Kalimakolan v Minister for Immigration and Anor

[2020] FCCA 3145

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALIMAKOLAN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3145

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine student – applicant seeking adjournment of Tribunal hearing – Tribunal mistakenly unaware of previous request – whether the hearing was fair considered – no jurisdictional error.

Legislation:

Administrative Appeals Tribunal Act1975 (Cth), s.2A

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.359A, 359AA, 360, 360A, 363

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Brar (2012) 201 FCR 240

Minister for Immigration v Chamnam You [2008] FCA 241

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v Singh [2014] FCAFC 1

Minister for Immigration v SZMTA [2019] HCA 3

Minister for Immigration v SZVFW [2018] HCA 30

Siddique v Minister for Immigration [2014] FCA 1352

Applicant: VENKAT RAM REDDY KALIMAKOLAN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 717 of 2019

Judgment of: Judge Driver

Hearing date: 18 November 2020

Delivered at: Sydney

Delivered on: 18 November 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms Roberts of Mills Oakley

ORDERS

1. The application filed on 25 March 2019 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 717 of 2019

VENKAT RAM REDDY KALIMAKOLAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Kalimakolan, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 19 March 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Kalimakolan a student visa. 

2. Background facts relating to this matter are conveniently set out in the initial written submissions filed on behalf of the Minister on 3 December 2019, which I adopt. 

3. Mr Kalimakolan is a citizen of India who arrived in Australia on 15 March 2015 as the holder of a student (Subclass 573) visa to undertake a Master of Business Administration at Federation University.[1] After his arrival, Mr Kalimakolan had changed his enrolment from a Master of Business Administration to a Master of Technology.  In March 2016, he commenced a Master of Networking.  His enrolment was cancelled in August 2016. In January 2017, he commenced a Master of Business Administration with Group Colleges Australia.[2]

   [1] Court Book (CB) 49

   [2] CB 49

4. On 7 March 2017, Mr Kalimakolan lodged a student (Subclass 500) visa application to continue his studies at Group Colleges[3] and provided a number of documents in support of the visa application.[4]

   [3] CB 1-16

   [4] CB 17-34

5. On 20 June 2017, the delegate refused to grant Mr Kalimakolan a student visa.[5] The delegate was not satisfied that Mr Kalimakolan was a genuine applicant for entry and stay as a student as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). In particular, the delegate found that Mr Kalimakolan had not completed a qualification in the two years since his arrival in Australia and appeared to be using the student visa programme as a means of extending his stay in Australia.[6]

   [5] CB 47-51

   [6] CB 50

The Tribunal

1. On 28 June 2017, Mr Kalimakolan applied for review with the Tribunal,[7] nominated a representative and provided a copy of the delegate’s decision.[8]

   [7] CB 52-53

   [8] CB 53

2. On 31 October 2018, the Tribunal invited Mr Kalimakolan to attend a scheduled hearing on 5 December 2018.[9] The hearing invitation also requested, amongst other things, that Mr Kalimakolan provide a copy of his current Confirmation of Enrolment and an explanation for any gaps in his enrolment and evidence relevant to the explanation.[10] Mr Kalimakolan did not provide the requested information.

   [9] CB 62-66

   [10] CB 65

3. Mr Kalimakolan attended the scheduled hearing at 9:00am on 5 December 2019[11] and provided a number of documents to the Tribunal including: a letter from his representative requesting the hearing be adjourned due to the applicant having an exam at 12:00pm on the day of the hearing,[12] a Confirmation of Enrolment for the Master of Business Administration,[13] an academic transcript[14] and a written statement.[15]

   [11] CB 84-86

   [12] CB 87

   [13] CB 91

   [14] CB 92

   [15] CB 93

4. Mr Kalimakolan claimed he had provided the adjournment request to the Tribunal weeks before the hearing. The letter was undated and the Tribunal had no record of receiving it and on this basis, the Tribunal was not satisfied the adjournment request was provided within an appropriate timeframe. The Tribunal proceeded with the hearing and gave Mr Kalimakolan additional time following the hearing to provide further evidence.[16]

   [16] CB 113, [13]

The Tribunal’s decision

1. On 19 March 2019, the Tribunal affirmed the decision under review.[17]

   [17] CB 112-120

2. The Tribunal identified the issue in this matter was whether Mr Kalimakolan genuinely intended to stay in Australia temporarily.[18] It set out the requirements of clause 500.212 of the Regulations and acknowledged that it was required to have regard to Direction 69 which required the Tribunal to have regard to a number of specified factors.[19] It also acknowledged that Direction 69 was not to be used as a checklist and was intended to guide decision makers only.[20]

   [18] CB 117, [15]

   [19] CB 118, [16]-[17]

   [20] CB 118, [18]

3. Having considered Mr Kalimakolan’s claims and relevant information against the Direction 69 criterion, the Tribunal found that Mr Kalimakolan did not satisfy the GTE[21] criteria.[22]

   [21] Genuine Temporary Entrant

   [22] CB 118, [19]

4. The Tribunal found Mr Kalimakolan’s written statement was essentially the same as the statement previously provided to the delegate, with additional information regarding his study in the Master of Business. The Tribunal accepted that this was consistent with his PRISMS[23] records, which the Tribunal provided to Mr Kalimakolan at the hearing.[24]

   [23] Provider Registration and International Student Management System

   [24] CB 118, [20]

5. The Tribunal identified that “a number of concerns” arose from Mr Kalimakolan’s written statement, including that he enrolled in a Master of Information Technology then a Master in Networking, both of which he withdrew from without completing. Mr Kalimakolan claimed he enrolled in the courses not because he was interested, but because of parental pressure. The Tribunal accepted that his oral evidence at the hearing was consistent with this information but found there was no probative evidence to support the claim or to address the concern Mr Kalimakolan enrolled in courses which he did not complete and therefore had displayed no academic progression or consistent study since his arrival in Australia in 2015.[25]

   [25] CB 119, [21]

6. The Tribunal had regard to Mr Kalimakolan’s oral evidence that when he first arrived in Australia he did not know anyone and felt depressed, and acknowledged that it can be difficult travelling to a foreign country to study. However, the Tribunal was not persuaded that this explained why he withdrew from the Master of Business Administration course, which was the rationale for seeking a student visa in Australia. The Tribunal also found Mr Kalimakolan provided no medical evidence in support of the claim to have suffered depression or demonstrated how this affected his ability to study. The Tribunal therefore placed no weight on this claim.[26]

   [26] CB 119, [22]

7. The Tribunal had regard to Mr Kalimakolan’s written statement in which he claimed his future plan was to work in an electronics and communication firm in a managerial role. The Tribunal found he provided inconsistent oral evidence during the hearing, where he claimed his future plan was to buy a restaurant. The Tribunal did not find the claim credible as Mr Kalimakolan had no experience or qualifications in the hospitality sector and was not persuaded by the plans outlined in the applicant’s written statements on the basis they were inconsistent with his oral evidence. The Tribunal was not satisfied Mr Kalimakolan had credible plans for how he would apply skills he acquired from his studies in Australia towards improving his employment or business prospects in India.[27]

   [27] CB 119, [23]

8. The Tribunal acknowledged that Mr Kalimakolan had completed most of the subjects associated with his current enrolment which was consistent with the transcript he provided and the available PRISMS records. The Tribunal placed some weight on this factor.[28]

   [28] CB 119, [24]

9. Having regard to his home ties, the Tribunal accepted Mr Kalimakolan had parents and relatives in his home country and that he returned to India in early 2018. The Tribunal placed some weight on this, but found there was no indication he had economic assets in India which would provide him with an incentive to return. The Tribunal also noted that there was no indication he had concerns about the political situation or civil unrest in India, or any unserved military commitments.[29]

   [29] CB 119, [25]

10. Having regard to the economic incentives for Mr Kalimakolan to maintain his residency in Australia, including the disparity in his employment earning potential between Australia and India, the Tribunal noted that Mr Kalimakolan had been employed at a petrol station. The financial records provided by Mr Kalimakolan indicated he had a regular wage of between $430 and $480 per week, which the Tribunal noted was a bit higher than he claimed at the hearing. The Tribunal found various cash deposits shown in the bank statements suggested he had an additional income.[30]

    [30] CB 119, [26]

11. The Tribunal found that Mr Kalimakolan did not take up the opportunity at the hearing to provide further arguments in support of the claim to have an intention to only remain in Australia temporarily as a genuine student. The Tribunal was satisfied Mr Kalimakolan was invited to do so and that he gave oral evidence he wished to during the hearing.[31]

    [31] CB 120, [27]

12. The Tribunal considered all the available evidence, including that Mr Kalimakolan was enrolled in a Master of Business which was due to finish in May 2019, that he had stronger family ties in India than Australia and all other matters raised. The Tribunal did not accept Mr Kalimakolan was undertaking study for the reasons he claimed, but rather was using it as a pathway to maintain residence in Australia. The Tribunal found Mr Kalimakolan had not achieved significant academic progress to date and had failed to complete any of the previous courses in which he had enrolled since 2015. The Tribunal was not persuaded by Mr Kalimakolan’s explanation for his study history and found his claims about his future plans were unconvincing. The Tribunal had an “unresolved concern” that Mr Kalimakolan had an incentive for seeking to maintain his residency in Australia.[32]

    [32] CB 120, [28]

13. The Tribunal was therefore not satisfied Mr Kalimakolan was a genuine applicant for entry and stay as a student and found the student program was being used to maintain ongoing residence.[33] The Tribunal was not satisfied Mr Kalimakolan was a genuine student and therefore found he did not meet clause 500.212.[34] The Tribunal affirmed the decision under review.[35]

    [33] CB 120, [29]

    [34] CB 120, [30]

    [35] CB 120, [32]

The present proceedings

1. These proceedings began with a show cause application filed on 25 March 2019.  There are two grounds to the application:

   1. The Tribunal erred in law by not providing adequate opportunity to the applicant to [explain] his case. This lack of procedural fairness resulted in miscarriage of justice.

   Particulars

   The applicant had his Master's Degree exam on the day of hearing at 12.00 pm. The Applicant[’s] representative had requested for an adjournment few weeks earlier which according to the Tribunal it had not received. The applicant attended the hearing and was self represented. The interview before the Tribunal started at about 11.30 am. Applicant handed over some documents regarding his enrolment, COE, mark sheet, studies, including the adjournment letter requesting to postpone his hearing due to the exams on that day.  The Tribunal with 10 to 15 minutes adjourned the hearing on account of his exam and provided the applicant time to file additional documents. As the hearing lasted only for 10 to 15 minutes and the applicant's state of mind was more focused on the exam, the Tribunal should have requested him to attend to the hearing on a later date so that he can give detailed evidence regarding his future ambition , the manner in which his studies in Australia may help him in that regard and his eligibility for a 573 visa.  The applicant due to his exams in the same morning was mentally unfit to depose before the Tribunal and reasonable opportunity to adduce oral evidence was denied by the Tribunal.  This act of Tribunal to dispose the matter in a rush on the same day vitiated procedural fairness and resulted in miscarriage of justice.

   2. The Tribunal erred in law by failing to advice the applicant as to matters which may be the reason for the Tribunal to reject his application. This violated Sec 359AA of the Migration Act.

   Particulars

   The Tribunal in para 26 has observtd as follows “As to whether the applicant has an economic incentive for seeking to maintain his residency in Australia,--------. Of concern, are other cash deposits such as $1,170 deposited at an ATM machine at Engadine NSW ------. This gives rise to concern that the applicant has income other than that readily apparent from wages deposits from "Ram Reddy" which may not be apparent from his taxation records----."  If the member had concern about this matter then the Tribunal should have adopted the procedure enunciated under Sec 359 AA of the Act.  This deposit has nothing to do with income and the Applicant would have explained it, if provided an opportunity.

2. The application was supported by a short affidavit filed with it, which I received at the interlocutory stage of these proceedings as a submission.  The matter came before me for a show cause hearing on 10 December 2019.  Mr Kalimakolan attended in person and tendered documents described as screenshots from the “Minister’s Department’s computer”.  I received those as an exhibit.[36] 

   [36] exhibit A1

3. Mr Kalimakolan complained that the Tribunal was incorrect in finding that he had not requested an adjournment of his Tribunal hearing prior to the hearing.  The documents comprising exhibit A1 appear to provide some support for that assertion. 

4. Under rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), I ordered the Minister to show cause why relief should not be granted in relation to the question whether the Tribunal’s exercise of discretion not to adjourn the hearing before it miscarried because it was based on a false factual foundation, namely, that the request for an adjournment was not made before the Tribunal hearing.

5. The matter was to be heard on a final basis on 1 September 2020, but the parties agreed on 26 August 2020 that the hearing should be adjourned until today. 

6. For the purposes of today’s final hearing, I had before me the court book filed on 13 May 2019 and two affidavits read by the Minister.  The first is the affidavit of Michelle Anne Harradine made on 8 September 2020.  Annexed to that affidavit is a transcript of the Tribunal hearing conducted on 5 December 2018. 

7. A second affidavit by Adam Wesley Gason made on 8 September 2020 goes to the issue of the Tribunal record system.  Mr Gason’s affidavit establishes that Mr Kalimakolan did indeed provide a request for an adjournment prior to the Tribunal hearing.  Due to a technical error, however, that was not drawn to the Member’s attention. 

8. Mr Kalimakolan did not take up the opportunity to file additional material prior to today’s hearing.  I invited oral submissions from him this afternoon.  Mr Kalimakolan submits that he was disadvantaged by the Tribunal error.  The refusal of the adjournment put him under a lot of stress.  Mr Kalimakolan says that he is a sincere student.  He told me that since the Tribunal decision, he had completed his program of study.  He has now commenced a post-graduate Diploma of Business Research.  He wishes to obtain the student visa in order to complete that research programme.

9. Considered in isolation, the refusal of the adjournment by the Tribunal appears unfair.  The Tribunal dealt with the issue of the adjournment in its reasons at [13][37]:

   At the hearing, the applicant also provided the Tribunal with a letter from his migration agent, who was not present at the hearing, requesting a hearing postponement due to the applicant having an examination associated with his Masters of Business Administration course scheduled at 12 noon on the day of the hearing. The applicant claimed the postponement request was provided to the Tribunal some weeks prior to the hearing. This letter was undated and the Tribunal has no record of it being received prior to when the applicant handed this up at the start of the hearing. The Tribunal was not satisfied that this postponement request was provided within an appropriate time frame but did consent to conducting the hearing in a timely manner and gave the applicant time following the hearing to provide further documentary evidence and submissions for the Tribunal to consider before a decision is made in this matte,.

   [37] CB 117

10. The hearing was quite short, less than 30 minutes.  It is apparent that the hearing was truncated once the Tribunal member appreciated that Mr Kalimakolan had an examination at 12:00pm.  While Mr Kalimakolan asserts that he was under a lot of pressure at the Tribunal as a result, that is not apparent from the transcript.  It may be accepted, however, that a person undergoing a Tribunal hearing with an examination immediately afterwards may experience stress.  It is not entirely clear from the transcript whether the Tribunal and Mr Kalimakolan were at cross purposes concerning the urgency of his departure.  At page 8 of the affidavit at line 10, Mr Kalimakolan informed the Tribunal that his examination was at 12:00pm.  The hearing had commenced at about 11:15am, and accordingly, the examination was fast approaching.  Mr Kalimakolan said at line 12:

    I can go in 15 minutes.

11. Mr Kalimakolan says he meant that he needed to leave in 15 minutes.  Later, however, at line 18, the Tribunal member asked Mr Kalimakolan how much time he needed to get the examination.  He responded that 15 minutes was enough.  The Tribunal acted on that information and concluded the hearing at 11:42am.  Nevertheless, Mr Kalimakolan now asserts that that was insufficient time to get to his examination and it was necessary for him to sit a supplementary examination. 

12. Notwithstanding the obvious difficulties surrounding the Tribunal hearing, there are considerations weighing against a conclusion that the refusal to adjourn was unreasonable.  The first is that the Tribunal was not on notice of Mr Kalimakolan’s prior adjournment request, although it should have been.  The second is that the Tribunal took Mr Kalimakolan at his word concerning his examination commitment and truncated the hearing to enable him to meet that commitment.  Thirdly, the Tribunal made the effort to put squarely before Mr Kalimakolan its concerns relating to his visa application.  Further, the Tribunal provided Mr Kalimakolan with the opportunity to provide material in writing after the hearing. 

1. Those considerations lead me to the view that the circumstances of the hearing, while unfortunate, do not lead to a conclusion that the Tribunal acted unreasonably.

2. The Minister’s submissions filed on 9 November 2020 deal with these issues.  I agree with those submissions and adopt them.

3. As noted above, Mr Kalimakolan had an exam at 12:00pm on 5 December 2018, the date of the Tribunal hearing. Mr Kalimakolan attended the Tribunal hearing and handed up a letter requesting an adjournment (the postponement request), which he claimed to have provided to the Tribunal “a few weeks” earlier. The Tribunal found it had not received any such request prior to the hearing and decided to proceed with the hearing and not postpone it.[38]

   [38] CB 117, [13]

4. Also as noted above, at the show cause hearing on 10 December 2019, Mr Kalimakolan provided screenshots which were purportedly a log of documents submitted to the Tribunal. This document was received into evidence and marked as Exhibit A1.

5. Mr Gason’s affidavit indicates that the Tribunal reviewed their Tribunal Online system (TRON) to determine when Mr Kalimakolan lodged the postponement request document. The TRON system indicates that on 14 November 2018, Mr Kalimakolan uploaded and submitted a document with the Document Type “Request for hearing postponement”. However, due to a technical error to do with a flaw in the design of the TRON system, the document which was uploaded, was not reflected in the Migration Review Divisions file management and record keeping practices and the electronic management system (CaseMate) which is used by Tribunal Members to manage their cases.

6. In light of this error, the Tribunal member would not have been aware of the postponement request which was uploaded by Mr Kalimakolan onto the TRON system on 14 November 2018.

7. Accordingly, the Minister concedes that the Tribunal incorrectly found that no postponement request had been received.[39] However, the Minister does not concede that the Tribunal unreasonably exercised its discretion not to adjourn the hearing or that it failed to comply with s.360(1) of the Migration Act 1958 (Cth) (Migration Act).

   [39] CB 117, [13]

8. The granting of an adjournment is a discretionary power, which must be exercised reasonably and by reference to the facts and circumstances of the individual case. A failure to properly consider a request for an adjournment or an unreasonable refusal to grant an adjournment may, in certain circumstances, amount to a failure to give the applicant the opportunity to appear before the Tribunal as required by s.360(1) of the Migration Act.[40] Legal unreasonableness is invariably fact dependent. There is no bright line which divides what is reasonable from what is not. It is a matter of degree and ultimately judgment.[41]

   [40] Minister for Immigration v Li (2013) 249 CLR 332

   [41] Siddique v Minister for Immigration [2014] FCA 1352 at [42], citing Minister for Immigration v Singh [2014] FCAFC 1

9. In this case, as the Tribunal had “no record” of Mr Kalimakolan’s adjournment request being received prior to when he handed it up at the hearing, the Tribunal was not satisfied that the postponement request was provided within an appropriate time frame.[42] However, when the Tribunal’s decision is read as a whole, it is apparent that it took other matters into account in determining whether the hearing should proceed as scheduled. The Tribunal noted that on 31 October 2018 it had sent an invitation to Mr Kalimakolan inviting him to attend a hearing on 5 December 2018 and had requested that he provide additional information in support of his case[43] and that although the applicant did not respond to the hearing invitation, he had attended the scheduled hearing and presented documents in support of his case.[44]

   [42] CB 117, [13]

   [43] CB 116, [10]

   [44] CB 116, [11]

10. The Tribunal considered[45] the written postponement request that was handed up at the hearing by Mr Kalimakolan, which relevantly stated: “However, the time slot provided to the applicant is at 9:30am and he can attend the hearing if he can finish before 11:30am”[46] and found that Mr Kalimakolan had consented to the hearing proceeding if it was conducted “in a timely manner”.[47]

    [45] at CB 117, [13]

    [46] CB 87

    [47] CB 117, [13]

11. It is tolerably clear from the Tribunal’s reasons at [10]-[13][48] that when the matter came on for hearing on 5 December 2018 and the Tribunal was made aware of Mr Kalimakolan’s adjournment request, it decided to proceed with the scheduled for a number of reasons, including that it was satisfied Mr Kalimakolan:

    a)had been on notice of the scheduled hearing since 31 October  2018;[49]

    b)was in attendance;[50]

    c)had availed himself of the opportunity to submit documents in support of his claim;[51] and

    d)had indicated that he was willing to participate in the hearing provided it was conducted in “a timely manner”.[52]

    [48] CB 116‑117,

    [49] CB 116, [10]

    [50] CB 116‑117,[12]-[13]

    [51] CB 116, [11]

    [52] CB 117, [13]

12. Accordingly, the Tribunal’s refusal to exercise its discretion to adjourn was based upon factors other than its incorrect assumption[53] that “the postponement request was provided within an appropriate time frame” or that it “lacked an evident and intelligible justification”.[54] The Tribunal’s decision to proceed with the hearing was within “an area of decisional freedom”.[55]

    [53] at CB 117, [13]

    [54] Li at [76]

    [55] Li at [28]

13. The courts will not lightly interfere with an exercise of statutory power involving an area of discretion, and the threshold of establishing legal unreasonableness is a stringent one.[56] Relevantly, in the case of adjournment applications, the Tribunal is not under an obligation to “afford every opportunity to an applicant for review to prevent his or her best possible case or improve upon the evidence”, and “may decide, in an appropriate case, that ‘enough is enough’”.[57] After all, the Tribunal is also under a duty to review decisions within a reasonable time,[58] and to pursue the object of providing a mechanism of review that is, among other things, “fair, just, economical, informal and quick”.[59] It does not necessarily follow that the Tribunal’s exercise of its discretion not to adjourn the review on the day of the hearing miscarried because it was unaware of an earlier request for a postponement.

    [56] Minister for Immigration v SZVFW [2018] HCA 30 at [10]-[11], [52], [86]

    [57] Li at [82]

    [58] Li at [102]

    [59] Administrative Appeals Tribunal Act1975 (Cth), s.2A

14. Further, even if I am wrong and the Tribunal unreasonably exercised its discretion not to adjourn the review unders.363(1)(b) of the Migration Act, it is the applicant who bears the onus of proof in establishing that the breach was material.[60] In order to succeed, Mr Kalimakolan would need to establish that the adjournment of the hearing could realistically have resulted in a different decision.

    [60] Minister for Immigration v SZMTA [2019] HCA 3 at [38]

15. The Tribunal invited Mr Kalimakolan to a hearing in compliance with the formal requirements of s.360A of the Migration Act,[61] where he was given a meaningful opportunity to participate, give evidence and present arguments relating to the issues arising on the review.[62]

    [61] CB 62-66

    [62] CB 84-86

16. The transcript of the Tribunal does not suggest that Mr Kalimakolan was “mentally unfit” to properly present his case. Mr Kalimakolan was able to give a detailed history of his enrolment in various courses since his arrival in Australia[63] and to provide details of his plan to return to his home country and start a business upon completion of his course.[64] Whilst the duration of the substantive portion of the hearing was relatively short (23 minutes),[65] that does not in itself give rise to any error by the Tribunal.

    [63] Affidavit of Ms Harradine, pages 6-7

    [64] Affidavit of Ms Harradine, page 9

    [65] CB 84‑86

17. The transcript of the Tribunal hearing also reveals that at the conclusion of the hearing, the Tribunal indicated to Mr Kalimakolan that it was “not really convinced” about why it was taking him so long to complete his degree and offered him an additional two weeks to provide a written statement addressing its concerns.[66] Mr Kalimakolan availed himself of the opportunity to provide further evidence following the hearing[67] and there is nothing in the transcript or the Tribunal’s file to indicate that Mr Kalimakolan requested any further opportunity to give evidence and present arguments before the Tribunal. In the absence of any reason to suppose that anything more pertinent to the review would have been provided if the Tribunal had postponed the hearing, I do not accept that there was “practical injustice” in the procedure followed by the Tribunal.

    [66] Affidavit of Ms Harradine, page 11

    [67] CB 117, [14]

18. Accordingly, the Tribunal complied with its obligations and no procedural unfairness was demonstrated by the Tribunal’s decision to proceed with the hearing and decline Mr Kalimakolan’s request for an adjournment.[68]

    [68] Li at [19] per French CJ

19. To the extent that the grounds of review in the show cause application have any continuing relevance, the Minister’s initial submissions deal with those. 

Ground 1

1. Ground 1 contends that the “Tribunal erred in law” by not providing Mr Kalimakolan with an “adequate opportunity” to explain his case.  This ground is effectively dealt with under the show cause order.

Ground 2

1. Ground 2 contends that the Tribunal erred in by failing to advise Mr Kalimakolan as to “the matter which may be the reason for the Tribunal to reject his application”. Mr Kalimakolan asserts that the Tribunal “violated s.359AA”. In the particulars, Mr Kalimakolan takes issue with the Tribunal’s findings regarding his bank statement records and the various cash deposits. Mr Kalimakolan contends that the Tribunal should have adopted the procedure in s.359AA so that Mr Kalimakolan could have explained that the cash deposits had “nothing to do with income.”

2. There was no obligation on the Tribunal to comply with s.359A in relation to Mr Kalimakolan’s financial records. The Tribunal considered the bank statement records Mr Kalimakolan provided at the hearing[69] and found that the various cash deposits gave rise to the concern that Mr Kalimakolan had an income other than that readily apparent from the wages deposits. As Mr Kalimakolan provided the Tribunal with the copies of his bank statement records, this information falls within the exception in s.359A(4)(b) and the Tribunal was not required to comply with s.359A(1) in respect of it.[70] Further, s.359A(1) does not apply to the Tribunal’s thought processes or evaluation of the material before it. Accordingly, this ground cannot succeed.

   [69] CB 119, [26]

   [70] Minister for Immigration v Brar (2012) 201 FCR 240 at [74], citing Minister for Immigration v Chamnam You [2008] FCA 241

3. Mr Kalimakolan makes a further contention in his affidavit filed on 25 March 2019, that the Tribunal erred in not providing adequate opportunity to him to explain the matters enunciated in the PRISMS record, and that Mr Kalimakolan was not advised on the matters which may be of concern to the Tribunal and which may lead to the refusal of his review application. The “information” for the purposes of s.359A that was contained in the PRISMS record was also set out on page three of the delegate’s decision, a copy of which was provided to the Tribunal by Mr Kalimakolan. Accordingly, s.359A(4)(b) applied to this information[71] and no breach of s.359A is established.

   [71] Brar at [74], citing Chamnam You [2008] FCA 241

Conclusion

1. I conclude that Mr Kalimakolan has not established that the decision of the Tribunal was affected by jurisdictional error.  The decision is therefore a privative clause decision.  I will order that the application filed on 25 March 2019 be dismissed. 

2. In consequence of the dismissal of the application, the Minister sought an order for costs fixed in the amount of $7,900.  Mr Kalimakolan opposed that costs order, noting that it came to him as a surprise.  He also claims impecuniosity, but that is not a reason for the Court to refrain from making a costs order.  As I indicated to the Minister’s solicitor, I am not minded in this case to award any amount above scale.

3. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  25 November 2020