Mohammed v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 1319
•16 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Mohammed v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1319
File number(s): SYG 358 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 16 June 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Bridging E (Class WE) visa – whether the Tribunal considered submissions of the applicant – whether the Tribunal fell into jurisdictional error – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) cl 050.212(3)
Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Ishak v Minister for Immigration and Border Protection [2015] FCCA 2691
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Ethnic Affairs v Danielle (1981) 5 ALD 135
SZTBW v Minister for Immigration and Anor [2014] FCCA 1809
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242
Number of paragraphs: 40 Date of last submission/s: 10 June 2021 Date of hearing: 10 June 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Roberts appeared on behalf of the First Respondent. ORDERS
SYG 358 of 2021 BETWEEN: ZIAUDDIN MOHAMMED
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
16 JUNE 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Order 1 be stayed for 14 days from today.
3.The Applicant to pay the First Respondent’s costs, fixed in the amount of $3737.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a male citizen of India. The applicant first arrived in Australia on 2 September 2007 as the holder of a Student (Subclass 572) visa. The applicant has been subsequently granted a further 5 student visas.
The applicant’s last substantive visa expired on 27 July 2017 and he became an unlawful non-citizen. On 16 September 2016, the applicant was detained as an unlawful non-citizen pursuant to s 189 of the Migration Act 1958 (Cth) (“the Act”).
On 20 December 2016, the applicant was issued with a Criminal Justice Stay visa and released from detention. On 28 June 2018, the applicant was convicted of certain criminal law offences and sentenced to 4 years imprisonment with a 2 year non-parole period. The applicant was released from custody on 20 June 2020. The applicant was detained on the same day, again, as an unlawful non-citizen and placed in immigration detention.
On 20 June 2020, the applicant was provided with a Form 1432 which set out the time limits for lodging a visa application under s 195 of the Act.
On 23 June 2020, the applicant sent a letter by facsimile to an officer of the Department requesting an extension of time to lodge a substantive visa application. An extension was granted to 30 June 2020. On 29 June 2020, the applicant applied for a Bridging E
(subclass 050) visa (“BE”). The reasons stated for the visa were “application for substantive visa and judicial review”.
On 2 July 2020, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his visa. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In July 2020, the Tribunal (differently constituted) affirmed the decision not to grant the applicant his visa. The applicant sought judicial review in this Court. By consent, on 23 December 2020, this Court (differently constituted) remitted the matter back to the Tribunal for reconsideration. The basis for the remittal was that “the first respondent concedes that the second respondent erred in finding that s 195 applied in circumstances in which the second respondent was not satisfied that s 194 had been complied with”.
In a decision dated 8 February 2021, the Tribunal again affirmed the decision not to grant the applicant his visa
The applicant now seeks judicial review of the second Tribunal’s decision
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are contained in an Initiating Application filed with the Court on 10 March 2021. They are as follows verbatim:
Ground One
The Tribunal felt considered and took into account the submission of the applicant dated on 1-02-2021 including on the issue of raised judicata.
Ground Two
The Tribunal erred in failing to take into account the decision of the Federal Circuit Court dated on 18-12-2020 and failing findings of the Court on the issue of Section 194 compliance.
Ground Three
The Tribunal fell into Jurisdictional error in finding that it had the power to re-consider the previous decision of the Tribunal dated on 10-07-2020 subject to the previous Federal Circuit Court decision and made new findings as to compliance with section 194 of the migration Act.
Ground Four
The Tribunal erred in finding that Section 194 of the migration Act was complied with even though it accepted the fact that the applicant was only shown the Form 1423 and asked to sign but was never given the document to keep or to retain. Possession of the form 1423 remained with the delegate of the Minister and was never given a copy to the applicant at any time.
Ground Five
The Tribunal erred in failing to provide reasons in its decision dated on 9-02-2021 with respect to applicant submission on the issue of rest Judicata issue estoppel and the case law raised in the applicant submission dated on 1-02-2021.
Ground Six
The Tribunal erred in its decision at the ( paragraph 17) when it held that the Federal Circuit Court did not made determination in its previous decision dated on 18-12-2020, and the Tribunal erred in making a decision that the Federal Circuit Court has no power to revisit the factual findings of the previous Tribunal . The Tribunal by making this decision on the power of Federal Circuit Court made a Jurisdictional error because it failed to understand the exercise and the power of the Federal Circuit Court on the Tribunal decision making powers and abilities, which then operated to restrict the Tribunal when it considered the submissions of the applicant dated on 1-2-2021 and also the options and the grounds available to the Tribunal including simply proceedings and accepting the lawfulness of the previous Tribunal findings on Section 194 and simply making a decision following the non-compliance with the Section 194. As previously held by the previous Tribunal and continuing from there simply put, The Tribunal failed to accept it could continue and make a decision that is positive to the applicant taking into account the previous finding of the Tribunal of non-satisfaction with Section 194 compliance. The Tribunal fettered its own power in insisting that it must reconsider the issue of the Section 194 compliance in the new decision.
The Tribunal has no power to declare or make a finding of what powers the Federal Circuit Court has and then proceed and make its own decisions based on what the Tribunal thinks are the powers of the Federal Circuit Court. The Tribunal should have considered in its decision the alternative. The Federal Circuit Court in fact did have this power to make factual findings and to revisit the factual findings of the previous findings.
Ground Seven
The decision of the second respondent was unreasonable and illogical.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an interpreter. The Court was satisfied that the applicant was able to participate in a meaningful way in the hearing.
Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and the first respondent’s written submissions. The applicant was also provided with a pen and paper so that he could take notes during the course of the hearing should he wish to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review not merits review, and the difference between the two types of review. The Court also explained how the hearing would be undertaken.
Despite Court Orders, no written submissions or other material was supplied by the applicant in support of his case. The applicant told the Court that he was unable to apply for a Confirmation of Enrolment with an education provider as his passport was being held by the NSW Police. The applicant stated that he only received a copy of his passport on 21 December 2020. The original, he believes, is with the Department. The applicant confirmed that he was not provided with a copy of Form 1423 and stated that he was not able to understand fully the information within the Form as it was explained to him orally by a Departmental officer. The applicant acknowledged, however, that he did sign the Form.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to say anything further in reply. The applicant stated that he was unable to apply for a substantive visa without his passport which was with the Department.
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to ground one, the first respondent submitted that it is unclear exactly what the applicant intends to assert. If it is a complaint that the Tribunal failed to consider and take into account the applicant’s submission that it was “unstopped” (sic) by the Orders of this Court from making a different finding from the first Tribunal concerning compliance with
s 194 of the Act, than this fails on the face the Decision Record.
Whilst a failure to consider a claim or evidence can constitute jurisdictional error, it is clear from the Tribunal’s Decision Record that it considered the applicant’s submissions in his claim of res judicata: see paragraphs 17-18 of the Decision Record. The Tribunal correctly proceeded on the basis that no issue estoppel could arise to prevent it from deciding facts relevant to the applicant’s entitlements: see Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135.
Grounds two and three assert that the Tribunal erred by failing to consider the “decision” of this Court; finding it had the power to “re-consider” the first Tribunal’s decision and making new findings as to compliance with s 194 of the Act. Properly understood, these grounds contend that the Tribunal was bound by the “decision” of this Court and thus, was effectively estopped from making a different finding of fact in relation to compliance with s 194 of the Act than that which were made by the first Tribunal. The first respondent ultimately submitted that these grounds are misconceived.
The doctrine of estoppel simply has no application in the present case. It is broadly founded on the principle the parties should not be able to repeatedly litigate matters that have been finally determined by a Court: see Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36]. It was submitted by the first respondent that this matter has not been finally determined by the Court. Rather, the applicant has again sought judicial review of a further decision of the Tribunal following a remittal.
The Orders of this Court require the Tribunal to “determine the application made to it for review of the decision of a delegate… according to the law”. On remittal, the Tribunal’s task was to continue and complete the review. The Tribunal was entitled to make different factual findings from first Tribunal about whether s 194 of the Act had been complied with based on the additional evidence it obtained, namely the Form 1423, and the applicant’s request for an extension of time to submit a substantive visa application.
The first respondent submits that, in any event, the Tribunal clearly did have regard to the Court’s “decision” and correctly found that the Court had not made factual findings but had “determined that the previous Tribunal erred in concluding that s 194 had not been complied with, yet, that s 195 operated with respect to the applicant”.
Ground four contends that the Tribunal erred in finding that s 194 of the Act was complied with in circumstances where it accepted that the applicant shown the Form 1423 and asked to sign it but “was never given the document to keep or retain”. Taken at its highest, this ground invites the Court to engage in impermissible merits review. The Tribunal correctly identified, at paragraph 19 of the Decision Record, that s 194 of the Act did not require the applicant to be provided with a copy of the signed form to retain. All that is required by s 194 of the Act is that the applicant is “made aware” of the provisions of s 195 and s 196 of the Act “as soon as reasonably practicable” after being detained: see Ishak v Minister for Immigration and Border Protection [2015] FCCA 2691 at [41].
Ground five alleges that the Tribunal failed to provide reasons in relation to the applicant’s submission on the claim of “rest Judicata issue estoppel” (sic). Contrary to this ground, the Tribunal at, paragraph 17 to 18 of its decision, expressly considered and rejected the applicant’s submission that it was “bound” by this Court’s decision and estopped from making a different finding regarding compliance with s 194 of the Act. The Tribunal correctly proceeded on the basis that it was the sole arbiter of the facts and not the Court: see SZTBW v Minister for Immigration and Anor [2014] FCCA 1809.
In relation to Ground six, the Tribunal correctly found that it was impermissible for the Court to undertake merits review of a Tribunal’s decision. In any event, the Court did not do so, nor did it attempt to do so. The notation to the consent Orders remitting the matter back to the Tribunal for reconsideration identified that the jurisdictional error made by the first Tribunal was a misapplication of s 195 of the Act, “in circumstances in which the second respondent was not satisfied that s194 had been complied with”. In the current case, based on new evidence, the Tribunal was satisfied that s 194 of the Act had been complied with.
Ground seven alleges legal unreasonableness. The test for legal unreasonableness is “stringent” and will only arise in rare cases: see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [113]. In this matter, the Tribunal took steps to obtain evidence that s 194 of the Act had been complied with: see paragraph 20 of the Decision Record. For these reasons it was open to the Tribunal to conclude that the applicant did not meet cl 050.212(3) of the Migration Regulations 1994 (Cth) (“the Regulations”), given his express statement that he did not intend to apply for a protection visa and the prohibition in s 195 of the Act to be able to apply for any other kind of visa other than a bridging or protection visa.
CONSIDERATION.
As was explained to the applicant at the commencement of the proceedings, the Court is undertaking judicial review not merits review. Thus, the Court cannot make factual determinations. That is solely a matter for the Tribunal. The only area involving consideration of factual matters by the Court is where allegations are made that there are factual findings of the Tribunal that are legally unreasonable, irrational or illogical. In these circumstances the Court can remit that matter for reconsideration by the Tribunal.
To a large extent, this matter revolves around a consideration of the provisions of s 194 and
s 195 of the Act as set out below :
Section 194 - Detainee to be told of consequences of detention
As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of (my emphasis):
(a) the provisions of sections 195 and 196; and
(b) if a visa held by the person has been cancelled under section 137J--the provisions of section 137K.
Detainee may apply for visa
(1) A detainee may apply for a visa:
(a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply--within the next 5 working days after those 2 working days.
(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
Section 195 - Detainee may apply for visa:
(1) A detainee may apply for a visa:
(a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply--within the next 5 working days after those 2 working days.
(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
The previously constituted Tribunal committed jurisdictional error as it was not satisfied that s 194 of the Act had been complied with. This was one of the issues considered by the Tribunal upon reconsideration.
In undertaking reconsideration, the Tribunal reviewing the matter conducts a de novo hearing. It is not bound by the factual findings of a previous Tribunal or the original delegate. It considers the matter afresh and may make new, or different, factual findings.
The Tribunal determined that the applicant had not made any application for any other visa, other than a protection or bridging visa within the 2 days required by s 195 of the Act. Further, upon the expiration of the applicant’s student visa, he did not make any attempts to regularise his immigration status before coming to the attention of the Department. The applicant stated that he did not intend to apply for a protection visa, rather, he intended to apply for a further student visa.
At paragraph 13 of its decision, the Tribunal did not accept that the applicant was not informed about the time limits prescribed in s 195 of the Act, when he was taken into Immigration detention and provided with a Form 1423. The Tribunal noted that the applicant signed the Form 1423 on 20 June 2020, and subsequently sought an extension of time to make an application for a substantive visa in accordance with s 195 of the Act.
At paragraph 15 of its decision, the Tribunal found that it was not required to be satisfied as to the applicant’s subjective understanding of Form 1423 and the information contained therein. Further, the Tribunal found that there is no requirement following the applicant signing a Form 1423, that he be given a copy of it. The Tribunal found that a failure to give the applicant a copy of the signed Form 1423 does not constitute non-compliance with s 194 of the Act. With respect, the Court agrees with this finding. Nothing in s 194 or s195 of the Act requires that an applicant be given and be able to retain a copy of a Form 1423. Best practice, however, would be that the applicant be given a copy, however, this is not mandated by the Sections and cannot be read into them.
Accordingly, the Tribunal was entitled to find that, as the applicant had indicated that he had no intention to apply for a protection visa, he was statute barred from making an application for any other substantive visa. It was thus open to the Tribunal to find that the applicant did not meet cl 050.212 of the Regulations which relates to the grant of a student visa, nor did he meet the requirements under cl 051.221 of the Regulations for a Bridging (General) visa.
In terms of the Grounds of judicial review, ground one has no merit. For reasons set out above, the Tribunal correctly reconsidered the matter, in the light of the direction by the Court, to reconsider the matter according to law. As it was undertaking a hearing de novo, no issue estoppel arose to prevent the second Tribunal from finding different facts from the first Tribunal. The suggestion which permeates from this and other grounds of jurisdictional review, that the Court somehow made findings of fact which bound any subsequent Tribunal, is misconceived.
Grounds two and three are misconceived for the same reason. The Court made no factual findings when it remitted the matter back to the Tribunal for reconsideration. The Tribunal expressly considered whether or not s 194 of the Act had been complied with and found that this had occurred. This was precisely the enquiry that the Court directed the Tribunal to determine. It did so, and, for the reasons it set out, found that s 194 of the Act had been complied with and in these circumstances, the Tribunal was entitled to find that the applicant was statute barred from making any further application for a student visa.
Ground four is similarly misconceived. The Court agrees with the finding of the Tribunal that there is no express requirement in s 194 of the Act that the applicant be given a copy of the Form 1423 after he is made aware of the information contained therein. Whilst best practice may be that the applicant be provided with a copy of the Form 1423, there is nothing within the section that requires this. All that is required is that the person is “made aware” of the provisions of s 195 and section 196 of the Act and if a visa held by the person has been cancelled, under s 137J of the Act – the provisions of section 37K of the Act.
Ground five is similarly misconceived. It is clear that the Tribunal considered the applicant’s submission in relation to “rest Judicata issue estoppel” (sic) and rejected it. The Tribunal correctly found that it was open to it to re-determine the facts in accordance with the evidence before it. This is precisely what the Tribunal did.
Ground six is somewhat confused. It asserts, presumably, that the Tribunal somehow “declared or made a finding as to what powers the Federal Circuit Court has”. At no point did the Tribunal do that, rather, it made a correct observation that fact-finding was entirely within its jurisdiction and not the Courts. This observation correctly sets out the law, given that the Court had only undertaken jurisdictional review not merits review in its review of the first Tribunal’s decision. Further, the Tribunal, and in the Court’s view, correctly found, that s 194 of the Act had been complied with based on the new evidence before it. That included the applicant’s signature on the form and his request for an extension of time to lodge an application for a substantive visa. This material supported the finding made by the Tribunal that the applicant had been “made aware” of the contents of the Form 1423.
Ground seven is a bare assertion that the Tribunal’s decision was unreasonable or illogical. No particulars are provided and for this reason alone, the ground can be dismissed: see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. The Court is satisfied that the Tribunal’s findings were open to it on the evidence that was before it and for the reasons it gave. The findings are not tainted by any failure to afford procedural fairness, or reaching a finding without a logical or probative basis or legal unreasonableness: see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83].
None of the grounds of jurisdictional review are made out. As the applicant is unrepresented, the Court has perused the Tribunal’s Decision Record but is unable to find any unarticulated jurisdictional error.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 16 June 2021
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