Saha v Minister for Immigration - [2005] FMCA 509

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAHA v MINISTER FOR IMMIGRATION

[2005] FMCA 509

MIGRATION – Visa – student visa – Migration Review Tribunal – Review of visa refusal – Subclass 572 – 572.223 – condition 8202 – bad faith – allegation of bad faith involves personal fault on the part of the decision maker – the mere fact of an adverse finding is not evidence of bad faith – bias – bias in the form of prejudgment occurs where the decision maker’s mind is so committed to a conclusion already as to the be incapable of alteration whatever evidence or arguments may be presented – a finding of actual bias is a grave finding and cannot be made lightly – a claim that “The Tribunal denied the evidentiary proof of my claim” is no more than a complaint about a finding of fact and is not a ground for judicial review – a claim that “The Tribunal’s decision did not reflect the material facts of my claim” is no more than a complaint about a finding of fact and is not a ground for judicial review – a claim that “Tribunal mixed up many facts with this decision which affected the decision” without more does not constitute a judicial review – no reviewable error.

Migration Act 1958 (Cth), ss.359A, 474

SZBQB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 420
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 - followed
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 - followed
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 - followed
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 - followed

Applicant:

SUBIR KUMAR SAHA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3463 of 2004

Judgment of:

Scarlett FM

Hearing date:

12 April 2005

Date of Last Submission:

12 April 2005

Delivered at:

Sydney

Delivered on:

12 April 2005

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr Jordan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3463 of 2004

SUBIR KUMAR SAHA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application for review of a decision of the Migration Review Tribunal that was made on 29 October 2004. In that decision, the Tribunal affirmed a decision of the delegate of the Minister finding that the visa applicant, i.e. this applicant here, was not entitled to the grant of a student temporary class TU visa.
The short facts of the matters are that the applicant is a citizen of Bangladesh who was born on 1 January 1983. On 15 July 2003 he applied for a student temporary class TU visa. On 29 January 2004 that application for visa was refused. He lodged an application for review with the Migration Review Tribunal on 19 February 2004 and a hearing was held at which the applicant attended. The Tribunal also sought some other information and wrote to the applicant asking for his comments. An officer from the Tribunal also telephoned the applicant on 21 September in respect of certain information. The Tribunal made its decision on 29 October.
The applicant was originally granted a subclass 572 visa on 29 May 2002. He arrived in Australia on 13 June under that visa. The visa expired on 1 July 2002. He was granted a further visa on 1 July and that expired on 20 July 2003. On 15 July 2003 the applicant applied for another subclass 572 visa which is the application that was refused and is the application now under review.
The application for a visa was refused on the basis that the applicant in respect of his previous visa had not complied with condition 8202 of his visa. According to exhibit 1, which is the printout of the visa detail relating to the applicant, his visa was subject to three conditions. The relevant one for the purpose of these proceedings was 8202 which has the short title of "Meet Course Requirements".
The condition 8202 states these things:
(a)The holder is enrolled in a registered course; or
(b) in the case of the holder of a subclass 560 or 571 school sector visa who is a secondary exchange student, the holder is enrolled in a full-time course of study or training.
(3) A holder meets requirements of this subclause if:
(a)in the case of a holder whose education provider keeps attendance records, the Minister is satisfied that the holder attends for at least 80 per cent of the contact hours schedule:
(i)for a course that runs for less than a semester for the course; or
(ii)for a course that runs for at least a semester for each term and semester of the course; and
(b)in any case, the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i)for a course that runs for less than a semester for the course; or
(ii)for a course that runs for at least a semester for each term or semester, whichever is shorter, of the course.
The Tribunal looked at the applicant's education history. He commenced a Diploma in Information Systems on 13 June 2002 at La Trobe University in Melbourne. After two months at La Trobe the applicant found that he was very lonely as he did not have any relatives or friends in Melbourne. He then changed courses and moved to Sydney where he began studying at the campus of La Trobe University in York Street, Sydney. He studied a Diploma in Business Administration at that campus between 7 July 2002 and 24 February 2003.
His attendance was certified at 70 per cent. Unfortunately he found the course too difficult and did not pass his subject. He was given permission to change education providers. He then enrolled at Central College on 14 May 2003 in a Diploma in Accounting. His attendance was significantly higher at 98 per cent. However, he failed two subjects and passed one. He only attended one out of two exams. After six months he stopped going to the college as he was failing. After he stopped going to Central College in November 2003 he left Australia and returned to Bangladesh. He is now enrolled at Stirling College doing a Diploma in Accounting. He had been to Bangladesh to visit his mother who was sick but otherwise he has been attending classes every day.
The Tribunal obtained evidence from the Registrar of La Trobe University relating to the applicant's attendance at La Trobe between 8 July 2002 and 24 February 2003. His average attendance for the second semester 2002 was 56.75 per cent, excluding absences explained by medical certificates. For semester 3 in 2002, his average attendance was better at 77.31 per cent including medical certificate matters.
His academic results for semesters 2 and 3 in 2002 shows that he received a mark of zero for all four subjects completed during that semester. In the second semester 2002, his results show that he received a mark of three for one subject, two marks of eight, one mark of 28 and two marks of nil. He was counselled during his course and a suggestion was made that he leave La Trobe business diploma course and find an accounting course. He went to Holmes College where his academic progress and attendance was apparently excellent.
The Tribunal then wrote to the applicant on 3 September 2004 under the provisions of section 359A of the Migration Act advising him of the information which they had received from La Trobe University and invited him to comment on that information. They also asked him to comment on the information which showed that he was not enrolled anywhere between February 2003 and 14 May that year.
On 21 September the Tribunal received a letter from the applicant saying he did not understand the information that he was being asked about and said he is now studying at Stirling College and he is doing well there. On 21 September an officer of the Tribunal rang the applicant, who confirmed that he was not enrolled anywhere between February 2003 and May 2003.
The Tribunal noted that the applicant had given evidence in the Tribunal that he was homesick, depressed and unsuited for the course he was studying and found it difficult to settle in Melbourne. The Tribunal noted that the applicant had attended counselling and the university was sympathetic to his circumstances. The Tribunal also accepted that he was now enrolled in a course of study for which he is said to be well suited.
Unfortunately, the Tribunal went on to find that it considered the breach to be significant and it was unable to be satisfied that the problems faced by him were of such significance that he would not have been able to achieve at least satisfactory progress or attend his studies for the requisite period and then enrol in a course to which he was better suited. The Tribunal confirmed its findings that the applicant had not subsequently complied with condition 8202 during the period 1 July 2002 to 20 July 2003 and the Tribunal then affirmed the decision that he was not entitled to the grant of a student temporary class TU visa.
The applicant filed an application for review of this decision on 25 November 2004. In that application he provided a statement of the grounds for the application which I will quote in full:
The Tribunal made his decision in bad faith. The Tribunal deprived me of the natural justice. The Tribunal denied the evidentiary proof of my claim. The Tribunal's decision did not reflect the material facts of my claim. The Tribunal has given a decision which was preset in the back of its mind. The Tribunal mixed up many facts with this decision which affected the decision. The Tribunal concentrated in particular fact while ignored many other facts in this condition. The Tribunal make up his mind without any inquiry regarding my review application.

I will provide more details of grounds later.
I would have to say that those grounds, or at least a substantial part of them, sound depressingly familiar and appear to be part of a pro forma set of grounds that seems to be circulating somewhere. The applicant says that he obtained some assistance from a friend who is a student. He feels now that he should have obtained advice from a lawyer.
I asked the applicant to explain what he meant by various grounds including his allegations of bad faith and what appears to be bias. He said there is a lot of things missing, they are not showing things from Central College. He said still they wanted more information. Basically, he wants his student visa back but he accused the Tribunal of not having gone through all his information and of mixing up many facts. He was not able to say which facts had been mixed up, although he did say they had concentrated on particular facts and ignored others. He said he got the impression that they did not want to give him his visa back. He also asked the court to give him some time to provide some information. He wanted an adjournment so that he could show that he is now attending his studies, where he is studying at Stirling College.
Mr Jordan of counsel for the respondent provided me with a written submission in which he points out that one of the essential criteria for the applicant to be eligible for a subclass 572 visa was that at the time of his visa application he satisfied clause 572.212 of schedule 2 to the Migration Regulations 1994. At the time of his visa application clause 572.212 was in the following terms:
If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held or last held by the applicant is or was subject.
Mr Jordan went on to set out the relevant provisions of condition 8202 which was the condition to which his visa was subject. Mr Jordan points out that during the requisite time the applicant had failed all of the subjects in which he was enrolled and in relation to one of the semesters, he had failed to attend for at least 80 per cent of the scheduled contact hours.
I note that in respect of the applicant's failures in certain subjects the applicant told me that he did not fail all of the exams, that he did not attend some of the exams, although if one does not attend an exam one can hardly pass it.
What has to be shown in cases of this nature is whether the Tribunal made a jurisdictional error. If the Tribunal has not made a jurisdictional error, then a decision of this nature will be covered by the provision of section 474 of the Migration Act. If there is a jurisdictional error, then the privative clause condition will not apply and the application will therefore not attract the protection of section 474. Jurisdictional error can include many things including actual or apprehended bias.
The applicant in his oral submission relied entirely on the facts. In the normal course of events a decision on the facts is made by the Tribunal and that is a Tribunal decision. The grounds given in his review, which appear to be familiar are, as I said, a set of standard grounds that seem to be circulating from time to time.
A number of the grounds mentioned do not constitute jurisdictional error. I made some points about that in a recent discussion, SZBQB & Ors v The Minister for Immigration, the media neutral citation to which is [2005] FMCA 420, a decision handed down on 4 April 2005. In that case the applicant provided a list of 10 grounds, most of which are similar if not identical to the grounds given here, even including the grammatical errors which are found in those grounds.
Looking at the grounds that are set out in this application, I note that whilst the grounds in this application are set out in one paragraph rather than in a list, I will extract them, if not separately at least in several groups.
There is basically a bad faith or apprehended bias or actual bias allegation. That is set out in these grounds:
The Tribunal made his decision in bad faith. The Tribunal deprived me of the natural justice. The Tribunal has given a decision which was preset in the back of its mind .
Those grounds are allegations of bad faith and actual bias. An allegation of this kind is a serious matter and ought not to be made lightly. I refer to the decision of the Full Federal Court in SBBS v The Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at paragraphs [43] to [48]. I also refer to the decision of the Full Court in The Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, paragraphs [7] to [11]. An allegation of bad faith involves personal fault on the part of the decision maker. The mere fact of an adverse finding is not evidence of bad faith. The elements required to be proven which were discussed by the Full Court in SBBS in this case have just not been made out. There is nothing that would justify a finding of bad faith.
On the question of bias, it is trite law that bias in the form of prejudgment occurs where the decision maker's mind is so committed to a conclusion already as to be incapable of alteration whatever evidence or arguments may be presented. I refer to The Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507. See also The Minister for Immigration & Multicultural & Indigenous Affairs v SBAN (supra).
A finding of actual bias is a grave finding and cannot be made lightly. The question is whether the decision maker's mind is open to persuasion. I refer particularly to the decision of the von Doussa J in SCAA v The Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 paragraph [37].
There is nothing in the facts and in the decision before me to justify findings of either bad faith or actual bias. There is no evidence of denial of natural justice. Indeed, where the Tribunal sought further information the Tribunal wrote to the applicant, provided that information to him and gave him the opportunity to comment on it. When the Tribunal received his reply, an officer of the Tribunal actually telephoned the applicant to seek confirmation of the fact that he was not enrolled in any course between February and the middle of May 2003. It has not been put in issue that this conversation did not take place.
The applicant was given an oral hearing and was given the opportunity to attend and give evidence. He did attend. He did give evidence. Further inquiries were made and the result of those inquiries was communicated to the applicant. He was given a chance to reply to it and in fact he was telephoned for his comments. To my mind there is no lack of procedural fairness, no breach of any of the rules of natural justice. There is no denial of natural justice which is apparent on the face of the Tribunal's reasons.
Looking at some of the other grounds, they are:
The Tribunal denied the evidentiary proof of my claim. The Tribunal's decision did not reflect the material facts of my claim. The Tribunal mixed up many facts with this decision which affected the decision.
Those three grounds are no more, as I said in SZBQB, than complaints about findings of fact and findings of fact are exclusively the province of the decision maker. They do not constitute grounds for judicial review.
The applicant has also said:
The Tribunal concentrated in particular fact while ignored many other facts in this condition.
This particular ground is also one of the standard form grounds that is prevalent in applications of this type. Leaving aside the fact that it is not entirely comprehensible, at least as far as the last three words are concerned, it too is nothing more than a complaint that the Tribunal was not satisfied on the facts of the applicant's claim. It is not a ground for review.
The applicant has said "the Tribunal make up his mind without any inquiry regarding my review application". Well, if that is a ground of alleged bias, it is not borne out by the facts. It is quite clear that the Tribunal did make inquiries about the applicant's review application to the extent of listening to his evidence, seeking further evidence, forwarding documentation to him for his comments, and arranging for an officer of the Tribunal to telephone him to ask further questions. That ground of review must be dismissed.
Finally, it is not a ground of review to say "I will provide more details of grounds later". I note that that catch all also appears in the standard form conditions and was also relied on by the applicant in SZBQB. It did not happen.
The fact is that the Tribunal considered the facts of the applicant's performance at university under the terms of his previous student visa. He did not comply with the attendance requirements of condition 8202 and he did not comply with the academic requirements. The Tribunal considered all the evidence and the Tribunal to my mind did so fairly and comprehensively.
I am mindful of the fact that this applicant is not legally represented.

I have given my own consideration to the Tribunal decision to see if there appears on that some jurisdictional error which may not have been apparent to the applicant. I certainly cannot see one.
I am satisfied that there is no jurisdictional error which would attract judicial review. As there is no reviewable error, the application must be dismissed.
The applicant has been unsuccessful. Costs follow the event. The respondent seeks the sum of $4000 which is well and truly within the range prescribed by the Federal Magistrates Court Rules 2001. Indeed, considering the nature of the proceedings before me it is, if I may say so, a commendably modest figure. It is one which I have no hesitation in awarding.

I will require a transcript of my reasons for this decision. I will remove the application from the list of cases awaiting finalisation.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A.Coutman

Date: 3 May 2005