Kaur v Minister for Immigration
[2020] FCCA 1321
•3 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1321 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in application of financial capacity criterion – whether the Tribunal demonstrated bias – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 368D, 476 Migration Regulations 1994 (Cth), reg.1.03, sch.2 cl.573.223(2)(a), sch.5A cls.5A101, 5A508 Federal Circuit Court Rules 2001 (Cth), r.7.01, sch.1 pt.3 div.1 item 3 |
| Cases cited: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 |
| First Applicant: | GAGANDEEP KAUR |
| Second Applicant: | HARVINDRA SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2132 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 31 July 2018 |
| Date of Last Submission: | 31 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 3 June 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr A. Alexsov |
| Solicitors for the Applicants: | Carina Ford Immigration Lawyers |
| Counsel for the First Respondent: | Mr L. Brown |
| The Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Application filed on 3 October 2016, as amended, be dismissed.
The Applicants pay the First Respondent’s costs fixed in the amount of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2132 of 2016
| GAGANDEEP KAUR |
First Applicant
| HARVINDA SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicants seek judicial review of a decision of the Second Respondent (Tribunal), dated 13 September 2016. The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (Delegate) to refuse to grant the Applicants Student (Temporary)(Class TU) Subclass 573 visas (Visa).
The application filed on 3 October 2016 (Application) is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). The Applicants press two grounds of review in the Application, which the Court will consider in detail below.
Background
The Court has before it a Court Book numbering 219 pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the First Respondent’s (Minister) written submissions, filed 23 May 2017 (Minister’s Submissions), at [2] to [10], accurately summarise the factual history of this matter. The Court adopts those submissions with amendments, as its own. They provide, relevantly, as follows.
The First Applicant and Second Applicant are married citizens of India (wife and husband respectively)[1].
[1] Court Book (CB) 1-19.
The First Applicant applied for a Visa while in Australia on 9 September 2015. She was assisted by a migration agent. The Second Applicant was included as a member of the First Applicant’s family unit in the Visa application (Visa Application)[2].
[2] CB 1-19.
The Delegate held the view that there was insufficient information provided at the time of lodgement of the Visa Application to satisfy the Delegate that the First Applicant met the financial requirements of sch.5A of the Migration Regulations 1994 (Cth) (Regulations) for the First Applicant’s assessment level. On 16 September 2015, the Delegate sent an email to the Applicants’ migration agent requesting that the First Applicant provide a range of information and documentation[3]. Relevantly, the Delegate requested documents to satisfy the financial requirements of sch.5A of the Regulations (Schedule 5A) for the First Applicant’s assessment level[4].
[3] CB 52-63.
[4] CB 61-62.
On 9 October 2015, the following documents were provided by the First Applicant in relation to the financial requirements of Schedule 5A[5]:
a)Affidavit of support signed by Mandeep Kaur and Baj Singh, dated 3 October 2015.
b)Identification documents for Mandeep Kaur and Baj Singh.
c)Declaration Regarding Income, dated 1 October 2015.
d)Letter from India Post, dated 24 September 2015, regarding fixed deposits held in the name of Baj Singh by the Goluwala Post Office and associated deposit slips.
[5] CB 95.
On 10 December 2015, the Delegate refused to grant the Applicants the Visa (Delegate’s Decision)[6].
[6] CB 81- 87.
The Delegate found that India Post was not included in the list of acceptable financial institutions maintained on the Australian High Commission New Delhi website. The Delegate was not satisfied that the money deposits held by Baj Singh with the Goluwala branch of India Post were held with an acceptable financial institution. The Delegate found that the First Applicant did not meet the financial requirements of Schedule 5A (specifically cl.5A508 of Schedule 5A) and therefore did not meet the requirements of cl.573.223(2)(a) of sch.2 to the Regulations.
The Applicants sought review of the Delegate’s Decision at the Tribunal on 17 December 2015[7]. The Applicants were assisted by a migration agent.
[7] CB 88-101.
On 18 December 2015, the Tribunal wrote to the Applicants’ migration agent, acknowledging receipt of the application for review[8]. The Tribunal advised that if the Applicants wished to provide material or written arguments for it to consider, the Applicants should provide the material so as soon as possible. The Applicants did not provide any further material to the Tribunal[9].
[8] CB 102-105.
[9] CB 218, at [10].
On 25 August 2016, the Tribunal sent the Applicants’ migration agent an invitation to attend a hearing on 13 September 2016 and provided considerable detail in relation to the financial evidence that should be provided by the Applicants[10] (Hearing Invitation). The Hearing Invitation further stated as follows:
a)The Applicants needed to provide evidence of funds from an “acceptable source”.
b)If the Applicants sought to rely on a money deposit, they may need to evidence how long the deposit was held immediately before the date of the Visa Application.
c)The Applicants should provide any further information and evidence at least seven (7) days before the hearing date[11].
[10] CB 106-110
[11] CB 109.
On 12 September 2016, the day before the Tribunal hearing, the Tribunal received some documents from the Applicants’ migration agent. These documents included a written submission from the Applicants (Applicants’ September 2016 Submission)[12], the response to the Hearing Invitation[13] and a copy of the bio-page of the First Applicant’s passport showing that Baj Singh was her father[14]. The Tribunal also received evidence of the First Applicant’s enrolment in a Bachelor of Business, which was scheduled to run until 30 June 2018 and for which the fees were $28,000[15]. The Applicants’ September 2016 Submission included a reproduction of what the Applicants claimed was a ‘screen shot” of the Australian High Commission’s Indian website (Website). In the Applicants’ September 2016 Submission, the Applicants claimed that the “screen shot” confirmed that post office deposits were acceptable[16].
[12] CB 136-141; 149-154; 194-199 and 218-219, at [15]-[16].
[13] CB 142-144.
[14] CB 145-146.
[15] CB 133-134.
[16] CB 136-137.
The Applicants attended the hearing before the Tribunal on 13 September 2016 to give evidence and present arguments. The Applicants were assisted in relation to the review by their migration agent, who also attended the hearing[17].
[17] CB 201.
At the Tribunal hearing, the Tribunal made an oral decision affirming the Delegate’s Decision to refuse to grant the Applicants the Visa[18]. The Tribunal gave a written record of its decision on 28 September 2016 (Tribunal’s Decision)[19].
[18] CB 205-208.
[19] CB 214-219.
Tribunal’s Decision
The Tribunal’s Decision appears at pages 217 to 219 of the Court Book. The Minister’s Submissions, at [11]-[15], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own.
The Tribunal noted that it was conducting a de novo review, and in doing so, was looking at whether the Applicants satisfied the requirements for the Visa. The Tribunal further noted that the Delegate’s Decision had put the Applicants on notice that the pertinent issue before the Delegate was the provision of financial evidence that met the Regulations[20].
[20] CB 218, at [11]-[12].
During the hearing, the Tribunal reviewed the Website. The Tribunal ascertained that the Website did not list post offices as acceptable financial institutions. The Applicants responded by saying that the list of acceptable financial institutions had been changed[21].
[21] CB 219, at [18].
The Applicants’ migration agent submitted that he represented other visa applicants who had successfully submitted funds from post office accounts and provident funds. However, the Tribunal noted that the requirement was a time of decision requirement, and the evidence before it now indicated that post office accounts were not acceptable sources of funds[22].
[22] CB 219, at [19]-[20].
The Tribunal said that to satisfy the relevant definition, a financial institution was required to be a body corporate that as part of its normal activities, to take money on deposit and to make advances of money. It must be under a regulatory regime, governed by the central bank and must satisfy the Minister that it complies with effective prudential requirements. The Tribunal determined that India Post was not included in the list of acceptable financial institutions[23].
[23] CB 219, at [21].
At the Tribunal hearing, the First Applicant provided the Tribunal with evidence of a bank account in the name of her father[24]. The account was opened in February 2016, and significant funds were deposited into it on 12 September 2016; the day before the Tribunal hearing. The Tribunal noted that the Hearing Invitation stated that if money deposits are used as evidence, it was required that evidence is provided that the funds were held for three (3) months before the date of the Visa Application. As the Visa Application was made in September 2015, the Tribunal found that this evidence did not satisfy the requirements[25].
[24] CB 200.
[25] CB 219, at [22].
In the circumstances, the Tribunal considered that the Applicants had ample time and opportunity to provide the required evidence but had failed to do so[26].
[26] CB 219, at [23]-[24].
After considering the available evidence, the Tribunal determined that it was not satisfied that the Applicants met the Schedule 5A Financial Capacity requirements detailed in cl.5A508, and therefore did not satisfy cl.573.223(2)(a) of sch.2 to the Regulations. The Tribunal therefore affirmed the Delegate’s Decision[27].
[27] CB 219, at [25].
Proceedings before the Court
The Applicants commenced proceedings for judicial review on 3 October 2016. At the time the Application was filed, the Applicants were without legal representation. The Applicants became legally represented by their current lawyers on 19 December 2017[28].
[28] Notice of Address for Service, filed 19.12.17. See also Transcript T5:L14-42.
The Applicants filed an amended application for judicial review on 3 July 2017 (Amended Application). On 3 July 2017, the Applicants also filed written submissions (Applicants’ Submissions) and an affidavit from the Applicants’ lawyer, annexing a transcript of the hearing at the Tribunal on 13 September 2016[29] (Tribunal Transcript).
[29] Affidavit of Carina Ford, filed 3 July 2018, Annexure “CF-2”.
The Amended Application contained three grounds of review as follows:
(1)The Tribunal failed to comply with s 359A of the Migration Act 1958 (Cth).
Particulars
(a)See [9]-[11] of the applicant’s submissions dated 3 July 2018.
(2)The Tribunal acted under dictation or inflexibly applied policy.
Particulars
(a)See [12]-[14] of the applicant’s submissions dated 3 July 2018.
(3)The procedure adopted [by] the Tribunal is affected by an apprehension of bias.
Particulars
(a)See [30]-[38] of the applicant’s submissions dated 3 July 2018.
The Minister filed further written submissions on 17 July 2018 (Minister’s Further Submissions).
At the hearing before this Court, Counsel for the Applicants was given leave to play the recording of the hearing before the Tribunal (Recording) in Court. Counsel for the Applicants advised the Court that the Recording was 22 minutes in length[30]. During the playing of the Recording in open Court, Counsel for the Applicants intermittently stopped the Recording to make submissions in relation to the Recording.
[30] Transcript T3:L13-15.
In addition to the materials in the Court Book, the Applicants’ Submissions, the Tribunal Transcript, the Minister’s Submissions, the Minister’s Further Submissions and the Recording, the Court has also reviewed in detail Transcript of the hearing that took place in this Court. Both Counsel for the Applicants and Counsel for the Minister provided oral submissions, which the Court has considered closely.
Legislative Provisions
The issue under review before the Tribunal was whether the First Applicant met the requirements of cl.573.223(2)(a) of sch.2 to the Regulations, which required that the First Applicant (at the time of the decision) provide evidence of her financial capacity in accordance with the requirements in Schedule 5A. Clause 573.223 of sch.2 to the Regulations relevantly provided as follows:
573.223
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)The Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily having regard to:
(i) the applicants circumstances; and
(ii) the applicant’s immigration history; and
[…]
(iv) any other relevant matter; and
(b)the applicant meets the requirements of subclause (1A) or (2).
[…]
(2)If subclause 1A does not apply:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
[…]
(Emphasis added)
The relevant requirement of Schedule 5A pursuant to cl.5A508(1)(a), required the First Applicant to give evidence of “funds from an acceptable source” to meet certain student expenses for a period of 12 months. Clause 5A508(1)(a) of Schedule 5A provided as follows:
5A508Financial capacity
(1)The applicant must give, in accordance with this clause:
(a)evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 12 months:
(i) course fees;
(ii) living costs;
(iii) school costs; and
[…]
(Emphasis added)
The expression “funds from an acceptable source” was defined in cl.5A508(2)(b) of Schedule 5A as follows:
[…] a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;
[…]
“Money deposit” was defined in cl.5A101 of Schedule 5A as “a money deposit with a financial institution”.
“Financial institution” was defined in reg.1.03 of the Regulations as follows:
Financial institution means a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money:
(a)under a regulatory regime:
(i) governed by the central bank (or its equivalent) of the country in which the body corporate operates; and
(ii) that the Minister is satisfied provides effective prudential assurance; and
(b)in a way that the Minister is satisfied complies with the effective prudential assurance requirements.
The central issue for determination before the Tribunal was whether India Post was a “financial institution” as defined within reg.1.03 of the Regulations.
Consideration
Ground 1
By Ground 1 of the Amended Application, the Applicants plead that the Tribunal failed to comply with s.359A of the Act. The particulars of Ground 1 in the Amended Application refer to paragraphs 9 to 11 of the Applicants’ Submissions, in lieu of properly pleaded particulars. The relevant paragraphs of the Applicants’ Submissions are as follows: [31]
[31] Applicant’s Submissions, at [9]-[11].
Ground 1 - Failure to comply with s 359A
9.As is apparent from paragraph 21 of the Tribunal’s reasons, the Tribunal noticed that India Post Office was not on the list of acceptable financial institutions. To be inferred from this statement that is that the Tribunal obtain “information” from the Australian High Commission in India showing which institutions were acceptable (from which it would have deduced that India Post Office was not acceptable in the opinion of the Australian High Commission).
10.This information was part of the reason for affirming the decision under review, engaging s 359A of the Migration Act 1958 (Cth).
11. The Tribunal failed to comply with this requirement, which is a failure to comply with a procedure as required by law and amounts to jurisdictional error.
(Without alteration. Footnotes omitted).
At the commencement of the hearing before this Court, Counsel for the Applicants advised the Court that Ground 1 was abandoned[32].
[32] Transcript T2:L11-41.
Ground 1 is therefore dismissed.
Ground 2
By Ground 2 of the Amended Application, the Applicants plead that the Tribunal acted under dictation or inflexibly applied policy. The particulars of Ground 2 in the Amended Application refer to paragraphs 12 to 14 of the Applicants’ Submissions, in lieu of properly pleaded particulars. The relevant paragraphs of the Applicants’ Submissions are as follows:
Ground 2 - Inflexible application of policy
12.It is apparent from the reasons of the Tribunal that the only issue that received any attention was whether or not India Post Office was mentioned on the list of acceptable institutions maintained by the Australian High Commission in India. However, this list was nothing more than the opinion of officers at the Australian High Commission in India, and it did not have any legal significance in the review. Importantly, the opinion of the High Commission was open to be challenged and it did not foreclose the possibility of the Tribunal finding that India Post Office did meet the requirements of a “financial institution” within the meaning of r 1.03 of the Regulations, contrary to the opinion of the High Commission.
13.That is, a correct expression, in one sense, of the issue in the review was whether the High Commission was right or wrong.
14.The Tribunal failed to examine this alternative basis on which the applicant might have succeeded, and simply applied the opinion of the High Commission without any independent thought or analysis. From this, it is to be inferred that the Tribunal applied the policy inflexibly or acted under dictation.[33]
(Without alteration).
[33] Applicant’s Submissions, at [12]-[14].
The Applicants allege in this ground that the Tribunal impermissibly acted according to policy rather than properly considering the First Applicant’s case. The Applicants claim that the only issue that received any attention from the Tribunal was whether India Post was included on the list of acceptable institutions maintained by the Australian High Commission in India. The Applicants claim that the Tribunal failed to examine whether India Post met the requirements of a “financial institution” within the meaning of reg.1.03 of the Regulations.
It was for the Applicants to establish that India Post met the statutory definition of a “financial institution” as defined in reg.1.03 of the Regulations. There was no obligation on the Tribunal to make the Applicants’ case for them: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (Prasad) at 169-170 (Wilcox J); Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 (Abebe) at [187] (Gummow and Hayne JJ).
The Applicants sought to establish that India Post was a “financial institution” as defined, by providing information that purported to be drawn from the Website. The Tribunal did not accept this evidence because it viewed the Website during the Tribunal hearing, and the Website did not reveal that India Post was approved as a “financial institution” by the Australian High Commission. The Applicants do not allege that the Tribunal made any factual error (whether amounting to jurisdictional error or not) in that regard.
The Tribunal’s Decision stated as follows.
12.The original decision put you on notice of the issue in your case being provision of financial evidence that met the regulations.
13.The invitation to this hearing was sent on 25 August 2016 and provided considerable detail about the financial evidence required. It stated that evidence needed to be of funds from an acceptable source and further advised that if you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your application.
[…]
16.You provided what you claim to be a screen shot of the Australian High Commission website which you gave as […] which you claimed confirmed that Post Office deposits are acceptable.
17.At today’s hearing, you claim the decision by the department to refuse your application was an error and state your belief that Post Office accounts are acceptable.
18.At the hearing we went to the website you provided and it does not list Post Offices as acceptable institutions as claimed. You responded by saying they have changed the list of acceptable institutions.
19.You are represented by your migration agent […] who supports your claims and states he has previously had applicants successfully submit funds from Post Office accounts and provident funds.
20.As I said it is the role of the tribunal to consider whether you meet the requirements by having provided satisfactory evidence. The requirement is a time of decision requirement and the evidence before me now indicates that Post Office accounts are not an acceptable source of funds.
21.As was detailed in the primary decision, to satisfy the definition a financial institution is required to be a body corporate that as part of it’s normal activities takes money on deposit and makes advances of money. It must be under a regulatory regime and governed by the central bank and must satisfy the Minister that it complies with effective prudential requirements. As was also advised, India Post is not included in the list of acceptable financial institutions.
[…]
23.You have been asked a number of times to provide the required evidence.
24.In the circumstances, I believe you have had ample time and opportunity to provide the required evidence but have failed to do so.
25.Having considered the available evidence I am not satisfied you meet the Schedule 5A Financial Capacity requirements detailed in 5A508 and therefore do not meet clause 573.223(2)(a). It is therefore the decision of this Tribunal to affirm the decision under review.
(Without alteration)
Once the Applicants’ evidence was rejected, the Tribunal had no other evidence before it.
The Tribunal could not have rationally reached any other decision on the material, given that there was no other evidence before it of any of the elements of the statutory definition. It was open to the Tribunal to conclude that the India Post Office was not a “financial institution”, having regard to the absence of material relating to the statutory definition of such an institution. The Tribunal’s findings were open to it for the reasons it gave, and were rationally and reasonably made: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 626 [40], 629 [55]-[56], 657 [147]; Minister for Immigration and Citizenship v SZMDS [210] HCA 16; (2010) 240 CLR 611, 648-9 [131]-[133].
It is further noted that the case the Applicants advance now is contrary to that which they advanced before the Tribunal. The Applicants submit that it was not enough for the Tribunal to rely on the fact that the India Post Office was not listed on the website of the Australian High Commission. However, before the Tribunal the Applicants were content to rely on the fact that it was (in the evidence they held) enough to satisfy the criterion. It was also the case that the Delegate found on the same basis as the Tribunal. Hence, if it was the case that the Tribunal was considered to have impermissibly acted according to policy, then it is the case that the Delegate did also (and this should have been raised as an issue before the Tribunal). Further, it is also then the case that the Applicants were content to rely on an inflexible application of policy, without issue, if it served their aims. Only now, when the Tribunal determined it did not, do the Applicants take issue.
Put simply, the Tribunal was not satisfied with the evidence before it. The evidence did not reach the level at which it could be satisfied that India Post was a “financial institution”, because the only evidence which the Applicants presented was considered and rejected by the Tribunal. It did not inflexibly apply the policy or act under dictation as alleged.
The Court agrees with the Minister’s submissions that this ground is not made out.
Ground 2 is dismissed.
Ground 3
By Ground 3 of the Amended Application, the Applicants plead that the procedure adopted by the Tribunal was affected by an apprehension of bias. The particulars of Ground 3 in the Amended Application refer to paragraphs 30 to 38 of the Applicants’ Submissions, in lieu of properly pleaded particulars. The relevant paragraphs of the Applicants’ Submissions are as follows.
Particulars of the apprehension
30.The appellant relies on the overall impression to be gained from listening to the audio including the Tribunal’s harsh and combative tone (assisted by reading the transcript which is exhibited to the affidavit of Carina Ford dated 3 July 2018), and also relies on the following matters.
31.The Tribunal was not interested in evaluating for itself whether India Post Office met the requirements of a “financial institution” within the meaning of r. 1.03 of the Regulations and was instead exclusively concerned with whether India Post Office was mentioned in the list maintained by the High Commission. That of itself tends to indicate that the Tribunal member brought with him a mind pre-fixed as to how this review would be conducted; that it would be decided explicitly against the policy.
32.The fair-minded lay observer, fully aware of the statutory regime and all relevant circumstances would be troubled by this observation.
33.On page 2 of the transcript, line 33, very early into the hearing, the members says “I’m not sure where you got it from Ms Kaur, but it’s not a fact at this stage. Post office accounts are not an acceptable form of funds.”
34.This statement was made in response to the applicant seeking to advance evidence that India Post Office was at one time considered to be a financial institution by the Australian High Commission in India; if accepted, this would have enabled her to argue that the current opinion of the Australian High Commission - not being anything more than the opinion of an official, and not having any legal consequence - was wrong in not thinking India Post Office was a “financial institution” as defined.
35.This comment by the Tribunal would make it unambiguously clear to the fair-minded lay observer that from that moment onward, the outcome of the review was settled, on the basis that India Post Office was not mentioned in the list maintained by the Australian High Commission in India. As that was not conclusive and the applicant was entitled to be heard to seek to persuade the member not to adopt that position, the fair minded lay observer would know at this point that she was denied such an opportunity.
36.This impression is corroborated by the observation on page 4 of the transcript, line 14, where the Tribunal member essentially restates his position and then indicates that the decision would be made on the same day as the oral hearing. Eleven minutes into the hearing, the Tribunal indicates that the case would be decided on day - a plain indication that his mind was made up and closed to persuasion.
37.On page 6 of the transcript, from line 8 onward, the Tribunal directs the applicant’s attention to her study history in was is plainly intended to communicate criticism of the education provided, and of the applicant. the applicant then commences an answer that seeks to respond to the Tribunal’s concerns but is rudely cut off “I’m not interested in the study”. That was a remarkable thing to say to a person, just after having essentially scolded them on the topic.
38.Taken cumulatively, the fair minded lay observer may have thought that the Tribunal may not be bring an open mind to the applicant’s case[34].
(Without alteration)
[34] Applicant’s Submissions, at [30]-[38].
By this ground, the Applicants allege that the Tribunal’s Decision is vitiated due to a reasonable apprehension of bias. The Minister’s Submissions at [16]-[17] summarise the principles that apply to the question of whether a decision by the Tribunal is vitiated for a reasonable apprehension of bias. Counsel for the Applicants agreed with each of those principles[35]. The Court adopts the principles summarised in the Minister’s Submissions, at [16]-[17], with minor amendments, as its own.
[35] Transcript T12:L27-28.
The test remains whether “a fair minded lay observer might reasonably apprehend that the [Tribunal] might not bring an impartial mind to the resolution of the question to be decided”: ReRefugee Tribunal; Ex parte H (2001) 179 ALR 425 (Ex Parte H), 435 at [27]; See also MZZLO v Minister for Immigration and Border Protection (No 2) [2016] FCA 356; and AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341 (AZAEY). In other words, the question is whether, in the circumstances of the case and through the Tribunal’s conduct, there was a reasonable apprehension that the Tribunal had pre-judged the Applicants’ claim: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [71]-[72].
How this principle is applied depends upon the “nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker”: Ibester v Knox City Council (2015) 320 ALR 432, 437 at [21], [23] (Kiefel, Bell, Keane and Nettle JJ).
An apprehension of bias is to be determined objectively by the Court and must be “firmly established”, distinctly made and clearly proved: Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 (Hot Holdings) at [68] (Mc Hugh J); Re JLR; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J); SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (SZRUI) at [22] (Flick J).
It is not sufficient if the reasonable bystander “has a vague sense of unease or disquiet”: Jones v Australian Competition and Consumer Commission [2002] FCA 1054; (2002) 76 ALD 424, 441 at [100] (Weinberg J).[36] Further, “robust and vigorous questioning” by a decision-maker will not on its own sustain a finding of apprehended bias: SZRUI, [4] (Allsop CJ) at [32]-[33] (Flick J) and [87] (Robertson J).
[36] This decision was overturned by the Full Court on appeal in Jones v Australian Competition and Consumer Commission (ACCC) [2010] FCAFC 136; (2010) 189 FCR 390, however the statement of legal principle remains.
In light of the preceding propositions, the hypothetical observer is taken to be aware of:
a)The nature of the decision and the context in which it was made: Hot Holdings, [70]; AZAEY, [28]; and
b)The circumstances leading to the decision: Stollery v Greyhound Racing Control Board (1972) 128 CLR 509, 519 (Stollery).
In this case, the Tribunal’s hearing was in the context of an inquisitorial decision-making regime under the Act. It follows that it can be expected that the Tribunal:
a)Would not accept the Applicants’ evidence uncritically (a matter known by the hypothetical observer): Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, 254 at [134] (Kenny J).
b)Would test the evidence given by the First Applicant, even robustly, to determine the weight that should be given to it: Minister for Immigration and Citizenship v MZXPA (2008) 100 ALD 312 (MZXPA) at [14] (Sundberg J); SZRUI at [4] (Allsop CJ) at [24]-[33] (Flick J) and [87] (Robertson J).
c)Would confront the First Applicant with matters that brought her account into question: Ex Parte H, 435 at [30]-[31].
d)Would ask the questions about matters that are troubling the Tribunal and express doubt about the First Applicant’s evidence: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [19].
I turn now to consider the specific complaints made by the Applicants in relation to Ground 3.
Paragraphs 31 and 32
At paragraph 31 of the Applicants’ Submissions, the Applicants allege that the Tribunal did not, for itself, evaluate whether India Post met the requirements of a “financial institution” within the meaning of reg. 1.03 of the Regulations. It is alleged in paragraph 32 that “the fair-minded lay observer, fully aware of the statutory regime and all relevant circumstances would be troubled by this observation”.
As discussed in relation to Ground 2, it was for the Applicants to adduce evidence to demonstrate that India Post met the relevant statutory definition. The only evidence that was adduced by the Applicants was rejected by the Tribunal. Once the Tribunal had rejected that evidence, it was open to the Tribunal not to be satisfied that India Post was not a “financial institution” when the Applicants had advanced no other basis for the Tribunal to so find. There was no obligation on the Tribunal to make the Applicants’ case for them: Prasad at 169-70 (Wilcox J); Abebe at [187] (Gummow and Hayne JJ).
The Court otherwise reiterates the matters discussed in relation to Ground 2.
The Court rejects the submissions made in the Applicants’ Submissions at paragraphs 31 and 32.
Paragraphs 33 to 35
At paragraphs 33 to 35 of the Applicants’ Submissions, the Applicants allege that the statement made by the Tribunal that “I’m not sure where you got it from Ms Kaur, but it’s not a fact at this stage. Post office accounts are not an acceptable form of funds” [37] demonstrates that the Tribunal had a closed mind.
[37] Tribunal Transcript T2:L30-31.
The context within which the Tribunal hearing took place is significant. The Court relies upon the principles set out above at [54]. The hypothetical observer is taken to be aware of:
a)The nature of the Tribunal Decision and the context in which it was made: Hot Holdings, at [70]; AZAEY, at [28]; and
b)The circumstances leading to the Tribunal Decision: Stollery.
A Tribunal hearing is held in the context where the Tribunal has already formed a preliminary view that it is not satisfied with the material before it. In MZXPA, Sundberg J said:
[13] The hypothetical fair-minded and informed person would be aware of the nature of the Tribunal’s review functions and proceedings, and that the Tribunal would not invite an applicant to a hearing unless, on the material available to it, it had already reached a preliminary view unfavourable to the applicant. That follows from s 425 of the Act, which provides in part:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it.
Such a preliminary view does not establish apprehended bias: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 ; 77 ALD 23 ; [2003] FCA 872 at [23] and SZBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 965 at [15]–[16] .
[14] An informed and instructed hypothetical person would also know that the tribunal is an inquisitorial body, and is not required uncritically to accept an applicant’s claims: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 ; 144 ALR 567 at 595–6 ; 48 ALD 481 at 507–8 ; [1997] HCA 22.[38]
[…]
[15] Accordingly, under the Act, the expression of a preliminary view, even on a critical matter, does not establish bias. At common law (that is independently of the special features of the Act that bear on the ambit of apprehended bias), the courts have accepted that judges, tribunals and administrators may properly, and indeed sometimes should, express a preliminary view so as to alert a party to concerns they may have and thus afford the party an opportunity to rebut that view.[39]
[38] MZXPA, at [13]-[14].
[39] MZXPA, at [15].
In this case, the issue under review before the Tribunal was whether at the time of the review, India Post was a “financial institution” for the purposes of reg.1.03 of the Regulations.
The Delegate’s Decision set out the criteria that the First Applicant needed to satisfy in order to demonstrate that money was held with a “financial institution” as defined by reg.1.03 of the Regulations. The Delegate’s Decision paraphrased the Regulations as follows:
Clause 5A101 defines a money deposit as being a money deposit held with a financial institution. In determining whether the documentation provided from India Post is held with a financial institution as defined in regulation 1.03, I am guided by the following policy advice:
63.3 Financial institutions
Definition
Financial institution is defined under regulation 1.03. This definition provides that a financial institution is a body corporate that, as part of its normal activities, takes money on deposit and makes advances of money:
·under a regulatory regime
·governed by the central bank (or its equivalent) of the country in which the body corporate operates; and
·that the Minister is satisfied provides effective prudential assurance; and
·in a way that the Minister is satisfied complies with effective prudential assurance requirements.
Prudential assurance refers to the prudent management of capital and other assets of the relevant bank or financial institution to enable it to meet its financial obligations as and when they become due.
The specific criteria used to measure effective prudential assurance will differ based on the circumstances relevant to the regulatory regime in each country but may include a consideration of whether the:
·financial institution has implemented appropriate credit risk management strategies
·financial institution is approved by central bank of the country or receives an official high credit rating from an independent body
·documents from the financial institution have previously been assessed by the department and found not to represent legitimate funds available to a client
·financial institution has been implicated in any unacceptable behaviour such as systematic fraud or bribery.
Some posts may maintain a list of acceptable financial institutions. The list should be created on the basis of the relative financial standing of an institution, its credit rating and integrity:
·the list of financial institutions for India and Nepal is maintained on the Australian High Commission New Delhi website
[…]
India Post is not included in the list of acceptable financial institutions maintained on the Australian High Commission New Delhi website. I am therefore not satisfied that the money deposit held by Baj Singh with the Goluwala branch of India Post are held with an acceptable financial institution
Consequently I am not satisfied that you meet the financial requirements of Schedule 5A, specifically 5A508 and therefore you do not meet 573.223(2)(a).[40]
[40] CB 85-86.
The Delegate’s Decision conveyed to the Applicants that the Delegate had no information before her about India Post that would satisfy reg.1.03 of the Regulations. The only information the Delegate did have was that India Post was not on the list maintained by the Australian High Commission New Delhi. The Applicants failed to satisfy the relevant requirements and therefore the grant of the Visa was refused.
The Applicants therefore had some onerous criteria to prove that India Post satisfied reg.1.03 of the Regulations. The Applicants needed to produce evidence with respect to the normal activities of the body corporate, the regulatory regime that governed it, the fact that it was governed by a central bank, that it had effective prudential assurance and that it had complied with those prudential assurance requirements.
As discussed above at [11], the Tribunal wrote to the Applicants’ migration agent on 18 December 2015, acknowledging receipt of the application for review[41]. In that correspondence, the Tribunal said “If you wish to provide material or written arguments for us to consider, you should do so as soon as possible”. Nothing was received from the Applicants[42]. The Hearing Invitation[43] requested the Applicants to provide any documents they relied on at least seven (7) days prior to the hearing date. The Hearing Invitation stated:
[…] The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing […][44]
[41] CB 102-195.
[42] CB 218, at [10].
[43] CB 106-110.
[44] CB 108.
The Applicants were therefore on notice that they should have regard to the matters raised in the Delegate’s Decision for the refusal of the Visa. The Applicants’ September 2016 Submission[45] was received the day before the Tribunal hearing. This submission failed to address the matters required to provide evidence that India Post was a “financial institution” pursuant to reg.1.03 of the Regulations. The only material that advanced this argument in the Applicants’ September 2016 Submission was the material that purported to be extracted from the Website. This was undated material with no evidence of its provenance. In relation to this material, the First Applicant stated:
While scrolling through the Australian High Commission website; I came across the below facts concerning the criteria for financial requirement for the student visa application […][46]
[45] CB 136-141.
[46] CB 136.
The Applicants failed to submit to the Tribunal any other material that could rationally persuade the Tribunal that India Post was a “financial institution” for the purposes of the Regulations. Therefore, on the basis of the information available to the Tribunal prior to the hearing, it would be a very difficult task for the Applicants to establish that India Post was a “financial institution” as defined in the Regulations. This was the context in which the Tribunal Member commenced the hearing on 13 September 2016.
After taking into account the context of the Tribunal hearing, I turn now to consider the impugned statement. The impugned statement[47] needs to be read in the context of the entire exchange between the First Applicant and the Tribunal[48]. This exchange reveals that the Tribunal assessed and rejected the evidence that the Applicants adduced to demonstrate that India Post was a “financial institution”. Prior to the impugned statement, the Tribunal reminded the Applicants of the statutory criteria[49].
[47] Tribunal Transcript T2:L30-31.
[48] Tribunal Transcript T1-3.
[49] Tribunal Transcript T2:L17-21
At the time of the impugned statement, the Applicants’ only evidence in support of the statutory criteria had been rejected. The Tribunal therefore expressed a strongly held preliminary view in the impugned statement. Further, once the Tribunal indicated that the evidence provided by the Applicants did not advance their case as at the date of the Tribunal hearing, the Applicants sought to satisfy the financial capacity requirements through an alternate route and the Tribunal allowed the Applicants to advance that case[50]. The Tribunal also asked the First Applicant on a number of occasions throughout the Tribunal hearing if she had any further submissions[51].
[50] Tribunal Transcript T3.
[51] See, for example, Tribunal Transcript T2:L26, T4:L14, T5:L9 and T6:L27.
The Court rejects the submissions made in paragraphs 33 to 35 of the Applicants’ Submissions.
Paragraph 36
The Applicants allege, in paragraph 36 of the Applicants’ Submissions, that the following statement made by the Tribunal, demonstrates that the Tribunal’s “mind was made up and closed to persuasion”[52]:
[…] the point that I have made to you on a couple of occasions is that what needs me to be satisfied is the financial requirements need to be satisfied at the date of decision, which is today. OR whenever the decision is made.
[52] The Applicants’ Submissions at [36] refers Tribunal Transcript T4:L14. The Court infers that Counsel for the Applicants was intending to refer to Tribunal Transcript T4:L8-11.
Administrative decision makers, just like judicial officers, are permitted to make decisions ex tempore[53].The fact that the Tribunal member indicated that he might, and subsequently did, deliver an ex tempore decision, could not be taken by the fully informed bystander as indicating a biased Tribunal.
[53] Section 368D of the Act.
The Court also notes that the Applicants emphasise the words of the Tribunal out of context. In context, it is evident that the Tribunal was indicating to the Applicants that the relevant time of enquiry was the time of decision, and not the time that they may have accessed the Website in 2015.
In MZXPA, Sundberg J referred to the observations of Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal (1991) 170 CLR 70 at 100; 93 ALR 435 at 457:
When suspected prejudgment of an issue is relied upon to ground disqualification of a decision maker, what must be firmly established is a reasonable fear that the decision maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion, irrespective of the evidence or arguments presented[54]
[54] MZXPA, at [17].
The allegation made in paragraph 36 of the Applicants’ Submissions does not firmly establish a reasonable fear that the Tribunal’s mind was so prejudiced in favour of a conclusion already formed that they will not alter their conclusion irrespective of the evidence or arguments presented.
The Court rejects the submission made in paragraph 36 of the Applicants’ Submissions.
Paragraph 37
At paragraph 37 of the Applicants’ Submissions, the Applicants allege that:
On page 6 of the transcript, from line 8 onward, the Tribunal directs the applicant’s attention to her study history in was is plainly intended to communicate criticism of the education provided, and of the applicant. the applicant then commences an answer that seeks to respond to the Tribunal’s concerns but is rudely cut off “I’m not interested in the study”. That was a remarkable thing to say to a person, just after having essentially scolded them on the topic.
(Without alteration)
The Applicants’ summary of this part of the Tribunal hearing is misleading. It was the First Applicant herself who raised her study history[55], after the Tribunal asked the First Applicant if she had any further submissions[56]. The Tribunal’s subsequent observations in relation to the First Applicant’s study history were irrelevant to the pertinent issue under review. The Tribunal recognised that the First Applicant’s submissions in relation to her study history was not relevant to the proceeding, and redirected the First Applicant’s attention to the issue in the review[57].
[55] Tribunal Transcript T5:L11.
[56] Tribunal Transcript T5:L8-10.
[57] Tribunal Transcript T6:L17-23.
In SZRUI, Flick J said:
[31] Again in a context where a decision of the Tribunal was under challenge, Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; 131 FCR 102 at 126–127 made the following observations as to what would not constitute a reasonable apprehension of bias:
[81] Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230:
While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea (1990) 90 NSWLR 263 at 279–80 and 283.
As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.
In concluding that the decision of the Tribunal was there vitiated by reason of a reasonable apprehension of bias, her Honour concluded that “[t]he vice in this case was that, by the Member’s conduct during the hearing, a fair minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim — that he had fabricated his account”: [2003] FCA 872 at [82], 131 FCR at 127.
[32] The use of “strong” language may not be sufficient to give rise to a reasonable apprehension of bias: Penhall-Jones v NSW [2007] FCA 925 at [92]–[97]. Buchanan J there concluded that the use of language such as the description of an offer as a “bribe” being “ridiculous” was not sufficient. Nor will “harsh tones” necessarily give rise to a reasonable apprehension of bias: SZNVM v Minister for Immigration and Citizenship[2010] FCA 261 at [31] per Katzmann J[58].
[58] SZRUI, at [31]-[32].
The Court adopts the language of Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 872, at [81] ; 131 FCR 102, at 126-127, in describing the exchange between the Tribunal and the First Applicant in relation to her study history[59]. The Tribunal was sarcastic and rude, and failed to conform to proper standards during this exchange.
[59] Tribunal Transcript T5:L9-T6:L17.
This exchange however, related to a matter that was unrelated to the subject matter of the review. The Court determines that the Tribunal’s insensitive behaviour during this exchange did not constitute disqualifying bias. There was nothing in the exchange between the First Applicant and the Tribunal that would indicate that the Tribunal was biased in relation to the subject matter of the review.
The Court rejects the submission made in paragraph 37 of the Applicants’ Submissions.
Paragraph 30
The Applicants allege in paragraph 30 of the Applicants’ Submissions, that:
The appellant relies on the overall impression to be gained from listening to the audio including the Tribunal’s harsh and combative tone (assisted by reading the transcript which is exhibited to the affidavit of Carina Ford dated 3 July 2018), and also relies on the following matters.
As discussed at [84] above, in SZRUI Flick J said the use of “strong” language may not be sufficient to give rise to a reasonable apprehension of bias[60].
[60] SZRUI, at [32].
In AZAEY the Full Court of the Federal Court said (North, Besanko and Flick JJ), at [20]:
“Harsh tones” may not be sufficient: SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [37] to [39]. Katzmann J there concluded that there was no “logical connection between the harshness of tone in a member’s questioning and an inability to bring an open mind to the resolution of the issues in a case, particularly where it is to be expected that the Tribunal will probe the witness’s answers to test the truth of the account being offered to it”. But “excessive judicial intervention”, especially where a party is unrepresented, may be sufficient: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 394 per Kirby P.
Further, the Court notes the principles referred to above at [57]. The Court also notes that this case did not involve the determination of any credit issues in relation to the Applicants. It was a matter for the Tribunal to determine whether sufficient evidence was adduced that India Post was a “financial institution”.
The Court determines that the use by the Tribunal of any “harsh tones” during the Tribunal hearing is insufficient to give rise to a reasonable apprehension of bias.
The Court rejects the submission made by the Applicants in paragraph 30 of the Applicants’ Submissions. The Court agrees with the Minister’s submissions that this ground is not made out.
The Court finds that the Tribunal’s Decision was not vitiated on the basis of a reasonable apprehension of bias.
Accordingly, Ground 3 is dismissed.
Conclusion
The judicial review application has not identified any jurisdictional error.
The Application, as amended, is dismissed.
At the hearing the Minister sought costs fixed in the sum of $7,328. This is in accordance with the costs allowed in pt.3 div.1 item 3 of sch.1 to the Federal Circuit Court Rules 2001 (Cth), applicable at the time of the hearing. Accordingly, an Order will be made that the Applicants pay the Minister’s costs fixed in the sum of $7,328.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 3 June 2020
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