Guder v Minister for Immigration

[2017] FCCA 2527

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUDER & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2527

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of temporary business entry visas – failure to meet English language requirement – failure by the Tribunal to consider allowing more time to meet the English language test requirement – Tribunal hearing treated as a formality – breach of s.360 of the Migration Act 1958 (Cth) established.

Legislation:

Migration Act 1958 (Cth), s.360

Migration Regulations 1994 (Cth)

First Applicant: HAMIYET GUDER

Second Applicant: ALI GUDER

Third Applicant: ARIF GUDER

Fourth Applicant: YIGIT GUDER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 24 of 2016

Judgment of: Judge Driver

Hearing date: 18 October 2017

Delivered at: Sydney

Delivered on: 7 November 2017

REPRESENTATION

Counsel for the Applicants: Mr C Jackson, with Mr P Berg

Solicitors for the Applicants: City of Sydney Lawyers

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 8 December 2015 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 24 of 2016

HAMIYET GUDER

First Applicant

ALI GUDER

Second Applicant

ARIF GUDER

Third Applicant

YIGIT GUDER

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 December 2015.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants temporary business entry visas.  The following statement of background facts is derived from the submissions of the Minister filed on 10 October 2017. 

2. The first applicant, Mrs Guder, is a citizen of Turkey. The second applicant is her husband, and the third and fourth applicants are their children.  On 22 December 2014, Mrs Guder made an application for the grant of a subclass 457 visa on the basis of her occupation as a chef.[1]  The family members sought to be granted visas as members of Mrs Guder’s family unit.

   [1] Court Book (CB) 1-15

3. It was a requirement for the grant of the subclass 457 visa that:

   [457.223(4)]   (eb)  if:

   (i)      the applicant is not an exempt applicant; and

   (ii)    subclause (6) does not apply to the applicant;

   (iii)   at least 1 of subparagraphs (ea)(i) and (ii) does not apply;

   the applicant:

   (iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

   (v) achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; …

4. On 10 April 2015 the delegate refused to grant the applicant (and consequently the secondary applicants) a visa on the basis that she did not satisfy the primary criteria for the grant of the visa. In particular, Mrs Guder was found not to meet clause 457.223(4)(eb).[2]  The delegate noted Mrs Guder’s test results for an IELTS examination she had submitted were:

   ·Speaking 5.0

   ·Reading 3.0

   ·Writing 5.0

   ·Listening 5.0

   [2] CB 54-59

5. The applicants applied to the Tribunal for review of the delegate’s decision. The applicants were invited to appear at a hearing.[3] Under cover of a letter dated 2 December 2015, Mrs Guder’s migration agent sent the Tribunal copies of the applicant’s examination results for five IELTS tests she had sat between 2014 and 2015.[4]

   [3] CB 68-71

   [4] CB 80-85

Decision of the Tribunal

1. The Tribunal affirmed the decision under review.[5]

   [5] CB 91-93

2. The Tribunal observed that Mrs Guder had sought to come within the standard business sponsorship stream for the subclass 457 visa, the requirements for which were prescribed in clause 457.223(4).  It was a requirement for the grant of the visa that the applicant satisfy clause 457.223(4)(eb). The Tribunal noted that it had received from Mrs Guder prior to the hearing a number of IELTS test results, however none showed Mrs Guder as having met the necessary requirements.[6] The Tribunal noted that at the hearing, which Mrs Guder attended, she acknowledged that she had not achieved the specified scores.

   [6] CB 92 at [6]

3. The Tribunal found that Mrs Guder was required to meet the requirements of clause 457.223(eb)(v) as she did not come within any of the exceptions listed in clause 457.223(eb)(i), (ii) or (iii).[7]  On the basis of the evidence before it, the Tribunal was not satisfied that Mrs Guder had achieved in a single attempt the scores for a specified language test as set out in Ministerial Instrument IMMI 15/028.[8]

   [7] CB 92-93 at [12]-[14]

   [8] CB 93 at [16]

4. The Tribunal found that Mrs Guder and, as a consequence, the secondary applicants, did not meet the requirements for the grant of a subclass 457 visa.

The present proceedings

1. These proceedings began with a show cause application filed on 7 January 2016.  The applicants now rely upon an amended application filed on 10 April 2017.  There are three grounds in the application as amended:

   Ground one

   1. The Tribunal's conduct when it heard the applicant's case gave rise to a reasonable apprehension of bias, in that a fair-minded lay-person might reasonably apprehend that the Tribunal had closed its mind to the issues, and nothing that the applicant might say could change its mind.

   1.1 The Tribunal took six minutes (not counting the 10 minutes it spent swearing in the applicant and applicants in two other matters which it intended to dispose of in the same fashion) to conduct the hearing, and spent those minutes on a rudimentary confirmation of what the Tribunal already knew from the application, before telling the applicant that they would lose, concluding the matter as follows:

   “The point of coming in today is so I can basically let you know the concerns of the tribunal and why it will make the decision it will.”

   “ ... it's good that you came in today because then I got the opportunity to explain to you why the decision will be what it is.”

   Ground two

   2. The Tribunal failed to provide a genuine opportunity to the applicant to present her case, and in doing so, breached its obligation to give the applicant a fair hearing.

   2.1 The applicant repeats particular 1.1.

   2.2 If the hearing had been conducted fairly, Mrs Guder would have felt able to inform the Tribunal of the steps she had taken to meet the English language requirements, and the Tribunal could have considered whether to grant an adjournment in order to give her an opportunity to pass the test.

   Ground three

   3. The Tribunal breached procedural fairness, because it failed to inquire in circumstances where:

   (i) A simple inquiry about whether there was utility in allowing Mrs Guder more time to satisfy the English language requirement would have elicited information relevant to the exercise of a discretion to grant an adjournment;

   (ii) The information was readily available and centrally relevant to the decision to be made, because Mrs Guder's failure to satisfy that criterion was the reason for refusing her application.

2. The third ground in the amended application was not pressed.

3. In addition to the court book filed on 30 March 2016, I have before me as evidence Mrs Guder’s affidavit made on 18 April 2017 and two affidavits by Brenton Christopher Halligan (solicitor for the applicants).  In his first affidavit, made on 19 April 2017, Mr Halligan annexes a transcript of the hearing conducted by the Tribunal.  In his second affidavit made on 17 October 2017, Mr Halligan annexes an IELTS test report form dated 20 February 2016 which, on its face, establishes that Mrs Guder achieved a passing score in all elements of the test conducted on that day.

4. Both the applicants and the Minister filed written submissions and made oral submissions at the trial of this matter on 18 October 2017.

Consideration

1. The applicants assert error in the Tribunal’s decision on the following bases:

   a)first, that the Tribunal’s conduct of the hearing gave rise to a reasonable apprehension of bias; and

   b)secondly, that the Tribunal failed to give Mrs Guder a genuine opportunity to present her case, and denied her a fair hearing.

2. It is necessary first to consider the visa criterion in issue.  The relevant criterion was in clause 457.223(4)(eb) set out above.  In essence, Mrs Guder had to satisfy the Tribunal that she had undertaken a language test specified by the Minister in a legislative instrument and that she had achieved within the specified period in a single attempt at the test the specified score.  The relevant instrument is IMMI 15/028.[9]  Relevantly, and as specified in the instrument, the period for meeting the English language test was specified as “the period of three years from the date of the visa application”.  In other words, Mrs Guder had three years from the time of her visa application in December 2014 to obtain a passing score in an IELTS test.  That period does not expire until December 2017.  It appears that Mrs Guder sat five tests up to the time of the delegate’s decision, but had not sat any more following her application to the Tribunal.  It is not known when she booked the test which she passed in February 2016. 

   [9] reproduced at CB 72-76

3. Mrs Guder would have been on notice from the delegate’s decision that her failure to pass an English language test was an issue in the review.  To the extent that she had been left in any doubt, it would have been removed by the hearing invitation issued on 12 November 2015.[10]  That hearing invitation relevantly stated:

   You are invited to demonstrate that you meet the English language requirement in cl.457.223(4)(eb) or that you are an exempt applicant as provided for in IMMI 15/028 (attached). 

   [10] CB 69

4. That was obviously an issue (and probably the central issue) before the Tribunal at the time the hearing was conducted.  It was not, however, the only issue.  The Tribunal hearing was conducted about one third of the way into the period prescribed for Mrs Guder to comply with the visa criterion.  An issue which flowed from that was at what point within the three year period (if at all within that period) was it appropriate for the Tribunal to make its decision? 

5. In my opinion, Mrs Guder required a fair opportunity at the hearing to address the Tribunal on both of those issues.  Further, the Tribunal needed to keep an open mind on both of those issues. 

6. In order to determine whether the hearing opportunity was a fair one, it is necessary to consider the transcript of the hearing.  The hearing was very brief, and it is appropriate to reproduce the transcript in full.  Mrs Guder’s hearing was conducted in conjunction with a number of others.  That does not of itself point to any legal problem (the hearing did not have to be conducted in private) but the fact that the hearing was conducted with several others at the same time meant that a significant part of what the presiding member said was taken up with administrative issues relating to that grouping.  The transcript reveals as follows:

   Guder, Hamiyet - Tribunal Hearing

   Hearing officer

   The matter is in the hearing room and the tribunal is now in session.

   This is a hearing for the applications listed below on the date, this day the fourth of the twelfth, 2015.

   The tribunal is constituted by member Rania Skaros.  The hearing commences at 9:48 AM.

   Member Skaros:

   Everyone welcome to the tribunal. You are here today um because the department of immigration refused to grant you a subclass 457 temporary business visa.

   Now I will explain to you the procedures of today and how things will um pan out... But before I do that I am just going to ask the hearing office to first swear in all of the interpreters and then to swear in the primary visa applicant.

   Hearing officer

   Interpreters please stand.

   Do you promise to interpret what is said to the best of your ability and that you will not record, divulge or communicate any information or document that you have become aware of in these proceedings other than as required by law?

   Interpreters I do

   Hearing officer

   I might just identify this individual.  Are you two late?

   Unknown female

   Yes

   Hearing officer

   Your name please?

   Unknown male

   Inaudible

   Tribunal officer

   Can I ask you to stand up?

   Applicants please stand.

   Do you promise that the evidence that you give will be true.

   Applicants variously assent

   Member Skaros:

   Everyone welcome to the tribunal. I'm the member who will be making a decision on your applications for review.

   Now I'm speaking to you as a group, umm, simply because the issue that I need to decide today is the same.

   And so the introductory part of the hearing is going to be very similar in each of your cases.

   But once I give you a background on today's procedures I will invite each of you to come forward and I will take evidence from you individually and discuss your case with you on an individual basis.

   Okay I will now tell you how we're going to proceed today.

   Now as I indicated earlier each of you has been refused a temporary business visa and the issue for that refusal relates to the English language proficiency requirement

   Now the tribunal is independent from the Department of Immigration it is not bound by the Department's decision but it must nevertheless apply exactly the same rules

   And in making a decision on this application, I will be taking into account all of the information that is before me that's the information you provided to the department and the information you provided to the tribunal.

   And I will also give you an opportunity to provide any oral evidence to the tribunal today

   I will be asking you a number of questions and will give you an opportunity to respond

   So now, um, um, I am going to hear these cases in the following order: the first will be Miss Guder, the second will be …, um and third will be um ….

   Do we have a fourth applicant?

   OK so that's the order that I will be hearing each matter. Ok.

   Now as you know the hearings are being recorded

   Now does anyone here have any documents that they haven't already provided to the hearing officer

   Now as I am hearing other people's matters you are more than welcome to stay in the room or you can stay outside but please don't go too far and then we call you when it's time to hear your case.

   …

   Okay alright as indicated I will start with Miss Guder, so Ms Guder don't go out.  If you can please come forward.  We are now just going to have a break for about one or two minutes if you want to stay in the room you can, if not you are more than welcome to stay outside.

   Hearing officer

   The hearing is now adjourned. The time is 9.56 a.m. and now I will pause the recording

   Part 2

   Hearing Officer   This is a resumed hearing of an application by Mrs Hamiyet Guder – Ali Guder

   File number 1505626

   Held on 4 December 2015

   The hearing commences at 9:58 AM

   Member Skaros     Ms Guder, welcome to the Tribunal.

   Turkish Interpreter (Turkish language)

   Hamiyet Guder      Thank you very much

   Member Skaros    Now you made an application for the subclass 457 visa.

   Hamiyet Guder      Yes

   Member Skaros     That application was made in December 2014

   Hamyirat Guder    Yes

   Member Skaros     Now tell me in what occupation were you nominated by your sponsor?

   Turkish Interpreter (Turkish language)

   Hamiyet Guder      Cook chef

   Member Skaros    And what is the salary that is nominated for that application?

   Hamyirat Guder[discusses with interpreter]

   Interpreter           Sorry I am checking if the amount mentioned is weekly or monthly

   Member Skaros     OK. What's your annual salary?

   Hamiyet Guder[responds to interpreter in Turkish]

   Interpreter           Please I expressed as .... [Interpreter and HG speak in Turkish] ... it was expressed as weekly wages so she doesn't know how much is it annually, because ... but in the documents perhaps?

   Member Skaros    Your, your employer in your application indicated guaranteed annual earnings will be 54,000. Does that sound correct to you?

   Hamiyet Guder      Yes, yes

   Member Skaros    Now other than a passport of Turkey, do you hold a passport of any other country?

   Hamiyet Guder      No

   Member Skaros:

   After considering your evidence, which is consistent with the information before me, I have determined that you are required to meet the English language proficiency requirement set out in the relevant instrument.

   Turkish Interpreter (Turkish language)

   Member Skaros     A copy of that instrument, a copy of the information was sent to your representative and you were requested to provide the evidence to the Tribunal.

   Turkish Interpreter (Turkish language)

   Member Skaros     Um, now you've claimed the ... the only evidence that I have relates to your IELTS tests results.

   I have considered those results but unfortunately they do not meet the minimum requirement of 4.5 in each of the categories and five overall and so it appears that you do not meet the English language proficiency requirement.

   Turkish Interpreter (Turkish language)

   Member Skaros     And so in these circumstances, the tribunal would not be able to find in your favour.

   Turkish Interpreter (Turkish language)

   Hamiyet Guder      Ok, yes

   Hamiyet Guder:     [via translator] What can I do now?

   Member Skaros:   You need to get advice from your representative. The point of coming in today is so I can basically let you know the concerns of the tribunal and why it will make the decisions that it will. OK?

   Turkish Interpreter (Turkish language)

   Hamiyet Guder:     Yes

   Turkish Interpreter Yes

   Member Skaros:   Alright, look, I have no further things to discuss with you um I've um no I did only just receive these from your representative and so the reason ... it's good that you came in today because then I got the opportunity to explain to you why the decision will be what it is.

   Turkish Interpreter (Turkish language)

   Hamiyet Guder Thank you very much, thank you

   Member Skaros:   Feel free to go

   Hearing Officer   This hearing is now concluded. That time is 10.04am.  I am now stopping recording.

   Member Skaros     you free to leave

   Hamiyet Guder      Thank you, thank you so much

   END OF RECORDING

7. I explored with counsel at the trial of this matter whether the numerous references to the “Turkish language” indicated that anything had been omitted from the transcript.  I was assured that it had not and that all exchanges in the English language had been reproduced.

8. Several things are apparent from the transcript.  The first is that the Tribunal member knew more about Mrs Guder’s application than she did.  The second is that Mrs Guder was obviously at a disadvantage in the absence of her migration agent who unfortunately did not attend the hearing.  The third is that the Tribunal member specifically noted that Mrs Guder’s visa application was made in December 2014. It follows that she would have been aware that Mrs Guder had until December 2017 to satisfy the English language test criterion.  Finally, it is plain that the focus of the Tribunal member’s attention was on the failure of Mrs Guder, to that point, to meet the English language requirement.  There was no consideration of whether Mrs Guder should be given more time to meet the requirement.  The Minister points out that Mrs Guder did not ask for more time.  While that is so, Mrs Guder did ask, “what can I do now?”  In response, the Tribunal member simply referred Mrs Guder to her representative, who was not present.  It was plain that, at that point, the Tribunal had made up its mind. 

1. In my opinion, at a minimum, the Tribunal needed to ensure that Mrs Guder was aware of the issues bearing upon the review. The Tribunal did not need to remind her of the principal issue, being whether she met the English language criterion. In any event, that was made clear at the hearing. The Tribunal did, however, need to ensure that Mrs Guder was aware of the secondary and consequential issue, namely whether Mrs Guder should be afforded more time within the prescribed period of three years in the Ministerial Instrument to attempt to meet the criterion. The failure by the Tribunal to say anything about that issue leads me to conclude that Mrs Guder was not afforded a meaningful hearing opportunity by the Tribunal. This constitutes a breach of s.360 of the Migration Act 1958 (Cth). That is sufficient to establish jurisdictional error and to provide Mrs Guder with the relief she seeks.

2. It is not strictly necessary to address the issue of bias but, for completeness, I will do so.  The Tribunal hearing was very brief.  The Tribunal member directed her mind to what she saw as the determinative issue, namely the failure to that point of Mrs Guder to meet the English language criterion.  The Tribunal failed to say anything about the fact that Mrs Guder had a further two years under the legislative instrument in which she could meet the criterion.  The Tribunal, when asked by Mrs Guder what else she could do, simply referred her to her representative, who was not present.  Taken together, this leads me to find that a fair minded lay observer, aware of all the relevant circumstances and facts, might reasonably apprehend that the Tribunal member might not have brought an unprejudiced mind to bear upon the issue of the time within which Mrs Guder should be given to attempt to comply with the visa criterion.  This further establishes jurisdictional error.

Conclusion

1. Mrs Guder has established that the decision of the Tribunal is affected by jurisdictional error.  I will grant relief in the form of the constitutional writs of certiorari and mandamus.

2. I will hear the parties as to costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  7 November 2017