Callegos Mendoza v Minister for Immigration
[2016] FCCA 1142
•13 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALLEGOS MENDOZA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1142 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – allegation of apprehended bias – whether the Tribunal failed to comply with its Statutory duty – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359AA, 359A, 424A, 476 Migration Regulations 1994 (Cth), reg.1.40A |
| Cases cited: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 |
| Applicant: | FERNANDO LEON CALLEGOS MENDOZA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1635 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 17 March 2016 |
| Date of Last Submission: | 29 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2016 |
REPRESENTATION
| Solicitor for the Applicant: | Mr R Turner of Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 16 June 2014 and amended on 16 October 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1635 of 2014
| FERNANDO LEON CALLEGOS MENDOZA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 16 June 2014 and amended on 16 October 2014 seeking review of the decision of the Migration Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 22 May 2014, which affirmed the decision of the Minister’s delegate not to grant the applicant a student visa (“the visa”).
The evidence before the Court is contained in the bundle of relevant documents filed by the Minister (“the Court Book” – “CB”), and the affidavit of Mary Elinor Corkhill, transcript specialist, made on 14 October 2014 filed by the applicant, which annexed a transcript (“T”) of the hearing before the Tribunal.
Background
The following background can be ascertained from the Court Book. The applicant is a citizen of Colombia born on 3 April 1962 (CB 1). He first arrived in Australia on 18 February 2006 as the holder of a student visa (CB 47). He subsequently applied for, and was granted, a further four student visas, making in total five student visas that he had been granted. The last such visa was granted on 19 January 2012 and ceased on 8 February 2013 ([2] at CB 92).
The applicant applied for a further student visa on 17 January 2013 (CB 1 to CB 7). This was refused by the Minister’s delegate on 1 March 2013 (CB 41 to CB 49). The delegate was not satisfied that the applicant genuinely intended a temporary stay in Australia (CB 47).
The applicant applied for review to the Tribunal on 19 March 2013. He was assisted by a registered migration agent (CB 50 to CB 63). He was invited to a hearing by letter dated 11 April 2014 (CB 67). He and his representative attended the hearing on 22 May 2014 (CB 90).
The Tribunal affirmed the delegate’s decision on 22 May 2014 (CB 97 to CB 100). It was a criterion for the visa for which the applicant had applied that, at the time of the decision, he must be enrolled in, or be the subject of a current offer of enrolment in, a principal course of study, that was specified in reg.1.40A of the Migration Regulations 1994 (Cth) (“the Regulations”).
The Tribunal found that at the time of its decision there was no evidence before it that the applicant was enrolled, or had a current offer of enrolment, in any applicable course of study ([17] at CB 100). The Tribunal recorded in its decision record that at the hearing the applicant gave evidence that he was not at the time enrolled, or had an offer of enrolment, in a requisite course of study ([8] at CB 98). The transcript of the hearing, at T2.5 is relevant to this (see further below).
Application Before the Court
The applicant applied to this Court for review of the Tribunal’s decision on 16 June 2014. The application was prepared by a solicitor whose firm continues to represent the applicant now.
At this time, there was one ground of the application “[t]he Tribunal failed to carry out its Statutory Duty”. The particulars assert a breach of s.359A of the Act in relation to its alleged failure to put to the applicant certain items of information (as set out at particular (b) to the ground). For current purposes I note that none of the itemised matters relate to a certificate of enrolment, or an offer of enrolment.
On 6 August 2014 orders were made by the Court, by consent of the parties, for the progress of the applicant’s case. Relevantly, the applicant was given until 17 September 2014 to file any amended application. Liberty was also granted to the parties to apply for further directions on three days’ notice.
Further orders were made by consent on 10 October 2014 extending the time until 17 October 2014 for the applicant to file and serve his amended application. Such an application was filed on 16 October 2014. It was again prepared by the applicant’s solicitors. It was in the following terms:
“The Tribunal's decision is affected by apprehended bias
Particulars
a. The Tribunal was aware that the Applicant was not the subject of a Current Certificate of Enrolment from an Approved Course
b. The Tribunal failed to give the Applicant an opportunity to rectify this position
c. The Tribunal held it's hearing on 22 May 2014 commencing at 12.04 p.m. and ceasing at 12.45 p.m. CB92
d. The decision was made on 22 May 2014 some time after 12.45 and faxed to the Applicant's Representative on 23 May 2014 at 11.32a.m.
e. The defect in the Applicant's application could have been readily rectified had he been given a real opportunity to do so”
That application also contained one ground. However, the jurisdictional error was said to be that the Tribunal’s decision was affected by apprehended bias. The particulars assert that the Tribunal was aware that the applicant was not the subject of a current certificate of enrolment in an approved course. The allegation of an apprehension of bias appears to arise from the assertion that, in these circumstances, the “defect” in the applicant’s application (the lack of certificate, or offer, of enrolment) could have been rectified if he had been given a real opportunity to do so.
The applicant filed written submissions in this matter on 2 March 2016. Those submissions briefly addressed the ground of the amended application.
The written submissions foreshadowed that at the hearing before the Court the applicant would seek leave to yet further amend his application by adding a second ground. That proposed ground was said to be that the Tribunal failed to carry out its statutory duty. The submissions identified three items of information which were said to have been part of the Tribunal’s reason for affirming the delegate’s decision ([13] of the applicant’s written submissions):
“The Tribunal had the following information which was part of the reason for affirming the decision:
a. that the Applicant had been in Australia for 8 years;
b. that the Applicant had withdrawn from courses and received a refusal
c. that the Applicant was not studying.”
The complaint was that the Tribunal failed to comply with its obligation pursuant to “s.424A of the Act” ([14] of the applicant’s written submissions). Further, that when dealing with this information at the hearing, the Tribunal failed to advise the applicant that he could seek additional time to respond to or comment on the information.
At the hearing of this matter before the Court the applicant was represented by his solicitor. The applicant sought leave to further amend the application.
It is quite clear that if leave had been granted for the application to be amended with the addition of the ground as proposed in the written submissions, that “ground” would fail to reveal jurisdictional error. That is because s.424A of the Act, while analogous, did not apply to the review of the delegate’s decision by the Tribunal.
At the hearing, the applicant, through his legal representative, ultimately sought leave to further amend his application by adding a ground which sought to allege legal error because of a breach of s.359A and s.359AA of the Act.
It must be said that it has now become common in migration and protection visa matters for legal practitioners representing applicants to seek to amend applications either on the eve of a final hearing, or at the hearing itself. On occasion, requests for yet further amendment have occurred well into the final hearing.
This also has usually occurred in circumstances where the initial application to the Court has been prepared by a legal practitioner. In the current case the applicant was given the opportunity to amend his application, which he did on 16 October 2014. His legal representatives then had approximately 18 months to prepare for the final hearing. It is not acceptable that, without leave, attempts are made to further amend the application close to the time of the hearing.
In the current case, even beyond that circumstance, the ground proposed, prepared by a legal practitioner, was, as set out above, bound to fail. Even further, there was some difficulty at the hearing in the applicant articulating the exact terms of the proposed yet further amendment to the application. Ultimately, I understood the additional ground to involve an assertion of a breach of s.359A and s.359AA of the Act and that the particulars to the ground were similar particulars as in the original application (and not as foreshadowed in the written submissions) (see further below).
Nonetheless, at the final hearing I agreed to the applicant presenting a written version of his proposed amended application (which was done on 29 March 2016) because the proposed ultimate amendment bore, some albeit passing, relationship to what had initially been pleaded. The basis for that agreement was that I would hear argument on the proposed ground, review the written version of the ground, and then decide whether leave was to be granted (see further below).
The proposed ground is in the following terms:
“The Tribunal failed to comply with its Statutory Duty
Particulars
a. The Tribunal had three pieces of information which were part of the reason for affirming the decision:
i. That the Applicant was not studying and had not studied for a period of 18 months;
ii. He continued to engage in work as per the Student Visa requirements despite his lack of study
iii. He had been in Australia for 8 years
b. The Tribunal failed to give the Applicant clear particulars of this information, explain why it was relevant and give him an opportunity to comment on it.
The Tribunal, therefore, failed to comply with the Migration Act 1958 s. 359A
c. When dealing with this information orally at the hearing, the Tribunal failed to advise the Applicant that he may seek an additional time to comment or respond to the information
The Tribunal, therefore , failed to comply with the Migration Act 1958 s. 359A”
Consideration
Ground one of the application asserts an apprehension of bias. The basis for this was, at best and ultimately, explained to be that the Tribunal knew prior to the hearing before it that the applicant did not have a current enrolment in an approved course and should have told the applicant prior to the hearing that he required such an enrolment, and therefore give him the opportunity to “rectify” the situation.
Further, that the Tribunal should have told the applicant of this at the hearing, and given him more time to “rectify” the situation, and not proceed to make a decision on the review until he had had an opportunity to do so.
The applicant submitted that the Tribunal’s failure to do any of these things, enables the well informed lay person to see that the Tribunal did not bring an open mind to the proceedings. That is, it was not “attuned to assisting the applicant”, but was focussed on finding a way to affirm the decision.
The test for apprehended bias is well established (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
at [27] – [32]):
“[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of ‘a fair-minded lay observer’ when, as is the case with the Tribunal, proceedings are held in private.
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
[29] Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
[30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
[31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
[32] In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the Tribunal against the male prosecutor. And because the female prosecutor's application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case.”
The applicant’s complaint brings into focus the role of the Tribunal. The applicant emphasises that the test for the apprehension of bias is in great part made out because the Tribunal failed to give certain advice to the applicant.
As the Minister submitted, this misconceives the role of the Tribunal. The Minister relies on what he says Kirby J said in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187] [I note that [187] is part of the judgment of Gummow and Hayne JJ]:
“… The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”
It is important to note that the applicant’s ground is an assertion of the apprehension of bias. While bias is part of the natural justice hearing rule, plainly the focus is on the apprehension of the well informed lay observer of the Tribunal’s state of mind as that can be discerned from its conduct.
The applicant, with legal advice, has elected not to proceed with any assertion of legal unreasonableness on the part of the Tribunal (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437). The complaint that the Tribunal should have adjourned and given the applicant more time is not put in support of a claim that the Tribunal’s exercise of jurisdiction miscarried because it unreasonably refused to adjourn the review to enable the applicant to “rectify” the situation.
In any event, on the evidence, there is nothing to say that the applicant or his migration agent ever made any such request to the Tribunal. While the applicant told the Tribunal at the hearing (see T9.10) that it was always his intention to study in Australia, and that he had been studying (at least for some of the time he was in Australia), there was no request for more time to provide the necessary certificate of enrolment or any relevant offer of enrolment.
In this regard, I note that the evidence was that the course for which the applicant had been enrolled, and from which he had withdrawn, was nearly concluded. There was no evidence, apart from a general assertion that he wanted to study, that he had some specific course in mind for which he wanted time to arrange enrolment.
The role of the applicant’s agent is also relevant here. When asked to make submissions, the representative responded (T9.6):
“When I want to profess to him what happened when he was rejected, I was not his agent at that time. He came to me after and the agent from the course … when he paid the money for the course, his name was withdrawn from the course.
And … um I have … … is that he says if its granted he will go back to the same course.”
There is no evidence before the Court that the applicant was represented by an agent at the time his application was refused by the delegate. The agent’s submission and explanation as to these earlier events remained unclear.
In any event, the Tribunal was reasonably entitled to proceed on the basis that a registered migration agent would have known that a critical element in obtaining the grant of a student visa was evidence of enrolment in, or an offer of enrolment in, an approved course of study.
I agree with the Minister that a well informed lay observer may reasonably apprehend that the applicant’s migration agent who appears to have taken an active part in the review before the Tribunal should have accepted responsibility for ensuring the applicant met a key requirement for the grant of the visa.
Further, nor can it be said that the applicant was a “novice” in applying for, and obtaining, student visas in Australia. He had done so on many previous occasions. The fair minded lay observer may well expect the applicant to have acted in a similar fashion to how he had proceeded in the past. That is, a well informed lay observer may reasonably apprehend that an applicant who had applied for and successfully been granted a number of student visas would know of the central importance of providing evidence of enrolment or an offer of enrolment.
I cannot see that there is anything in the Tribunal’s conduct such that a fair minded lay observer might reasonably apprehend that the Tribunal did not bring an open and impartial mind to the conduct of the review and its disposition. Ground one is not made out.
The additional ground of the proposed further amended application asserts a breach of s.359A of the Act (see [22] above). As stated above, the applicant identifies what he says are three items of information which were “caught” by the obligation in s.359A of the Act such as to require the Tribunal to put this information to the applicant in writing for comment or response (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162). The applicant contends that the Tribunal did not do this, and further did not properly employ s.359AA of the Act to meet its obligation orally at the hearing.
In oral submissions before the Court, the applicant sought to emphasise the Tribunal’s exchanges with the applicant at the Tribunal hearing for the purpose of showing that the Tribunal did not comply with s.359AA of the Act in discharging its obligation. This included the matters of his having been in Australia for eight years and that he had been refused the grant of a visa. This latter matter was not itemised in the particulars to the ground.
The applicant’s written submissions (see at [13]) which foreshadowed the proposed further amended application also differed in the identification of the items of information which he said revealed a breach of s.359A of the Act.
Particular (a)(i) of proposed ground two identifies one item as being that the applicant was not studying, and had not studied for 18 months. Item (c) at [13] of the applicant’s written submissions makes no reference to 18 months.
Particular (a)(ii) of proposed ground two identifies a second item as being that the applicant continued to engage in work despite his lack of study. Item (c) at [13] of the applicant’s written submissions refers to the applicant not studying, but makes no references to work. Item (b) at [13] of the applicant’s written submissions refers to the applicant having withdrawn from “courses”, which may have some link to particulars (a)(i) and (ii) of proposed ground two. What is meant by “received a refusal” at item (b) at [13] of the applicant’s written submissions was, in light of the oral submissions, a refusal of the grant of the visa.
Particular (a)(iii) of proposed ground two identifies a third item as being that the applicant had been in Australia for 8 years. This is the same as item (a) at [13] of the applicant’s written submissions.
The approach in the applicant’s proposed ground overlooked the nature of s.359AA of the Act and its relationship with s.359A of the Act. Section 359AA of the Act is a facultative mechanism by which the Tribunal may discharge its obligation arising from s.359A(1) of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
In the current case the applicant was unable to establish that the information he now relies upon, both in written submissions and the proposed ground of the further amended application, was caught by the obligation in s.359A(1) of the Act so as to then rely on arguments asserting error in the application of s.359AA of the Act.
In relation to the items identified in the submissions, information that the applicant had been in Australia for 8 years and that he had withdrawn from courses and had been refused a visa, and that he was not studying, was not information that can be said to be what the Tribunal considered would be the reason, or a part of the reason, for the affirming the delegate’s decision.
On the evidence before the Court, the Tribunal’s sole reason for affirming the decision, on any plain reading let alone a fair reading of its decision record, was that the applicant was unable to satisfy the regulatory requirement for the grant of the visa, in that he was enrolled, or was the subject of a current offer of enrolment, in an applicable course of study.
The applicant has been unable to otherwise prove that the Tribunal actually considered that these items of information would be the reason or a part of the reason for affirming the delegate’s decision (Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [24]). That alone is sufficient to dispose of the first two items and that part of the particulars to the ground to which they are similar. Even further, all three items of information identified by the applicant now fell within the exceptions at ss.359A(4)(b) or (ba) of the Act from the obligation in s.359A(1) of the Act.
This is the same for the items as particularised in the proposed amended ground (provided to the Court on 29 March 2016). First, that the applicant had been in Australia for 8 years (particular (a) at item (iii)). The applicant had provided dates for his arrival in Australia in a submission to the Tribunal dated 15 May 2014 (CB 72.8). This, therefore, falls within the exception at s.359A(4)(b) of the Act from the obligation in s.359A(1) of the Act. Further, the applicant confirmed to the Tribunal at the hearing that he had been in Australia for 8 years (see T8.2).
The information that the applicant continued to work “despite his lack of study” (particular (a) at item (ii)), was also given to the Tribunal for the purposes of the review. The applicant told the Tribunal after he had been refused a visa that he had not continued to study (see [8] at CB 98 and T2.4), and continued to work ([9] at CB 98 and T4). The applicant’s representative told the Tribunal at the hearing that he had withdrawn his name from the courses listed in his current application for the visa (see [14] at CB 99 and T9.6).
The information that the applicant was not studying and had not studied for some time (particular (a) at item (i)) was given by the applicant to the Tribunal at the hearing (see [8] at CB 98 and T2). This also falls within the exception in s.359A(4)(b) of the Act.
As the obligation in s.359A(1) of the Act was not engaged, then particulars (b) and (c) do not assist the applicant’s ground given they rely on the engagement and operation of s.359AA of the Act.
Given the circumstances above as to the presentation of the proposed ground, and importantly given its lack of merit in raising an arguable case, it is not in the interests of justice to grant leave to the applicant to further amend his application. Leave is refused.
Conclusion
In all, the sole ground of the application is not made out. It is appropriate to dismiss the application. I will make that order accordingly.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 13 May 2016
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