CHOWDHARY v Minister for Immigration

[2016] FCCA 492

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOWDHARY v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 492

Catchwords:
MIGRATION – Application seeking judicial review of decision of Migration Review Tribunal affirming decision not to grant applicant a Student Class TU (Subclass 572) visa – Tribunal was not satisfied that applicant was a genuine applicant for entry and stay as a student – whether there was actual bias or apprehended bias in the conduct of hearing or decision of Tribunal – no error in the decision of Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.31, 49, 426

Migration Regulations 1994 (Cth), reg.2.03, cl.1222 of sch.1, cl.572.223(1) of sch.2

Cases cited:
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427
Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71

Applicant: SANDEEP CHOWDHARY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1759 of 2014

Judgment of: Judge Dowdy

Hearing date: 17 December 2015

Date of Last Submission: 24 February 2016

Delivered at: Sydney

Delivered on: 11 March 2016

REPRESENTATION

The Applicant: The Applicant appeared in person with a Punjabi interpreter.

Counsel for the First Respondent: Ms S Gory

Solicitors for the First Respondent: Clayton Utz

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the present second named respondent’s name be amended from Migration Review Tribunal to Administrative Appeals Tribunal.

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1759 of 2014

SANDEEP CHOWDHARY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

General Background

1. The Applicant is a citizen of India aged 28 years, having been born on 14 February 1988.

2. On 20 August 2008 he was granted an offshore Student (Class TU) (Subclass 572) Visa and he then arrived in Australia on 26 August 2008. He applied in Australia for extensions to his Student Visa on two occasions, with the second extension of his Student Visa valid until 14 July 2012.

3. On 7 June 2012 he applied for a Student (Class TU) (Subclass 572) Vocational Education and Training Sector Visa which was refused by a Delegate of the First Respondent on 30 August 2012.   The Applicant subsequently applied for review of the Delegate’s decision to the Migration Review Tribunal (MRT) on 10 September 2012.

4. The MRT affirmed the Delegate’s decision on 28 July 2014. In the present proceeding the Applicant, by application filed on 28 August 2014, seeks an order that the decision of the MRT be quashed on the following grounds:

   i)      I understand the legalities and obligations     of this declaration.

   ii)     I confirm that there is jurisdictional error in the processing of my application. MRT decision was unfair and pre-decided, failed to understand my written and oral statement.

   iii)     No weight/importance given to medicals and studies.

Legislative Background

1. Section 31 of the Migration Act 1958 (Act) provides for the prescription of classes of visas, as well as the prescription by regulation of criteria for visas of a specified class. Regulation 2.01 and cl.1222 of sch.1 to the Migration Regulations 1994 (Regulations) prescribed Student (Temporary) (Class TU) Visas as a class, and also prescribed a number of subclasses of that class, including a subclass (572) Vocational Education and Training Sector Visa.

2. Regulation 2.03 and Schedule 2 to the Regulations prescribed the criteria for the grant of visas within those subclasses and relevantly here, clause 572.223 (1) required that the Minister be satisfied that the Applicant was a genuine temporary entrant to Australia. That clause provided:

   (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 (1A) or (2).

3. Further, in assessing the genuine temporary entrant criteria for students’ visas the decision maker must have regard to Direction No. 53, made under s.49 of the Act.

Delegate’s Decision

1. The Delegate was not satisfied that the Applicant was a genuine applicant for entry and stay as a student who genuinely intended to stay temporarily in Australia and was therefore not satisfied that the Applicant met cl.572.223(1) and therefore refused the application.

Application for Merits Review to MRT

1. The hearing before the MRT took place on 27 May 2013.  The Applicant had earlier been informed that he could provide material or written argument for the purposes of the review by the MRT and he had in fact provided a number of documents to the MRT on 20 May 2014 including:

   a)An undated statutory declaration (Statutory Declaration);

   b)Certificates in Business, Management and Graphic Arts from the Nova Institute of Technology (Nova Institute); and

   c)Various medical reports stating that the Applicant suffered from depression.

2. The Applicant had advised the MRT in his Response To Hearing Invitation, received by the MRT on 7 May 2014, that:

   a)He did not need an interpreter for the MRT hearing; and

   b)He wanted his brother and a nominated witness from the management of the Nova Institute to give evidence at the MRT Hearing as to how he had changed himself in the past few years.

3. The MRT hearing was conducted over a period of some 39 minutes with the Applicant speaking reasonably articulately in the English language. It is clear that the Applicant speaks English reasonably clearly and whilst he was accompanied by an interpreter at the hearing of his application before this Court, on a number of occasions he addressed the Court himself in the English language, as is shown by the transcript of the hearing.

MRT Decision Record of 28 July 2014

1. The MRT found that it was not satisfied that the Applicant intended genuinely to stay in Australia temporarily as a genuine applicant for entry and stay as a student, and therefore that he did not meet cl.572.223(1)(a). Rather, the MRT found that the Applicant had been using the student visa program so as to maintain lawful residence in Australia rather than to genuinely stay in Australia as a student temporarily.

2. The MRT was inclined to the view that the Applicant’s ultimate desire was to find a way to remain in Australia and that his evidence about his student plans were vague and generic, and made in a self-serving fashion to support his application for review before the MRT.  It also was of the view that the Applicant was prepared to say whatever he thought would serve his case.

3. Having regard to the vagueness of the grounds for review asserted by the Applicant I have generally reviewed the reasons of the MRT and I cannot see any basis upon which it could be contended on their face that they were affected by jurisdictional error. The reasoning of the MRT appears to be coherent, careful and logical, and was well open to it. It found, in support of its ultimate conclusion that the Applicant was not a genuine Applicant for entry and stay as a student, that his claims about his future plans were “vague and generic” and indeed inconsistent in nature. It found that the Applicant did not have strong ties to India that would serve as an incentive for him to return there and that he was trying to find work in Australia rather than India.

4. The MRT accepted that the Applicant suffered from depression from early 2009 to early 2010, but did not accept that such depression continued into 2011, and that in any event he had completed an academic course which suggested that his depression had not made him so unwell that he was unable to engage in study.

Applicant’s Grounds of Review and Attack on MRT Decision

1. Ground 1, which is reproduced in [5] above, is no ground of review at all and therefore must be rejected.

2. Ground 3, also reproduced in [5] above, appears to be a complaint that the MRT failed to consider the Applicant’s medical evidence and study history.

3. However, that complaint appears to be without any proper foundation. The MRT expressly recorded in its Decision Record that the Applicant’s oral account to it of his study and personal history was consistent with the contents of his Statutory Declaration. The Decision Record sets out in some detail the Applicant’s study and personal history and at paragraph 26 the medical evidence provided by the Applicant is considered and weighed up. The weight and ultimate conclusions as to how the Applicant’s medical and study record impacted on the ultimate decision as to whether the Applicant was a genuine Applicant for entry and stay as a student were matters entirely for the MRT.

4. Accordingly, the Applicant’s Ground 3 must be rejected.

5. That leaves Ground 2 asserted by the Applicant, being:

   I confirm that there is jurisdictional error in the processing of my application. MRT decision was unfair and pre-decided, failed to understand my written and oral statement.

6. That ground was supported by an affidavit of the Applicant sworn 28 August 2014 which was read at the hearing in this Court without objection, although it had not previously been served on the First Respondent or his lawyers. That affidavit was of a largely argumentative nature and cavilled in large part with the merits of the MRT’s decision.

7. However, paragraphs 9, 10 and 11 of that affidavit appeared to raise a claim of actual bias of the MRT member or, alternatively, that there was a reasonable apprehension of bias. Towards the end of the hearing, the Applicant summarised his complaint about prejudgment by the MRT as follows:

   MR CHOWDHARY:   I believe the officer Adam Moore was – his mind was pre-set because I know, like, couple of guys and I met a lot of guys when I was there to submit my affidavit in Immigration, people who were just making, like, one-page fake affidavit to – just to stay here for work.  And I know a few people who were doing – so – and that’s what, like, one of – 90 out of 100 they are – they don’t have any base against MRT decision.  They just apply for review just to get some time to stay here.  That’s why it’s – I think it’s – that makes Officer Adam Moore’s mind that obviously if almost every person coming in is – coming in interview is lying, obviously he will see me as another person that I would lie as well, because almost 90 out of 100 cases are fake cases in MRT.  They don’t have any grounds      

   HIS HONOUR:   What’s that – I’m sorry.  I’m missing that last part that he’s saying.  I don’t understand that last few words.

   MS GORY:   I think he said over 90 out of 100 cases in the MRT are fake cases.

   HIS HONOUR:   And what’s the point about that?

   MR CHOWDHARY:   And that’s why it makes officers mind everyone that’s coming in and lying and the ..... taking every person that he will come and lie whatever he can to save his side.  But obviously people don’t provide any – this long affidavit and any documents – supporting documents with their affidavit.

   HIS HONOUR:   But you did, you say.

   MR CHOWDHARY:   Yes.

8. From his affidavit of 28 August 2014, I understood the Applicant’s complaint about prejudgement by the MRT to be as follows:

   a)The MRT member told the Applicant at the commencement of the hearing before the MRT that he had been busy and had not read the Applicant’s Statutory Declaration, or other supporting materials;

   b)The MRT member did not pay attention to the Applicant’s Statutory Declaration as he was more worried about his holiday; and

   c)The MRT member should have rung the Nova Institute if he thought the Applicant was lying and made an enquiry if the Nova Institute had observed the applicant “changing” and “improving” and “suffering from depression”. The MRT member’s failure to do so indicated that his mind was pre-set before the hearing.

Recording of the MRT Hearing

1. No transcript of the hearing of 27 July 2014 before the MRT was tendered at the hearing by the Applicant. Nevertheless, in the circumstances I considered that I should listen to the recording of the hearing before the MRT.  At my request the First Respondent provided that recording and I have listened to it with the agreement of the parties.  It will be nominally marked as Exhibit “C”.

2. Unfortunately the recording of the hearing before the MRT is in many places somewhat muffled and on the audio system available to the Court there were portions where words dropped out and could not be accurately heard. However, having said that, in the main it was substantially audible.

3. The recording indicates that the interview between the MRT member and the Applicant was conducted at all times in a measured, courteous and co-operative manner. The MRT member, Mr A. Moore, asked a series of questions in a polite and low key manner and the Applicant responded in giving his answers in like fashion. The recording established what appears to be a collaborative endeavour in the eliciting and giving of information as between the MRT member and the Applicant.

4. The recording confirms that the hearing before the MRT had the appearance of being conducted on a fair, dignified and dispassionate basis.

5. The MRT hearing commenced with a MRT officer calling the matter.  A minute or two later, after prefatory introductions and words, the MRT member is recorded as saying words to the effect of:

   I’m not sure I have partly read it” (referring to the Statutory Declaration).

6. There is a gap in the recording for some minutes, during which pages can be heard turning over and I infer that the MRT member was reading the Statutory Declaration and perhaps other papers.

7. Also towards the start of the MRT hearing, the MRT member asked the Applicant if he wanted him to speak to his brother and the witness from the management of the Nova Institute, to which the Applicant replied in the affirmative and there was discussion about ringing these witnesses later in the hearing.

8. Towards the end of the hearing the MRT member said words to the effect of :

   Is there anything else you want to say to me because now is the time?

   The Applicant replied in words to the effect of:

   No, that’s it, that’s all. 

9. The MRT member then said words to the effect of:

   I am going on a short holiday on the 5th of June for eight days and I will try and write my decision before that but if you don’t get it by 5^th of June you’re not going to get it [muffled]…

10. Then the MRT member said words to the effect of:

    So, I don’t think I need to speak to these people, do I? (I infer referring to the Applicant’s brother and the proposed witness from the management of the Nova Institute).

    The Applicant then replied in words to the effect of:

    No, I only gave it for if you want to like if you want to have some more – how I changed myself in the last few years, and they are people who saw me every day.

Actual and Apprehended Bias

1. Actual or apprehended bias are matters that go to procedural fairness and the denial of procedural fairness on the part of an administrative tribunal, such as the MRT, may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 91 per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 ([48]).

Actual Bias

1. I infer that the only form of actual bias alleged by the Applicant in his second ground is actual bias in the form of prejudgment. This form of actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 as follows:

   The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

2. A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal said in South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at 97:

   97.        The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.

3. The test of actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 at 437 ([33]).

Apprehended Bias

1. On the other hand, the test for apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the decision making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 334-345. It is an objective test not requiring an assessment of the state of mind of the judge, as is necessary on an enquiry about actual bias: Michael Wilson & Partners v Nicholls (supra) at [32].

Consideration of Claims of Bias

1. In my opinion there is no basis for any claim by the Applicant that he has suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the decision of the MRT.

2. First, the MRT’s Decision Record on its written face does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias on the part of the MRT member: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].

3. Second, neither the Decision Record nor the recording of the MRT hearing lend any support to the Applicant’s contention that the MRT member assumed or prejudged that all applicants for review to the MRT are liars because ninety of a hundred cases are “fake”.

4. Third, none of the complaints made by the Applicant and summarized in [23] above evidence any actual bias or give rise to apprehension of bias.

5. Many judges or members of tribunals, at the commencement of the hearing of a case, have not read all the evidence and in this case the MRT member indicated at the commencement of the hearing that he had not completely read the Applicant’s Statutory Declaration, but then proceeded to do so for several minutes before beginning to commence to question the Applicant.

1. Towards the end of the hearing the MRT member mentioned that he was going on a short holiday and that there might be some delay in the writing of his decision. Judges in this country regularly, at the end of a hearing, indicate a period of time in which it is likely that reasons for judgment may or may not be delivered and proffer the reasons for any possible delay, such as going on holidays, attending conferences, or taking sabbaticals.

2. The complaint that the MRT member ought to have rung the Applicant’s brother and the Nova Institute does not assist him.  First, the fact that the MRT member did not make these phone calls could not possibly, in the circumstances, indicate prejudgment or pre-setting of the MRT member’s mind.  Second, the fact that the calls were not made could not constitute jurisdictional error by constructive failure to exercise jurisdiction. All a telephone call to the Nova Institute is likely to have confirmed is that indeed the Applicant had attended that institution and obtained certain certificates. That was never in issue before the MRT. The MRT accepted that he had obtained relevant qualifications and passed courses at the Nova Institute. Any telephone call to the Nova Institute would have been highly unlikely to have resulted in any meaningful or critical evidence about the Applicant “changing and improving” or “suffering from depression”.  In other words, a telephone call to the Applicant’s brother and the Nova Institute would not have yielded any useful results for the purposes of the MRT: Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429. The MRT had, in fact, expressly accepted the Applicant’s evidence that he had been suffering from depression from early 2009 to early 2010.

3. Further and in any event:

   a)There is no general duty at common law imposed on the MRT to undertake its own enquiries in addition to information provided to it by the Applicant or otherwise under the Act: Minister for Immigration and Citizenship v SZIAI (supra); and

   b)Section 426 of the Act provides that even if an applicant requests that the Tribunal take oral or written evidence from a witness the Tribunal is not required to obtain such evidence and thus is under no duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21 ([43]).

4. Finally, the MRT member expressly raised at the end of the hearing the issue of whether he needed to ring the nominated witnesses, and the negative answer given by the Applicant means that he excused any need or reason for the MRT member to ring the witnesses and acquiesced in the MRT Member not ringing.

5. In my opinion, none of the matters relied upon by the Applicant support a claim for either actual or apprehended bias.  The Tribunal recording gives no suggestion that the Tribunal was predisposed to any conclusion in the matter at all.  The recording and the Decision Record indicate that there was a fair and impartial appraisal of the Applicant’s case and evidence.  There was no procedural unfairness and no “practical injustice”: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 37.

6. In other words, in my view, the recording of the MRT hearing establishes “…the absence of the actuality or the appearance of disqualifying bias and the according of the appropriate opportunity of being heard”: see Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367.

7. There is in my view no jurisdictional error disclosed and the application is dismissed with costs. I reserve for the present time the consideration of what those costs should be.

Application to Rely on New Evidence

1. My associate communicated on 3 February 2016 with both parties when the Court requested the Minister to provide a recording of the hearing before the MRT.  The Applicant took the opportunity of asking the Court for permission to submit a brief statement.  The Applicant then forwarded to the Court a statutory declaration affirmed 8 February 2016 (second statutory declaration) and I gave the First Respondent an opportunity to submit written submissions on whether the Applicant ought to be permitted to read and rely upon the second statutory declaration (or any parts thereof).

2. I granted leave to the Applicant to file the second statutory declaration in Court on 17 February 2016.  The written submissions of the Frist Respondent dated 24 February 2016 oppose leave being granted to the Applicant to read and rely on the second statutory declaration.

3. In my view I should refuse leave to read and rely upon the second statutory declaration.  It is bad in form, inadmissible and argumentative in nature.  It argues in favour of a merits review and seeks to contradict factual findings of the Tribunal. 

4. However, I have regarded the matters argued in the second statutory declaration as in the nature of submissions and have taken them into account as such in the above reasons.  The second statutory declaration will be marked as “MFI-1”.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 11 March 2016