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

[2021] FCCA 705

FEDERAL CIRCUIT COURT OF AUSTRALIA

Rupacha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 705

File number(s):

SYG 1059 of 2018

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

15 April 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal  – Student (Temporary) (Class TU) visa – whether the Tribunal fell into jurisdictional error by merely adopting the decision of the delegate –  whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss 56, 476(2).

Migration Regulations 1994 (Cth), cl 500.212

Cases cited:

 Coal and Allied Operations Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Re Refugee Review Tribunal: Ex Parte Aala [2000] HCA 57

Number of paragraphs:

37

Date of last submission/s:

7 April 2021

Date of hearing:

7 April 2021

Place:

Parramatta

Counsel for the Applicant:

Ms Lahoud

Solicitor for the Respondents:

Mr Gao appeared on behalf of the First Respondent.

ORDERS

SYG 1059 of 2018

BETWEEN:

LAXMI RUPACHA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

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

THE COURT ORDERS THAT:

1.Leave to rely on the grounds contained in the Amended Initiating Application is refused.

2.The application is dismissed.

3.The Applicant to pay the First Respondent’s costs, fixed in the amount of $6,000.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a citizen of Nepal. The applicant is 30 years old. The applicant first arrived in Australia on 14 April 2016 as the holder of a 3 month visitor’s visa.

2. On 1 July 2016, the applicant applied for a Student (Temporary) (Class TU) visa. On 15 September 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a visa.

3. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 19 March 2018, the Tribunal affirmed the decision not to grant the applicant a visa.

4. The applicant now seeks judicial review of the Tribunal’s decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

5. The Tribunal decision record is relatively short. After noting the background to the matter, including the delegate’s reasons, the Tribunal indicated that it had further material before it, including academic transcripts and two confirmations of enrolment for a Diploma of Business and an Advanced Diploma of Business.

6. On 20 November 2017, the applicant appeared before the Tribunal to give evidence and present her argument. At paragraph 8 of its decision, the applicant confirmed that she came to Australia on a three month visitor visa with the intention of attending a conference related to work in Nepal. The applicant had studied in the UK for three years but explained that one of the colleges she attended was blacklisted and that there were no refunds provided to students. The applicant said she returned to Nepal, however, some of her family members that live overseas stated that they have been educated. The applicant was encouraged by her family to study in Australia because the qualifications she would receive in Nepal were not sufficient.

7. The applicant provided material that she is enrolled in a Diploma and Advanced Diploma of Business, with the completion date of 25 August 2019. The applicant was considering whether to complete a Bachelor’s degree and then go back to Nepal to take care of her business.

8. The applicant stated that she continued to study English after her visa was refused as she had to complete it before being able to take another course.

9. The Tribunal considered the applicant’s claims and evidence as against the criteria set out in cl 500.212 of the Migration Regulations 1994 (Cth) (“the Regulations”) and as against the guidance given in Direction No 69 : Assessing the genuine temporary entrant criterion for Student Visa and Student Guardian visa applications (“the Direction”).

10. The Tribunal noted, at paragraph 17 of its decision, that the applicant has a sister, brother-in-law and niece in Australia. The applicant stated that her sister and parents were supporting her financially while she studied. The applicant stated that she chose Australia as her parents did not want her to be alone.

11. At paragraph 18 of its decision, the Tribunal considered the applicant’s immigration history. The Tribunal noted that the applicant originally came to Australia for what was meant to be a short visit for business purposes. The Tribunal noted that the applicant has not provided evidence as to how the courses she wants to study will benefit her in the future, particularly in relation to career plans in her own country.

12. The Tribunal indicated concern, at paragraph 19 of its decision, that the applicant gave inaccurate information when she applied for a visitor visa and due to the fact that her reasons for studying her chosen courses were assessed as being vague and without detail, the Tribunal concluded that this was not consistent with the applicant being a genuine student who had left everything in Nepal, including a business that seem to suggest needed her attention. The Tribunal concluded that the applicant was using the student visa program to maintain residency in Australia. Accordingly it affirmed the decision of the delegate.

    GROUNDS OF JUDICIAL REVIEW

13. The grounds of judicial review relied upon by the applicant are contained in an Amended Initiating Application filed with the Court on 6 April 2021. They are as follows verbatim:

    Ground one

    The conversation had in the phone interview with the first respondent’s delegate on 24 August 2016 did not and cannot constitute the appellant’s evidence or her sworn testimony in any manner or form. That the tribunal took her answers as such amounted to a jurisdictional error.

    Ground two

    The appellant always stood by the veracity of her intentions as given in her GTE statement. It is a jurisdictional error to give ANY weight to the applicant’s answers in the phone call in circumstances where what was said does not constitute evidence and cannot be afforded such consideration as such. The only evidence available to the respondent at that time was the GTE statement. Any finding based on what was said without a record of what was actually said, could not have been found in circumstances where the phone call was not in evidence, and therefore were not a genuine finding opined by the respondents.

    Ground three

    Further, the phone interview was had and a matter that denied the applicant at the tenets of procedural fairness.

    Ground four

    Her conduct and student completion records since the interview, proved her intention at the time of the interview was genuine and further corroborates her GTE statement being true.

14. No particulars were provided to expand upon the above grounds of judicial review.

15. The previous grounds of judicial review were abandoned and the matter proceeded on these grounds alone. No written submissions were provided to the Court. Counsel for the applicant made oral submissions only.

    THE APPLICANT’S SUBMISSIONS

16. Counsel for the applicant relied upon the material contained within an Affidavit of the applicant affirmed 6 April 2021. The applicant states at paragraphs 13 to 16 that:

    The delegate did not explain to me that the conversation was “oral evidence” as such.

    At the time I had no recourse to a Nepali translator at the very least.

    Further I had no recourse to my visa application, or at least reviewing the application prior to the impromptu phone call and, again at the very least, consulting my migration agent who assisted me in putting together my application.

    I feel like any opportunity to be prepared for what I did not know to be “evidence” was taken away from me and I was denied any procedural fairness due to that phone call happening the way it did.

17. Counsel for the applicant submitted that the applicant was the subject of a “cold call” from an officer of the Department who stated they wanted to ask her a few questions. It was submitted by counsel for the applicant that this procedure amounted to a denial of procedural fairness: see Re Refugee Review Tribunal: Ex Parte Aala [2000] HCA 57 at [41] and [17] (“Aala”).

18. Counsel for the applicant submits that the applicant was “subdued” into giving evidence and had no idea that answering the questions could result in the answers being used against her. Counsel for the applicant submits that this evidence was improperly and unfairly obtained. This material was then used by both the delegate and the Tribunal against the applicant. If this evidence were to be excluded, then the only material left would be the applicant’s GTE statement, which was favourable to her. Counsel for the applicant ultimately submits that, to the extent that the decision of the Tribunal treats the phone call as evidence, this amounts to jurisdictional error.

    THE FIRST RESPONDENT’S SUBMISSIONS

19. Notwithstanding the late filing of new grounds of judicial review, the first respondent told the Court that they were able to proceed with the matter on the day. It was submitted that leave to rely on the fresh grounds of judicial review should be refused on the basis of utility, in that they do not disclose any jurisdictional error.

20. To the extent that the grounds purport to attach to the decision of the delegate, it was submitted by the first respondent that the delegate’s decision is beyond the jurisdiction of the Court pursuant to s 476(2) of the Migration Act 1958 (Cth) (“the Act”). Thus, any purported procedural unfairness by the delegate (which was not admitted) is not reviewable by the Court. The Court’s attention was drawn to s 56 of the Act which specifically authorises the Minister to obtain further information, either orally or in writing from the applicant, provided the Minister has regard to that information in making the decision whether to grant or refuse the visa.

21. It was submitted by the first respondent that there was nothing in the procedure used by the delegate, in contacting the applicant to seek further information in the matter that they did, that constituted procedural unfairness. The applicant was free at any time to say they were not in a position to answer questions and request that the phone call be deferred until such time as they had access to supporting documents regarding the information sought. There is no evidence before the Court that any such request was made, or, indeed if made, was refused. Accordingly no procedural fairness arises.

22. Further, the applicant and her migration agent who appeared with her at the Tribunal hearing were provided with a copy of the delegate’s decision as part of the case preparation process. The applicant was clearly on notice as to the particular issues in relation to the fact that her answers as to why she wished to study in Australia were considered by the delegate to be vague and unconvincing. In these circumstances, it was for the applicant to produce any evidence she wished to rebut those findings.

23. The Tribunal conducted a de novo hearing. The Tribunal decision record indicates that the applicant gave evidence and presented arguments. The hearing was conducted with the assistance of a Nepali interpreter.

24. The Tribunal considered the applicant’s evidence by reference to whether the applicant satisfies the requirements in cl 500.212(a) of the Regulations in that she genuinely intends to stay in Australia temporarily. The Tribunal also considered the evidence with regard to the Direction.

25. The Tribunal properly set out the applicant’s evidence, but, correctly, found that her evidence about her reasons for studying her chosen courses in Australia were vague and without detail. The fact that this may be similar in language used by the delegate does not mean that the Tribunal simply adopted the delegate’s reasons, rather, it came to a similar conclusion based on the totality of the evidence before it. The assertion by the applicant that the recount of the decision record of the delegate’s finding, at paragraph 5 of the Tribunal’s decision, was evidence of the Tribunal adopting these findings cannot be sustained. It simply recorded them, that was all.

26. A fair reading of the Tribunal decision record, but, in particular paragraphs 16 through to 20, indicates that the Tribunal’s decision is not preferable to the delegate’s findings, rather it is based on the Tribunal’s independent findings. Accordingly, no jurisdictional error is raised by the grounds of judicial review relied upon by the applicant.

    CONSIDERATION

27. Aala states at [41] per Gaudron and Gummow JJ that:

    It follows that, if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under s75(v) of the Constitution.

28. Section 56 of the Migration Act 1958 states as follows:

    (1)In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa

    (2)Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

29. The applicant contends that the delegate, in contacting the applicant by telephone without prior notice, and asking her to answer certain questions, constitutes procedural unfairness. It is put to the Court that the applicant was “subdued” into answering the questions asked of her.

30. Firstly, this submission that this evidence was improperly and unfairly obtained cannot be sustained. Section 56 of he Act clearly contemplates that the Minister may invite, orally, the applicant to provide further information. No transcript or recording of the information that the applicant provided has been given to the Court. There is simply no evidence that the delegate acted in an unlawful or improper way in inviting the applicant in a telephone call to provide additional information regarding her visa application.

31. The applicant was entitled to indicate she was unable to answer the queries at that time and seek an opportunity to provide information in writing, or by some other means, including through her migration agent. There is no evidence before the Court that the applicant did so. In matters such as this, the burden of proof lies with the applicant.

32. Secondly, in so far as the attack on the Tribunal’s decision relates to the decision of the delegate, the Court agrees with the first respondent that it has no jurisdiction over the delegate’s decision. Pursuant to s 476(2) of the Act, the Court is required to confine its consideration to the decision of the Tribunal, not that of the delegate.

33. The Court is not satisfied, based on the decision record of the Tribunal at hearing, and in the absence of a transcript of the Tribunal hearing, that the Tribunal came to its decision based on anything other than the totality of the evidence before it, which included, the applicant’s evidence at the Tribunal. There is nothing in the decision record of the Tribunal that indicates it merely adopted the reasoning of the delegate, rather, the Tribunal came to its own conclusions. The fact that some of these conclusions were similar to that of the delegate is not an indicator of jurisdictional error. The Tribunal was entitled to find that the applicant’s evidence as to her reasons for wanting to study in Australia were vague and unconvincing.

34. The applicant, having been provided with a copy of the decision record of the delegate, was clearly on notice as to the issues in her case. This included the fact that her reasons for wanting to study in Australia were not deemed sufficient to satisfy the criteria for the grant of a study visa. The applicant was represented at the Tribunal by her migration agent, and had every opportunity to provide any evidence she wished to and present arguments as to why the decision of the delegate was flawed.

35. The applicant’s assertion that the Tribunal hearing was infected by some procedural unfairness at the hands of a delegate, as a result of a telephone call to elicit further information as contemplated by section 56 of the Act simply cannot be sustained. The Court is satisfied that the Tribunal conducted a de novo hearing and that the conclusions it reached were open to it on the evidence that was before it. These conclusions are not infected by legal unreasonableness, irrationality or illogicality, or any other jurisdictional error.

36. Moreover, in conducting a de novo review, the Tribunal’s decision cures any defects and irregularities in the delegate’s decision and processes: (see Coal and Allied Operations Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [13]).

    CONCLUSION

37. The application is dismissed.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       15 April 2021