Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3)
[2021] FCCA 92
•27 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCCA 92
File number(s): MLG 4003 of 2019 Judgment of: JUDGE EGAN Date of judgment: 27 January 2021 Catchwords: MIGRATION – application for Student visa – provision of bogus documents – whether discretion to waive PIC 4020 criteria ought to be exercised or not – failure by applicant to establish that there were compassionate or compelling circumstances that so affected the interests of an Australian citizen as to justify the waiver of the relevant criteria – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss 65, 476.
Migration Regulations 1994 (Cth), Sch 2, cl 500.217,
Sch 4, cll 4020, 4020(1)(a), 4020(1)(b), 4020(4)(a), 4020(4)(b), 4020(5)
Cases cited: CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179.
CNN15 v Minister for Immigration and Border Protection [2017] FCA 579.
DUN16 and DUO16 v Minister for Immigration & Anor [2019] FCCA 2591.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
SZRKF v Minister for Immigration [2020] FCA 1389.
Number of paragraphs: 32 Date of last submission/s: 21 January 2021 Date of hearing: 21 January 2021 Place: Brisbane Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms Reid of Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
MLG 4003 of 2019 BETWEEN: SUKHBEER KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
27 JANUARY 2021
IT IS ORDERED THAT:
1.The Originating Application for Review filed on 18 November 2019 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant is a citizen of India who arrived in Australia having been granted a Student (Subclass 573) visa in 2014. On 14 February 2017, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (“the Act”).
On 2 June 2017, a delegate of the Minister refused to grant the visa on the ground that the applicant did not satisfy Public Interest Criterion 4020 (“PIC 4020”) for the purposes of cl. 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). PIC 4020 and cl. 500.217 of Schedule 2 to the Regulations were respectively as follows:
“4020
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A) The applicant satisfies the Minister as to the applicant’s identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justify the granting of the visa.
(5) In this clause:
“information that is false or misleading in a material particular” means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: For the definition of bogus document, see subsection 5(1) of the Act.
…
500.217
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.
(2) If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant.
(3) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(4) The applicant (other than a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005.
(5) The applicant, being a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007.”
On 8 June 2017, the applicant applied for review of the delegate’s decision.
On 1 October 2019, the applicant appeared before the Administrative Appeals Tribunal (“the Tribunal”) with the assistance of a registered migration agent to give evidence and present her case. On 22 October 2019, the Tribunal affirmed the decision of the delegate.
On 18 November 2019, the applicant filed an Originating Application for Review of the decision of the Tribunal. The grounds of the application were as follows:
“Grounds of application
1. Application for student visa was refused and an application to the AA T was lodged to seek merit reviews of this matter and AA T affirmed the decision made by Do HA and I strongly believe that my application has not decided as per law and I have been treated unfairly by AAT and I like to make an appeal application with FCC to seek fair outcome on this matter.
2. Visa was applied on 14 February 2017 and 2 June 2017 DOHA refused to grant and an appeal application was lodged and I appeared before the Tribunal to present evidence and argument to support my review matter.
3. Reason for my visa application refusal was that financial documents provided were bogus and financial support documents were from my ex-partner grandparents. However, I have divorce my partner and Lovedeep Singh is not part of my family unit anymore. A divorce certificate was provided to the AA T member for their reference.
4. Further, I provided AAT member with supporting documents to explain that there are compelling and compassionate circumstances exist and may effect interest of an Australian citizen should the decision is affirmed by the AA T member. All supporting documents were provided.
5. I relied on above mentioned to arguments that member should waive PIC 4020 so that member could remit this decision back to the AA T. However, member has refused to accept my claim even though I provided strong supporting documents to support my claim.. member has paid no regard to the documents submitted and the oral evidence provided from my side along with the supporting documents from an Australian citizen as well.
6. Further, I have tried to reply on MRT case number 1211505 where review applicant was given waiver on the basis of being an Australian citizen could be effected however, member has refused to accept in this matter even though MRT case number 1211505 was very similar matter.
7. I have spent few years in Australia competing my studies and comply with all my visa conditions and it was now the time for me to reap the reward by getting a temporary graduate visa so that I could obtain valuable work experience for my future employment when I return home.
8. I strongly believe that member should have had an independent assessment my matter and considered all evidences together, AAT should have remitted this decision back to DoHA. Member has clearly misinterpret the law while deciding on my matter and I strongly believe that member from AAT has made number of errors while deciding on my matter and decision is completely affected by Jurisdictional error.
9. FCC should make new orders and replace old orders made by AAT and remit this decision back to them for re consideration.
10. I like to appeal this decision at the FCC so that old orders could be replaced by new orders.”
At [17] of its reasons, the Tribunal recorded that the delegate refused to grant the visa because the applicant had given, or caused to be given, a bogus document in support of her visa application, namely falsified bank records pertaining to her financial sponsor. The applicant admitted that she had provided such bogus documentation.
At [15] of its reasons, the Tribunal recorded that the Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) of PIC 4020 if satisfied that there were compelling circumstances that affected the interests of Australia; or compassionate or compelling circumstances that affected the interests of an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen, thereby justifying the granting of the visa (PIC 4020(4)(a) and (b)).
At [16] of its reasons, the Tribunal noted that subclause 4020(5) stated that information was false or misleading in a material particular if it was (a) false or misleading at the time it was given; and (b) relevant to any of the criteria of the Minister which the Minister might consider when making a decision on an application (whether or not the decision is made because of that information).
At [26] of its reasons, the Tribunal recorded that it had carefully considered the information before it regarding whether the applicant had provided, or caused to be provided, false or misleading information on her visa application.
At [27] – [30] inclusive of its reasons, the Tribunal, when assessing the applicant’s claim that she did not know that the documents lodged on her behalf by her former husband and her migration agent had been falsified, found as follows:
“[27] The applicant claims she did not know the documents had been falsified, that she had entrusted the lodging of her visa application to her former husband and her migration agent. She does not dispute that the documents were false. She told the Tribunal that she erred in not checking them prior to their submission by her former husband and she regrets not doing so. She claims to have found out that the documents were bogus only when she received the decision to refuse to grant the visa. The applicant stated that she has concerns that her former husband’s family were involved in the production of the documents. She pointed to the fact that the documents were issued in the name of an elderly member of her former husband’s family. She stated the family might have intended to disrupt her application. The applicant claims she should be granted the visa because she did not knowingly submit what turned out to be bogus documentation.
[28] The Tribunal has carefully considered the issue of whether the submission was made unwittingly and has considered Ms Kaur’s former family and marital circumstances. The Tribunal notes that after the visa was refused, she divorced her husband. The Tribunal also notes that in describing the divorce to the Tribunal, the applicant stated that she divorced him “a couple of months” after she was refused the visa. The Tribunal pointed out that the divorce took effect on 29 September 2018, more than 15 months after the refusal, and it might be concerned that this was a misleading statement. The applicant denied this, and the Tribunal accepts that she intended to broadly characterise the period between the visa refusal and the seeking and finalising of the divorce.
[29] The applicant’s claim that the divorce and the surrounding controversy has not been without cost to her reputation and family in India is reasonable. The Tribunal accepts that she and potentially, her own family, will have suffered impaired reputations as a result of the events leading to the visa refusal. However, the Tribunal finds it cannot conclusively establish on the evidence before it whether the applicant, her former husband, his parents, or any other person or persons caused the bogus documents to be submitted. The compelling factors are that the documents were bogus and were ultimately, submitted with the applicant’s authority, and these are points with which the applicant agrees. The applicant reserves only that she erred in not checking them.
[30] Taking all the above into account the Tribunal considers that ultimate responsibility to provide genuine evidence under PIC 4020 lies with the applicant, and that through neglect of that responsibility she caused bogus documents to be submitted. It follows that the applicant has given information that is false or misleading in a material particular in her application for the visa. The Tribunal weighs this consideration heavily against the applicant.”
When considering whether or not the requirements of PIC 4020 ought to be waived or not, the Tribunal recorded that the applicant claimed that an Australian citizen named Amanpreet Kaur would be deeply impacted should the visa not be granted to her. Ms Amanpreet Kaur was said to have been unable to attend the Tribunal hearing to give evidence in support of the applicant’s claims because she was scheduled to give birth within days of the hearing. At [33] of its reasons, the Tribunal pointed out that the claimed close relationship between the applicant and her friend was one fractured by distance because the applicant lived in Brisbane and her friend lived in Melbourne. The Tribunal also pointed out that the friendship would be further disrupted when the applicant left Australia to return to India, as stated by the applicant, at the conclusion of the applicant’s course of study.
Having been given the opportunity for further evidence of the relationship to be given to the Tribunal, the applicant caused a letter from her friend to be sent to the Tribunal on 8 October 2019. The letter from Amanpreet Kaur relevantly recorded that the applicant had allegedly provided considerable emotional support to her throughout a number of personal issues, and that she would personally suffer an emotional setback and would lose a close friend if compliance with the PIC 4020 criteria was not waived.
At [36] of its reasons, the Tribunal addressed the submissions made on behalf of the applicant, finding that no compelling circumstances arose that affected the interests of Australia. It said as follows:
“[36] The Tribunal has considered the matter of the applicant’s close friendship with an Australian citizen but finds it is a friendship of a type commonly incurred, and does not involve compelling circumstances that affect the interests of Australia. Further, the nature of the friendship has not been demonstrated to involve compassionate or compelling circumstances that affect the interests of an Australian citizen. The Tribunal affords this consideration little weight.”
At [37] and [38] of its reasons, the Tribunal recorded that since the refusal of the visa application by the delegate, the applicant had completed a Bachelor of Business degree, and was therefore in a sound position to gain employment in India in the capacity of “an overseas graduate” when she returned home. The Tribunal did not consider that the applicant’s wish to spend more time in Australia for the possible grant to her of a Master’s degree was a sufficient reason to grant the application.
In deciding that there were no compassionate or compelling circumstances justifying waiver of the PIC criteria, the Tribunal at [39] of its reasons said as follows:
“[39] Based on the above, the Tribunal finds it does not have before it evidence submitted by the applicant to the Tribunal, or any additional evidence submitted to it by any party, that would cause the Tribunal to find the applicant’s claim to the Department that she unwittingly gave false or misleading information in a material particular, to be credible and provide a reason to remit the decision for further consideration. Further, the Tribunal does not have before it evidence of compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that might justify the granting of the visa (PIC 4020 (4)(a)(b)); or that might indicate the requirements of any or all of paragraphs (1)(a) or (b) of PIC 4020 might be waived.”
Grounds of Application for Review
The applicant did not provide any written submissions in support of her application for review despite having had the opportunity to do so.
Ground 1 of the application for review is an un-particularised claim that the Tribunal treated the applicant unfairly. It has been held that an un-particularised ground of appeal to the Federal Court of Australia is itself a sufficient basis for dismissing that ground of appeal. In the recent decision of Farrell J in SZRKF v Minister for Immigration [2020] FCA 1389 at [22] it was said:
“[22] The second ground of appeal should be rejected. It is well established that the fact that an appeal ground is put with a high degree of generality and lack of specificity or any real particulars is itself a sufficient basis for dismissing that ground: see WZAVW at [35] followed in BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13] (Bromwich J); CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27] (Perry J); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20] and [24] (Reeves J); ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59] (Derrington J); DIF17 v Minister for Immigration and Border Protection [2019] FCA 1055 at [29] (Abraham J); and GSQ18 v Minister for Home Affairs [2019] FCA 2057 at [14] (Lee J).”
In CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20] – [22], Gilmour J said as follows:
“[20] This ground is un-particularised as to just what evidence it is alleged was not considered by the Tribunal or what relevant considerations the appellant alleges the Tribunal did not take into account, or as to what "wrong information" the Tribunal is alleged to have based its decision upon.
[21] This first ground of appeal is merely an un-particularised assertion of jurisdictional error. As was said in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]:
(This ground is) an un-particularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
[22] The first ground therefore fails.”
In CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179 at [23] – [26], Farrell J said as follows:
“[23] The Court explained to the appellant that the Court cannot meaningfully engage with an appeal ground that makes a general complaint of error by the FCCA, without providing particulars of the ways in which he says that the FCCA Judge erred. The appellant did not provide any further particulars.
[24] The Minister filed written submissions. The Minister’s representative submitted that, where (as here) the appellant had been given the opportunity to provide particulars and make oral submissions, the Minister has no case to answer.
[25] In EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12], I said:
While the difficulty faced by a self-represented litigant cannot be minimised, this Court cannot meaningfully engage with the appellant’s ground of appeal where the ground makes a general and unparticularised complaint of error by the primary judge. As pointed out by Bromwich J in FLW17 v Minister for Immigration and Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Where no identifiable error on the part of the primary judge has been alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs. See also SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [17], [24]-[26], [29]-[30] and [32] per Flick J.
[26] Those remarks are equally applicable in this case. In this case, the appellant has not identified appealable error by the FCCA Judge, nor is any apparent from the reasons that her Honour gave for dismissing the application for judicial review of the Tribunal’s decision.”
Further, this Court has referred to the difficulties associated with the carrying out of its judicial functions in circumstances where grounds in a filed application for review of a decision of the Administrative Appeals Tribunal or the Immigration Assessment Authority were wholly un-particularised. In DUN16 and DUO16 v Minister for Immigration & Anor [2019] FCCA 2591 at [4] – [9] it was said:
“[4] Notwithstanding, with the greatest of respect, that this Court doubted whether it was a fulfilment of its judicial role, or the performance of a judicial function, for the court to enter upon the endeavour of attempting to elicit from the applicant particulars of the applicant’s case, and then, of necessity, recording such particulars in a coherent form and for the applicant’s benefit, the Court nevertheless attempted to do so, so as to enable the matter to proceed to a final hearing. The Court, in that regard, was concerned that it could be the subject of adverse later criticism, perhaps, for:
a) erroneously appreciating the import of anything said by an applicant in response to the Court’s request for particulars;
b) failing to so formulate, in writing, what was said by the applicant in a way most advantageous to such applicant;
c) not accurately recording some of, or what the Court might have considered an irrelevant part of, the particulars orally provided to the Court by the applicant.
[5] The Court was concerned that, in effect, it was being required to become the applicant’s advocate or adviser, at the risk of assuming all of the attendant responsibilities which that entailed. The Court was also concerned that the exercise would, in a practical sense, leave the Court open to having any subsequent decision it might make in the matter overturned on any number of grounds associated with the process of the Court:
a) advising the applicant as to the inadequacy of the particulars of their grounds for review;
b) asking the applicant to explain what her complaints were concerning the adverse decision she was seeking to review;
c) recording the answers of the applicant to the Court’s questions;
d) evaluating such of the applicant's answers for the purpose of identifying what were or were not legitimate grounds of review;
e) recording, in writing, what the Court considered were the applicant’s legitimate grounds for review.
[6] In the case of Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] inclusive, Beazley JA (with whom Giles and Whealy JJA agreed) said as follows:
“[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson, Mason J, at [31] 534, noted that:
"A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'."
[310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].
[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.
[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.
[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:
"But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant."
[314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.
[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:
"A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6."
[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”
[7] In DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240, Flick J, sitting on appeal, was there dealing with a contention that a Federal Circuit Court judge had, in that matter, failed to ensure that the hearing was fair, and that the appellant (applicant) did not “suffer a disadvantage from exercising his or her right to be self-represented”. It was further contended that the primary judge “failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court”. The contention was that it was a requirement imposed upon the primary judge to “explain in plain terms to unrepresented litigants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process” and that it is “not enough to merely say that they must demonstrate jurisdictional error”.
[8] When considering the above contentions, Flick J at [37] noted the undesirability of a judge imposing himself upon the proceedings, as an advisor or advocate for an unrepresented party, when His Honour said:
“[37] Although each case must inevitably depend upon its own facts and circumstances, it is to be doubted that a primary Judge is required to explain to an unrepresented party “why the Tribunal’s decision was not made lawfully”. The task imposed upon a Judge at first instance is not to act as an advisor or advocate for the unrepresented party. That contention of the Appellant, expressed in such unqualified terms, is rejected.”
[9] For a judge to not only elicit information from an applicant orally for the purpose of particularising the applicant’s grounds for review, but to then necessarily have to formulate and record the judge’s assessment of what was said orally by the applicant, goes far beyond providing advice to the applicant as to matters of practice and procedure. It blurs the lines between the judge’s duty to remain impartial, and the judge’s duty to ensure a fair hearing. It is this Court’s view that it is not in the interests of justice for a judge to be so integrally involved in the formulation of one party’s case.”
(Footnotes omitted)
This Court sees no relevant distinction between a Federal Circuit Court being unable to properly exercise jurisdiction under s. 476 of the Act when dealing with an un-particularised ground of review, and a Federal Court sitting on appeal finding that an un-particularised ground of appeal is a sufficient basis for dismissing that ground of appeal. This Court dismisses Ground 1 on that basis.
Grounds 2 and 3 of the application for review merely provide a history of the applicant’s claims and are not proper grounds for review.
Grounds 4 and 5 of the application for review are claims that there were compelling and compassionate circumstances which affected the interests of an Australia citizen justifying waiver of the PIC 4020 criteria. The Court has recorded the bases on which the Tribunal rejected such submission and agrees with the Tribunal in that respect. The Tribunal did not err in its analysis of the applicant’s claims. It carefully considered the evidence before it and rejected the applicant’s claims after having weighed up such evidence. Further, there is no basis for the assertion that the Tribunal failed to consider any of the oral or documentary evidence before it. Such claim, again, lacks particularity, is defective, and is dismissed accordingly.
It cannot be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
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[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
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[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
Grounds 6 and 7 of the application for review are historical statements of the applicant’s claims and are not proper grounds for review.
Ground 8 of the application for review asserted that the Tribunal had misinterpreted the law but, again, such ground is dismissed on the basis that it is so general and lacking in particularity so as to warrant its dismissal based upon such deficiencies.
Grounds 9 and 10 of the application for review ask the Court to undertake an impermissible merits review. Such grounds are not proper grounds for review and are dismissed.
No jurisdictional error has been established on the part of the Tribunal.
The application for review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 27 January 2021
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