Kaur v Minister for Immigration and Border Protection
[2015] FCA 1
•8 January 2015
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Border Protection [2015] FCA 1
Citation: Kaur v Minister for Immigration and Border Protection [2015] FCA 1 Appeal from: Kaur v Minister for Immigration [2014] FCCA 1445 Parties: MANDEEP KAUR and JASWINDER SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: NSD 734 of 2014 Judge: ROBERTSON J Date of judgment: 8 January 2015 Catchwords: MIGRATION – application for leave to appeal from interlocutory judgment of the Federal Circuit Court – application for leave to rely on new ground – discretionary factors – whether any merit in proposed ground of appeal – Migration Regulations 1994 (Cth) – relevant criterion was whether the decision-maker was satisfied that the applicant “is a genuine applicant for entry and stay as a student because” the decision-maker “is satisfied that the applicant intends genuinely to stay in Australia temporarily” – whether first applicant was denied procedural fairness by the questioning of the Tribunal member
APPEAL AND NEW TRIAL – judicial review by Federal Circuit Court of decision of Migration Review Tribunal – audio recording of proceedings in the Tribunal not in evidence before the Federal Circuit Court – tender of audio recording on appeal from the Federal Circuit Court – whether recording “evidence given in the proceedings out of which the appeal arose”– whether Court on appeal has a discretion to receive that further evidence – whether Court on appeal should exercise its discretion to receive that further evidence – whether prejudice to first respondent – Federal Court of Australia Act 1976 (Cth) s 27
Legislation: Federal Court of Australia Act 1976 (Cth) s 27
Migration Act 1958 (Cth) ss 65, 357AFederal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)
Federal Court Rules 2011 (Cth) r 4.12
Migration Regulations 1994 (Cth) Sch 2 cl 572.223Cases cited: Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102; (2003) 129 FCR 214
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parteLam [2003] HCA 6; (2003) 214 CLR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436; (2009) 112 ALD 490
SZQJH v Minister for Immigration and Border Protection [2013] FCAFC 147; (2013) 140 ALD 11
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80Date of hearing: 22 December 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 66 Counsel for the Applicants: Mr R White (pro bono) Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Clayton Utz Solicitor for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 734 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MANDEEP KAUR
First ApplicantJASWINDER SINGH
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
8 JANUARY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave is granted to the applicants to rely on the amended draft notice of appeal filed in court on 22 December 2014.
2.Leave is granted to the applicants to appeal from the orders of the Federal Circuit Court made on 7 July 2014.
3.The appeal from the orders of the Federal Circuit Court made on 7 July 2014 is allowed.
4.The orders of the Federal Circuit Court made on 7 July 2014 are set aside and, in place of those orders, the decision of the Migration Review Tribunal made on 25 October 2013 is quashed and the matter remitted to that Tribunal for further hearing according to law.
5.The first respondent is to pay the applicants’ costs of the appeal.
6.If the applicants wish to claim any costs or expenses of the hearing before the Federal Circuit Court and that claim cannot be agreed, the applicants have liberty to apply on seven days’ written notice, that liberty to be exercised within 21 days of the date of these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 734 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MANDEEP KAUR
First ApplicantJASWINDER SINGH
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE:
8 JANUARY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This is an application for leave to appeal and, if leave be granted, an appeal from interlocutory orders made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) by the Federal Circuit Court of Australia on 7 July 2014. By those orders that Court dismissed with costs an application for judicial review of a decision by the Migration Review Tribunal (the Tribunal) affirming the decision not to grant Student (Temporary) (Class TU) visas to the applicants.
The Federal Circuit Court found that the first applicant had been unable to establish an arguable case of jurisdictional error made by the Tribunal. The matter was expressed by reference to the first applicant because she, Ms Kaur, was the principal visa applicant while Mr Singh, her husband, was the second visa applicant and was also an applicant in the proceedings in that Court. On 9 March 2013, the applicants applied for the student visas. Only the first applicant sought to satisfy the primary criteria. The second applicant sought to satisfy the secondary criteria as a member of the family unit.
Since the application for leave to appeal was first before the Federal Court there have been a number of interlocutory hearings and I ordered, by consent, that the application for leave and the appeal itself were to be heard at the same time. I had previously made a direction under r 4.12 of the Federal Court Rules 2011 (Cth) to refer the first applicant to a lawyer for legal assistance. Pro bono counsel appeared before me at the final hearing and I am grateful to him for his assistance.
The proposed amended application for leave to appeal now has the following grounds:
1.The primary judge erred by failing to find jurisdictional error on the part of the Migration Review Tribunal.
2.The Migration Review Tribunal erred by failing to afford procedural fairness to the Appellant (sic) in its questioning of the Appellant (sic) during the Tribunal hearing.
The draft notice of appeal has a single ground as follows:
1.The Appellant was denied procedural fairness by the questioning of the Migration Review Tribunal member.
The Minister submitted that this ground was not raised before the Federal Circuit Court and he objected to it being raised for the first time on appeal. The Minister referred to SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 (SZKMS) at [18]–[31] and to SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436; (2009) 112 ALD 490 at [16]–[19]. The Minister submitted that the fact that the applicants were unrepresented before the Federal Circuit Court was not sufficient reason to allow new grounds to be raised for the first time on appeal. Moreover, if the applicants had raised a breach of procedural fairness in the conduct of the Tribunal hearing before the Federal Circuit Court, the Minister may have sought to lead evidence (being a transcript of the Tribunal hearing) in response, so that the ground could not be raised for the first time on appeal. The Minister cited, by way of example, NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102; (2003) 129 FCR 214 (NAHV) at [17] and the cases there cited. The Minister also submitted that, in any event, the allegation of a breach of procedural fairness was unmeritorious.
In relation to the authorities to which the Minister referred, I note the force of the judicial statements, particularly as to the subversion of this Court’s role as an appeal court if fresh arguments were to be entertained on appeal, but I also note the following from the judgment in SZKMS per Lander J:
[31]The respondent conceded that I needed to consider whether any of the grounds had any merit before determining whether or not I should allow the application to amend. The concession was rightly made having regard to the decisions of this Court and, in particular, VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. Adopting that procedure, however, means that in every case where there is an application to raise a ground not previously raised in the Court below, the party seeking to have the ground agitated will by reason of the application itself require the Court to consider the ground. It is a curious result when the Court would otherwise discourage such applications but a result which arises because the Court’s overriding duty is to do justice. The reason for the power to allow a party to raise a ground on appeal for the first time is to do justice.
An additional question arose in relation to the admissibility before this Court, on appeal, of the audio recording of the hearing before the Tribunal. The audio recording had not been put before the Federal Circuit Court hearing the application for judicial review of the decision of the Tribunal.
The first applicant submitted the audio recording was part of “the evidence given in the proceedings out of which the appeal arose” within the meaning of s 27 of the Federal Court of Australia Act 1976 (Cth) so that no question of discretion to receive “further evidence” under that section arose. I was not taken to any authority on this point but it seems to me to be wrong. In my opinion, the words “proceedings out of which the appeal arose” mean in the present case the proceedings in the Federal Circuit Court: the statutory language and context does not suggest that all the evidence given in the Tribunal proceedings may be put into evidence before the Federal Court on appeal where it was not before the Federal Circuit Court. Indeed, the statutory language and context suggest otherwise. I reject the first applicant’s submission.
The Minister submitted, on the other hand, that there was no discretion to admit the audio recording of the proceedings before the Tribunal. The Minister submitted there was a difficulty in this case because if the procedural fairness ground had been raised below, he may well have sought to lead the transcript of the Tribunal hearing before the primary judge. Although accepting that it was “somewhat paradoxical” to oppose the first applicant putting the evidence before the Federal Court on appeal for the reason that the Minister could have put that material before the Federal Circuit Court, this was submitted by the Minister to be the effect of NAHV. No difference between the audio recording and any transcript, which had not been obtained, was relied on.
I admitted the audio recording provisionally, marked it as MFI 1, and it was played in the course of the hearing of the appeal.
In my view the Minister’s submission involves too broad a reading of NAHV. The Full Court accepted, at [17], the submission on behalf of the respondent in that case that if any issue of natural justice in relation to the existence of a letter and its possible importance to the decision had been raised before the primary judge it could have led to evidence being called by the Minister. But I do not read this as standing for the proposition that where the only evidence sought to be adduced on appeal is the same evidence as would have been adduced before the primary judge then the appeal court has no discretion to admit that evidence. The report does not state whether the evidence that could have been called by the Minister in that case would have included the transcript of the hearing before the Refugee Review Tribunal, and perhaps it would, but it is not at all clear that the evidence that could have been called would have been limited to the transcript.
I accept as axiomatic that if there were any real prejudice to the Minister which could not be cured it would be wrong to allow the issue of procedural fairness by the questioning of the Tribunal member to be ventilated now. However no such prejudice arises.
In the circumstances, I admit into evidence the audio recording marked MFI 1.
As to the application for leave to raise the new ground, the Court was taken to the non-exhaustive list of factors given in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [166]. In my opinion the interests of justice in the present case mean that there should be leave to raise the new ground. The new legal arguments have a reasonable prospect of success. That consideration supports the grant of leave. The explanation of why the new ground was not raised was that the first applicant did not have legal representation before the Federal Circuit Court, although the circumstances of that fact were not explored before me. Raising the new ground does not involve dislocation to the Court or any departure from the efficient use of judicial sitting time. Much is at stake for the first applicant in that her application for a student visa has been refused. It is not suggested that the resolution of the issue raised has any importance beyond the case at hand. Most importantly, the questions arise as to whether there is any actual prejudice, not viewing that notion narrowly, to the Minister and, if there is prejudice, whether it can be justly and practicably cured. I have already dealt with any prejudice to the Minister: as I have said, no difference between the recording and any transcript was relied on.
I have also applied mutatis mutandis the considerations referred to by the Full Court in NAHV at [21] as follows:
The appeal process is for the correction of error. Nevertheless, the appeal to this Court is an appeal by way of rehearing: cf Fox v Percy (2003) 77 ALJR 989. Further, in an area where, as here, one party suffers from a lack of legal representation, a lack of familiarity with the legal process and a lack of familiarity with the English language, if the appeal Court upon reading the papers perceives a legal issue which on no view could cause prejudice of the kind earlier discussed, it is in conformity with the notion of the matter being an appeal by way of rehearing for the matter to be raised.
For these reasons I grant leave to the applicants to raise the new ground and to rely on their Amended Draft Notice of Appeal.
I turn then to consider the merits of the ground sought to be raised on behalf of the applicants. As I have said, the Minister submits that the allegation of breach of procedural fairness is unmeritorious.
The proceedings in the Tribunal
The question for the Federal Circuit Court arose by reference to cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth). That regulation provided, so far as relevant, the following criteria:
572.223
(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 applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) …; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (2).
In its decision made on 25 October 2013, the Tribunal said that in considering whether the first applicant satisfied the criterion in cl 572.223(1) it must have regard to Direction No 53 made under s 499 of the Migration Act 1958 (Cth) (the Act) and summarised the relevant parts of that Direction. No point arises from the Tribunal’s summary of that Direction.
The Tribunal listed, at [10], the extensive documentation in support of the first applicant’s review and visa application. The documentation included Confirmations of Enrolment in respect of a Certificate III in Hairdressing commencing on 18 October 2013 and a Certificate IV in Hairdressing commencing on 27 October 2014. The documentation also included affidavits from the first applicant’s relatives in India attesting to her interest in hairdressing and her claimed desire and intention to open a hair salon in Amritsar.
The Tribunal accepted as true that the first applicant had been in Australia since August 2008 and had visited India in that time. Her husband, the second applicant, came to Australia with her in August 2008 and remained in Australia with her. Her son, born in 2010, spent around nine months with her in Australia and now lives with his maternal grandparents in Amritsar, the Tribunal said.
The Tribunal observed, and the first applicant accepted, that all of her work experience appeared linked to food services and that she had not worked in any other area.
The Tribunal then considered, at [14], how the first applicant would be able to open and run a hairdressing business in Amritsar, as she claimed was her goal and intention of studying hairdressing, if the cultural expectation was that she would live a two-hour drive away from Amritsar. The Tribunal noted what it referred to as a change in evidence which raised significant concerns regarding the truth of her claimed intention to open a hairdressing business in Amritsar on her return to India from Australia. I return to this issue at [59] below.
The Tribunal discussed with the first applicant her Australian immigration and study history. She accepted that it was her intention, on coming to Australia in 2008, to study cooking in order to secure employment which would allow her to reside permanently in Australia.
The Tribunal, at [17], made findings about questions and answers given in the course of the hearing by the first applicant as to whether any members of her family in India, including distant relatives, owned or had ever owned a business in India. The first applicant responded in the negative. The Tribunal’s reasons record that it then asked the first applicant to explain what she meant in her written statement to the Tribunal that “my relatives had a restaurant in India at that time and I was also promised a job in that restaurant at that time. However things did not work out in this way … and my relative’s (sic) restaurant closed down in India”, putting to the first applicant, the Tribunal said, that that statement appeared inconsistent with her oral evidence. The Tribunal did not accept that the first applicant did not properly understand the question when it was asked originally; was not satisfied that the first applicant has or had any family member or relatives in India who own or owned a restaurant and found that she had made that statement only to support a claim that she intended to return to India after her cooking and hospitality studies in Australia. However, the Tribunal said, she contradicted her claimed intention to return to India after completing her cooking and hospitality studies in Australia by expressly telling the Tribunal during her appearance before it that on entering Australia in 2008 she intended to live and work here permanently. Because of its importance, I set out in full [17] of the Tribunal’s reasons:
The Tribunal asked the applicant whether any members of her family in India, including distant relatives, own or have ever owned a business in India. The Tribunal repeated this question several times. On all occasions the applicant responded in the negative. She did not ask the interpreter to explain the Tribunal’s question and demonstrated no difficulty understanding the questions put to her. Later in the hearing the Tribunal asked the applicant explain (sic) what she meant in her written statement to the Tribunal that “my relatives had a restaurant in India at that time and I was also promised a job in that restaurant at that time. However things did not work out in this way … and my relative’s (sic) restaurant closed down in India”, putting to her that that statement appeared inconsistent with her oral evidence to the Tribunal that she has no relatives or family in India who have ever owned a business. In response she offered, for the first and only time during her appearance before the Tribunal, that she did not properly understand the question when it was asked originally, and she meant that she has no family or relatives who currently own a business in India. The Tribunal does not accept that to be the case and considers the applicant’s overall conduct during the hearing to clearly demonstrate her understanding of the questions put to her and her willingness to seek clarification before answering questions where she was in any doubt. The Tribunal is not satisfied that the applicant has or had any family member or relatives in India who own or owned a restaurant and finds that she had made that statement only to support a claim that she intended to return to India after her cooking and hospitality studies in Australia. However she contradicted her claimed intention to return to India after completing her cooking and hospitality studies in Australia by expressly telling the Tribunal during her appearance before it that, on entering Australia in 2008 she intended to live and work here permanently.
(Italics in original.)
The Tribunal then noted that the first applicant’s failure to return to India to work in cookery when she was looking for work in cookery in Australia for around two years, instead of completely changing the direction of her studies, compounded its concerns that her intention was and remained to reside in Australia and that she appeared willing to enrol in any course to prolong her stay in Australia.
The Tribunal then, at [19], addressed the issue of reconciling the first applicant’s statement that when she came to Australia in August 2008 she planned to study cookery, become a chef and secure employment and stay in Australia with her now claimed intention to return to India to start a hairdressing business. The Tribunal also asked why the first applicant’s interest in hairdressing was not apparent in any of her work history or any of her prior studies and why her interest in hairdressing did not appear in her enrolments in Australia until she enrolled in a Certificate III in April 2013.
The Tribunal accepted that the first applicant was able to provide very general responses regarding the costs and processes of setting up a business in India and also took into account the submissions made on the first applicant’s behalf that she has extensive family, including a young child, residing in India, creating a strong incentive for her to return there. However, the Tribunal reasoned, the first applicant’s family ties in India did not appear to have dampened the first applicant’s desire to seek to prolong her stay in Australia beyond the five or so years she had already been in Australia with her current intention being to complete a Certificate IV in Hairdressing, ending in April 2015.
The Tribunal considered the first applicant’s evidence to clearly reflect an intention to reside permanently in Australia. It referred to her protracted stay; her enrolment in a range of unrelated courses; a stay in Australia for a period of two years without employment rather than returning to India to utilise her cookery skills; and her express evidence to the Tribunal that she came to Australia in 2008 with the intention of remaining permanently.
The Tribunal said that, accepting that an applicant’s intentions and plans can change over time and that the intention a person had to remain permanently in Australia in 2008 may not be determinative of their plans and intentions at the time of decision, on the totality of the evidence the Tribunal was not satisfied that the first applicant intended genuinely to stay in Australia temporarily. Accordingly the Tribunal found that the first applicant did not meet cl 572.223(1)(a). The Tribunal affirmed the decision under review. It said that as the first applicant did not meet the primary criteria and the second applicant had applied solely as the spouse of the first applicant, it followed that the second applicant did not meet the secondary criteria.
The proceedings in the Federal Circuit Court
The grounds of the application to the Federal Circuit Court were as follows (uncorrected):
1.I believe that DIBP and MRT made determination based on their individual opinions or interpretations officers/delegates rather than following the legal criteria for the grant of the visa (Please see attached a detailed cover letter)
2.I believe that DIBP and MRT made determination based on their individual opinions or interpretations of officers/delegates rather than following the legal criteria for the grant of the visa (Please see attached a detailed cover letter)
The Federal Circuit Court said the grounds of review did not point to any jurisdictional error. They might suggest a contention of bias but there was no evidence to support such a contention. They might suggest some constructive failure of jurisdiction but the Tribunal’s consideration of the material before it and its adverse credibility finding was open to it. The first applicant had been unable to establish an arguable case of jurisdictional error by the Tribunal and the application was dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules.
The parties’ submissions
I am concerned first with the applicants’ application for leave to appeal and, in that context, whether or not the proposed ground of appeal is sufficiently arguable. If leave to appeal is warranted, the question arises whether the ground of appeal is made out. As will appear, in my view the proposed ground of appeal is sufficiently arguable. I grant leave to appeal. As will also appear, I allow the appeal and set aside the orders of the Federal Circuit Court while noting that the ground on which the appeal succeeds was not a ground put before the Federal Circuit Court.
First, the first applicant submitted that the Tribunal’s reasoning at [17], which I have set out at [26] above, was critical to its finding that she had an intention to reside permanently in Australia. In her written evidence supporting her application, the first applicant had stated that she came to Australia in 2008 to study cooking because “there was scope for employment in Australia and India” and “my relatives had a restaurant in India at that time and I was also promised a job in that restaurant at that time. However things did not work out in this way and I could not find any gainful part-time employment in hospitality and my relatives (sic) restaurant closed down in India …” Following questions put to the first applicant, the Tribunal concluded, in a finding that was ultimately critical to its determination to refuse the visa, that it was not satisfied that she “has or had any family member or relatives in India who own or owned a restaurant and finds that she had made that statement only to support a claim that she intended to return to India after her cooking and hospitality studies in Australia.”
The first applicant submitted that the way in which the Tribunal put the questions to her on this issue was procedurally unfair to her. Her comprehension of English was limited (she was assisted by a Punjabi interpreter) and her understanding of the questioning by the Tribunal on this issue was plainly limited. The Tribunal asked, first, whether any of the first applicant’s family members “own” a business in India. The Tribunal then asked a general and apparently innocuous question whether she knew any relatives who had ever had a business and she replied “No”. Immediately she was taken to a previous written statement to the effect that her relatives had owned a restaurant in India, and it was put that her oral answer was inconsistent with the previous statement. This oral answer, it was submitted, was ultimately critical to the Tribunal’s adverse finding against the first applicant, as the reasons disclosed.
But, it was submitted, the first applicant had not been put on notice that this was an issue in the visa application or the hearing, let alone one which was to be ultimately decisive as far as the Tribunal was concerned. It was not an issue which had concerned the delegate. The fair way for the Tribunal to put the question, particularly to a party with limited comprehension of the English language, and on an issue that was ultimately so critical to the Tribunal’s reasoning, was to put the question having first referred the first applicant to her previous statements made in writing to the Minister’s delegate and to the Tribunal.
It was submitted next that the Tribunal, at [17], having set out its disbelief of the first applicant on this issue, found that her evidence was contradictory because she had told the Tribunal that on entering Australia in 2008 she intended to live and work here permanently. It was submitted that it was not apparent why the first applicant’s answers were contradictory, because the law, and policy, recognised that an applicant’s intentions and plans can change over time. It needed to be put to the first applicant by the Tribunal “when it was that she formed the intention to return to India”.
It was submitted that, at [18], the Tribunal recorded that it put to the first applicant questions about the “change in career path” and identified, without recording the first applicant’s answers on this issue, that her failure to return to India to work in cookery, having failed to find hospitality work in Australia “compounded its concerns that her intention was and remains to reside in Australia and that she appears willing to enrol in any course to prolong her stay here.” The Tribunal failed to record, or understand, the first applicant’s answers that her college, where she was studying cooking, had closed and that she had no promise of a job in India in cookery. That was consistent with her evidence that her relatives’ restaurant in India had closed down by this time.
Reference was also made to s 357A(3) of the Act which provides that, in applying Div 5, the Tribunal must act in a way that is fair and just.
In oral submissions it was put first that the first applicant had no awareness of the issues which the decision-maker considered fundamental or potentially fundamental to her claim: the first applicant would not have been, and had no reason to be, aware that whether or not her relatives had owned a restaurant in India was an issue which was critical or even relevant to the issue before the Tribunal.
Second, it was put that there had been a denial of procedural fairness in failing to put to the first applicant the inconsistency, as found by the Tribunal at [14], between the first applicant’s evidence that she would have to live in the same area as her husband’s family in the Punjab but approximately 2 hours drive from Amritsar, as this was what was expected of her culturally, and her evidence that her in-laws had given her permission to live part of the time in Amritsar and return to where they lived in the Punjab on the weekends. The Tribunal said her change in evidence only minutes later raised significant concerns regarding the truth of her claimed intention to open a hairdressing business in Amritsar on her return to India. The first applicant submitted that that adverse credit finding needed to be put to the first applicant raising, as the Tribunal said, significant concerns in the Tribunal’s mind about the truth of her evidence: it needed to be put to her that the evidence that she had given about intending to return to open a hairdressing business was untrue, and it never was put.
Third, the first applicant submitted there had been a denial of procedural fairness in relation to what the Tribunal said at [17]. The way in which the questions were asked by the Tribunal about this issue was manifestly unfair. Contrary to the Tribunal’s statement, the question was not repeated several times. The implication was that the Tribunal repeated this question several times and the Tribunal was saying that she was given every opportunity on a number of occasions to correct her answers if she wished to, but she chose not to. What should have been put was not whether the relatives owned a business in India, because the evidence that had been given previously by the first applicant was specific: that they had owned a restaurant in India, and there was simply no reason why the Tribunal did not pose the question in that way to a layperson. Had the question been asked “do any or have any of your relatives owned a restaurant in India”, that may well have elicited the response “yes, they did, but it closed down some time ago,” being consistent with the written evidence she had previously given. It was also inaccurate to say that in response the first applicant offered “for the first and only time during her appearance before the Tribunal that she did not properly understand the question when it was asked originally”. It was submitted that, having heard the audio tape, there were a number of occasions during the 50 or so minutes during which the Tribunal hearing lasted that questions had to be repeated to the first applicant and they had to be translated for her, and it was plain on a number of occasions she did not fully understand questions when they were asked. Finally on this particular point, it was plain from hearing that exchange as a whole that the first applicant did not, in fact, understand the question in the way it was put to her and that when she understood the question, she said to the Tribunal she thought the Tribunal member meant “do they own a business in India”, and she said that they did not, it had closed down. That was entirely consistent with the evidence that she had given previously. It also needed to be put to her that she had made the previous statement about relatives in India owning a restaurant in India only to support her claim that she intended to return to India after her cooking and hospitality studies. That was the essential unfairness.
Fourth, the first applicant submitted that at the end of [17], the Tribunal member said that the evidence there was contradictory. It was not apparent why it was contradictory because it was clear from the evidence as a whole that the first applicant said that she intended to stay in Australia if she could obtain employment and the evidence was that she could not. She also had to leave her college. Even if it was contradictory, it needed to be put to the first applicant as a matter of procedural fairness.
The Minister relied on an outline of submissions dated 27 October 2014 and supplementary written submissions dated 19 December 2014. The former submissions set out the background to the matter, the Tribunal proceedings and the proceedings before the Federal Circuit Court. Those submissions also dealt with the grounds of the application for leave to appeal and the draft notice of appeal as then formulated.
In the supplementary written submissions, as I have indicated, the Minister submitted that the allegation of a breach of procedural fairness was unmeritorious. The Minister submitted that the complaint was about the question asked by the Tribunal at [17]. The applicants submitted that the first applicant’s comprehension of English was limited and her understanding of the question was “plainly limited”. The Minister submitted there was no evidence for either assertion. The first applicant chose to give her evidence primarily in English as the Tribunal noted at [4], and did not seek to use the interpreter to understand the question, as the Tribunal noted at [17]. The Minister submitted there was no unfairness in the Tribunal asking the question it did. The delegate had found that the first applicant was not a genuine applicant for entry and stay as a student. The Tribunal, like the delegate, was obviously troubled by the discrepancy between the first applicant originally coming to Australia to study cookery in 2008 but at the time of the Tribunal hearing in 2013 proposing to remain in Australia “for several more years” to study hairdressing. (I interpolate that it was and remains unclear what this reference to “several more years” signifies, since the first applicant’s Certificate IV course in Hairdressing finishes in April 2015.) It appeared that the Tribunal may have doubted the veracity of the first applicant’s written statement that her relatives had a restaurant in India that had since closed down, presumably made by her to explain why she was now pursuing studies in hairdressing rather than cooking. If the Tribunal sought to test the statement by commencing with an open question about whether the first applicant’s relatives ever had a business in India, that was a course open to it. The Tribunal was not required by the rules of procedural fairness to first take the first applicant to her statement as suggested in the submissions on her behalf. Given the delegate’s decision, the genuineness of the first applicant’s stated intention eventually to return to India rather than remain indefinitely in Australia was obviously of concern. The Tribunal was an inquisitorial body and entitled to question the first applicant about this matter in the way it considered appropriate. Authority concerning apprehended bias established that the Tribunal is entitled to question an applicant about matters of concern to it, even vigorously or robustly. The Minister referred to SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [4], [24] and [87]. Given that, the Minister submitted, it was hard to see why the Tribunal’s open question in the present case could itself be said to amount to a breach of procedural fairness.
The Minister’s submissions then turned to the first applicant’s submissions as to the question why the Tribunal regarded the first applicant’s claimed intention to return to India was contradicted by her statement to the Tribunal that she intended to reside permanently after entering Australia in 2008. The Minister submitted this would not appear relevant to an allegation of a breach of procedural fairness. In any case, it read the Tribunal’s reasons out of context. The Tribunal, at [22], acknowledged that an applicant’s intentions can change over time but, at [23], found that on the totality of the evidence it was not satisfied that the first applicant intended genuinely to stay in Australia temporarily. This conclusion was open to the Tribunal for the reasons it gave. The first applicant’s submission further claimed that the Tribunal failed to record or understand her evidence that her college in Australia had closed and she had no promise of a job in cookery in India, but the Tribunal noted the first of these matters, at [16], and rejected the second at [17]. The Minister submitted that these submissions on behalf of the first applicant did not establish any denial of procedural fairness as alleged, and appeared impermissibly to seek merits review.
As to s 357A(3) of the Act, the Minister referred to Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427 at [15]–[18] where it was said in relation to the equivalent provision for the Refugee Review Tribunal, s 422B(3), that it may be understood as an exhortative provision and s 422B(3) should not be understood as creating a procedural requirement over and beyond what is expressly provided for in Div 4 of Part 7. The Minister also referred to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [55]–[62] where Hayne, Kiefel and Bell JJ said at [58]:
In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the tribunal in the conduct of a review. The act of the tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.
The Minister submitted that no jurisdictional error by the Tribunal had been established.
In answer to the first applicant’s oral submissions, the Minister referred to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (Alphaone) and said firstly that given the delegate found that the first applicant was not a genuine applicant for entry and stay as a delegate, it was implicit that her credit was in issue; moreover in the course of the hearing the Tribunal made it very clear to the first applicant that it had difficulty with aspects of her history, in particular the change from initially coming to Australia to study cookery, then studying business, and now applying for a second student visa to study hairdressing.
As to the submission based on [14] of the Tribunal’s reasons and the questioning which lay behind it, the Minister submitted the Tribunal initially asked the first applicant where she would live, and she said she would live with her in-laws about two hours from Amritsar, then when she was asked, “[w]ell, how are you going to open this hairdressing salon in Amritsar if you’re actually living two hours away?” she said that she would live part of the time in Amritsar and return to her relatives on the weekend. It was open for the Tribunal to find that that was a contradiction. She only said that she was going to live part time in Amritsar when the Tribunal asked her how was she going to run the hairdressing salon if in fact she was living with her husband’s family. It was open to the Tribunal to say the contradiction raised significant concerns regarding the truth of her claimed intention to open a hairdressing business.
As to [17], the Tribunal did not accept the first applicant’s written statement that her relatives ever owned a restaurant. But given the first applicant had been asked clearly about whether any of her relatives had ever owned a business, and she, after thought, responded “no”, that was a conclusion that was open. It was important to note the conclusion was not based simply on the first applicant’s answer. It was also based on a common sense view of what the first applicant may be up to, which was presumably just being in Australia to work and using student visas as a means of getting that opportunity. The Tribunal thought that if the applicant was not credible, then it would follow that she might be using the claim about the relatives having a restaurant which since closed down as a means of trying to explain why she originally undertook cookery courses, but then did not return to India and instead pursued other courses of studies in Australia. So the Tribunal’s conclusion had a rational basis based not only on the first applicant’s own evidence, but also on a common sense take as to what could be going on here if, in fact, the first applicant was not credible, as the delegate had essentially already found.
The Minister did not contend that any denial of procedural fairness was immaterial to the decision of the Tribunal. He accepted that they were matters that ultimately contributed to the conclusion because they went to credit.
Consideration
The Court is not concerned with good administration in itself nor simply with the merits of the decision. Whether or not findings were open to the Tribunal, the thrust of some of the submissions on behalf of the Minister, does not presently arise. Further, “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.” See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parteLam [2003] HCA 6; (2003) 214 CLR 1 at [37] per Gleeson CJ; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [156] per Hayne, Crennan, Kiefel and Bell JJ.
I note that the Tribunal said, at [4], that the Tribunal hearing was conducted, on the first applicant’s request, primarily in English with the occasional assistance of an interpreter in the Punjabi and English languages and in the presence of the first applicant’s representative.
Against that background, I consider the aspects of the proceedings before the Tribunal raised by the first applicant.
As to the first applicant’s submission that the issues were not apparent, Alphaone and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 (SZGUR) at [9] per French CJ and Kiefel J stand for the propositions that “[p]rocedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power”, the decision-maker “must also advise of any adverse conclusion which would not obviously be open on the known material” and “a decision-maker is not otherwise required to expose his or her thought processes or provisional views”.
It may be a matter of some difficulty to identify the level of abstraction, or particularity, at which the issues are to be identified: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [38]–[40]. Ultimately, in the present context, the matter is to be tested by reference to the fairness of the procedure: see SZQJH v Minister for Immigration and Border Protection [2013] FCAFC 147; (2013) 140 ALD 11. In the present case, I reject the submission that the first applicant was denied procedural fairness because she was questioned about the topic of her relatives having had a restaurant in India and I do so for the simple reason that the first applicant herself, in her letter to the Tribunal dated 4 June 2013, repeated the proposition that her relatives had had a restaurant in India which she had first put in her application for a student visa dated 9 March 2013. In the circumstances, it was not procedurally unfair for the Tribunal to ask the first applicant questions about that issue. Similarly, if this was put, it was not procedurally unfair for the Tribunal to ask the first applicant questions about where she would live if she opened a hairdressing business in Amritsar since the genuineness of the first applicant’s claim that she would open a hairdressing business in India was plainly relevant to whether she intended genuinely to stay in Australia temporarily.
I next turn to the first applicant’s submissions based on what the Tribunal said, at [14], concerning the truth of her claimed intention to open a hairdressing business in Amritsar on her return to India from Australia in light of what the Tribunal indicated was an inconsistency in her evidence as to where she would live. The inconsistency was not put to the first applicant. The present question is not whether it was open to the Tribunal to indicate that there was an inconsistency but whether it was procedurally fair to find that there was a “change in evidence only minutes later”. Having listened to the audio recording of the proceedings before the Tribunal my conclusion is that, in order for the hearing to have been procedurally fair, the Tribunal should have put to the first applicant, but did not, that there was a change in her evidence between saying that she would live with her husband’s family, on the one hand, and live there but stay with her cousins in Amritsar during the working week, on the other hand. The first statement was a general one about the relevant culture of India while the second statement was an answer to the Tribunal’s question, once translated, “how would that work on a practical level”.
The next matter centres on [17] of the Tribunal’s reasons, set out at [26] above. Contrary to what the Tribunal wrote at [17], the Tribunal did not ask the first applicant “whether any members of her family in India, including distant relatives, own or have ever owned a business in India” and repeat the question several times. Having listened to the audio recording of the proceedings before the Tribunal on 24 October 2013, the day before the decision given on 25 October 2013, in fact the entire questioning on this topic took the following form:
Q: Do any of your family members own any business in India?
A: No.
Q: Any distant relatives own a business there?
A: We are just owning the land, not any business.
Q:Even distant relatives, you don’t know anyone who has a business, only land?
A: No.
Q: Do you know any family or relatives who have ever had a business in India?
A:No.
Q:So in your written statement when you said your relatives had a restaurant in India at the time and you were promised a job in that restaurant in explaining why you were pursuing hospitality and food here what did you mean?
After the source of that written statement was identified by the Tribunal member, which took some time, the question was restated:
Q: There you say my relatives had a restaurant in India at the time, that’s when you were enrolling in hospitality, and I was also promised a job in that restaurant. My relatives’ restaurant closed down in India. Okay. So I am just wondering why you said that there, but you’ve just told me that none of your family or your distant relatives ever had a business.
A: I was thinking you were talking about now that someone had business …
Q: I said “have they ever”. I think it was clear that I asked if they had ever had a business.
A: I did not understand properly, sorry.
Plainly this line of questioning was relevant but the issue is whether the Tribunal’s decision was made in a way which was procedurally fair, in particular for the Tribunal not to be satisfied that the first applicant has or had any family member or relatives in India who own or owned a restaurant and make a finding that the first applicant had made the statement that her relatives had had a restaurant in India in 2008 only to support her claim that she intended to return to India after her cooking and hospitality studies in Australia.
It was not the case that the Tribunal repeated the question several times. In fact the Tribunal asked the question in issue once only, in circumstances where, after asking three questions about the present, the Tribunal asked about any family or relatives having owned a business in the past. In my opinion, given the obvious linguistic difficulties and the gravity of the finding which the Tribunal made, it was not procedurally fair to conclude that the first applicant’s statement that relatives in India had owned a restaurant there was false and made only to support a claim that she intended to return to India without putting that matter more directly and plainly to the first applicant. Part of the procedural unfairness is that ‘business’ and ‘restaurant’ are not synonyms and a question about owning a business would not necessarily bring to mind owning a restaurant. The form and context of the questions, given the circumstances, had the attributes of a trap.
The final point, also arising from [17] of the Tribunal’s reasons, was whether it was procedurally fair for the Tribunal to find that the first applicant contradicted her claimed intention to return to India after completing her cooking and hospitality studies in Australia on the basis that on entering Australia in 2008, she intended to live and work in Australia permanently, without putting to her when it was that she formed that intention. In my view, it does not necessarily follow that what she said about her intention in 2008 was contradicted by a statement about her intention at a later time since her intention may well have changed, as the Tribunal recognised at the end of [22] of its reasons. In my opinion, leaving aside the apparent illogicality of the proposition that a person’s intentions at one point in time are contradicted by her intentions at a substantially later point in time, procedural fairness required the Tribunal to put the putative inconsistency to the first applicant. The inconsistency was by no means “an obvious and natural evaluation of that material”, see Alphaone at 592, and “would not obviously be open on the known material”: see SZGUR at [9].
As I have said, the materiality of these matters to the Tribunal’s decision was not put in issue by the Minister. Because they went to the Tribunal’s view of the first applicant’s credit and, therefore, the first applicant’s genuine intention to stay in Australia temporarily it could not be said that these matters were immaterial.
As to s 357A(3) of the Act, nothing turns on it in the present case and I therefore say no more about it.
Conclusion and orders
For the reasons I have given in each of [59], [62] and [63] above, the first applicant was denied procedural fairness. I grant the applicants leave to rely on the new ground set out in the amended draft notice of appeal and I also grant the applicants leave to appeal from the orders of the Federal Circuit Court made on 7 July 2014. I allow the appeal and set aside the orders of that Court. In place of those orders, I order that the decision of the Migration Review Tribunal made on 25 October 2013 is quashed and the matter remitted to that Tribunal for further hearing according to law. The first respondent should pay the applicants’ costs of the appeal. If the applicants, being then self-represented, consider that they wish to claim any costs or expenses involved in the hearing before the Federal Circuit Court and that claim cannot be agreed, I grant them liberty to apply on seven days written notice.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 8 January 2015
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