Dasanayaka v Minister for Immigration
[2015] FCCA 2
•5 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DASANAYAKA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2 |
| Catchwords: MIGRATION – Application for extension of time – reasons for delay – consideration of substantive application. |
| Legislation: Migration Act 1958 (Cth) |
| Kaur v Minister for Immigration & Anor [2012] FMCA 438 Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 Minister for Immigration and Multicultural Affairs v MIAH [2001] HCA 22 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 Minister for Immigration and Citizenship v Li [2013] HCA 8 Minister for Immigration and Citizenship v Saba Bros Tiling Proprietary Limited [2011] FCA 233 SZNKO v Minister for Immigration and Citizenship & Anor [2010] FCA 297 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 Vu v Minister for Immigration and Citizenship & Another [2008] FCAFC 59 22 |
| Applicant: | SAMITHA DASANAYAKA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 202 of 2014 |
| Judgment of: | Judge McGuire |
| Hearing date: | 8 September 2014 |
| Date of Last Submission: | 28 October 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 5 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Kabo Lawyers |
| Counsel for the First Respondent: | Ms Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
That the application for an extension of time to bring an application for judicial review be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 202 of 2014
| SAMITHA DASANAYAKA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
| MIGRATION REVIEW TRIBUNAL |
Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made 21 January 2012 not to grant the applicant a student visa (temporary) (class TU visa)(“the visa”).
The applicant also seeks an order for an extension of time to file this substantive application. The application in its original form was lodged on 6 February 2013 being some 10 months and nine days outside the prescribed time.
Both the application for extension of time and the application for judicial review are opposed.
Both the applicant and the second respondent were represented by counsel at the hearing before me.
The applicant now relies on an amended application filed 28 July 2014. He has filed, and I have read into evidence, his three affidavits of 6 February, 25 July and 5 September 2014. I have been provided with a document purporting to be a transcript of the hearing before the tribunal, annexed to an affidavit of Ashley Ngion, solicitor, and affirmed 28 July 2014. There has arisen some dispute as to the accuracy and context of the transcript and I have therefore been provided with and listened to the audio recording of those proceedings. I also have the benefit of written submissions from both counsel together with a comprehensive court book containing inter alia the Tribunal’s decision of 21 February 2013.
Background
The applicant is 27 years of age. He is a citizen of Sri Lanka. He first arrived in Australia on 21 May 2008 on a student visa.
On 20 September 2011 the applicant applied for a student visa (CB1). He deposed to qualifications in hospitality management and that he intended to complete a “Diploma Automotive.” He deposed to proficiency in English.
On 21 January 2012 the delegate refused the application for a visa on the basis of the applicant not providing Confirmation of Enrolment and on the basis of information on the Provide Registration International Student Management System (PRISMS) that the applicant was not enrolled in a registered course (CB24 and 36).
On 9 February 2013 the applicant applied to the Tribunal for a review on the merits (CB46-64). The application included a copy of the delegate’s decision and reasons.
On 31 January 2013 the Tribunal invited the applicant to appear pursuant to section 360 of the Migration Act 1958 (“the Act”) and also invited him to provide a copy of his Confirmation of Enrolment. It was not provided. No extension of time in this respect was then sought.
The Tribunal hearing took place on 21 February 2013. The applicant appeared in person but made it clear that he had enjoyed assistance in respect of his application from his “education agent.” The Tribunal heard the applicant. He gave evidence and made submissions. The transcript shows a focus at the hearing in respect of the statutory requirement for a Confirmation of Enrolment document. The Tribunal affirmed the delegate’s decision that day and provided reasons (CB105-109).
The application to this court for judicial review was lodged 6 February 2014.
Application
The grounds of the application for extension of time as set out in the amended application are:
a)The applicant has a reasonable explanation for delay, being that during the period of delay the applicant was involved in a family dispute against the mother of his son, Marcus Kevin born on 12 April 2012, regarding shared parental responsibility and access to the child which eventually to an application being made to the Family Court of Australia in mid-2013.
b)The applicant’s case has strong merit as the decision made by the second respondent was plainly affected by jurisdictional error.
c)An extension of time would do justice between the parties as to the impact of a decision to refuse the application for an extension of time has significant impact on the applicant in that there would be no other avenues of judicial review available to the applicant.
d)There is a lack of prejudice to the Respondents in extending time as no detriment in respect of the extension of time has been claimed by the Respondents to date.
The grounds of the substantive application are threefold and as follows:
a)In its questioning of Mr Mudiyanselage (sic) regarding the cancellation of his Certificate of Enrolment, the Tribunal breached S359A, 359AA and 360 of the Migration Act 1958 (Cth)(“Migration Act”).
Particulars
·The Tribunal misled the application (sic) to think there was nothing the Tribunal could do other than refuse the application, when in fact the tribunal had power under S363(1)(b) to adjourn the review so that the applicant could provide a Certificate of Enrolment.
·The Tribunal mentioned other things between stating the information and inviting him to comment or respond. By doing so, the Tribunal made it unclear to the applicant what he was supposed to comment or respond on and why it was relevant to the review, or that he could ask for more time to do so.
·The Tribunal breached S359AA(ii) by asking the applicant to “respond” to the information, not to “comment on or respond” to the information.
·The Tribunal breached S359AA(iii) by giving mere lip-service to advising the applicant he could seek additional time to comment on or respond to the information.
b)The way the Tribunal conducted the hearing gave rise to a reasonable apprehension of bias on the part of the Tribunal.
Particulars
·The Tribunal made up its mind about the Decision before offering the applicant an opportunity to be heard on the critical issue of whether the applicant had a current Certificate of Enrolment or whether it had been cancelled.
·The Tribunal’s conduct of the hearing, such as interrupting the applicant and giving mere lip-service to S359AA requirements give rise to a reasonable apprehension of bias.
c)The Tribunal failed to provide a meaningful hearing invitation under S360 of the Migration Act and was unreasonable in not adjourning the hearing as it could have done under S363 of the Migration Act.
Particulars
·The Tribunal made up its mind about the Decision before offering the applicant an opportunity to be heard on the critical issue of whether the applicant had a current Certificate of Enrolment or whether it had been cancelled.
·The Tribunal’s conduct of the hearing, such as interrupting the applicant and giving mere lip-service to S359AA requirements give rise to a reasonable apprehension of bias.
·It was unreasonable not to adjourn the hearing or at least to allow more time to submit a CoE in circumstances where the applicant was self-represented, his representative had misled him, English was a second-language and the applicant did not know his CoE had been cancelled or that it was the main issue until during the hearing.
The Tribunal’s Decision
It was clear that the Tribunal found that the applicant did not meet the requirements of sub-clause 572.222 of schedule 2 of the Migration Regulations 1994 (Cth)(“the Regulations”) mandating the applicant to:
“...give the Minister a Certificate of Enrolment relating to the applicant’s undertaking of a court of study...”
No issue was taken before me as to the Tribunal’s understanding of the statutory requirements for the granting of a visa. Rather, it is the process of the tribunal that is criticised and argued as infecting its decision and hence leading to jurisdictional error.
Paragraphs 8 -10 of the Tribunal’s reasons indicate its receipt of the delegate’s decision from the applicant himself.
Paragraphs 12 and 13 show the pre-hearing procedure of the Tribunal inviting the applicant to present at the hearing and to provide a Certificate of Enrolment.
Paragraph 16 of the reasons, in fact, indicate the applicant handing a document to the Tribunal purporting to be evidence of enrolment at Brighton Institute of Technology in a Diploma of Hospitality from 21 May 2012 to 20 May 2014. The Tribunal advised that it had information available to it that this enrolment was cancelled on 19 November 2012 on the basis of the applicant not commencing the studies. The Tribunal later commented that this was information clearly known to the applicant given that it was he who did not take up the course of study.
Paragraph 17 refers to the Tribunal asking for evidence of current enrolment but with the applicant responding that he did not know why his visa application had been refused because “his agent told him that he was at the MRT because of issues to do with financial documents.” He claimed to have received the Tribunal’s letter of 31 January only on the previous day. The applicant confirmed that he had received a copy of the delegate’s Decision “probably the previous year.”
The chronology of the reasons shows the Tribunal at this stage informing the applicant of information available to it from PRISMS that the Certificate of Enrolment the applicant had handed to the Tribunal was cancelled on 19 November 2012.
Paragraph 19 has the Tribunal explaining section 359AA of the Act to the applicant and “put the following information to him for comment or response”:
The applicant had that day provided to the Tribunal a COE from Brighton Educational Services, trading as the Brighton Institute of Technology, a course that was meant to commence on 21 May 2012 and end on 20 May 2014. The applicant had handed up that COE when the Tribunal asked him if he had a current COE. However, information available to the Tribunal from PRISMS system indicates that the COE was cancelled on 19 November 2012. Further, information obtained from the PRISMS system that morning indicates that the applicant is not the holder of a current COE.
Paragraph 20 sets out the Tribunal’s advice to the applicant that:
“failure to meet this requirement means that the visa application could not succeed... the Tribunal invited the applicant to respond to or comment on the information; noting that he may require additional time before deciding whether to do so.”
Paragraph 21 states that the Tribunal again asked the applicant whether he wished to respond. The applicant stated that he had nothing to say.
Paragraph 22 is framed as another invitation to the applicant to provide any reason why the Tribunal should not make a decision that day? The applicant’s response was to attribute blame to his agent and to reference family law matters with his ex-partner.
Extension of Time
In such an application it is not disputed that the relevant considerations for the court areas as set out in the first respondent’s submissions as follows:
a)Applications for an extension of time are not to be granted unless it is proper to do so, the legislative time limits are not to be ignored;
b)there must be some acceptable explanation for the delay;
c)any prejudice to the Respondent in defending the proceeding;
d)the mere absence of prejudice to the Respondent is not enough to justify the grant of an extension; and
e)the merit of the substantive application.
Explanation for Delay
The application is considerably out of time to the extent of some 10 months. The applicant says that he was involved in a family law dispute. He attributes blame to his agent who goes under the rather odd title of “education agent.” Counsel for the applicant say that these constitute acceptable bases of “reasonable explanation.” Counsel says the court should view the applicant as unrepresented, and without the benefit of advice on possible jurisdictional error on the transcript and is a person unfamiliar with the Migration Act.
I find little force or merit in the applicant’s explanation. The delay is lengthy and, as such, his justifications must be seen within that context. He chose to be represented and assisted by his “agent.” He is deemed to have received documents including the delegate’s decision. His own affidavit of 28 July 2014 at paragraph 3 refers to his family dispute continuing from near to July 2012. Yet he was able to prosecute his application before the Tribunal leading up to February 2013. Further, I accept the submission of counsel for the Respondent that there is no logical connection between poor advocacy and diligent prosecution of an application. Still further, there is evidence before me that the Tribunal itself provided the applicant with an information brochure together with its decision of 21 February 2013 setting out, with emphasis, the applicant’s right of judicial review. Consequently, each of the explanations alone or taken together do not satisfy me that the applicant provides an acceptable or reasonable explanation for such a lengthy delay.
A further explanation for the delay was proffered in that the applicant had sought recourse by ministerial discretion. Counsel for the applicant relied on a decision of the High Court in Minister for Immigration and Multicultural Affairs v MIAH[1] where Kirby J observes at [152]:
The delay of the prosecutor was not “unwarrantable.” It has been explained as resulting from a combination of the dilatoriness of the lawyers and the delay by the Minister in determining whether or not to dispense with the requirement of S48A of the Act. There is “more convenient and satisfactory remedy” – the deadline for the Tribunal’s review has expired, the Minister has twice refused to exercise a power to reconsider the visa application, and damages do not seem to be available to the prosecutor. If they are, they are far from appropriate as a remedy in the circumstances. There has been no bad faith on the part of the prosecutor.
[1] [2001] HCA 22
However, I accept the submission of counsel for the Respondent that the facts in MIAH can be distinguished from those here and from the authorities more commonly dealing with this issue. Those authorities seem settled that an applicant’s election to seek recourse from the Minister under S351 of the Act does not provide an acceptable explanation for delay in lodging an application for judicial review. Notably, in Vu v Minister for Immigration and Citizenship & Another[2] at [29] the Full Court of the Federal Court stated:
I do not think that the applicant’s approach to the Minister under S351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “plan B” to which resort was had once the approach under S351 proved unsuccessful.
[2] [2008] FCAFC 59
Whilst there would be an obvious prejudice flowing to the applicant by refusal of an extension of time, such prejudice per se is not of itself persuasive. It may be argued the Minister has a rightful expectation that litigation will be brought to an end within the prescribed time limits and is himself prejudiced by delay and, in particular, lengthy delay.
Merits of the Application
The applicant also relies on the merit of his substantive application in support of the application for extension of time. The three grounds are particularised above.
Ground 1
The applicant says that the Tribunal breached its obligations under S359A, S359AA and S360 of the Act. Those sections provide:
Section 359A
Information and invitation given in writing by Tribunal
(1)Subject to subsections (2) and (3), the Tribunal must:
a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
c)invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4)This section does not apply to information:
a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
b) that the applicant gave for the purpose of the application for review; or
ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
c)that is non-disclosable information.
Section 359AA
Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 360:
a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
b)if the Tribunal does so—the Tribunal must:
i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
ii)orally invite the applicant to comment on or respond to the information; and
iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Section 360
Tribunal must invite applicant to appear
1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
2)Subsection (1) does not apply if:
a)The Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
c)subsection 359C(1) or (2) applies to the applicant.
3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The crux of this dispute is the non-provision of the Confirmation of Enrolment and the nature and provision to the applicant of the information available and relied upon by the Tribunal. The applicant says that the Tribunal’s reasons disclose the information being obtained that morning from PRISMS thereby engaging S359A or S359AA of the Act. The argument continues that the applicant was not given sufficient explanation and opportunity to comment or respond to the absence of the Confirmation of Enrolment, such information given orally (at paragraphs 20 and 21) of the Tribunals reasons as follows:
20. The tribunal advised the applicant that this information was relevant to the decision under review because it would, subject to his comments or response, lead the Tribunal to find that the applicant had not given a Certificate of Enrolment for the purposes of subclass 570, 571, 572, 573, 574 or 575. Further, there was no evidence before the Tribunal that the applicant met the criteria for either subclass 576 or 580, which are the remaining subclasses of the Student (Temporary) visa subclass. Failure to meet this requirement means that the visa application could not succeed and, in those circumstances, the Tribunal would have no option other than to affirm the decision under review. The Tribunal invited the applicant to respond to or comment on the information, noting that he may request additional time before deciding whether to do so.
21. After some delay, the Tribunal asked the applicant whether he wished to respond. The applicant stated that he had nothing to say.
The transcript (and the audio) disclosed the following interaction from line 151:
Member Di Hubble: Um, I need to put some information to you which would, subject to your comments or response, be the reason or a part of the reason for affirming the decision that is under review. I am required to do this by section 359AA of the Act and I will explain the information’s relevance to your case and I will give you an opportunity to respond to or comment on the information at the end. You have provided to me today a COE from Brighton Educational Services, trading as the Brighton Institute of Technology, regarding Diploma of Hospitality Studies, um, courses, the course that was meant to commence on the 21st of May, 2012, and end on the 12th of May, 2014, and you gave me that, um, uh, C of E when I asked you [00:10:00] if you had a current COE. Um, however information available to me from the PRISM system indicates that, that COE was cancelled on the 19th of November 2012. Further, the information that is available to me from the PRISM system which was printed out this morning indicates that you are not the holder of the current COE. Now this information is relevant to the decision under review because it would, subject to your comments or response, lead me to find that you have not given a Certificate of Enrolment for the purposes of subclass 570, 571, 573, 574, 575 or 572. Additionally there is no evidence before me which suggests that you meet the criteria for either subclass 576 or subclass 580, which are the remaining subclasses of the Student Temporary Visa category. Failure to meet this requirement means that your application for the Visa cannot succeed and I would have no option other than to affirm the decision under review. So what I am proposing to do now is ask you respond to or comment on that information. You may, uh, request additional time before deciding whether to respond. [long silence] All right, Mr, uh, oh, sorry, Samith-, uh, Samitha, would you like to respond to that information now?
Samitha Dasanayaka: I have nothing to say. [faint and quite inaudible]
Member Di Hubble: Pardon?
Samitha Dasanayaka: I have, uh - - -
Member Di Hubble: Did you say, “I have nothing to say?”
Samitha Dasanayaka: [sound]
Member Di Hubble: Okay. All right. I’m about to make a decision in your [00:12:00] case, is there any reason why I shouldn’t make a decision today?
Samitha Dasanayaka: You mean - - -
Member Di Hubble: I’m about to make a decision, is there any reason why I shouldn’t?
Samitha Dasanayaka: Because, uh, I have some issues with the, uh, the lady who did my visa thing from 2011, uh, since before, uh, April of 2011, I was trying to do everything, like to, do my thing, but she’s, she’s, uh, did not the right thing for my visa and everything, and but, uh, finally, I’m the one in trouble now.
Member Di Hubble: Yes, all right. Well, look, I’ve taken that into account and I don’t consider that what you’ve said excuses the fact that you haven’t, uh, produced a current COE today.
I put this transcript into these reasons in detail given the reliance on that part by the applicant in the three grounds of complaint.
The applicant’s argument relates to fairness and realistic opportunity for him to address the information. Counsel referred me to a decision of Flick J in SZNKO v Minister for Immigration and Citizenship & Anor[3] at [23] where his Honour observes in dealing with a review from the Refugee Review Tribunal:
Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading. The touchstone is that sections 424A and 424AA require the disclosure of so much as to ensure that the opportunity to comment or respond is meaningful. In some cases the disclosure of the substance of information may be sufficient.
[3] [2010] FCA 297
Counsel for the applicant, therefore, argues that the opportunity must be meaningful and understood and that I should consider the audio/transcript of the Tribunal hearing in considering whether the Tribunal complied with its obligations under S359AA(b)(i). Counsel again refers to SZNKO at paragraph 29 where his Honour continued:
Compliance with 424AA(b)(iii) and/or (iv), does not require a Tribunal to repeat the very words employed in section 424A(b)(iii) in some ritualistic or parrot-like recantation. Indeed, cases may be envisaged where to do so may not meaningfully convey to an applicant the opportunity sought to be secured by those provisions. Compliance with those provisions must necessarily depend upon the facts and circumstances of the claims advanced before the Tribunal, the ability of any particular applicant to properly avail himself of the opportunity to be heard before the Tribunal, and the limited procedural protections prescribed by the Commonwealth legislature.
Counsel says, therefore, effectively that procedural fairness was denied the applicant and hence the Tribunal’s Decision fell in to jurisdictional error.
Counsel referred me to various parts of the transcript/audio and says that statements such as “…is there any reason why I should not make the decision today (para 22)” simply do not go far enough in respect of this particular applicant and his circumstances.
This argument is succinctly put by counsel in reference to a decision of my colleague, Federal Magistrate Nicholls (as he then was) in Kaur v Minister for Immigration & Anor[4] at [78] where his Honour says:
The Tribunal did not lawfully comply with the facility available to it, through S359AA of the Act, to orally invite the applicant to comment on, or respond to, information which it plainly considered would be the reason, or a part of the reason, for affirming the cancellation of the applicant’s visa. Given that the Tribunal still had the obligation to put such an invitation to the applicant in writing, pursuant to S359A of the Act, and it did not do so, such a failure constitutes jurisdiction error. That is, a failure to comply with a mandatory legislative provision.
[4] [2012] FMCA 438
Counsel says that this applicant was misled by the Tribunal by it not clearly explaining the options for him to comment, or respond or to seek adjournment and/or it did not give its explanation in a clear and unequivocal way or that it paid lip-service to its obligations and that the confusion in the applicant was compounded by the Tribunal not distinguishing between his right under the disjunctive invitation to “comment or respond.”
Paragraph 21 of the Tribunal’s reasons is referenced where the following appears:
After some delay, the Tribunal asked the applicant whether he wished to respond. The applicant says that he had nothing to say.
This issue of statutory interpretation was considered by Jagot J in Minister for Immigration and Citizenship v Saba Bros Tiling Proprietary Limited[5] where his Honour at [30]:
Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: “comment on or respond to” the information in the case of S359A(1)(c), and “the comments or the response” in the case of S359C(2)(b). This indicates that an appellant may either “comment on” or “respond to” the information in the invitation, or both comment on and respond to the information. The choice – to comment, respond or both – is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines “to comment” as “to make comments or remarks [upon]”; by contrast, “to respond” is simply “to answer in speech or writing; to reply.” An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.
[5] [2011] FCA 233
First Respondent’s Argument
Counsel for the first respondent addresses this ground simply by arguing that S359A and hence S359AA are not engaged here.
Counsel emphasises that the applicant himself provided the “information” to the Tribunal in the form of the delegate’s decision which he lodged with his application. In Minister for Immigration and Citizenship v Chamnam You[6] Sundberg J said at [22] and [26]:
The word “information” in S359A(4)(b) is thus not confined to information the applicant thinks will advance his or her case, or information upon which the applicant relies in support of the application. If what is given to the Tribunal is information, it is covered by S359A(4)(b).
On the assumption that the Magistrate did draw the inference, and that it was properly drawn, the respondent contends that even if the appellant succeeds on the first and second grounds of appeal there has been a breach of S359A because the Tribunal did not bring the file note to her attention. This must be rejected. The information that would be the reason, or a part of the reason, for affirming the decision under review, namely the home visit, had been given to the Tribunal by the respondent. The information in the file note was the same information as that contained in the delegate’s decision, though somewhat amplified. The file note is not itself a reason or a separate issue.
[6] [2008] FCA 241
Counsel for the respondent emphasises that the Tribunal affirmed the delegate’s decision because the applicant did not provide the evidence required pursuant to regulation 572.222. The Tribunal had put the applicant on notice as to this requirement (CB78).
Counsel continues that S359A(4)(b) captures this situation and factual platform and renders the requirements of S359A inapplicable and the Tribunal is consequently excused from compliance. Hence, S359A and S359AA are not engaged.
I find merit in this argument of statutory interpretation on the facts of this matter. The applicant here was appraised or deemed appraised of the delegate’s decision. He himself provided that information to the Tribunal. This renders the information from PRISMS as corroborative only but not the substance or new information which provides the rationale for S359A. Further, the facts support the applicant having an obvious knowledge of the requirement to provide a Confirmation of Enrolment in that he attempted to rely on evidence of enrolment, albeit since cancelled.
I am satisfied, therefore, that S359A(4)(b) applies and that ground 1 of the application fails accordingly.
Ground 2 – Apprehended Bias
The applicant argues that the Tribunal demonstrated pre-determination of its decision. He cites the Tribunal’s reasons as follows and as evident on the transcript:
“All right, now, I am ready to make a decision, uh, because, um, but before I do, I really need to put this information to you formally, so I ask you to wait while I do this. Um, I need to put some information to you which would, subject to your comment or response, be the reason or part of the reason for affirming the decision that is under review
...
I’m about to make a decision, is there any reason why I shouldn’t?”
…
All right, all right, well I have taken what you have said into account but I’m afraid that, uh, it hasn’t changed my thinking, and I am now affirming the decision of the delegate to refuse your application for a student visa...
…
“Additionally, there is no evidence before me which suggests that you meet the criteria for either subclass 576 or subclass 580, which are the remaining subclasses of the Student Temporary Visa category. Failure to meet this requirement means that your application for the visa cannot succeed and I would have no other option but to affirm the decision under review. So, what I am proposing to do now is ask you to respond to or comment on that information, you may, uh, request additional time, before deciding whether to respond.
The applicant says that the transcript and audio show interruptions of the applicant’s attempts to engage the Tribunal or to respond. The applicant says that the Tribunal did have “other options” including to adjourn pursuant to S363. It is, however, the tone of the audio and the alleged “tokenism” together with the sense of “inevitability” in the language used by the Tribunal which grounds this argument. The applicant says that these factors combined to indicate that the Tribunal had made up its mind which in turn gives an apprehension of bias.
The applicant relies on Flick J in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship[7] at [36]:
A reasonable opportunity to be heard, it is concluded, requires that a decision-maker provide a claimant with an opportunity to be heard and an opportunity for the claimant to advance the entirety of his factual material and submissions before a conclusion is reached.
[7] [2013] FCAFC 80
The test of apprehended bias is well settled and is an objective one as to whether a fair-minded lay observer might reasonably conclude that the decision-maker does not bring an impartial or open-mind to the determination of the issue.
In this matter the issue for the Tribunal was a discrete one. It was clearly appraised of the apparent lack of evidence of Confirmation of Enrolment. It was reasonable, in my view, to direct the hearing accordingly and to direct the applicant’s attention to this apparent omission and to the statutory requirement. As the High Court said in Minister for Immigration and Multicultural Affairs v Jia Legeng[8] at [71] and [72]:
All that was necessary to constitute bias, it was said, was an inclination or predisposition of mind. Under pressure of argument, this was qualified by the addition of adjectives such as “wrongful” or “improper.” The precise content of those adjectives, in the context, is not clear. Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or pre-disposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
The test which was applied by both French J and by the Full Court was orthodox. It accords with the decisions of this court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of pre-judgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any pre-disposition or inclination for or against an argument or conclusion. The preliminary argument should be rejected.
[8] [2001] HCA 17
I have had the benefit of listening to the audio and reading the transcript. In this matter, in fact, I find no pre-disposition or pre-determination in the Tribunal. The audio presents the member as assertive and, arguably, at times as perhaps blunt. I did not consider the interruptions to be other than to direct the applicant to the issue occupying the Tribunal’s mind being the discrete statutory requirement. Comments such as being “ready to make a decision” are nothing more or less than statements of fact but seen in context do, in fact, repeat the invitation for comment or response. Similarly, the statement of “having no option” is a statement of fact as to the discrete statutory requirement. It is entirely reasonable, in my view, for the Tribunal to indicate to the applicant that a decision would be forthcoming if no further or responding material or argument was to be provided. The invitation to respond or comment was rendered on a number of occasions.
Accordingly, I am not persuaded that ground 2 of the application is made out.
Ground 3 – that the Tribunal acted unreasonably in not adjourning the hearing and/or failed to provide a meaningful hearing on the application.
This argument concerns a discretion available in the Tribunal. The applicant had made complaint to the Tribunal as to his previous representation. The applicant claimed confusion as to the issue before the Tribunal. The applicant said that he was occupied in family law matters. His counsel now argues that these particular circumstances combined to render the invitation given to him to attend the hearing not being “meaningful.”
Counsel for the applicant relies on the comments of the High Court in Minister for Immigration and Citizenship v Li[9] where their Honours at [60] and [61] say:
The purpose of S360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal’s duty therefore extends further than merely issuing an invitation to an applicant to appear.
S360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case.
[9] [2013] HCA 8
Significantly, in the matter now before me, the applicant did not ask for an adjournment. As such, the Tribunal is not expected to give reasons for not granting one. It follows, and I agree with the submissions of counsel for the Respondent, that I must consider this argument of unreasonableness from the perspective of the outcome. This was a matter involving a discrete statutory requirement. The applicant had the benefit of the delegate’s determination. The Tribunal had written to the applicant seeking Confirmation of Enrolment. At the hearing, the Tribunal pursued the applicant in respect of the same material. The Tribunal was not dismissive of the applicant’s claimed difficulties or misunderstandings. In fact, the transcript and audio acknowledge consideration of those claims (line 198) but with the Tribunal bringing the applicant back to the relevant issue of the statutory requirement.
The applicant himself gave no indication on the transcript that he would be able to provide a Confirmation of Enrolment. Had he done so then an adjournment may well have been properly left for consideration.
In all of these circumstances I cannot be satisfied that there was unreasonableness on the part of the Tribunal in not exercising its discretion. Consequently, ground 3 is not made out.
Conclusion
I find no merit in the substantive application. Any argued prejudice to the applicant in not extending time therefore becomes irrelevant. I have found above that there is no acceptable explanation for the delay. In all of the circumstances, the application for extension of time is dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 5 February 2015
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