SHARMA v Minister for Immigration
[2017] FCCA 431
•10 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARMA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 431 |
| Catchwords: MIGRATION – Application for judicial review – apprehended bias – not matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46a, 65, 116, 195A, 360, 366C, 499 Migration Regulations 1994, sch.2 |
| Cases cited: MZZLO v Minister for Immigration and Border Protection (No.2) [2016] FCA 356 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 |
| Applicant: | ABHISHEK SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 325 of 2015 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 14 December 2016 |
| Date of Last Submission: | 14 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 10 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr Tran |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The Second Respondent’s name be amended to the Administrative Appeals Tribunal.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 325 of 2015
| ABHISHEK SHARMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This applicant was granted a student visa on 23 December 2013, on the basis that he was enrolled in a Masters of Commerce (Professional Accounting) degree at Federation University.
The applicant commenced his studies in early 2014, but ceased studying by July resulting in his enrolment being cancelled on
29 July 2014. The applicant failed all of the subjects in which he was enrolled in the first semester. He did not attend all of his classes (having attendance rates of around two-thirds or lower, in some classes, but acceptable attendance in others).
The applicant then chose to enrol in a Certificate III course in commercial cookery. It appears that he entered into this enrolment, at least in part, on the advice of a migration agent. The Department then issued a Notice of intention to consider cancelling the visa (NOICC), as the applicant had arrived in Australia through a fast track assessment process for higher education students, but had changed to a Certificate III course. Following receipt of this notice, the applicant enrolled in a Bachelors course at a private institute in Melbourne in order to undertake a Bachelor of Business.
The applicant’s visa was cancelled and he then sought review by the Migration Review Tribunal (as it was then called), but his review application was dismissed by the Tribunal on 29 January 2015. The applicant now seeks judicial review of the decision by the Tribunal.
The key issue before the Tribunal was whether or not the applicant was a genuine student, wishing to enter and stay temporarily in Australia. Not surprisingly, the Tribunal was concerned that the applicant had commenced a higher degree in accounting, changed to a very low-level cooking course, and then changed to a Bachelor of Business. This was not assisted by the applicant’s inability to explain why he would undertake a cooking course, given that he entered Australia holding a Bachelor degree qualification in accounting, nor why he would then subsequently change to a Bachelor of Business course. The theme of his explanation appears to be that he received bad advice from his migration agent on appropriate courses to sustain his visa.
The applicant relies upon four grounds for judicial review in his amended application.
Grounds 1 and 2
Grounds 1 and 2 of the application provide as follows:
(1) The Tribunal failed to afford procedural fairness to the applicant, in that a fair minded observer would have reasonably apprehended that the Tribunal was biased against the applicant during the course of the oral hearing;
(2) The Tribunal failed to afford procedural fairness to the applicant, in that the applicant was not given an opportunity to “present arguments” during the course of the oral hearing, contrary to the mandatory requirement of section 360(1) of the Migration Act 1958 (Cth) (the Act).
The applicant relies upon the same particulars for both grounds, those set out in support of ground 1, which are as follows:
a. The Tribunal accused the applicant of giving evidence that was rehearsed, because he was speaking fast: a fair minded lay observer would have appreciated that the most likely reason that an applicant before the Tribunal is speaking fast is because of nerves.
b. The Tribunal accused the applicant of not telling the truth because he gave additional details of material set out in his written statement: a fair minded lay observer would have appreciated that is de rigour for an applicant to give more detail of matters set out in a written statement (here, it concerned the unimportant fact that the applicant’s first course was based in Geelong).
c. The Tribunal interrupted the applicant during the course of him giving evidence about his enrolment history, and insisted that the applicant explain to the Tribunal what thought the applicant had given to doing courses related to the course in which the applicant first enrolled. When the applicant sought to respond to this question, the Tribunal accused the applicant of being “rehearsed”, “evasive” and potentially misleading: a fair minded lay observer would have appreciated that the applicant was doing no more than trying to respond to the Tribunal’s questions in his own terms, and that the Tribunal was not allowing the applicant to do so.
d. During one exchange, the applicant was trying to say that he ceased studying under the Master level course and after his 572 visa applicant was refused, but prior to receiving the NOICC in relation to his 573 visa, the applicant approached an educational institution (MIT) in order to enrol in a Bachelor level course. The applicant appears to have been trying to say that he was told by MIT that he could not enrol in such a course at that time and would have to wait until November to enrol, and so, the applicant moved on to look at other institutions. The Tribunal’s responses during this exchange reveal that the Tribunal was not grappling with what the applicant was saying, but instead, was criticising the applicant and his evidence in circumstances where there was no valid basis for that criticism.
A copy of the electronic recording of the Tribunal hearing was provided to the court (whilst the first CD was not functional, a subsequent one was provided), from which I was able to listen to the entire hearing. At no time during the hearing did the member raise his voice or speak in a manner that I would consider to be overbearing. The member did, however, keep a close control upon the matters that the member was asking the applicant about, at times stopping the applicant from giving an answer that was not directly on point to the question asked. Any interactions at the hearing themselves did not proceed hastily. A number of lengthy pauses can be heard when listening to the transcript. Whilst the hearing proceeded relatively slowly, on a number of occasions the member directed the applicant to pause while the member made notes.
The overall impression one gains from hearing the transcript is that it would have been a hearing that caused the applicant considerable anxiety, not because of any harsh words or loud voices, but rather the slow pace, laconic style of the member, and the very tight control the member exercised with respect to requiring the applicant to provide answers directly relevant to the questions. The overall tone and tenor of the hearing does not give one the impression of a Tribunal member eager to decide in favour of the applicant. If anything, it seems apparent that the Tribunal member commenced the hearing process with a very detached attitude.
The very essence of the hearing process is to allow an applicant to address the Tribunal member directly with respect to matters that are significant to their claim. An important incident of an oral hearing in an arena such as this, is that the Tribunal member, through their questions or preliminary observations, provides enough information to an applicant to enable them to also address matters that may appear to be at issue or of concern from the material that the member has read. In taking such an approach, a Tribunal member provides a more effective opportunity to an applicant than a Tribunal member who does no more than invite an applicant to present their case by recounting their version of events without any interruption or critical questioning.
Whilst my overall impression from hearing the recording is that the presentation of the member would not have itself led to a finding of apprehended bias (and in this case there is nothing to indicate that actual bias could be established), it is also necessary to analyse the exchanges in detail, as argued by the applicant, in order to consider what the fair-minded observer who had carefully listened to the proceedings and contextualised the exchanges might consider, in determining whether or not the decision-maker may not have brought an impartial mind to making the decision. Importantly, it is not sufficient that a reasonable bystander have a vague sense of unease or disquiet (see MZZLO v Minister for Immigration and Border Protection (No.2) [2016] FCA 356 per Moshinsky J); rather, the apprehension must be firmly established with the allegation being distinctly made and clearly proved.
In SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, Flick J (with whom Allsop CJ agreed) also noted the importance of ensuring that allegations of apprehended bias are distinctly made and clearly proved, and not based upon a vague sense of unease or disquiet (see para.22). Flick J also made the point that a robust and forthright testing of an applicant’s claims does not of itself sustain a finding of apprehended bias (see para.24). Importantly, “more must be shown than a mere predisposition to a particular view; it is necessary to show a decision-maker’s mind being not open to persuasion” (at para.29). One must also bear in mind that exchanges take place in a difficult environment of a hearing. For these reasons, Flick J identified that:
31. Again in a context where a decision of the Tribunal was under challenge, Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, 131 FCR 102 at 126-127 made the following observations as to what would not constitute a reasonable apprehension of bias:
[81] Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 CLR 225 at 230:
While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea (1990) 90 NSWLR 263 at 279-80, 283.
As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.
In concluding that the decision of the Tribunal was there vitiated by reason of a reasonable apprehension of bias, her Honour concluded that “[t]he vice in this case was that, by the Member’s conduct during the hearing, a fair minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim – that he had fabricated his account”: [2003] FCA 872 at [82], 131 FCR at 127.
32. The use of “strong” language may not be sufficient to give rise to a reasonable apprehension of bias: Penhall-Jones v State of NSW [2007] FCA 925 at [92] to [97]. Buchanan J there concluded that the use of language such as the description of an offer as a “bribe” being “ridiculous” was not sufficient. Nor will “harsh tones” necessarily give rise to a reasonable apprehension of bias: SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [31] per Katzmann J.
In my view, having listened to the hearing and read the transcript, I am not persuaded that this case involves any inappropriate personal conduct, such as sarcasm, mocking or rudeness. The language used is phrases that would be common in most hearings.
Counsel for the applicant enumerated 17 points in the transcript where it was argued that the conduct of the member would give rise to concern about apprehended bias, at least when one viewed them in totality. Given the nature of the arguments and the findings that must be made, it is appropriate to identify each of these matters.
Point (a)
At p.4, the member asked the applicant whether the University he was to attend was “conducting classes in Geelong”. The applicant did not answer, despite being asked twice, nor did he answer when asked if there was some reason he was not answering. His agent intervened, saying that he thought he did not understand the question, following which the member rephrased it to “Were you going to classes in Geelong?” to which the applicant responded that he did not go to any classes in Geelong. The applicant then explained that he did not attend classes. The applicant said that he believed that Geelong was near to Melbourne as a result of what his agent in his home country had told him, but found that it was not and sought to transfer to the Melbourne city campus. The member then made a remark that the applicant was speaking too quickly and that the applicant was sounding a little rehearsed. Criticism is made of the member for this remark on the basis that it is said the applicant did not understand the question.
The applicant did not lead evidence of his claimed lack of understanding. His silence on two occasions when asked about whether classes were conducted in Geelong, but obvious understanding of much of the rest of the interview and the question about whether he had gone to classes in Geelong, lead me to the view that, on reading the transcript and listening to the tape, it was open to the Tribunal member to form the view that the applicant had been evasive with respect to that question, rather than not understanding it. The fulsome answer relating to his desire to move to the Melbourne city campus despite the questioning being focused upon why he did not attend at Geelong as enrolled, was said by the member to give rise to concerns that the answer was rehearsed. Although this is not obvious from merely listening to the recording, listening to a recording differs substantially to observing a person give evidence.
Point (b)
It is alleged that the member said, “You weren’t a very good student, that’s why you failed,” and that this was an unnecessary and pejorative statement. This statement must be taken in context. The statement was made after recounting that there was evidence that the applicant had attended between 58 and 66 per cent of some classes and that the Tribunal member went on to say, “I may say, look, you weren’t a very good student, that’s why you failed. You weren’t working – you weren’t studying hard. You say there was this movement between institutions or campuses?”. In context, it is apparent that the Tribunal member was attempting to alert the applicant to the issues that were playing upon the member’s mind to enable the applicant to clearly address the issue that underpinned this line of questioning, namely whether the failure of subjects was generated as a result of the applicant simply not working at his studies nor regularly attending, or had some other cause. The applicant’s position, as set out in the evidence he subsequently gave, was that he did not attend classes at Geelong and simply waited until he could obtain a transfer to the Melbourne city campus before attending classes. He provided no real explanation for why, in the interim, he would not have taken the train to Geelong to attend classes, even though it was a lengthy trip (although one that many city workers take each day), if he was indeed a committed student.
Point (c)
In the middle of p.5 it is set out that the member had difficulty accepting the proposition that the applicant would not start his classes on the first day (even if they were in Geelong) whilst waiting to change campuses, particularly as it was not addressed squarely in the written submissions. The Tribunal member outlined this to the applicant and then said, “Are you making it up? Are you telling me the truth?”. Whilst not delivered in a robust tone, the sense of such phrases would be best categorised as cross-examination, the nature of which would have been better had the Tribunal put it to the applicant. However, this was said in the face of a remarkable state of affairs whereby the applicant came to Australia on a student visa to study a Master degree and simply did not attend classes at the commencement of the semester because they were at the Geelong campus and he was waiting to have a transfer to the Melbourne city campus.
Point (d)
At the bottom of p.6 the member again says to the applicant that the impression is that his answers are rehearsed. The member expressing his impressions of the evidence as the hearing progresses does not of itself show that a reasonable listener would have a reasonable apprehension of bias. It is also important to bear in mind that experience in migration appeals indicates that the narrative given by the applicant as to why he would change from a higher degree course to a cooking course is in a form very commonly expressed in cases of this type, and likely to have been a version heard regularly by the Tribunal member. The Tribunal member was also able to see the applicant giving his evidence in person. It seems to me that on the material it was open to the Tribunal member to have formed this preliminary view of the applicant’s evidence, particularly when this was given in answer to a question about whether he had turned his mind to doing a course relating to accounting, given that he had a Bachelor degree in commerce and was enrolled in a Masters of Professional Accounting.
Point (e)
In the exchange referred to in (d) above, the member went on to point out to the applicant that he had to make a decision as to the exercise of a discretion to cancel the applicant’s visa, “So please, don’t be evasive, it counts against you.” Again, the member simply expressed an observation, the content of which would have been apparent to a reasonable observer listening to answers that did not address the subject of a question.
Point (f)
It is alleged that the Tribunal member’s interactions with the applicant as detailed above indicated a prejudgment by the Tribunal member, and rude and controlling behaviour. I accept that the applicant was likely to have found the hearing an intense environment, given that he was being carefully taxed with significant difficulties in his version of events, by a Tribunal member who was not prepared to acquiesce when he gave answers that were not directly on point. Whilst the result was certainly at the more robust end of a hearing process for a visa review, I am not persuaded when considering it as a whole that the claim of reasonable apprehension of bias has been made out by these exchanges.
Point (g)
It is a source of complaint that the member said, “That’s a good reason on the face of it to cancel your visa. You didn’t get a visa to do hospitality.” However, this must be taken in context, as the preceding sentence was, “You threw in your masters course and you start a hospitality course.” It is difficult to cavil with the proposition that a person who obtains a fast track visa for a masters degree and then commences a Certificate III in Commercial Cookery would have created a scenario which, prima face, ought to lead to a cancellation of the visa. Again, it appears clear that the Tribunal member, not unreasonably, was struggling to understand why a person who is undertaking a Masters course would change to Certificate III in hospitality and attempting to make clear to the applicant that he needed to provide evidence on this issue.
Point (h)
The applicant points to p.7 of the transcript saying that the Tribunal member rudely cut off the applicant when he was answering a question, and alleging that the applicant appears to have misunderstood the question when he gave the answer. However, it is clear from the terms of the question that the member was seeking to elicit the applicant’s thought processes between the time when he failed his exams and the time when he received his NOICC. Despite a lengthy question identifying this time period as the relevant one for the question, the applicant commenced his answer with the words “Once I got the refusal”, clearly indicating he was intending to provide an explanation of the things that he had done after he received the refusal (which, in context, must be understood as being the NOICC).
Point (i)
The Tribunal member went on to clarify with the applicant that he understood what he was being asked and engaged in reflective listening; asking the applicant to articulate what the applicant understood was the question. The Tribunal member then clarified his question when the applicant indicated that he did not understand it, asking again what thought the applicant had given to doing a Diploma of Accounting or a Bachelor of Business between the time that he failed and enrolled in the hospitality course. This question went to the core of the applicant’s case. It is unsurprising that the member wished to refocus the applicant on the relevant time period, and have the applicant give his answer.
Point (j)
At the top of p.8 the Tribunal member again clarified a question and notes on the record that the applicant was nodding his head, and thereafter the applicant whispers to his agent (although it can be heard on the tape), “Can you answer this question?”. This explains the response from the Tribunal member to the effect that the agent could not answer the question for him, yet the applicant remains mute. The agent asked to answer the question, but the Tribunal member said he was seeking a response from the applicant, not the agent. This is little different to a person being cross-examined and being asked a question to which they have no good answer; it would not be open to counsel to attempt to answer the question on their behalf. The agent does not appear to have pursued the issue, nor sought to put written submissions before the Tribunal member on this issue.
Point (k)
The applicant’s counsel points to an exchange at the bottom of p.9 of the transcript where the applicant pointed out to the Tribunal member that he had asked his migration agent “100 times” whether he could change his course because his visa had been granted for accounting. The Tribunal member accepted that the applicant had looked at the website at all of the possible courses. The Tribunal member thereafter returned to the core question that he had been pursuing throughout the review and was seeking an explanation from the applicant about why he did not pursue studies of the same type that he had obtained the visa to pursue, and the ancillary question of why it was that he would choose cookery. Whilst the Tribunal member’s statements were strictly focused upon obtaining the information that he sought, which would have, in turn, led to a degree of tension in the hearing, the issues that the Tribunal member was attempting to obtain an explanation for were central to the decision. Indeed, ultimately, the applicant gave an answer, which highlighted the concern of the Member, the applicant saying:
There is no other reason I was working in hospitality field and I like that field that’s why I was with them and I ask is it possible then I follow every rule of the immigration and I apply for my visa to get the permission from the immigration. And on 14 August I get the refusal from immigration and that time, I was, I was, I know my visa is grant for accounting, but I apply for permission: can I do the hospitality? And immigration did not give me the permission to do cookery. Then I decide if they give me permission to do accounting, and I’m feeling so hard in the masters I decided to start from the Bachelors. When I got the refusal from immigration I went to my education provider and they ask me we cannot take you back because enrolment is already finished, you have to wait for the November semester. And after that I look on internet for universities and the college. And after 1 month I get the NOICC from the immigration department, then I called to the -
The claim that the Tribunal member in saying to the applicant that he was “not totally misled” by his agent is said to indicate that the Tribunal member had formed a preliminary view against the applicant. A fair reading of the phrase indicates that the Tribunal member was referring to the context of the questioning, namely, why it was that he chose commercial cookery. His evidence was that he was referred to a website that had a list of possible courses and asked to choose one. His evidence was not that he was directed he should select commercial cookery to retain his visa, or that this was the only option open to him on the advice of the agent.
Point (l)
It is argued that, when the applicant said in an exchange on p.10 of the transcript, “After one month I get the NOICC from the immigration department…”, this could be interpreted to mean that he enrolled prior to receiving the NOICC. Read in context, it seems apparent that this was not the intended meaning by the applicant at the time, as he confirms later on that:
I’ve enrolled after the, when I got the NOICC…
To the extent there was any confusion by the member as to the sequencing that was being alleged by the applicant, this was clearly clarified towards the bottom of p.10.
Point (m)
Particular (m) alleges that the Tribunal “fixates” upon the possible (and unlikely) interpretation in the previous particular suggesting the applicant is being inconsistent. That was clearly the initial impression the Tribunal member held, from what he stated at the middle of p.10. This was an impression open to a reasonable member and the context does not show a “fixation”.
Point (n)
In particular (n) the applicant complains that the Tribunal member at the middle of p.12 pointed out that the applicant had been inconsistent. Yet this was said to be with respect to the sequence of events, namely, whether or not the applicant had enrolled in a Bachelor of Accounting course prior to receiving the NOICC. Whilst a very forthright statement by the Tribunal member, it clearly addresses the fact that the applicant is attempting to explain his decision to enrol in cookery (and not in a Bachelor of Business) after the NOICC was issued, by saying that the institution he was at did not have courses commencing again until November (implying that he would not have been able to make an enrolment application prior to then). Whether this is best described as an inconsistency or an evasive obfuscation by the applicant is open to argument. However, whilst a very forthright statement from the member, it does not appear to me to show that at this point there was a reasonable apprehension that the member was biased. One must also bear in mind that by this point in the interview, the member had had considerable opportunity to engage with the applicant and assess his version of events and his demeanour and credibility in giving that version.
Point (o)
In particular (o) it is argued that the Tribunal member said to the applicant at p.11:
Should I consider that your actions in doing so [enrolling in the cookery course] suggest that you are not a genuine applicant for entry and stay temporarily in Australia as a student?
It is alleged that this was a disparaging remark and that this issue had not been raised before the delegate or Tribunal in the past. It is alleged that this was a “cheap shot” against the applicant. The phrasing of the statement is unfortunate. Better, would have been, to simply state that enrolment in the cookery course might be relevant in determining whether or not the applicant was a genuine applicant, which was one of the criteria that the member had to apply. The argument that this was not raised in the delegate’s decision fails, as the delegate said at p.5:
Abhishek SHARMA has significantly changed educational pathways on two occasions which also demonstrates that he does not have a genuine intention to study at the higher degree level. Therefore, it appears that Abhishek SHARMA only obtained enrolment in a Higher Education Sector course in order to maintain eligibility for the grant of the 573 visa and does not appear to demonstrate a genuine intention to study at the higher education sector. I place a large amount of weight on this fact.
It was also important for the member to identify this issue to the applicant during the course of the hearing in order to accord the applicant procedural fairness.
Point (p)
The applicant complains that at p.13 of the transcript. The Tribunal member says:
You didn’t pass one subject in your masters degree, not one. So why should I have any confidence that you will be able to complete [the Bachelor of Business degree]?
The question was asked in the context of a case where the applicant had not passed any of his Masters level subjects at Melbourne Institute of Technology (or, indeed, even attended all of the tutorials), had been refused further enrolment by the institution that he relied upon for the visa, had chosen a cookery course until it became apparent that this would not be sufficient to sustain his visa, and maintains that he has a Bachelor degree in his home country. The question was part of a longer exchange where the member says:
Given you failed to complete even 1 semester, even 1 subject of your previous masters course, should I have any confidence that if your visa wasn’t cancelled that you’d genuinely pursue and complete your Bachelor of Business degree?
In response to, the applicant then attempts to tell the Tribunal member that he only wants to study in Australia and did not commit a crime and that he has the knowledge of a Bachelors degree which is why he thinks he can do a Bachelors degree in Australia. The applicant is clearly approaching the interview on the basis of mere technical compliance with the Migration Rules, given that he then goes on to explain at the top of p.14:
If I got the refusal before the enrolment finished, then I can start in the July intake. But I got the refusal on 14 August, after that I tried a lot with the education providers but they are not ready to take me back.
This statement appears to refer to the fact that he only attempted to obtain an enrolment in a business course after he received the NOICC and was clearly undermining the claim that he was here primarily to study business accounting, rather than simply undertaking whatever course would sustain a visa to enable him to remain in Australia. In the context of this case, I am not persuaded that this is either scandalous or judgmental, but rather is a genuine inquiry by the Tribunal member in order to ascertain whether or not the applicant is, in fact, a genuine student.
Point (q)
In this particular, the applicant complains that the Tribunal member asserted that the applicant was granted a visa to complete a Master of Professional Accounting, saying that the visa was granted to enable the applicant to study because he met the criteria for the visa. It is said the Applicant was entitled if he wished to change to other eligible courses within Australia. It is also alleged there was nothing requiring him to achieve success in his study. These are all matters that go to whether or not an applicant is a genuine student.
Ultimately, I am persuaded that the attitude of the Tribunal member as displayed at the hearing demonstrated a strong preliminary view as the matter was heard. However, such a disposition of the Tribunal member was almost inevitable on the basic facts and circumstances of the case and certainly on the answers given by the applicant. That the probing questions continued rather than simply allowing the applicant to say whatever he wanted and then ending the hearing shows the member continued to seek out evidence to inform the decision, not that he had a closed mind Whilst the member’s approach, and specific references to the possible findings that the applicant could make, could well be characterised as somewhat overbearing, and are certainly of a style that it would be preferable to avoid, I am not ultimately persuaded that the applicant has established that the test for apprehended bias has been made out. In these circumstances, I therefore dismiss grounds 1 and 2.
Ground 3
At the hearing, ground 3 was not pursued by the applicant.
Ground 4
In ground 4, the applicant alleges that the Tribunal erred in failing to comply with Direction 53 – assessing the genuine temporary entry criteria for student visa applications, issued on 3 November 2011 by the then Minister, the Honourable Chris Bowen, pursuant to s.499 of the Migration Act1958. That Direction was made in accordance with the relevant provision of the Act, and as a result the Tribunal was bound to comply with the Direction: see Minister for Immigration and Citizenship v Anochie [2012] 209 FCR 497 at [24] – [27].
The Direction sets out that it applies to delegates performing functions or exercising powers “under s.65 of the Act in relation to assessing the genuine temporary entrant criteria at Schedule 2 to the Migration Regulations 1994 (“the Regulations”) for student visa applications.” The Direction goes on to confirm that it also applies to members of the Tribunals when reviewing decisions of delegates. The relevant criteria addressed by the Direction “must be satisfied by all applicants who make an application for a Class TU (Student Temporary) visa on or after 5 November 2011” (save for some limited exceptions that do not apply in this case). In the interpretation section of the document, the term “genuine temporary entrant criteria” is said to refer to various clauses of Schedule 2 from cl.570.223 through to cl.576.325A. The Direction is clearly addressed at decision making at the point of determining whether or not the person satisfies the relevant visa clause when a visa is being issued.
In this case, the relevant legislative power relied upon by the Tribunal member is set out in s.116 of the Act, which provides as follows:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or
(aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or
(b) its holder has not complied with a condition of the visa; or
(c) another person required to comply with a condition of the visa has not complied with that condition; or
(d) if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals; or
(f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or
(fa) in the case of a student visa:
(i) its holder is not, or is likely not to be, a genuine student; or
(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
(g) a prescribed ground for cancelling a visa applies to the holder.
(1AA) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity.
(1AB) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:
(a) incorrect information was given, by or on behalf of the person who holds the current visa, to:
(i) an officer; or
(ii) an authorised system; or
(iii) the Minister; or
(iv) any other person, or a tribunal, performing a function or purpose under this Act; or
(v) any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and
(b) the incorrect information was taken into account in, or in connection with, making:
(i) a decision that enabled the person to make a valid application for a visa; or
(ii) a decision to grant a visa to the person; and
(c) the giving of the incorrect information is not covered by Subdivision C.
This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.
(1AC) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:
(a) a benefit was asked for or received by, or on behalf of, the person (the visa holder) who holds the current visa from another person in return for the occurrence of a sponsorship-related event; or
(b) a benefit was offered or provided by, or on behalf of, the person (the visa holder) who holds the current visa to another person in return for the occurrence of a sponsorship-related event.
(1AD) Subsection (1AC) applies:
(a) whether or not the visa holder held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and
(b) whether or not the sponsorship-related event relates to the current visa or any previous visa that the visa holder held; and
(c) whether or not the sponsorship-related event occurred.
(1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
(2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
(4) In this section:
“benefit” has a meaning affected by section 245AQ
“sponsorship-related event” has the meaning given by section 245AQ
In the early part of the decision (paras.7 to 13), the Tribunal member is satisfied that the applicant failed to comply with condition 8516 of the visa, in that he did not maintain enrolment in a higher degree course after 29 July 2014 until late September 2014. As a result, the Tribunal member concluded that there was a ground for cancellation as set out in s.116(1)(b), but as it was not a mandatory cancellation ground the Tribunal had to go on to consider whether or not the power to cancel the visa should be exercised. Section 116 does not go on to provide a mandatory list of considerations or criteria for the cancellation of a visa.
The applicant argues that the Tribunal was obliged to comply with Direction 53 in order to make its finding that the applicant “did not, and does not, genuinely intend to be a student in Australia for the purpose of achieving academic qualifications for a future vocation or career” (see para.29) or “does not accept that the applicant genuinely intends to successfully complete such a degree in Australia” (see para.30).
The applicant argued that the “Anthony Horden Principle” recently referred to Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] 253 CLR 219 would apply and that therefore if the Tribunal member failed to comply with Direction 53 in making this decision then the Tribunal had erred in law. There are two questions that arise from this claim; firstly, whether or not the Tribunal member was required to apply Direction 53 in this decision, and secondly, if this was required, whether the Tribunal member fulfilled that requirement.
The principle, as expressed by Dixon J in R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550, is that “an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely that the same matter is not to be done according to some other course.” In Plaintiff S4/2014 v, the High Court considered the interpretation of s.46A of the Act, which prohibited an unauthorised maritime arrival from making any valid visa application, save for exercise of the powers in s.46A sub.ss.(2) to (7) to permit a person to make a valid application for a visa, and its interaction with the power given in s.195A(2) for the Minister to grant a visa whether or not the person has applied for a visa. The Minister granted visas under s.195A(2) of a “temporary safe haven” category and a “temporary humanitarian concern” category, which prevented the applicants from applying for any other form of visa. In effect, the grant of these visas under s.195A circumvented the operation of s.46A. If the powers in s.46A sub.ss.(2) to(7) had been exercised in the applicant’s favour, they would have been able to apply for a different category of visa. Whilst the process under s.46A sub.ss.(2) to (7) was pending, the applicants had been held in detention. In these circumstances, the High Court concluded that because the visas granted under s195A limited the plaintiff in making a valid application for another class of visa (see para.50), this created an intersection between the operation of the two sections and that in the circumstances of the case the s.195A was inconsistent with the exercise of the s.46A power which prolonged the period of detention.
In this case, it is difficult to see a similar level of intersection between the operation of s.65, which provides for the grant of visas, and the relevant part of s.116, which provides for a discretion to overturn a cancellation after a visa condition has been breached. The issue in this case is not whether the applicant had breached the visa, but whether or not a general discretion should be exercised not to cancel a visa, conditions of which the applicant had already breached. In these circumstances, the Tribunal is not limited to the matters set out in the visa criteria, but can take into account any other relevant facts or circumstances. Indeed, so broad is the operation of s.116 that it would be inappropriate to attempt to circumscribe the matters that would be relevant under the section, as it may well differ from case to case (although this is not to say that there may not be useful lists of matters that are generally relevant that could be compiled). In these circumstances, I am not persuaded that the so-called “Anthony Horden Principle” would apply with respect to the operation of Direction 53 and the operation of the general discretion under s.116(3). A more difficult question will arise if the breach of the visa conditions relied upon is a claim that the visa holder is no longer satisfying the genuine temporary entrant criteria as Direction 53 now appears to be, in substance, the relevant part of the legal definition of the genuine temporary entrant criteria. That is not the circumstances that this case presents and therefore it is not appropriate to express a view about the operation of Direction 53 with respect to grounds for cancellation under s.116(1).
Turning to the question of whether or not the criteria in Direction 53 have been complied with in any event (in the event that my views with respect to the operation of Direction 53 in the context of s.116(3) are wrong), I note that the Direction states that it is not to be used as a “checklist”, but rather a guide (see cl.1), which appears to me indicates that the decision maker does not need to refer to each clause of Direction 53 in the course of the reasons, but simply discuss the relevant facts and circumstances relating to the various clauses set out therein. In paragraphs [25] and [28], the member considered the matters that would be relevant in the facts and circumstances of this case, the applicant’s circumstances in his home country, and potential circumstances in Australia (as required by cl.6), and similarly the value of the course for the applicant’s future (as required by cl.7). In paragraphs [28] to [29], the applicant does not particularise facts and circumstances that fell within the various criteria in Direction 53 that had not been touched upon by the Tribunal member in this case. For the applicant to succeed, it appears that the applicant would have to rely upon the fact that the Tribunal member did not recite each of the relevant parts of Direction 53 as a checklist identifying whether or not there was any evidence bearing upon such matters. As was set out by the Court in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 (per Stone, Foster and Nicholas JJ), with respect to a similar checklist, not all of the matters will be central or fundamental to every case (see [62]). As the court went on to explain at [69], it is not essential for a Tribunal to “compartmentalise its reasons and to set out those reasons by reference to each criterion specified…. That may be a convenient and appropriate method for the Tribunal to adopt in many cases but it is not the only way for the Tribunal to demonstrate that it has had regard to all of the mandatory criteria specified....” Whether or not a decision maker has had regard to all of the criteria is a question of fact that must be undertaken by a review of the decision maker’s reasons (see para.71).
In the circumstances of this case, I am not persuaded that the Tribunal member failed to have regard to all the relevant facts and circumstances that would fall within Direction 53 in any event.
Proposed ground 5
It is argued that the Tribunal ought to have reached a state of mind to require an interpreter as required by s.366C(3) of the Act, which is in the following terms:
If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection (1).
In this case, the applicant did not request an interpreter, nor did his advisor. When reading the transcript as a whole, it is difficult not to gain the impression that the applicant’s difficulties lay in the fact that he did not have good answers to the difficult questions that he confronted, rather than a difficulty properly understanding the questions. It appears that the applicant did have sufficient understanding of English, as demonstrated in the transcript, to be able to have a fair hearing. I also note that the applicant has not sought to put on evidence swearing to the claim that he did not have an appropriate understanding of English (and, indeed, it would be difficult for him to do so as this would tell against him having the capacity to undertake University level studies in English in Australia). In the circumstances, I therefore find that this ground cannot be made out. As a consequence, I do not give leave to raise this ground at the hearing.
Proposed ground 6
In proposed ground 6, the applicant complained that the Tribunal had failed to make an obvious inquiry, namely, obtaining the Statement of Purpose which the applicant had provided to the Department at an earlier stage. The applicant relies upon the statements of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 where the Court said:
25. Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction35. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
It is clear that such circumstances would need to be unusual or exceptional, not in the technical sense but in the sense that it would be an uncommon situation where a Tribunal’s failure to make an inquiry would amount to an error. This is because it is usually open to the applicant to provide material. The document in question here was generated by the applicant, and at best would amount to a previous consistent statement of the applicant. I am not persuaded that this is a document of such significance that the Tribunal should be found to have erred by failing to obtain it from the Department. Nor is it a document that was not reasonably available to the applicant to place before the Tribunal had he chosen to do so either directly or by his migration agent. In the circumstances, I am persuaded that the applicant cannot succeed on this point and, therefore, I do not give leave to raise this ground.
As I have not been persuaded that the applicant has established a ground for judicial review, I therefore dismiss the application.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 10 March 2017
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