Chisengalumbwe v Minister for Home Affairs

[2020] FCCA 952

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHISENGALUMBWE & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 952

Catchwords:
MIGRATION – Student visa – whether Tribunal failed to consider relevant matters, whether Tribunal hearing affected by bias – whether Tribunal erred in applying genuine entrant test – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth) cl.500.212 to Sch.2

Cases cited:

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs

(2003) 199 ALR 364

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 668

VFAB v Minister for Immigration and Multicultural and Indigenous Affairs

(2003) 131 FCR 102

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

First Applicant: NGOZA MAKAYA NAMUCHIMBA CHISENGALUMBWE

Second Applicant: CLIFFORD MILENBA CHISENGALUMBWE

Third Applicant: MCKAYLA MAMBWE CHISENGALUMBWE

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1488 of 2018

Judgment of: Judge Heffernan

Hearing date: 21 February 2020

Date of Last Submission: 21 February 2020

Delivered at: Adelaide

Delivered on: 24 April 2020

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr A Chan

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicants are to pay the costs of the first respondent as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

MLG 1488 of 2018

NGOZA MAKAYA NAMUCHIMBA CHISENGALUMBWE

First Applicant

CLIFFORD MILENBA CHISENGALUMBWE

Second Applicant

MCKAYLA MAMBWE CHISENGALUMBWE

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 10 May 2018, which affirmed an earlier decision of a delegate of the Minister for Immigration refusing to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’). The application was filed within time, and alleged a single compendious ground, which I have re-produced verbatim below:

   “My proof/reasons given are genuine, true and valid.  All courses previously were two years Diploma, not one year. I studied/completed courses stated and only deferred to study nursing.  Thereafter nursing college was closed.  On a spouse visa as a dependent, I was not entitled to study more than three months.  Those are the gaps stated.  The member, Stephen Wiltts [sic], did not take into consideration that as a dependent, only my husband was studying.  The hearing seemed as though decision was already made before the meeting, as everything was questioned without properly explaining myself, and words put in my mouth, I was anxious and confused.  My dad sent a statutory declaration confirming my return after the course, that wasn’t taken into consideration.  If I had a representative, my case would have gone different, with a positive outcome.  I did not study during all those gaps because I was not a student but dependent.”

Procedural background

1. On 21 August 2019, a Registrar made orders giving leave to the applicants to file and serve an Amended Application by 18 October 2019.  Leave was also given to file such further material that the applicants may seek to rely on by 18 October 2019.  The applicants were ordered to file and serve an outline of submissions 28 days prior to the final hearing, and the parties were given liberty to apply to the Court for further directions if required.

2. An Amended Application was not filed within time, nor was any further material filed within time.

3. Prior to the hearing of this matter, the applicant sent an email to the Court seeking an adjournment of the hearing.  Before doing so, the first applicant had already written to the first respondent seeking support for an adjournment.  The ground for the adjournment was that the first applicant had sought legal advice, and had been told that there was insufficient time for advice and representation to be obtained prior to the date of the hearing.  The applicant was advised by my chambers that an order for an adjournment would not be made from chambers, and that she should attend at Court, anticipating that the matter would proceed to a final hearing.

4. When the matter was called on, I reminded the first applicant of her correspondence with the Court, and asked her to explain to the Court why it was she sought an adjournment.  She spoke on behalf of herself and the second and third applicants.  She repeated that she had not been able to obtain legal advice.  She told the Court that she had first inquired with a lawyer through a 24-hour advice line about a month ago.  The lawyer was based in Sydney, and she was told that more time would be required.  The applicant did not produce any evidence to demonstrate that she had actually retained the services of a solicitor, and nor was she able to give any indication as to how long would be required for her to properly obtain representation.  The application to adjourn was opposed by the first respondent on the basis that the applicants had had sufficient time to obtain representation if they sought to do so.  I refused the adjournment application.  I am satisfied that the applicants have had sufficient time to obtain legal representation if they had been minded to do so.  This application was filed on 29 May 2018, and as I have noted, the date for hearing was set on 21 August 2019.  The first applicant left her inquiries as to legal representation very late, and I am satisfied that the greater public interest lies in the efficient disposition of proceedings before this Court.

5. After having sent that correspondence to the Court, the first applicant then submitted a document that had the appearance of an outline of submissions, but which also raised further grounds.  The first respondent opposed the first applicant relying on those grounds, insofar as any of them were additional grounds, on the basis:

   a)that the applicants had not complied with the order of the Registrar for the filing of an Amended Application,  and

   b)that the grounds themselves lacked merit.

6. In the submission of the first respondent, paragraphs 2, 4, 5 and 6 amounted, in effect, to additional grounds of review. 

Consideration of merits of proposed new grounds

1. Whilst the document I have referred to is somewhat lengthy, it is appropriate to include the whole text of it, on the basis that, as the first respondent has submitted, it raised additional grounds.  The document states as follows:

   “I write to state Jurisdictional error regarding my case and reasons I believe and know their [sic] was Jurisdictional error is because:-

   1.   There was a mistaken assertion that because I had not visited Zambia but only once, then I was not a genuine entrant. The reasons I did not travel to Zambia after 2007, included travel bans imposed on my visa adding up to 6 years ban, health issues and family life. We can not measure grief or loss, nor can we avoid travel bans imposed on visas whilst awaiting visa decisions or review hearings. Jurisdictional error occurred when there was denial of the very existence of genuine cause of my actions.

   2.   The AAT acted with misapprehension or disregard of the nature of my case and put me in a general category of a non genuine entrant. This was seen by ignoring the 2 year study period I mentioned and him stating that a Diploma course is 1 year, ignoring a statutory declaration signed under oath that my dad sent. The declaration should have been considered because that proves that we have a home where we come from. That was one of the key requirements of visa requirements, to have a home and family attachment overseas. The minister’s Associate accepted that this document was ignored, which is a disregard of a credible legal document signed under oath.

   Another point to consider Jurisdictional error was when AAT member said that my courses are not related. I have proved that all the courses I have studied, I have also used in one industry. I have been employed as a care worker with my Cert III in Aged Care, a document controller from my IT studies, Quality coordinator and administration worker from my Accounting and management. How can this connection be disregarded? Educators and Employers past and present are very impressed with my outstanding performance, thus proving that I am here to genuinely get better educated and qualified.

   3.   AAT/Ministry of Home affairs failed to act wholly by looking at this case with independent eyes but instead generalised my case. We have had visas accepted even after initial refusal because we have been found genuine. I should not be penalised for eventually choosing to study because I am back on my feet and doing very well.

   4.   They failed by disregarding most relevant considerations-my study being 2 years not one, my dad’s statutory declaration which is a legal document, documents from my doctor showing part of my health problems, failing to understand the connection of courses done and not understanding why I withdrew from the Christian studies. This course was advertised in church for continuous improvement and christian Faith, it was not to be part of my qualifications to become a pastor but to understand the Christian books, as was advertised.

   5.   Alot of regard was paid to irrelevant considerations, like how many visas I have applied for in Australia when the main reason I was under the sat [sic] hearing was proving my genuine entrance. How easy can it be to study whilst suffering grief and loss? How can you process information and study without failure when your child has just died. As you may have noted, I was admitted to hospital and found to only be suffering loss, I was later referred to a grieving counsellor who helped us to get back on our feet after a few years.

   6.   I believe the AAT acted in bad faith when they failed to put everything into consideration. Not everyone is a non genuine entrant some student’s go through alot of unfortunate turns during their temporal stay. AAT and Ministry of Home Affairs, should consider how an applicant also feels. My life was put on hold all these years, I am not at the level I wanted to be because of partly my misfortune of the above mentioned situations and a travel ban of up to 6 years collectively.

   In conclusion I seek your intervention in this matter as you note the above points of Jurisdictional error.

   ·We have been in Australia since 2005 and 2006. Of these years, 6 have been spent waiting for a review of our visa denial and should not have been counted as part of how long I have studied. All visas in the past have been granted, except 1 which has been denied. That should say something about this case having a lot of Jurisdictional errors.

   ·Jurisdictional errors are a broad scope and with your great expertise in such cases, I am highly confident that you will find Jurisdictional error, so that I can have this once off opportunity to finally study a degree program.”

   (Re-produced verbatim)

2. The first paragraph of the document complains about a factual finding of the Tribunal relating to the weight to be placed on the applicants’ failure to return to Zambia, with the exception of a brief trip in 2007.  To the extent that the ground complains that there was a matter not taken into account by the Tribunal, namely that it did not have regard to “travel bans imposed on [her] visa adding up to six years ban”, that was not a matter that was raised by the applicant during the course of the Tribunal hearing. 

3. I note at this point that the applicant did not seek to rely on an audio recording or the transcript of the Tribunal hearing.  With respect to the issues of her health and family life, they were matters that were raised by the applicant and to which the Tribunal had regard.  The final sentence of that paragraph, alleging that jurisdictional error occurred because the Tribunal denied her genuine motives, is in the nature of a request for a ‘merits review’, being a complaint about a factual finding made by the Tribunal as to her state of mind and actions since she had been in Australia.

4. With respect to paragraph 4, insofar as it complains about a relevant consideration, namely, her period of study being two years and not one, that does not appear to have been a matter that the applicant raised with the Tribunal at the hearing.  In fact, when describing her course of studies,[1] the Tribunal noted, for example, that her Diploma of Accounting had begun in 2005 and was completed in 2007.  I am satisfied that the Tribunal took into account the courses actually studied by the first applicant and for that reason conclude that there is no substance to the complaint about whether her courses were one years’ duration or two years’ duration. 

   [1]     Court Book (‘CB’), 124 [12].

5. The complaint as to failing to take into account the statutory declaration from her father was part of the grounds as originally filed, and I will discuss that at a later stage in this judgment.  The complaint that the Tribunal failed to understand the connection between the courses that she had undertaken, or exactly why she withdrew from Christian Studies, is once again in the nature of an application for a ‘merits review’, which is not the purpose or function of judicial review proceedings.

6. With respect to the fifth paragraph of the document, there is no merit in the matters complained of.  The number of visas the first applicant had applied for over the years was clearly a relevant matter to which the Tribunal could have regard.  The Tribunal also had regard to her history including the loss of a child in pregnancy.  This paragraph also amounts to an attack on the factual findings of the Tribunal.  Insofar as paragraph 5 is intended to be an additional ground of review, there is no merit to it.

7. Paragraph 6 of the document, is an emphatic restatement of the claim in the original application that the Tribunal appears to have made its’ decision before the hearing took place.  It is worded in terms of “bad faith”, which could be seen as a complaint of actual bias, or that the Tribunal did not approach the matter with a mind open to persuasion.  I gave leave for the applicant to rely on that ground as an expanded particular of a matter raised in her original application.

8. The applicant sought to rely on an affidavit annexing additional materials, which was filed on 29 May 2018.  The first document annexed to that affidavit is a copy of the statutory declaration from her father, which appears in the Court Book.  The second document amounts to a refutation of the decision of the Administrative Appeals Tribunal.  To the extent that that document raises matters that were not raised before the Tribunal, I disregard it.  To the extent that it refers to matters that were raised before the Tribunal, I have treated it as a form of written submissions. 

Background

1. The essential background to these proceedings was not in dispute.  It has been helpfully summarised by the first respondent in its written outline of submissions.  What appears below is a paraphrasing of the background and the Tribunal’s decision taken from the first respondent’s written outline.

2. The applicant is a Zambian citizen who first arrived in Australia in April 2005.  At that time she was the holder of a student visa.  The second and third applicants are her husband and daughter who were included as members of the family unit on her last visa.  The applicant has, since arrival in Australia, been here on a number of different student and bridging visas.  She applied for the subject visa on 19 September 2016.

3. The delegate concluded that the applicant did not satisfy cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) and refused to grant the visa to her.

4. The applicant filed for a merits review before the Tribunal and attended at a hearing on 7 May 2018 to give evidence and make submissions.

5. The Tribunal identified the relevant issue as being whether the applicant was a genuine temporary entrant to this country, and for that reason, able to meet cl 500.212 of the Regulations. It correctly identified that it was necessary to have regard to Direction 69. Having done so it made the following findings:

   a)The applicant had arrived in Australia in 2005 and since that time had completed various diplomas and certificates and also failed to complete other diplomas and certificates.[2]

   b)The applicant was enrolled in a Bachelor of Business by virtue of her personal connections.  She did not have a significant incentive to return to Zambia. 

   c)She had only been back to Zambia once in 13 years.

   d)She had not studied in this country since November 2012 although that was partly explained by health issues.

   e)The applicant was unable to provide a coherent explanation for the changes in her career trajectory.

   [2]     CB, 124 [11]-[12].

6. The Tribunal doubted the applicant’s intention to now pursue a bachelor’s degree for the first time since arriving in this country when she had previously been unable to complete studies at a diploma level. As a result it was not satisfied that her proposed course of study represented a genuine attempt to develop her skills but rather was being used as a mechanism to remain in this country.

7. It was inconsistent on the part of the applicant to have remained in this country for five years after completing her Advanced Diploma of Management without completing any other studies.  It was also inconsistent with her stated intention to return to Zambia. 

8. It was for those reasons that the Tribunal was not satisfied that the applicant genuinely intended to stay in this country as a genuine temporary entrant.

Contentions of fact and law

1. I return to the written document filed by the applicant shortly prior to these proceedings.

2. The ‘Contentions of fact and law’ filed by the applicant complained in part about factual findings by the Tribunal.  The applicant is dissatisfied that the Tribunal reached the conclusion that because she had not visited Zambia, with the exception of one occasion, in the past 13 years that she was not a genuine temporary entrant.[3]

   [3] ‘Contentions of fact and law’, filed by the applicant on 20 February 2020 [1].

3. The document then proceeds to refer to various matters of fact which included travel bans she says were imposed on her visa for six years, her own health issues, and family matters.  That aspect of her contentions is best summarised in the final sentence which said:

   “Jurisdictional error occurred when there was denial of the very existence of genuine cause of my actions.”

4. The ‘Contentions of fact and law’ continued by complaining that the Tribunal ignored a statutory declaration from her father which she says should have been given weight.[4]  Further, she submitted that there was an error of law on the part of the Tribunal when it concluded that she had studied courses that were not related.  Her submission was that this finding could not be sustained and that, properly understood, her courses were related.

   [4] Ibid, [2].

5. She submitted that her educators and employers have always been impressed with her outstanding performance. 

Oral submissions of the applicant

1. The applicant made brief oral submissions before me.  She pointed out that she was asked why she had gaps in her study, and the effect of her submission was that she had only had study gaps during periods when she was a dependant on her husband’s visa.  Further she said that the Tribunal was mistaken in the emphasis it placed on the question of her failure to return to Zambia, with one exception, in the 13 years she had been in this country.  She told the Court that she had informed the Tribunal that she had spoken with her family every day since she has been here, but that this did not appear to be taken into account, and nor was her father’s statutory declaration. 

1. I note that the applicant’s claim to be in communication with her family in Zambia was a matter addressed by the Tribunal in its reasons.[5]

   [5] CB, 125 [15].

2. In responding to the Minister’s oral submission that there was no evidence before the Tribunal that she had given an explanation for the gaps in her periods of study, the first applicant said that initially she had not raised that matter with the Tribunal because the Tribunal Member appeared to know what he was talking about.  The effect of her submission appeared to be that she regarded the Tribunal Member as having had a closed mind.  She then submitted that she did give evidence of why she had gaps in her studies, but it had not been considered by the Tribunal.

Submissions of first respondent

1. The first respondent submitted that the applicant was in fact requesting an impermissible merits review because her argument involved the repeated contention that she was a genuine temporary entrant.

2. With respect to ground one, the applicant’s contention that there was a failure to consider her explanation for the gaps in her study period, the first respondent submitted that at no stage before the Tribunal did the applicant attribute the gaps in her study to the visa conditions attached to her dependent student visa which restricted her study to a maximum of three months.  In her statements before the Tribunal she attributed her gaps to her ill health and miscommunication with the education provider.[6]  This was repeated when she gave oral evidence.[7]

   [6]     CB, 99-100.

   [7]     CB, 125-126.

3. It was submitted that the second applicant also attributed the study gaps to the first applicant’s health issues.[8]  There can be no failure on the part of the Tribunal to refer to or take into consideration an argument, contention or evidence that was not put before it.

   [8] CB, 126 [24].

4. With respect to ground two, the first respondent submits that in reality that ground amounts to an application of apprehended bias.  It was submitted that nothing advanced by the applicants comes at all close to establishing that a fair-minded and informed bystander might reasonably apprehend that the Tribunal would not bring an open mind to the proceedings. 

5. As to ground three, it was submitted that it is not sufficient to simply point to the fact that a document has not been referred to in a decision record in order to establish jurisdictional error on the basis of failing to take into account a relevant consideration.  Further, the document was based largely on a subjective assertion which the writer of the document could not possibly corroborate firsthand.

6. Finally, the letter itself does not address the significant matters which the Tribunal ultimately found established that the first applicant was not a genuine temporary entrant to this country.

Consideration

1. I am not satisfied that the applicants have established that the decision of the Tribunal was affected by jurisdictional error.

2. First, the overarching nature of the complaints made by the first applicant relate to factual findings made and not made by the Tribunal.  To that extent the first applicant seeks a merits review which is not the proper function of this Court in proceedings for judicial review.  To the extent that the first complaint raises a failure to consider a relevant matter relating to the explanation for gaps in her study, I accept the submission of the first respondent that the first applicant does not appear to have raised with the Tribunal the explanation that the gaps were the result of restrictions on her dependent student visas, which restricted her to a maximum of three months study, nor was this explanation proffered by the second applicant.[9]  It was not for the Tribunal to seek out potentially esoteric explanations for the first applicant which did not obviously arise on the face of her evidence and supporting materials.[10]

   [9] CB, 126 [24].

   [10]   SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 [17].

3. With respect to the complaint that her evidence was questioned by the Tribunal, it was not bound to accept everything she said uncritically.[11]  An allegation of bias must be clearly made and critically proven.[12]  An adverse finding does not of itself give rise to an inference of bias or pre-judgement.[13]  It is rare for an allegation of bias to be made out in circumstances such as this, where the applicant refers solely on the written reasons the subject of the review.[14]  I am not satisfied the first applicant has demonstrated anything on the face of the decision record that would be capable of demonstrating actual bias on the part of the Tribunal.

   [11]   Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

   [12]   SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 [36].

   [13]   VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 [21].

   [14]   SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 [43]-[44].

4. As I have already noted, the transcript of the hearing was not before me.  I am unable to conclude that the Tribunal members mind was not at least open to persuasion.  As for apprehended bias, it has not been established that a fair-minded, properly informed bystander might reasonably apprehend that the Tribunal might not have brought an open mind to the proceedings.[15]

   [15]   Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 343-345.

5. As far as the statutory declaration from the father of the first applicant is concerned, there is no onus on the Tribunal to make specific mention of every piece of evidence before it.  The document could not be said to have comprised a separate integer of the first applicant’s claims.  It is worth setting out the text of the document:

   “I Mike Chizi Simuchimba make oath and say;

   1.That my names are as above.

   2.That I am a Zambian citizen.

   3.That I reside at plot number 132 in Kasaka in Kafue District of the Republic of Zambia.

   4.That Ngoza Makaya Namuchimba is bonafide my biological daughter.

   5.That the said Ngoza Makaya Namuchimba was born on 30th March 1985 in Lusaka District of the Republic of Zambia.

   6.That the said Ngoza Makaya Namuchimba has her entire family and all her relatives domiciled at plot 132 Kafue District of the Republic of Zambia.

   7.That Ngoza Makaya Namuchimba is currently studying in Australia.

   8.That Ngoza Makaya Namuchimba does not intend to stay in Australia after her studies.

   9.That Ngoza Makaya Namuchimba intends to return to her domicile in Zambia soon after her studies in Australia.

   10.That upon Ngoza Makaya Namuchimba return to her domicile in Zambia she is assured of full time pensionable employment in both the civil service as well as the private sector.

   11.That to the best for my knowledge the abovine information is true and correct.”[16]

   (Re-produced verbatim)

   [16]   CB, 103.

6. The first applicant’s father is for the most part purporting to depose to her state of mind and future intentions.  Beyond asserting that there would be employment available to her on her return to Zambia, it adds little if anything to the matters on which the first applicant gave evidence.[17]  The Tribunal rejected her evidence on those matters and the statutory declaration from her father was not, objectively speaking, capable of corroborating matters within her subjective state of mind.  The deponent can only have been aware of those things presumably because the applicant had told him so.  Her evidence as to those subjective intentions was rejected by the Tribunal, for reasons it clearly identified.[18] 

   [17] CB, 125 [15], 126 [26].

   [18]   CB, 125 [20]-[21], 126 [22]-[23].

7. I am not satisfied that jurisdictional error has been demonstrated and I make the orders to be found at the beginning of these reasons.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date: 24 April 2020