FEDERAL COURT OF AUSTRALIA

Bala v Minister for Immigration and Border Protection [2019] FCA 600

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay the costs of the first respondent of this appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    This is an appeal from orders of the Federal Circuit Court made on 21 September 2018, dismissing the appellants’ application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, made on 10 May 2017. The Tribunal affirmed the decision of the first respondent, the Minister for Immigration and Border Protection, to refuse to grant them a Student Temporary (Class TU) (subclass 572) Visa.

Background

2    The first appellant is the wife of the second appellant. Both appellants are citizens of India. On 15 August 2009 the first appellant arrived in Australia on a student visa. Since that time, the first appellant has held various student and associated bridging visas.

3    On 18 May 2015, the appellants each applied for a student visa. The first appellant is the principal applicant. The second appellant’s application was made on the basis that he was (and remains) the husband of the first appellant. The first appellant’s application was made on the ground that she was enrolled to undertake a course for a Certificate IV in Accounting and a Diploma of Accounting.

4    On 3 August 2015, the delegate refused the first appellant’s application on the grounds that he was not satisfied she was a genuine student. The appellants applied to the Tribunal for review of the delegate’s decision. The application was heard on 10 May 2017. At the conclusion of the oral hearing, the Tribunal gave ex tempore reasons for affirming the decision of the delegate. A written statement of reasons was later provided by the Tribunal. An application was made to the Circuit Court for judicial review, which was refused.

5    The Notice of Appeal in this Court contains three grounds of appeal as follows:

“1.    The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by failing to properly consider the evidence before them;

Particulars

i)    By discounting the evidence that indicated that the Administrative Appeals Tribunal ("AAT") had incorrectly assessed Applicant's eligibility for a Student (Temporary) (Class TU) Subclass 572 visa;

ii)    By failing to consider the evidence in totality and cumulatively;

iii)    Failing to take into account relevant evidence and/or took into account irrelevant evidence generally.

2.    The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by failing to properly and/or adequately investigate and assess the claims of the Applicant and consequently overlooking the incorrect application of Ministerial Direction 53 by the AAT.

3.    The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by displaying bias against the Applicant.”

(Errors in original)

6    At her request, the first appellant appeared at the hearing of the appeal via telephone link. She did not provide any written submissions. The Minister provided detailed written submissions and made oral submissions of the appeal.

7    Grounds Two and Three are in substance unparticularised, although particulars are purportedly given of Ground One. Those particulars do not assist in understanding any specific aspect of the Tribunal’s reasons sought to be impugned for legal error. Making allowance for the fact that the first appellant is unrepresented, I do not consider the absence of proper particulars is sufficient to dispose of the appeal.

8    There was nothing advanced by the first appellant that revealed any legal error on the part of the Tribunal or in the review of the decision by the Circuit Court.

Ground One

9    As was outlined carefully by counsel for the Minister, the function of the Circuit Court is not to replace the Tribunal’s judgment as to the merits of the original decision with its own. The function of the Circuit Court is rather to consider the application as a matter of judicial review: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 174 [23].

10    In my opinion the primary judge properly considered the Tribunal’s reasons for decision having regard to the constraints applicable to judicial review.

11    As I have said, the particulars under Ground One do not advance the first appellant’s case. The first particular listed under Ground One is general and assertive. In terms it is directed to the weight of the evidence before the Tribunal. In the absence of an identifiable error which reveals that the Tribunal failed to take account of a materially relevant matter, this particular is not directed to legal error, but to an impermissible re-assessment of the weight given by the Tribunal to the evidence before it.

12    The second particular under Ground One, putting it at its highest, in substance is a contention that the Tribunal erred in failing to consider a relevant matter by failing to consider the evidence “in totality and cumulatively”. In the course of oral submissions by the first appellant, nothing was said to advance this particular. The Tribunal is not required to refer to every piece of evidence: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]; He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at 59 [83]. In some instances, overlooking a particular piece of evidence may support a conclusion that the Tribunal constructively failed to exercise its jurisdiction, but only where the evidence not referred to is of such significance to warrant that inference being drawn: see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99. There is no basis for such a finding here.

13    The third particular under Ground One is expressed generally and generically. The question of relevance is to be determined by a construction of the statute, not by a process of reasoning based on the particular facts of individual cases: see, e.g., Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 347-348 [73]; Abebe v Commonwealth (1999) 197 CLR 510 at 579 [195]; Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534 at [23]; Jubb v Insurance Australia Ltd (2016) 76 MVR 228 at [91]. As above, there is no basis for a finding that the Circuit Court or the Tribunal failed to take into account any relevant evidence.

Ground Two

14    Ground Two invokes Ministerial Direction 53. This direction was made under s 499 of the Migration Act 1958 (Cth) and sets out factors to be considered by a decision-maker applying section 572.223(1)(a) of the Migration Regulations 1994 (Cth). In Singh v Minister for Immigration [2018] FCCA 3423 at [17] to [36] Judge Riley concluded that where Direction 53 is applicable, each of the criteria must be considered. It is unnecessary for me to form a view about whether the criteria prescribed in Direction 53 are mandatory, as I have concluded that each criteria was considered.

15    The Tribunal expressly referred to Direction 53 and stated that it would have regard to the matters prescribed. It also provided Direction 53 to the appellants in advance of their hearing for comment. Further, the Tribunal considered expressly, or considered by necessary inference, the matters contained in paragraphs 6, 7, 9(a)-(d), 11(a)-(c) and (e), 12(a)-(c), 14(a) and (b), and 16 of Direction 53.

16    For example, paragraph 6 of Direction 53 requires a decision maker to have regard to the “[appellant’s] circumstances in their home country and the [appellant’s] potential circumstances in Australia”. At paragraph 40 of the Decision Record, the Tribunal expressly considered the first appellant’s circumstances in India, specifically her family remaining there. The Tribunal weighed this against the first appellant’s life in Australia with her husband, who is employed driving a taxi. Paragraph 40 of the Decision Record also supports the conclusion that the Tribunal considered paragraphs 9(b), and (c) and 11(a) of Direction 53. Those paragraphs refer to the appellants’ “personal ties to their home country (for example, family …)”, whether “economic circumstances” would present an incentive not to return to the appellants’ home country, and whether the appellants’ “ties with Australia would present a strong incentive to remain …”.

17    The first respondent acknowledged that the Tribunal’s decision did not expressly refer to the matters in paragraphs 9(d) and (e), 11(d) and 15 of Direction 53. However, it does not follow that the factors were not considered: He at 58 [79]. Having regard to the express acknowledgement of Direction 53 and the express reference to a number of the criteria, in my view it is reasonable to infer that matters not mentioned were considered, though not sufficiently germane to the Tribunal’s decision to warrant express mention, separately or collectively.

18    For example, paragraph 9(d) of Direction 53 refers to any disincentive to return due to military service commitments. There was no evidence before the Tribunal that this factor was of relevance. The matters referred to in paragraphs 9(e), 11(d) and 15 are similarly of no apparent relevance to the appellant’s application. In these circumstances, I infer that the Tribunal did not consider it necessary to refer to those factors explicitly in the Decision Record.

19    In my view, there is no basis to conclude that the Tribunal overlooked any mandatory relevant consideration or failed to give “proper, genuine and realistic consideration” in an “active intellectual process” to the evidence; nor that it took into account any forbidden consideration: He at 51 [52].

20    For these reasons, I am not satisfied that there was any legal error in the reasoning of the Circuit Court as advanced in Grounds One and Two of the Notice of Appeal.

Ground Three

21    Ground Three of the notice of appeal alleges bias on the part of both the Tribunal and the primary judge. Assuming this Ground is advanced on the basis of apprehended bias, to succeed, it would be necessary for the first appellant to show that “a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision”: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at 235 [37] per Rares and Jagot JJ. The onus of proof is on the party alleging apprehended bias: AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341 at 346-347 [23]. The standard of proof is high. A finding of apprehended bias is not to be lightly reached so as not to encourage persons “to seek to have their applications heard and resolved by someone thought to be more likely to decide the case in their favour”: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [22]. Accordingly, the ground must be “distinctly made and clearly proved” and it is not enough that a reasonable bystander have “a vague sense of unease or disquiet”: SZRUI at [22].

22    No evidence was advanced to support this ground. The transcript of the hearing in the Circuit Court is not before the Court in this appeal. Neither is any transcript of the hearing before the Tribunal. There was nothing said by the first appellant in this appeal that is capable of supporting a finding of apprehended bias. It also follows that there was no evidence which would support a finding of actual bias, if that is what is intended by Ground Three.

Disposition

23    The appeal is dismissed with costs.

Associate:

Dated:    7 May 2019