Mekonen v Minister for Immigration
[2016] FCCA 2715
•21 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MEKONEN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2715 |
| Catchwords: MIGRATION – Application for review of former Migration Review Tribunal decision – whether Tribunal breached natural justice – whether Tribunal engaged in an improper exercise of power – whether Tribunal should have confined itself to the issue considered by the delegate – no jurisdictional error – application dismissed. |
| Legislation: Commonwealth of Australia Constitution, s.75 Acts Interpretation Act 1901 (Cth) Migration Act 1958 (Cth), ss.5, 65, 349, 353, 353A, 357A, 359B, 476, 477, 479, 360, 362, Federal Circuit Court Rules 2001 (Cth), rr.1.07, 4.03, 4.05, 4.08, 7.01, 42.05, 13.03A, 13.03B |
| Cases cited: NALE v Minister for Immigration [2003] FMCA 366 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 |
| Applicant: | YENENEW SHUMALEM MEKONEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2950 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 18 July 2016 |
| Date of Last Submission: | 8 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2016 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | Ms C Hillary of DLA Piper |
ORDERS
The application made on 23 October 2014 and as amended is dismissed.
The applicant pay the first respondent’s costs set in the amount of $8000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2950 of 2014
| YENENEW SHUMALEM MEKONEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 October 2014, and amended on 15 January 2015, seeking review of the decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which on 18 September 2014, affirmed the decision of the Minister’s delegate to refuse the grant of a visitor visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered, by the Minister (“the Court Book” – “CB”). The applicant filed an affidavit made on 11 January 2015 (see further below). The applicant and the Minister have both filed written submissions and further written submissions going to an issue raised at the hearing by the applicant.
Background
The Minister has conveniently summarised the procedural background to this matter in his initial written submissions ([2] – [6] of the Minister’s initial written submissions):
“[2] The applicant is a male citizen of Ethiopia. The applicant last arrived in Australia on 23 November 2011 as the holder of Student Subclass 574 visa, which ceased on 12 January 2014.
[3] On 10 February 2014, the applicant applied for a Visitor (Class FA) Subclass 600 visa.
[4] On 13 February 2014, the delegate refused the application on the basis that the applicant did not make his visa application within 28 days of the expiration of his Student visa and, consequently, did not meet Schedule 3 criteria 3001 to the Migration Regulations 1994 (Cth). Consequently, on 6 March 2014, the applicant applied to the MRT to review the delegate's decision.
[5] On 30 May 2014, the applicant was invited to a hearing before the MRT. The applicant confirmed his attendance by returning a Response to Hearing Invitation on 21 July 2014. On 28 July 2014, the applicant requested by telephone that the MRT adjourn its hearing on 30 July 2014 so that he could obtain documents regarding his education. However, on the same day, that request was refused by telephone by a member of the MRT. The applicant attended the hearing before the MRT on 30 July 2014.
[6] On 7 August 2014, the MRT wrote to the applicant inviting him to a further hearing scheduled for 4 September 2014. On 22 August 2014, the applicant requested by telephone that the MRT adjourn the hearing for two months. On 26 August 2014, that request was refused by telephone by a member of the MRT. On 1 September 2014, the applicant returned a Response to Hearing Invitation confirming his attendance at the hearing on 4 September 2014. At the hearing the applicant was given until 11 September 2014 to provide post hearing submissions and any further evidence. On 11, 15 and 16 September 2014, the applicant provided further supporting information to the MRT.”
The Minister’s initial written submissions also summarised the Tribunal’s analysis and decision. It is a fair summary of the facts ([7] – [10] of the Minister’s initial written submission):
“[7] The issue before the MRT was whether the applicant met clause 600.223, particularly whether the applicant satisfied Schedule 3 criteria, pursuant to clause 600.223(2)(b) ([7] and [10]).
[8] As the applicant lodged his visa application on Monday, 10 February 2010, the application was lodged 29 days after his substantive visa had expired. Pursuant to Schedule 3 criteria 3001, the visa application had to be validly made within 28 days after the cessation of the substantive visa, which fell on Sunday, 9 February 2014. The delegate refused the application on the basis that the applicant did not satisfy criterion 3001. However the MRT found that as the applicant made his application on or before midnight following the 28th day, the requirements of criterion 3001 were met for the reasons set out at [13]-[16].
[9] As the applicant ceased to hold a substantive visa on or after 1 September 1994, the MRT considered whether the applicant met the requirements of criterion 3004, particularly whether the applicant was not the holder of a substantive visa because of factors beyond his control ([17] and [20]).
[9.1] The MRT did not accept that the immigration advice received caused the applicant not to be the holder of a substantive visa ([22]). The MRT accepted that the applicant had difficult financial circumstances, however, it did not consider that this was a factor beyond his control which caused him not to be the holder of a substantive visa ([27]).
[9.2] The MRT accepted that the applicant had been suffering from a mental illness, which severely impacted on his education ([34]). However, the MRT was not satisfied that the medical evidence indicated that the applicant was unable to lodge an application for a visa before his previous substantive visa ceased ([35]-[36]).
[10] Consequently, the MRT found that the applicant did not meet clause 600.223 ([36]) and accordingly affirmed the decision under review ([37]).”
Application Before the Court
The applicant’s amended application pleads seven grounds. Ground one, however, appears incomplete and is in any event “deleted”. The grounds numbered two to seven are in the following terms:
“2. A breach of Natural justice has occurred in connection with making decision.
3. The procedures that were required by law to be observed in connection with the making of the decision were not observed.
4. The person who purported to make the decision did not have jurisdiction to make the decision.
5. The making of the decision was an improper exercise of the power confered by the enactment in pursuance of which it was purported to be made.
(a) Taking an irrelevant consideration into account in the exercise of a power
(b) Failing to take a relevant consideration in to account in the exercise of a power
(c) An exercise of a power for a purpose other than a purpose for which the power is confered.
(d) An exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
(e) An exercise of a power in such a way that the result of the exercise of the power is uncertain.
6. The decision involved an error of law.
7. The decision was otherwise contrary to law.”
Before the Court: The Applicant’s Documents
The applicant’s affidavit of 11 January 2015 appears to seek to assert two things. One, that the information attached to the affidavit is relevant to the jurisdictional errors committed by the Tribunal. Two, that the Tribunal did not properly take into account the applicant’s claimed disability, which is that he had been diagnosed with depression. This is dealt with below.
The information attached to the affidavit to which the applicant refers is as follows:
1)A letter to the Federal Circuit Court of Australia from the applicant. As the Minister submitted, this can be treated as written submissions from the applicant.
2)Letters of invitation to hearing from the Tribunal to the applicant dated 30 May 2014 and 7 August 2014. Both letters are already in evidence before the Court (see CB 85 and CB 104).
3)A copy of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). The ADJR Act is not relevant to the current proceedings. The applicant’s copy does not extend to the Schedules to the ADJR Act. Section 3(da) to Schedule 1 provides that the ADJR Act does not apply to matters of this type.
4)A copy of a Tribunal document headed “Guidance on Vulnerable Persons” (“the Guidelines”) and a copy of the Tribunal document “Efficient Conduct of MRT Reviews” (“the Direction”). The relevance of these documents to the applicant’s grounds is not clearly explained, although the first document may have been put as relevant to the applicant’s claim before the Tribunal that he suffered from a severe mental illness, and his request that the Tribunal to take this into account.
On 6 July 2016, the applicant filed a document headed “Submission”, with annexures. I have taken into account the applicant’s written submissions. As for the annexures, the copy of the delegate’s decision and the Tribunal decision are already in evidence before the Court.
Further, the applicant’s reliance on the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”) is not relevant to revealing jurisdictional error on the part of the Tribunal as is made clear at [26] of the applicant’s first written submissions. He relies on this to argue that he satisfied cl.600.223(2)(b) and criterion 3001 of Schedule 1 to the Migration Regulations1994 (Cth) (“the Regulations”). While the delegate found that he did not satisfy this requirement, the Tribunal found that he did (see [11] to [16] at CB 185). In these circumstances the applicant’s submissions merely support the finding made by the Tribunal.
The annexures also include documents already attached to his affidavit and discussed above (see annexures “4” to “7”).
At “annexure 8” the applicant attaches a letter from a consultant psychiatrist, dated 5 May 2015. Given the date of the letter, which post-dates the date of the Tribunal’s decision, and in the absence of any evidence to the contrary, I find that the letter was not before the Tribunal and therefore not relevant to the current consideration.
At “annexure 9”, the applicant attaches a copy of an advice about visitor visas from the Immigration Advice and Rights Centre. Its relevance to the Tribunal decision is not explained.
The applicant also attaches a list of authorities with reference to 44 cases, 14 Acts and Regulations and three policy documents. All of these fall into two categories. One, their relevance to the applicant’s case was not satisfactorily explained. Two, they were not relevant to any issue for consideration before the Court.
It also appears from his “Submission” that the applicant seeks to rely on the audio recording of the second hearing before the Tribunal held on 4 September 2014. The applicant did not seek to tender the recording into evidence. Given that the Minister did not dispute the applicant’s references to what occurred at the hearing it is not necessary to listen to the recording, nor did the applicant otherwise explain his purported reliance on it.
Before the Court: The Applicant’s Submissions
Before the Court, the applicant explained that he had been a student in Australia studying at a university. Following what was described as “some problems”, his certificate of enrolment was cancelled sometime in early 2014. He applied for a visitor visa (tourist stream) on 10 February 2014 (CB 1). It is the Tribunal’s review of the refusal of that application which is the subject of the application to the Court.
While the visa for which the applicant applied is a tourist visa, which implies some short term stay, he explained that he was vigorously pursuing judicial review of the refusal because he had applied to the NSW Civil and Administrative Tribunal (“NCAT”) for review of the university’s decision to cancel his enrolment. Applying for the visitor’s visa was the only visa option available to him to remain lawfully in Australia for that purpose. The NCAT was still “processing” his application to it.
Plainly, none of this was given in evidence before the Court. The applicant’s submissions raise the question of whether the application to the Court is an abuse of process. That is, initiated and pressed for the purpose of extending his stay in Australia (see NALE v Minister for Immigration [2003] FMCA 366). It is now some 2.5 years after he applied for the visitor visa. However, the Minister did not make any application to the Court for the application to be dismissed as an abuse of process.
In any event, the matter proceeded on the basis of the grounds in the application to the Court and, as is set out below, the applicant’s attempt during the hearing to introduce a procedural matter which led to the grant of leave for the filing of further written submissions.
Consideration
Ground two asserts that the Tribunal breached natural justice. In the absence of particulars, attention must be given in the first instance to the applicant’s written submissions so as to derive relevant meaning. It appears the complaint is that the Tribunal should have put the applicant on notice prior to the hearing, of issues to be discussed at the hearing. In particular, that this should have occurred in the letter of invitation to the “second” hearing. In this light, ground three, which also lacks particulars, appears to relate to the same complaint.
In all, therefore, the applicant’s complaint from the written submissions, in both grounds, appears to be that the Tribunal was required to put him on notice of the issue to be discussed at the hearing, prior to the hearing, and to have done so in its letter of invitation to the hearing. It did not do so. He was, therefore, denied natural justice because the Tribunal did not follow what he says was the procedure required by law.
This is a case to which s.357A of the Act applies to make the matters dealt with in Division 5 of Part 5 of the Act the exhaustive statement of the natural justice hearing rule, in relation to matters dealt with in that division (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252).
The applicant was invited to the hearing before the Tribunal on both occasions by letters of invitation sent pursuant to s.360 of the Act. This is a matter dealt with in Division 5 of the Act. The purpose of the invitation to hearing, sent pursuant to s.360 of the Act, is to provide a meaningful opportunity for the applicant, at a hearing, to give his evidence and make his arguments in relation to the issues in the review.
As such authorities as SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) make clear, the Tribunal’s obligation is to raise issues that are dispositive of the review at the hearing. That is, issues which were not “live” issues as a result of the delegate’s decision must be raised at the hearing, and the applicant must be given a meaningful and reasonable opportunity to address those issues.
There is nothing in s.360 of the Act, or elsewhere in the Act, which requires the Tribunal to put an applicant on notice of the issues to be discussed prior to the hearing. Of course, there is no legal error if the Tribunal were to indicate what those issues may be in the letter of invitation. However, to be a meaningful event the hearing must be dynamic in the sense of requiring the Tribunal to raise with an applicant issues dispositive of the review. This may include issues which arise during the hearing. In that light, it would not be possible to oblige the Tribunal to provide prior written notice of every issue to be discussed.
In any event, on the evidence before the Court, the parties did not dispute that the issue in the review discussed at the “first” Tribunal hearing was in relation to criterion 3001 of Schedule 3 to the Migration Regulations 1994 (Cth) (“the Regulations”). The issue at the “second” Tribunal hearing was criterion 3004 of Schedule 3 to the Regulations.
The applicant had arrived in Australia as the holder of a student visa on 23 November 2011. He claimed to have encountered “social, emotional and physical health issues” which in September 2012 meant he took a leave of absence on compassionate grounds from his studies until January 2014. In his written response to a question in his application for the visitor (tourist) visa, the applicant stated that he was applying for that visa so as to address those matters. His intention was to return to his studies after April/May 2014 (see CB 3).
The applicant would have been on notice, from at least the delegate’s decision made in February 2014, that to be granted the visa he would need to satisfy all of the criteria at cl.600.223 of the Regulations which, as the delegate’s decision makes clear, includes criterion 3001 and 3004 of Schedule 3 to the Regulations (CB 35.5). The delegate’s decision turned on the finding that the applicant did not satisfy criterion 3001. The Tribunal invited him to a hearing on 30 July 2014 (CB 85). It is clear and it is not in dispute that the issue discussed at that hearing was criterion 3001.
There is no transcript of what occurred on that occasion before the Court. On the Tribunal’s account, which is the only relevant evidence before the Court, it is clear that the Tribunal accepted the applicant’s evidence as to his attempts to lodge his application for the visa within the time limit imposed by criterion 3001 (see [12] – [15] at CB 185).
The Tribunal found, based on this evidence, and a proper application of the relevant parts of the Acts Interpretation Act, that the applicant satisfied criterion 3001. That is, in effect, that the delegate was wrong in finding to the contrary. The Tribunal’s finding was reasonably open to it on what was before it. On the facts as found, its application of the relevant law in this regard was correct. However, this did not relieve the applicant from meeting all of the other relevant criteria for the grant of the visa, including criterion 3004 of Schedule 3 to the Regulations.
Relevant to the applicant’s complaint now, it would have been open to the Tribunal to have continued with the hearing and raised with him the issue that was, ultimately, dispositive of the review, namely, criterion 3004 of Schedule 3 to the Regulations. The Tribunal did not do so. The applicant was, in fact, given a further six weeks and invited to attend a hearing on a second occasion.
Procedural fairness under the statutory code does not require that the applicant be put on notice of the issues to be discussed at the hearing. Although, as set out above, he would have been on notice that a number of possible issues could have been discussed, including criterion 3004 of Schedule 3 to the Regulations. What was required, such that the Tribunal complied with its procedural fairness obligations under s.360 of the Act, was that the issue, or issues, dispositive of the review were raised, and that the applicant be given the opportunity to address the issues and give his evidence and present his arguments. It is clear on the evidence that the issue determinative of the review was raised.
Even if procedural fairness at common law were to apply, the applicant was given six weeks as between the first and second occasions of the Tribunal hearing. The applicant would have been on notice from the delegate’s decision that meeting criterion 3004 was a necessary requirement for the grant of the visa (see further below). No failure of natural justice is revealed in this regard.
The second element of the applicant’s complaint arising from his written submissions is that he was not given sufficient time after the hearing to provide further evidence. Criterion 3004 required, relevantly, that an applicant who did not hold a substantive visa at the time of application for the visa did not do so because of factors beyond his, or her, control. The matter of “factors beyond his control” as they related to criterion 3004 was discussed at the hearing. The Tribunal asked the applicant what these factors were that caused him not to have a substantive visa.
After raising some matters, the applicant asked the Tribunal for more time to make written submissions. The Tribunal gave him seven days for that purpose. The applicant did make written submissions on the seventh day. The complaint now, is that in its letter of invitation to hearing the Tribunal asked him to submit any information or documents that he wanted to submit before the hearing. The Tribunal gave him 21 days for this in circumstances where he said he did not know the relevant issue, however, it only gave him seven days when he did know of that issue.
The attempt to compare the two periods does not assist the applicant. The question for the Court now is whether the Tribunal’s grant of seven days was, in the circumstances, procedurally unfair, or unreasonable. Any time the Tribunal had given for the provision of information or documents prior to the hearing can only add to the reasonableness of its grant of seven days after the hearing in circumstances where the applicant, contrary to his assertion now, would have known that criterion 3004 was relevant to the disposition of his application. In any event, the Tribunal’s procedural fairness obligation was met when it properly complied with s.360 of the Act both in inviting the applicant to the hearing and in its conduct of the hearing.
As to an unreasonable exercise of discretion, this is not a case where the Tribunal failed to exercise a discretion. It did exercise the discretion in the applicant’s favour. There is nothing from the applicant now, to say why the period granted was unreasonable in the circumstances other than the comparison with the previous invitation to provide information and documents. There is nothing before the Court from the applicant to satisfactorily explain why it was unreasonable, or what he was prevented from submitting to the Tribunal. In any event, he did make submissions and there is nothing from the applicant to say that he asked the Tribunal for further time.
As the Minister submitted, a finding of unreasonableness should not “lightly” be made (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332). Without any satisfactory explanation of why the period was unreasonable or what he was prevented from further submitting, the applicant’s complaint is no more than an attempt to press his disagreement with the outcome of the Tribunal’s action. This does not disclose unreasonableness (Minister for Immigration v SZJSS [2010] HCA 48; (2010) 243 CLR 164).
In his written submissions, the applicant also asserts that “[a] denial of procedural fairness may be established where the Tribunal misleads a party in the course of the hearing” (Bains v Minister for Immigration and Citizenship [2012] FCA 649; (2012) 205 FCR 217 at [40]). He submitted in this context that he was denied procedural fairness and the Tribunal’s exercise of power was unreasonable because he was misled.
The problem with the applicant’s assertion, however, is that it is difficult to see on his own presentation of the facts how he was misled by the Tribunal. At its highest, his complaint is that the Tribunal did not give him prior written notice of the issue to be discussed at the hearing. As the authority on which he relies makes clear, the proposition the applicant has extracted in his submissions focuses on the Tribunal’s conduct at the hearing.
On the evidence before the Court, while the delegate set out in her decision record all of the relevant elements of the criteria that the applicant had to satisfy if he was to be granted a visitor visa (CB 35.5), the decision turned on the matter of whether the applicant had applied for the visa within time, that is, with reference to criterion 3001.
The “first” hearing before the Tribunal focused on that issue. It is reasonable to infer that after hearing, given the applicant’s evidence to it, and considering the circumstances surrounding the making of the application, and relevant legislation, the Tribunal realised that the delegate was in error. However, given the entirety of the regulatory requirements that cannot have been the end of the review. That is because the applicant would still have to meet all the other requirements if he were to be granted the visa.
Given that a second issue had emerged at that point, which had the possibility to be dispositive of the review, the Tribunal was compelled by s.360 of the Act to give him the opportunity to give evidence and arguments in relation to this issue. It did so by inviting him, again pursuant to s.360 of the Act, to another hearing.
The Tribunal was not obliged to put the applicant on notice in writing prior to the second hearing. The “notice” of the issue was properly given at the “first” hearing in circumstances where the applicant would have been generally on notice from what was recorded by the delegate, that to be granted the visa he would have to satisfy all of the relevant criteria including criterion 3004 of Schedule 3 to the Regulations. He was given the opportunity to make further submissions. I cannot see that the applicant was misled in any relevant way by the Tribunal’s conduct of the review. In all, ground two and ground three, as they are explained in written submissions, are not made out.
In his oral submissions the applicant sought to raise a number of other matters in explanation of grounds two and three or even to argue matters not pleaded. In any event, these are as follows.
First, the applicant argued that the delegate’s decision turned on the application of criterion 3001. Once the Tribunal found that the delegate had been in error in her application of this criterion it should have remitted the applicant’s case to the Minister’s department for reconsideration. Instead, the Tribunal proceeded to consider his case in light of criterion 3004. This, the applicant said, was its “legal error”.
The applicant explained this by referring to s.349(2)(c) of the Act to submit that the Tribunal should have remitted his matter to the delegate and its failure to do so was a breach of the relevant procedure as set out in the Act.
Section 349(2)(c) of the Act is in the following terms:
“The Tribunal may
…
(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; …”
At its highest, subparagraph (c) is but one of a number of options available in the Tribunal’s exercise of its powers in relation to a reviewable decision. To the extent that the applicant’s submissions were that the Tribunal should have exercised this power, all of the Tribunal’s powers set out at s.349 of the Act are discretionary, not mandatory.
The applicant’s complaint, however, can also be seen in light of his separate reliance on Principal Member Direction 05 – “Efficient conduct of MRT reviews”, apparently made some time in December 2013 (see annexure 7 to his written submissions filed on 6 July 2016).
The applicant specifically referred to “Criteria in Dispute”, at [26]–[27] of that Direction:
“[26] As a general rule, where the minister or delegate has made an adverse decision on particular criteria or issues, the tribunal should restrict its review to those matters. The tribunal has a power to remit applications for visas to the Department of Immigration and Border Protection (the department) for reconsideration, and may do so by finding that one or more of the criteria have been met.
[27] For example, where the issue is whether a person is the spouse of another person, and the tribunal decides that a spouse relationship exists, it would normally remit the matter to the department with directions that a visa applicant meets relevant criteria. A delegate will then consider the remaining criteria, which would generally involve assessments in relation to health and public interest criteria.”
The Direction also states that it is meant to provide “general guidance on the conduct of reviews” (see at [2]). It may be accepted that the purpose of the direction was to assist Tribunal members in the efficient disposition of reviews, and was therefore focussed on Tribunal members (see the Direction at [1] and s.353 and s.353A of the Act).
However, once the Direction was published it also became generally available to applicants. In this light, it must be said that greater care and caution should have been exercised by the Principal Member in the drafting of the Direction. It may be accepted that Tribunal members should understand the context and background in which the Direction was drafted. No such assumption can readily be made in the case of an unrepresented lay person.
In my view, as drafted, the Direction (relevantly at [26] – [27]) has the potential to be misleading when read by a lay applicant in these circumstances. This is not sufficient, however, to enable the applicant to now successfully make out his complaint.
The Direction states, as the applicant emphasised, that, relevantly, where the delegate has made an adverse decision on a particular criterion the Tribunal should restrict, “as a general rule”, its review to that criterion. Since the delegate made her “adverse” decision on criterion 3001, the Tribunal should have restricted the review to this. In this light, its finding that the delegate was in error should have resulted in his matter being remitted.
It is the case that the Direction at both [2] and [26] talks of “general guidance” and “as a general rule”. However, such “subtlety” may be lost on an unrepresented lay person.
Notwithstanding all of this, in the current case, it is to the relevant legislative scheme that the Court must have regard. As is made clear at s.349(1) of the Act, which informs the understanding of s.349(2) of the Act, the Tribunal may “for the purposes of the review … exercise all the powers and discretions that are conferred by this Act on the person who made the decision”. That is, the Minister’s delegate.
It is in this light that the Tribunal may consider exercising any of the powers set out at s.349(2) of the Act. In this light also it was plainly within the Tribunal’s jurisdiction, that is, the scope of the powers given to it by the Act, to consider criterion 3004. It is to be remembered that the applicant applied for a visitor “tourist” visa. Such visas in the relevant statutory and regulatory scheme are described as a subclass 600 visa. To be granted such a visa the applicant was required to satisfy the criteria set out at cl.600.21 to Schedule 2 to the Regulations, being common criteria to all visitor visas, and cl.600.22 being a criterion specific to the “tourist stream” of visitor visas.
Amongst other criteria, cl.600.223(2)(b) of the Regulations required that the applicant satisfy criteria 3001 and 3004 as set out at Schedule 3 to the Regulations. It is clear, given the use of the conjunctive “and”, that the applicant could not succeed in the grant of the visa unless he satisfied all of the criteria at cl.600.223(2)(b) of the Regulations including criterion 3004 of Schedule 3 to the Regulations. It was within the Tribunal’s power to proceed to consider criterion 3004 in circumstances where the applicant must also have met that criterion to be granted the visa. The exercise of the jurisdiction in this way was reasonable.
It is also important to note that the applicant’s grounds two and three assert a breach of natural justice and the failure to “observe” the appropriate procedures. In this context, the applicant would have been on notice from the delegate’s decision record that even if he could succeed in relation to criterion 3001 he would still need to meet, amongst all the other relevant criteria, criterion 3004 (see CB 35.5). No failure of procedural fairness, or proper application of the Regulations, is apparent here.
Second, before the Court the applicant emphasised again what was a key complaint about the Tribunal’s decision that he had raised in his written submissions. That is, that the Tribunal did not put him on notice of the issue dispositive of the review, being the application of criterion 3004.
As set out above, the applicant was given notice of this issue at the “first” hearing, and the Tribunal gave the applicant a period of six weeks to prepare for the “second” hearing where, on the evidence, this issue was discussed. Noting, of course, that the applicant was on notice as a result of the delegate’s decision that even if he was successful before the Tribunal in relation to criterion 3001 he would still need to meet criterion 3004 (as well as a number of other criteria) before he would be granted the visa. The Tribunal was not obliged to put the applicant on further notice of the issue to be discussed in its letter of invitation to the “second” hearing.
Third, the applicant complained that the Tribunal breached its natural justice obligations to him because it failed to tell the applicant at the “first” hearing that it had decided in his favour in relation to criterion 3001. The applicant submitted that he had been “misled” by the Tribunal’s failure because he believed the “second” hearing had been called to further discuss criterion 3001.
The Tribunal is not obliged at a hearing to provide a running commentary on its thought processes or the view that it takes of an applicant’s evidence (SZBEL at [48] and Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427 at [64]). The Tribunal is entitled to “reserve” its decision and properly consider the evidence, submissions and claims after the hearing. Of course, if a Tribunal chooses to put its view of the evidence at a hearing no legal error arises. The Tribunal’s obligation at a hearing, is to give the applicant a reasonable and meaningful opportunity to address the issues dispositive of the review. There is no compulsion on the Tribunal in meeting its procedural fairness or natural justice obligations, to provide its concluded view of the evidence at the hearing.
Further, in the current case, there is no obligation on the Tribunal to put the applicant on specific notice of what is to be discussed at the hearing. Again, there is no legal error if the Tribunal chooses to do so. However, s.360 of the Act is directed to the provision, by way of an invitation, to an opportunity for the applicant to appear before the Tribunal to give evidence and present arguments about the issues determinative of the review. The Tribunal complied with its obligations in this regard.
Fourth, before the Court, the applicant also pressed his complaint that he was only provided with seven days after the hearing to make further submissions in circumstances where the Tribunal had earlier provided 21 days for submissions and the giving of information prior to the hearing. This matter is dealt with above.
Fifth, the applicant sought to expand his argument and specifically, in relation to ground three, he submitted that one of the procedures that the Tribunal was required to “observe”, and failed to do so, was s.359B(2) and (4) of the Act. The applicant explained that at the hearing the Tribunal invited him to give information by way of further or additional evidence.
Although the applicant did not specifically refer to reg.4.17 of the Regulations which prescribes the relevant period for the purposes of s.359B(2) of the Act . That is a period of 14 days from the date of receipt of the invitation to provide information. It may be that he had this in mind in raising this specific complaint.
The difficulty for the applicant’s complaint is that s.359B of the Act, and reg.4.17 of the Regulations, as is made clear at s.359B(1) of the Act, relate to invitations made by the Tribunal under s.359 or s.359A of the Act. Plainly, in the circumstances, the Tribunal did not invite the applicant to comment on or respond to any information such as to engage s.359A of the Act. Nor can the Tribunal’s grant of time to the applicant to make submissions, made at the hearing, be seen as being relevant to s.359 of the Act. The applicant was not asked by the Tribunal to give information. Rather, in pursuit of its obligation under s.360 of the Act to give the applicant the opportunity to address the issues dispositive of the review, the applicant was given further time to do so.
Sixth, the applicant also submitted that the Tribunal did not comply with the procedure set out at reg.4.15 of the Regulations. He sought to explain the relevance of this to his case by further reference to s.349(2)(c) of the Act. Although not made clear by the applicant, it appears the argument was that the Tribunal could have remitted his case to the delegate with a direction that the delegate was in error in relation to her finding on criterion 3001.
The Tribunal did have the power to remit the applicant’s case to the delegate. However, in the circumstances it was not compelled to do so. As set out above, there was no error in the Tribunal proceeding to dispose of the review in the circumstances presented to it, and in the manner it reasonably elected to pursue.
Seventh, the applicant also complained that the Tribunal failed to observe s.361 of the Act. The applicant’s reference, however, is of no assistance to him in circumstances where he also confirmed to the Court that he did not make any request of the Tribunal to call a witness, or to obtain any written information. Both matters being relevant to the operation of s.361 of the Act.
Eighth, in his submissions before the Court the applicant made reference to Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 (“SZIZO”) at [28] and [36]. At best as it could be understood, the applicant’s reliance was to argue that even if the Tribunal properly complied with its obligation to invite the applicant to a hearing pursuant to, in this case s.360 of the Act, there is still the need to consider whether the Tribunal otherwise denied the applicant procedural fairness.
SZIZO was a case which, I respectfully understand, addressed the question of whether the Tribunal in that case gave notice to the applicants to attend a hearing in the manner that is relevantly prescribed in the Act for that purpose. The question decided by the High Court was that procedural steps set out in the Act were to ensure that an applicant attend a hearing to give evidence and make arguments, but were not an inviolable restraint conditioning the Tribunal’s jurisdiction to conduct and decide the review.
In his submissions the applicant appeared to rely on such references in that case as “a failure to comply with them [the procedural steps] will require consideration of whether in the events that occurred the applicant was denied natural justice” (SZIZO at [36]).
The difficulty for the applicant is that, as in SZIZO, there is no denial of natural justice in the circumstances of this case where the applicant was invited to a hearing on two occasions, and on the second occasion the issue dispositive of the review, and for that matter the substratum of facts relevant to that issue, was raised. The applicant was given the opportunity, both at the hearing and subsequently, to make out his case.
It is important to note the following both in relation to this specific complaint and in relation to the applicant’s grounds and submissions generally. As set out above, the applicant applied for a visitor’s visa in the “tourist stream”. To be granted the visa he needed to satisfy all of the criteria at cl.600.223 of Schedule 2 to the Regulations. This included criterion 3001 and 3004 of Schedule 3 to the Regulations.
The Tribunal found the delegate was in error in finding that the applicant did not satisfy criterion 3001. The Tribunal found that the applicant ceased to hold a substantive visa on or after 1 September 1994, and therefore criterion 3004 applied to his application ([17] at CB 185). This finding was, on the evidence, reasonably open to the Tribunal.
Relevantly, the Tribunal noted that criterion 3004 requires, in part, that an applicant who has ceased to hold a substantive visa in these circumstances, was not the holder of a substantive visa because of factors beyond his control. This was a proper understanding of the relevant regulatory requirement. On the evidence before the Court, the Tribunal raised this issue of the application of criterion 3004, and the question of factors beyond the applicant’s control, with the applicant at the hearing (see [18] – [24] at CB 186). The applicant has not identified or pressed any evidence to contradict the Tribunal’s account of what it said occurred at the hearing.
At the hearing before the Tribunal, the applicant asked for more time to make submissions on the issue of criterion 3004 and the question of whether there were factors beyond his control that caused him not to have a substantive visa. The Tribunal gave him seven days for this purpose ([25] at CB 186). The applicant made his submissions and provided certain evidence in support ([26] at CB 186 to [33] at CB 187).
In all, the applicant raised five matters in relation to factors he said were beyond his control. Three of these were raised at the hearing. One was that he had appealed against the cancellation of his PhD enrolment. This had been unsuccessful. He was awaiting a response from the New South Wales Ombudsman in relation to a subsequent complaint made by him. The Tribunal found this was not a factor beyond his control ([21] at CB 186).
The second was that he had received confusing and contradictory advice from his “immigration lawyers”. The third matter was that the social unrest in his country was such that he could not return home. The Tribunal found these also were not beyond his control and it gave reasons for these findings ([22] – [24] at CB 186).
After the Tribunal hearing, the applicant submitted evidence in support of a fourth matter raised at the hearing, that is, that he suffered from a mental illness, which was a factor beyond his control in relation to his not holding a substantive visa. He also raised another, fifth factor, namely, difficult financial circumstances.
The Tribunal accepted that the applicant’s financial circumstances were difficult and that he had been suffering from a mental illness. However, the Tribunal found that neither factor led to his not lodging an application for a substantive visa at the relevant time so as to avoid not being the holder of such a visa ([26] at CB 186 to [36] at CB 187). These conclusions and the findings that informed them were all reasonably open to the Tribunal.
In relation specifically to grounds two and three, the evidence before the Court reveals, to respectfully paraphrase what the High Court said in SZIZO (at [35]), no question in this case of a failure of procedural fairness or natural justice, where the applicant has received timely and effective notice of the hearing, and been given the opportunity, including after the hearing, of advancing his case. In all, grounds two and three are not made out.
Ground four asserts that the Tribunal member did not have jurisdiction to make the decision. This is not explained by particulars in any way. The applicant has not provided any evidence to support this assertion. Before the Court, the applicant explained this was “related” to ground three, that is, the Minister’s delegate considered only criterion 3001 of Schedule 3 to the Regulations. The Tribunal, therefore, should have confined its consideration to that issue only. For the reasons set out above ground four does not succeed.
For the sake of completeness I note that there is nothing before the Court to suggest that the Tribunal member was not properly appointed as a Tribunal member under the statute, or that the Tribunal was not properly constituted to conduct this review. The Tribunal had the power to conduct the review pursuant to s.349 and s.65 of the Act. Ground four is, in the absence of relevant evidence, baseless.
Ground five can only be charitably described as a litany of allegations relating to the Tribunal’s exercise of its power. The allegations make broad assertions of legal error without any particularity whatsoever.
In any event, particular (a) to ground five asserts that the Tribunal took into account an irrelevant consideration. In the absence of any particularity by the applicant this complaint is not made out. Before the Court, the applicant’s complaint appeared to be that the Tribunal did not “truly” look at whether he received poor immigration advice and that this led to the Tribunal’s rejection of this matter as a factor beyond his control.
First, it cannot be said that the Tribunal took into account an irrelevant consideration when looking at the matter of the immigration advice given that this was the applicant’s own evidence and submission.
Second, the complaint, as explained before the Court, really seeks to challenge findings of fact made by the Tribunal which were reasonably open to it to make. The Tribunal did consider the applicant’s claim in relation to the receipt of immigration advice. It was not satisfied, for the reasons that it gave, that it was a factor beyond the applicant’s control in explaining his not having a substantive visa at the relevant time. In all, the applicant’s complaint seeks impermissible merits review (Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
Particular (b) to ground five asserts that the Tribunal failed to take a relevant consideration into account. Again, no particulars are provided. Before the Court, the applicant submitted that the Tribunal failed to take into account the “two documents” attached to his submissions (the Direction and the Guidelines). The Direction is addressed above. For the reasons given there, this does not assist the applicant in revealing jurisdictional error on the part of the Tribunal. This particular complaint, therefore, is best understood as being that the Tribunal did not apply the Guidelines in relation to vulnerable persons.
As set out above, the applicant was required to explain the reason he was not the holder of a substantive visa at the relevant time, and whether the reason he did not hold such a visa was because of factors beyond his control. The applicant had put, as one of the factors, that he had been hospitalised for two weeks in November 2013 (at [23] at CB 186). In his subsequent written submissions to the Tribunal, he stated that he suffered from a severe mental illness and this had impacted on his studies which led to the cancellation of his education enrolment.
There are two answers to the applicant’s complaint. First, the Tribunal’s document is, as it states, a “guidance document”. It is not binding on the Tribunal, and the Tribunal is not bound to take it into account. There is nothing before the Court to say that the Tribunal was bound to take it into account as a relevant consideration (Applicants M16 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] FCA 1641; (2005) 148 FCR 46, M100 of 2004 & Anor v Minister for Immigration & Anor [2007] FMCA 829 and SZUZK v Minister for Immigration and Border Protection [2016] FCA 498).
Second, the Tribunal did refer, in its decision record, to the applicant’s submissions and evidence regarding his mental health (at [23] at CB 186, [26] at CB 186 and [28] – [30] at CB 187). The Tribunal found that the applicant “ha[d] been suffering from a mental illness which has had a severe impact on his education” (at [34] at CB 187). However, the Tribunal reasoned and found as follows at [35] (at CB 187):
“The Tribunal considers the psychiatric evidence submitted does not indicate that the applicant was not able to lodge an application for a visa before his previous substantive visa expired. The medical report submitted indicate the applicant had psychiatric problems which impaired his ability to succeed academically. It notes he was treated at the mental health clinic for separate periods of between 2 and 4 days. The medical certificate concerning his IELTS test gives his treatment at the clinic as a reason for not attending the test. The Tribunal is not satisfied the medical evidence indicates he was not able to lodge the claim for the visa.”
The applicant’s written submissions to the Court appear to provide two complaints about the mental health matter which are not easily reconcilable with the complaint that the Tribunal failed to take a relevant consideration into account, that is, the Guidelines.
First, and with reference to [35] – [36] of the applicant’s written submissions, the claimed failure appears to be that the Tribunal did not give him more time to make his post hearing submissions to it in circumstances where he was suffering from mental health issues. The question of the reasonableness of the Tribunal’s exercise of its discretion has already been addressed previously in this judgment. As to a relevant consideration, the applicant has not pointed to anything in the Guidelines to show that the Tribunal was required to provide him with a longer period.
In any event, the applicant’s post hearing written submissions and supporting documentation to the Tribunal are reproduced in the Court Book (see CB 120 to CB 181). While there are a number of documents which appear to have been submitted on a number of occasions, what remains is a comprehensive response from the applicant to the issue raised at the hearing.
Second, [37] of the applicant’s submissions, in my view, when fairly read reveals the applicant’s real complaint here. That is, he had been treated for depression, this made him a vulnerable person, he told this to the Tribunal, and with reference to the totality of his written submissions, the Tribunal should have found that this was a factor beyond his control and, therefore, he satisfied criterion 3004. This is no more than an expression of disagreement with a finding of fact made by the Tribunal. It does not reveal jurisdictional error in the circumstances. The Court cannot engage in impermissible merits review (Wu Shan Liang).
At the hearing before the Court, the applicant abandoned and did not press particular (c) to ground five.
Particular (d) to ground five asserts that the Tribunal exercised its power unreasonably. No particulars are provided. Before the Court, the applicant, in his submissions, essentially raised the same matters as in relation to ground two and argued, in particular, that the Tribunal’s action in not remitting the matter to the delegate was unreasonable. These complaints have already been dealt with above. I agree with the Minister that, particularly when regard is had to the applicant’s submissions, this is another attempt to cavil with the Tribunal’s findings of fact. These findings were all reasonably open to the Tribunal on what was before it. This complaint does not succeed given that it cannot be said, that in the circumstances presented, the Tribunal’s findings were unreasonable.
Particular (e) to ground five asserts the Tribunal exercised its power in such a way that its decision was uncertain. No explanation is provided in the particulars. In any event, the Tribunal’s decision cannot be said to be “uncertain”. Its final determination had the requisite level of certainty. In all, ground five, as pleaded, is not made out.
Ground six and seven assert that the Tribunal’s decision involved an error of law or was made contrary to law. No particulars are provided.
The applicant’s written submissions press the assertion that the Tribunal fell into legal error because it did not confine itself to the issue considered by the delegate. As stated above, the submissions annex the Principal Delegate’s Direction titled “Efficient Conduct of MRT Reviews”, which is said to provide general guidance on the conduct of review. In particular, the applicant relied on [26] - [27] of the Direction, excerpted above.
On their face, these paragraphs provide some factual support for the applicant’s claims. Further, they are so broadly drafted and by seeking to draw generalised (“As a general rule”) propositions create uncertainty. In my view, they are, in a practical sense, unhelpful guidelines which the applicant understandably sought to rely on.
However, as set out above, these are guidelines. They are the then Principal Member’s view as to how a Tribunal member should “generally” conduct the review. There is nothing to say that they are binding on the Tribunal member.
In any event, as [27] of the Direction appears to imply, the guidance provided is directed to the Tribunal not considering such criteria as relating to matters of health and character in circumstances where the Tribunal has found, unlike a delegate, that the applicant meets all the necessary and key criteria for the grant of the visa. In the current case, it was open to the Tribunal to proceed to determine whether the applicant satisfied the key criteria for the visa.
In any event, the issue before the delegate was whether the applicant met, relevantly, cl.600.223 of the Regulations, which included all of the applicable Schedule 3 criteria. That is made clear in the delegate’s decision record (CB 35). The delegate did not consider the other Schedule 3 criteria, including relevantly criterion 3004, because the finding that he did not meet criterion 3001 meant he could not be granted the visa.
Contrary to the delegate, the Tribunal found that he did satisfy criterion 3001. However, that finding was not sufficient to say that he satisfied all the requirements in cl.600.223 of the Regulations. It was therefore open, if not necessary, for the Tribunal in the efficient conduct of the review to put in place the process to complete the review and make the necessary determination. Grounds six and seven are not made out.
In all, none of the grounds of the amended application, and when considered in light of the applicant’s submissions, are made out.
A Further Matter
Before the Court the Minister pointed to [33] and [34] of the applicant’s written submissions. Although not pleaded in his grounds, it appears that in his written submissions the applicant seeks to argue that the Tribunal was biased. That bias is said to be revealed because the Tribunal only gave him seven days after the hearing to provide information and documents in support of his psychiatric condition.
The “explanation” for this allegation appeared to be as follows, and as is also set out in detail above. The Tribunal earlier had given him 21 days to provide information. This was a reference to the Tribunal’s letter of invitation to the hearing (see CB 104). Considering what was raised by the Tribunal at the “second” hearing was “new”, and in light of his mental condition, the applicant should have been given more time as the Tribunal had done earlier. The applicant claimed its failure to do so reveals bias.
An allegation of bias is a serious charge to make against an administrative decision-maker because, unlike other allegations of jurisdictional error, it is an attack on the integrity of the decision-maker. In this light, an allegation of bias must be distinctly made and clearly proved (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69]).
On the evidence before the Court, the applicant’s allegation of bias is not made out. The evidence before the Court is not such as to show that the Tribunal member did not bring an open mind to the proceedings. The applicant was invited to a hearing, he was given the opportunity to address the issue dispositive of the review and was given further time to make submissions and provide further evidence.
The sole basis in support of the claim of bias is that the Tribunal only gave him 7 instead of 21 days to do so. This, in the circumstances, cannot be said to be a distinct assertion of bias, let alone, that bias is clearly made out. There is no evidence before the Court, nor did the applicant point to any evidence, to say that he sought a longer period from the Tribunal. In all, the applicant’s attempt to assert bias would not have succeeded had it been pleaded as a ground of the amended application.
A Yet Further Matter
Towards the end of the hearing before the Court, the applicant raised a further complaint. In essence, this was that as the Minister’s delegate had decided his matter with reference to criterion 3001 and the Tribunal decided his matter with reference to criterion 3004, the Minister should not be permitted to argue for the Tribunal’s decision before the Court. That is, in short, given that the Tribunal’s decision was “different” to the Minister’s decision, the Minister should not come to Court to “defend” the Tribunal’s “different” decision.
It was not immediately apparent how this argument could reveal jurisdictional error on the part of the Tribunal’s decision. As best as it could be understood at the time, the applicant’s complaint, although heavily reliant on his complaints about the Tribunal as had already been put before the Court, appeared to raise a matter of procedure before this Court.
It must be said, I could not see that it was a matter that immediately went to any unfairness in the procedure before the Court or that the applicant was denied a fair opportunity to make out his case. Nonetheless, given the applicant’s unrepresented status and notwithstanding that he raised this point very late into the hearing, and in breach of the Court’s orders allowing amendments to his application to be made in a timely fashion, I granted leave to him and the Minister to make written submissions on this point. Both parties filed supplementary written submissions to which I have had regard.
I should note that in his submissions, the Minister said he understood the applicant’s complaint to be that the solicitors for the Minister did not have the relevant authority to represent and “defend” the decision of the Tribunal.
However, I understood the applicant’s argument to make a broader assertion. That is, as set out above that the Minister should not “defend” the decision. The Tribunal should defend its “own” decision. In any event, what follows is in answer to the applicant’s broader complaint within which the question of the “authority” of the relevant solicitor is subsumed.
It is important to note that in essence, the sole question for consideration by the Court, as raised by his own application to it, as amended, is whether the Tribunal’s decision is affected by jurisdictional error. In essence, the grant of the relief that the applicant says he seeks from this Court, is dependent on a positive answer to that question.
The applicant’s supplementary submissions make references to complaints about the Tribunal’s decision already raised by him in his grounds and earlier submissions. To that extent those matters are addressed above in this judgment. However, to the extent that these references are now “cloaked” in his submission about this latest complaint, neither the restatement of these complaints, nor his use of them in relation to this latest argument or, indeed, the latest assertion itself, reveals jurisdictional error in the Tribunal’s decision.
Whether the Minister has “defended” the Tribunal’s decision, or the Minister’s solicitors did not have “authority” to argue “for” the Tribunal, are not matters in themselves that assert, let alone are capable of revealing, jurisdictional error in the Tribunal’s decision. In that light, the applicant’s latest complaint does not assist his grounds in the amended application, nor in the pursuit of the relief that he says he seeks.
However, and of course, this Court, in dealing with the applicant’s application, is required, amongst other things, to ensure that the proceedings are fair, not only to the applicant, but to all the parties before it.
The applicant appears to have overlooked, in raising and making this argument, that the Minister, through his solicitors, is before the Court in this matter because the applicant himself, in the making of his application, and as continued with his amended application, invited, if not in a sense compelled, the Minister’s involvement when he named the Minister as the “first respondent” in these proceedings. As is clear from the interlineations on the face of the application form, the applicant gave some thought as to who the relevant parties should be, that is, as against whom to make his application. He named the Minister and the Tribunal as the first and second respondents respectively.
In that light, the applicant’s complaint now that the Minister, nor his solicitors, should participate in his case is, it must be said, disingenuous and gives rise to questions as to the applicant’s motivation in raising this argument at such a late stage in these proceedings, and what he hoped to achieve by it. This is particularly so in circumstances where the argument cannot, and does not, assist in the central issue for disposition by the Court, that is, whether the Tribunal’s decision is affected by jurisdictional error.
Having been named as one of the two respondents by the applicant in his application to the Court, the Tribunal elected, consistent with r.12.01(1) of the Federal Court Rules 2011 (Cth) (“the FC Rules”) (which applies to matters of this type in this Court as a result of the application of r.1.05(2) of the Federal Circuit Court Rules 2001 (Cth) (“the FCCA Rules”)) to submit to any order of the Court save as to costs. The relevant notice was filed on 5 November 2014 by the second respondent’s solicitors who are also the first respondent’s solicitors in these proceedings.
As the Minister submits in Shaw Building Group Pty Ltd v Narayan (No 2) [2015] FCA 585 Foster J at [25] described the effect of the filing of a submitting notice as follows:
“By filing his Submitting Notice on 21 January 2013, Mr Narayan communicated both to the applicant and to the Court that he did not want to contest the relief sought by the applicant in its Originating Application. That is the effect of r 12.01 FCR.”
Once the Tribunal announced its election not to contest the relief sought by the applicant, that left the first respondent, the Minister, as the active respondent in these proceedings. The Minister has not filed any submitting notice.
The Minister is entitled to retain solicitors to represent him in matters of this type including in this matter. To the extent that the applicant questioned the authority of the Minister’s solicitors to appear, that “authority” derives from the Minister’s retention of the solicitors to represent him in these proceedings. Noting, as is evident from the submitting notice, that they also represented the Tribunal.
Ultimately, the applicant’s argument has no merit when seen in light of the relevant statutory scheme within which he made his application. In migration matters, pursuant to s.476 of the Act, this Court has the same original jurisdiction in relation to a migration decision (as defined at s.5(1) of the Act and with reference to s.476) as the High Court has under s.75(v) of the Commonwealth of Australia Constitution.
Applications for review of a migration decision made to this Court pursuant to s.476 must be made within the time specified in s.477 of the Act. The Act provides, pursuant to s.479, that in a review by this Court of a migration decision resulting from an application referred to in s.477 of the Act, the parties before the Court are “the Minister or where appropriate the Secretary” (to the Minister’s department), and in circumstances where the migration decision is made on review under relevantly Part 5 of the Act, “the applicant in the review by the relevant Tribunal”.
The applicant’s submissions were silent on the matter of the applicable statutory provisions and did not appear to understand the relevant statutory context in which his application to the Court was made.
And More
Finally, although leave was not granted for this purpose, the applicant’s supplementary submissions also allege that the Minister did not comply with certain Rules of this Court in these proceedings. Those are said to be:
1)Rule 42.05(b) of the FCCA Rules:
“Service
A party to an application may apply to the Court for an order that:
…
(b) the application be served on a specified person or class of persons in a specified manner.
2)Rule 1.07 of the FCCA Rules:
“Applications for orders about procedures
A person who wants to start a proceeding, or take a step in a proceeding, may apply to the Court for an order about the procedure to be followed if:
(a) the procedure is not prescribed by the Act, these Rules or by or under any other Act; or
(b) the person is in doubt about the procedure.”
3)Rule 4.03(1)(c) of the FCCA Rules:
“Response to application
(1) A respondent to an application who seeks to do any of the following must file a response in accordance with the approved form:
…
(c) ask the Court to dismiss the application;…”
The applicant’s supplementary submissions contend that, given the alleged failures by the respondent, the Court should make orders against both the respondents pursuant to rr.13.03A and 13.03B of the FCCA Rules. That is, that the respondents failed to follow these Rules and are, therefore, in default, and the Court should make final orders in favour of the applicant.
Taking each of the Rules on which the applicant relies in turn. First, r.42.05(b) of the FCCA Rules permits a party to seek an order that an application to the Court be served on a specified person in a specified manner. The applicant appears to have overlooked the fact that he, and not the Minister or the Tribunal, is the applicant in these proceedings. In any event, no issues of service of the application on the Minister or the Tribunal was ever raised or arose in these proceedings.
Second, r.1.07 of the FCCA Rules, as is clear in its terms, relates to a “person who wants to start a proceeding or to take a step in a proceeding”. As to the first, again, the applicant is the one who wanted to start the proceeding, not the Minister or the Tribunal. As to the second element, there is nothing to show that the Minister ever wanted to take a “step” in this proceeding in respect of which he sought any order to do so.
Third, r.4.03 of the FCCA Rules requires a respondent to file a Response to the application. The complaint (as set out at [45] of the applicant’s supplementary submissions) alleges that the first respondent did not do so. The Court’s file reveals that the first respondent did file a Response on 10 November 2014.
In short, the first respondent is not in default of these rules. These Rules do not provide a basis for the “default orders” the applicant now seeks.
The applicant’s supplementary submissions also assert, in context with reference to rr.13.03A and 13.03B of the FCCA Rules, that the Minister did not file, or serve, any document to make any argument in relation to criterion 3004. At best it appears this assertion also arises from the applicant’s “central”, and consistent, complaint that the delegate’s decision turned on criterion 3001 and the Tribunal’s decision on criterion 3004, and the Tribunal should have remitted the matter to the delegate once it found he did meet criterion 3001.
How this complaint, and the circumstances on which it depends, leads to default on the part of the Minister in these proceedings was not satisfactorily explained by the applicant. Nor, it must be said, when regard is had to the circumstances of this case, and the Rules that the applicant seeks to invoke, can it ever be. Simply, there is no requirement in the Rules, that the Minister or the Tribunal be required, by the Rules, to file any document in relation to criterion 3001 or criterion 3004 of Schedule 3 to the Regulations.
I cannot help but note that in the applicant’s zeal in raising baseless and time consuming allegations about the Minister’s failure to follow the rules or orders of this Court he, himself, has, in fact, failed to follow certain rules. As set out above, the applicant raised for the first time towards the conclusion of the hearing of this matter the question dealt with at relevant paragraphs above.
To the extent that this issue may have been raised as an additional ground of review the applicant made no application whatsoever to further amend his application as contemplated by the exercise of the power at r.7.01 of the FCCA Rules. The applicant’s attempt to argue that the Minister was in default was not the subject of the application, or the amended application. This required the applicant to file an Application in a Case and supporting affidavit pursuant to r.4.08 and r.4.05(1) of the FCCA Rules. He did not do so.
Conclusion
The grounds of the amended application are not made out. The applicant’s arguments and submissions do not reveal jurisdictional error on the part of the Tribunal. The application, as amended, should be dismissed. I will make an order accordingly.
In both of his written submissions, the Minister applies for costs in the event that he is successful in these proceedings. The Minister has been successful. Costs should follow the event. The applicant was clearly on notice of the Minister’s costs application as he refers to it and argues against it in his supplementary written submissions (see at
[54] – [55]). Taking into account the applicant’s submissions, I cannot see any reason not to make the costs order in the circumstances presented. I will hear the parties on the form of that order.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 21 October 2016
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