Paracha v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 667
Federal Circuit and Family Court of Australia
(DIVISION 2)
Paracha v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 667
File number(s): MLG 1250 of 2018 Judgment of: JUDGE VASTA Date of judgment: 2 August 2022 Catchwords: MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: Helow v Secretary of State for the Home Department [2008] 1 WLR 2416
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
R & S (RD)[1997] 3 SCR 484
Division: Division 2 General Federal Law Number of paragraphs: 128 Date of last submission/s: 2 August 2022 Date of hearing: 2 August 2022 Place: Brisbane Counsel for the Applicant: Ms Zhou Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: Clayton Utz ORDERS
MLG 1250 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABDUL SAMEE PARACHA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
2 AUGUST 2022
THE COURT ORDERS THAT:
1.The application filed on 9 May 2018 as amended on 12 July 2022 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,853.
3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
THE COURT NOTES THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
On 13 April 2018, the Administrative Appeals Tribunal (“AAT/Tribunal”) delivered an oral decision affirming a decision by the delegate of the Minister not to grant the Applicant, Mr Abdul Samee Paracha, a student visa. On 9 May 2018, the Applicant asked this Court to review that decision. On 6 June 2018, the Tribunal reduced its reasons to writing.
Unfortunately, this matter has had quite a long time in these Courts. It would seem that, notwithstanding that the application was lodged in May of 2018, it was not until June of 2019 that there was, in effect, a direction hearing or any dealing with the matter by a Registrar or Judge.
On 25 June 2019, Registrar Hird made the usual orders for the filing of material and ordered that the application be listed for final hearing on a date to be advised by the Court. The next time it came before the Court was on 9 December 2021, where His Honour Judge Blake made orders in Chambers regarding the filing of written submissions, but did nothing further in those orders.
On 11 January 2022, Judicial Registrar van der Westhuizen also made orders in Chambers, which point to the filing of the written submissions, but no other order as to when the matter would actually be dealt with.
On 14 January 2022, His Honour Judge Blake, again in Chambers, listed the matter before himself on 1 August 2022 at 10 am. The matter was taken out of His Honour’s docket and into the national migration docket and assigned to me. On 6 July 2022, I ordered that the final hearing be listed today, 2 August 2022, at 10 am.
So it has had quite some time within this Court and the Court does apologise to the Applicant for the inordinate amount of time it has taken to actually get to today’s hearing. Having said that, the delay had been somewhat advantageous to the Applicant because, six days after I made my orders, the Applicant filed an amending originating application, which has been the basis of today’s hearing.
Those grounds were far more substantial and really spoke to jurisdictional error than the grounds of the review that had been filed back in May 2018, which, with due respect to Mr Paracha, simply seemed to be an application for an impermissible merits review.
The background to this matter is that the Applicant is a citizen of Pakistan. He arrived in Australia on 28 June 2010 as a holder of a student visa. He was enrolled to study an Advanced Diploma of Accounting. The Applicant was granted a further two student visas, one in 2012 and another in 2015.
The June 2010 visa expired and a new one was issued in 2012. The 2012 visa expired and a new one was issued in 2015. That visa would have expired before the end of 2016, and on 29 September 2016, the Applicant applied for the visa which is the subject of the current application. This visa was asked for on the basis that the Applicant wished to finish his degree. The application is reproduced in the court book from CB 1.
Of note, in that application, is the section that reads Genuine Temporary Entrant. The form has, as standard, these words:
All student visa Applicants are required to provide information in support of their application to demonstrate they meet the genuine temporary entrant criteria.
It then says:
Give details to support the Applicant’s ability to meet the criteria and ensure supporting documents are attached.
The Applicant has written:
The Applicant is currently enrolled in Bachelor of Accounting and has got extended COE to complete his course. He wishes to complete his course. Will attach statement.
There was no statement attached.
The matter was then considered by the delegate of the Minister. The delegate’s decision is reproduced at CB 50. At CB 52, the delegate noted that there was no genuine temporary entrant statement attached. There were transcripts of courses studied so far, which included evidence of completion of a Certificate III in Financial Services in December 2010, a Certificate IV in Financial Services Accounting in April 2011, and a Diploma of Accounting in July 2011.
The delegate noted that the Applicant provided a letter from his education provider, which was Cambridge International College, dated 29 September 2016, stating that the Applicant had commenced the Bachelor of Business Accounting Course on 25 June 2013 and had successfully completed 15 units, being 65 per cent of the units undertaken.
The delegate refused the application because the delegate was not satisfied that the Applicant was a genuine temporary entrant. The date of the delegate’s decision was 14 November 2016.
The Applicant then lodged an application for review with the Administrative Appeals Tribunal on 1 December 2016.
At CB 73, the letter sent to the Applicant, on 13 March 2018, inviting him to attend a hearing that would take place on 13 April 2018 is reproduced. Significantly, in that letter, at CB 74, the following is asked:
In addition, please provide the following information so that a decision can be made as quickly as possible:
(1) A copy of your current certificate of enrolment or other documents that show that you are currently enrolled in a course of study.
(2) Documents that show your past studies in Australia, including copies of all your attendance certificates.
(3) We will assess whether you are a genuine Applicant for entry and stay as a student, which was the reason for the delegate’s decision. Relevant to this requirement is a direction from the Minister known as “direction number 69”, a copy of which is attached. Please provide a written statement addressing the issue of whether you are a genuine Applicant for entry and stay as a student by referring to direction number 69.
The Applicant appeared at the hearing on 13 April, having not provided any of that material to the Tribunal. He did, however, attend. He gave a number of documents during the course of the hearing to the Tribunal. The Tribunal conducted the hearing and made the observation that, for the Applicant to satisfy the Tribunal that he was a genuine temporary entrant, his circumstances must indicate a genuine intention to remain in Australia temporarily.
The Tribunal noted that the Tribunal would be looking at the Applicant’s circumstances, the value of the course to his future, his immigration history, his incentive to stay in Australia or return home, an assessment as to whether he was using the student visa program to maintain ongoing residence in Australia, and any other relevant matters. The Tribunal noted that the Applicant had read the decision of the delegate. The Tribunal discussed with the Applicant issues arising from that decision.
The Tribunal also noted that the Applicant did not respond to the hearing invitation and did not provide the requested statement, and noted that he had failed to do so when asked by the department as well.
The Tribunal said that it did not believe that this repeated behaviour was that of an Applicant keen to study and progress academically, either when the application was lodged or now when he has asked for it to be reviewed. The Tribunal noted that, even though there had been a failure to respond, the documents that were given to the Tribunal at the hearing were the completed Certificate III in Financial Services, a two month Certificate IV in Financial Services, and a two month Diploma of Accounting. The Tribunal looked at the Applicant’s immigration history showing that he had been granted three student visas and this current application would be for his fourth student visa.
The student visa history showed that the Applicant did not undertake any study from 2 December 2011 to 25 March 2013, a period of over 15 months. The Tribunal noted that the Applicant had said the reason for this was due to family problems back home and, when the delegate had heard this, had granted the benefit of the doubt to the Applicant and granted him another visa, so that he could complete his Bachelor of Business course. But that did not happen.
The Tribunal noted that the Applicant had spoken about evidence of his father’s illness during the course of the hearing, (the illness occurring in January 2015 and March 2017), but that still did not explain the study gap between December 2011 and March 2013, which was two years before the father had been admitted to hospital.
The Tribunal noted that the Applicant was vague about his initial intended studies and that he finally said that he wished to study a Bachelor of Accounting or a Bachelor of Business in a course that would normally take three years. However, in eight years he has completed courses that were collectively scheduled to run for one year. The Tribunal said that it did not believe that this was the progress of a genuine student.
The Tribunal noted that the Applicant has been enrolled in the Bachelor of Business course for over five years that he had been granted credit transfers for 12 units completed, and he had only been able to pass three further units in five years.
The Tribunal said this at paragraph 27:
When I look at you and say, “I am astounded”, you respond that you are a dumb student. I do not accept that you are a dumb student, but I do not believe that you are a genuine student.
The Tribunal noted that the Applicant had been able to maintain work for many years as a cleaner at 7-Eleven and doing security and picking and packing work at Toll Holdings. The Tribunal noted that the Applicant had no problem getting and keeping work, but at the same time, the academic progression had been extraordinarily poor. The Tribunal said that they did not believe that this study history was that of a genuine student and did not believe that his responses to the queries, made by the Tribunal, provided a satisfactory explanation for his behaviour or his performance. The Tribunal found that his behaviour and performance was not that of a genuine student.
The Tribunal noted that one of the compulsory core units for his degree was corporate accounting, but the Applicant had, on four occasions, attempted to complete that unit and the highest mark he had achieved was 25 per cent.
The Tribunal said that it found it difficult to reconcile the proposed stay in Australia with his claim that he is a genuine temporary resident, but rather believed that the Applicant was seeking to use the student visa program to maintain residence in Australia. Again, the Tribunal noted that the Applicant had maintained employment since 2012. Despite being unable to progress in his studies, he was able to manage to keep working.
The Applicant had told the Tribunal he wanted to complete these studies so that he could go home and get involved in the family freight forwarding and import/export business. When asked the value of his proposed courses, the Applicant said that overseas study “makes your mind broad”. The Tribunal said that it did not believe that those proposed studies would provide the Applicant with any greater, or relevant, skills that he had gained in previous studies or experience. The Tribunal noted that the Applicant had previously worked in that same family business before coming to Australia.
The Tribunal questioned why gaining a certificate was relevant if he intended working in a family business. The Tribunal acknowledged that the Applicant had family back home, which may provide some incentive to return, but noted that he appeared to be settled in Australia. The Tribunal said that, having considered the circumstances as a whole, they were not satisfied that the Applicant was a genuine student who intends to stay temporarily in Australia.
Therefore, he did not meet the criteria for the student visa and, therefore, the Tribunal then affirmed the decision under review.
The application, which was filed on 12 July 2022, has four grounds. I will go through them seriatim. The first ground is the major ground and that is:
Ground 1: the Tribunal’s decision was affected by apprehended bias.
Particulars
a) First, the Tribunal drew a disproportionately adverse and illogical inference from the Applicant’s failure to provide a written statement prior to the hearing and failed to engage with the explanation given by the Applicant.
b) Second, the Member frequently interrupted the Applicant in a manner that might indicate to a reasonable observer that the Tribunal was fixed in an unchangeable attitude and not open to persuasion.
c) Third, the Tribunal made specific comments that might cause a reasonable observer to apprehend bias.
d) Fourth, the Tribunal relied on illogical reasoning, which might cause a reasonable observer to apprehend that the Tribunal was relying on irrelevant or illogical reasoning to justify its fixed attitude.
The Applicant argued that the whole of the conduct of the AAT member would lead a fair-minded lay observer to might reasonably apprehend that the Tribunal might not have brought a fair and impartial mind to the making of the decision.
This is a very grave allegation to make. In accordance with what the authorities have said, there is a two-step process where there must be:
(a)An identification of what it has said might lead a decision-maker to decide a case other than on its legal and factual merits, and
(b)That there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding the case on its merits.
The authorities have spoken about the fair-minded lay observer. The role of the fair-minded lay observer is pivotal. The fair-minded lay observer does not make snap judgments. He or she is taken to be reasonable, and he or she knows commonplace things and is neither complacent nor unduly sensitive or suspicious. Knowledge of all the circumstances of the case must be attributed to the fair-minded observer, and the fair-minded observer is an informed observer. A fair-minded observer will have regard to the fact that a judicial officer’s training and tradition have both equipped that officer with the ability to discard the irrelevant, the immaterial and the prejudicial.
In Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, Lord Hope of Craighead said:
The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious. Her approach must not be confused with that of the person who has brought the complaint. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses.
Then there is the attribute that the observer is informed. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she had read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.
The rule against bias, either actual or apprehended, is directed to prejudgment incapable of being altered by evidence or argument. It is not directed to predisposition capable of being swayed by evidence or argument. In the Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507, the High Court said:
71.…Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.
72.….Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
In a Canadian case R & S (RD)[1997] 3 SCR 484, the Court said:
It has been observed that the duty to be impartial does not mean that a judge does not or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free from this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognise, consciously allow for and perhaps to question all the baggage of past attitudes and sympathies that fellow citizens are free to carry untested to the grave. True impartiality does not require that the judge have no sympathies or opinions. It requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.
Whilst it is that the role of AAT member is different to that of a judge, what I have said is still apposite. It must be remembered, however, that the AAT is conducting an inquisitorial process where the AAT must robustly test the evidence that is brought before it, before it can be satisfied of whether the Applicant has fulfilled the requisite criteria or not.
To understand whether there had been apprehended bias in this particular case, it was necessary to listen to the whole of the hearing. I have done so. The hearing goes for approximately one hour and 10 minutes. There is a short pause of around 30 seconds or so and then the AAT Member gives the oral decision, which goes for about 18 minutes and then the Member asked whether the Applicant wanted to stay around for the office staff to give him the formal decision.
The recording itself goes for 1 hour and 29 minutes. There has been a transcript that has been produced and it is appended to the affidavit of Nina Del Merlino, sworn and filed 25 July 2022. The transcript has a number of deficiencies in it. There are words that are said that are simply not transcribed. There are words that are mis-transcribed. There are exchanges that are not transcribed and there are sometimes punctuation errors where hyphens are left at the end of sentences, which would indicate that the next words that are spoken have interrupted the previous words which, when listening to the recording of the hearing, is simply not the case. There are also quite a deal of large pauses which are not signified on the transcript.
However, the transcript is properly described, as Counsel for the Minister put it, as an aide de memoire and for these purposes, is sufficient to understand what it is that causes the complaint made by the Applicant.
The Applicant says that there are four features of the hearing that demonstrate the bias. When it came to the hearing today, it would seem that the fourth matter was one that was not really pursued by the Applicant. But in any event, the three aspects are aspects that one must look at, not seriatim, but as part of the overall context of the hearing itself.
The first complaint comes from an exchange that occurs very soon in the hearing. It is where the Tribunal has said to the Applicant that he had not provided the material asked for in the letter that was sent in March of 2018, nor did he provide the genuine temporary entrant statement. The Tribunal said:
Tribunal: We don’t seem to have received anything.
Applicant: I was waiting for my documents to come from overseas.
Tribunal: Look, we have sent you a hearing invitation. We said we were going to review the decision.
Applicant: Yes.
Tribunal: The decision that was made by the Department was made because “they did not think that you were a genuine temporary entrant” …
Tribunal then went and reread the parts of the letter that I have already read into the record. The Tribunal finished their statement with these words:
Tribunal: You didn’t provide it then and you don’t provide it now. I wonder why not.
Applicant: First, when I lodged the application for the Tribunal, that was through the agent – through the agent – MRT agent. Then when they asked for money, I couldn’t arrange for that money and I said
Tribunal: This doesn’t have to do with money. I’m asking you – we asked you to provide a statement.
Applicant: Yes.
Tribunal: Your visa gets refused because you don’t provide a statement and they don’t believe you’re a genuine student. We say please provide us with a letter telling us how you believe you are a genuine student. You don’t bother. That’s pretty extraordinary to me.
This is what is said in the transcript. My recollection from listening to that is something different. My recollection in listening to that part of the hearing is that the Tribunal Member said, “That seems extraordinary to me. That is not like someone who I would think is keen to get a visa”. The exchange continued:
Tribunal: Please provide a copy of your current COE or a document to show that you’re currently enrolled.
Tribunal: You haven’t done that either.
Applicant: I can provide it.
Applicant: I think I have it.
Tribunal: What we said was please provide us with all this information at least a week before today’s hearing.
Applicant: I was going through it with my mental trauma.
Tribunal: You what?
Applicant: I wasn’t feeling well. I was in a situation, like, my mum, she’s sick. My dad is sick. That’s why I couldn’t.
Tribunal: You come into a hearing to review whether or not you should get a visa and we say to you, please provide us with evidence. You say I will. Yes, sorry. I didn’t provide any because my mum was sick and my dad was sick.
The Applicant then gave the Tribunal a document. The Tribunal asked if this was the current COE and there is quite a pause then whilst the Tribunal seems to be looking at that document. The Tribunal then notes that the COE has expired. The COE had been cancelled. The Applicant tried to explain it was because of non-payment of fees, where he had paid the full amount. The Tribunal said “It isn’t about it being paid. It’s cancelled for non-commencement of studies.”
The AAT then asked if he was currently studying. He said that he was. There was a deal of backwards and forwards about when the course was going to start or how long the course was for and what dates were involved. The Tribunal had asked if he had been studying the whole time. The Applicant said that he did defer and that was because there was a medical certificate to attest to what happened. The Applicant gave the Tribunal the material. The Tribunal looked at it and noted that there were two medical certificates; one for January 2015 and one for March 2017. The 2015 one reported that the Applicant’s father was a 62 year old gentleman and the one in March 2017 reported that the Applicant’s father was a 66 year old gentleman. The Tribunal asked how it could be that there was an age difference. The Applicant’s response was: “Well it must be a different clinic”. There was a slight “laugh” at this by the Tribunal, when they then said:
Going to a different clinic doesn’t change your age. What I’m saying is you go to a hospital and it says in January 2015, he’s a 62 year old gentleman. Two years later, in March 2017, it says he’s a 66 year old gentleman. One of them is not true.
There was then an exchange about the fact that the father could not have aged four years in two years. The Tribunal asked a number of questions about these medical certificates. The Tribunal said that one of the certificates said that the Applicant’s father was suffering from an acute attack of myocardial infarction. The Tribunal asked the Applicant if he knows what it means and the Tribunal explained it was a heart attack. The Applicant said:
Applicant: He was on a ventilator when I went there.
Tribunal: No, this says he’s had a heart attack with congestive heart failure with diabetes and high blood pressure. He’s been bedridden for the past two years. He’s been in bed for the last two years.
Applicant: He couldn’t recognise me sometimes when I’m speaking to him.
Tribunal: I don’t care whether he could recognise you. It says that he was in bed for two years with those things.
The Applicant said something which was indecipherable. The Tribunal said sorry. The Applicant said he could not go outside. The Tribunal then asked about another family member, saying:
Tribunal: Who is it that died? Someone’s sister?
Applicant: She’s my sister.
Applicant: She passed away in 2016.
Tribunal: What did she die of?
Applicant: Breast cancer.
Tribunal: You didn’t go home then though.
Then there was a pause. The Tribunal then noted that the next document had that the Applicant’s mother spent a couple of days in the hospital earlier in that year. The Applicant said:
Applicant: I came here and cried. I went to overseas since January, I went overseas on the 6th of January and came back on the 19th of January and she went to the hospital after two days that I arrived.
The Tribunal paused, was looking through a number of other documents and then said “What’s all this about a partnership?”
The Applicant explained that they were financial supporting documents about the company that had been created by the Applicant’s father, where the Applicant and his two brothers were equal partners in that company and the Applicant spoke of an assault that had been committed upon him.
There was a discussion about that; that a doctor had given him a medical certificate relating to that assault, giving him from 30 April to 10 May as being medically unfit, but that the Applicant used that to ask the university for another three weeks and two days off.
The Tribunal then asked about what the Applicant was doing by coming to Australia. The Tribunal asked about the Applicant’s father’s business in Pakistan. He was asked about why it was that he wanted to have more education, given that he had already completed a Bachelor of Commerce in Pakistan.
The Applicant said that you cannot compare the Pakistan education system with Australian education system. The Tribunal said:
Tribunal: I’m not trying to compare. I’m just asking what did you want to learn when you came here? What did you want to study?
Applicant: Accounting.
Tribunal: You’ve done a Bachelor of Commerce that presumably had accounting in it. You decided to come here. You enrolled when you came here in what?
The Applicant said “in accounting” and the Applicant went through what he did and where he was living when he first came here. There was a fair amount of discussion then about what the Applicant did and where he did it, as far as his study was concerned. He was asked about the gap in his study between the end of 2011 and March 2013. The Tribunal asked:
What did you do between July 2011 and March 2013?
Applicant: There was another COE issued by –
Tribunal: I’m not interested in COE. I’m interested in what you’ve done and what you showed me is that you finished in Oxford and the next study you did was in Cambridge.
The Applicant said that he was studying an advanced diploma for accounting. The Tribunal asked for evidence of this and the Applicant said that he did not finish that, so there was not any evidence and that he did not clear any unit of it.
The discussion then went back to the history of his study in Australia. The Tribunal asked about his employment and asked if he could remember what he did back in March of 2012. The Applicant said:
Applicant: There was too many switching of jobs, sir.
Tribunal: Too many switching of jobs?
Applicant: Not like too many. I’m not saying like too many, but it’s a very long time. I couldn’t remember it.
Tribunal: What was the first job you got?
The Applicant said “cleaning” and then went on to talk about what other jobs he had gotten. The Tribunal came back to this question of what he did between June 2012 and March 2013, a period of nine months. The Applicant again answered:
Applicant: There was a COE issued by University of Ballarat.
Tribunal: No, I’m not interested in COEs of – because what I’m interested in is what you have done because of what you have done, you can provide me the COEs and you can provide me with the documents and so, as you are enrolled in this, this doesn’t show me that you studied at all. In fact, it indicates that you haven’t studied. What I am interested in –
The Applicant then interrupted and started talking about what he was trying to do with the University of Ballarat. The Tribunal re-interrupted and said:
Tribunal: My question is a simple one. Your COE for your advanced diploma of accounting at Oxford finishes in June 2012. Your next study appears to be at Cambridge College in March 2013. What did you do in the nine months between those two enrolments?
Applicant: There was an issue with this university.
Tribunal: What’s this one?
Applicant: That’s what I’m trying to tell you.
Tribunal: Well you know, what I asked you to do at the start: provide me all the evidence and what you’re trying to do now is, what about this? What about that?
There was a deal of backwards and forwards with both, in some ways, talking over each other but the discussion was still about the course of the study. The Tribunal then said to him:
Tribunal: You’ve been studying this since March 2013.
Applicant: Yes.
Tribunal: You’ve been studying here for five years and you’ve passed six units.
Applicant: Maybe I am a dumb student.
Applicant: That’s what they think.
Tribunal: Do you think they might have good reason for that? Someone that studies something for five years and passes six units and we’ve got another how many units to go?
Applicant: eight, another eight…six.
Tribunal: Six. So that – you’d probably take another five or six years.
Applicant: Six. That’s where I don’t want to. I’d prefer – I don’t prefer to go back but
Tribunal: What family do you have in Pakistan?
Then there was a discussion as to what family he had. He was asked if he had any brothers in Australia and he said, “my cousin”. He was asked where his cousin lived and there was an answer. The Tribunal asked:
You live with him? How long has he been here?
The Applicant said 10 years. The Tribunal said, “sorry?” The Applicant said:
Applicant: 10 years. He’s married and he has a family here.
Tribunal: Married with a family? Is he an Australian citizen?
Applicant: I think this year he will get his PR –
Tribunal: He came here as a student?
Applicant: He came here as a student. When I came here, he had the injury as well.
Tribunal: What was that?
Applicant: He had the injury; he lost his hand at work.
The Tribunal said “yes”. The Applicant explained that the cousin has the same first name and surname that he had.
The Tribunal then asked why it had taken so long to finish the subjects that the Applicant had finished in his Bachelor of Business and then he talked about his sister being affected with breast cancer and that when they found out it was breast cancer, it was already stage 4. The Tribunal said:
Tribunal: It was what?
Applicant: stage 4.
Tribunal: But you didn’t go home.
Applicant: Home? I don’t want to see her in that condition.
Tribunal: And then it stops you from studying. The situation is that I’m not satisfied that your level of progress is anything like a genuine student. How many units are there in a Bachelor of Business?
Then there is another discussion about those matters. The Tribunal then looks at the documents that the Applicant had given to him and speaks of the subject of corporate accounting. The Tribunal, looking at corporate accounting, asked the Applicant:
Tribunal: What’s going on here?
Applicant: Sir, I tried my level best all the time.
Tribunal: Corporate accounting we study in October 2015 and we score 19. So we do it again in December and we score 25.
The Applicant said “many times”. The Tribunal then said:
Hang on, listen to this. 19, 25. We try it again three months later, 12. It’s going backwards completely. Then 24, then 16, then 24, then 12, then 19, then 25 and they keep taking your money for you to go to classes. Has anybody said to you, Mr Paracha, come on. We need to talk about what’s going on here with this corporate accounting. How many times have you done this?
The Applicant had said something indecipherable and it seems that the Tribunal had come to a conclusion that there had been nine attempts at the subject with the highest mark of 25 per cent. The Tribunal said, after giving a sigh, “You’ve attempted it nine times and the highest mark you have ever scored is 25 per cent and they keep taking your money. It is amazing.”
There was talk about the Applicant as to whether he had a car. He said it was his cousin’s car. He talked about the fact that his cousin was raised with him and so that’s why he talks about his cousin being a brother to him. There was talk about where the cousin lived and the Applicant said that it was at Ferntree Gully. The Applicant was asked where he lived. He said, “Mernda.” The Applicant said that he tried to move closer to the college, “But that couldn’t satisfy. That made me more sick.” The Tribunal asked, “You were?” The Applicant said, “That made me more sick.” The Tribunal said, “What did?” The Applicant said, “Sickness. Made me more homesickness, feel more sickness. My dad.”
The Tribunal then said, “You are still homesick eight years later? There may be only one way to fix that.” The Applicant said, “Marriage.” The Tribunal said, “Sorry?” The Applicant said, “Marriage.” The Tribunal said, “Go home.”
The Tribunal then asked, “Have you got a girlfriend?” And there was discussion as to that.
The Tribunal then went back to the academic transcripts that the Applicant had given to them and then asked about the Applicant going back to the family business. The Tribunal asked, “Why don’t you go back and do that now?” The AAT asked, “What value is a Bachelor of Business to going back and doing your family business?” The Applicant said, “Sir, family business. Whatever my dad is doing is totally different than that modern age period. At this stage you compete in the markets you have to be educated. That’s what I feel.”
The Tribunal said, “You have got a Bachelor of Commerce.” The Applicant said, “Sir, Bachelor of Commerce is nothing. It’s not worth it any more. If I go to the market in Pakistan with a Bachelor of Commerce, if I’ve done in Pakistan and take that degree and find up a job into that society, how much money I can make? Only 25,000 (Pakistani currency units).”
The Tribunal said, “You are not trying to get a job. You are going back to work in the family business. Your father is not going to say, ‘You’ve only got a Bachelor of Commerce from here.’” The Applicant said, “Sir, we depend on the exports. Exports of rice.” The Tribunal said, “Exporters don’t say, ‘Show me you’ve got a degree.’ People who are buying rice don’t say, ‘What degree have you got?’”
The Applicant said, “Sir, education makes your mind broad.” The Tribunal said, “Education what?” The Applicant said, “Makes your mind broad. That’s what I said.” The Applicant and the Tribunal were talking over each other. The Applicant was saying, “That’s what I said, sir. I’m very lucky that I came to Australia.” The Tribunal said, “You’ve had plenty of time, 10 years-plus studying to make your mind broad.”
There was a pause and then the Tribunal, after some time, then said, “All right, Mr Paracha, is there anything else you wish me to consider?” The Applicant said that he only needed one chance more to finish this degree. The Applicant said, “According to the unit that I have to do, that’s it. If I’m saying to you I just need to do only six units, another – just give me the timeframe that it can be done. There is no mercy for me any more. I don’t want to.” The Tribunal said, “There’s no more what?” The Applicant said, “Mercy for me. I just want to finish this degree so I can go back home and show my parents proudly this is what I have done.”
The Applicant paused for a while and then said, “I know I’m a very dumb student.” The Tribunal said, “Do you know what?” The Applicant said, “I am a very dumb student.” The Tribunal said, “A dumb student?” The Applicant said, “Yes.”
The Tribunal soon afterwards delivered its oral judgment and I have spoken of that already.
The submission is that one must listen to all of that, and even in my summation of what has gone on during that hearing, obviously no one can get a full appreciation of what occurred without listening to the recording of the hearing.
The Applicant submits that there was an ever-present irritation by the Tribunal over the Applicant’s failure to provide the statement and the material and that this irritation was present throughout the hearing. This irritation started when the Applicant says that he was attempting to explain why it was that he had not provided a statement and the Tribunal was interrupting him.
However, when one even looks at the transcript and one listens to the hearing of the Tribunal, the Tribunal was not interrupting the Applicant for any malicious or non-acceptance of what it is that he was saying. The Tribunal was interrupting the Applicant because he simply wasn’t answering the question. He was not responding to what it was that the Tribunal wanted him to answer. He went off on a tangent and instead was answering, as it were, his own question. The Tribunal was entitled to bring him back to what was relevant.
It is true that there does sound as if there is a deal of frustration over the Applicant’s failure to provide material. This is also understandable given the attempts by both the delegate and the Tribunal beforehand to have the Applicant provide material and he had simply not done so. Considering that it was his application in 2016 and the Tribunal was now dealing with this matter in 2018, the excuse about the parents being sick was the only excuse that he had for not providing the material.
The Tribunal’s response that “this is not what they would have expected from someone who was keen to get a student visa” is an appropriate response and it is something that lets the Applicant understand what it is that the Tribunal is thinking and gives him an opportunity, if it is that he wishes to, to answer that particular comment or observation.
The Tribunal was alleged by the Applicant to have reacted in a critical manner to the Applicant’s explanation that he was not feeling well because his mother was sick and his father was sick. In looking at the matter in context, that was not what frustrated the Tribunal. It was frustrated because the Applicant was not answering what it was that the Tribunal was asking in an attempt to get information.
The Applicant says that the Tribunal was angry when he provided documentation that was seemingly cancelled. Again, the frustration that was felt by the Tribunal, when it was that it made those remarks, again, is understandable, given that the Applicant had to give a current certificate of enrolment so it was that he could prove that he was actually enrolled in a course. The document he provided did not do that because it was a cancelled COE.
The Tribunal itself had to see what the records of the department were and those records suggested that there had been a certificate of enrolment that would have been valid until December 2018. The Tribunal did not take that matter any further and did not try to see whether the departmental record showed that that certificate was still valid. Whilst it may be that there is frustration, if it were that there was some substance in the Applicant’s claim that the Tribunal had already closed their mind, one would think that the Tribunal could have shut the hearing down straight away and said, “You have not produced any evidence that you are currently enrolled.” thereby not fulfilling the first criteria of the student visa that there must be proof of enrolment.
The Applicant did say that he was studying, but that is not the proof that is required for the prerequisite of being enrolled to be satisfied. So whilst there may have been some frustration, it hardly bespeaks of any bias, let alone any apprehension of bias.
There was a remark of some incredulity when the Applicant produced some documentation to the Tribunal, which suggested that the Applicant had to complete 24 units to get the degree. He had been credited for 12 units. He had completed 15 units. This means that he had actually only completed three units during all of his time that he had been here in Australia.
The Tribunal’s immediate reaction upon looking at all of that material and understanding what it meant was, “Are you serious?” That is a remark as to letting the Applicant know that his claim to be a genuine student seems incredulous, but it is also an invitation for the Applicant to show the Tribunal what it is that he has done and why he is still a genuine student.
It was very soon afterwards that the Applicant resorted to telling the Tribunal that he was a “dumb student”. It should be noted that the Tribunal did not ever jump on that term, but simply asked, “And do you think that there is a reason why these people may think that you are a dumb student?”
The Applicant claims that the Tribunal frequently interrupted the Applicant and was dismissive towards him. Having listened to the whole of the hearing, I am not of the view that this complaint can be made out. Whilst there are interruptions, there are interruptions from both the Applicant interrupting the Tribunal and the Tribunal interrupting the Applicant. But the Tribunal’s interruptions are not because they are being dismissive towards the Applicant. It is because the Applicant is veering off topic and not answering the question and wanting to introduce extraneous materials which are not relevant to what the Tribunal was asking.
Having looked at all of the examples that the Applicant points to, I am of the view that these interruptions were all appropriate and that there was nothing in those that would be even part of the basis for apprehending that there would be some bias.
The Applicant says that the Tribunal reacted in an insensitive, disparaging or dismissive way towards the Applicant. As I have said, the Tribunal member did laugh at the Applicant’s explanation as to why it is that his father may have aged four years in two years by saying, “Well, maybe that was at another clinic.” Such an explanation is laughable and the Tribunal just naturally laughed at that. Such a spontaneous response is not being insensitive. It is not being disparaging. It is not being dismissive. It is a normal immediate reaction to a ridiculous proposition that is put by the Applicant to explain something that seems extremely odd on the material that he has provided to the Tribunal.
The Applicant points to the Tribunal saying at one stage, “I don’t care that your father couldn’t recognise you.” The context of that conversation was that the Tribunal was going through the documents and saying to the Applicant, “Do you realise that these documents indicate that your father could not move out of bed for two years?” The Applicant’s response that, “The father didn’t recognise me when I spoke to him,” is not on point at all. It is trying to introduce an extraneous aspect to a very straightforward question.
Whilst it may be that one may look at it later on and say that this was an insensitive remark, in context, whilst it may have been somewhat insensitive, whilst it may be something that one might want to take back, it is hardly something that is indicative of a bias. It is a reaction, maybe an extreme reaction, but a reaction that was caused by the Applicant simply not responding to the Tribunal’s queries and wanting to bring in extraneous material.
The Applicant complains that when the Applicant said that his sister passed away from breast cancer that the Tribunal member said, “You didn’t go home then though.” That is simply an observation given that one of the aspects of the Tribunal’s tasks was to look at what ties he had in Pakistan and what ties he has in Australia. The fact that the Applicant, when faced with a dying sister, did not go home is certainly a matter that the Tribunal is permitted to look at.
The Applicant’s response that he did not want to see her like that was his explanation. It may be said that this is insensitive, but to a fair-minded lay observer, it is a necessary inquiry to make, even though it may be hurtful, because the Tribunal must look at these matters.
These complaints by the Applicant do not in any way lead to a basis to start to build a case of apprehended bias.
The complaints that the Tribunal interrupted the Applicant, by saying on two occasions that they were not interested in COEs, when it was that the Applicant was asked what he was doing during this period of non-study, also do not have any substance. They certainly do not illustrate the Tribunal as having bias, nor could these interruptions be sufficient to be part of any apprehension of bias.
The Tribunal’s comment that the Applicant had 10 years-plus to make his mind “broad” is certainly a comment that was made. It was a comment that allowed the Applicant to think about what the Tribunal was looking at, as to why it is that he needed to keep doing this course and how that fitted in with what he was trying to achieve, by getting skills in Australia that he could translate to work back home in Pakistan.
The Applicant’s statement that he was homesick was met with, what may very well be seen as, a throwaway line that if one is homesick, the best cure for homesickness is to actually go home. Whilst again this may be a statement that the Tribunal might regret later on, it is not a remark that when looked at, in context, could provide a basis for the foundation for a finding of apprehended bias.
Having a look at all of the complaints in their totality, having looked at everything that has been said and having listened very carefully to the whole hearing, I am not satisfied that a fair-minded lay observer could, or might, listen to the hearing and might come to an apprehension that the Tribunal had approached this matter with a fixed mind that could not be altered.
The other aspects in the course of the hearing that help lead me to that conclusion are that the Tribunal had, looking at the material, considered that the Applicant had failed a particular subject on nine occasions. But, this was a provisional conclusion because the Tribunal then relooked at the material and said, “Hang on. You haven’t failed that nine times,” and re-examined the matter. This would not have occurred if the Tribunal had already made up their mind.
The Tribunal asked the Applicant whether there was anything more that the Applicant wanted to say and the Applicant obliged.
Those are not the actions of a decision-maker who has already made up their mind. Those are not the actions of a decision-maker, who even with some form of preconceived notions, was not open to having their mind changed by persuasive arguments or facts put before them.
For those reasons ground one fails.
Ground two of the application is that:
Ground 2: In finding that the Applicant did not intend to stay in Australia temporarily, the Tribunal took into account an irrelevant consideration, being the immigration history and status of the Applicant’s cousin. In the alternative, the Tribunal’s reasoning in relation to the Applicant’s cousin is irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
The basis of this ground is paragraph 39 of the Tribunal’s reasons. I will read that into the record:
Pakistan has suffered significant political and civil unrest over many years in recent history and the situation remains unpredictable. Given the security situation in Pakistan and the comparatively greater economic opportunities in Australia, I have serious concerns regarding your intentions. Departmental information shows it is not uncommon for Pakistani nationals to overstay their visas in Australia and I suspect your cousin/brother is an example of this. These circumstances lead me to not be satisfied that you intend to stay in Australia temporarily.
The words “and I suspect your cousin/brother is an example of this” are said to be irrelevant or an irrelevant consideration. That means that the submission is that it was prohibited for the Tribunal to consider that matter.
It seems to me that the Tribunal was well and truly entitled to consider that matter. While the Applicant argues that the Tribunal is prohibited to look outside of the personal circumstances of the Applicant and the Applicant alone, the direction number 69 is clear when it says that this is not so. If one looks at the direction, especially paragraph 16, wide scope is given to the Tribunal to consider any matter it considers appropriate to so do. The status of the Applicant’s cousin is something that it can consider. Therefore it could not be ever said to be an irrelevant consideration.
The alternate part of this ground is that such reasoning is irrational, illogical and not based on findings or inferences of facts supported on logical grounds. The Tribunal has said “I suspect that your cousin…” It is a suspicion. It rises no higher than that. And given that the circumstances that the Applicant had provided to the Tribunal (that is, that the cousin had come here as a student and had married and was still here looking for permanent residence some 10 years afterwards) and the departmental information that the Tribunal had, for the Tribunal to arrive at “a suspicion” is something that was open to it. It is not illogical. It is not a suspicion that could never have been aroused.
For those reasons ground two does not demonstrate any jurisdictional error and it fails.
Ground three of the application is:
Ground 3: The Tribunal reached its finding that the Applicant did not intend to stay in Australia temporarily in part based on its finding that “Pakistan has suffered significant political and civil unrest over many years in recent history and the situation remains unpredictable” and that “[d]epartmental information shows that it is not uncommon for Pakistani nationals to overstay their visas in Australia” (para [39] of the decision). No evidence exists to substantiate the finding by the Tribunal that the circumstances in Pakistan was such that Pakistani nationals not uncommonly overstayed their visa and consequently, the Applicant did not intend to stay in Australia temporarily.
The Applicant says that, again, in regard to paragraph 39 that I have already read into the record, the Tribunal did not refer to any country information and did not look at anything independent to justify the statements that they had made about Pakistan. However, if one looks at the Court Book, the decision of the delegate says exactly that. At CB 53, the delegate in their decision has said this:
It is well documented that Pakistan has suffered political and civil unrest over many years and the situation remains unpredictable. Departmental information shows that it is not uncommon for Pakistani nationals to overstay their visa. When I consider this in conjunction with other aspects set out in this decision record, I cannot be satisfied that the Applicant intends a temporary stay in Australia.
The delegate went on to talk about the poor security situation in Pakistan and the comparatively greater economic opportunities in Australia as well. This is information that is departmental information. It is information that has been made by a departmental officer. That departmental officer has spoken about departmental information showing that it was not uncommon for Pakistani nationals to overstay their visa.
That is sufficient evidence for the Tribunal to make their conclusion. This was a matter that was not challenged at all by the Applicant. The Applicant had said that he understood what was in the delegate’s decision and did not cavil with this specific information. It cannot be said, as the Applicant is attempting, that there was no evidence to substantiate that finding. The evidence to substantiate the finding was what was in the departmental information, which was the decision of the delegate. Ground three illustrates no jurisdictional error and it fails.
Ground four is that:
Ground 4: the Tribunal failed to afford the Applicant procedural fairness by failing to disclose the existence of a certificate and notification made to the Tribunal pursuant to s.376 of the Migration Act 1958 (Cth).
The Minister has conceded that there was such a certificate and that certificate did exist and was part of the departmental information that was given to the Tribunal.
The Tribunal did not refer to it at all. The Tribunal did not make the Applicant aware of it. The Applicant says that he was not provided with the opportunity to comment on the validity of the certificate. The Applicant says that because of this it may very well be that there is information that is contained in the information covered by the certificate that the Tribunal did use to come to its conclusion.
The Applicant says that it is not possible to say one way or the other that the Tribunal did use this information and because of that the Applicant has been denied the possibility of being able to talk about that information, which could have led to a different result.
It turns out that the information is that the Applicant and his cousin had not complied with the terms of their student visas in that they were working more hours than were permitted under the terms of the visa. This is what is colloquially called “dob-in information”. Such information has absolutely nothing to do with any of the issues that were in play during the hearing, but realistically, that does not matter. The question is whether or not there had been a breach of procedural fairness that amounted to a jurisdictional error.
It seems to me that the Minister is correct in conceding that there had been a breach of procedural fairness. But the Minister points out the reasoning of the High Court in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at 65. The High Court there said:
The second category of case, illustrated by the circumstances giving rise to this appeal, as well as by MZAOL and CQZ15, is where information covered by the undisclosed notification might have the potential to have borne on the decision in a manner adverse to the interests of the applicant. Logically, disclosure of the notification in a case in that second category could not have resulted in the Tribunal making a different decision if the Tribunal did not in fact take the information into account in making the decision that it did. Hence, as was recognised by Mortimer J and emphasised by the Full Courts in both MZAOL and CQZ15, a necessary but not sufficient step in establishing non-disclosure to have been material in a case in that category is proof on the balance of probabilities that the Tribunal did take the potentially adverse information into account in making its decision.
In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, at paragraph 47, the High Court said:
…the Tribunal can be expected in the ordinary course to treat a notification by the secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under section 438 (3). Absent some contrary indication in the statement of the Tribunal's reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.
In looking at those authorities and in the absence of anything other than, as the Applicant says, “that it is not possible to say one way or the other”, I can infer that the Tribunal paid no regard to the notified document or information in reaching its decision. If it has done that, then no jurisdictional error can be established. There is no merit in ground four and it fails.
Having a look at all of the matters, there has been no jurisdictional error established. The application is dismissed, with costs in the sum of $7,853 and I will change the name of the Minister to delete the “Migrant Services” part.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Vasta. Associate:
Dated: 3 November 2022
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