KUMAR v Minister for Immigration
[2014] FCCA 2780
•28 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2780 |
| Catchwords: MIGRATION – Application for review of decision of the Migration Review Tribunal – whether Tribunal gave a reasonable justification for exercise of discretion – jurisdictional error found – application made out. |
| Legislation: Migration Act 1958 (Cth), ss.359, 359A, 359B, 476 Migration Regulations 1994 (Cth), Schedule 2 |
| Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Border Protection v Pandey [2014] FCA 640 |
| Applicant: | VINAY KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 5 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 1 September 2014 |
| Date of Last Submission: | 1 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2014 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ in the nature of certiorari issue quashing the decision of the second respondent made on 9 December 2013.
A writ in the nature of mandamus issue compelling the second respondent to reconsider the application according to law.
The first respondent pay the applicant’s costs of fees and payments made to this Court in relation to this matter.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 5 of 2014
| VINAY KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 3 January 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 9 December 2013 which affirmed the decision of the Minister’s delegate to refuse a Student (Temporary) (Class TU) visa (“the visa”) to the applicant.
Application Before the Court
The sole ground of the application to the Court is as follows:
“My application was not given consideration by MRT.”
The issue in these proceedings does not arise from the applicant’s ground even if that ground is understood as an allegation of a failure by the Tribunal to consider the application for review. However, what clearly arises from the evidence before the Court (“the Court Book” filed by the Minister in these proceedings – “CB”) is whether the Tribunal fell into error in refusing the applicant’s application for more time to provide a particular document to it. That is, whether the Tribunal failed to reasonably exercise a statutory discretion.
Before the Court
At the final hearing in this matter the applicant appeared in person with the assistance of an interpreter in the Hindi language. Mr T Reilly of counsel appeared for the Minister.
Background
The background to this issue emerges from the following. The applicant applied for the visa on 22 August 2012 (CB 1). The grant of the visa was refused by the delegate on 31 January 2013 (CB 35).
The applicant applied for review to the Tribunal on 18 February 2013 (CB 47). As set out in its decision record, the Tribunal found that the relevant subclass of visa for the purposes of its decision was subclass 572. This was because the applicant had indicated that he was enrolled in an Advanced Diploma of Business course, which was appropriate to this subclass of visa ([4] at CB 171).
The Tribunal stated in its decision record that it had written to the applicant on 28 August 2013 inviting him to provide evidence that he satisfied the requirements of cl.572.223 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) ([5] at CB 171). The Tribunal’s decision record suggests that the letter was sent pursuant to s.359 of the Act. However, the heading and wording of the letter invoke s.359A of the Act (CB 64 to CB 65).
In any event, the letter, amongst other things, put the applicant on notice that the applicant was required to provide evidence that he satisfied the relevant criteria for the grant of the visa set out at cl.572.223 of the Regulations.
The applicant provided a large number of documents before, at, and after the Tribunal hearing. He attended a hearing before the Tribunal on 21 October 2013 (CB 136 to CB 137). The Tribunal’s reference of what relevantly occurred at the hearing reveals that the applicant identified that he was “currently enrolled in and studying for an Advanced Diploma of Business, at the Australia College of Vocational Studies” ([5] at CB 171).
Following the hearing, the applicant provided documents to demonstrate that he had the necessary funds to undertake his studies. He indicated that he was seeking to obtain evidence that he met the English language requirements for the grant of the visa ([5] at CB 171).
On 19 November 2013 a Tribunal officer, acting on instruction from the Tribunal member, made enquiries as to the applicant’s academic progress. The Tribunal reports in its decision record ([6] at CB 171, see also CB 157 to CB 160):
“The spokesperson for the applicant’s college indicated that the applicant’s enrolment had been cancelled on 9 November 2013…”
The following paragraph from the Tribunal’s decision record requires attention ([6] at CB 171):
“Following the applicant’s submission, an officer of the MRT, at the request of the Tribunal, contacted the applicant’s course provider to enquire as to the applicant’s enrolment and course progress. The spokesperson for the applicant’s college indicated that the applicant’s enrolment had been cancelled on 9 November 2013. The Tribunal wrote to the applicant on 22 November 2013, indicating to him that it had become aware that his enrolment was cancelled and informing him that without enrolment he could not meet the requirements of cl.572.231, which requires that the applicant to be enrolled in, or be the subject of a current offer of enrolment in, a course of study. The applicant responded on 6 December 2013, requesting more time to organise enrolment. He was advised that his request was denied.
[Emphasis added – see [23] below].
The applicant’s request for more time was made on Friday 6 December 2013 (that is within the time required by the Tribunal for a response) and was in the following terms (CB 164):
“With due respect. I would like to let u know I talked my college regarding re Coe again and they called on Monday so I can clear my dues so please give me time till next Wednesday”
[Errors in the original.]
A Tribunal officer wrote to the applicant on Monday 9 December 2013. That letter was in the following terms (CB 166):
“I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Student (Temporary) (Class TU) visa.
On 22 November 2013 the tribunal sent you an invitation to comment on or respond to information.
On 6 December 2013 the tribunal received a request for an extension of time to provide the comments or response.
The tribunal has considered the request carefully but has decided not to grant an extension of time. The comments or response should therefore have been received at the tribunal by 6 December 2013, as previously advised.
As the tribunal did not receive your comments or response by 6 December 2013, the tribunal may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the tribunal to give evidence and present arguments.”
[Emphasis in the original.]
Consideration
In Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) the issue before the High Court was whether the decision of the Tribunal in that case to refuse to adjourn a hearing could constitute jurisdictional error. The High Court held, with reference to the facts before it, that the Tribunal’s exercise of the discretion was unreasonable.
Of relevance to the current case is the High Court’s finding in Li that reasonableness is a condition of the exercise of a discretionary power (see for example at [89] per Gageler J, and see further below
at [18] – [19]).
In the current circumstances, the Tribunal had the power to adjourn the conduct of the review for the five days (three working days) sought by the applicant, to enable him to pursue with his college one of the matters of concern that apparently led to the cancellation of his enrolment. The applicant’s submission to the Tribunal was that he had spoken to the college about obtaining another confirmation of enrolment certificate (“COE”) (“..re COE again...”) (CB 164).
In Li, French CJ said at [25]:
“…the requirement that officials exercising discretion comply with the canons of rationality means, inter alia, that their decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power...
Further in Li at [76] per Hayne, Kiefel and Bell JJ:
“…an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 (“Singh”), the Full Federal Court also had before it a case involving the exercise of a statutory discretion by the Tribunal. The Full Court reviewed the principles underlying legal unreasonableness ([43] – [42]).
For the purposes of the current case what the Full Court said at [47] per Allsop CJ, Robertson And Mortimer JJ is of relevance:
“This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King [1936] HCA 40; (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.”
[Emphasis added].
There is a fine line between brevity in a Tribunal decision record that is nonetheless comprehensive of the relevant issues for consideration, and brevity in a decision record that leaves relevant matters to speculation and conjecture. The former is to be welcomed for a number of obvious reasons. The latter applies to the current case.
The Tribunal’s decision record, as set out above, makes mere mention of the denial of the applicant’s request for more time (see [12] above). There is no reasoning, intelligible or otherwise, in the decision record to explain why the Tribunal exercised, or rather refused to exercise, the discretionary power it had to adjourn the review.
I respectfully understood the Full Court’s reasoning in Singh to require this Court to relevantly look to the Tribunal’s actual reasons and to avoid any attempt to provide justification for the Tribunal’s decision on the exercise of the discretion, by examination or reference to matters not referred to by the Tribunal in its reasons.
If that is confined to the Tribunal’s decision record then the absence of any explanation, let alone any intelligible justification, by the Tribunal would be sufficient, in my respectful view, given Li and Singh, to find that the Tribunal fell into jurisdictional error.
However, even if what is set out in the Tribunal officer’s letter of 9 December 2013 (see above at [14]) were to be taken as the Tribunal member’s relevant reasoning, then, in my view, the Tribunal still fell into jurisdictional error.
The starting point of the reasoning in that letter is the Tribunal’s invitation to the applicant of 22 November 2013. That invitation was for the applicant to comment on, or respond to, information that his enrolment was cancelled. The applicant was told that he should respond to the Tribunal by 6 December 2013.
The letter also stated (CB 162):
“If you cannot provide your written comments or response by 6 December 2013, you may ask the tribunal for an extension of time in which to provide the comments or response. If you make such a request, it must be received by the tribunal before 6 December 2013 and you must state the reason why the extension of time is required.”
[Emphasis in the original.]
The Tribunal’s letter of 9 December 2013 notifying the refusal, notes that the applicant made his request for more time on 6 December 2013. While the letter of 9 December 2013 states that the Tribunal had carefully considered the applicant’s request there is no explanation or justification, let alone an intelligible justification, for the Tribunal’s decision. It may have been open to the Tribunal to say that the applicant’s request for an extension of time was not made “before” 6 December 2013 (as the letter of 22 November 2013 stated) as it was made on 6 December 2013.
However, it is not for the Court to provide the justification for the Tribunal’s decision on the exercise of its statutory discretion. No reason or justification is given either in the Tribunal’s decision record, or even on a fair reading of the Tribunal officer’s letter of 9 December 2013. The focus of that letter was on the applicant’s failure to provide the comments or response by 6 December 2013. No explanation is given for the refusal of the request for more time.
This of course puts to one side the question of whether, by asking for the extension of time on 6 December 2013, the applicant made a response to the invitation on 6 December 2013 in that way (see Saba Bros Tiling Pty Ltd v Minister for Immigration & Anor [2010] FMCA 598 at [36] to [38] per Judge Driver).
In all these circumstances what the Full Court said in Singh at [45] is of direction to this Court:
“In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.”
In this light the applicant sought, in effect, three working days, five days in all, beyond the deadline set by the Tribunal for the making of his response. He sought that extension of time within the time stipulated by the Tribunal for that purpose. Although brief, what can be seen as the circumstances within which he made his request is, as stated above, that he had contacted his college to address at least one of the matters of concern. He had discussed with the college the matter of another COE, and he sought a specified time to address the payment of outstanding fees. This was, inferentially, communicated to him by his college as the matter to be addressed before the COE could be issued.
The reason the Tribunal gave for affirming the delegate’s decision was that at the time of decision, 9 December 2013, the applicant had not provided evidence of enrolment, or an offer of enrolment, in a course of study. The very matter which the applicant had sought extra time to provide to the Tribunal.
Before the Court the Minister’s position was explained as follows. The applicant was unsuccessful in the review before the Tribunal because after the hearing the Tribunal became aware that the applicant’s enrolment with his course provider had been cancelled. The Tribunal wrote to the applicant and invited comment on this (22 November 2013, see CB 162 to CB 163). He was given until 6 December 2013 to reply.
The applicant requested further time to reply. He did so on the “last” day given to him by the Tribunal for the reply. That is, 6 December 2013. That request was brief (CB 164 and above). In the absence of anything further, there was no requirement for the Tribunal in the circumstances, to grant further time.
The Minister referred the Court to Minister for Immigration and Border Protection v Pandey [2014] FCA 640 (“Pandey”) a matter on appeal in the Federal Court. The circumstances in that case involved a request for an adjournment so as to obtain a COE (Pandey at [11]). The Tribunal refused the request because it considered that the applicant had had “ample” opportunity to provide the COE. The Tribunal sought to explain this, albeit briefly (see Pandey at [12] – [13]). The Federal Court allowed the Minister’s appeal.
In the current case, the Minister specifically referred the Court to Pandey at [52] (see also [53] – [55]):
“In my opinion, the circumstances of this case put it into the category of case where the Tribunal had a ‘genuinely free discretion’ or “decisional freedom”: Li at [28], [66]; Singh at [44]. Minds may differ and reasonable decision-makers may reach different conclusions about the correct or preferable decision. The decision did not fall outside the range of possible, acceptable outcomes which are defensible in respect of fact and law. Nor could the Tribunal’s decision be described as arbitrary, capricious, lacking in common sense or plainly unjust.”
The Minister noted that in the current case the Tribunal’s letter was sent pursuant to s.359A of the Act. The Tribunal did have the discretion to extend the time within which the applicant could have responded (see s.359B(4) of the Act).
However, the Minister’s argument was that the facts in this case were that the applicant’s enrolment had been cancelled because of
non-payment of fees and for poor attendance. Further, the applicant’s request for further time did not provide any basis to suggest that the COE would be reinstated or that the applicant could otherwise re-enrol. The Minister’s argument was, in these circumstances that while the Tribunal could have granted more time, there was no obligation to do so.
That may very well have been the case. However, in my respectful view, what the authorities referred to above make clear is that we are not necessarily concerned with how the Court may believe the discretion should have been exercised, but whether the Tribunal’s exercise of the discretion in the circumstances was reasonable, and whether the Tribunal provided intelligible justification for how it did exercise the discretion.
In Pandey, the Court summarised the relevant principles from Li and Singh (see at [41]). The Minister drew attention to [41](e) in particular:
“(e) Regard can also be given to the outcome of the decision: whether the ‘decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law’: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].”
The Minister’s submissions appeared to seek to echo this, through references to the outcome of the review, and the terms of the applicant’s request.
However, in my respectful view, what the Court said at [41](d) of Pandey is of direct relevance here:
“(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the
decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].”
[Emphasis added.]
The Tribunal’s reasons provide no justification for the Tribunal’s refusal to exercise the discretion, let alone an “intelligible justification”. The Tribunal simply notes (at [6] at CB 171), that “..[h]e was advised that his request was denied”. On the authority of Singh that is sufficient to say that the Tribunal fell into error.
As stated above, even if regard were had to the other material in the Court Book, to which the Minister referred in his submission, no intelligible justification emerges. The Tribunal’s letter of 9 December 2013 notifying the applicant of the outcome of the request simply says that the Tribunal had “considered the request carefully but [had] decided not to grant an extension of time”. No intelligible justification is revealed here (CB 166).
Further, I do not agree with the Minister that the applicant’s request (conveyed by email, CB 164) gave no basis to say that the applicant would have his enrolment reinstated. On its face that email, albeit brief, states that the college responded to him (“…they called on Monday…”).
However, even if that were not the case, what remains is that there is no evidence in the Tribunal’s decision record that it gave an intelligible justification for the refusal. Nor can it be said, with reference to the outcome of the application for review, that the granting of any extension of time would have been futile. If the applicant had been successful in having his enrolment reinstated then, given the basis of the Tribunal’s decision, the outcome could have been different.
Further, in Pandey on which the Minister relies, the Federal Court found in the Tribunal’s reasons, albeit that they were “short”, such a justification. That is, the Tribunal notified the applicant in its refusal to exercise its discretion in that case that a “good reason” was needed to grant additional time and the applicant had not provided such a good reason (see Pandey at [53] – [54]).
In the current case, without a justification, let alone a intelligible justification, the Tribunal’s refusal to exercise the discretion cannot be said to have been reasonable. This reveals jurisdictional error as explained in Li (see at [113]) and Singh.
Conclusion
There is no reason to refuse relief to the applicant. I will make the orders accordingly.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 28 November 2014
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