Bhandari & Anor v Minister for Immigration & Anor [2010] FMCA 369 (17 May 2010)

Last Updated: 9 June 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BHANDARI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 369

MIGRATION – Application to review decision of Migration Review Tribunal – sections 359AA and 359A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Education Services for Overseas Students Act 2000 (Cth), s.19 Migration Act 1958 (Cth), ss.116, 140, 359AA, 359A, 360, 424AA, 424A Migration Regulations 1994 (Cth), reg.2.43, subcl.8202 of Schedule 8

Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46

First Applicant:

SATISH KUMAR BHANDARI

Second Applicant:

SABINA SINGH BHANDARI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3130 of 2009

Judgment of:

Barnes FM

Hearing dates:

29 April 2010, 17 May 2010

Delivered at:

Sydney

Delivered on:

17 May 2010

REPRESENTATION

Solicitors for the Applicants:

Turner Coulson Immigration Lawyers

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application be dismissed.
(2) The applicants pay the costs of the first respondent fixed in the sum of $7,500.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3130 of 2009

SATISH KUMAR BHANDARI & SABINA SINGH BHANDARI

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal dated 27 November 2009. The Tribunal affirmed a decision of a delegate of the first respondent to cancel the first applicant’s subclass 572 Vocational Education and Training Sector visa. It found that it did not have jurisdiction to review the cancellation of the visa of the second applicant.
2. The applicants (who are husband and wife) were granted student Class TU subclass 572 Vocational Education and Training Sector visas on 5 May 2008. The first applicant, who is referred to for convenience as the applicant, commenced a course of study at the Meridian International Hotel School (Meridian) in April 2008. He was given a notice of intention to consider cancellation of his visa by the Department on 11 June 2009. On 24 June 2009 the first respondent cancelled his visa. Hence his wife’s visa, which she held as a member of her husband’s family unit, was automatically cancelled under s.140(1) of the Migration Act 1958 (Cth) (the Act).
3. The applicant’s visa was cancelled on the basis that he had not complied with a condition to which his visa was subject (condition 8202 in Schedule 8 of the Migration Regulations) and the non-compliance was not due to exceptional circumstances beyond his control. On 9 July 2009 the applicants sought review by the Tribunal.
4. The applicant attended Tribunal hearings on 30 September 2009 and 26 November 2009. Copies of the transcript of the Tribunal’s hearing are in evidence before the court as annexures to the affidavit of Raymond Charles Turner affirmed on 20 April 2010. Also in the material before the court is a copy of the certification by Meridian for the purposes of subcl.8202(3) of Schedule 8 to the Migration Regulations 1994 (Cth) that the applicant had not achieved satisfactory course attendance for s.19 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students.
5. In its reasons for decision the Tribunal set out the applicable law, in particular the Minister’s power under s.116(1)(b) of the Migration Act to cancel a visa where the visa holder had not complied with a condition of the visa. Section 116(3) provides that if the Minister may cancel a visa under s.116(1), “the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled”. Regulation 2.43 of the Migration Regulations specifies for s.116(3) the circumstances in which the Minister must cancel a visa. In the case of a Student Temporary Class TU visa (which was the class of visa held by the applicant), one of the bases on which the Minister “must” cancel a visa is that the Minister is satisfied that the visa holder has not complied with condition 8202 and the non-compliance was not due to exceptional circumstances beyond the visa holder’s control (see reg.2.43(2)(b)(ii)).
6. Relevantly, condition 8202(3) is as follows:
   • A holder meets the requirements of this subclause if neither of the following applies:
   • (a) ...
   • (b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
     • (i) section 19 of the Education Services for Overseas Students Act 2000 ; and
     • (ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
7. The Tribunal observed that under condition 8202(3)(b) as in force at the relevant time a visa holder would meet the attendance requirements unless the education provider had certified him as not achieving a satisfactory course attendance for s.19 of the ESOS Act and standard 11. The Tribunal found that on 27 May 2009 the education provider had certified Mr Bhandari as having breached condition 8202(3)(b) of his visa for not achieving satisfactory course attendance. On this basis the Tribunal found that the applicant had not complied with condition 8202(3)(b), so that the ground for cancellation in s.116(1)(b) of the Act existed.
8. The Tribunal discussed the meaning of exceptional circumstances and the matters to be taken into account in connection with whether the non-compliance was due to exceptional circumstances beyond the visa holder’s control. The Tribunal went on to find, for reasons which it gave, that it was satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control.
9. It found first that, contrary to the applicant’s claim, his father’s reported chronic asthma condition was arguably not an “exceptional” circumstance, given that it had apparently gone on for many years. In any event, the Tribunal’s crucial concern was one of credibility. The Tribunal found that the documentary evidence before it did not support the claim that the applicant’s father was suffering from asthma, let alone a bout that was so serious as to be exceptional.
10. The Tribunal accepted that the documentary evidence before it (in particular a letter said to be from a doctor and dated 17 February 2009) supported the applicant’s claim that his father had a heart condition that had been treated by way of a bypass operation on 14 February 2009, but on the oral evidence of the applicant the Tribunal concluded that this letter was not written on 17 February 2009 as it stated, but rather at a later date in response to a request for supporting evidence of a kind that had been identified as lacking at the time of cancellation. It found that the supporting letter “did not exist in February 2009, or prior to the [cancellation] decision” and that it was “unreliable”.
11. The Tribunal considered the possibility that the letter might be “unreliable evidence of a true fact”, but found that the evidence of Mr Chhetri (a witness at the hearing who claimed he had visited the applicant’s family in Nepal) did not support such a finding, as Mr Chhetri referred only to the father’s asthma and suggested that as at 16 or 17 February 2009 the applicant’s father needed to have an operation in the future. The Tribunal was “not convinced by the witness’s explanation as to why he was not aware at the time of the visit that the applicant’s father had just come out of major heart surgery” as the applicant claimed.
12. The Tribunal had regard to a letter from the applicant’s mother dated 4 March 2009. Based on the applicant’s evidence at the hearing, it was of the view that this letter was also created after the visa had already been cancelled and that it could not be “relied upon as a truthful description of what was happening to the applicant’s family in February and March 2009”. The Tribunal addressed other concerns about this letter and to the absence of a convincing explanation for why the applicant would have been asked to fly back to Nepal some considerable time after the events he said had occurred to his father, “why this request was made via a medium that would take days” to reach him and the absence of a convincing account of attempts by him to explore with Meridian whether he could take time off to meet his mother’s purported request. The Tribunal also had regard to the applicant’s lack of knowledge of the details of his father’s claimed operation.
13. The Tribunal found that the applicant’s evidence about when he first alerted the school about the problems he faced with attendance was inconsistent and unsupported. It referred to the fact that generally his evidence was that he “did not approach the school until after he [had been] notified of having fallen below attendance requirements”, and that when he did so “it was to explain his already-recorded absences”. It observed that there was no evidence to suggest that the applicant had discussed with the school what his family was said to have asked him to consider (taking time off school without severing his studies).
14. The Tribunal found it hard to accept that the circumstances described in the doctor’s and the mother’s letters were genuine. The fact that the letters were not presented until the review stage of the application, together with other concerns, added to the Tribunal’s impression that both letters were not genuine.
15. The Tribunal found that it could not rely on either letter or on the witness’s evidence. Nor did it accept that the applicant took action regarding his student status at the time of the claimed request to come home and see his father. It found that he did not do so until he received “serious indications of the potential or impending cancellation of his visa”.
16. The Tribunal referred generally to concerns about aspects of the applicant’s oral evidence. It observed that he had “tended to change aspects of his oral evidence, in the face of critical enquiry” when the information presented no longer appeared to help his case and that this “gave the Tribunal the impression that he was not a reliable witness”. This was said to be relevant in relation to whether the Tribunal was prepared to give the applicant the benefit of the doubt, notwithstanding that it had found that it could not rely on the documents he had submitted or on the witness’s evidence.
17. The Tribunal had regard to contradictions and blurred distinctions in the applicant’s evidence, and inconsistent and unsupported evidence about his “attempted” actions and his absences from school. The Tribunal found that the applicant was unreliable with the facts. It also had regard to the applicant’s inconsistent evidence about the effect of his father’s alleged illness on his capacity to work at the relevant time. It found that his claim that he was disadvantaged by cancellation of the visa because he could not obtain evidence from the school that might help him was unsupported and was given no weight.
18. Nor did the Tribunal give any weight to the evidence of the applicant’s wife, who spoke about circumstances after the visa cancellation, but who would not have been present at any discussions with the education provider.
19. In finding that it did not accept that the applicant’s father was ill or that family issues gave rise to exceptional circumstances beyond the applicant’s control that led in turn to his breach of condition 8202 the Tribunal gave weight to what it considered to be serious credibility and consistency problems arising from examining the two letters, the witness’s evidence and the applicant’s own evidence. It found all the applicant’s claims about exceptional circumstances beyond his control were unreliable on the evidence before it.
20. The Tribunal was satisfied that the applicant’s non-compliance was not due to exceptional circumstances beyond his control and that hence under s.116(3) of the Act there were prescribed circumstances in which his visa must be cancelled.
21. The applicant sought review by application filed in this court on 23 December 2009. He filed an amended application on 12 January 2010.
22. The matter came before the court for hearing on 29 April 2010. A number of issues arose about the precise grounds relied upon by the applicant in the course of oral submissions. The applicant, through his solicitor, was given the opportunity to clarify the grounds on which he sought to rely by filing a further amended application and further written submissions. The matter was adjourned part-heard until today. A further amended application was filed on 6 May 2010. In addition to the applicant’s original and further submissions, the first respondent filed original and supplementary submissions.
23. Mr Turner, for the applicant, confirmed today that no reliance was now placed on the grounds in the application or amended application and that the only grounds relied on were those in the further amended application, which I will refer to as the application.
24. The application is expressed to contain one ground, which is that the Tribunal “failed to carry out its statutory duty”. There are four particulars, which, it was confirmed, all relate to ss.359A and 359AA of the Act. It is contended in particular a(i) that the Tribunal “failed to comply with the provisions of the Migration Act 1958 s.359A and s.359A(sic)”. When the repetition in this particular was raised with Mr Turner he indicated that this was a typographical error and that the application should have referred to s.359A and s.359AA. Leave was given to amend the further amended application to refer to s.359A and s.359AA.
25. However Mr Turner also confirmed that, consistent with the approach taken to the interaction between s.424A and s.424AA in SZMCD Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46, it was not contended that non-compliance with s.359AA of itself constituted jurisdictional error. It was acknowledged that the Tribunal could meet its obligations under s.359A by complying with the procedure in s.359AA.
26. I note that s.359A(3) provides that the Tribunal is not obliged under s.359A to give particular of information to an applicant, nor to invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information under s.359AA of the Act. Hence the starting point is whether there is “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” within s.359A(1) of the Act.
27. It is not in dispute that the Tribunal did not give any notice in writing to the applicant under s359A of the Act so that the issue is whether or not the material referred to in the particulars is within s.359A(1) and, if so, whether the Tribunal met its obligations under s.359AA in the course of the two hearings, so that s.359A(3) meant that it was not obliged to give a written notice to the applicant under s.359A of the Act. Particular a(i) in the application merely asserts, but does not establish, jurisdictional error.
28. The matters relied on to establish a failure to comply with s.359A are set out in particulars (ii), (iii) and (iv) in the application.
29. The first basis on which it is said that there was a failure to comply with s.359A (or s.359AA) is as follows:
    • The Tribunal advised the First Applicant of adverse information, “evidence of the certification of his breach of condition 8202” but failed to ensure that the First Applicant understood why the information was relevant and the consequences of the information being relied upon to affirm the decision under review or to advise the First Applicant that he may seek additional time to comment on or respond to the information.
30. The material that is said to be “information” within s.359A is the evidence of certification by Meridian of the applicant’s breach of condition 8202. The applicant’s contention is that while the evidence of certification was raised with him in the course of the hearing, the Tribunal failed to ensure in the course of the hearing that he understood why it was relevant and the consequences of the information being relied upon, or to advise him that he may seek additional time to comment on, or respond to, the information.
31. The evidence of certification in question is a document in the Court Book headed “Certification for the purposes of subclause 8202(3) of Schedule 8 of the Migrations Regulations 1994” from Meridian under the name of the Principal Executive Officer of Meridian certifying that Mr Bhandari had not achieved satisfactory course attendance for s.19 of the ESOS Act and standard 11 for a specified course.
32. It is apparent that the applicant was aware that he sought review by the Tribunal of the delegate’s decision. Importantly, with his application for review lodged with the Tribunal he provided a copy to the Tribunal of the delegate’s decision, which referred expressly to the fact of certification by Meridian. Indeed the record of the delegate’s decision as to whether to cancel the visa under s.116 of the Act referred not only to the certification, but also to the precise extent of the certification under the heading: evidence of grounds for cancellation. It recorded that Meridian had certified the applicant as not achieving satisfactory course attendance for s.19 of the ESOS Act and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students as evidence of grounds for cancellation. A general statement about such certification also appeared later in the decision record.
33. In addition, the information given to the Tribunal by the applicant included a copy of the notification of cancellation from the Department in which it was expressly stated that Meridian had certified him as not achieving satisfactory course attendance in relation to his Certificate IV course.
34. It was submitted for the first respondent that while evidence of the certification may be information within s.359A(1) of the Act, in this case the exception in s.359A(4)(b) of the Act applied, as it was information “that the applicant gave for the purpose of the application for review”. This was said to be consistent with the approach taken by the Federal Court in Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241. In You Sundberg J held that where an applicant gave the Tribunal a copy of a delegate’s decision attached to his application for review which contained information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review, the applicant gave that information to the Tribunal for the purpose of the application for review. A distinction was drawn between the concept of “gave” in s.359A(4)(b) and the notion of “relied on”. His Honour indicated that while the applicant may not have incorporated or adopted the delegate’s decision (which in that case referred to the results of a home visit to the applicant’s home) nonetheless, while not relying on that information, he gave the Tribunal the delegate’s decision. On that basis he was said to have given the information contained in the delegate’s reasons to the Tribunal (at [16]) within s.359A(4)(b).
35. Similarly in this case, on that reasoning the applicant “gave” the Tribunal information consisting of evidence of certification by Meridian that he had not achieved satisfactory course attendance for s.19 and standard 11 for the purpose of the application for review. Hence that “information” is outside the obligation in s.359A(1). On this basis the issue of whether or not the information was given to the applicant in accordance with 359A(3) by the method prescribed in s.359AA strictly speaking would not arise.
36. However, if I am wrong and the applicant is correct to submit that the information was not within s.359A(4)(b) because the Tribunal stated to him at the hearing that it was information that was not given to it by him, I am in any event satisfied that the Tribunal complied with the manner in which information may be given orally to an applicant under s.359AA in relation to such information.
37. The applicant’s contention in this respect acknowledged that the Tribunal advised the applicant of this information in the hearing. In particular at the start of the first hearing the Tribunal said:
    • The information is this, that on 27 May 2009 you were certified by your education provider to be in breach of Condition 8202 of your student visa as not achieving satisfactory course attendance for the purposes of applicable laws and regulations.
    • I am going to invite you to comment on that certification of the breach of your student visa. I must give you an option as to whether you want to respond now or ask you if you need more time to respond.
38. However the solicitor for the applicant contended that while the Tribunal had advised the first applicant of this information, it had failed to ensure that he understood why it was relevant and the consequences of the information being relied upon, or to advise him that he may seek additional time.
39. In relation to why the information was relevant, the Tribunal set out at the start of the hearing that it was a hearing in the matter of the cancellation of a student visa and stated:
    • I will be taking an independent and fresh look at the circumstances of your application for review of this cancellation.
40. It subsequently told the applicant:

An appropriate way to proceed with this review would be to follow the protocols of the Migration Act, to draw your attention to potentially relevant information that I have received from another source; that is, not from you. I don’t think you will be surprised but I have to follow the protocol anyway. It is information that, subject to what you might say in response, could be information that might lead me to affirm the Delegate’s decision to cancel your visa. My mind is not made up and I will listen to your information before coming to any conclusions. I will listen to your response to the information before coming to any conclusion.

41. The Tribunal then put to the applicant information consisting of the fact of the certification that he was in breach of condition 8202 of his student visa as not achieving satisfactory course attendance for the purposes of applicable laws and regulations.
42. In my view, particularly when one has regard to the whole of the Tribunal hearing and the subsequent discussion of this issue, in that way the Tribunal orally gave the applicant clear particulars of the information it considered would be the reason, or a part of the reason, and, in so doing, ensured as far as reasonably practicable, that the applicant understood why the information was relevant and the consequences of the information being relied on in affirming the decision in accordance with s.359AA. That is consistent with the manner in which the applicant addressed this information, taking issue with the extent of his absence and then seeking to explain his absence.
43. It is also clear that, in saying:
    • I must give you an option as to whether you want to respond now or ask you if you need more time to respond.

the Tribunal did advise the applicant that he could seek more time to respond (in compliance with s.359A(b)(iii). The applicant responded “I shall respond to it now”.

44. No failure to comply with the procedure in s.359AA is made out. Section 359AA would apply and no obligation under s.359A arose and no breach of s.359A is made out on the basis contended for in particular (a)(ii) to the ground in the further amended application.
45. The next particular (a(iii)) is that “The Tribunal had information provided by the Meridian International Hotel School, CB 73-85 and failed to provide full particulars of the information, explain why it was relevant and give the Applicant a real opportunity to respond”.
46. This claim was addressed in part by the applicant’s solicitor’s oral submission at the hearing on 29 April 2010. However the ground in the amended application in relation to the information from Meridian was that the Tribunal failed to establish the facts which may lead to cancellation when those facts were put in question by the first respondent. That ground is no longer pressed. It became apparent that the applicant also took issue with whether or not the Tribunal had complied with s.359A (in particular through s.359AA) in relation to the information provided to it by Meridian. The further amended application makes this clear. The only ground now relied on by the applicant in relation to this information is that the Tribunal failed to comply with s.359A (or s.359AA) in the manner specified in particular a(iii) of the further amended application.
47. By letter of 30 September 2009, the date of the first Tribunal hearing, the Tribunal wrote to Meridian. It referred to the certification and asked for a detailed attendance report in relation to the applicant’s course. In response Meridian provided the Tribunal with a number of documents, consisting of copies of a first warning letter, final warning letter, an intention to report letter, the applicant’s attendance record (which is the document that had originally been sought) and the Meridian Attendance policy and Appeals policy.
48. The applicant’s contention is that the Tribunal failed to provide full particulars of this information to the applicant at the hearing, explain why it was relevant and give the applicant a real opportunity to respond. It is not in dispute that the Tribunal did not put this information to the applicant in writing.
49. The applicant contended that this was material that was relevant to the inquiry and that the Tribunal considered would be the reason, or part of the reason for affirming the decision under review, having regard to the fact that it related to the applicant’s attendance and that it was also potentially relevant to the issue of exceptional circumstances.
50. Under s.359AA, the obligation on the Tribunal, if it seeks to use that process, is to give the applicant clear particulars (not “full particulars” as the application suggests) of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review.
51. However, while the information from Meridian related to the applicant’s attendance and his non-compliance with condition 8202, information from Meridian was not in fact material that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision. What was relevant in that respect (under condition 8202(3)(b)) was the fact of the certification by Meridian, not the additional confirmatory material provided by Meridian, the information in relation to warnings that it had provided to the applicant or his attendance record.
52. As counsel for the first respondent contended, the prerequisite for cancellation was the existence of the certification in the terms referred to in condition 8202, not information of the nature the Tribunal obtained from Meridian. Further, the Tribunal did not treat the information provided by Meridian as of significance in relation to whether or not the applicant had failed to comply with condition 8202.
53. It may be, however, that the information from Meridian had some potential relevance to the question of whether there were “exceptional circumstances” and on that basis it is necessary to consider whether the material from Meridian College was “information” in the sense of a rejection, denial or undermining of the applicant’s claims (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 re s.424A at [17]). On its face there was nothing factually in the information from Meridian that amounted to a rejection, denial or undermining of the applicant’s claims. Rather there was an absence of information supporting his contentions about exceptional circumstances (see SZBYR at [18]).
54. Moreover the Tribunal did not treat the material from Meridian as of any significance in its decision and hence it could be inferred that it did not consider the Meridian information to be part of the reason for affirming the decision under review (see Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31 at [17] – [26]).
55. In any event, it is not necessary to delve into these issues (which were canvassed by counsel for the first respondent but not addressed in any comprehensive manner by the solicitor for the applicant), because it is clear that the Tribunal put the material from Meridian to the applicant at length in the second hearing, thus providing “clear particulars”. It also invited the applicant to respond and advised the applicant that he may seek more time in accordance with s.359AA of the Act.
56. As counsel for the first respondent observed, there was no argument from the applicant as to why the detailed process adopted by the Tribunal did not amount to a compliance with the procedures in s.359AA. Commencing at page 26 of the transcript of the second Tribunal hearing, after the applicant raised an issue about his attendance, and the Tribunal had put to him an apparent contradiction, the Tribunal asked the applicant about precisely what he had done and whether he had attended classes.
57. The Tribunal then put to the applicant that it wanted to go through some information with him. It put to him that Meridian had kept a diary of encounters with him and of discussions with him over compliance with his student visa. It detailed these encounters at some considerable length, summarised what was said to have occurred and the extent of non-compliance that appeared to be in issue from this information. It also referred to the fact that the applicant had received a serious warning from Meridian and to the absence of any evidence that he had responded to the first warning or tried to respond to it. It put to him what occurred when a notice of intention to report was sent to him and thereafter. The Tribunal then stated:
    • I’ve read out to you pretty much the whole content of this education provider’s record. This is information that, subject to comments you might make, could lead me to disbelieve your claims about trying to manage this problem with your education provider because today you said previously it was only one or two days that you were absent, however there’s quite by (sic) big record of non-attendance, and because when asked what you do in response to this, you said that you tried to talk to them. Okay. But there are long periods here where you – where no reported action by you is noted until 29 May 2009 when you’ve gone to them and said, oh, you did submit an appeal, but there’s no appeal application on record.
    • Okay, that’s it. Subject to comments you might make, I might find your account of how you performed and how you performed in relation to these notices unreliable, so I give you an I want to give you an opportunity to respond. You have the option to respond now or let me know if you need more time.

The applicant stated:

I would say now.

Thereafter there was further discussion of the Meridian material and the issues that the Tribunal had in that respect.

58. In this exchange the Tribunal gave “clear particulars” of the information to the applicant, explained why it was relevant to the review and the consequences of the information being relied upon, particularly in relation to the credibility of the claims that the applicant made about his performance and also about his attempts to contact the school.
59. The applicant was given a real opportunity to respond by the Tribunal, which informed him of his opportunity to have additional time to comment or respond. The applicant indicated that he would respond. Hence, the Tribunal gave the particulars, and invited the applicant to comment or respond in the manner provided for in s.359AA. Section 359A(3) is applicable and the s.359A obligation has not been breached.
60. The final item of information relied upon in the further amended application is in particular a(iv). It is that the Tribunal had information from a witness, Mr Chhetri and that:
    • While it did give particulars of the information to the Applicant, it did not, by denying him an adjournment, give him a real opportunity to respond to the information.
61. Mr Chhetri gave evidence for the applicant in the Tribunal hearing, in particular about a visit to the applicant’s family in Nepal and what he observed there in relation to the condition of the applicant’s father. The applicant’s father’s condition was the matter raised by the applicant as possible exceptional circumstances.
62. The solicitor for the applicant accepted that particulars of this information were given to the applicant in the course of the hearing, but contended that the Tribunal denied him an adjournment.
63. The first respondent contended that the information from Mr Chhetri was not information within s.359A(1) because it did not, in its terms, constitute a rejection, denial or undermining of the applicant’s claims, and was not relied upon the Tribunal as such. The information from Mr Chhetri was intended to be supportive of the applicant. It did not constitute a rejection, denial or undermining of the applicant’s claims. It was also pointed out that Mr Chhetri’s evidence was rejected by the Tribunal and submitted that in that sense it did not constitute information that the Tribunal considered would be a reason, or a part of the reason, for affirming the decision under review.
64. It is the case that the Tribunal did not accept Mr Chhetri’s evidence. Indeed concern about the credibility of that evidence was one of the matters that contributed to its concerns about the applicant’s claims. Its lack of satisfaction with Mr Chhetri’s evidence was one of the reasons that led the Tribunal not to be satisfied that there were exceptional circumstances as claimed by the applicant. The Tribunal was not obliged to put its thought processes in relation to this evidence to the applicant under s.359A.
65. In any event, whether or not the evidence of Mr Chhetri was information within s.359A(1), I am satisfied that the Tribunal complied with the s.359AA procedures.
66. The only suggested non-compliance with s.359AA was that the Tribunal, by denying the applicant an adjournment, did not give him a real opportunity to respond to the information. It was acknowledged that the Tribunal gave particulars of the information to the applicant.
67. It is necessary to have regard to precisely what occurred in the Tribunal hearing in relation to Mr Chhetri’s evidence given at the adjourned hearing on 26 November 2009. After the Tribunal heard from Mr Chhetri, (referred to as Hari in comments to the applicant), at page 13 of the second transcript the Tribunal said:
    • I’ve just listened to the evidence of Hari; okay? Hari’s evidence does not sit comfortably with the documents that you’ve submitted to me.
68. The Tribunal went on to explain that there was a letter from a doctor stating that the applicant’s father was operated on on 14 February 2009, and a letter from the applicant’s mother, but that Hari’s evidence did not appear to agree with the doctor’s letter which stated that the father had had heart bypass surgery. The Tribunal stated:
    • Also I’m worried that Hari’s evidence about the asthma treatment was vague and possibly inaccurate, that he discerned that [the applicant’s father] was being treated for asthma on account of a drip in his arm. I find it unusual that when told that your father needed an operation, that Hari, who was visiting on, you know, the family, perhaps on your behalf, showed no interest, displayed no interest to your mother as to what kind of operation he might need. I’m concerned about the quality of Hari’s evidence, okay.
69. The Tribunal went on to say:
    • And I’m going to put this to you under the protocols of the Migration Act.

Such protocols had been referred to earlier in the hearing. This was clearly a reference to the procedure in s.359AA of the Act. The Tribunal elaborated on Mr Chhetri’s evidence and set out its concerns, subject to any comments the applicant might make, which the Tribunal said it would listen to and consider. The Tribunal then stated:

I might not be able to accept Hari’s evidence as credible, and I might also form negative views about you presenting Hari as a witness in this matter, and that could reflect on you as a witness of truth in this matter, and that could damage your chances of a successful outcome in this application. I might not be able to find that you’re entitled to any relief from the delegate’s decision. I might affirm the delegate’s decision.
Now, do you want to comment now or do you need more time?

70. In response, the applicant said through the interpreter:
    • Actually, my other witness could not come, the college one, so I wonder if you could wait for him.
    • TRIBUNAL MEMBER: You want me to wait to hear from that other witness?
    • MR BHANDARI: (Through interpreter) And I also want - yes, and I also would like to say about my father’s condition.
    • TRIBUNAL MEMBER: When? When would you like to comment on this? I’m considering. When would you like to comment on your father’s condition?
    • MR BHANDARI: (Through interpreter) If you can consider it, then next time then I come.
    • TRIBUNAL MEMBER: I haven’t decided to have a third part of this hearing. It doesn’t mean I won’t, but I haven’t yet. Let’s go through it. Let me go through this. I’ve put to you that Hari’s evidence doesn’t seem consistent. That an air of implausibility about some of it and it clashes squarely with what’s been said in this letter from the doctor, such as I might not be able to accept that Hari is telling the truth. However, you might have some comments to make that will help me get a way through this factual concern at this stage.
    • Now, I’ve asked you whether you want to comment now or do you need more time. You’ve asked me to hear from another witness on another occasion, later. That’s a request for more time. Okay, that’s not granted in relation to this particular question. I’m asking you to comment, not somebody else.
    • Okay, you have just had the benefit of listening to Hari speak, just this minute or certainly just in these last 10 minutes; okay? I’m not so sure I need to grant you more time. Why do you need more time to respond to my concerns about what Hari just said now?
    • MR BHANDARI: (Through interpreter) I can do the comments now also about Hari. I would like to do now.
71. Mr Bhandari went on to address the concerns of the Tribunal. The Tribunal subsequently reminded him of the matters it wanted to put to him under what the transcript refers to as “434AA of the Migration Act”. (It may be that the Tribunal referred to s.424AA which is the RRT equivalent of s.359AA the provision applicable to the Migration Review Tribunal). In any event, what is clear is that the Tribunal was putting information to the applicant under the Migration Act. It went on to repeat what Mr Chhetri’s evidence was and to elaborate, very clearly, on the Tribunal’s concerns with this information.
72. At that point Mr Bhandari attempted to provide an explanation. He referred to the fact that he obtained the doctor’s certificate after the cancellation, because he was told he had insufficient proof in relation to his claims about the reasons for his non-attendance.
73. It may be that, initially at least, Mr Bhandari was seeking additional time to comment on the matters raised by the Tribunal as well as a further hearing at which his other witness - as he called him - could give evidence. The Tribunal first addressed the request for a further hearing and the issue of the other witness. It stated that a further hearing for such a witness would not be allowed. The Tribunal then reiterated that what it needed to know was when the applicant would like to comment. Importantly, after outlining these concerns the Tribunal stated:
    • I’m not so sure I need to grant you more time. Why do you need more time to respond to my concerns about what Hari just said now?
74. Pausing there, it is apparent that at that point in time, the Tribunal had met the requirements under s.359AA to give particulars of the information, to ensure - as far as reasonably practical – that the applicant understood its relevance and that it had advised him that he may seek additional time to comment or respond. Insofar as any distinction is drawn between the notions of “comment” or “respond”, while initially the Tribunal referred to “comment”, it later clearly asked why the applicant needed more time to “respond”.
75. Relevantly s.359AA(b)(iv) is as follows in relation to what the Tribunal “must” do if it puts particulars of information to an applicant under s.359AA(a):
    • if the applicant seeks additional time to comment on or respond to the information -- adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
76. The Tribunal clearly gave the applicant an opportunity to provide it with further information to enable the Tribunal to consider whether to exercise its discretion to adjourn the review if it considered, on the basis of what the applicant said or otherwise, that the applicant reasonably needed additional time to comment on or respond to the information. At that point in time, the applicant said:
    • I can do the comments now also about Hari. I would like to do now.
77. I am not satisfied that the applicant, in effect, persisted until he thought that he could not persist and would not succeed and then simply said, “I’ll provide the information now” as was submitted for him. In any event, the Tribunal was not obliged to grant an adjournment. The applicant was asked to give reasons why more time was needed. Mr Turner, for the applicant, suggested that had more time been provided, it may be that further medical evidence from the hospital may have been provided. Mr Bhandari did not, however, raise such a concern in his discussions with the Tribunal. Given that the applicant had provided information (which he obtained after the visa cancellation) to support the grounds that he relied on in relation to what had occurred to his father in Nepal, it was open to the Tribunal to take the view that the applicant did not reasonably need additional time to comment or respond. When the applicant said:
    • I can do the comments now also about Hari. I would like to do now.

It was open to the Tribunal to say:

Okay then. Okay, go ahead.

78. This does not reveal that the exercise of the Tribunal’s discretion under s.359AA(b)(iv) of the Act in any way miscarried, or that by denying the applicant an adjournment, it did not give him a real opportunity to respond to the information.
79. The ground in the further amended application related only to ss.359A and 359AA. There was no suggestion - and nor could there be - that the Tribunal failed in some way to meet its obligations under s.360 to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The ground as pleaded in the further amended application is not made out.
80. As no jurisdictional error has been established on any of the bases contended for by the applicant, the application must be dismissed with costs.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 8 June 2010