Suteja v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 796
Federal Circuit and Family Court of Australia
(DIVISION 2)
Suteja v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 796
File number(s): SYG 2085 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 8 September 2022 Catchwords: MIGRATION - Student visa – whether genuine applicant for entry and stay as a student – incorrect Court Book served – possible privacy implications – bias – allegation decision made straight away – duty to inquire Legislation: Migration Act 1958 (Cth) ss359A, 359B, 361, 368, 379A
Migration Regulations 1994 (Cth) cls 500.212, 500.214
Cases cited: He v Minister for Immigration and Border Protection (2017) 255 FCR 41
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 8 September 2022 Place: Sydney Te Applicant: In person Solicitor for the Respondents: Mr Wilson of Sparke Helmore ORDERS
SYG 2085 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANDRI SUTEJA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZNSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
8 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The application filed on 27 July 2018 is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with the Court on 27 July 2018, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 July 2018 affirming a decision of the delegate of the first respondent (delegate) to not grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa (visa).
BACKGROUND
On 7 September 2013, the applicant, a citizen of Indonesia, arrived in Australia as the holder of a Student (Class TU) (Subclass 573) visa (Court Book (CB) 82). On 26 April 2016, the applicant was granted a Student (Class TU) (Subclass 572) visa (CB 2-3).
On 8 September 2016, the applicant applied for the visa the subject of these proceedings to study a Diploma of Marketing and an Advanced Diploma of Marketing, with the last course due to end on 14 September 2018 (CB 4, 29-30).
On 14 October 2016, the first respondent’s Department invited the applicant to comment on information regarding his study history and to provide further evidence relating to whether he met cls 500.212 and 500.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 55-62). The applicant responded with a statement and further supporting documents on 17 October 2016 (CB 63-75).
On 9 February 2017, the delegate refused to grant the applicant the visa (CB 80-85). The delegate was not satisfied that the applicant intended to stay temporarily in Australia and, accordingly, found that the applicant did not meet cl 500.212 (CB 85).
On 10 February 2017, the applicant applied to the Tribunal seeking review of the delegate’s decision (CB 86-87). On 19 February 2018, the Tribunal wrote to the applicant inviting him to attend a hearing scheduled before it on 20 March 2018 (CB 93-97). The Tribunal also requested that the applicant provide a copy of his current Certificate of Enrolment (CoE) any documents relating to his past studies in Australia and a statement addressing whether he was a genuine temporary entrant, at least 7 days before the scheduled hearing (CB 96). On 23 February 2018, the applicant gave the Tribunal more than one CoE, evidence of past studies in Australia (CB 105-106, 110-111) and an interim statement of results for his Advanced Diploma of Marketing course: see Annexure “MGT-1” to the Affidavit of Madison Grace Tidy (Tidy Affidavit) affirmed on 1 September 2022).
On 20 March 2018, the applicant attended a hearing of the Tribunal (CB 113-115) and at which he gave evidence of past studies in Australia and presented arguments (CB 116-126). Later that day, the applicant also provided the Tribunal with copies of bank statements (CB 127-170).
On 21 March 2018, the Tribunal invited the applicant to provide it with his payslips and records of work (both paid and unpaid) between June 2016 and March 2018 (CB 171-174). On 4 April 2018, the applicant provided to the Tribunal payslips and a work reference for unpaid work (CB 175-222).
On 3 July 2018, the Tribunal affirmed the decision under review (CB 226-233).
The Tribunal Decision
The Tribunal identified that the issue on review was whether the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 (CB 228, [10]-[11]). It also identified that, in considering whether he satisfied cl 500.212(a), it was required to have regard to Direction No. 69 (CB 228, [12]).
The Tribunal acknowledged that the applicant had successfully completed a number of courses in Australia, including a Diploma of Marketing, with good results and that he was currently studying an Advanced Diploma of Marketing (CB 229, [15]-[17]). The Tribunal acknowledged that the applicant had undertaken employment which was consistent with his study up until 2016 and that this indicated that he was a valued employee (CB 229, [17]). However, the Tribunal was not satisfied that the applicant’s further study in marketing would add value to and/or assist him with his goal of opening a restaurant (CB 230, [21]-[22]; 230-231, [25]-[26]; 232, [35]-[36]).
In so finding, the Tribunal recorded that:
(a)the applicant wanted to study marketing because it would be helpful in terms of getting and maintaining customers (CB 229, [18]). Additionally, the applicant claimed this qualification would broaden his career prospects as the skills he would develop were relevant to various industries (CB 229-230, [19]-[20]);
(b)there was no evidence to indicate he had considered this line of study (marketing) in his home country, or that he had researched whether suitable courses were available there (CB 229-230, [19]);
(c)the applicant had come to Australia in 2014 to study business but had switched to commercial cookery as he had lost interest in that discipline (CB 230, [22], [25]);
(d)despite four years of study, he had not progressed above VET level courses (CB 230, [25]); and
(e)it was the applicant’s dream to open a restaurant in Indonesia and he intended to do so at the end of 2018 (CB 229, [15]; 230, [22]-[23]). There was, however, little reliable or documentary evidence to corroborate those plans (CB 230, [23]; 232, [34]).
The Tribunal was of the view that the applicant had, in any event, attained the knowledge and skills to assist him with his proposed restaurant venture as he had already completed the Diploma of Marketing and a substantial part of the Advanced Diploma of Marketing (CB 230, [21]; 232, [35]).
The Tribunal was not satisfied that the applicant maintained significant social or personal ties to Indonesia (CB 230, [24]; 231, [27]; 232, [34]). In this regard, the Tribunal expressed concern about the limited amount of time the applicant had spent offshore since 2013 (CB 231, [27]). The Tribunal considered the applicant’s oral evidence that he had only returned to Indonesia twice because his holidays were only two to three weeks but took the view that two to three weeks was seemingly generous, given that most Australian workers were only entitled to 4 weeks of paid annual leave per year (CB 231, [27]). The Tribunal also considered the applicant’s oral evidence that had had not returned home because it was expensive and he had been volunteering at various restaurants to further his skills and experience. Although the Tribunal viewed the applicant’s engagement in work relevant to his cooking and hospitality courses positively, it found that this did not allay its concerns that the applicant had spent little time in Indonesia over the last four years (CB 231, [28]).
The Tribunal found that the applicant had significant incentive to remain in Australia (CB 232, [33]). Having regard to all the evidence, the Tribunal found that the applicant had established and was maintaining a lifestyle in Australia which indicated that his economic circumstances in Australia were very likely more favourable than they would be in Indonesia, and that this acted as a significant disincentive to return ([33]).
The Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and, therefore, that he did not satisfy cl 500.212(a) for the grant of a student visa (CB 232, [37], [39]). In reaching this conclusion the Tribunal expressly had regard to the applicant’s previous successful study but found that these considerations did not outweigh its concerns (CB 232, [38]). As the applicant did not meet an essential requirement for the grant of a student visa, the Tribunal affirmed the decision under review (CB 232-233, [40]-[41]).
CURRENT PROCEEDINGS
The applicant commenced these proceedings by filing an application to show cause on 27 July 2018, following which he attended a first Court date directions hearing on 20 August 2018 at which (inter alia) he was granted leave to file any amended application giving complete particulars of each ground on or by 15 October 2018. The applicant next attended a telephone callover on 15 June 2022 on which occasion orders were made for the filing of written submissions in the matter relevant to any hearing date which was to be advised.
On 4 July 2022, the matter was brought into my docket and listed for hearing before me today. By orders made on 4 July 2022 I granted the applicant further leave to file and serve any amended application or evidence on or by 18 July 2022 and changed the dates for the filing of written submissions by the applicant and the first respondent to 14 and 7 days before the hearing respectively. Notwithstanding the fact that the applicant has now been granted two opportunities to amend his application, he has availed himself of neither. It transpired at the hearing that the applicant had, on 6 September 2022 (being two days before this hearing), lodged for filing a written submission with the Court albeit outside of the time to do so. Those written submissions were served on the solicitors for the Minister, but the Court only received a copy of them for the first time at the hearing, as they were not yet on the Court’s file.
At the commencement of the hearing, I identified the documents that were before me. In identifying the Court Book which had been filed for the first respondent, I observed that the copy that appeared to be in front of the applicant on the Bar table was discernibly thinner than the copy before me and that in the possession solicitor for the Minister. Upon having my Associate check whether it was the same Court Book in this matter, it transpired that it was not. Rather, it was instead the Court Book pertaining to an applicant in proceedings SYG2101 of 2018, the solicitors for the Minister having served another applicant’s Court Book on the applicant in this matter. This is regrettable because it means that not only did the applicant in the present case not have a copy of the relevant documents for his matter for the past four years enabling him to prepare for the hearing today, of more concern is that he has had in his possession sensitive and confidential documents pertaining to another visa applicant.
The solicitor for the Minister who appeared before me today submitted there was limited prejudice to the applicant because, on 14 June 2022, the applicant had been served with an electronic copy of the Court Book in this matter. While slightly alleviating some of the prejudice to the applicant, who did not have the benefit of it since September of 2018 when it was filed (albeit he also did not appear to have looked at it with sufficient scrutiny to have realised that it was not a Court Book to his matter), this does nothing to ameliorate the privacy issue in relation to the applicant from the proceeding SYG 2101 of 2018. However, that primary issue is a matter for the solicitors for the Minister to take up with their client. A review of the version of the document which is on the Court file indicates that the version filed pertains to the correct matter. In any event, I asked the applicant if he had any difficulty with the Court Book being received, and he said that he did not. Accordingly, the hard copy of the Court Book filed in this matter was marked Exhibit “1R”, and the matter proceeded.
Given that the applicant has failed on two occasions to avail himself of the grant of leave to amend his application, the grounds that fall for consideration by this Court are those in the originating application, to which I would make an additional observation. The grounds of the application are as follows:
1.The Administrative Appeals Tribunal failed to comply with Section 424 of the Migration Act.
2.There was a breach of procedural fairness because the Administrative Tribunal failed to give a fair hearing for the applicant by breaching the rule against bias.
3.The Administrative Appeals Tribunal failed to exercise it inquisitorial role by not being fair minded and informed.
The written submission which was filed for the applicant and received by the Court at hearing today appears to have been compiled by somebody who has some legal knowledge. The document is signed and dated by the applicant himself. When I asked the applicant who prepared this document, he indicated that he did with the assistance of his friend. He said his friend is not a lawyer.
I observed from a review of that document that it seems to make contentions which overlapped primarily with ground 2 in the originating application, albeit possibly also with ground 3. I asked the applicant whether he intended that only the bias ground be pressed, to which he responded “yes”. However, given that the applicant is unrepresented, I will consider all three grounds in the originating application and what is set out in the written submission (albeit there is considerable overlap). When asked to speak to the grounds, the applicant added some additional issues, namely an allegation that the Tribunal failed to investigate his matter and also that the Tribunal made its decision straightaway, although this latter allegation does seem to fall within the ambit of the allegation of the bias.
Turning then to the grounds of application, the first ground alleges a failure on the part of the Tribunal to comply with s 424A of the Migration Act 1958 (Cth) (Act). Section 424A falls within Division 4 of Part 7 of the Act, which does not apply in the present case because this is a part 5 reviewable decision. The analogue within Part 5 to s 424 of the Act is s 359 of the Act. Section 359 is as follows:
Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
It is true that in this matter the Tribunal invited the applicant to provide it with copies of documents relating to his employment (CB 171 - 174). A review of that invitation indicates that it complied with the relevant requirements of the Act in that it specified that the information was to be given in writing (s 359B(1)), was given to the applicant by one of the methods specified in s 379A of the Act (being the last email address provided to the Tribunal by the applicant in connection with the review (ss 359(3) and 379A(5)(d)) and specified the period of time in which the applicant was require to provide the information requested being the prescribed period of 14 days from when the invitation was received (s 359B(2) reg 4.17(4) of the Regulations). The Tribunal then clearly had regard to the payslips and a work reference for unpaid work provided to it on 4 April 2018 (CB 175-222) in accordance with s 359(1) of the Act. The Tribunal expressly recorded the provision, and its consideration, of these documents at [31]-[32] of the decision. The first respondent says ground does not establish jurisdictional error in the Tribunal’s decision, and I agree.
There is nothing before me to indicate any failure on the part of the Tribunal to comply with its statutory obligations in that regard, and to the extent that the requirement is that if the Tribunal invites an applicant to provide such information, then s 359(1) also mandates that the Tribunal have regard to the information it receives in response to that invitation. It is clear from a review of [31] to [32] of the Tribunal’s decision that it expressly did so. I will return to those paragraphs of the Tribunal’s decision shortly in relation to another allegation which is made by the applicant’s written submissions.
It is convenient to deal with grounds 2 and 3 of the application together because they allege a breach of procedural fairness constituted by the Tribunal being biased and ground 3 also alleges that the Tribunal failed to exercise its inquisitorial role by not being fair-minded and informed. It is to these two grounds that the applicant’s written submissions direct themselves. In so doing, the applicant takes issue with two specific parts of the Tribunal’s decision.
Paragraph [21] of the Tribunal’s decision is as follows (emphasis added):
The Tribunal does not consider that a suite of marketing courses that are aimed at people pursuing a career in marketing will enhance this applicant’s future job prospects, given that he intends to open his own restaurant. In any event, he has completed the Diploma of Marketing and a substantial part of the Advanced Diploma and will take that knowledge with him when he returns to his home country and opens a restaurant, if that is what he still intends to do, given that the decision to refuse his visa is affirmed by the Tribunal.
By his written submissions, the applicant says that that phrase in bold above demonstrates that the member had predetermined the review application and had made up her mind during the hearing. I do not agree with this characterisation.
Section 368 of the Act provides for the manner in which the Tribunal is to give its decision and written statement of decision as follows:
Tribunal's decision and written statement
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application--indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
Note: Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.
…
It is well-established that the making of the decision of the Tribunal is not the writing of the statement which gives reasons for that decision: see He v Minister for Immigration and Border Protection (2017) 255 FCR 41 per Siopis, Kerr and Rangiah JJ at [79] and merely because during the course of setting out the reasons for the decision that has been reached the Tribunal includes (in a non-sequential way) what that decision is, does not mean that the matter has been predetermined within that set of written reasons. Much less does it indicate that a decision was made during the course of the hearing. In that regard, I will address what the applicant said to me in oral submissions that the Tribunal member erred by making her decision “straightaway”.
The applicant says that this indicated he has been unfairly treated. A review of the materials before me in the Court Book does not bear this allegation out. The Tribunal’s hearing took place on 20 March 2018 (see hearing information record CB 113 - 115). The Tribunal records at [29] of its decision that it emailed the applicant on the morning of the hearing by sending an email seeking further information to his authorised recipient as it was required to do. The applicant’s authorised recipient, who was his migration agent, was present at the hearing and indicated that she had not received that email. Accordingly, the Tribunal records that the applicant was given extra time to provide the information after the hearing, which he did, and that the relevant bank statements which were provided had been considered. Thereafter, the Tribunal did not make its decision until 3 July 2018, which is some three and a half months later.
In my view, there is nothing to bear out a suggestion that the Tribunal made its decision “straight away” or that it was in any sense pre-emptory in reaching its decision having regard to the abovementioned matters. Accordingly, to the extent that the applicant alleges the decision was made immediately, I reject this. To the extent that that was otherwise suggested to be a particular which demonstrated bias in relation to [21] of the Tribunal’s decision, I also do not accept that characterisation.
For the Minister, it was submitted that the Tribunal is obliged under the Act to set out its reasons and the decision. The Minister says that there is no requirement that the Tribunal set those reasons out sequentially and that the Tribunal was permitted to combine the statements of decision and reasoning, and I agree. Accordingly, I am not satisfied that there is any error constituted by the statement at the end of [21] of the reasons for decision either as an indicia of bias, apprehended or actual.
An allegation of actual bias is a serious matter which must be expressly alleged and clearly proved. I am not satisfied that the applicant has done either in this regard in relation to the decision as a whole but more specifically in relation to [21], nor am I satisfied that there is anything arising from [21] of the decision as a whole which would suggest that a fair-minded lay observer properly informed as to the nature of the proceedings and the matters in issue and the conduct of the Tribunal would reasonably have apprehended that the Tribunal had not brought an impartial mind to the resolution of the question to be decided, and I will cite Re: Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
In relation to the allegation of bias and a failure to afford the applicant natural justice, he also relies on [31] to [32] of the Tribunal’s reasons for decision. I have already dealt with these above (at [25]) in relation to the s 359 allegation.
Under cl 500.212(b)(i), the Tribunal was required to have regard to whether the applicant intended to comply with any conditions subject to which the visa was granted, having regard to his record of compliance with any condition of a visa previously held by him. In this regard, the Tribunal’s line of inquiry as to the amount of work undertaken by the applicant in terms of hours deduced from the amount he had been paid for his work was a relevant inquiry. The Minister submits, and I agree, that it was reasonable of the Tribunal to request the information that it did, namely, work records and payslips.
Contrary to what is asserted for the applicant in his written submissions, (namely that the content of [31] and [32] of the Tribunal decision demonstrates that the Tribunal was searching for all possible mistakes that the applicant had done in order to justify affirming the decision under review), which is said to indicate prejudgment on the part of the Tribunal, this cannot be made out. The final sentence of [32] indicates that the Tribunal gave the applicant the benefit of the doubt that he had not breached the work condition, and accordingly, this was not used in any way adverse to the applicant. Again, by reference to Ex parte H (supra), I reject the suggestion that this indicates the Tribunal was in any way biased towards the applicant or that there was an apprehension of such that would arise from the Tribunal obtaining information directly referable to one of the criteria it was required to satisfy itself of and not using that material in any way adverse to the applicant, but rather giving him the benefit of the doubt that he had, in fact, complied previously with visa conditions.
There remain two matters for consideration one arising from the applicant’s written submissions and the other from oral submissions be made. On page 2 of the applicant’s written submissions under the heading “Legislation and Case Law”, the applicant makes reference to s 361(3) of the Act. That section relates to the right of an applicant to request that the Tribunal call witnesses or obtain written material from other persons. However, notwithstanding the fact that s 361 is cited in the written submissions, the content set out under that heading is actually s 359 of the Act.
I have already dealt with that section above in relation to ground 1 and found that there was no breach of that section. However, in the interests of completeness, I have reviewed the applicant’s response to hearing invitation form (CB 107 - 109), and note that under “Part 3 witnesses”, when asked whether he requested the member to take oral evidence from another person, the response selected by ticking a box correlates with the answer “no”.
Accordingly, notwithstanding the fact that it is clear that that response to hearing information form was dated on 20 February 2018 and the applicant was invited to the hearing on 19 February 2018 such that it complied with being within the seven day period after being notified under s 361(1), by ticking the box “no”, the applicant expressly declined the invitation to notify the Tribunal that he wished it to take evidence. Accordingly there could be no breach of s 361 of the Act.
The only remaining allegation was one made by the applicant in oral submissions at the outset of the hearing, which was that the Tribunal did not investigate his matter “thoroughly and in detail”. It is well-established that there is no general duty on the Tribunal to inquire. When the applicant says that the Tribunal failed to exercise its inquisitorial role to the extent that he was suggesting that it ought to have inquired into certain matters, those matters have not been particularised by him. Given that there is no general duty to inquire and that the applicant has made no submissions about an obvious inquiry about a critical fact the existence of which was easily ascertainable, I am not satisfied that there was any obligation arising of the kind in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 in this matter such that the tribunal could be said to have failed to have pursued such an obvious inquiry. Accordingly, I find no error in that regard either.
In my view, none of the grounds raised in the originating application as augmented by the applicant’s written submission filed on 6 September 2022 or the oral submissions that he has made to me today gives rise to a jurisdictional error. In the absence of a jurisdictional error, the decision is a privative clause decision and must be dismissed, and I will so order.
Consequent upon the dismissal, the solicitor for the Minister seeks an order that the applicant pay the Minister’s costs fixed in the sum of $5,000. When asked whether or not there was anything the applicant wished to say about whether costs should be ordered and, if so, in what amount, he indicated that he had no submissions to make. I am satisfied that in this matter a costs order should be made. I am further satisfied that $5,000 is reasonable, having regard to the nature and length of the proceedings.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 27 September 2022
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