Hunjan v Minister for Immigration

[2016] FCCA 1048

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUNJAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1048

Catchwords:
MIGRATION– Review of Migration Review Tribunal decision – student visa – no jurisdictional error – application dismissed – applicant pay the respondent’s costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: RANJOT SINGH HUNJAN

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 447 of 2015

Judgment of: Judge Vasta

Hearing date: 28 April 2016

Date of Last Submission: 28 April 2016

Delivered at: Brisbane

Delivered on: 28 April 2016

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the First Respondent: Mr B. McGlade

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the Application filed 25 May 2015 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $6,825.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 447 of 2015

RANJOT SINGH HUNJAN

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this Court on 25 May 2015, the Applicant, Ranjot Singh Hunjan, asks this Court for a review of the decision of the then Migration Review Tribunal (as it then was) that affirmed an earlier decision of the delegate of the Minister for Immigration and Border Protection refusing a student visa to the Applicant. 

2. The Applicant is an Indian citizen born on 10 August 1987.  He has been in this country for some five to six years.  On 13 November 2014, while he was here in this country, he applied for a student visa.  This was a subclass 572 visa that has a number of criteria. 

3. Whilst those criteria are numerous, what was uppermost in the mind, it would seem, of the delegate was the financial aspect in that the delegate needed proof that the Applicant could meet the course fees, his living costs and school costs.  For that matter, the Department sent to the Applicant two letters the day after he had lodged his application. 

4. In those letters, the first letter spoke of the health examination that the Applicant had to undertake and the second letter identified that the Applicant had not provided any evidence to satisfy the financial capacity criteria.  The second letter also spoke about not satisfying the health criteria as well.

5. The letters that were sent on 14 November 2014 required a response within 28 days.  The Applicant did not respond to those letters and did not provide any further correspondence to the Department.  On 9 January 2015 a delegate of the Minister refused the application. 

6. Having a look at the decision of the delegate, it would seem that she refused the application because the Applicant had not provided any evidence to the Department to meet the financial capacity criterion.  Therefore, that criterion had not been satisfied and when it hasn’t been satisfied, the only decision the delegate can make is to refuse a grant of the visa.

7. On 21 January 2015 the Applicant applied to the then Migration Review Tribunal for a review of the decision.  Later that same day the Tribunal sent a letter by email acknowledging receipt of the application.  That letter provided:

   “If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.”

8. On 11 March 2015, some seven weeks later, the Tribunal again wrote to the Applicant.  That letter invited the Applicant to attend on a hearing before the Tribunal to give evidence and to present arguments.  The letter also spoke about a number of matters that the Applicant should be giving information to the Tribunal to help it in its decision. 

9. Most notably was this; that the letter asked for documents that demonstrate that the Applicant has sufficient funds or access to funds to pay course fees, living costs, school costs where relevant and travel costs over the relevant period. There were a number of other parts of that evidence as far as the income stream was concerned that should have been given.  The letter ends by saying:

   “…The Tribunal requests that the above information and any other evidence are provided to the Tribunal at least 7 days before the hearing date.”

10. That letter had given a hearing date of 22 April 2015.  So, therefore, on 15 April 2016 this information should have been before the Tribunal. 

11. It did not receive any information at all from the Applicant.  The day before the hearing, 21 April 2015, an officer of the Tribunal telephoned the Applicant.  There is a file note in relation to that conversation which is reproduced in the court book.  The file note reads:

    “I called RANJOT SINGH HUNJAN.  I referred him to the hearing tomorrow and that he has advised that he is participating in the hearing but he has not submitted any of the information requested from him.  I advised that the Tribunal would like him to provide the information.  Mr Hunjan was aware of the hearing time.  I referred him to the information on the second page of the hearing invitation.  Mr Hunjan advised that he had changed accommodation and the invitation would have been affected; he advised that he will look at the hearing invitation.  I asked whether he would send the information by fax or email and Mr Hunjan indicated he would try.”

12. On 22 April 2016 the hearing was held.  The Applicant attended by phone here in Brisbane whilst the member of the then Migration Review Tribunal was sitting in Sydney.  He failed to adduce any evidence that would enable him to satisfy the financial capacity criterion.  The Tribunal gave its decision and affirmed the decision of the Migration Review Tribunal. 

13. The Applicant comes to this Court seeking a review of the decision because of three grounds. 

Ground One

1. The first ground is expressed as follows:

   “1. Procedural impropriety: Bias.  It is alleged that there was apparent bias in the decision of the decision maker.  The Tribunal has wrongly assumed that because of the applicant’s appeared fluency in the English language, that he was able to fully comprehend or understand what was required of him by the Tribunal.”

2. Whilst that ground is couched as a complaint of bias, the language is somewhat misconceived.  To allege bias is to allege that the decision-maker was incapable of changing their mind, notwithstanding any evidence that was brought before them.  That does not seem to be really what is being alleged.  What is being alleged is that there is some error in the Tribunal accepting that because there was some fluency in the English language that the Applicant was able to fully comprehend or understand what was required of him by the Tribunal. 

3. It does seem to me that the Tribunal, in what they said about the Applicant, was making a determination based on the evidence before it.

4. In the decision of the Tribunal, paragraph 13 says this:

   “The applicant asked the Tribunal for more time to make submissions.  He stated he was confused and misinformed on how to proceed with his application.  However, the Tribunal is not satisfied that the applicant has been truthful in this regard.  The applicant’s evidence indicates that he has been in Australia for over five years and he was previously a good student.  He demonstrated at the hearing that he was fluent in English.  The Tribunal is satisfied that the applicant was clearly informed of the issues in his case and he had the time, ability and opportunity, to do something about it if he wanted to.  The Tribunal has formed the view that the applicant is using the review process to extend his stay in Australia…”

5. This phrase, that “the Tribunal was satisfied that the applicant was clearly informed of the issues in his case”, that is really the gravamen of the complaint of the Applicant.  His claim is that he was not clearly informed of the issues because his lawyers had not told him of the matter and how he should have done the things that he needed to do. 

6. The Tribunal earlier, in paragraph 10, had said in their discussion that:

   “…The Tribunal commented to the applicant that he appeared to be fluent in English, so it would have been apparent to him from the delegate’s decision, the Tribunal’s letter and the phone call he received from the MRT, what he had to do to support his review application.  The applicant stated his lawyers misled him and he was confused….” 

7. A claim that the Tribunal was biased because they wrongly assumed that, because of the Applicant’s appeared fluency in the English language, he was able to fully comprehend or understand what was required of him by the Tribunal, is incorrectly phrased because the reason that the Tribunal has assumed that he understood what was required of him was not simply because of his fluency in the English language. 

8. The Tribunal has come to its assumption because of the way in which the Applicant had conducted the hearing and obviously he did know what the hearing was about.  It is very difficult to keep using the excuse that his lawyers misled him and he was confused. 

9. Even today when I asked him who these lawyers were, he has said that he will not name them because he does not want to get anyone into trouble. This is notwithstanding that he is accusing these lawyers of misleading him and causing him to be in the predicament that he is now in. 

10. It would seem to me that when one looks at the history, that there was a letter sent by the delegate, that there was a decision made by the delegate, the decision was fairly plain in its reading, that there were two letters sent on 14 November 2014 and on 7 March 2015 stating exactly what needed to be done, there was a follow up phone call the day before the Tribunal hearing on 21 April 2015, and, on 22 April 2015, there was still no production of any documents.

11. In the time in which this matter has been before this Court, there has been no production of any documents which may have been able to have been relied on to say, “Well, see, if they had given enough time, I knew what was now needed.  I’ve got all these documents.  It shows that the Tribunal did wrongly assume that I had fully comprehended”. 

12. The truth of the matter is that the assumption that the Applicant was able to fully comprehend and understand what was required of him is not simply because of his appeared fluency in the English language before the Tribunal.  It is the history of the whole of the matter.  So, when looking at Ground One, it fails.

Ground Two

1. Ground Two is expressed as follows:

   “2. Procedural impropriety:  Unfairness. The decision by the Tribunal is inherently unfair because the applicant was confused and, stated multiple times in the decision record that he received misleading information from his legal representatives”. 

2. That claim of unfairness really cannot stand.  In this Court, the Applicant was given the opportunity to tell the Court what the information was from his legal representatives that caused him to be misled or confused and who these legal representatives were.  He declined to answer either of those requests from the Court; therefore, it would seem to me that there cannot be any basis for a claim of unfairness.

3. It also seems, when one has a look at the manner in which the Tribunal has gone about the matter, that no one could really say that the Tribunal has been unfair.  There was no explanation as to how there was any confusion or what there was confusion about.  There was simply, at the Tribunal hearing, a request for more time, as there was before this Court. Therefore, there is no basis for the ground two, and it also fails.

Ground Three

1. Ground Three is stated as follows:

   “3. Procedural Impropriety: Time/Delay:  The Tribunal has stated that it was their intention to proceed with a decision without further delay, thereby preventing the applicant from presenting any further evidence.” 

2. This, I take it, is, in effect, a claim that it was improper of the Tribunal to proceed without giving an adjournment for more time.  It seems to me, when one looks at the decision of the Tribunal, that the Tribunal has proper grounds for refusing to delay its decision any longer.

3. In the Tribunal’s decision, the history of the matter was given, and at paragraph 10, this was said about the Applicant needing more time to get information required:

   “..The Tribunal commented that it doubts as to whether the applicant was providing a truthful account of his circumstances.  It commented that he appeared to be using the review process to extend his stay in Australia rather than to demonstrate he was a genuine student.  It commented that in view of his lack of interest in supporting his application, the Tribunal had decided not to give the applicant more time for submissions.  The Tribunal stated that if the applicant provided submissions before the decision was made, it would consider those submissions, but it was the Tribunal’s intention to proceed to a decision after the hearing without further delay.”

4. There was nothing more submitted by the Applicant, and there has been no evidence shown here that if the Tribunal had actually allowed for more time, that the Applicant would have actually given material to the Tribunal that would have shown to the Tribunal that this was, in fact, a genuine application for a student visa. 

5. The finding by the Tribunal that the Applicant is using the review process to extend his stay in Australia is a finding that is open on the evidence and would seem to be a very rational inference that is drawn from all the evidence before it.  It would seem to me that, in this respect, there has been no impropriety in the manner in which the Tribunal has come to its decision not to take any longer to look at this matter.

6. In my view, it would seem that the Applicant has, to use the words of the Respondent, “been given an extensive opportunity to present his case both before and at the Tribunal hearing.  He just failed to take advantage of that opportunity.” 

7. I do not find that there is any substance to this ground either.  There is no jurisdictional error that can be established by the Applicant and, accordingly, I dismiss the application.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 25 May 2016