Kaur v Minister for Home Affairs
[2019] FCA 854
•6 June 2019
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Home Affairs [2019] FCA 854
Appeal from: Kaur v Minister for Immigration [2018] FCCA 1213 File number: NSD 903 of 2018 Judge: MARKOVIC J Date of judgment: 6 June 2019 Catchwords: MIGRATION – appeal from orders of the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review – where the Administrative Appeals Tribunal affirmed the decision of a delegate not to grant the appellant a student (temporary) visa – whether appellant denied procedural fairness – whether primary judge pre-judged the case – whether primary judge erred in making adverse credibility findings – whether primary judge’s decision illogical or unreasonable – whether primary judge’s decision not based on evidence – whether primary judge failed to give adequate reasons – appeal dismissed Cases cited: Galea v Galea (1990) 19 NSWLR 263 Date of hearing: 18 March 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 64 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 903 of 2018 BETWEEN: CHINDER PAL KAUR
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
6 JUNE 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 15 May 2018 dismissing an application for judicial review of a decision of the second respondent (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a Student (Temporary) (Class TU) visa (Visa).
BACKGROUND
The appellant is a citizen of India. She applied for the Visa on 13 May 2016.
On 8 March 2017 a delegate of the Minister refused to grant the Visa. The delegate found that the appellant did not meet the requirements in cl 572.223 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). This was because the delegate was not satisfied that the appellant was a genuine temporary entrant. Relevantly a letter dated 9 September 2016 addressed to the Department of Immigration and Border Protection (Department) and purportedly signed by the appellant was before the delegate at the time of making the decision (Department Letter). That letter included (as written):
My future plan to live in Australia on permanent basis after finishes my study. I lived in Australia from 2013 so I love to live in Australia. Australian people are very friendly and life style of here is very cheap compare to other countries.
The delegate referred to the Department Letter in the delegate’s decision. The delegate noted that on 2 August 2016 the appellant was invited to comment on her circumstances in relation to the genuine temporary entrant criterion, especially in relation to the concern that no evidence was provided for any course of study from August 2015 to June 2016, and that the Department Letter was provided in response to that invitation. The delegate quoted from the Department Letter extensively, including the passage extracted in the preceding paragraph.
TRIBUNAL PROCEEDING
By application dated 23 March 2017 the appellant sought review of the delegate’s decision in the Tribunal. Under cover of a letter dated 17 October 2017 the appellant provided a number of documents to the Tribunal, which she described as follows:
•Explanation from [appellant]
•Current education document
•COE
•Australian Education documents
The first mentioned document, the “explanation from [appellant]”, was in the form of a letter from the appellant to the Tribunal dated 17 October 2017 (Tribunal Letter) and included (as written):
My future plan to live and built carrier in Australia after finishes my study. I lived in Australia from 2013 so I love to live in Australia. Australian people are very friendly and life style of here is very cheap compare to other countries.
I request that please allowed me to study and stay to built my better future.
The appellant appeared before the Tribunal to give evidence and present arguments. She was represented in relation to the review by a registered migration agent but he did not attend the hearing.
On 25 October 2017 the Tribunal affirmed the decision under review. On 27 October 2017 the Tribunal issued a corrigendum to correct numerous typographical errors in its decision record concerning the correct visa subclass and relevant clauses of the Regulations.
In its decision record the Tribunal noted that because the appellant was currently enrolled in an advanced diploma of leadership and management at The Wales Institute as her principal course the visa subclass that could be granted was Subclass 572 (as corrected by the corrigendum). The Tribunal identified that the issue in the case was whether the appellant was a “genuine applicant for entry and stay as a student” having regard to the matters prescribed by the Regulations.
On the evidence before it the Tribunal found that the appellant was both at the time of the application and at the time of hearing an eligible higher degree student who had a confirmation of enrolment for each relevant course of study. The Tribunal noted that, in addition to meeting the evidentiary requirements relating to English language and qualifications, it also had to be satisfied that the appellant was a genuine applicant for entry and stay as a student having regard to the appellant’s stated intention to comply with any conditions subject to which the Visa would be granted and any other relevant matter.
Having considered the evidence the Tribunal was not satisfied that the appellant was a genuine temporary entrant. The Tribunal made that finding having regard to the following matters:
(1)the appellant’s written statements both to the Department in 2016 and to the Tribunal in 2017, that is the Department Letter and the Tribunal Letter, that she plans to stay in Australia;
(2)the appellant’s academic history and her failure to undertake any study for the period 16 August 2015 to 27 June 2016 which amounted to a breach of condition 8202 attached to her student visa at the time;
(3)the appellant had not completed any courses above vocational level in the VET sector;
(4)since 2014 the appellant had not demonstrated any commitment to pursuing meaningful work experience in her chosen field of childcare or childcare management; and
(5)the lack of evidence of the appellant’s close ties to India.
The Tribunal concluded that the appellant was not a genuine temporary entrant but appeared to be using the student program to maintain residence in Australia and noted that she expressly said that she plans to stay in Australia. Accordingly the Tribunal was not satisfied that the appellant met the requirements of cl 572.223(1A)(b) (as corrected by the corrigendum) of Sch 2 to the Regulations.
FEDERAL CIRCUIT COURT PROCEEDING
On 15 November 2017 the appellant commenced proceedings in the Federal Circuit Court seeking judicial review of the Tribunal’s decision.
On 16 March 2018 the appellant lodged an amended application with the Federal Circuit Court (Amended Application) in which she raised five grounds of review as follows:
GROUND l
The Tribunal misapprehended / misdirected its inquiries and / or finding lacks rational/logical connection (Tribunal at para 22(d)) in finding that the the [sic] Applicant lacked experience and thereby committed jurisdictional error.
Particulars
1.1The Tribunal found that the Applicant had not demonstrated pursuing experience in the field of child care.
1.2The Applicant stated that she was interested in operating child care “business” [and not work in the child care field](Tribunal hearing transcript p7) and had discussions with her cousin.
1.3The Applicant did not claim to be continuing her studies to attain qualification in child care but to run child care business.
1.4The Applicant is advancing the objective by doing business studies.
1.5The Tribunal committed jurisdictional error.
GROUND 2
The Tribunal’s [sic] failed to give consideration to and ignore critical evidence when assessing whether the Applicant genuine temporary entrant. The Applicant stated that she intended to pursue Bachelor’s degree. This has not been given consideration by the Tribunal.
Particulars
2.1The Tribunal failed to engage with the issue of Applicant’s interest in Bachelor’s degree (transcript p 7.8 to 7.10).
2.2The Tribunal failed to consider this in relation to paragraph 6 - 12 of the Directions 53.
2.3The Tribunal failed to give the Applicant meaningful opportunity to give evidence and present arguments in relation to the Applicant’s circumstances.
2.4The Tribunal committed jurisdictional error.
GROUND 3
The Tribunal’s Decision involved jurisdictional error insofar as the Tribunal failed to comply with s 499(2A) of the Act and Direction No. 53 - Assessing the genuine temporary entrant criterion for Student Visa applications, dated 03 November 2011 commencing 05 November 2011 (Direction 53) and failed to engage with the Directions 53. Alternatively, the Tribunal breached s 360 as it failed to put dispositive issues to the Applicant and failed to carry out meaningful review.
Particulars
3.1 The Tribunal failed to engage with paragraph 6 - 12 of the Directions 53. The Tribunal failed to give the Applicant meaningful opportunity to give evidence and present arguments in relation to the Applicant's circumstances.
2.2The Tribunal failed to give the Applicant opportunity to address close ties.
3.3The value of the qualification to the Applicant.
3.4The Tribunal failed to properly engage with the issue of close ties..
3.5The Tribunal failed to comply with s 360 of the Act.
3.6The Tribunal committed jurisdictional error.
GROUND 4
The Tribunal’s Decision involved jurisdictional error insofar as the Tribunal failed to comply with s 360 and giving meaningful opportunity to explain any gaps in enrolment (at (17]) and thereby breached s 360.
Particulars
5.1The Tribunal failed to engage with the issue of gaps in enrolment.
5.2The issue of gaps was determinative issue.
5.3The Tribunal committed jurisdictional error.
GROUND 5
The Applicant’s migration adviser submitted documents that constituted fraud on the Tribunal. The decision of the Tribunal is thereby affected jurisdictional error. The Tribunal constructively failed to exercise its jurisdiction as a result of third party fraud (and thus did not carry out its statutory function). The Tribunal decision was vitiated by the fraud perpetrated on the Tribunal.
(a)The migration adviser and / or agent or servant of the migration adviser Mr Dobaria forged the applicant’s signature on a GTE document (CB 86). The signature on the document is not the Applicant’s signature.
(b)The migration adviser and / or agent or servant of the migration adviser provided the document to the Tribunal purporting to be true statement of the Applicant when the GTE information was forged.
(c)The migration adviser and / or agent or servant of the migration adviser prepared the GTE document (CB 135-6) purporting to be the documents of the Applicant.
(d)The migration adviser and / or agent or servant of the migration adviser provided the GTE document to the Tribunal purporting to be true statement of the Applicant without the knowledge of the Applicant.
(e)The migration adviser and / or agent or servant of the migration adviser knowingly and falsely giving these documents to the Tribunal purporting to be the Applicant’s document.
(f)The migration adviser and / or agent or servant of the migration adviser Knowingly and falsely misled the Tribunal (and the Applicant) by making false representations and / or providing documents purporting to be Applicant’s documents.
(g)The migration agent and / or agent or servant of the migration adviser knowingly and falsely holding out the documents to be the Applicant’s documents when it was not.
(h)The Tribunal decision was vitiated by the fraud perpetrated on the Tribunal.
(i)The Tribunal’s decision is affected by jurisdictional error.
The appellant relied on two affidavits in the Federal Circuit Court. The first was affirmed on 15 March 2018 by S Ravi Chandran Nair R Shreedharan, a registered migration agent, who was commissioned by the appellant to transcribe the Tribunal proceeding. A copy of the transcript of the proceeding was annexed to Mr Shreedharan’s affidavit.
The second affidavit was affirmed by the appellant on 16 March 2018. In that affidavit the appellant set out her dealings with her migration agent including, relevantly:
…
2.Throughout the course of review before the Second Respondent Tribunal (Administrative Appeals Tribunal or “the Tribunal”), I dealt with a Nilesh Dobaria ("Mr Dobaria") from the office of S K Consultants in Sydney. S K Consultants was my migration adviser both before the delegate and in dealing with the Tribunal.
3.I see the correspondence refers to Ketan Patel. I had no dealings with him.
4.Mr Dobaria whilst I went to see him would say words to the effect: “All the documents are prepared by solicitors. S K Consultants uses a firm of solicitors to prepare documents.”
5.I have reviewed the Court Book now provided to me by the First Respondent’s lawyers. I have found that certain documents were sent to Tribunal without my knowledge.
6.I have reviewed documents at page 86 of the Court Book.
7.The signature on this document (at page 86 of the Court Book) is not mine. It is not my statement but something sent by S K Consultants.
8.I have reviewed documents at pages 135 to 136 of the Court Book. These documents purport to be prepared and given by me to the Tribunal. I have not prepared or given these documents to the Tribunal. If given to the Tribunal by my migration adviser I had no knowledge of this and do not contain my instructions.
9.No one attended the hearing with me at the Tribunal. Mr Dobaria said words to the effect: “They will ask you some basic questions. There is no need for me to attend.”
10.I was not asked any questions regarding these documents by the Tribunal.
11.Mr Dobaria was also involved in preparation of the documents for proceedings in this Court. He said words to the effect: “These documents are prepared by solicitor” when I went to see him about these documents.
12.Although I am not aware who actually prepared the documents filed in these proceedings to institute this proceedings, these documents bear my true signature. ...
13.I requested Mr Dobaria to come to court with me for the First Court date. He said words to the effect: “There is no need for me to come. There would introduction and they will ask some very basic questions. You should be OK. If they ask you just say that you do not have a lawyer and you are doing your own case. Say that I would engage a lawyer in future if required.”
…
(emphasis in original.)
The documents referred to by the appellant at [6]-[7] and [8] of her affidavit are respectively the Department Letter and the Tribunal Letter.
The appellant, who was represented by counsel at the hearing before the Federal Circuit Court, was cross-examined.
The primary judge dismissed the application. In doing so his Honour first addressed ground 5 of the appellant’s Amended Application. The primary judge did not accept the appellant’s evidence that it was not her signature on the Department Letter. The primary judge found that the signature bore “a stark similarity to the signature on the [appellant’s] passport” which was included in the court book, that the appellant was not a credible witness and that she was evasive in the answers that she gave.
The primary judge observed that, even if his findings in relation to the appellant’s signature were wrong, the appellant had authorised her agent to provide the information to the delegate and in the course of her evidence had suggested that she had asked the agent to show her the documents. His Honour found that the appellant’s indifference to what was provided by the agent to the delegate meant that there was no relevant fraud. The primary judge also found that another document in what he described as “identical terms” to the Department Letter (that is, the Tribunal Letter) was provided to the Tribunal and that the appellant had authorised her agent to provide documents to the Tribunal.
The primary judge then addressed the remaining four grounds.
In relation to ground 1, in which the appellant contended that the Tribunal misunderstood or misapprehended the appellant’s claims about her interest in operating a child care business in India, the primary judge did not accept that there was any misunderstanding as alleged. His Honour observed that the Tribunal referred expressly to the appellant’s intention to open a child care centre at [20] of its decision record.
In relation to ground 2, the primary judge found that the transcript of the Tribunal hearing did not support the appellant’s contention that the Tribunal failed to engage with her submissions and evidence and that she was denied an opportunity to advance her claims. The primary judge was not satisfied that the Tribunal ignored any of the appellant’s critical evidence. Rather, his Honour found that it took into account cogent and relevant matters.
In relation to ground 3 the primary judge found, by reference to the Tribunal’s decision record, that the Tribunal took into account and complied with Direction 53 as it was required to do by s 499 of the Migration Act 1958 (Cth) (Act).
In relation to ground 4 the primary judge found that the appellant had a real and meaningful opportunity to give evidence and present arguments before the Tribunal. His Honour did not accept that there was any breach of s 360 of the Act. His Honour found that the Tribunal’s reasons demonstrated that it took into account the appellant’s study history and the transcript reflected that the Tribunal had explored with the appellant the courses that she had undertaken, the study she proposed to undertake, her knowledge of the courses she was to undertake, the qualifications and courses she had undertaken before coming to Australia and the diplomas she had then undertaken.
THE APPEAL
By notice of appeal lodged with the Court on 29 May 2018 (Notice of Appeal) the appellant raises eight grounds of appeal which, omitting particulars, are:
1. His Honour denied the Appellant procedural fairness.
(a)dealt with the Appellant’s application other than on the basis of the application made by the Appellant and other than on the basis of the arguments made by the Respondent (and the contentions of the Respondents in the Court below); and/or
(b)failed to carry out the judicial task that was required under the various statutes instead engaged as an adopting role of advocate (rather than mere judicial officer) and procedurally unfair to the Appellant (and being favourable to the Respondents).
(c)His Honour adopted unfair procedure.
(d)His Honour fell into error in failing to take into account relevant considerations and took into account irrelevant considerations in dealing with the application including failing to take into account the Appellant’s understanding of the law (called to give evidence in the circumstances no party had notified the Appellant that she is required for cross-examination ).
(e)Introduced issues into the proceedings which were not pleaded or raised by the parties.
2.The Court erred in making adverse credit findings based on active cross examination of the Appellant; thereby denying the Appellant procedural fairness and without proper consideration of evidence and / or erred in law in making credit findings without taking account of all circumstances.
3.The Court’s finding of credibility lacks rational and logical support and / or is unreasonable based on non-acceptance of various document being submitted to the Tribunal claimed by the Applicant to have been submitted by the migration adviser without her knowledge using similar templates. His Honour thereby fell into error and / or jurisdictional error. The major plank of credibility findings turned on certain documents.
4.Honour was legally unreasonable in Li sense (Minister for Immigration & Anor v Li) in dealing with the hearing and dismissing the proceedings.
5.His Honour fell into error when His Honour made determinations not based on evidence filed and served but made findings based on His Honour’s opinion (rather than on evidence properly filed and served and properly admissible evidence in the Respondent’s application) and erred in making findings.
6.On fair and objective reading of all of the transcripts of the Court proceedings of 05 May 2018, an objective bystander would apprehend bias and / or actual bias of the Court towards the Appellant (in respect of procedures, findings, rulings and otherwise generally and on fair reading of transcript is actual biased towards the Appellant such that the Appellant did not a have a chance of fair hearing and fair outcome at all but designed to reach the forensically determined position of the Court to fortify its decision).
7.His Honour erred in giving adequate reasons for His Honour’s decision.
8.His Honour erred in the consideration of the application and the grounds in the amended application for review filed on 19 March 2018 in the Court below.
The appellant was not legally represented on the appeal. She filed written submission which address the credibility findings made by the primary judge as part of his consideration of ground 5 in the Amended Application and which concern ground 2 in the Notice of Appeal. I address those submissions below.
The Minister relied on an affidavit affirmed by Katherine Hooper, a solicitor in the employ of the Minister’s solicitors, on 19 November 2018 which annexed a copy of the transcript of the hearing before the primary judge.
Ground 1
By this ground the appellant contends that the primary judge denied the appellant procedural fairness. The nature of the denial of procedural fairness is said to be that the primary judge failed to carry out his judicial function, acted as advocate for the Minister, pre-judged the case, adopted unfair procedures, made findings on issues not raised by the Minister, engaged in unfair cross-examination of the appellant and denied the appellant the opportunity to explain her position.
It is well established that courts cannot adopt procedures that are unfair and that a person against whom a claim is made must be given a reasonable opportunity of appearing and presenting his or her case: see for example Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [1] per French CJ; [184]-[185] per Gageler J. The question that arises in this case is whether any unfair procedures, as alleged by the appellant, were adopted by the primary judge.
As a starting point it is convenient to consider the transcript of the hearing before the primary judge which was in evidence before me. The following matters are apparent upon an examination of it:
(1)before the primary judge the appellant relied on her own affidavit as well as the affidavit which annexed the transcript of the hearing before the Tribunal (see [15]-[16] above) both of which were read without objection from the Minister;
(2)the primary judge inquired whether counsel for the Minister wished to cross-examine the appellant. The following exchange took place between the primary judge and Mr Johnson, counsel appearing for the Minister:
HIS HONOUR: … Do you wish to cross-examine, Mr Johnson?
MR JOHNSON: No, your Honour.
HIS HONOUR: Mr Johnson, if it’s to be put that the signature, page 74, is the same as page 86 shouldn’t it be put to the applicant if— if that’s the issue?
MR JOHNSON: Sorry, your Honour. Can you repeat it?
HIS HONOUR: If the signature, page 74, is said to be the same as page 86 shouldn’t the witness have an opportunity to respond? I'm assuming the fraud is an issue.
MR JOHNSON: Well, the — a — a question will be whether, even if that is not her signature, whether that amounts to much.
HIS HONOUR: I understand that, but if it is and it is to be put that there’s a challenge to what’s said in the affidavit, the witness should have it challenged otherwise — one view, one will accept everything that is said in the affidavit …
MR JOHNSON: Yes.
HIS HONOUR: … subject to the competing documents, but it would seem to me that if there is an issue about that the witness should have an opportunity to respond. Is there an issue?
(3)after taking instructions the Minister’s counsel informed the court that he would require the appellant for cross-examination;
(4)during the course of the cross-examination that followed the primary judge posed a number of questions to the appellant. For example his Honour asked a series of questions about who completed the appellant’s application for a student visa. After some further questioning by counsel for the Minister, including in relation to the Department Letter, the primary judge asked the appellant a series of questions focussing on the Department Letter including:
HIS HONOUR: Ms — Ms Applicant. The signature looks remarkably like the signature that appears on page 74. Can you explain why that would be?
APPLICANT: Yes. That was — that’s my signature, but the page number it is attached is not my signature. I — I always do on every paper signature like this and that signature is not matching with my signature.
HIS HONOUR: Why does it look so similar, madam?
APPLICANT: No. It is not similar. See, like, I — I — I never put “p” like this. You can see on my other ID on other papers as well. I never put “p” like this, “r”. Like, it — like, I always put my signature like this, like, all the — all the letters are close, close and this is not my signature. I never do, like, “c”, “h”, “i”.
HIS HONOUR: Did you create this document, madam?
APPLICANT: Sorry?
HIS HONOUR: Did you create this document?
APPLICANT: No. I didn’t.
HIS HONOUR: Well, you received a letter from the department that was sent to you by email inviting you to provide information. Do you remember receiving that?
APPLICANT: Yes. I received that. I received the email, like, they — when I applied for my visa and they need some documents from me and I told to my migration agent and then he said, okay. He — he said me to give up, like, funds from my funds and my study documents, but I never made this paper because I just need to show what I’m doing. I did my childcare diploma. I have that certificate and when I get the admission in the business diploma then I give him … but I don’t need to give him that letter. He made this letter by himself. Like, I can’t — I honestly — I can’t make this letter like this.
HIS HONOUR: Did you show — did he show you that letter?
APPLICANT: No. He didn’t because if she …
HIS HONOUR: And so this letter, you say, is a complete fabrication?
APPLICANT: Sorry.
HIS HONOUR: You say this letter is a complete fabrication with a false signature on it. Is that what you tell me?
APPLICANT: No, but this is not my signature.
And:
HIS HONOUR: Madam, before you lodged your application for review you received this decision. Is that correct, which appears on page 97? Is that right? You had seen that before. You just told me you took it to the agent?
APPLICANT: No.
HIS HONOUR: So you must have received it before you made your application for review. Is that correct?
APPLICANT: No, sir. I didn’t see that.
HIS HONOUR: You didn’t read the delegate’s decision you tell me?
APPLICANT: Like, when I got that decision I’m telling you I was — I — I — I got that decision, like, 4.30 —4.30 — 4.30 pm and then I — I called him and then he said, “I’m in office, so you can come to see me. I will see that.” When I went to see him he didn’t, like, he just — he — he just read that, like, your visa is refused and he misguide me. He didn't say that it’s his mistake. He …
HIS HONOUR: Madam, that’s not responsive to my question. I asked you whether you received, you read the decision of the delegate after you received it. Did you read it after you received the delegate’s decision? Yes or no?
APPLICANT: I read it, but not fully.
HIS HONOUR: Not fully?
APPLICANT: Yes.
HIS HONOUR: So you're telling me you didn't see what’s on page 97?
APPLICANT: No.
HIS HONOUR: Why wouldn't you read it fully, madam?
APPLICANT: Because, like, I don't have much knowledge to read these applications, so that’s why I — I hired a migration agent.
(5)the appellant was not asked about the Tribunal Letter in cross-examination; and
(6)the appellant was represented by counsel and was re-examined;
(7)the Minster made two alternate submissions before the primary judge in relation to ground 5 of the Amended Application:
(a)first that, in cross-examination, the appellant was evasive in her responses about the migration agent’s involvement in the preparation of her visa application form and subsequent documents and that the court could infer that the Department Letter was prepared by the appellant, contained information which was relevant to and consistent with her history and had been signed by her; and
(b)secondly, even if the court was not prepared to make that finding, on the appellant’s own evidence the agent was authorised to assist her in relation to the preparation of those documents. The appellant had not alleged any particular falsehoods that had been perpetrated by the migration agent without her knowledge or authorisation; they were matters that existed before the Tribunal’s review; and they were referred to in the delegate’s decision and subsequent correspondence sent by the appellant’s agent to the Tribunal. The Minister submitted that, even putting the appellant’s case at its highest, the appellant authorised the migration agent to give wrong information, which is not fraud, and the appellant’s case did not come anywhere near the circumstances in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 and like cases where particular fraud amounts to jurisdictional error. The Minister contended that there was no trickery or conduct leading the appellant to provide information that had led to her being discredited but that the information that had been provided was consistent with information she had given to her migration agent.
In my opinion for the reasons that follow the appellant has not established that she was denied procedural fairness as a result of the way the hearing was conducted before the primary judge.
First, it cannot be said that the procedures adopted by the primary judge were unfair. That that is so is evident from the following matters:
(1)the appellant was legally represented before the primary judge;
(2)she relied on evidence that alleged that the actions taken by her former migration agent resulted in the Tribunal falling into jurisdictional error. The Minister, as he was entitled to do, cross-examined the appellant in relation to that evidence; and
(3)there was no requirement for the appellant to be given time to prepare for cross-examination. Further, the appellant’s counsel did not object to any question put to the appellant in cross-examination including the questions put by the primary judge; the appellant was given the opportunity to respond to the questions put to her in cross-examination; and the appellant’s counsel was given the opportunity to re-examine the appellant at the conclusion of the cross-examination and did so.
Secondly, the assertion that the primary judge pre-judged the case and was not open minded cannot be sustained. By this contention the appellant, in effect, makes an allegation of bias on the part of the primary judge. That being so, the question becomes whether a fair-minded lay observer might reasonably apprehend that a judge, in this case the primary judge, might not bring an impartial mind to the question that he was required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. I do not think that was the case here.
The primary judge questioned the appellant about the way in which she provided information to her migration agent and about the Department Letter in an extensive and forthright manner, based on the transcript. However, it is not the case that his Honour attacked the appellant’s credibility in a pre-planned way as alleged or that the appellant was not permitted an opportunity to explain her position in answer to the questions put by the primary judge. On the contrary, as I have already observed, the appellant was given an opportunity to respond to the questions put; her counsel did not object to any of the questions asked by the primary judge; nor did he make any complaint about the primary judge’s manner of asking the questions, a matter of some relevance to the determination of this issue: see Vakauta v Kelly (1989) 167 CLR 568 at 572.
Thirdly, as the Minister acknowledged, excessive intervention in the conduct of a trial on the part of a trial judge, including intervention whilst oral evidence is being given by a witness, may lead to the miscarriage of a trial. In Galea v Galea (1990) 19 NSWLR 263 (Galea) at 281-282, Kirby A-CJ set out the guidelines relevant to the question of whether a trial judge has excessively intervened and moved from his or her neutral position as judge to that of an advocate such that the litigant is deprived of a fair trial, including that:
…
2.A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1983) 78 Cr App R 23; E H Cochrane Ltd v Ministry of Transport.
3.Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”: see Sir Robert Megarry, “Temptations of the Bench” (1978) 16 Alta L Rev 406 at 409; see also U Gautier, “Judicial Discretion to Intervene in the Course of the Trial” (1980) 23 Crim LQ 88 at 95-96 and cases there cited.
4.The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see In the Marriage of Lonard (1976) 26 FLR 1 at 10-11; 11 ALR 618 at 626 (FFC); see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby (1969) 90 WN (Pt 1) (NSW) 427; [1970] 1 NSWR 654.
…
6.The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v The Queen (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84F per Gleeson CJ.
The issue is somewhat finely balanced. However, despite the primary judge having spent some time questioning the appellant, his Honour’s conduct falls short of the threshold described in Galea. The primary judge endeavoured to test and to clarify the evidence so that the issues could be determined. His Honour did so without any objection being taken by counsel appearing for the appellant. Further, the Minister pursued the same line of questioning as the primary judge, namely challenging the appellant’s evidence that she did not sign the Tribunal Letter and submitted that the appellant had been evasive in her evidence in relation to that issue and that her assertion that she had not signed that document should not be accepted. That submission was accepted by the primary judge.
Finally, the appellant was not denied an opportunity to advance her case. She was represented by counsel who made submissions on her behalf. The appellant was on notice of the adverse issues that could arise, given the questions she was asked by counsel for the Minister and the primary judge, and was not denied the opportunity to respond to those issues.
In any event, even if it could be said that the appellant had been denied a fair hearing in any of the ways alleged, the primary judge rejected ground 5 of the Amended Application on an alternate basis, independent of his Honour’s findings about the appellant’s credit or her performance as a witness: see [20] above.
For those reasons the appellant has not made out ground 1.
Ground 2
By ground 2 the appellant challenges the primary judge’s adverse credibility findings. The appellant alleges that the primary judge erred in making those findings based on her cross-examination; that she was denied procedural fairness; and that the primary judge failed properly to consider the evidence.
As noted above, the appellant’s written submissions address this ground of appeal. The appellant asserts that the primary judge erred in making adverse credibility findings based on her cross-examination. She submitted that she authorised her migration agent to lodge her visa application “to the delegate” and that she trusted her agent to submit supporting documents according to the “migration procedures and requirements”. She further submitted that there is no expert evidence to “verify that there is a stark similarity” between her signatures as the primary judge found and that one cannot see any similarity. She noted that the statement was submitted twice by her agent: once with her “forged signature” (the Department Letter); and once with her typed name (the Tribunal Letter) and referred to aspects of the “forged signature” presumably as matters which she considers support her contention that it was a forgery.
The appellant submitted that she never read the delegate’s decision properly because of her lack of legal knowledge and that she went to see her agent for an explanation of it. She said that her migration agent did not explain it and that she was told that her visa was refused by the delegate because of inadequate funds.
The appellant contended that the migration agent submitted the “forged statements” to the delegate and the Tribunal without discussing or showing them to her, which was misconduct on the part of her agent which she could not easily prove. The appellant said that, as an international student, she is aware of the Regulations and asks the question: “why would I write in my statement that I am planning to stay in Australia as a permanent resident?”
Finally the appellant notes that there was no Punjabi interpreter present at her cross-examination and contends that she had difficulties understanding the questions asked of her by the primary judge and the Minister’s counsel; that her knowledge of “legal English” is limited; and that prior to the hearing before the primary judge she had no idea that she would be cross-examined.
There is no substance to the appellant’s assertion that the primary judge erred in making adverse credit findings based on her cross-examination. It was open to the primary judge to make such findings and his Honour did so having regard to the appellant’s evidence given in answer to questions put to her in cross-examination. For the reasons given for rejecting ground 1 (see [33]-[40] above), the appellant was not denied procedural fairness. As the Minister submitted the cross-examination allowed the appellant to respond to any submission challenging her assertion that she had not signed the Department Letter and that questions going to that issue were asked of her and she provided answers.
The appellant was represented at the hearing and there was no request that an interpreter be present for the purposes of her cross-examination. In her response to the hearing invitation issued by the Tribunal the appellant noted that she did not require an interpreter for that hearing, and upon counsel for the Minister indicating that he wished to cross-examine the appellant, her counsel did not request that she be assisted by an interpreter. Having considered the transcript, it is not apparent that the appellant had any significant difficulty understanding the questions put to her either by counsel for the Minister, the primary judge or her own counsel in re-examination. In those circumstances, I do not accept the appellant’s submission that the absence of an interpreter amounts to a denial of procedural fairness.
The balance of the matters included in the appellant’s written submissions repeat the evidence she gave before the primary judge and are an attempt by the appellant to explain why she says her signature appearing on the Department Letter is not hers and why the Tribunal Letter was sent without her knowledge. Those matters do not establish any error on the part of the primary judge in making the findings that he did about the appellant’s evidence.
This ground fails to establish any appellable error.
Ground 3
By ground 3 the appellant alleges that the primary judge’s finding in relation to the appellant’s credibility lacked rational and logical support and/or that it was unreasonable. Insofar as this ground raises the same issues as ground 2 in that it challenges the credibility findings made by the primary judge, for the same reasons as are set out at [46]-[47] above, it is rejected.
The appellant alleges that the primary judge’s credibility findings are irrational, illogical or unreasonable. Two matters should be noted in relation to that allegation. First, this is not a case which concerns a challenge to the exercise of a statutory discretion or power such that the principles set out by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) apply.
Secondly, the primary judge gave reasons for rejecting the appellant’s answers to the questions and reaching the conclusions that he did. Having observed the appellant give evidence it was open to the primary judge to find that she was evasive in her responses, to reject her evidence that she had not fully read the delegate’s decision and to find that the appellant had signed the Department Letter.
This ground is not made out.
Ground 4
By this ground the appellant alleges that the primary judge’s decision in dealing with the hearing and dismissing the proceeding was legally unreasonable in the Li sense. In the particulars to this ground the appellant, in effect, relies on the same matters relied on in support of ground 1. That being so for the reasons set out at [33]-[40] and [50] above this ground is not made out.
Ground 5
By ground 5 the appellant asserts that the primary judge erred in making determinations not based on evidence filed and served but by relying on his Honour’s own opinion. This ground is not made out. A review of the primary judge’s reasons for judgment establishes that this is not so. The primary judge relied on the evidence given by the appellant in cross-examination to reject the evidence she gave in her affidavit. Those findings were open to the primary judge on the basis of that evidence.
Ground 6
By this ground the appellant raises an allegation of bias on the part of the primary judge. For the reasons already given at [34]-[35] above, that allegation cannot be made out.
Ground 6 is therefore not made out.
Ground 7
By this ground the appellant contends that the primary judge failed to give adequate reasons for his decision.
As the Minister submitted, a failure by a judge to give reasons for judgment that adequately explain the court’s decision can constitute legal error: see DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641; [2018] FCAFC 2 at [47]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257-258. However, the primary judge’s reasons in this case cannot be said to be of that nature. The primary judge’s reasons disclose the basis upon which his Honour rejected the appellant’s arguments advanced before him. His Honour did not fail to address or consider any argument or ground advanced by the appellant in the exercise of the court’s jurisdiction.
No appellable error is established as alleged. This ground is rejected.
Ground 8
By this ground the appellant contends that the primary judge erred in his consideration of the grounds advanced in the Amended Application. The appellant does not identify how she alleges that is so but simply repeats the particulars in the Amended Application filed in the Federal Circuit Court.
In the absence of any specification of error, this ground fails to establish any appellable error in the reasons of the primary judge.
CONCLUSION
As the appellant has failed to make out any of her grounds of appeal, the appeal should be dismissed with costs.
I will make orders accordingly.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 6 June 2019
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