Hui v Minister for Immigration and Citizenship (No 2)

[2011] FCA 1364

FEDERAL COURT OF AUSTRALIA

Hui v Minister for Immigration and Citizenship (No 2) [2011] FCA 1364

Citation:		Hui v Minister for Immigration and Citizenship (No 2) [2011] FCA 1364
Appeal from:		Xing Hui v Minister for Immigration and Citizenship & Anor [2011] FMCA 486
Parties:		XING HUI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number:		NSD 1395 of 2011
Judge:		COLLIER J
Date of judgment:		29 November 2011
Catchwords:		MIGRATION – Skilled Independent Overseas Student residence visa – refusal of application – clause 880.224 and clause 880.215 of Schedule 2 of Migration Regulations – section 349 of Migration Act – at hearing Tribunal raised new issue which was not raised by delegate – Tribunal affirmed decision of delegate following consideration of new issue – no adjournment sought by visa applicant – whether jurisdictional error in decision of Tribunal – whether appealable error in decision of Federal Magistrate
Legislation:		Migration Act 1958 (Cth) ss 349, 360 Migration Regulations 1994 (Cth) cll 880.21, 880.215, Subdiv 880.224, of Pt 880 of Sch 2
Cases cited:		AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494 cited Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 cited SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 228 CLR 152 cited Thongsuk v Minister for Immigration [2007] FMCA 655 cited
Date of hearing:	24 November 2011
Place:	Brisbane (Heard in Perth)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	35
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Ms S Sirtes
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1395 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

XING HUI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	29 NOVEMBER 2011
WHERE MADE:	BRISBANE (HEARD IN PERTH)

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1395 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

XING HUI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	29 NOVEMBER 2011
PLACE:	BRISBANE (HEARD IN PERTH)

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Smith FM dated 2 August 2011 dismissing an application for judicial review of a decision of the Migration Review Tribunal (“Tribunal”) handed down 24 February 2010. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse the applicant’s application for a visa.

   Background

2. The appellant is a citizen of China who arrived in Australia in January 2002. On 26 August 2005 the appellant lodged an application for a Skilled – Independent Overseas Student residence visa Class DD, subclass 880 with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a visa on 8 September 2009. On 22 September 2009 the appellant applied to the Tribunal for a review of that decision.

3. The appellant applied for a Skilled – Independent Overseas Student residence visa Class DD, subclass 880 and nominated her skilled occupation as “cook”. She specified her qualifications as Master of Business Administration (General Management) (“MBA”), from Central Queensland University from November 2002- November 2004, and a certificate III in Hospitality (Commercial Cookery) gained from the Sydney International college of Business (“SICB”) between December 2004 and May 2005. The delegate refused the visa on the basis that the appellant did not meet the criteria under cl 880.224 of Sch 2 of the Migration Regulations 1994 (Cth) relating to material, as the material was “false or misleading”.

   Migration Review Tribunal

4. The Tribunal affirmed the refusal to grant the visa on different grounds to those of the delegate. The Tribunal was not satisfied that the appellant had established that her MBA was relevant to the nominated skilled occupation of cook. The Tribunal considered the tasks performed by a cook as set out in the ASCO classification, and referred to the decision of Thongsuk v Minister for Immigration [2007] FMCA 655 regarding “relevance”. The Tribunal stated that it was not sufficient for the appellant to state that the skills, learning or qualification acquired in the MBA course would benefit her in future employment as a restaurant owner or manager. Rather, there needed to be an element of positive usefulness of the skills acquired in the educational qualifications to the nominated occupation. The Tribunal concluded that it was not satisfied that the appellant had satisfied cl 880.215 relating to her qualifications being relevant to the skilled occupation nominated in her application.

   Federal Magistrates Court

5. On 30 December 2010 the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. The application for judicial review was filed out of date. His Honour found, however, that the appellant had shown sufficient explanation to excuse her delay in commencing the application and that her application raised a substantial issue of concern as to the fairness of the Tribunal’s proceedings. Accordingly his Honour was prepared to order an extension of time in which to file the application for judicial review.

6. The application contained the following grounds of review:

   1.Decision by Tribunal would be set aside for jurisdictional error leading to no relevant legal consequence and nullity.

   2.Delegate had taken into account an irrelevant consideration and/or failed to a relevant consideration.

   3.Delegate’s decision infected by jurisdictional error is a nullity and dealing with evidence alleged only not in fact.

   (Errors in original.)

7. In respect of these grounds of appeal his Honour observed that they did not contain any specificity which could allow them to be meaningfully applied to the Tribunal’s procedures and reasoning (at [31]-[32]). Accordingly, his Honour distilled potential grounds of review from the appellant’s written submissions and affidavit.

8. The Federal Magistrate said that the Migration Act did allow for the Tribunal to address and determine the appellant’s eligibility for the visa by reference to a visa criterion which had not been addressed by the delegate. His Honour referred to s 349 of the Migration Act 1958 (Cth) which stipulated that the Tribunal could “exercise all the powers and discretions” that were conferred on the Minister for the purposes of making the primary decision. The Tribunal was not required to address any other criterion, even if the criterion had previously provided the sole issue upon which the delegate refused the visa.

9. The Federal Magistrate stated further that the Court had no power to order the Tribunal to address cl 880.224, unless it could detect error vitiating the Tribunal’s application of cl 880.215. Further, it was open to the Tribunal to conclude that the appellant’s MBA qualification might have been relevant to her anticipated future career of running a restaurant but was not “relevant” to her nominated occupation of a cook, and it was this issue which was material so far as the applicant sought to satisfy visa requirements.

10. Finally his Honour also considered whether there was any procedural unfairness in the Tribunal choosing to make its decision by way of determination under cl 880.215 rather than cl 880.224. In considering the authorities, the Federal Magistrate concluded that there was no jurisdictional defect in respect of the manner in which the Tribunal raised the “relevance” issue with the appellant at the hearing and provided her with an opportunity to respond to it in the course of the hearing. The issue was clearly raised, and the Tribunal’s conclusions clearly foreshadowed.

    Application to this Court

11. On 22 August 2011 the appellant filed a notice of appeal. That appeal contained the following grounds:

    1.Decision by Federal Magistrates Court and Tribunal would be set aside for jurisdictional error.

    2.Delegate had taken into account an irrelevant consideration and failed to a relevant consideration unlawful.

    3.Delegate’s decision infected by jurisdictional error is a nullity and dealing with no evidence in fact.

    (Errors in original.)

12. These grounds of review are substantially identical to the grounds raised before his Honour, which his Honour described as lacking specificity to allow them to be meaningfully applied to the Tribunal’s procedures and reasoning.

13. At the hearing before me the appellant was self-represented. Ms Hui submitted that she was not ready and not prepared in relation to the hearing, and was prejudiced because she did not have Legal Aid. Notwithstanding this submission, after I declined to order an adjournment of the hearing of the appeal Ms Hui made extensive oral submissions in respect of this appeal, and sought to file detailed written submissions (which had not previously been filed with the Court or shown to the Minister’s legal representatives). After I temporarily adjourned the Court to allow Ms Sirtes the opportunity to consider the appellant’s written submissions, no objection was taken by the Minister to those written submissions being filed.

14. Ms Hui’s submissions may be summarised as follows:

    ·The Federal Magistrate did not look into the issue whether the Tribunal had denied the appellant a fair hearing for the purposes of s 357A of the Migration Act.

    ·The Tribunal raised the issue of relevance of the appellant’s qualifications during the final five minutes of the Tribunal hearing.

    ·The appellant had not realised that the Tribunal would refuse her a visa under s 349 of the Migration Act because of the lack of relevance of her MBA.

    ·If the Tribunal had had any doubts concerning the relevance of the appellant’s qualifications, those doubts should have been put in writing and the appellant should have been allowed to respond in writing. The appellant was not provided with this opportunity, contrary to the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.

    ·The appellant was not given a proper opportunity to make submissions to the Federal Magistrate and was not accorded procedural fairness by the Federal Magistrate.

    ·The Tribunal applied the earlier decision of his Honour below in Thongsuk. This clearly influenced the Federal Magistrate in the decision the subject of this appeal.

    Consideration

15. At [1] of the judgment below, his Honour observed that:

    ·the Tribunal had affirmed the delegate’s decision on an issue which had not previously been addressed by the delegate;

    ·the issue was only raised with Ms Hui at the end of the Tribunal’s hearing; and

    ·the hearing occurred on the day before the Tribunal’s decision.

16. His Honour “with some hesitation” concluded at [2] that the Tribunal’s procedures did not give rise to jurisdictional error.

17. A key question before me is whether his Honour was correct in so concluding. Indeed, the hearing before me was conducted exclusively on this issue.

18. At [37] his Honour said as follows:

    I can understand Ms Hui’s complaint that she was surprised to discover that the Tribunal had decided her eligibility for a visa by reference to cl.880.215. However no jurisdictional error is established, unless the Tribunal’s change of issues was in breach of procedures required under the Migration Act to protect procedural fairness…

19. So far as material, the primary criteria to be satisfied at the time of application as set out in Subdiv 880.21 of Pt 880 of Sch 2 to the Migration Regulations includes the requirement in cl 880.215 that the applicant’s qualifications are relevant to the skilled occupation nominated in her or his application.

20. His Honour carefully and in great detail addressed the question whether the decision of the Tribunal was affected by jurisdictional error when the Tribunal chose to make its decision by way of determination under cl 880.215 rather than cl 880.224. It is not in dispute that, in the circumstances of this case, cl 880.224 was applicable in respect of the appellant’s visa application, or that the clause required in summary that no evidence had become available since the time of the application that information provided by the visa applicant was false or misleading in a material particular.

21. His Honour also referred to observations of the High Court in SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [36]-[37], in particular:

    [36] ….But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

    [37] If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant’s nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425 (1); the applicant would not have been accorded procedural fairness.

22. His Honour considered that SZBEL and subsequent cases applying that decision suggest that it will be sufficient for the Tribunal to raise an important new issue in the course of the hearing, either by expressly drawing attention to a possible departure from the delegate’s reasoning, or by specifically questioning the visa applicant about the issue.

23. His Honour then turned to the decision of the Full Court in AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494 at [39] where Besanko J (Siopis J agreeing) said:

    There is no requirement on the Tribunal to give an applicant advance notice of the issues of concern to it, that is to say, in advance of the hearing.

24. His Honour contrasted this statement with the opinion of the third judge in AZAAD, Reeves J, who at [108] said:

    The first of these matters arises from the basic principles outlined in SZBEL. Since the second Tribunal intended to decide the review on a completely different issue to that of the delegate and the first Tribunal, I consider it was obligated as a matter of procedural fairness to inform the appellants that was so. The most obvious way to do that was to include a statement to that effect in the letter inviting the appellant’s to attend the s425 hearing. Alternatively, it could have informed the appellants of this fact at the outset of the hearing, although such a dramatic change to the issues in the review at that late stage would probably not have afforded the appellants a sufficient opportunity to give evidence and present arguments at the hearing on the new issue and would most probably have led to an adjournment.

25. At [52] his Honour concluded:

    Endeavouring to apply these authorities to the circumstances which I have detailed above, I consider that the balance of authorities binding on me requires me to find that there was no jurisdictional insufficiency in how the Tribunal raised the “relevance” issue with Ms Hui at the hearing, and then gave her an opportunity to respond to it in the course of the hearing. I consider that the issue was clearly raised, and the Tribunal’s potential adverse reasoning was clearly foreshadowed, albeit after another “main issue” had been given more prominence and had occupied greater length at the hearing. Ms Hui’s responses suggest that she understood the issue which was being put to her, and was able to respond to it.

26. His Honour continued at [53]:

    Accepting that Ms Hui might have wanted to respond at greater length in writing, there is no evidence that there was any argument or piece of evidence which she would have presented at greater length or after greater reflection, and which might have made a difference to the Tribunal’s conclusion. She did not suggest to the Tribunal that there was anything more to say to the Tribunal on the issue of “relevance”. In my opinion, the principle of procedural fairness identified in SZBEL was sufficiently satisfied in the present circumstances in the course of the Tribunal’s discussion of cl 880.215 which I have extracted above.

27. Crucially, his Honour said further at [57]:

    It is reasonably arguable that, if Ms Hui had expressly asked the Tribunal to delay deciding the “relevance” issue until she could reflect on the issue and lodge a written submission, the Tribunal might have been obliged under principles of procedural fairness to adjourn or delay making its decision until it had afforded that opportunity – taking into account the novelty of the issue in the overall processing of Ms Hui’s visa application…. However, I cannot find evidence that Ms Hui made a “reasonable request for an adjournment” which was unfairly refused in the present case. At best, she left the hearing without making any such request, but with a hope that there would be time to lodge a post-hearing submission. I cannot find in the circumstances in which that hope did not come to fruition, a failure or procedure on the part of the Tribunal which provides jurisdictional error vitiating its decision.

28. In my view the reasoning of his Honour on this issue reveals no error. The change of focus of the Tribunal’s attention, from the question whether information provided by the appellant was false and misleading to consideration of the relevance of the appellant’s qualifications, raised the issue whether the Tribunal’s decision was procedurally unfair. However in the circumstances of this case as noted by his Honour, the Tribunal raised the issue of relevance with the appellant, and it appears that the appellant was capable of dealing with the issue at the Tribunal hearing. I endorse the view of his Honour that, had the appellant sought an adjournment to consider the specific issue of relevance or make further submissions, a refusal of the Tribunal to accede to the request could have infected the jurisdiction of the Tribunal in making its decision. However that did not occur in this case.

29. The appellant has complained that the Tribunal did not put questions in writing concerning the relevance of her qualifications, and has claimed that this conduct was contrary to principles articulated in SAAP. In that case the High Court considered s 424A of the Migration Act. Section 359A of the Migration Act is in very similar terms to s 424A, and applies to decisions of the Migration Review Tribunal.

30. So far as referable, s 359A provides as follows:

    (1)  Subject to subsections (2) and (3), the Tribunal must:

    (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c)  invite the applicant to comment on or respond to it.

    (2)  The information and invitation must be given to the applicant:

    (a)  except where paragraph (b) applies--by one of the methods specified in section 379A; or

    (b)  if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

    (3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor 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 section 359AA.

1. Section 359AA provides:

   If an applicant is appearing before the Tribunal because of an invitation under section 360:

   (a)  the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  if the Tribunal does so--the Tribunal must:

   (i)  ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)  orally invite the applicant to comment on or respond to the information; and

   (iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)  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.

2. In this case, as I have indicated, his Honour clearly had regard to the obligations of the Tribunal under s 359A, and its powers and obligations under s 359AA. His Honour formed the view that the Tribunal had complied with those collective obligations in the circumstances of this case. I am unable to identify any error in his Honour’s approach.

3. Finally, I reject any suggestion that the Federal Magistrate was biased because the Tribunal had applied his Honour’s decision in Thongsuk. An allegation of apprehension of bias a serious matter which must be specifically pleaded (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]). It was not in this case. In any event, I consider that no issue of bias arises merely because a previous decision of his Honour was applied by the Tribunal.

4. In this case it is clear that his Honour went to considerable lengths to assist the appellant in distilling intelligible grounds of review. His Honour then went on to consider those grounds of review in considerable detail. I agree with the submission of the Minister that his Honour’s decision revealed no appealable error, and that the grounds of appeal before me similarly do not articulate any error amounting to jurisdictional error to warrant the grant of relief.

5. The appeal is dismissed with costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        29 November 2011