Shine and Anor v Minister for Immigration and Anor (No.2)
[2020] FCCA 2808
•20 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHINE & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 2808 |
| Catchwords: MIGRATION – Show cause hearing – applicable principles – Temporary Graduate visa – show cause hearing – where applicant failed to provide valid English test score within three year time limit – where applicant submits renewed English score after visa application submitted – where applicant submits breach of natural justice – where applicant submits breach of procedural fairness – where evidence demonstrates that IELTS results signed and issued within three years of the date of submission of the visa application – where hearing record indicates totally duration of hearing was eight minutes – where applicant deposes that Tribunal conducts a ‘group’ hearing and had limited opportunity to make submissions – applicant’s evidence provides basis for conclusion that two grounds are sufficiently arguable as to warrant the application being adjourned for final hearing and for Minister to show cause why relief ought not be granted. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss 67, 68 Migration Act 1958 (Cth), ss 65, 359A, 360A, 362B, 476 Migration Regulations 1994 (Cth), cl 485.211, 485.212 Federal Circuit Court Rules 2001 (Cth), r 44.12, 44.13 |
| Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593 MZARG v Minister for Immigration and Border Protection[2018] FCA 624 Upaid Systems Ltd v Telstra Corporation Limited (2016) 122 IPR 190 VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 |
| First Applicant: | SEELIYA PUTHENPURACKAL SHINE |
| Second Applicant: | JOHN SHINE |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2114 of 2018 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 14 October 2020 |
| Date of Last Submission: | 14 October 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 20 October 2020 |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | In person |
| Solicitor advocate for the First Respondent: | Ms K. Wittemore |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court via audio and video link.
Pursuant to r 44(1)(b) of the Federal Circuit Court Rules 2001, the application dated 20 July 2018 be adjourned for final hearing at 10:00 am on Wednesday, 20 February 2021.
The first respondent show cause at the final hearing why an order for the relief claimed should not be made.
Pursuant to Rule 12.02 of the Federal Circuit Court Rules 2001, a referral certificate issue for the provision of legal assistance to the applicants.
By 4.00pm on Monday, 30 November 2020, the applicants file and serve any amended application as they may be advised.
By 4.00pm on Monday, 14 December 2020, the first respondent file a response to any such amended application.
By 4.00pm on Monday, 5 February 2021, the applicant’s file and serve any further submissions and affidavits upon which they may rely.
By 4.00pm on Monday, 15 February 2021, the first respondent file and serve any further submissions and affidavits upon which he may rely.
The costs of this day are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2114 of 2018
| SEELIYA PUTHENPURACKAL SHINE |
First Applicant
| JOHN SHINE |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from ex tempore reasons)
Introduction
By application dated 20 July 2018, the applicants seek judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 21 June 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant the first applicant a Temporary Graduate (Class VC) (Subclass 485) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act). The Tribunal also affirmed a decision of the Minister respecting the second applicant (being the first applicant’s husband), that he did not satisfy a criterion that he was ‘a member of the family unit of a person who holds a Subclass 485 visa’. His application for a Temporary Graduate (Class VC) (Graduate Work) subclass 485 (Skilled – Graduate) visa was therefore, also refused.
In substance, the Tribunal determined adversely to the first applicant that, contrary to the requirements of cl 485.212 of the Migration Regulations 1994 (Cth), the application was not accompanied by evidence that within three years before the date of lodging the application, the first applicant had undertaken a language test as required by the applicable Ministerial instrument, IMMI 15/062. The visa application was made on 25 August 2017 and it was said that the relevant test was sat on 16 August 2014. Before the Tribunal, the first applicant agreed that she had sat the requisite English language test outside the period of 36 months before the date on which her application was lodged. As the first applicant could not satisfy the primary criteria for the visa, as secondary applicant, the second applicant could also not meet the requisite criteria. It is common ground that the IELTS test result was issued by the administrator of the IELTS test on 27 August 2014.
In the view which was taken of the matter, the test results were out of time by a matter of days, and, as a result, if relying upon those test results, the applicant could not satisfy an essential criterion under cl 485.212 of the regulations for her primary visa. Equally, it is common ground that the applicant has now satisfied the English test requirements and in her submissions before me, I was in no doubt that the applicant had a fluency in speaking, writing and comprehending the English language in a manner that outpaced the capacity of many self-represented litigants in this Court. However, the materials in the Court book also indicate that the IELTS test results bear an administrator’s signature and were issued 27 August 2014. The date on which the test results were issued appears to be within the three year window prescribed by the regulations. The test results obtained in 2018 were irrelevant.
In summary, I have concluded that the first ground of review by which the applicants contended that the Tribunal’s decision was affected (by bias) is not made out. As concerns Grounds 2-3, I am persuaded that the first applicant has raised an arguable case for relief. Further that, in the exercise of the residual discretion vested in the Court, the application should be adjourned for final hearing and that the Minister should show cause why an order for the relief claimed should not be made.
Background
The applicants, who are both Indian citizens aged 32 years, were married on 17 November 2011.
The first applicant (applicant) applied for her visa on 25 August 2017. She is a registered nurse by profession and holds a post tertiary Masters in Public Health. The second applicant joined in the application as a member of the primary visa applicant’s family unit. Further, it also appears that the applicants have two children who are described in the materials as non-accompanying members of their family unit.
On 10 October 2017, the Minister refused to grant the visa applications finding that the first applicant did not meet the English language proficiency requirements under cl 485.212(a) of the regulations as she had not undertaken a prescribed English language test within the three years immediately before the day the visa application was made. The delegate also found that the applicant had erroneously answered ‘Yes’ to the question ‘Have you undertaken an English test within the last 36 months?’ If that answer was erroneous, it hardly seemed fatal.
The delegate found that as the criteria in reg 485.212(a)(ii) had not been satisfied, the visa could not be granted.
On 29 October 2017, the applicants applied to the Tribunal for a review of the delegate’s decision. The applicants were invited by the Tribunal to a hearing at which they could adduce evidence and submissions in support of their applications. While the matter had originally been listed for hearing on 4 April 2018, the first applicant sought a postponement of the hearing as she was ‘currently in India to drop my kids with my parents as they were not included in my visa application thanks to misleading information’. The reasons why the applicant considered that misleading information had been provided or why her children had not been included as secondary applicants to her primary visa application were not explored. However, in practical terms, the result has been that the applicant and her husband have been separated from their children for some time and they are now and remain in the care of their maternal grandparents in India.
The hearing was re-scheduled for 15 June 2018. The applicants attended that hearing without the assistance of a representative or an interpreter. The applicants filed a number of documents in support of the application.
A month before the re-scheduled hearing, on 18 May 2018, the first applicant provided various supporting materials, including results for a new IELTS test which she had undertaken on 11 February 2018. Those results had been issued on 8 March 2018. The first applicant achieved a B result in each of listening, reading, writing and speaking. The code provided for the test results indicated that a B grade indicated a “High level of performance; i.e., able to using (sic) this with fluency and accuracy adequate for professional needs.”
On 15 June 2018, the applicants attended the hearing without an interpreter or representative. From the hearing record it appears that the merits review by the Tribunal involved a hearing which commenced at 10:07am. and adjourned at 10:13am., before resuming at 10:48am. and closing at 10:50am. The evidence before this Court also suggests, somewhat curiously, that the Tribunal conducted a “group hearing and was very short in time.” As to this, I was informed by the solicitor-advocate for the Minister that the Tribunal’s powers are very wide and that the conduct of group hearings is not uncommon.
Although the applicants were self-represented before me, as indeed they were when filing their application for judicial review, on one view, the hearing was of approximately eight minutes duration. While the grounds of review had been drafted by the applicants, the duration of the hearing may leave open a question whether the merits of the application had been given genuine consideration in all the circumstances, particularly in a group hearing. At present, no consideration has been given to the Tribunal’s authority to conduct a group hearing, if indeed that is what occurred. There is also no transcript of the hearing before the Court.
Tribunal’s decision
On 21 June 2018, the Tribunal affirmed the decision under review and provided a statement of its reasons for that decision (Reasons).
As the Tribunal found, the only issue before it was whether the applicant satisfied cl 485.212(a) of the regulations by achieving the requisite score in a specified English language test undertaken in the three years prior to the day she made her visa application on 25 August 2017: [7]-[8].
In substance, the Tribunal reasoned that the ‘the applicant conceded that she had not undertaken a specific English language test in the 36 months before the date on which her visa application was lodged’; and that ‘[a]ccordingly the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).’
It therefore followed that ‘the secondary applicant cannot meet the criteria for a Subclass 485 visa as the member of the family unit of a person who has satisfied the primary criteria. The Tribunal therefore affirms the decision under review in relation to the secondary applicant.’
The Tribunal had regard to IMMI 15/062, a Ministerial instrument which specifies what IELTS test results are acceptable for the purposes of cl 485.212(a) of the regulations. The Tribunal had regard to the applicant’s evidence provided to the Department that she had undertaken an IELTS test on 16 August 2014, outside of the three year window required by IMMI 15/062, and her concession before it that she had not undertaken a specified English language test in the three years before the date on which her visa application was lodged: [9]-[10].
The Tribunal found that the applicant did not meet cl. 485.212(a) of the regulations and that the secondary applicant was not a member of the same family unit as a person who satisfied the primary criteria: [11]-[12]. The Tribunal affirmed the decision under review: [13]-[14].
The Tribunal took the view that it had no option but to confirm the delegate’s decision to refuse the primary and secondary visa applications.
Procedural history
On 20 July 2018, the applicants filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the first applicant to which she exhibited a copy of the Reasons and adduced some further evidence that is set out below. By their application, they indicated that no interpreter was required.
On 24 August 2018, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision was not affected by jurisdictional error and that the application invited a merits review of the Tribunal’s decision.
On 10 December 2019, orders were made, by consent, vacating a directions hearing listed on 11 December 2019. An order was made, again by consent, that the application be listed for a show cause hearing pursuant to r. 44.12 of the Federal Circuit Court Rules 2001 (Cth) (‘Rules’). Orders were made affording the applicants opportunities to file any amended application, affidavits and submissions. Despite those opportunities, no amended application, submissions or evidence was filed before the hearing scheduled on 15 September 2020.
In the circumstances, the submissions filed on behalf of the Minister were responsive to the matters set out in the application.
When the matter was called on for hearing on 15 September 2020, the first applicant appeared and sought an adjournment. This application was granted and the matter made returnable this day: see Shine & Anor v Minister for Immigration & Anor [2020] FCCA 2807.
On 8 October 2020, the applicant filed an affidavit which took the form of submissions and which I have considered.
Show cause hearing
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: Act, s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: Act, s 476(2).
Rule 44.12(1) of the Rules confers power on the Court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief.
The course which the Court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). In seeking to satisfy the Court that there is an arguable case, the applicants are confined to the relief sought and the grounds mentioned in the application for judicial review: r 44.13(1). If the Court is not so satisfied, it may dismiss the application: r 44.12.
An order under r 44.12(1) is an interlocutory order: r 44.12(2).
The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal.[1] As the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled.[2]
[1] MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6, [10] (Smith J).
[2] Spencer v The Commonwealth (2010) 241 CLR 118.
Caution must be exercised when considering whether to grant summary judgment. Such caution is equally appropriate upon the determination of a show cause hearing. The power to grant summary judgment is expressed in permissive terms; the Court may give judgment and may order that it be dismissed generally or in relation to any claim.
Critically, in the case of summary judgment, the power is not engaged unless the Court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding. So too, the power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the Court that an arguable case for relief has been raised.
In Upaid Systems Ltd v Telstra Corporation Limited,[3] Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra, stated a series of further propositions, including the following:
(a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
(b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
(c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;
(d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;
Those propositions were endorsed in Nichol v Discovery Africa Ltd.[4]
[3] [2016] FCAFC 158, 122 IPR 190, [46]-[49].
[4] [2016] FCAFC 182, [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).
In SZUTB v Minister for Immigration & Border Protection, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application.[5] In Siddique v Minister for Immigration and Border Protection,[6] Gilmour J explained in Siddique, it would be “wrong for the Court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed, the application should necessarily be dismissed.” That is, the residual discretion remains to be considered.
[5] (2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J)
[6] [2014] FCA 1352, [21].
I apply those principles in determining this show cause application.
Consideration
As the applicants had not taken the opportunity to file any amended application, submissions or supplementary Court book, the Minister and in turn the Court were left to discern the existence of jurisdictional error from the three grounds of review which are devoid of particulars. InWZAVW v Minister for Immigration and Border Protection,[7] Gilmour J said:
. . . an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed.
[7] [2016] FCA 760, [35] (citations omitted); see also MZARG v Minister for Immigration and Border Protection[2018] FCA 624, [25], (McKerracher J).
Although the application was open to dismissal on that basis, I have considered for myself the reasons of the Tribunal and the materials comprised in the Court Book. However, a show cause hearing is to be determined on the basis that the applicants are confined to the relief sought and the grounds stated in the application for judicial review.[8] In this context, it is not insignificant that in December 2019 the parties agreed in consent orders which afforded the applicants an opportunity to file any amended application which properly particularised their grounds together with any submissions and evidence on which they relied.
[8] Rules, r 44.13(1).
The first applicant’s initial affidavit deposed as follows:
I have applied for a Temporary Graduate (PSW) subclass 485 visa extension on (sic) dated 25/08/2017 which was refused on the basis of not fulfilling the Criteria of cl 485.212 which required that the applicant (sic) was accompanied by evidence of English test as per the recommendations of the Ministerial instrument. I have supplied the IELTS result which I completed on 16/08/2014 and I lodged the visa application on 25/08/2017 that three years later than the date of test of IETS supplied with the application.
Further I applied for the Administrative Appeals Tribunal and provided my new results to reconsider my case which was also affirmed on the same grounds which the case officer applied to my application.
I am now putting forth my application in the [Court] to review the decision of the AAT and the Case officer to refuse my [visa] on the basis of not satisfying the criteria of cl. 485.212. I did not noticed (sic) during the visa application that my IELTS was not valid as I thought it was under the three year time. And I attach the document with my application. I have declared the facts in my visa application that I sat for the test on 16/08/2014 and the Test reference no was 14INO25748PUTS001A. I did not hide any information from the Department of Home Affairs and the AAT. I was not aware about the three years time. But by mistake I did wrong calculation and attached the expired ILETS Test result. After the refusal they came to know about the blunder I made and are provided my new test done on 11/11/2017 to the AAT which was not considered by them. Now I am putting forth my plea to your honourable office to give me some natural justice by accepting my new English test result and consider my application for Skilled Graduate Temporary visa.
I would like to request the [Court] to give me justice as the decision made by the case officer and the AAT are unfair to me as I have provided the facts and correct information. I did not hide anything from them. I have studied in Australia as most of the applicant’s dude to get this visa. I have satisfied all the other criteria of the mentioned subclass. I applied for just the English test I submitted was my fault and I accepted my fault and provided a new valid test which according to the cl 485.212. Kindly give me a chance and approve my case so that I can stay further in Australia to gain some practical knowledge in my field of study.
Following the adjournment of the original hearing, on 8 October 2020, the applicant made a further affidavit in which she deposed as follows:
I would like to inform the Hon. Court that at the time of the application I held a valid IELTS test result. At the start of visa application, on page 1 of Court book, the language requirement is explained as holding a current passport of some countries or you have undertaken an English language test within last 36 months that demonstrates you have met the English language requirements and the applicant answer is yes.
At the end of the same application, on Court book page 13, the details of the IELTS results are entered in the application system accepted the details. Which means I held a valid IELTS test result till end of that visa application.
The application system is able to identify information as soon information is entered into the system. Because the same application identified that two of my children, who are listed as non-accompanying members of family unit on Court book page 5 and 6, did not hold a valid visa to include in this application. This proves that application system is able to identify information as soon as the information is entered into the system. This shows that the application system accepted my IELTS test results because they were valid according to the system at that point of time. This shows that I held the valid test results till the end of the application.
The application question required me to have English language taken within last 36 months of my application and does not insist at the time of my application submitted in contrast to cl. 485.212(4).
According to cl. 485.212(4) English language tests must have been undertaken within the three years before the day on which the application was made. But the application for the visa does not clearly state the same criteria as it is (Court book page 3). The application question is framed in such a way that doesn’t explain or point out there is such a legal instrument (sic) is available for the applicant to refer. Also, the Hon. Court to notice that the original phrase from cl. 485.212 ‘within the three years before the day on which the application was made’ is very important to understand how the test result is accepted.
Instead of explaining or referring [to] cl. 485.212 in the visa application, it is paraphrased as meeting English language requirement. If the visa application might have referred this clause or the application clearly stated, the ‘three years before the day on which application made’ I may not have committed this mistake. As a result of this mistake I held a bridging visa since then which failed me many times in securing a job related to my master’s degree and left my kids separated from their parents since March 2018.
Another argument I would like to present to the Hon. Court is that per cl. 485.212(2) English language tests must be completed in a single sitting an exception to single sitting tests are not explained anywhere. When considering IELTS tests are delivered as to different parts on two different days. One written exam where candidate attends a three hour long exam which includes reading, listening and writing modules. The second part is speaking test in which the candidate attends a speaking test, a 15 min conversation with the examiner. Speaking test is conducted seven days prior [to] or after the written exam. Website information is attached ( So, when date of test from IELTS test report form is considered it considers only some parts of tests. Because the speaking date is not available on test report form. The speaking test is only for 15 minutes it is as important as the written test because the speaking test itself stands for one of four components of the entire test. Also, candidate will not receive a test result form if the candidate fails to attend the speaking test. Hence appropriate date to be considered to determine the validity of IELTS test is the date of the test results not the date of written test.
I completed my written exam on 16/08/2014 and I completed my speaking test on next week and received test results on 27/08/2014. I tried to retrieve that information but IELTS confirmed that this information is archived as they are older than two years.
I would like to inform the Hon. Court that because I am aware that I attended my test on two different dates and to my knowledge IELTS test results are still valid I submitted my application before my date of test result expires. I submitted my application on 25/08/2014, two days prior to my test results expire.
I, also, would like to notify the Hon Court that the visa application didn’t clearly state that which date is accepted as a valid date on their application form either date of test or date of test results. I assumed that Department is aware how IELTS test is conducted and also aware that there are two dates on the test result form.
Unlike IELTS, other English language tests like PTE and OET conduct all four components of test on the same day. Booking details of my PTE and OET tests are attached for reference.
At AAT, I could not explain all these as AAT hearing was a group hearing and was very short in time.
To conclude, I, hereby, would like to inform the Hon. Court that I held a valid IELTS result throughout my application and I submitted my visa application before my test results expire. But incompatible paraphrasing of cl 485.212 in visa application and invalid acceptance of the date of the test by the case officer led to my visa refusal. So, kindly accept my arguments and advise Department to reconsider my application. (Emphasis added)
Insofar as the applicant’s affidavit and grounds of review may be understood as seeking a review of the delegate’s decision, it is clear that this Court has no jurisdiction to do so.[9] Equally, the applicant’s affidavit made on 8 October 2020 seeks to demonstrate that her IELTS test results had been issued on 27 August 2014, that is, within three years of the date upon which her visa application was lodged; namely, 25 August 2017. In making that observation I do not ignore the Minister’s submission that the critical date is the date on which the test had been sat.
[9] Act, par 476(2)(b).
Ground 1 – Bias
Ground 1 reads:
The decision made by the AAT and Case officer is biased in nature and I feel that I was not provided procedural fairness as the Tribunal did not recognised (sic) the evidences and facts presented during the hearing time. The applicants were denied a true opportunity to present the evidence to the AAT.
In substance, the applicant contend that both the Tribunal member and the case officer held a bias against the applicant, and that this resulted in a breach of procedural fairness. And that further, the applicant was denied a true opportunity to present the evidence to the Tribunal.
Nothing in the affidavit sworn by the first applicant on either 20 July 2018 (which was filed with the application), or the affidavit of 8 October 2020 contained any suggestion of bias. While it was not suggested that any complaint of bias was made to the Tribunal, equally, I recognise that the applicants were self-represented.
It was submitted that the applicants’ contention they were ‘denied a true opportunity to present the evidence to the AAT’ was contrary to the applicant’s submission via email on 18 May 2018 to the AAT National Registry Mailbox of the two new English test certificates (IELTS & OET) and to their attendance where the applicant was afforded an opportunity to give oral evidence.
Resolution
Although the applicant was self-represented, I note that the affidavits in support of her application contained no suggestion of bias and that no claim of that kind was made before the Tribunal itself.
Bias is a serious claim which must be firmly and distinctly made and clearly proven.[10] The applicants provided no evidence to suggest that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter.[11]
[10] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531.
[11] Ibid at [35], [72].
Further, in order to establish apprehended bias on the part of the Tribunal, the applicants must show evidence to support an assertion that a fair minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on the decision.[12] No inference of bias or prejudgment can be drawn from the mere fact that the Tribunal in this matter made findings adverse to the applicants in its reasons.[13] The claim of bias is without merit.
[12] ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, [35]-[36].
[13] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102, [21].
I am not satisfied that Ground 2 is sufficiently arguable.
Ground 2 – Natural justice
Ground 2 reads:
I feel that the natural justice was denied to me as my application was decided without giving me any opportunity to comment on even during the time of refusal of my visa application.
The Minister contended that to the extent that the applicant alleged that the Tribunal breached its procedural fairness obligations under Part 5, Div 5 of the Act, such an assertion could not be made out. In support of that contention, reliance was placed upon the circumstance that the applicant attended a hearing before the Tribunal after being invited to do so. The hearing invitation complied with the requirements in s 360A of the Act: it gave notice of the day, time and place of the hearing; was transmitted by email to the email address provided to the Tribunal by the applicants in connection with the review; complied with the prescribed notice period; and contained a statement to the effect of s 362B of the Act. Contrary to the applicant’s allegation in Ground 2, it was submitted to be apparent from the Tribunal’s reasons that the applicant was afforded the opportunity to give evidence to the Tribunal. The applicants were also on notice from the delegate’s decision and, it was said, the Tribunal’s questioning of the first applicant at hearing, was that the dispositive issue on review would be whether she met the English language requirements under cl 485.212(a).[14] No breach of s 360A has occurred.
[14] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [37].
It was further submitted that there was not any “information” that was required to be put to the applicant for comment pursuant to s 359A of the Act. The only information relied upon by the Tribunal in reaching its decision was the applicant’s written material provided to the Department and oral evidence at hearing, which fell within the exceptions to s 359A at par 359A(4)(ba) and par 359A(4)(b) of the Act respectively. No breach of s 359A has occurred.
Resolution
Despite those conclusions, in my view, there is some evidence that the complaint of want of natural justice is reasonably arguable. Apart from the suggestion that there had been a “group hearing”, the Tribunal’s hearing record indicates that the total time occupied for this “hearing” was of eight minutes duration. The applicant’s submission that she had been denied an opportunity to explain the issues is, at the least, arguable.
I am satisfied that Ground 2 is sufficiently arguable.
Ground 3 – Failure to consider material
Ground 3 reads:
AAT failed to determine that the applicant failed to satisfying the criteria of cl.485.212(a) or cl.485.212(b) as the new required English test was provided during the hearing time.
The applicant contends that the Tribunal failed to consider the English test that was provided during the hearing.
Resolution
As noted above, on 18 May 2018, the applicant provided to the Tribunal various supporting materials, including a new IELTS test undertaken on 11 November 2017 and the results of an Occupational English Test, undertaken on 11 February 2018. Whilst the Tribunal does not explicitly refer to either test in its reasons, I agree in the Minister’s submission that in the circumstances, neither test assisted the applicant in meeting the requirements of cl 485.212(a) as both were undertaken after the visa application had been lodged. There was no error in the Tribunal failing to expressly refer to these tests in its Reasons. Those test results were not relevant. It was unnecessary for the Tribunal to do so in circumstances where they could have made no difference to its finding, based on the applicant’s own evidence before it, that she did not meet cl 485.212(a).[15]
[15] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [46].
Despite the submissions made on behalf of the Minister above, I am satisfied that it is reasonably arguable there were relevant and cogent pieces of evidence that were central to the applicant’s claims which warranted more detailed consideration. In particular, as the applicant’s affidavit made on 8 October 2020 indicates, it would appear the applicant’s IELTS test was conducted not on a single day, but over two days, and that while at least one of the tests had been conducted on 16 August 2014, the test results were not issued, and satisfactory completion attained until 27 August 2014. Again, I do not ignore the Minister’s submission as to the relevant date.
Upon the principles considered above, for the purposes of satisfying the threshold for a show cause hearing under rule 44.12 of the rules, I am satisfied that the applicant has raised an arguable case for relief and that the Minister should show cause at a final hearing why an order for the relief claimed should not be made. As the Minister’s submissions implicitly accepted, and indeed, as is self-evident, the Tribunal’s reasons were notable for their brevity. It is at least arguable that the Tribunal’s findings may be tainted by jurisdictional error for failure to properly consider all of the applicant’s evidence upon the ‘merits review’ which it was obliged to undertake.
I am also satisfied that Ground 3 is sufficiently arguable.
Conclusion
For the reasons above, the applicants have persuaded me that an arguable basis could be made out for demonstrating that the decision of the Tribunal was affected by jurisdictional error. I am also otherwise persuaded that the Court should exercise its residual discretion to allow the matter to go forward.
Further, I consider it appropriate to issue a certificate pursuant to rule 12.02(1) of the rules referring the applicants for the assistance of pro bono counsel. The Court will make orders for the application to be adjourned for a final hearing and provide directions affording the parties opportunities to amend their application and response respectively as they may be advised, and to file submissions for that hearing.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 20 October 2020
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