Singh v Minister for Immigration
[2020] FCCA 1583
•17 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1583 |
| Catchwords: MIGRATION – Application for judicial review – student visa – consideration of financial requirements of visa – allegation of apprehended bias – apprehended bias established – writs issued. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), cl.5A408 |
| Cases cited: SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055 Mario Giretti v Deputy Commissioner of Taxation [1996] FCA 1769 |
| Applicant: | TARANJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2179 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 4 March 2020 |
| Date of Last Submission: | 12 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 17 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello SC |
| Solicitors for the Applicant: | Da Gama & Associates |
| Counsel for the First Respondent: | Mr Minson |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 15 September 2016.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2179 of 2016
| TARANJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 15 September 2016. As the decision was an oral decision, a written record of reasons took some time to produce and was forwarded to the applicant on 14 October 2016.
The applicant had sought a Student (Temporary) (Class TU) Subclass 573 visa under the Migration Act 1958 (Cth) (‘the Act’). This application was lodged on 13 March 2015 and refused by a delegate of the Minister on 16 December 2015. The applicant sought judicial review by the Tribunal on 23 December 2015.
The applicant’s visa application concerned studies to be undertaken for the completion of a Bachelor of Professional Accounting degree. At the time of the Tribunal hearing, in September 2016, the applicant explained that he had completed two-thirds of his studies and intended to complete his degree in July the following year. He produced documents showing that he had $14,000 in fees remaining to pay. This was accepted by the Tribunal member.
The applicant needed to satisfy the financial requirements for the visa under cl.5A408 of the Migration Regulations 1994 (Cth) (‘the Regulations’). That clause provided as follows:
5A408 Financial capacity
(1) The applicant must give, in accordance with this clause:
(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 12 months:
(i) course fees;
(ii) living costs;
(iii) school costs; and
(aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 12 months; and
(b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
(1A) If the applicant is:
(a) fully funded; or
(b) an applicant:
(i) who is not funded, wholly or partly, by:
(A) the Commonwealth Government, or the government of a State or Territory; or
(B) the government of a foreign country; or
(C) a multilateral agency; and
(ii) who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and
(iii) for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or
(c) the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:
(i) a provincial or state government in a foreign country, with the written support of the government of that country; or
(ii) an organisation specified in a legislative instrument made by the Minister for this paragraph;
the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.
(2) In this clause:
financial support, from an applicant’s proposed education provider, means:
(a) a scholarship that:
(i) is awarded on the basis of merit and an open selection process; and
(ii) is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and
(iii) is awarded to the greater of:
(A) not more than 10% of overseas students in a course intake; and
(B) not more than 3 overseas students in a course intake; or
(b) a waiver of the applicant’s course fees carried out in the following circumstances:
(i) the applicant is part of an exchange program that involves:
(A) a formal agreement between an education provider and an education institution in a foreign country; and
(B) the reciprocal waiver of course fees as part of that agreement;
(ii) the applicant proposes to study full‑time;
(iii) the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.
funds from an acceptable source means one or more of the following:
(a) if the applicant:
(i) has successfully completed at least 75% of the requirements for his or her principal course; and
(ii) has applied for the visa in order to complete the course; and
(iii) does not propose to undertake any further course;
a money deposit held by an acceptable individual;
(aa) if paragraph (a) does not apply—a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;
(b) a loan from a financial institution made to, and held in the name of, an acceptable individual;
(c) a loan from the government of the applicant’s home country;
(d) financial support from:
(i) the applicant’s proposed education provider; or
(ii) the Commonwealth Government, or the government of a State or Territory; or
(iii) the government of a foreign country; or
(iv) a corporation that:
(A) conducts commercial activities outside the country in which it is based; and
(B) employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance; or
(v) a multilateral agency; or
(vi) a provincial or state government in a foreign country, provided with the written support of the government of that country; or
(vii) an organisation specified by the Minister in an instrument in writing for this subparagraph; or
(viii) an acceptable non‑profit organisation.
In order to consider the application of the clause, the Tribunal member calculated that there was $32,000 in total that would be required by the Applicant, composed of $14,000 for outstanding fees; $17,000 for living expenses; and $1000 for travel expenses for the applicant to return home: see paragraph [24] of the decision. These calculations appear to result from an exchange at p.18 of the transcript (annexed to an Affidavit of the applicant filed 13 February 2020).
The Tribunal member accepted that documentation showed that there was a loan to the applicant of $23,150, which would fulfil much of the amount in accordance with the regulation. The balance of around $8,850 would still have to be shown by the applicant. The Tribunal member considered the bank statements provided by the applicant at the time of the hearing, showing that he currently held $8,136 (at CB p.102), although in the three months prior to the hearing the account containing that money appeared to have dropped to as low as $5,384.
The Tribunal member concluded that the applicant had not met the financial requirements, as the borrowed monies, together with the lower balance of the bank account, was not sufficient to meet the financial requirements in the regulation: see the unnumbered paragraph following paragraph [24] of the decision. The Tribunal member stated that he believed that the applicant had ample opportunity and time to respond to the request to provide financial evidence but had failed to do so: see paragraph [25] of the decision.
The applicant raises a number of issues with respect to the conduct of the Tribunal in reaching this decision. The applicant argued that:
a)There would be a reasonable apprehension of bias on the part of the Tribunal member having regard to the transcript of the hearing with the applicant;
b)The amount struck by the Tribunal member was greater than that based upon the evidence before the Tribunal member;
c)The Tribunal member looked at the money available for a period that was not the relevant period under the Act; and
d)Had the applicant properly understood the requirements, he could have paid $8,000 off the course fees and thereby have met the financial requirement.
The belief on the part of the Tribunal member that the applicant had been told of the requirements, appears to stem from a letter sent to the applicant on 26 August 2016 asking for a variety of information from the applicant. The relevant part appears at Item 5 in that letter, as follows:
· evidence of fees of current or proposed course/s you have already paid, or still owe for past courses
· evidence of funds from an acceptable source
o if you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your visa application
o if you have a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be· current
· evidence of the regular income of any person who is providing funds to you (including yourself), and their relationship to you
· evidence that you have genuine access to the funds that you declare while you hold a student visa, such as evidence of any money you have received or been given
Unfortunately, the letter to Mr Singh did not identify that the money deposited must relate to the three months prior to the visa application (almost a year before), nor that this was a requirement for the grant of a visa. The letter simply refers to the, ‘relevant period’, without any explanation as to what that period is and states that the applicant ‘may’ need to show how long the deposit was held before the date of his visa application. It is not surprising that the applicant would have approached the matter on the basis of showing that he presently had sufficient funds for the forthcoming period to complete his degree, rather than the official period required on a close reading of the Regulations.
Clause 5A101 of Schedule 5A of the Regulations provides for a definition for the phrase ‘first 12 months’, as follows:
first 12 months, for an applicant, means the period that:
(a) begins:
(i) if the application is made outside Australia—on the day of the applicant’s expected arrival in Australia; or
(ii) if the application is made in Australia—on the day that the student visa is expected to be granted to the applicant; and
(b) ends on the earlier of the following:
(i) the day 12 months after the beginning of the period;
(ii) the last day of the applicant’s proposed stay in Australia.
The effect of this Regulation is that the 12-month period in this particular case would finish when the applicant was likely to leave Australia (starting on the date of the issue of the visa, which would presumably be soon after any positive Tribunal decision). Therefore, it was assessed by the Tribunal in this case as 11 months, although the evidence before the Tribunal member (at T.17) was that it would have only been 10 months. Assuming that it would take at least some time to issue the visa, it is then more likely that it was a period slightly less than 10 months that would need to be covered.
If, as it appears on the evidence before the Tribunal member, only 10 months is required (after taking account of the fixed amounts for fees and airfares and applying a pro rata calculation), then the amount required that the applicant had would be approximately $30,273. In total, the applicant actually had at his disposal the loan amount for $23,150 together with the current savings he had of $8,136, making a total of $31,286.
Grounds of Review
Ground One
Ground 1 contends that:
1. The decision of Tribunal Member … dated 13 October 2016 is affected by actual bias in that the Tribunal was hostile and closed minded to the applicant. Alternatively, a reasonable bystander might apprehend - from the Tribunal's interruptions, rudeness, scornfulness, disbelief and failure to actually consider the relevant provisions in light of the evidence - that the Tribunal might not bring an open mind to its task.
In this case, the applicant argues that the conduct of the Tribunal member was such as to lead to a finding that there was a reasonable apprehension of bias on the part of the decision-maker. The applicant’s Counsel sets out in submissions, on behalf of the applicant, a long list of exchanges as follows:
(a) At - T7.31 -7.45 ''Advanced diploma of business. You serious? One, two, three, four, five, six, seven, eight units. It takes a year. Manage organisational change, manage finances.
A diploma of Management, once again eight units. Manage meetings, manage risk, ensure a safe workplace. They're things I'd normally though you'd learn in a day.... "
(b) "Why didn't you go home" - T9.25
(c) "Nonsense" - T9.41
(d) At - T10.9-14 "What you want to be is a mechanic? You are a mechanic. What you're now doing is studying something that's got nothing to do with mechanics and I say why would he be studying that? And you know the only reason I can think of? "Cos I want to stay in Australia." And that's one of the concerns that I have. However, leaving that aside, what about the financial evidence, which was the reason that your visa was refused?"
(e) " ... I think you are very poorly prepared for today's hearing ... " - T13.41
(f) "For a bloke who's doing professional accounting, to not know how much you've paid and how much you've still got to pay" - T14.25
(g) "I wouldn't give you much chance of passing accounting." - T14.30
(h) "Goodness, gracious me, you've only passed' - T14.44
(i) "Well then why didn't you go home" - T15.13
(j) At - T15.21 - "You didn't bother going and applying for a bridging visa 8, so you could go home? This is a disgrace. It's a disgraceful academic record. 5 per cent. 23 per cent, zero, zero, zero, zero, zero per cent. So presumably you didn't bother submitting any assignments, didn't bother sitting any subjects or whatever."
(k) "Don't come to me wanting to be my accountant. How do you know you've got $14,000 left to pay in fees" - T16.6
(I) "I don't know what you're doing here anyway, but ... " - T18.1
(m) "Do you carry a gun? .... You don't hold people up?" - T19.4-8.
(n) "I don't care what your expenses are" - T20.13
(o) "I don't care what shift you work on. I want to know how much you get paid" - T20.26
(p) "For an accountant you have got very little idea of what's going on in the finance world" - T21.6
(q) "Once again for an accountant you don't have much understanding of what's going on"- T22.28
(r) On page 8 of the transcript the following exchange occurred:
[MEMBER]: Where's evidence? No evidence of that here" - T8.10
MR SINGH: No evidence. Yeah, well they were tied to the file that went to immigration
[MEMBER]: We wrote you a letter inviting you to come here that said please provided evidence that shows past studies in Australia, copies of all attendance, certificates, transcripts, certificates completion. Please provide it at least a week before the hearing. You say you've done the diploma of automotive. All right I'll believe you've done a diploma of automotive, that's two years. So you've done three years study? You've been here nine years, what are you doing the rest of the time"
It is clear that the Tribunal interrupted the applicant on numerous occasions, around 20 of which are listed (at paragraph [9]) of the applicant’s Counsel’s submissions). It also appears that despite the central focus of the hearing in this matter, at least at this stage, being focused upon financial matters, the Tribunal member told the applicant to cease telling him about financial matters on a number of occasions. For example, (at T6) the member asks the applicant, “Is this the course you currently study?” to which the applicant answers, “Yes”, and following which an exchange takes place:
[MEMBER]: Right, now what about the financial evidence?
MR SINGH: I'd like to add this. This is my (indistinct).
[MEMBER]: Yeah. Yeah, no what I'm interested in is having you provide us with - what studies have you done in Australia?
At T10 of the transcript provided the Tribunal member moves on to ask, “…what about the financial evidence, which was the reason that your visa is refused?”. The applicant seeks to clarify whether this relates to his current studies, saying (at T10.24) “Financial evidence for the current studies”, at which point the member commences to ask what the applicant intends to do when he finishes his course. The applicant must have located documents relating to the payment of his study fees, as later on the same page the member asks (at T10.37), “What’s this?”, and the applicant says that he is producing, “The bill of fees that I have paid off”. It is only then that the member explains that he does not want to see the fees that have been paid, but rather evidence that the applicant has finances to pay for outstanding fees, future living expenses and travel. At T11 of the transcript it appears that the applicant understood from a former agent that he had to produce material about his first year of studies and the financials related to it.
At T13, despite earlier being told that there was $14,000 left in fees to pay and the applicant having tried to provide documents about that to the Tribunal member (at T11),the Tribunal member then says:
[MEMBER]: No, give us a look at the receipts that you've got from Palms College. Because I think you are very poorly prepared for today's hearing. Because you've got no idea how much you've got still to pay on your fees, have you?
MR SINGH: Yes, it's $14,000.
At T22.5, the Tribunal member explains that the cash held by the applicant for the relevant test must have been held for the three months immediately before the date of the application, which the applicant appears to understand to relate to the period leading up to the Tribunal decision, because he points to his bank statement.. The Tribunal member engages with the applicant with respect to that bank statement identifying the minimum balance over the three-month period. The member does not explain to the applicant that this is not the three-month period that he is inquiring about, nor does he explain that the amount set out in the bank statement of over $8,000 cannot be taken into account under the Regulations. Most significantly, the applicant is not told, and does not appear to realise, that if he were to pay the $8,000 against the course fees it would reduce the course fees by $8,000, thereby reducing the amount required under the Regulations to a sum less than the loan amount that the Tribunal member accepted as being sufficient.
The Tribunal member goes on to immediately give an oral decision which was later put in writing with a copy provided to the applicant and filed in the Court Book. The reasons given at the time are substantially the same as the written reasons (the Tribunal member made minor editorial changes that would be expected when converting oral reasons to written form).
In this case the way in which the applicant has interacted with the Tribunal member was absolutely polite. It is not a situation where the applicant had been prevaricating or rude to the Tribunal member, nor provided any conduct which could have given the Tribunal member a sense of being frustrated in his endeavours to obtain the appropriate information. Indeed, the opposite is apparent from the hearing: the Tribunal member often chops and changes topics and appears to frustrate the applicant from providing his material to the Tribunal member. The variety of insults that were provided to the applicant were inappropriate in the conduct of a hearing of this type. It is apparent that the Tribunal member did not even take the nature of the studies seriously, describing the subjects in the lengthy course as, “They’re things I’d normally thought you’d learn in a day” (at T7.36); questioning the applicant about whether he carried a gun as a security guard and making the quip (at T19.8), “You don’t hold people up?”. It was wholly inappropriate in the conduct of such a hearing.
Whilst I accept that in some hearings some degree of informality ensues and that as part of that, Tribunal members may make quips or jokes in a goodhearted manner. In the context of this hearing (and the tone of the comments when one listens to the audio recording) it would not be possible to conceive of these comments as being light-hearted or jovial. As a result of the matters set out above, I am persuaded that the material demonstrates conduct by the Tribunal member that would give (the well-informed bystander) a reasonable apprehension that the Tribunal would not approach the matter impartially.
Counsel for the Minister argues that even if the applicant establishes his case with respect to reasonable apprehension of bias, that the applicant should be denied relief on the basis that he could not succeed, regardless of the conduct of the Tribunal member, relying upon the statements of the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (‘SZMTA’) where Bell, Gageler and Keane JJ said:
45. Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
46. … the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
Relying upon the case of SZMTA, Counsel for the Minister argued that the so called ‘forward-looking test’ is no longer good law: for discussion of the nature of the forward-looking test see generally Mario Giretti v Deputy Commissioner of Taxation [1996] FCA 1769; and Lee v Minister for Immigration and Citizenship [2007] FCAFC 62.
It appears that the question is more complex than simplistically saying that the forward-looking test is no longer available, for example, see the discussion of the forward-looking test apparent approval in Hamidy v Minister for Immigration and Border Protection [2019] FCA 221 after the effects of SZMTA were discussed earlier in the judgment. The area appears much more nuanced, as is evident from the discussion of the test that flows from SZMTA by Colvin J in PQSM v Minister for Home Affairs [2019] FCA 1540:
27. The factual inquiry is into whether the relevant error by the decision‑maker was material in the sense that it denied the applicant a possibility of a successful outcome, or could realistically have resulted in a different decision: Ogawa at [120] (Davies, Rangiah and Steward JJ). This inquiry has been variously expressed (by reference to the language used in SZMTA ) as being whether the breach 'deprived the appellant of the realistic possibility of a successful outcome' (CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [59]), or just the 'possibility of a successful outcome' (BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 at [60]), or whether compliance 'could realistically have resulted in a different decision' (Khalil at [49]; Nguyen at [52]) or 'could have changed the result' (CQR17 at [43] (Jagot J)).
[...]
64. It is not the case that the Court approaches the question on the basis that the failure to have regard to the particular requirement was a jurisdictional error and then evaluates whether the error was material. Posing the question in those terms tends to invite an inquiry as to whether the matter that was not considered might have been material to the determination to be made by any Tribunal exercising the power. To do so is to ask whether there would be utility in granting relief, which is a different question: see DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [105] (Mortimer J). Rather, the reasoning in SZMTA makes clear that there is no jurisdictional error by the Tribunal in the making of the particular decision unless the failure to conform to the condition by the Tribunal when making its decision was material to the manner in which the Tribunal exercised the power. Significantly, the majority in SZMTA referred to 'the curial determination both of how the Tribunal in fact acted ... and whether its decision could realistically have been different if the relevant breach had not occurred' (emphasis added): at [50].
65. As reasoned in Hossain v Minister for Immigration and Border Protection [2018] HCA 34, where a statutory requirement must be met in order for there to be a valid exercise of power then it is to be construed as providing for invalidity only where there is a material breach: at [29]‑[30] (Kiefel CJ, Gageler and Keane JJ). Therefore, the inquiry is a backward looking one concerned with whether there has been an invalidating material failure to comply with a condition to the valid exercise of power in the particular case rather than a forward looking inquiry as to whether future compliance with the condition might affect a future decision made by way of fresh exercise of the power by any decision‑maker acting within the bounds of reasonableness.
I note that I am also bound by the later decision of the Federal Court (exercising its appellate jurisdiction) in AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951 (‘AAM17’) (decided well after SZMTA), where it was found that:
50. The point of procedural fairness lies in the fairness of the process, not any assessment of the fairness of the outcome: see, by analogy, the observations of Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [55]- [60]. Here, the opportunities lost to the appellant were, first, to understand for himself why he had not succeeded in his attempt to overturn the Tribunal’s decision; second, to consider for himself what he might want to argue on any appeal, by reference to how the Federal Circuit Court had explained its rejection of his application; and third, to secure assistance in formulating his grounds of appeal from a person who could read and digest the Federal Circuit Court’s reasons for its orders.
51. The denial of procedural fairness by the Federal Circuit Court is clear, and serious. Unless orders are made setting aside its decision, the denial will remain uncorrected. There is only one way to correct it: by setting aside the Federal Circuit Court’s orders. If that places the appellant in the position of having a further opportunity to persuade the Federal Circuit Court that the Tribunal’s decision is affected by jurisdictional error, then in my opinion that is a similar consequence to other circumstances where a denial of procedural fairness is identified.
It appears to me that in order to follow both decisions one must read the statements of the High Court in SZMTA as the general position, and consider that in particular cases involving serious breaches of procedural fairness principles, one should effectively treat the process as not having occurred and remit the case for that process to take place, as occurred in AAM17. The conduct of the hearing in this case was far worse than the difficulties alleged in AAM17 (although, remarkably, without recourse to the definitive evidence that was available in the audio recordings made by the court). As a result I am bound to remit the matter for a further hearing.
If the materiality test set out in SZMTA were applied in the way Counsel for the Minister argued, without the gloss in AAM17, it would be necessary to show that the conduct leading to the apprehended bias finding was indeed material, in the sense that there is an onus on the applicant to show it was possible that a different outcome may have ensued.
In cases such as the present, it is difficult to predict what may have occurred, had the nature of the hearing been one in which the applicant had the relevant considerations clearly identified; and been given an opportunity to properly engage in a meaningful discussion about his capacity to meet those conditions. When reviewing the transcript one can’t help but conclude that there is considerable slippage in understanding between the member and the applicant (no doubt aggravated by the likely anxiety that would have been caused to the applicant by the attitude taken by the member).
Whilst, on a purely technical view, the applicant did not appear to meet the guidelines, because the money he held in the bank is not evidenced as having been held in the bank for three months prior to the visa hearing, had he understood the effect of the test that was to be applied it is possible he may have advised the Tribunal member that he would immediately pay $8,000 off his course fees. This would have resolved his apparent difficulty in meeting the Regulations. In this regard, the applicant would have required a very brief adjournment from the Tribunal member, which one would have thought would have been granted (and if not granted, it would have been legally unreasonable to refuse it). This is likely to have also solved the applicant’s difficulty with respect to the test properly applied to the three months prior to application (rather than the three months prior to the tribunal hearing) as his difficulty in meeting the required amount was only that part not covered by his loan.
Given the difficult and complex nature of the Regulations involved, and that on a practical level the applicant had sufficient funds at his disposal, it does not appear to me that it is appropriate to refuse to grant relief on the basis that a differently conducted hearing, conducted in a manner more reasonably expected of a Tribunal member, could not realistically have resulted in a different outcome, even on the Minister’s interpretation of the SZMTA test.
Ironically, in this case, the applicant has now completed the course of study that was the subject of the Tribunal decision. Upon remittal he seeks to undertake a Master’s degree in accounting (as advised from the bar table) given it is necessary for him to have another course of study in order to satisfy visa application requirements as at the time of the decision.
The applicant is in the position of having to seek to obtain this visa as he would be precluded from applying for other forms of visa (such as a work visa) if he does not have a substantive visa at the time of that application. That is, the delay in the proceedings reaching the Court has meant that his visa application will now have to relate to proposed further studies so as to avoid the adverse consequences of not obtaining this particular visa. Whether those matters can be satisfied is a matter for evidence before the Tribunal member that hears this application after remittal. Clearly, in a case such as the present, it would be inappropriate for the matter to be heard again by the same Tribunal member.
Ground Two
Ground 2 provides:
2. The decision of Tribunal Member … dated 13 October 2016 is affected by jurisdictional error in that the Tribunal did not actually review the evidence - as required by s360 of the Migration Act 1958 (Cth)- in light of the relevant provisions in clause 5A 508 of Schedule 5A to the Migration Regulations 1994 (Cth).
Under this ground the applicant argues that the Tribunal member failed to carry out the task of reviewing the evidence as to the financial matters. In support of this argument counsel says:
22. Evidence before the Tribunal showed that the course fees for the first 12 months were $28,000 (CB75 and CB88). Evidence in the Court Book showed the applicant had paid $26,000 (CB 96 to CB 101 ).
23. The applicant said he believed he had to pay $14,000 more in tuition fees, however that did not seem right to the Tribunal. At T16.16, the Tribunal stated "Show me evidence that you owe them [the education provider] 14,000". The applicant answered "Yes sir. I just gave you the statement which states I have $23,000 loan". The applicant was obviously confused. The Tribunal then said "Yes. What you've given me is evidence that you're enrolled in a course for which the fees are 28,000. All right. You say, you still have to pay 14,000. When is your course running until? Do you have a current COE?"
24. The Tribunal then left unresolved the applicant's confusion and the lack of any reliable evidence that the applicant owed $14,000 in fees.
There was certainly much confusion in the hearing about financial matters, as is evidence from T16. However, the decision proceeded on a finding that the tuition fees were $14,000: see paragraph [24]. The complaint is that the Tribunal effectively accepted the applicant’s allegations about fees and did not review the evidence on these issues. I am not persuaded that an applicant can be heard to complain that the Tribunal member simply accepted his oral evidence, rather than conducting a more detailed enquiry. I am not persuaded that this amounts to a ground for judicial review.
Conclusion
As I have found that the applicant has made out ground 1 and therefore that it is appropriate to grant relief, I will make the necessary orders.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 17 June 2020
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