Gupta v. Minister for Immigration and Border Protection & Anor

[2016] HCATrans 260

[2016] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M121 of 2016

B e t w e e n -

SHUSHANT GUPTA

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 4 NOVEMBER 2016, AT 9.29 AM

Copyright in the High Court of Australia

MR S. GUPTA appeared in person.

MR L.T. BROWN:   If the Court pleases, I appear for the first defendant.  (instructed by Australian Government Solicitor)

REZANUZZAMAN CHOWDHURY, affirmed as interpreter.

HIS HONOUR:   Mr Gupta, I have read your documents – your application, your affidavit and the exhibits.  Is there anything further that you wish to add in support of your application?

MR GUPTA:   Not today, like I gave all my documents before already so whatever documents you called, like yeah; that is it.  Thank you.

HIS HONOUR:   Thank you.  Mr Brown.

MR BROWN:   I am content to rely on my written submissions, your Honour.

HIS HONOUR:   Thank you.  Mr Gupta, there is just one thing.  Do you now have any documentary evidence that the PRISMS database was in error?

MR GUPTA:   Yes, I do have like, and I provided those documents, like in my last hearing as well.  It shows like my PRISMS record, like what is on the PRISMS record.

HIS HONOUR:   You say that you provided those documents to the Federal Court?

MR GUPTA:   Yes, I did.

HIS HONOUR:   Thank you.  Are you aware of those, Mr Brown?

MR BROWN:   I have not seen the material.  I have sought some instructions about that, your Honour, and I do understand, based on my instructions, the documents did reveal the PRISMS database – sorry, I will just get some instructions.

HIS HONOUR:   Certainly.

MR BROWN:   I should be careful with what I say, your Honour.  It was material that could have been used by someone finding facts to establish that the PRISMS database might have been in error, in the sense that it was correspondence from the education provider to the extent that it supported the position that Mr Gupta sought to argue, and that is in fact that he had not completed the course that was shown on the database as having been completed.

Your Honour will have seen from the Federal Court’s judgment that Mr Gupta sought to adduce that evidence before the Federal Court on appeal and that was declined on the basis – well, on a number of bases, including that there was no explanation as to why it had not been produced earlier, in the sense of this issue as to the accuracy of the PRISMS database had been an issue from the very start; it had been the issue before the delegate, it had been the issue before the Tribunal and, of course, it was an argument that Mr Gupta sought to run in the Federal Circuit Court.  It was not until the Federal Court stage that material was produced seeking to disagree with facts found all the way through, and so on that basis the Federal Court declined to allow it into evidence on appeal.

HIS HONOUR:   Thank you, Mr Brown.

MR BROWN:   If your Honour pleases.

HIS HONOUR:   The plaintiff seeks an order to show cause why certiorari should not go to quash a decision of the Administrative Appeals Tribunal dated 8 February 2015, and why mandamus should not go to compel the defendant (“the Minister”) to reconsider a decision of 16 July 2014 to refuse to grant the plaintiff a Student (Temporary) (Class TU) visa.

The application was not filed until 2 September 2016, more than a year outside the time limited by section 486A of the Migration Act 1958 (Cth). For reasons which I shall explain, I am not disposed to grant an extension of time.

The plaintiff is an Indian citizen who arrived in this country on a student visa in February 2007.  He was granted a further student visa extending until 17 September 2010 and then a Temporary (Graduate) (Class VC Subclass 485) visa which expired on 18 March 2014.

On 17 March 2014, he applied for a Student (Temporary) (Class TU) visa but on 16 July 2014 the Minister’s delegate refused the application as not complying with the criteria mandated by paragraph 562.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth). Specifically, the delegate was not satisfied that the plaintiff genuinely intended to stay in Australia only temporarily.

On 30 July 2014, the plaintiff applied to the Migration Review Tribunal, now the Administrative Appeals Tribunal, for review of the delegate’s decision, but on 18 February 2015 the Tribunal affirmed the delegate’s decision.

Based on information extracted from the Provider Registration and International Student Management System (“PRISMS”), the Tribunal affirmed the delegate’s finding of fact that the plaintiff had completed all of the requirements for completion of a Diploma of Business course and found that the plaintiff had not provided a satisfactory explanation why he had then enrolled in a second course.  The Tribunal did not accept that the proposed course of study would assist the plaintiff in obtaining employment or improve his prospects of obtaining employment in his home country.

On 13 April 2015, the plaintiff applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.  He alleged that the Tribunal had made its decision without considering all of the facts, failed to accord him procedural fairness and failed to take into account compassionate considerations which it was said warranted remission of the matter to the Minister.  Then, when the matter came on for hearing in the Federal Circuit Court on 14 April 2016, the plaintiff added a further ground of complaint that the Tribunal had erred in finding that he had completed the course of study for the Diploma of Business degree, contrary to his oral testimony that he had only partially completed the course.

On the same day, the Federal Circuit Court, constituted by Judge Driver, rejected the application.  His Honour held that it was not demonstrated that the Tribunal had fallen into jurisdictional error.

On 29 April 2016, the plaintiff appealed to the Federal Court of Australia on grounds, in substance, that:  (1) the Federal Circuit Court had failed to assess the evidence on which was based that the Tribunal’s decision; (2) and (3) that the Federal Circuit Court had failed to consider or have regard to new evidence relevant to the Tribunal’s decision; and (4) that the Federal Circuit Court had failed to afford the plaintiff procedural fairness.

On 24 August 2016, her Honour Justice Perry dismissed the appeal.  As her Honour observed, essentially what underlay each ground of appeal was a complaint that the Tribunal had rejected the plaintiff’s testimony that he had not completed the requirements for the Diploma of Business degree.  To that extent, the appeal rose no higher than a complaint that the Tribunal had not found as the plaintiff had wished it to find.

Her Honour also referred to what was said to be the new evidence as follows:

“Mr Gupta did not file written submissions in the Court below.  In oral submissions before the primary judge, Mr Gupta raised only the issue which he seeks to raise also on this appeal, namely, that the Tribunal had concluded that he had earlier completed the Diploma of Business course when in fact he had only partially undertaken it.  The primary judge explained at [22] that:

‘At the heart of Mr Gupta’s complaint is the proposition that the course that he was seeking to undertake pursuant to his visa application was a course that he had not previously undertaken.  The Tribunal reasoned that Mr Gupta was repeating previous studies because the previous course had been completed.’”

Justice Perry also noted that, in support of that contention, Mr Gupta had sought to tender a certificate from iAscend indicating that he had completed only two units of the Diploma of Business course.  As her Honour observed, however, Judge Driver had found that the certificate did in fact appear at page 98 of the court book and thus was available to the Tribunal and, moreover, that, by reason of the delegate’s decision, which Mr Gupta had provided to the Tribunal with his application, Mr Gupta was on notice of the issue that the PRISMS database recorded that he had completed all of the requirements for the Diploma of Business course and that the Tribunal had not erred in its consideration of that issue.

Before the Federal Court there was also a complaint that the Tribunal had erred in failing to make further inquiries to ascertain whether the PRISMS database was in error.  But, as her Honour observed, given the circumstances of this case, there was no obligation on the Tribunal to make any further such inquiry.  By contrast to a case like Wei v Minister for Immigration and Border Protection (2015) 90 ALJR 213; 327 ALR 28; [2015] HCA 51, there was nothing here sufficient to put the delegate on inquiry as to the accuracy of the PRISMS database. And in contrast to Wei, the delegate here did not proceed without affording the plaintiff an opportunity to produce evidence demonstrating an error in the database.

The grounds of the plaintiff’s application to show cause are essentially the same as his grounds of appeal before the Federal Court.  Thus, in effect, they raise nothing that has not already been fully considered and rejected by the Federal Court.  Nor does it appear to me that there is any reason to suppose that they would meet with any more success in this Court than they have in the courts below.  From all that appears, the Tribunal’s decision was plainly correct.  On the evidence, it is apparent that there was and is good reason to conclude that the plaintiff is not seeking to stay in this country only temporarily.

Plainly, considerable emphasis was put on the document from iAscend in the submissions which the plaintiff advanced before the Federal Court.  Similarly, in this Court, the plaintiff emphasises the importance of the iAscend document as contradicting what is contained in the PRISMS database, and as being something which in his submission was sufficient to lead the Tribunal properly to conclude that the PRISMS database could not be relied upon.  Like the Federal Circuit Court and Federal Court judges below, however, it appears to me that the Tribunal did take into account the iAscend document and was not persuaded that it was sufficient to overcome the apparent regulatory of the PRISMS database.  In the absence of any other or further evidence to contradict the PRISMS database, I see no reason to disagree with that conclusion.  The plaintiff’s failure even now to produce any further objective evidence as to the state of the database fortifies me in that conclusion. 

In the result, the application will be dismissed.

Are you seeking costs?

MR BROWN:   Yes, your Honour.

HIS HONOUR:   The application will be dismissed with costs.  Thank you, the Court will adjourn.

AT 9.47 AM THE MATTER WAS CONCLUDED