ARASU v Minister for Immigration

[2014] FCCA 1456

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARASU & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1456

Catchwords:
MIGRATION – Bridging visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it was affected by an apprehension of bias, was irrational and unreasonable by reason that the Tribunal failed to give guidance to the applicants, failed to observe proper procedures and failed to take a relevant consideration into account.

Legislation:

Migration Act 1958, ss.359A, 360, 474

Migration Regulations 1994, cls.050.212, 050.221, 050.222 of sch.2

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte H (2000) 179 ALR 425
Johnson v Johnson (2000) 201 CLR 488
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437

First Applicant: POOMPAVAI ARASU

Second Applicant: TARUN NIKESH ARASU

Third Applicant: MUKHILAN HARRY ARASU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1534 of 2013

Judgment of: Judge Cameron

Hearing date: 1 July 2014

Date of Last Submission: 1 July 2014

Delivered at: Sydney

Delivered on: 1 July 2014

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The first applicant pay the first respondent’s costs fixed in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1534 of 2013

POOMPAVAI ARASU

First Applicant

TARUN NIKESH ARASU

Second Applicant

MUKHILAN HARRY ARASU

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant, who is a citizen of India, applied for a Bridging E (class WE) visa on 8 June 2012. The second and third applicants, who are her sons, were included in that application. On 18 June 2012 the applicants’ applications were refused by a delegate of the first respondent (“Minister”) on the basis that they did not satisfy cl.050.222 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. The criteria for the grant of Bridging E (class WE) visas are found in pt.050 of sch.2 to the Regulations. The versions of the relevant clauses which applied to the applicants were as follows:

   050.22  Criteria to be satisfied at time of decision

   050.221The applicant continues to satisfy the criteria set out in clauses 050.211 and 050.212.

   050.222        

   (1)Unless subclause (2), (3) or (4) applies, the applicant has been interviewed by an officer who is authorised by the Secretary for the purposes of this clause.

   (2)     This subclause applies if:

   (a)     the applicant is not in immigration detention; and

   (b)the applicant has made a valid application for a substantive visa; and

   (c) the applicant holds a Bridging E (Class WE) visa; and

   (d)the applicant is not seeking to be granted a further Bridging E (Class WE) visa that is subject to conditions other than those that apply to the Bridging E (Class WE) visa that the applicant currently holds.

   (3)     This subclause applies if:

   (a)an officer who is authorised by the Secretary for the purposes of this clause was not available to interview the applicant:

   (i)      at the time of application; or

   (ii)     if the bridging visa could be granted under regulation 2.21B, at the time of decision; and

   (b)     the applicant is not in immigration detention; and

   (c)the applicant has made a valid application for a substantive visa; and

   (d)the applicant has previously held, but does not currently hold, a Bridging E (Class WE) visa.

   (4)     This subclause applies if the applicant is a person:

   (a)     to whom subclause 050.212 (4AAA) applies; or

   (b)     to whom subclause 050.212 (4AB) continues to apply.

2. At the time the applicants made their application, cl.050.212 relevantly provided:

   050.21  Criteria to be satisfied at time of application

   050.212

   (1)The applicant meets the requirements of subclause (2), (3), (3A), (4), (4AAA), (4AA), (4AB), (5), (5A), (5B), (6), (6AA), (6A), (6B), (7), (8) or (9).

   (2)An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

   (3)     An applicant meets the requirements of this subclause if:

   (a)the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined; or

   (b)the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.

   …

   (4AAA)An applicant meets the requirements of this subclause if the applicant has applied for:

   (a)a declaration from a court that the Act does not apply to the applicant; or

   (b)judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act 1948 or the Australian Citizenship Act 2007;

   and the proceedings for the declaration or review have not been completed.

   …

   (4AB)An applicant meets the requirements of this subclause if the applicant is:

   (a) a member of the immediate family of a person who meets the requirements of subclause (4AAA); or

   (b)a brother or sister who has not turned 18, of a person who:

   (i)     meets the requirements of subclause (4AAA); and

   (ii)     has not turned 18.

   …

   (7)     An applicant meets the requirements of this subclause if he or she:

   (a)     is in criminal detention; and

   (b)if he or she has been sentenced to imprisonment or periodic detention, has actually served a period of imprisonment; and

   (c)no criminal justice stay certificate or criminal justice stay warrant about the non‑citizen is in force.

Background facts

1. In the visa application form the first applicant stated that she was making arrangements to depart Australia by air on 15 June 2012.  She did not indicate on the form that she held an airline ticket and in the “Passport/ticket details” part of the form stated “Making arrangements with IOM”.  The term “IOM” was not defined or explained.  The first applicant did not provide any additional information about those arrangements. 

2. On 12 June 2012 the first applicant telephoned the Minister’s department (“Department”) to advise that she would not be attending a scheduled interview with the delegate on that day as she was in hospital.  She again telephoned the Department on 13 June 2012 and advised that she would not be attending her rescheduled interview on that day as she was unwell.  A case note made by a departmental officer recorded that the first applicant also stated that she would be attending a meeting with “IOM” the next day.  Later on 13 June 2012 the first applicant faxed to the Department a medical certificate from Canterbury Hospital which stated that she had been treated at or admitted to the hospital for lower abdominal pain and was unable to attend “work/school” from 12 to 15 June 2012.  A further case note made by a departmental officer, probably the delegate, on 18 June 2012 recorded:

   Client has not attended IOM 18/06/2012.

3. As already noted, on 18 June 2012 the delegate refused the applicants’ applications for visas because she found that they had not attended an interview as required by cl.050.222 of sch.2 to the Regulations.

4. Following their application to the Tribunal for a review of the delegate’s decision, at a hearing held by the Tribunal on 13 June 2013 the first applicant said that she had been invited to attend an interview with the delegate but had been unable to attend due to a medical condition.  She told the Tribunal that she wanted to stay in Australia permanently and that she intended to approach the Minister.  She also said that she had previously made an application for a skilled visa which had been finalised in 2007 and had no other outstanding applications with the Minister, with the Department, with a merits review tribunal or with a court in relation to judicial review.

The Tribunal’s decision and reasons

1. The Tribunal affirmed the delegate’s decision to not grant the applicants visas because it found that they did not satisfy the requirements of cls.050.221 and 050.222 of sch.2 to the Regulations. In reaching is decision:

   a)the Tribunal noted the first applicant’s evidence that she had not attended an interview with a departmental officer following the lodgment of her bridging visa application and found that there was no evidence that any of the applicants had attended the interview. On that basis, it was not satisfied that the applicants met cl.050.222(1). The Tribunal was also not satisfied that the applicants met any of the circumstances set out in the remaining sub-clauses of cl.050.222 which would have exempted them from the requirement to attend an interview; and

   b)the Tribunal found that the applicants did not continue to meet the primary criteria found in cl.050.212. In that connection, the Tribunal relevantly found that:

   i)the applicants did not meet the requirements of cl.050.212(2) because they had not presented any evidence concerning any arrangements they had made to depart Australia or expressed any intention to depart Australia. The Tribunal noted that the first applicant had informed it that she wanted to stay in Australia permanently and intended to approach the Minister. It was therefore not satisfied that at the time they made their application and at the time of its decision the applicants were making, or were the subject of, acceptable arrangements to depart Australia; and

   ii)the applicants did not meet the requirements of cl.050.212(3), noting that the first applicant had informed it that she had made an application for a skilled visa which had been finalised in 2007 and had no other outstanding applications.

   The Tribunal also went on to find that the applicants did not meet the remaining requirements of cl.050.212 of sch.2 to the Regulations.

Proceedings in this Court

1. The applicants’ allegations were set out in their application and I will deal with them in turn

Ground 1

1. In the first ground the applicants alleged:

   The decision of the Tribunal made on the 14^th of June 2013 affirming the decision by the Tribunal Member - Kira Raif was not a “privative clause decision” within the meaning of s 474 of the Migration Act 1958.

2. Section 474(2) of the Act defines a privative clause decision as follows:

   474   Decisions under Act are final

   …

   (2)     In this section:

   privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

3. Plainly, the Tribunal’s decision was a privative clause decision.  However, the real question is whether that decision was affected by jurisdictional error and, for the reasons which follow, the applicants’ allegations do not persuade me that it was.

Ground 2

1. In the second ground the applicants alleged:

   The Tribunal’s decision was infected with jurisdictional error and procedural error and this was detrimental to the applicant getting a fair hearing because the Tribunal would have had perceived bias against the applicant.

2. The test to be applied when deciding whether a decision is tainted by an apprehension of bias is whether a fair-minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias, would reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question it is required to decide: Re Refugee Review Tribunal; Ex parte H (2000) 179 ALR 425; Johnson v Johnson (2000) 201 CLR 488.

3. The applicants identified nothing in the conduct of the review which would justify such a conclusion. 

Ground 3

1. In the third ground the applicants alleged:

   The Tribunal did not in fact raise specific issues in relation to my claims. The Tribunal more or less ran the hearing in a manner that it allowed the applicant to say what she wanted.

2. Subject to the statutory procedural fairness requirements of div.5 of pt.5 of the Act, the Tribunal was not obliged to conduct the hearing of the review in any particular way,.

3. The applicants complained in essence that the first applicant was given no guidance by the Tribunal as to the form or substance of the evidence she provided to it.  However, it was always for her and the other applicants to advance their claims, not for the Tribunal to invite them to make an elaboration which they did not themselves choose to express: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58].

Ground 4

1. In the fourth ground the applicants alleged:

   By conducting the hearing in the manner; in which it did the Tribunal’s decision was infected by jurisdictional error because it circumvented the hearing process without following the procedures.

2. As has already been noted, the procedures which the Tribunal was required to observe were those set out in div.5 of pt.5 of the Act. The applicants have not identified which, or even that, provisions in that division were not observed by the Tribunal. The most important sections in that division are ss.359A and 360 and based on the Tribunal’s recitation in its decision record of the relevant facts, there is no reason to conclude that a s.359A notice ought to have been given or that the Tribunal’s duties under s.360 were not discharged.

Ground 5

1. In the fifth ground the applicants alleged:

   The Tribunal was guilty of procedural unfairness because during the conduct of the hearing the Tribunal did not address specific issues relating to the reasons and the Clauses 050.222 requires that except in certain circumstances, the applicant must be interviewed by an Officer for the purpose of that clause and the EXCEPTIONS were laid out or the authorized interview officer was not available in number (4) of the MRT decision.

2. For the reasons already given, I am not persuaded that the Tribunal did not discharge the procedural fairness obligations imposed on it by div.5 of pt.5 of the Act. In particular, although the applicants alleged that a departmental officer had not been available to interview them, there was no evidence of this. Indeed, in its decision the Tribunal said:

   There is nothing before the Tribunal to suggest that an authorised officer was not available to interview the applicants at the time of the application or decision.  Indeed, the applicant confirmed in her oral evidence that an interview had been scheduled but she was unable to attend.  The Tribunal is not satisfied that the applicants meet cl.050.222(3)(a) and cl.050.222(3).

3. The applicants also appeared to allege that the Tribunal had not alerted them to the significance of cl.050.221 which had not been an element of the delegate’s decision. However, the delegate had said nothing about this and, as it remained a criterion which had to be satisfied, it was not a matter in respect of which the Tribunal had s.360 obligations.

Ground 6

1. In the sixth ground the applicants alleged:

   There is no defence on the part of the Tribunal to state that it allowed the applicant to state whatever she wanted. The applicant is not a person from a legal background and she would have no knowledge in how to conduct her own hearing.

2. For the reasons given in connection with the third ground of the application, this allegation is not made out. 

Ground 7

1. In the seventh ground the applicants alleged:

   Conduct in relation to the hearing which might cause the relevant apprehension that the Tribunal did not have a mind prepared to allow the applicant that opportunity, and genuinely to maintain its detachment of judgement until that opportunity was fully afforded, would reveal a jurisdictional failure by the Tribunal.

2. For the reasons which have been given in relation to the second ground of the application, this ground is also not made out.

Grounds 8 and 9

1. In the eighth and ninth grounds the applicants alleged:

   The applicant was called for an interview by the DIAC Officer and I could not attend the interview and the circumstances for not attending the interview should have been taken into account by the Tribunal.

   However, under the circumstances, it was my inability to walk and I was in bed and the relevant medical certificate was produced to the Department of Immigration and Citizenship and further I always rung them and have evidence of production of Medical Certificate and therefore my departure was out of question.

2. As observed by the Minister in his written submissions, the legislative scheme under which the Tribunal was operating on this occasion did not empower it to take into consideration whether the applicants’ failure to attend an interview with a departmental officer arose out of the first applicant’s ill-health.  The Tribunal did acknowledge the reason given by the first applicant for not attending the interview with the departmental officer but that does not mean that it was a matter which had to be taken into account when deciding whether the applicants met the relevant visa criterion.  It was not.  Consequently, accepting for the purposes of the present proceeding that the first applicant had been too unwell to be interviewed by the departmental officer, that was not an issue which could have affected the outcome of the Tribunal review. 

Ground 10

1. In the tenth ground the applicants alleged:

   The Tribunal and the Department of Immigration and Citizenship should know the rules and regulations of the Airlines “who do not permit Travellers who are sick in the aircraft to board” and this is the Aviation Rule.

2. Whether airlines do or do not take ill passengers was also not a matter which the Tribunal needed to consider when deciding whether the applicants were entitled to bridging visas. The relevant criterion was cl.050.212(2) which spoke of an applicant making or being the subject of acceptable arrangements to depart Australia. The fact that a person is too unwell to travel at a particular time does not prevent the satisfaction of that criterion but, in any event, the Tribunal’s conclusion on cl.050.212(2) was a matter of fact for it and there is no reason to suppose that it was not a conclusion which was open to it in the circumstances.

Ground 11

1. In the eleventh ground the applicants alleged:

   AND I submit that the decision was irrational/unreasonable for the decision maker to come to the conclusion and affirming the Department of Immigrations decision.

2. The allegation that the Tribunal’s decision was irrational or unreasonable necessarily implies that its decision on the review was one which no reasonable Tribunal would have reached.  I am not persuaded that that is the case.  Given the information set out in the Tribunal’s decision, I am satisfied that there was sufficient material before the Tribunal to reach the conclusion it reached and that it could not be said to have been a decision which no reasonable Tribunal would have reached. 

Ground 12

1. In the twelfth ground the applicants alleged:

   Therefore I submit that I have met and satisfied with the sub clause 050.212(7) at the time of application and request you to remit the decision to the Migration Review Tribunal.

2. Whether the applicants satisfied cl.050.212(7) was a matter for the Tribunal and the issues which the applicants have raised do not disclose a basis upon which the Court should conclude that the Tribunal’s decision was affected by jurisdictional error.

First applicant’s health

1. At the hearing of this application the first applicant told the Court that she had been unwell recently and most recently was in the “mental health department.”  She did not elaborate on this submission and no medical evidence was provided to the Court to suggest that she was in any way hindered in the presentation of her case at the hearing of this application.  The first applicant did not appear to me, during the course of the hearing, to be limited in any way in the presentation of her case and to the extent that she might have been making a submission to the effect that she was disabled in some way from arguing the applicants’ case at hearing, I am not persuaded that that was so. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  9 July 2014