FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Citation: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 Appeal from: Singh v Minister for Immigration & Anor [2013] FCCA 651 Parties: MINISTER FOR IMMIGRATION AND BORDER PROTECTION v VIKRAM JEET SINGH and MIGRATION REVIEW TRIBUNAL File number: NSD 1448 of 2013 Judges: ALLSOP CJ, ROBERTSON AND MORTIMER JJ Date of judgment: 4 February 2014 Catchwords: MIGRATION – Migration Review Tribunal – review of decisions – visa applicant sought review by Tribunal of decision of Minister’s delegate to refuse skilled visa on basis that delegate not satisfied the visa applicant had competent English – s 363(1)(b) of Migration Act 1958 (Cth) gave Tribunal power to adjourn review of decision – Tribunal had agreed to wait until 31 December 2012 to receive the results of the visa applicant’s further tests for competent English before making its decision – visa applicant notified Tribunal on 1 January 2013 of the results of the tests but said he was going to apply for a re-mark of the test results – Tribunal declined to grant additional time on 3 January 2013 and proceeded to make its decision on 11 January 2013 – whether Tribunal in refusing to adjourn exercised its discretion unreasonably Legislation: Migration Act 1958 (Cth) ss 353, 360, 363(1)(b)
Migration Regulations 1994 (Cth) reg 1.15C, Sch 2 cl 485.215
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Bushell v Repatriation Commission (1992) 175 CLR 408
Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; [2007] HCA 14
House v The King (1936) 55 CLR 499
Kruger v Commonwealth (1997) 190 CLR 1
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Sullivanv Department of Transport (1978) 20 ALR 323Date of hearing: 28 November 2013 Date of last submissions: 13 December 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 78 Counsel for the Appellant: Mr GR Kennett SC with Mr P Knowles Solicitor for the Appellant: Clayton Utz Counsel for the First Respondent: Dr J Lucy (pro bono) Solicitor for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1448 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MINISTER…
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CaseChat Overview and Summary
The case of Minister for Immigration and Border Protection v Singh involved a visa applicant who sought a review by the Migration Review Tribunal of a decision by the Minister’s delegate to refuse his skilled visa on the basis that the delegate was not satisfied the visa applicant had competent English. The applicant had agreed with the Tribunal to wait until 31 December 2012 to receive the results of further tests for competent English before making its decision. However, the applicant notified the Tribunal on 1 January 2013 of the results of the tests but said he was going to apply for a re-mark of the test results. The Tribunal declined to grant additional time on 3 January 2013 and proceeded to make its decision on 11 January 2013. The applicant sought to appeal the Tribunal’s decision to the Federal Circuit Court.
The legal issues the court was required to decide were whether the Tribunal’s refusal to adjourn the decision to allow the applicant to apply for a re-mark of the test results was unreasonable and whether the Tribunal’s decision was in breach of procedural fairness. The primary judge of the Federal Circuit Court found that the Tribunal’s refusal to adjourn the decision was unreasonable and that the decision was in breach of procedural fairness. The primary judge emphasised three matters in reaching this conclusion. Firstly, the Tribunal had implicitly acknowledged that proceeding to a decision before the applicant had the results of the tests would have denied him a real chance to present his case. Secondly, the Tribunal expressed no view that the re-mark would be futile. Thirdly, the applicant’s request for a further adjournment conveyed to the Tribunal that he did not consider that he had presented his case. The primary judge found that the Tribunal’s decision that the applicant should not be able to submit test results corrected following a re-mark “lacked an evident and intelligible justification”.
The Minister sought to distinguish the facts in the present appeal from the facts on which the High Court’s decision in Li was based. The Minister submitted that, in seeking to apply Li in a given case, it is necessary to have regard to two factors in particular. Firstly, whether the purposes inherent in s 360 were adequately achieved by the process of review as a whole; and, secondly, whether there is a rational justification for refusing to allow further time. However, the Federal Circuit Court found that the Minister’s submissions were not sufficient to distinguish the present appeal from Li.
The final orders of the court were that the title of the appellant in the Notice of Appeal be amended from Minister for Immigration, Multicultural Affairs and Citizenship to Minister for Immigration and Border Protection. The appeal was dismissed, and the appellant was ordered to pay the first respondent’s costs of and incidental to the appeal.
The legal issues the court was required to decide were whether the Tribunal’s refusal to adjourn the decision to allow the applicant to apply for a re-mark of the test results was unreasonable and whether the Tribunal’s decision was in breach of procedural fairness. The primary judge of the Federal Circuit Court found that the Tribunal’s refusal to adjourn the decision was unreasonable and that the decision was in breach of procedural fairness. The primary judge emphasised three matters in reaching this conclusion. Firstly, the Tribunal had implicitly acknowledged that proceeding to a decision before the applicant had the results of the tests would have denied him a real chance to present his case. Secondly, the Tribunal expressed no view that the re-mark would be futile. Thirdly, the applicant’s request for a further adjournment conveyed to the Tribunal that he did not consider that he had presented his case. The primary judge found that the Tribunal’s decision that the applicant should not be able to submit test results corrected following a re-mark “lacked an evident and intelligible justification”.
The Minister sought to distinguish the facts in the present appeal from the facts on which the High Court’s decision in Li was based. The Minister submitted that, in seeking to apply Li in a given case, it is necessary to have regard to two factors in particular. Firstly, whether the purposes inherent in s 360 were adequately achieved by the process of review as a whole; and, secondly, whether there is a rational justification for refusing to allow further time. However, the Federal Circuit Court found that the Minister’s submissions were not sufficient to distinguish the present appeal from Li.
The final orders of the court were that the title of the appellant in the Notice of Appeal be amended from Minister for Immigration, Multicultural Affairs and Citizenship to Minister for Immigration and Border Protection. The appeal was dismissed, and the appellant was ordered to pay the first respondent’s costs of and incidental to the appeal.
Orders
Orders of the court
1. The title of the appellant in the Notice of Appeal dated 24 July 2013 be amended from Minister for Immigration, Multicultural Affairs and Citizenship to Minister for Immigration and Border Protection.
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
As was then inevitable, the Tribunal found the first respondent did not meet cl 485.215, which led it to affirm the delegate’s decision.THE FEDERAL CIRCUIT COURT DECISION The first respondent was unrepresented before the Federal Circuit Court. His argument was expressed thus in his application:I believe that the Migration Review Tribunal has fell into jurisdictional error by declining me additional time to apply for re-evaluation of the IELTS test taken by me on 1 December 2012 and then wait for the result of that re-evaluation and thus in making this finding that I didn’t meet the requirements of clause 485.215. Its failure to provide additional time to me to apply for the re-evaluation of the result of the test taken me on 01/12/2013 (when the Tribunal has previously, during my personal hearing, agreed to provide me the time to submit the result of that particular IELTS test i.e. the one taken by me on 01/12/2012) involved a denial of procedural fairness. The primary judge recorded in his reasons that although the application was based on an allegation of denial of procedural fairness, the submissions of the Minister also addressed the possibility that the Tribunal’s refusal to delay its decision on the review was unreasonable in the sense discussed in Li 297 ALR 225; [2013] HCA 18. (Li had been handed down approximately a month before the hearing before the Federal Circuit Court.) In concluding that no reasonable tribunal would have refused the adjournment request, the primary judge emphasised three matters. First, that by giving the first respondent an opportunity to submit to it the results of the November and December tests, the Tribunal had implicitly acknowledged that to proceed to a decision before the first respondent had the results of those tests would have denied him a real chance to present his case. Second, the Tribunal expressed no view that the re-mark would be futile, but rather limited its reasoning to the fact the first respondent had sat the IELTS test “several times”. Third, the primary judge considered that the first respondent’s request for a further adjournment “must have conveyed to the Tribunal that he did not consider that he had presented his case”, being the context for which s 360 of the Act provides and in which the adjournment power came to be exercised. In those circumstances, the primary judge found, at [51], the Tribunal’s decision that the first respondent should not be able to submit test results corrected following a re-mark “lacked an evident and intelligible justification”, picking up the language of the plurality in Li 297 ALR 225; [2013] HCA 18 at [76].THE MINISTER’S SUBMISSIONS ON THE APPEAL The Minister sought to distinguish the facts in the present appeal from the facts on which the High Court’s decision in Li was based. Recognising the central place of the obligation in s 360 of the Act to give a visa applicant a meaningful opportunity to present her or his case, the Minister submitted that, in seeking to apply Li in a given case, it is necessary to have regard to two factors in particular. First, whether the purposes inherent in s 360 were adequately achieved by the process of review as a whole; and, second, having regard to the answer to that question, whether there is a rational justification (whether expressly articulated or not) for refusing to allow further time. In developing those submissions, the Minister also relied on the expression used by the High Court in Li 297 ALR 225; [2013] HCA 18 at [76], and submitted the test was whether the exercise of power by the Tribunal (that is, to refuse an adjournment) had an “intelligible justification”.
Ratio Decidendi
Legal Principle Established
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