicant’s request for a postponement.  The tribunal records its understanding in paragraph 17 of the tribunal’s reasons:

    17.    At the end of the hearing the applicant said that he could contact the university to get information about what credits he would receive after finishing the diploma. The tribunal noted that the delegate’s decision was made in February 2012 and that the tribunal had written to the applicant sometime earlier. In that context the tribunal did not agreed to postpone making a decision however the applicant was advised that any information received by the tribunal prior to making a decision would be considered.

22. The exchange between the tribunal member and the applicant at the conclusion of the hearing is important.  It is as follows:

    Interpreter:  OK, but I'm going now, but when my decision is coming?

    *translated*

    Tribunal:I can't give you a date at this stage, it may be that we seek verification of the financial documents, it may be that I make a decision tomorrow on the basis of your academic history and whether you are a genuine applicant for entry and temporary stay in Australia as a student.

    * Applicant speaks in Punjabi *

    Interpreter:  I'll go now, I'll try to get it now and I'll try to submit to you tomorrow, if the decision is made by that time it's my bad luck.

    Tribunal:Right we are clear on that point. Now I'll ask that those be photocopied and we'll return the originals to you so don't go, stay outside in the waiting room and we will return these documents to you. Thank you for coming in today Mr Brar and thank you again Mr Interpreter your services are once more appreciated. We'll finish up there thank you.

23. The request for a postponement so as to provide further information was important because it went to an issue that the tribunal considered central to the application.  The tribunal concluded that:

    24.    On the basis of the evidence before it the tribunal does not accept that the applicant will gain particular skills in management or business that he has not already attained in Australia. On the contrary, the tribunal considers that the applicant is attempting to extend his stay in Australia. He arrived in Australia in June 2009 and has completed those courses set out above at paragraph 19. The tribunal does not consider there is any particular value to the applicant in undertaking the Diploma of Management and Advanced Diploma of Management courses taking into account the qualifications he has gained. Similarly, although not enrolled in any further business courses, the applicant indicated at one point during the hearing that he wished to undertake an Advanced Diploma of Business followed by a Bachelor of Business degree. Taking into account the time since his arrival in Australia and the applicant's failure to pursue studies at a degree level, partially on account of cost factors, the tribunal does not accept that the applicant would intend to pursue a degree level course in Australia in the future. His proposed studies are of little value to him.

24. I accept the applicant’s submissions that the transcript reveals that on five occasions in the final minutes of the hearing, the tribunal member emphasised that he would not wait for any documents that bore on the subject credit issue from the applicant before making his decision.  Indeed, he foreshadowed that he may make his decision the following day.

25. The tribunal’s decision was made twelve days later.  There is nothing to suggest that the applicant was told by the tribunal that the decision was not to be made on the day following the hearing, or when it was likely to be made.  The applicant did not provide any further documentation to the tribunal.  In the circumstances, that is understandable.  Whilst the tribunal indicated to the applicant that it would consider any documents that he chose to put before the tribunal before it made its decision, the tribunal member was unwilling to tell the applicant when a decision was to be made or to fix a period in which documents might be provided to the tribunal.  In those circumstances the applicant was entitled, in my view, to consider that any effort to secure the relevant documentation and provide it to the tribunal was likely to be futile because a decision on his application was imminent.

1. To the extent that the first respondent now argues that the tribunal waited twelve days before making its decision and thereby granted the adjournment or postponement sought by the applicant, I reject that submission.  Whilst I accept that it was plainly not “legally unreasonable” for the tribunal to proceed to determine the review, rather than waiting for some indefinite period in the hope that the applicant might eventually provide documentary evidence to support his claim, that the tribunal member gave to the applicant no indication that there would be time to submit further material.  On the basis of the hearing transcript, there is no reasonable basis upon which it might  be said that the applicant was aware that he was being given a period of time in which he had the opportunity to place further documentary material before the tribunal that bore on the subject credit issue.  He had no means of knowing that there was going to be a delay of the length there was before the tribunal made its decision. 

2. The decision not to grant the applicant an adjournment, or alternatively to fix a period in which the applicant might have had the opportunity to provide further documents to the tribunal, to provide the documents requested by the tribunal, was a legally unreasonable exercise of the discretionary power in s.363 of the Act.  Alternatively to grant the applicant the opportunity to provide further documents to the tribunal but not tell him that was what was occurring, or the length of time during which that opportunity existed, was a legally unreasonable exercise of the discretionary power in s.363 of the Act.  I come to those views because:

   a)the tribunal had raised the question of documentary support for the applicant’s case about subject credits;

   b)the tribunal knew that the applicant did not have the relevant documents to give to the tribunal at the hearing;

   c)the tribunal knew that the applicant wanted to obtain documents to give to the tribunal as it had requested;

   d)the applicant told the tribunal that he could get them and that he could get them relatively quickly – within 3 - 4 days;

   e)the tribunal member told the applicant that whilst he would consider any documents the applicant could put before the tribunal, he would not wait for them and that he might make a decision on the application “tomorrow”;

   f)the tribunal member did not tell the applicant that he might have a much longer period to get the relevant documents together and give them to the tribunal; and

   g)the provision of further documents on the subject credit issue was not futile - the provision of some documentary corroboration of the applicant’s claims about subject credits was clearly something of critical interest to the tribunal.

3. In those circumstances, any reasonable person, in my view, would have formed the view that there would be no purpose to be served by even attempting to obtain the corroborative documents sought because a decision on the application was imminent.

Conclusion

1. In my view, the second ground of review has merit. In the circumstance described above the tribunal has failed to conduct a review according to law because the tribunal failed to discharge its statutory function of review by failing to afford the applicant a proper opportunity to present his case.

1. I make the orders set out at the commencement of these reasons

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 November 2014.

Deputy-Associate: 

Date: 18 November 2014