Singh v Minister for Home Affairs and Anor
[2020] FCCA 1978
•10 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 1978 |
| Catchwords: MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.359AA Migration Regulations 1994 (Cth), cl.500.212 |
| Cases cited: Ebner v Official Trustee in Bankruptcy [2000] 205 CLR 337 Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 |
| Applicant: | RANJODH SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 173 of 2019 |
| Judgment of: | Judge Vasta |
| Hearing date: | 10 June 2020 |
| Date of Last Submission: | 10 June 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 10 June 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Guru |
| Counsel for the First Respondent: | Mr P. Nolan |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
That the Application filed 21 February 2019 is dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.
IT IS NOTED:
A. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
No. BRG 173 of 2019
| RANJODH SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
On 18 January 2019 the Administrative Appeals Tribunal (“the Tribunal”) affirmed a decision not to grant the Applicant, Mr Ranjodh Singh, a student visa. That oral decision was made at 12.31 pm on that date. The Tribunal put its reasons in writing on 24 January 2019 at 10.14 am. On 21 February 2019 the Applicant asked this Court to review that decision.
The background of the matter is this: the Applicant is a citizen of India. He arrived in Australia in July 2014 under a subclass 573 student visa. During the time that he was here under that visa, he undertook study and courses which included a Diploma of Management, a Diploma of Business, an Advanced Diploma of Business and Management and an Advanced Diploma of Leadership and Management. It would seem that most, if not all, of those studies were undertaken at the New England College of Technology.
On 17 February 2017, the Applicant applied for a further student visa. In that application, he proposed that he would undertake a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology. All of those were to be completed at the New England College of Technology.
On 6 April 2017, the delegate declined to grant the Applicant a student visa. The Applicant then requested that the AAT review that decision.
The AAT did not get around to reviewing that decision until 18 January 2019. In that time, the Applicant remained in Australia on a bridging visa and actually continued his studies. The Tribunal noted the education record that is contained in the PRISMS records and also looked at the five-page statement that the Applicant had made to explain his circumstances where it set out his position as to the genuineness of his entry and stay in Australia.
The Tribunal looked at the fact that what the Applicant had done was to complete some courses and then to complete other courses whilst on the bridging visa. The Tribunal noted that the application for the student visa detailed three courses that the Applicant would undertake on that student visa. The Applicant had completed all of those courses bar one, and that course was going to be completed in the next two days – that is, on 20 January 2019 – and the Applicant had already put in all of the material for his assessment.
That, as the Tribunal said, meant that the Applicant would have completed all of the courses for which he sought the student visa.
The Tribunal noted that the Applicant now had enrolled in another course, a Diploma of Automotive Management. This was not a course that he had put down on his original application. And it causes a situation (which the Tribunal noted) that, if the student visa were approved, would mean that the Applicant had a certificate of enrolment in a course that would see him not conclude his studies before 10 April 2020.
The Tribunal asked the Applicant why he needed now to do the additional diploma, the Diploma of Automotive Management, especially when he had not told the department that he planned to undertake this study when he applied for his visa. The Applicant said that there were specific aspects of automotive management which were not covered in his other managerial studies. He told the Tribunal that he would receive some credit for the coursework he had undertaken in his other studies towards that diploma.
The Tribunal noted that there would be some nuances and some differences between an Automotive Management Diploma and a Diploma of Management or an Advanced Diploma of Leadership and Management; the latter two courses which the Applicant had already completed.
But the Tribunal was not persuaded that having completed the Diploma of Management, the Diploma of Business and an Advanced Diploma of Leadership and Management, that the Diploma of Automotive Management, that the Applicant was planning to undertake, would add anything particular to his ability to translate his studies in Australia to a practical outcome on return to his home country in India.
The Tribunal said at paragraph 20:
The reality is that the applicant has managerial qualifications that, whilst they may not specifically relate to the automotive industry, are reasonably extensive and are at the same level of study as those that he now proposes to undertake. It is also of concern to the Tribunal that this was not part of the plan that the applicant proposed at the time of his visa application to the department.
The Tribunal explained that they have to consider whether the Applicant satisfies cl.500.212(a) of the Migration Regulations 1994 (Cth), which is whether he be a genuine Applicant, and must have regard to ministerial direction number 69, which assesses the genuine temporary entrant criteria.
The Tribunal noted that they must have regard to a number of specified factors in relation to the Applicant’s circumstance in his home country, the potential circumstances in Australia and the value of the course to the Applicant’s future. The Tribunal additionally had to consider the Applicant’s immigration history and his previous travel and what he had done in Australia so far.
The Tribunal noted that the Applicant said that he had a deep and longstanding love of cars since his childhood and that is why he wanted to complete the Diploma of Automotive Management, and that he intended to return to India and open his own auto mechanic repair business. The Applicant told the Tribunal that he has land that he would be able to acquire once he returns to India and that he plans to return to India during his study break before his new course commenced in April 2019. He said that he is not ready and able to open the automotive shop at this point.
The Tribunal said that they placed little weight on those assertions because they do not accept that it was necessary, having completed a range of managerial qualifications, for the Applicant to stay in Australia longer to do a further managerial course. The Tribunal was of the view that the Applicant has already satisfied his purpose for being in Australia from a study perspective as he had told the department when he applied for his student visa, the one that the Tribunal was now considering.
The Tribunal had regard to the Applicant’s home ties and the fact that the Applicant’s parents and siblings live in India. The Tribunal also noted that, since 2014 when the Applicant first came to Australia, he has not returned to India and that he had been working within the permissible limits for a student visa-holder. The Tribunal said that the Applicant conceded that he would be earning more in Australia than in India but that the costs of living are higher in Australia. And the Tribunal accepted the evidence on that point but still had concerns that his home ties were not sufficiently strong enough to have seen him go back to India since he arrived here in 2014.
The Tribunal reiterated its conclusion that, because the Applicant would have completed the course of study that he told the department that he wanted to complete, the Tribunal was not satisfied that he intends genuinely to stay in Australia temporarily and, therefore, he does not meet the criteria under cl.500.212. For those reasons, the Tribunal affirmed the decision.
As to the grounds of this application, there were originally four but there are now only the three. I will read them into the record:
1. The Second Respondent failed to provide natural justice to the Applicant as the Second Respondent took into account irrelevant considerations and did not take into account relevant considerations which is an error of law.
2. The Second Respondent’s decision was affected by a reasonable apprehension of bias where the Second Respondent proceeded to make an oral decision in a short amount of time within the completion of the Applicant’s evidence, demonstrating that the Second Respondent did not bring to the hearing an impartial and unprejudiced view towards the evidence presented by the Applicant.
3. The Second Respondent’s conduct during the Hearing gives rise to a reasonable apprehension of bias which is an error of law. This is demonstrated when the Second Respondent provided the Applicant an invitation to respond to information under s 359AA, in the first 10 minutes of the Applicant’s hearing, before hearing any substantial evidence from the Applicant relating to the decision under review. This indicates that the Second Respondent had already formed a view of the decision under review before the Applicant’s evidence was provided.
During the course of argument, the representative for the Applicant spoke of the disquiet that the Applicant has that the Tribunal likely cast aside the fact that the Applicant wanted to keep studying a Diploma of Automotive Management and that he had a certificate of enrolment in that new course, but instead focused on the fact that he had completed the Certificate III and the Certificate IV and would, in two days after the Tribunal hearing, have completed the Diploma of Automotive Technology; those being the three courses for which he sought the student visa back in April 2017.
The Applicant’s representative said that if this aspect of the value of the Diploma of Automotive Management had been properly considered, then the Tribunal would have granted the Applicant a student visa. The representative then spoke of the fact that the decision by the AAT was an oral decision that was made very quickly, and that there had been scant regard given to the new course that the Applicant wanted to complete and that he had a certificate of enrolment in that. The representative was critical in his submission that the AAT instead focused on the fact that the other course would finish in two days.
As well as that, the Applicant spoke of the way in which the Tribunal conducted the hearing where they, in effect, went straight to the history of the study of the Applicant. He claimed that the Tribunal almost immediately put to him that, when one looks at that history, this may be sufficient for the Tribunal to affirm the decision. The Applicant submitted that all of those circumstances together show a bias or, at the very least, an apprehension of bias.
Once the Applicant had made the submissions, I asked the Applicant, with regard to ground 1, “what were the irrelevant considerations that the Tribunal took into account?”. The Applicant conceded that there were none. I then asked him what the relevant considerations were that were not taken into account. The Applicant conceded that there were not any. The relevant consideration that he was looking at, that being the value of the new course, was considered but was not considered in the way that the Applicant submits it should have been considered.
It seemed to me, then, that ground 1 had absolutely no merit at all unless it were framed that the Tribunal had, in effect, made a mistake or a jurisdictional error in coming to a conclusion that was simply not open on the evidence. The Applicant’s representative accepted that my summary is really what it was that he was arguing because there were no irrelevant considerations considered nor were there any relevant considerations that were not considered.
When it came to the apprehension of bias argument, though, the Applicant was submitting that the Tribunal had pre-judged the matter in that a fair-minded observer, looking at the manner in which the Tribunal conducted its hearing, would have come to the conclusion that it did not matter what the Applicant was going to put up, that this Tribunal had already made its mind up that this Applicant was not going to get a visa.
That bespeaks of a maliciousness. In the submission of the Applicant, no longer was it going to be said that there was a mistake in coming to the conclusion that amounted to a jurisdictional error, as it were, but rather the AAT had performed a malicious and purposeful dereliction of duty to ignore what was plain evidence. The reason submitted for such performance was so the Tribunal’s pre-determined stance, that the Applicant would not be getting a visa, would be realised.
I pointed out to the Applicant’s representative that this was a very serious and very grave submission to make. I gave him an opportunity to think about whether he still wanted to make it. He did, and so the matter continued.
It seems to me, though, then when one looks at what the grounds of the application really are, it is that the tribunal was biased. And it was biased because it did not matter what the evidence was before it, it was going to ensure that the Applicant did not receive a student visa. And that this was illustrated by the quickness of an oral decision, the manner in which the Tribunal very early on in the hearing went through the PRISMS records and warned the Applicant that it was looking at this material pursuant to s.359AA of the Migration Act 1958 (Cth) (“the Act”) and, thirdly, that it totally disregarded the Applicant’s evidence as to the value of the new course that the Applicant wished to undertake.
The second ground, really, is an alternative that if it is that there is no apprehended bias, then the decision that the Tribunal has made is attenuated by a jurisdictional error in that the conclusion was simply not open to the Tribunal. It seems to me that that is the only way to make sense of the submissions that have been made.
I will turn then to the issue of apprehended bias. It seems to be well settled that the legal test for bias and apprehended bias is that which was set out in Ebner v The Official Trustee in Bankruptcy [2000] 205 CLR 337, where the court said:
A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
It has been said that this test has a high threshold. Substantial grounds must exist before a court would find any form of bias. The role of the fair-minded lay observer is pivotal. The fair-minded lay observer does not make snap judgments. He or she is taken to be reasonable, and he or she knows commonplace things and is neither complacent nor unduly sensitive or suspicious. Knowledge of all the circumstances of the case must be attributed to the fair-minded observer, and a fair-minded observer is an informed observer. A fair-minded observer will have regard to the fact that a judicial officer’s training/tradition have both equipped that officer with the ability to discard the irrelevant, the immaterial and the prejudicial.
In Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, Lord Hope of Craighead said:
The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious… Her approach must not be confused with that of the person who has brought the complaint… The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses…
Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.
The rule against bias, either actual or apprehended, is directed to pre-judgment incapable of being altered by evidence or argument. It is not directed to predisposition capable of being swayed by evidence or argument.
In the Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507, the Court said:
Decision-makers, including judicial decision-makers, sometimes approach their tasks with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
In a Canadian case, R v S (RD)[1997] 3 SCR 484, the Court said:
It has been observed that the duty to be impartial does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge.
Rather, the wisdom required of a judge is to recognise, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires the judge nevertheless be free to entertain and act upon different points of view with an open mind.
With those principles in mind, it seems to me that the mere fact that a Tribunal member gives an ex tempore decision does not mean that there has been bias. Ex tempore decisions are made by judges all the time, especially in the criminal jurisdiction where judges, upon having heard the facts of matters, having heard submissions for the prosecution and having heard submissions for the defence, often impose large sentences of imprisonment. There can be no question that simply because a judge imposes a large sentence of imprisonment there and then that that equates to them being biased or having already determined the matter. Judges in this court, especially in migration matters, often give ex tempore decisions.
The Minister has referred the court to the matter of SZANH v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280, where Sackville J said:
39. The appellant’s principal complaint about the RRT’s consideration of his claims was that it had made a decision first and had tailored its reasons to fit the decision. This complaint, however, misunderstands the significance of an oral decision handed down at the conclusion of a hearing. As the Magistrate pointed out, it is commonplace for courts and tribunals to announce a decision or give ex tempore reasons immediately the hearing is completed. There are obvious reasons why such a course is desirable. Not the least is that it avoids the uncertainty and anxiety experienced by the parties pending the making of a decision. Sometimes ex tempore or oral reasons are necessary to enable the decision-maker to cope with a very heavy workload. The making of such a decision is not of itself indicative of bias or of insufficient attention to the claims made by an Applicant.
What can be seen, in the decision that the Tribunal made, is that it did go through what it needed to look at to see whether there has been a satisfaction of cl.500.212. And having had regard to Ministerial Direction number 69, the Tribunal did look at the Applicant’s circumstances in India, the potential circumstances in Australia, the value of the course to the Applicant’s future and did look at the Applicant’s immigration history. The Tribunal did look at everything that it was supposed to have looked at.
Having looked at everything that it was supposed to have, and then having made an oral decision there and then, could not, in my view, cause any fair-minded observer to conclude that the Tribunal had already made up its mind. The Applicant’s complaint as to the desired Diploma of Automotive Management being dealt with in an offhand way, does not carry water when one looks at what it is that the Tribunal has actually said.
The Tribunal has simply pointed out that a Diploma of Automotive Management is a course of study which is at the same level as the diplomas in management that the Applicant has already completed. Given that the Applicant’s desire is to open his own auto mechanic repair business, the Tribunal, looking at all of the circumstances, concluded that this further course was not going to have any great benefit to the Applicant when one considers the courses he has already undertaken.
When it was also taken into consideration that this new course was not one that he had let the department know that he wanted to study when he made his application for a student visa back in 2017, the Tribunal concluded that this could be seen as a mechanism for the Applicant to simply extend his stay in Australia. When that circumstance is combined with the fact that the Applicant came to Australia in 2014 and had not returned at any stage to India it was open for the Tribunal to come to a conclusion that the Applicant was not a genuine temporary entrant.
That finding is obviously open on the evidence. The fact that the Tribunal made a finding that was open on the evidence, and that it did so in an oral decision given straight after the hearing had concluded, could not, in my view, ever cause a fair-minded observer to come to the conclusion that the Tribunal had pre-judged the matter and had made up its mind that there was not going to be any circumstance, or anything that the Applicant could put before it, to cause the Tribunal to change its mind. The circumstances do not speak of such an apprehension. I find therefore that there is no merit in grounds 2 and 3.
The alternate ground, then, is that simply, without bias or maliciousness, the Tribunal simply made a mistake; that being that it came to a conclusion that was simply not open on the evidence.
I have already spoken of this; that the Tribunal looked at all of these circumstances –
· the value of this course to the Applicant considering all of the other courses he had done,
· that the Applicant had not told the department when he made his application for a student visa that he wanted to study this course,
· that all of the courses that the Applicant wished to study were, for all intents and purposes, already completed,
· that the Applicant had not visited or gone back to India during the time that he had been on a student visa and/or bridging visa which was approaching some five years.
The conclusion that the Tribunal made that this further course was simply a device by which the Applicant could extend his stay in Australia was open. This means that the conclusion that the Tribunal came to that the Applicant was not a genuine Applicant for temporary entry was open to it.
If it is open on the evidence, then there has been no jurisdictional error. Therefore, ground 1 fails.
Having looked at the matter and having found no jurisdictional error illustrated, I dismiss the application with costs in the sum of $7,467.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date:31 July 2020
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