Mithu v Minister for Home Affairs

[2019] FCCA 2074

FEDERAL CIRCUIT COURT OF AUSTRALIA

MITHU v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2074

Catchwords:

MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.359AA

Applicant: SUDEB KUMAR GHOSH MITHU

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1220 of 2018

Judgment of: Judge Vasta

Hearing date: 24 June 2019

Date of Last Submission: 24 June 2019

Delivered at: Brisbane

Delivered on: 24 June 2019

REPRESENTATION

Solicitors for the Applicant: Legal Guru

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. That the Applicant’s oral application for an adjournment of these proceedings is refused.

2. That the Application filed 22 November 2018 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,600.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1220 of 2018

SUDEB KUMAR GHOSH MITHU

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 25 October 2018, the Administrative Appeals Tribunal (“the AAT”) orally affirmed a decision of the delegate not to grant the Applicant, Sudeb Kumar Ghosh Mithu, a student visa.  On 22 November 2018, the Applicant filed an originating application in this Court, seeking this Court review the decision of the AAT. 

2. In short compass, the Applicant has been in this country since 2005, studying a Master of Business Administration, amongst other matters.  In September 2016, he applied for another student visa to undertake study in Australia.

3. The subclass 500 visa has a number of criteria that need to be fulfilled.  It was noted that the delegate had decided not to grant the visa because the delegate was of the view that the Applicant was not a genuine student who was genuinely staying in Australia temporarily.

4. The AAT, said, in paragraph 7 of their reasons, that they invoked s.359AA of the Migration Act 1958 (Cth) (“the Act”) by putting to the Applicant his enrolment record from the PRISM system. In response, the Applicant told the Tribunal that he was not presently enrolled in a course of study and that he had most recently been enrolled in an MBA degree. The Applicant told the Tribunal that he would like to return to complete that degree, but he confirmed that he does not have a present enrolment in that course.

5. The Tribunal then informed him that the determinant of issue before the Tribunal had changed; whereas the delegate had looked at his genuineness as a temporary entrant, the Tribunal was now looking at whether the Applicant met the enrolment requirement for a student visa. 

6. The Tribunal confirmed with the Applicant that he understood this change, and the Tribunal then pointed out that the primary criterion, cl.500.211, is that at the time of decision, the Applicant must be enrolled in a course of study.  The Applicant was not enrolled in a course of study.

7. The AAT referred to the fact that, in the written invitation to attend the hearing that day, the Applicant was requested to provide evidence of his enrolment in a full-time registered course at least seven days before the hearing, and that no such evidence was subsequently provided.  Again, at the hearing, the Applicant had the opportunity to provide this evidence and did not do so, and his sworn evidence was that he was not enrolled in any course of study in Australia.

8. The Tribunal then noted that there is no evidence that the Applicant was enrolled in any course of study, therefore the criteria in cl.500.211 was not met, and therefore the Tribunal had no choice but to determine that the decision under review should be affirmed. 

9. The grounds of this application were:

   1. The Second Respondent failed to provide natural justice to the Applicant by denying the Applicant the right to seek further time to respond to the Second Respondent, which is an error of law;

   2. The Second Respondent made an oral decision at the conclusion of the hearing without inquiring into the circumstances of the Applicant’s case and not providing the Applicant the opportunity to present his case, which indicates a reasonable apprehension of bias that affected the decision which is a jurisdictional error;

   3. The Second Respondent did not take relevant considerations into account which was an error of jurisdiction.

10. I should note that whilst this was an oral decision, the AAT did give written reasons on 7 January 2019. From the orders made at the first court date before Registrar Belcher on 30 January this year, the Applicant was given the opportunity to amend the application, to present another affidavit and to provide written submissions. He has failed to do so.

11. The Applicant is represented today by Mr Tien, who has candidly informed me that he was only retained some two weeks ago.  Having regard to the simple nature of this application, it would seem to me that that was certainly sufficient time to be ready for this matter.  Mr Tien did ask for an adjournment of the matter, but other than saying that he was only engaged two weeks ago, could not provide any other reason for the adjournment, which, considering how long this matter has been in the system, was certainly not satisfactory. The adjournment was refused.

12. What Mr Tien focused upon was that he has listened to the audio recording of the Tribunal hearing.  There has been no transcript made of the hearing, and the Court has relied upon Mr Tien’s account of what he says that he has heard.  The Court does trust and accept what Mr Tien has said to be true. 

13. What Mr Tien has said is that, pursuant to s.359AA, the Applicant did have this information put to him as outlined by the Tribunal in paragraph 7. However, he says that the Applicant’s response was this:

    I have tried to get a confirmation of enrolment, but they told me that it would take a week to get it.

14. Mr Tien submits that, having given such a response, this was tantamount to the Applicant asking for more time to comment. Section 359AA of the Act reads as follows. It is headed:

    359AA  Information and invitation given orally by Tribunal while applicant appearing

    (1) If an applicant is appearing before the Tribunal because of an invitation under section 360:

    (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b) if the Tribunal does so—the Tribunal must:

    (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    (2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

15. The comment that the Applicant made, “I have tried to get a confirmation of enrolment, but they told me it would take a week to get it” is not, in my view, an application for more time. That comment the Applicant made is a comment on the information. The suggestion that he is asking for more time to comment or respond to the information is really a suggestion that the Applicant is saying that he wants more time to get the confirmation of enrolment, not to comment on the information that was given. The information that was given was that he wasn’t presently enrolled, and the Applicant confirmed that he was not presently enrolled.

16. It seems to me that the only way to interpret the comment, “I have tried to get a confirmation of enrolment, but they told me it would take a week to get it” is that it is an affirmation that he is not presently enrolled. That is all that is needed to fulfil the requirements of s.359AA. This was not the Applicant seeking additional time to comment, and it seems that the Tribunal has complied with their obligations in s.359AA(1)(b)(i),(ii) and (iii). It seems to me that s.359AA has been complied with. This means that ground one fails.

17. With regard to ground two, Mr Tien says that the Tribunal member had asked the Applicant whether there was anything more that he wanted to say. The Applicant did not reply, or, replied at that time that there was nothing that he wanted to say. The Tribunal member then started to deliver the oral decision. During the giving of that oral decision, the Applicant interrupted and wanted to say something more. The Tribunal stopped the Applicant, reminded the Applicant that they were giving their oral decision then and there, and proceeded to continue giving the oral decision.

18. Mr Tien argues that this interruption was justified and it was within the Applicant’s rights to do so.  Therefore, any non-listening to what the Applicant was saying must be a demonstration of an apprehension of bias.  The situation is, when one looks at it as a whole, according to Mr Tien, that in failing to allow him to have the time to get the confirmation of enrolment, together with this interruption, means that there is an apprehension of bias.

19. I have mused in other matters where the spectre of apprehension of bias has been raised, as to whether there is such a doctrine in a matter such as this.  That is because an apprehension of bias is an objective test done through the eyes of the neutral, but informed bystander who is sitting in the back of the Court watching proceedings.  This test is very much an important test because justice must not only be done, but also be seen to be done, and the Courts are open Courts, and justice must be transparent.

20. However, a Tribunal hearing is a closed hearing.  There is no need to worry about the appearance of justice.  In a closed hearing, justice will either be done or it will not be done.  There is no proverbial neutral but informed bystander in the back of the Tribunal hearing room because such is not allowed.  The ground should be either that the Tribunal member is biased or the Tribunal member is not.  An apprehension of bias has as its very basis that the Court is not actually biased, but that it could be apprehended to be biased by such a bystander.

21. That is why to start with, I am not convinced that an apprehension of bias in the circumstances such as this would constitute a jurisdictional error even if it were shown.

22. However, in this case it seems to me that once all of the evidence had been looked at, especially any evidence that would fulfil the most important requirement for the application of a student visa being that a person must be presently enrolled in a course of study, the inevitable conclusion was that such evidence did not exist in this case. 

23. It would seem to me that the result could only be that the decision of the delegate be affirmed.  Therefore, once the evidence had finished and the Tribunal began to give the oral decision, the interruption was something that should simply not happen.

24. It maybe that the Applicant decided just there and then that there was something else that he wanted to say, but the time for him to say things was over. That, to me, is the Tribunal running its hearings as they see fit, in accordance with their legislative power under the Act. In coming to a decision that they would not be interrupted whilst giving an oral decision, it cannot ever be seen that such a decision was capable of indicating any bias, much less any apprehension of actual bias. For those reasons, I find that there is no merit in ground two.

25. Ground three is that the Second Respondent did not take relevant considerations into account.  The term “relevant considerations” in this respect means that there are mandatory considerations which the AAT was bound to take into consideration, but simply failed to do so.  The Applicant has not pressed this ground, and that seems sensible, so there is no merit in ground three either.

26. When one looks at the matter overall, as I have already pointed out, the Applicant needed to show that he was presently enrolled in a course of study.  He simply could not prove that, therefore it was inevitable that the Tribunal ruled as it did.  I can find no jurisdictional error in the manner in which the Tribunal has gone about its task. Therefore, I dismiss this application with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:       24 June 2019