Kaur v Minister for Immigration
[2020] FCCA 2240
•14 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2240 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where applicant was not invited to attend a hearing – concerns with conduct of a migration agent – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.5, div.5, ss.359, 359B, 359C, 360, 362A, 363A, 368A, 379A, 379G Migration Regulations 1994 (Cth), reg.4.17, cl.500.212 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | JASKARAN KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 274 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 12 August 2020 |
| Date of Last Submission: | 12 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 14 August 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 274 of 2019
| JASKARAN KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings is a citizen of India. On 11 March 2017, she applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (Court Book (“CB”) 1-45).
On 26 June 2017, a delegate for the first respondent (the “Minister”) refused to grant the applicant the visa (CB 47-59). The delegate found that the applicant did not meet cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as she was not a genuine temporary entrant for stay as a student.
On 10 July 2017, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 60-61).
On 28 July 2017, the applicant provided a submission in which she disputed numerous findings made by the delegate (CB 62-65).
On 24 October 2018, the applicant obtained migration assistance (CB 69). Her agent sought access to the Tribunal’s written material pursuant to s.362A of the Migration Act 1958 (Cth) (the “Act”).
On 7 February 2019, the applicant’s agent forwarded a confirmation of enrolment to the Tribunal (CB 73-77).
On 21 February 2019, the applicant was invited to provide further information to the Tribunal (CB 79-87).
On 13 March 2019, the applicant’s agents requested an extension of time in which to respond to the invitation (CB 88-89).
On 18 March 2019, the applicant’s agent forwarded a response to the invitation to provide information, including a genuine temporary entrant statement (CB 90-111).
On 1 May 2019, the applicant sent an email from her personal account to the Tribunal explaining that she was a genuine student. She also attached various documents (CB 112-128; First Affidavit of Georgina Roberta Ellis dated 12 August 2020). On the same day, the applicant called the Tribunal on three separate occasions, making various requests (First Affidavit of Georgina Roberta Ellis dated 12 August 2020; Second Affidavit of Georgina Roberta Ellis dated 12 August 2020).
On 12 May 2019, the applicant forwarded a letter from her college (CB 134).
On 20 May 2019, the applicant emailed the Tribunal, as follows (CB 135):
Hi this is jaskaran Kaur my file number is 1714724. Actually I submitted all documents. But I did not get any hearing or result. 1 submitted my documents by own, my agent did not guide me and did not tell me about form than I concern with other agent and with my friend. They told me about form or certificates. Actually I went to India for my brain treatment on that time when you pick my file. 1 have brain problem and suffering with depression. Because my husband left me for other girl. Please grant me visa as soon as you possible. I am really in tension.
On 29 May 2019, a new migration agent was retained by the applicant (CB 138-142). On 6 June 2019, that agent was granted access to the written material on the Tribunal’s file (CB 147).
On 30 June 2019, the applicant personally (not via her agent) sent an email to the Tribunal (Affidavit of Georgina Roberta Ellis affirmed 27 July 2020). She wrote:
Hi this is jaskaran Kaur, and my file number is 1714 724. Actually I am waiting for hearing from last 4 months . But I did not get any update. Heartily, I just was to request to you. Please give me hearing date. Or how much time will you take for hearing.? I am really in stress. My agent always misguide me. So now I change my agent as well as. Please help me to stress me out.
On 4 July 2019, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa (CB 152-159).
On 8 July 2019 (at 11.11am), the Tribunal personally emailed the applicant a letter advising her that she had lost her entitlement to attend a hearing before the Tribunal (and copied that email to her agent). That same day (at 2.18pm), the applicant sent an email to the Tribunal in which she said:
Hi this is jaskaran Kaur. Firstly thanks for your reply. I just want to say if you need any documents or evidence please contact me. I am happy to provide you. Actually my previous agent misguide me. He did not inform me any thing I went to India for my treatment. But he did not ask me about GTE or other documents. One of my friend told me about these documents. Than I sent to you that’s why I was late. Apologies for that.
On 8 July 2019, at 1.52pm, the Tribunal emailed the applicant’s agent a copy of the decision to affirm the delegate’s decision.
On 19 July 2019, the applicant sought judicial review of the Tribunal’s decision in this Court pursuant to s.476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s substantive decision is 8 pages long and spans 38 paragraphs.
At [1]-[5], the Tribunal set out the factual background to the visa. This overview detailed the type of visa the applicant had applied for, a summary of the delegate’s findings and noted that the applicant had been assisted by three separate migration agents during the course of the review process.
The Tribunal then referred to the invitation to provide information that was sent to the applicant pursuant to s.359 of the Act on 21 February 2019. The Tribunal was satisfied that that invitation was properly sent (at [6]). It was also noted that the applicant had requested additional time. However, as the request was not made prior to the expiry of time to respond, the extension was refused (at [7]). A further consequence of this refusal was that the applicant had lost any right to attend a hearing (at [8]).
At [9], the Tribunal stated:
The primary applicant has, however, filed numerous documents with the Tribunal and the Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicants to the Department as well as all documents filed with the Tribunal.
Having noted that the applicant was required to satisfy the Tribunal that she met the criterion to be granted the visa (at [10]), the Tribunal then set out the requirements of cl.500.212 and Direction 69 as follows:
13. Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor-the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
14. In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction requires the Tribunal to have regard to a number of specified factors in relation to:
• the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
• the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
• if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
• any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
15. The Direction indicates that the factors specified should not be used as a checklist, but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
16. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case. Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusions as, to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.
The Tribunal then outlined the applicant’s study history. This detailed when she arrived in Australia and the courses she had enrolled in. This included (at [18]-[19]):
a)undertaking a Certificate III in Commercial Cookery from January to December 2016 and a Certificate IV in Commercial Cookery from January to June 2017;
b)completing a Barista Basics Course in August 2017;
c)undertaking a Diploma of Hospitality Management from July 2017 to December 2017; and
d)commencing a Bachelor of Business on 19 March 2019 with the expected completion date of 30 June 2020.
The Tribunal then stated:
20. Unfortunately, the applicant has experienced emotional and very severe physical health problems. The applicant has provided numerous medical certificates and documents to the Tribunal in relation to this and it is clear that her capacity to study during 2018 was severely impaired and that it will continue to be compromised for the foreseeable future. It is to her credit that she is continuing to study in such circumstances. The applicant and her husband separated in August 2017, she became unwell in early 2018 and at some stage had a fall at home and an ambulance was called. The applicant has supplied medical certificates and letters and a course deferral letter in relation to her Bachelor of Business which appear ultimately to indicate that the applicant may be suffering from early tuberculosis, having presented with highly abnormal CT brain scans, vertigo and difficulty walking and writing. In combination with these physical difficulties, the applicant also appears to have bene suffering from anxiety and depression. She returned to India for treatment in July 2018 and again in February 2019.
21. The Tribunal empathises with the severe health and emotional difficulties the applicant has faced during her time onshore.
The Tribunal noted that the applicant had been working at Pizza Hut since 2015, had provided no evidence of her income or expenses in Australia and that there was some suggestion in the materials that the applicant worked with greyhounds three days a week (at [22]).
The Tribunal stated:
23. In the applicant’s undated genuine temporary entrant statement titled ‘Genuine Temporary Entrant’ (‘the GTE’), the applicant states that she plans to create a franchise chain of International Food Items upon her return to India. However, in her more recent submissions to the Tribunal filed on 14 March 2019 and again on 18 March 2019, the applicant lists a suite of positions she could seek with multi-national corporations upon completion of her Bachelor of Business, none of which appear to be running a food franchise. She states she will establish her own business or explore her father’s business or ‘do job in big MNCs’ upon returning to India. It is not clear to the Tribunal what the applicant’s father’s business actually is and what sort of a role the applicant would hold within that organisation. The Tribunal finds the applicant’s stated career goals inconsistent and considers the applicant’s submission in relation to her future career goal and how the proposed study fits within that goal very general and vague.
The Tribunal then stated:
24. The Tribunal has difficulty in relation to the applicant’s previous studies onshore:
a. On the one hand, the Tribunal accepts that the cookery and hospitality courses undertaken may be relevant to and assist the applicant in relation to running a food franchise. However, the Tribunal considers that such benefit has now been gained and the applicant is in a position to depart Australia, reunite with her family and put into motion that plan;
b. On the other hand, the Tribunal is concerned by the applicant’s change in career goal and finds that the cookery and hospitality courses appear unrelated to the new career goal of seeking a business role as stated in paragraph 23 above;
c. Further, the Tribunal is troubled by the significant downgrading in the applicant’s study onshore compared to her Masters qualifications obtained in India. These courses were engaged in by the applicant prior to her health problems.
On balance, the Tribunal places weight against the applicant in relation to this Direction 69 factor
At [25], the Tribunal continued:
The Tribunal makes allowances for the applicant's health problems in relation to her lack of more recent academic progress and commends the applicant for returning home and seeking course deferral in this regard. The Tribunal also allows for reasonable changes to career and study pathways. However, the Tribunal finds it difficult to see the benefit a Bachelor of Business is going to provide the applicant when she has already completed a Bachelor of Arts (Economics) and a Masters of Business Administration. The proposed study is not consistent with the applicant's current level of education, it is repetitive and it is difficult to see how any possible benefit or improvement that such course may offer to the applicant's career prospects could outweigh the significant time, monetary and practical costs associated with undertaking such study in Australia. This is particularly so where the applicant clearly needs support due to her health problems.
The Tribunal found that the applicant had a reasonable explanation for not undertaking her studies in India (at [26]), that the applicant’s family ties in India might serve as a significant incentive for her to return to India (at [29]) and that there was nothing to suggest that the applicant had any travel or immigration issues in the past (at [30]).
The Tribunal determined that the applicant had cultivated a satisfactory life and established strong ties to the Australian community which strengthen each day (at [27]). The Tribunal also considered that the applicant’s economic circumstances in India, as compared to Australia, might present a significant incentive for her to remain in Australia (at [28]).
At [32], the Tribunal concluded:
The Tribunal cannot be satisfied that the applicant genuinely intends to stay in Australia temporarily. In making this comment, the Tribunal places weight on: the length of time the applicant has been onshore for being in excess of four years; the fact that she has now completed the hospitality studies relevant to the goal stated in the GTE and should be in a position to return to India; the fact that the applicant appears to have more recently changed her career goal in her submissions of March this year and such goal is vague and imprecise; the limited (if any) benefit the proposed Bachelor of Business has to offer the applicant in circumstances where she has already completed a Bachelor of Arts and a Masters of Business Administration; and the fact that the applicant’s previous and proposed studies are inconsistent with her current level of education. The Tribunal considers that the visa is being sought primarily to maintain residence in Australia.
Overall, the Tribunal determined that the applicant did not meet cl.500.212 of the Regulations and was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl.500.212 (at [33]-[34]).
The Tribunal affirmed the decision not to grant the applicant the visa (at [38]).
Proceedings in this Court
The applicant filed her judicial review application in this Court on 19 July 2019. She relies on three grounds of review as follows:
1. The decision made by the ADMINISTRATIVE APPEALS TRIBUNAL was affected by jurisdiction error.
2. On the response form to AAT, I clearly state that I do not consent to the Tribunal deciding the review without a hearing, however; the Tribunal failed to consider that, they made the decision without giving me a chance of hearing
3. AAT did not request further information and not invited for hearing when I requested for hearing many times and mentioned on the form too.
(Without alteration)
In her affidavit dated 19 July 2019, the applicant repeats her grounds of review but adds:
I think it is unfair happened with me.
The applicant was given an opportunity to file an amended application, any affidavit evidence and an outline of submissions. On 29 July 2020, the applicant filed an affidavit. That affidavit contained a progress letter from her current education provider, identity documents and written submissions. The submissions referred to the “facts that will make you believe that I am a genuine student and have continued to study despite the mammoth hardships I have faced both personally and health wise.” The Court will consider these documents below.
The materials before the Court include those referred to above, a Court Book numbering 159 pages (marked as Exhibit 1), an affidavit of Georgina Roberta Ellis affirmed 27 July 2020, an additional affidavit of Georgina Roberta Ellis affirmed 12 August 2020, a further additional affidavit of Georgina Roberta Ellis also affirmed on 12 August 2020 and an outline of submissions filed by the Minister on 27 July 2020. The Court confirmed with the applicant that she had received a copy of the Court Book, Ms Ellis’ affidavits and the Minister’s written submissions.
At the hearing, the applicant appeared before the Court without legal representation. She was assisted by a Punjabi interpreter. Noting that the applicant was unrepresented, the Court gave her an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concern that she had with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant her the visa she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that when she returned to her remote home in India there had been technological issues that made digital access difficult and that, as a result, she had difficulty communicating with her Australian migration agent. She explained further that when her agent did contact her, he only asked about whether she “wanted to include her ex-husband in the visa”. The applicant expressed concern all of her agents had “misguided her”. Finally, the applicant stated that she felt that the Tribunal had been “frustrated” by her numerous emails and “had made up their mind” by the time the decision was written.
The Court will address these issues.
Consideration
While the applicant raises three separate grounds of review in her judicial review application, in effect she raises only one issue with the Tribunal’s decision in the application for judicial review: that she was not invited to attend a hearing and that, as such, the Tribunal made a jurisdictional error (a denial of procedural fairness).
It is correct that the applicant was not invited to attend a hearing before the Tribunal.
In the response to the invitation to comment (which, it appears was provided to the Tribunal sometime after 7 March 2019) the applicant expressly stated (CB 102):
No, I/we do not consent to the Tribunal deciding the review without a hearing.
The issue here is whether the Tribunal erred by not inviting the applicant to attend a hearing.
Section 360 of the Act provides:
(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; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
In this matter s.360(2)(c) is relevant. In particular, s.359C(1) provides:
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
The Tribunal invited the applicant to provide information in a letter dated 21 February 2019. That invitation was sent pursuant to s.359(2) of the Act. In accordance with s.359(3)(a) of the Act, that invitation must be given to an applicant by a method specified in s.379A of the Act.
The invitation was sent by email. Giving an applicant a document via email is a method of communication specified in s.379A(5). The invitation was emailed to the applicant’s authorised recipient. In accordance with s.379G(2), by giving the invitation to the authorised recipient the Tribunal is taken to have given the invitation to the applicant.
Accordingly, by virtue of ss.379A(5), 379C(5) and 379G, the applicant was taken to have been given the invitation to comment and to have received that invitation at the end of the day on 21 February 2019.
The invitation also needed to satisfy s.359B of the Act. Here, the invitation:
a)specifically requested that the applicant provide information “in writing” (thereby complying with s.359B(1)); and
b)required the applicant to respond to the invitation by 7 March 2019. Relevantly, this was 14 days from the date the applicant was taken to have received the invitation and was the minimum period prescribed by reg.4.17 of the Regulations (thereby complying with s.359B(2)).
In this matter, the applicant did not provide the information to the Tribunal by 7 March 2019 and the extension of time request was made after this date had passed. Section 359B(4) provides that the Tribunal can extend time but the request to extend time must be received prior to the prescribed period ending: Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40 at [48]. Having failed to request the extension prior to 7 March 2019, there was no discretion on the part of the Tribunal to extend time after this date.
Section 359C(1) was enlivened and, accordingly, the Tribunal was not required to invite the applicant to attend a hearing: the Act, s.360(2)(c).
While the applicant may have indicated in the response to the invitation to provide information (which was provided after the deadline of 7 March 2019) that she did not consent to the Tribunal deciding the review without a hearing, by failing to respond by 7 March 2019, the applicant lost any right or entitlement to attend a hearing. This is because s.360(3) states that the applicant is not entitled to attend a hearing and s.363A expressly provides that the Tribunal does not have the power to permit a person to do something that they are not entitled to do. Hence, having lost the entitlement to appear, the Tribunal was mandated not to invite the applicant to attend the hearing. Had it done so, it would have acted without jurisdiction.
In relation to the Tribunal’s decision to decide the application without seeking any further information from the applicant, s.359C(1) expressly allows for this course of action. The applicant had provided a number of documents to the Tribunal on her own behalf when she effectively “fired” her agent.
Relevantly, when the applicant’s new agent was appointed, no request for the Tribunal to delay making its decision was made. The agent requested access to the written material on the Tribunal’s file. At no stage did the agent ask the Tribunal to delay making its decision. Further, the Tribunal’s decision was made nearly one month after the new agent was given the written material. There was nothing to suggest a written submission was forthcoming.
While the applicant provided a response on 8 July 2019, this was after the Tribunal had made its decision. The applicant did not suggest that she required further time or that she had more documents to provide. Rather, she explained why she had provided the documents “late” and asked the Tribunal to contact her if anything more was required. The Tribunal was not required to make any inquiries – that is the case even if the Tribunal has not yet made a decision.
It was entirely reasonable for the Tribunal to make a decision without requesting any further information from the applicant. The applicant had provided a wide range of materials, her current agents had not indicated that they intended to make a submission or provide any information and s.359C(1) expressly allowed the Tribunal to proceed without taking any further steps. It was open to the Tribunal to proceed as it did.
The Tribunal’s failure to invite the applicant to attend a hearing was entirely lawful and did not offend any of the exhaustive procedural fairness obligations in div.5 of pt.5.
The grounds of the judicial review application do not identify any jurisdictional error.
Was There “Fraud” on the Part of the Applicant’s Agent?
The Court notes that where a self-represented litigant is appearing, the Court should remain astute and alert to the possibility of legal error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
The Court has considered whether the applicant’s submissions about her agent’s failure to “do the right thing” rise to the level of an allegation of fraud on the part of the applicant’s agents and, specifically, whether any fraud has occurred so as to vitiate the Tribunal’s decision: SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 (“SZFDE”).
It is noted that in the correspondence sent to the Tribunal on 1 May 2019, the applicant states as follows (CB 112):
In 21st of feb 2019 AAT department asked me for documents. But I was busy in India. And my agent did not contact with me. He did not ask me for GTE. Or other certificates. He just told me department asking for my X relation with me. He miss guide me. When I asked he told me he sent mail to you for extension. But today I called to department. That told me my agent asked for extension on 13th or March. He did not tell me about any form which you set yesterday when I asked he told me I was busy I did not see. He just giving me excuse.
On 20 May 2019, the applicant again emailed the Tribunal as follows:
…Actually I submitted all documents. But I did not get any hearing or result. I submitted my documents by own, my agent did not guide me and did not tell me about form than I concern with other agent and with my friend. They told me about form or certificates…
As the Minister noted, the applicant advanced no evidence of any fraud and the allegation has not been particularised. It is noted that before this Court the applicant stated that her agent had “misguided” her. She also said that her agent “did not guide” her. The applicant’s affidavit also indicated that the agent did “not provide her information”. At the hearing, the applicant stated that the agent had not told her that she needed a GTE statement.
On the materials before the Court, the Court is satisfied that the agent has not engaged in any conduct that amounts to a fraud on the Tribunal. Here:
a)the applicant’s agent had provided materials in support of the applicant’s case prior to the Tribunal inviting the applicant to comment. This suggests that the agent was competently (and actively) serving the client and her interests;
b)the applicant’s agents contacted the Tribunal on 13 March 2019 explaining that they were having difficulties taking instructions because the applicant was overseas and that they were “urgently assisting with preparation” of a statement (CB 88). They requested an extension of time. The applicant herself stated before this Court that her agent contacted her while she was overseas but there were “connectivity issues”;
c)on 14 March 2019, the applicant’s agent forwarded a statement to the Tribunal in support of the applicant’s application (CB 91-94). The applicant herself was “cc’ed” into that email. This indicates that she was aware that a GTE Statement had been provided on her behalf. On 19 March 2019, the applicant’s agent forwarded an amended statement indicating that there were “honest mistakes” in the previous statement (CB 97-100). Again, the applicant was “cc’ed” into that correspondence and was, accordingly, aware of it being provided to the Tribunal. She raised no objection in this regard; and
d)before this Court, the applicant stated that every time she asked her agent a question she would be told “I will have to look into that”. She also stated that she made sure she gave her agents information to provide to the Tribunal, but they did not provide any information until after the due date.
The circumstances here appear to amount to no more than a “mishap” or miscommunication between the applicant and her agent: SZFDE at [53]. Whether that miscommunication arose because of “connectivity issues” is irrelevant. The agent appears to have made every endeavour to assist the applicant. The Court is satisfied that there is no evidence of fraud in this case. Nor is there any evidence of ill intention on the part of the agent. At its highest, what occurred amounts to negligence or, perhaps, incompetence: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17. To that end, the Court refers the applicant to the Office of the Migration Agent Registration Authority – an agency that is better placed to deal with some of the issues that the applicant raises here.
There was no jurisdictional error arising from the agent’s conduct.
The Tribunal’s “Frustration” – Allegation of bias?
At the hearing, the applicant indicated that she felt that the Tribunal may have become frustrated because she sent a number of emails to the Tribunal requesting confirmation and providing information and documents. The Court understands this to be an allegation of bias.
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
The mere fact that the applicant sent a number of emails to the Tribunal does not cause the Court to reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case. There is no evidence in the case to support an allegation of bias. The applicant lost her right to attend a hearing prior to her sending the emails she refers to. The Tribunal was at liberty to decide the application at any time.
The applicant also submitted that the Tribunal’s decision was made on 4 July 2019 but was not provided to her until 8 July 2019. She implied that this also demonstrates bias.
The Court does not agree.
The Tribunal’s decision was made at 5.36pm on 4 July 2019. The following day was a Friday, followed by the weekend. The Tribunal has an enormous workload. It cannot always dispatch decisions immediately. This does not demonstrate bias. Further, the Tribunal is provided 14 days in which to provide the applicant a copy of the decision: the Act, s.368A.
The Court is satisfied that the Tribunal was not biased.
The Applicant’s Affidavit
As noted, the applicant’s affidavit provided “submissions”. Unfortunately, those submissions were directed at the merits of the Tribunal’s decision. They simply explained why the applicant was a genuine temporary entrant for stay as a student.
Accordingly, the applicant’s affidavit does not identify any error.
Conclusion
The judicial review application and the applicant’s affidavit fail to identify any jurisdictional error. The Court has otherwise been unable to identify any jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding eight-one (81) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 14 August 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Statutory Construction
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