Mithu v Minister for Home Affairs
[2020] FCA 564
•6 February 2020
FEDERAL COURT OF AUSTRALIA
Mithu v Minister for Home Affairs [2020] FCA 564
Appeal from: Mithu v Minister for Home Affairs and Anor [2019] FCCA 2074 File number: QUD 437 of 2019 Judge: LOGAN J Date of judgment: 6 February 2020 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) – where the appellant applied for a student visa – where the appellant’s visa application was refused – where the Tribunal was not satisfied that the appellant was currently enrolled in a course of study – whether error in relation to a failure to consider relevant considerations – whether error in relation to a failure to allow the appellant additional time to comment on or respond to information in accordance with s 359AA of the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth) s 359AA
Migration Regulations 1994 (Cth)
Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Date of hearing: 6 February 2020 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Solicitor for the Appellant: Legal Guru Solicitor for the First Respondent: MinterEllison Solicitor for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
QUD 437 of 2019 BETWEEN: SUDEB KUMAR GHOSH MITHU
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
6 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, of and incidental to the appeal, as fixed by the Registrar or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
Mr Sudeb Kumar Ghosh Mithu (Mr Mithu), the appellant, is a citizen of the People’s Republic of Bangladesh. He came to Australia as long ago as 20 January 2005. His entry into Australia was lawful, in that he held that class of visa under the Migration Act 1958 (Cth) (the Act), known as a subclass 572 visa. Thereafter, Mr Mithu has held a number of further successive student visas whilst in Australia. On 9 September 2016, Mr Mithu applied under the Act for a further student visa.
The stated purpose of that visa application was the pursuit of a postgraduate Master of Business Administration degree. On 22 February 2017, a delegate of the first respondent (the only active party respondent), Minister for Home Affairs (Minister), refused that visa application. The delegate’s refusal was on the basis of an absence of satisfaction that Mr Mithu was a genuine temporary entrant and thus he did not satisfy cl 500.212 of sch 2 to the Migration Regulations 1994 (Cth) (Migration Regulations). Mr Mithu then, on 6 March 2017, sought the review of the Minister’s delegate’s decision by the Administrative Appeals Tribunal (Tribunal).
As part of its reviewing practice, and having scheduled a review hearing for 25 October 2018, the Tribunal sent to Mr Mithu’s migration agent, appointed by him for the purpose of the review proceeding, a letter of 14 September 2018. Apart from notifying the date, time and place of the hearing, the Tribunal’s letter requested that at least seven days before the hearing date, certain information be provided. Materially, the requested information included:
A copy of your Current Confirmation of Enrolment (COE) or other document that show you are currently enrolled in a course of study as defined in cl. 500.111 of schedule 2 to the Migration Regulations 1999 (the Regulations), as is required for the grant of a student visa.
The agent did furnish a response on Mr Mithu’s behalf to this request. That response indicated that Mr Mithu would take part in the scheduled hearing, but that a representative of the migration agent (Ms Athina Stephanou) would not. The response also stated that there was no need for an interpreter. Mr Mithu attended at the hearing on 25 October 2018 before the Tribunal, again, apparently, as part of the Tribunal’s usual practice. Having attended at the Tribunal’s premises, he completed a proforma document relating to a student visa review proceeding. That document posed a question:
Do you have a current COE?
That was left blank in the yes/no response part. So too were subsidiary questions as to “current course of study”, and “Where are you currently enrolled”. Earlier studies were detailed in a table on the form. Mr Mithu confirmed his completion of the proforma document during the course of the hearing, which the Tribunal (Senior Member P. Wood and Member A. Millbank) conducted. As it transpired, and on the basis of a failure to be satisfied that Mr Mithu was currently enrolled in a course of study, and hence a failure to be satisfied that he met cl 500.211 of sch 2 to the Migration Regulations, the Tribunal affirmed the delegate’s refusal decision for a different reason. The Tribunal had before it a document produced on 25 October 2018 from the Commonwealth Department of Education and Training’s “PRISMS”. That disclosed that Mr Mithu was last enrolled on 31 December 2017 in a Master of Business Administration.
Mr Mithu then sought the judicial review of the Tribunal’s decision by the Federal Circuit Court of Australia (Federal Circuit Court). On 24 June 2019, for reasons given ex tempore that day, that Court dismissed, with costs, the judicial review application.
The learned primary judge did not have the benefit, in deciding the case, of a transcript of the proceedings before the Tribunal. Instead, what occurred, and it occurred without objection by the Minister, who was represented by a solicitor, was that Mr Mithu’s solicitor, Mr Tien made a statement from the bar table as to what had occurred in the Tribunal hearing, based on his listening to an audio recording of the Tribunal proceedings.
On the hearing of the appeal, the Minister sought, without objection, to read and rely upon an affidavit to which was exhibited a transcript produced from that audio recording. Mr Mithu was, again, represented by his solicitor, Mr Tien. A different solicitor, Mr McLaren, albeit from the same firm as the solicitor who represented him in the Federal Circuit Court proceedings, appeared for the Minister.
The transcript was one which, in my view, could with reasonable diligence have been obtained and tendered in evidence, either on Mr Mithu’s behalf or the Minister’s, before the Federal Circuit Court. So one could not say that it constituted fresh evidence. It was, though, better evidence than that upon which the learned primary judge was asked to act. It seemed to me that the interests of justice were such that having regard to the issue at the heart of the appeal, and the proceeding below, as well as in fairness to the Tribunal, which had filed a submitting appearance, that I should admit the transcript into evidence on the hearing of the appeal. I therefore allowed the affidavit to be read and relied upon.
Before the Federal Circuit Court, Mr Mithu pursued these grounds of review:
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.
The learned primary judge found no merit in any of these grounds of review. It is not necessary to elaborate upon the second ground of review, the apprehended bias ground, because that was not pressed on appeal. The third ground of review suffered from the difficulty of being unparticularised. It did feature, still unparticularised, as a ground of appeal. Such particularity as Mr Mithu was able to give was offered orally by Mr Tien in response to an inquiry from me. The particularity given related to the circumstances under which the Tribunal had proceeded to affirm, for reasons given orally on 25 October 2018, the Minister’s delegate’s refusal decision.
For jurisdictional error purposes, a relevant consideration must be one which the legislation concerned, either expressly or by necessary implication, makes obligatory to take into account, see Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24. In fairness to Mr Tien, the third ground, if pressed at all on appeal, was pressed but faintly. It does not have, in any event, any merit.
The Tribunal did have relevant considerations to take into account on the hearing of the review. These were the criteria for the grant of the visa. Notably, the requirement of satisfaction in respect of enrolment of a course of study is defined in cl 500.111 of sch 2 to the Migration Regulations. The Tribunal manifestly, having regard to the reasons, did take this into account. It was the absence of satisfaction as to current enrolment that motivated the Tribunal to affirm the decision under review.
The real question is that set out in the other ground of appeal, which is:
2.The Federal Circuit Court erred in not finding that the Second Respondent fell into jurisdictional error in that it did not allow the Appellant additional time to comment on or respond to the information put forward by the Second Respondent as per law.
That takes up ground one in the judicial review application. However, the way in which that ground came to be developed on appeal departed somewhat from the way in which it was developed before the learned primary judge. In the original jurisdiction, the failure to provide natural justice was developed by reference to an alleged failure on the part of the Tribunal to comply with the requirements of s 359AA of the Act. That section provides:
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).
Based on the account given to him from the bar table in the way mentioned, his Honour found that the Tribunal had given clear particulars based on the “PRISMS” document of an absence of current enrolment and had invited Mr Mithu to comment upon the absence of confirmation of enrolment evidence. His Honour found that there was compliance with s 359AA of the Act. I did not understand that particular conclusion to be challenged. In any event, having regard to the transcript, my view is that Mr Mithu was given clear particulars and took up, more than once, for that matter, the opportunity to provide comment, more than comment, evidence, as to his absence of enrolment.
As developed in oral argument, the basis of challenge became one of a denial of procedural fairness based on an unreasonable refusal of an adjournment so as to allow time to secure confirmation of enrolment. A starting premise for any such argument is necessarily that there was a request for that purpose for an adjournment. The Tribunal had power under s 363 of the Act to adjourn the proceeding. There can be circumstances where a failure to afford an applicant for review a short adjournment so as to secure particular evidence necessary to show that there is a basis for satisfaction of a criterion, where that evidence is obviously available, it can be unreasonable in the jurisdictional error sense of that word: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh).
That this was so in principle was not gainsaid by the Minister. Rather, the area of controversy between the Minister and Mr Mithu came to be whether, on the facts, there was revealed, clearly, an application for an adjournment, in circumstances where Mr Mithu had done all he could to secure enrolment and was merely awaiting confirmation, a confirmation which would take no more than a week to secure from the tertiary institution concerned. It is by no means clear from the transcript that this is the only, or even a better, conclusion to reach on the facts. The transcript discloses this exchange between the presiding member and Mr Mithu:
M:So do you understand that the time of decision requirement for this Tribunal, when this Tribunal makes its decision it must be satisfied that you are an applicant who is enrolled in the course of study?
SM:Yeah, I was enrolled but I haven't got the COE, new COE. I was enrolled but I haven’t got the new---
M:I understand that, sir, I understand. But do you understand that in order for you to be successful today you need to be enrolled in a course of study?
SM: Okay.
M: And your evidence of course is that you’re not enrolled in a course of study.
SM: No.
M:Yes. So do you understand that clause 500.211(A) requires that the applicant is enrolled in a course of study? So sir, you’re nodding your head but that's not going to be captured by the audio recording so can I just ask that you answer verbally so that we, your answers are captured on the audio, audio recording. I'll ask you again. Do you understand, sir, that clause 500.211(A) requires that the applicant is enrolled in a course of study?
SM: Yes.
M: Okay. Do you agree, sir, that you do not meet that requirement today?
SM: Yes.
M: Okay, sir. What I propose to do in these circumstances is give an oral decision and an oral, and an oral reasons today. The time is now 12.35 and this is the beginning of my reasons in the matter of 1703959, Mr Mithu, spelling M-I-T-H-U. Sir, you're indicating you wish to say something.
SM:Yeah. Um as I said like I was enrolled in a course, an MBA and I finished like half of it so, and I haven’t got the COE, the new one so I, I have six more subjects to finish my courses so---
M: Yes.
SM: ---um, and as I said like um, the provider said um, they can provide a COE next week which is like my, I have six courses left for, to finish my MBA so.
M: So sir, what I need to ask sir, as I’m about to give my decision and my reasons, it’s important that you don't interrupt me during the course of my reasons and, and, and my decision. Right. I’m just gonna recap for you before I do that---
SM: Yeah.
M: ---right. You were refused on the genuine temporary entry---
SM: Yeah.
Mr Mithu did not, in terms, request an adjournment. Further, as I read that passage concerned, and for that matter the transcript as a whole, he did not in terms ever state that he had sought enrolment and was merely awaiting confirmation. Rather, it appears to me to have been open to the Tribunal to conclude, as the Tribunal apparently concluded, that he was just not enrolled, and that, prompted by the Tribunal’s question, he had decided to seek enrolment, confirmation of which would take about a week. It was always in Mr Mithu’s interests to place before the Tribunal such material as he could to persuade the Tribunal to be satisfied that he met the visa criteria. He was, via his agent, put on notice about the need for provision of confirmation of enrolment.
There is a qualitative difference, in my view, between a case where it is apparent that, at the time of hearing of a review, an applicant has done all that he or she could to secure enrolment and has been vexed by a lag in securing confirmation, and a case where a deficiency in having any enrolment having been drawn to an applicant’s attention, an applicant then decides to go off and seek enrolment. The Tribunal is obliged to afford an opportunity for a hearing, but not indefinitely to postpone a hearing to enable an applicant to bring forward evidence that ought always to have been brought forward at the hearing. There is also to be afforded to the Tribunal recognition that it possesses what can be termed a zone of discretion. One should not intrude on that by an overzealous exercise of judicial power, either in the original jurisdiction or on appeal.
In short, then, I am not persuaded that the case is one where there was a subsisting enrolment requiring only confirmatory evidence, or even one where there had been every endeavour to meet the enrolment requirement and a lag in confirmation of the enrolment by the tertiary institution concerned, and related to that, even by implication, a request for a short adjournment to secure a readily available confirmation. That is not the only view which one can take of the proceedings before the Tribunal. One must also bear in mind that it was the Tribunal which had the benefit of observing any nonverbal communication signals from Mr Mithu in the exchange which occurred, as recorded.
Thus, in my view, on the facts, the case is different both to Li and Singh. Instead, it is just one of those cases where an applicant for review, Mr Mithu, did not take up the opportunity provided by the Tribunal to place before it, at the hearing, material capable of satisfying cl 500.211 of sch 2 to the Migration Regulations. That is not a failure to discharge an onus, because Mr Mithu had no onus, only a failure to satisfy the Tribunal on the appointed day. What follows from this is that the Tribunal was entitled to affirm the decision under review for the reason which the Tribunal gave, and that the order of dismissal made by the Federal Circuit Court on the subsequent judicial review application, has not been shown to be in error. I therefore dismiss the appeal, with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan . Associate:
Dated: 28 April 2020
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