Lama v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 748

FEDERAL CIRCUIT COURT OF AUSTRALIA

Lama v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 748

File number:	SYG 1868 of 2019
Judgment of:	JUDGE STREET
Date of judgment:	15 April 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Student visa – where the Tribunal took steps subsequent to the hearing to acquire further information pursuant to s 359 of the Migration Act 1958 (Cth) – where the Tribunal failed to communicate to the applicant the adverse information received subsequent to the hearing in accordance with s 359A of the Migration Act 1958 (Cth) – application for a Constitutional writ allowed – matter remitted to the Tribunal.
Legislation:	Migration Act 1958 (Cth) ss 359, 359A, 476
Cases cited:	CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
Number of paragraphs:	15
Date of hearing:	15 April 2021
Place:	Sydney
Counsel for the Applicant:	Mr J R Young
Solicitor for the Applicant:	Shamser Thapa & Associates
Solicitor for the Second Respondent:	Ms S Given, HWL Ebsworth

ORDERS

SYG 1868 of 2019

BETWEEN:

SAROJ LAMA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	15 APRIL 2021

THE COURT ORDERS THAT:

1.Leave is granted to the applicant to rely upon the amended application annexed to the applicant’s submissions filed on 25 May 2020 and the Court directs that the amended application be filed on or before close of business on 16 April 2021.

2.The second applicant is removed as a party to the proceedings.

3.A writ of certiorari is issued calling up the record of the Administrative Appeals Tribunal and quashing the decision made on 24 June 2019.

4.A writ of mandamus is issued requiring the Administrative Appeals Tribunal to determine the review application before it according to law.

5.The first respondent pay the first applicant’s costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 June 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant, and the former second applicant, Student (Temporary) (Class TU) visas (the Visa). 

2. The applicant and the former second applicant applied for the Visa on 14 March 2017. The second applicant at that time was a member of the family unit of the first applicant. The second applicant ceased to be a member of the family unit and has been removed as a party to these proceedings.

3. On 16 June 2017, the Delegate found that the applicant failed to meet the criteria for the grant of the Visa on the basis that it was determined that the applicant did not meet the genuine temporary entry criteria. 

4. The applicant applied for a review on 3 July 2017. By letter dated 2 November 2018, the applicant was invited to attend a hearing on 10 December 2018.  The applicant appeared on that date to give evidence and present arguments as represented by his migration agent.

5. A mandatory criteria for the grant of the Visa is the existence of a current course of enrolment. Subsequent to the hearing before the Tribunal, the applicant’s migration agent forwarded to the Tribunal a record in relation to the current course of enrolment. Subsequent to that email, on 11 December 2018, the Tribunal or a member or a person on behalf of the Tribunal had taken steps independently to confirm the enrolment details of the applicant in the Certificate IV Commercial Cookery and the extent to which the course had been completed. 

6. Under s 359 of the Act, the Tribunal does have power to obtain information, and if the information is of a particular kind, it engages the obligations under s 359A of the Act. Under s 359 of the Act, the Tribunal must have regard to the information that it obtains in making the decision on review. It appears in this case that further information was obtained by the Tribunal identifying that the PRISMS record shows the applicant’s courses have been cancelled. That, on its face, was clearly a kind of information that would have engaged the obligations under s 359A, if in fact there has been a cancellation.

7. The information conveyed in the email of 23 January 2019, from the Tribunal to the applicant’s education provider, identifies that information has been received by the Tribunal that the PRISMS record shows the applicant’s course have been cancelled. That information was information of a kind that on its face did engage the obligation under s 359A of the Act. The Tribunal, rather than then engaging with the applicant or migration agent, took steps in relation to communicating with the entity in respect of the alleged enrolment that had been cancelled.

8. It is of course, entirely proper for the Tribunal to take steps subsequent to a hearing to get further information under s 359A of the Act, but if it does so, it must comply with s 359A of the Act if it receives adverse information. The email of 23 January 2019 identifies that the Tribunal had received adverse information and was seeking to confirm the nature of that adverse information with the provider of the education services. That was not the taking of steps to convey to the applicant or his representative the adverse information or that steps were being taken to confirm whether there was a cancellation.

9. A further email was sent to the Tribunal on 24 January 2019 from the education provider that identified that the applicant completed his Certificate IV Commercial Cookery on 29 November 2018 and is currently working on completing an Advanced Diploma of Hospitality Management by 29 March 2019. That email identified a sentence:

   We cancel student COE due to student visa status changed to refused. We are not sure student AAT result and keep records of student academic progression as student informed us that he has applied for AAT and we issued the Enrolment letter for student which is attached.                       

10. That paragraph, on its face, identifies that there was in fact a cancellation of the course of enrolment which appears to have been an error by the education institution that the applicant remains currently enrolled. 

11. In relation to ground two of the amended application, Mr Young of counsel on behalf of the applicant contends that the conduct that has been identified meets the double might test in respect of a fair minded lay observer in circumstances where the Tribunal did not disclose to the applicant and the applicant’s representative the information that was received in respect of the cancellation, or the information that was received in respect of the cancellation being an administrative error and the applicant remaining enrolled.

12. Ms Given, on behalf of the first respondent, has submitted that the information ultimately obtained was that the applicant remained enrolled in the Advanced Diploma in Hospitality Management course, and contends that in those circumstances the ultimate information conveyed does not engage the obligations under s 359A of the Act. The ultimate outcome, in respect of which the applicant remaining currently enrolled, was not adverse to the applicant and reflected obviously the existence of the continued mandatory requirement, if the applicant was to succeed, of there being a current course of enrolment. 

13. That however does not address the information that had earlier been provided. The information earlier provided to the Tribunal was of a kind that identified that there was a cancellation. That there existed such information is confirmed by the penultimate paragraph in the email of 24 January 2019 from the education provider. That information, which was received by the Tribunal, would have engaged the powers under s 359A of the Act.

14. The change of status that is revealed in terms of there being an internal administrative record does not, in the circumstances of the present case, satisfy this Court, in applying the three-stage test identified in paragraph 21 in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, that there is not conduct that has been engaged in by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent impartial mind to the determination of the matter on its merits. That conduct is the receipt of adverse information in respect to the cancellation of the PRISMS records and the failure to disclose the receipt of that adverse information to the applicant or to openly identify to the applicant the taking of steps in that regard in respect to the clarification of that adverse information with the applicant after the hearing had taken place.

15. The Court accepts the applicant’s contention that in the circumstances of the present case there has been made out conduct that gives rise to apprehended bias on the part of the Tribunal which of itself constitutes a jurisdictional error, by reason of which the decision of the Tribunal must be set aside and the matter sent back for further review. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 April 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       10 June 2021