Monaghan v Minister for Immigration
[2018] FCCA 375
•16 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MONAGHAN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 375 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – applicant admitting he was not in a relationship but seeking a skilled work visa – Tribunal finding that there was no alternative application to consider – whether the applicant was denied procedural fairness in relation to a non-disclosure certificate – jurisdictional error established – refusal of relief in the exercise of discretion – remittal to the Tribunal would be futile as only one outcome is possible. |
| Legislation: Migration Act 1958 (Cth), ss.65, 359A, 359AA, 360, 363, 375A, 376 |
| Cases cited: BEG15 v Minister for Immigration [2017] FCAFC 198 Kaur v Minister for Immigration (2016) 245 FCR 296 Minister for Immigration v Hayman [1999] FCA 217, (1999) 90 FCR 120 Minister for Immigration v Sharma [1999] FCA 31, (1999) 90 FCR 513 Minister for Immigration v Singh [2016] FCAFC 183; 244 FCR 305 Minister for Immigration v Singh & Anor [2017] HCATrans 79 Mudiyanselage v Minister for Immigration [2002] FCAFC 190 Shrestha v Minister for Immigration [2017] FCAFC 69 |
| Applicant: | RICHARD FRANCIS MONAGHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2439 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr C McMeniman |
| Solicitors for the Applicant: | Sydney Law Practice |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 11 January 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2439 of 2016
| RICHARD FRANCIS MONAGHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Mr Monaghan, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 August 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Monaghan a partner (temporary) visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Monaghan applied for the visa on 21 August 2012.[1] The delegate refused the visa on 24 July 2015.[2] Mr Monaghan applied to the Tribunal for review on 5 August 2015.[3] The Tribunal held a hearing on 11 August 2016.[4]
[1] Court Book (CB) 1-62
[2] CB 78-85
[3] CB 105-106
[4] CB 119-121
At the hearing Mr Monaghan stated that his relationship with his sponsor had ended in 2013 and he did not meet the criteria for the grant of the visa.[5] Accordingly, the Tribunal found that Mr Monaghan did not meet clause 820.221(1) of the Migration Regulations 1994 (Cth) (Regulations), which relevantly requires that he be the de facto partner of the sponsor at the time of the Tribunal’s decision,[6] so the Tribunal found that the visa had to be refused.[7]
[5] CB 127 [12]
[6] CB 128 [20]
[7] see s.65(1)(b) of the Migration Act 1958 (Migration Act)
The present proceedings
These proceedings began with a show cause application filed on 9 September 2016. Mr Monaghan now relies upon an amended application filed on 11 January 2017. Only Grounds 4-6 in the amended application are pressed:
4.The Administrative Appeals Tribunal (the Tribunal) failed to afford procedural fairness and/or failed to comply with s.360 of the Migration Act 1958 (Cth) (the Migration Act) and/or failed to comply with s.359A of the Migration Act in that the Tribunal failed to:
a. disclose to the Applicant prior to or at the hearing that two certificates had been issued by the First Respondent or his delegate under s.375A and/or s.376 of the Migration Act;
b. allow the Applicant an opportunity to comment on the certificates or the Tribunal's use of the documents/information the subject of the certificates.
Particulars
a. Letter to Sydney Law Practice from Australian Government Solicitor dated 1 December 2016.
b. MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081.
c. Further particulars (and, possibly, further grounds of review) will be advanced when the First Respondent provides a copy of the certificates and the documents/information the subject of the certificates.
5. The Tribunal erred in failing to treat the Applicant’s application for Partner (Temporary) (Class UK) Visa as an application for a skilled visa.
Particulars
d. At the hearing before the Tribunal the Applicant indicated that he had separated from his sponsor and had asked his migration agent whether he could make an application for a skilled visa.
e. The Applicant believed that arrangements had been made for him to make an application for a skilled visa.
f. It was not necessary for the Applicant to use a particular form or procedure to apply for a skilled visa, and in the circumstances the Tribunal should have treated his application as an application for a skilled visa: SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at [73]-[93]; SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462 at [62].
6. Further to ground 5 above, the Tribunal failed to afford the Applicant procedural fairness and/or failed to comply with s.360 of the Migration Act and/or unreasonably failed to exercise its power in s.363(1)(b) to grant an adjournment in order to allow the Applicant further time to provide evidence and make submissions in support of an application for a skilled visa.
In support of his application, Mr Monaghan relies upon his own affidavit made on 5 February 2018, to which is annexed a transcript of the hearing conducted by the Tribunal on 11 August 2016. Mr Monaghan also relies upon the affidavit of his solicitor, Dominic Michael Carbone, made on 5 February 2018, which annexes the same transcript as well as other documents.
I also have before me as evidence the court book filed on 12 December 2016.
Both Mr Monaghan and the Minister filed pre-hearing submissions and also made oral submissions through their counsel at the trial on 19 February 2018.
Consideration
Ground 4 of the amended application
Ground 4 of the amended application states that the Tribunal failed to afford procedural fairness and/or failed to comply with s.360 of the Migration Act and/or failed to comply with s.359A of the Migration Act in that the Tribunal failed to:
a)disclose to Mr Monaghan prior to or at the hearing that two certificates had been issued by the Minister or his delegate under s.375A and/or s.376 of the Migration Act; and
b)allow Mr Monaghan an opportunity to comment on the certificates or the Tribunal’s use of the documents/information the subject of the certificates.
In Minister for Immigration v Singh[8] the Full Federal Court (Kenny, Perram and Mortimer JJ) held at [46] to [54]:[9]
[8] [2016] FCAFC 183; (2016) 244 FCR 305
[9] special leave from which was refused: Minister for Immigration v Singh & Anor [2017] HCATrans 79
a)the existence of a s.375A certificate affects, in a material way, the Tribunal's procedural fairness obligations because the existence of the certificate has an immediate and adverse impact on an applicant’s entitlement to participate in the hearing;
b)therefore, the issue affects the applicant’s interests in the requisite sense, and the Tribunal can (on this hypothesis) act upon a submission going to invalidity;
c)as such, if the Tribunal receives a s.375A certificate, it must disclose it to the applicant to allow a submission to be made that the certificate is invalid;
d)even if the Tribunal has no jurisdiction to determine the validity of the certificate, the Tribunal must disclose it to the applicant because that is the only way for the applicant to seek judicial review of the certificate;
e)therefore, the applicant has a sufficient interest to give rise to an obligation to afford him procedural fairness upon the issue of the certificate, requiring the Tribunal to disclose to him the certificate which had been issued; and
f)although in some circumstances the disclosure of the certificate might undermine the confidentiality which s.375A was designed to protect:
i)this concern does not arise where it is apparent from the face of the certificate that its contents do not disclose the information in question; and
ii)even if the circumstances did warrant non-disclosure of the certificate itself, this would not mean that the existence of the certificate would not need to be disclosed to the applicant.
There are two s.375A certificates in the court book:
a)the first s.375A certificate[10] dated 22 September 2015 (First Certificate) states:
I certify that, in accordance with s.375A of the Migration Act 1958, the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in folio/s (insert folio number/s) of file number (insert file number) would be contrary to the public interest because:
[10] at CB 111
(a) folio 28-32 (Departmental information)
As s.375A applies to the documents/information identified above, the MRT must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the MRT as constituted for the purposes of this particular review, pursuant to s.375A(2)(b) of the Migration Act 1958; and
b)the second s.375A certificate[11] dated 7 January 2016 (Second Certificate) states:
I certify that, in accordance with s.375A of the Migration Act 1958, the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in folio/s (sent via email) of file number (CLF2012/173687) would be contrary to the public interest because:
(a)Information [redaction] should not be disclosed or by extension, any information [redaction]
As s.375A applies to the documents/information identified above, the MRT must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the MRT as constituted for the purposes of this particular review, pursuant to s 375A(2)(b) of the Migration Act 1958.
[11] at CB 112
The word “redaction” in the above reproduction denotes part of the Second Certificate that is unable to be read because it has been marked over in black (i.e. words appear to have been redacted).
As set out in the court book, the only communication that Mr Monaghan had with the Tribunal prior to the hearing is recorded in:
a)an email attaching a letter from the Tribunal to Mr Monaghan’s migration agent dated 7 August 2015;[12]
b)a file note of the Tribunal regarding a call to Mr Monaghan’s migration agent on 8 July 2016,[13] which states:
Phoned Representative to advise a hearing has been scheduled for 11/08/2016 at 8:30pm and requested supporting evidence to be provided by 22 July 2016. I advised Mr Deshwal the above details will be provided in writing;
[12] CB 107-110
[13] CB 113
c)an email attaching a letter from the Tribunal to Mr Monaghan’s migration agent dated 8 July 2016[14] requesting additional material and inviting Mr Monaghan to attend the hearing at the Tribunal; and
d)a file note of the Tribunal regarding a call from Mr Monaghan’s migration agent on 12 July 2016,[15] which states:
[14] CB 114-117
[15] CB 118
Representative phoned to advise the required documents will be provided by 05/08/2016
None of the above communications:
a)informed Mr Monaghan of the existence of the First Certificate or the Second Certificate; or
b)disclosed to Mr Monaghan the First Certificate or the Second Certificate.
Further, Mr Monaghan did not receive any notification of the existence of the First Certificate or the Second Certificate at the hearing before the Tribunal, nor did he receive a copy of them at the hearing.[16] The only reference that is made by the Tribunal to the material it had before it at the hearing was:[17]
[16] see transcript of hearing (T)
[17] at T, page 2, lines 28-33
I’ve already had access to the Department’s files and the documents.
The purpose of the hearing today is to give you an opportunity to provide further information to me to help me make my decision. At the end of the day I’ll need to consider all the information before I make a decision.
Mr Monaghan contends that, applying Singh:
a)the Tribunal was required to disclose the existence of the First Certificate and the Second Certificate to Mr Monaghan;
b)the Tribunal was also required to disclose the First Certificate to Mr Monaghan because, on its face, it discloses nothing in respect of the type of confidential material that s.375A was designed to protect; and
c)similarly, the Tribunal was required to disclose the Second Certificate to Mr Monaghan (even if the Tribunal was of the view that it ought to remain in its redacted form) because, on its face, it discloses nothing in respect of the type of confidential material that s.375A was designed to protect.
By not doing so, the Tribunal is said to have failed to afford Mr Monaghan procedural fairness and/or failed to comply with s.360 of the Migration Act and/or failed to comply with s.359A of the Migration Act.
Grounds 5 and 6 of amended application
Grounds 5 and 6 of the amended application state that:
a)the Tribunal erred in failing to treat Mr Monaghan’s application for partner (Temporary) (Class UK) visa as an application for a skilled visa; and
b)the Tribunal failed to afford Mr Monaghan procedural fairness and/or failed to comply with s.360 of the Migration Act and/or unreasonably failed to exercise its power in s.363(1)(b) to grant an adjournment in order to allow Mr Monaghan further time to provide evidence and make submissions in support of an application for a skilled visa.
Mr Monaghan contends that, as set out in SZOVB v Minister for Immigration:[18]
a)an applicant does not need to complete the prescribed form in order to have a different claim considered by the Tribunal;
b)even where an applicant has completed a prescribed form, the applicant may change the bases of their application before the Tribunal; and
c)where an applicant raises matters that gives rise to a different claim to that being considered by the Tribunal, it is bound to consider all of the applicant’s claims.
[18] [2011] FCA 1462 per Katzmann J at [62]-[63]
At the hearing before the Tribunal, Mr Monaghan gave sworn evidence that:[19]
[19] T, pages 4-5
a)in 2013, Mr Monaghan went to his previous migration agent and told the agent that:
i)his relationship with his sponsor was “a little bit unsteady”;
ii)he was “looking to find a different way through the system”; and
iii)he had skills that could assist in getting a visa, including that he was an electrician, plumber and gas-fitter back in Ireland.
b)Mr Monaghan’s previous migration agent advised him that “it wouldn’t be the best option because I’d already submitted an application and it would be easier just to run through with that one, if I could”;
c)Mr Monaghan responded to his previous migration agent by saying “look, we haven’t broken up as yet but, like, things aren’t great. … So I’d gone to the agent. I told them that I wanted to get skilled migration”;
d)the previous migration agent then:
advised me that the electrician was the most favourable one [in] my favour, and that’s the one we’d go with. So I filled out the paperwork. I’d paid for the application. I’d paid for his fees. And when I did receive the letter that I had 28 days’ notice to leave, I was shocked because I did get a bit of – a lot of anxiety and I was advised to get a second opinion. I received the email 14 days into the 28 days to leave, and after receiving a phone call, the immigration agent said, ‘If you just bring me $6000 and I’ll fix everything’
e)the 28 days notice to leave was in respect of being refused a partner visa, to which Mr Monaghan told the Tribunal:
And I was shocked because I had already filled out the paperwork for the skilled migration and I’d already paid the fees, and I’d already – now, I was advised I was going to lose the money for the partner visa, and it was okay, fair enough, it’s my decision. I’m making the change and I have to pay again. I understand that. But I paid you to do that application. You’ve done it. It should have been changed. So that’s why, look, I was in shock with the whole lot. Why am I getting refused for a partner visa when it should have never been a partner visa. I’d already addressed the issue.
It is clear from the above evidence that Mr Monaghan believed that arrangements had been made for him by the migration agent to make an application for a skilled visa, including the filing and payment for such an application.
Nonetheless, the Tribunal’s response to that evidence was that:
a)“I’m only looking at the application that’s before me”;[20]
b)“I certainly can’t grant you a visa for one that’s not an application before me”;[21]
c)“I can’t change the fact that all I’m looking at is your partner visa application”;[22]
d)“If you’re telling me that you have not been in a relationship with your sponsor since 2013, the only thing I can do is to affirm that decision. If you’ve got – if you intend to bring an application, I don’t think you’d be able to do on shore anyway. Unfortunately, that’s just the situation you’ve been in.”[23]
[20] T, page 5, lines 4-5
[21] T, page 5, lines 13-14
[22] T, page 5, lines 26-27
[23] T, page 5, lines 31-35
Mr Monaghan contends that it was not necessary for him to use a particular form or procedure to apply for a skilled visa and to have it considered by the Tribunal. In the circumstances, the Tribunal is said to have been required to treat his application as an application for a skilled visa. A review of the transcript and the decision is said to disclose that the Tribunal failed to treat Mr Monaghan’s application as an application for a skilled migrant visa.
As such, the Tribunal is said to have failed to afford Mr Monaghan procedural fairness and/or failed to comply with s.360 of the Migration Act and/or failed to comply with s.359A of the Migration Act.
The Minister resists the application on the simple basis that, whether or not the decision of the Tribunal is affected by any jurisdictional error, relief should be refused in the exercise of the Court’s discretion because it would be futile to remit the matter to the Tribunal.
Resolution
I proceed on the basis that the First Certificate is invalid, as the only apparent justification for it is the reference to Departmental documents. I am not able to reach any conclusion on the validity of the Second Certificate because the reason for its issue has been redacted. Counsel for the Minister informed me that if the documents covered by that certificate were sought to be produced to the Court (and they have not), the Minister would claim public interest immunity in respect of them. I have not been provided with any document purportedly covered by either certificate.
I also proceed on the basis that the Tribunal did not disclose the existence of either of the s.375A certificates. In consequence, Mr Monaghan claims a want of procedural fairness based upon ss.359A or s.359AA and s.360 of the Migration Act. While the Minister makes no concession, I proceed on the basis that the Tribunal did thereby deny Mr Monaghan procedural fairness, consistently with the decision of the Full Federal Court in Singh.
Notwithstanding that error, I accept the Minister’s submission that relief should nevertheless be withheld in the exercise of the Court’s discretion.[24] In doing so I have taken into account the remaining grounds of review discussed below at [30]-[32].
[24] see BEG15 v Minister for Immigration [2017] FCAFC 198 at [32]-[33]
Mr Monaghan frankly disclosed to the Tribunal at the Tribunal hearing that his relationship with his sponsor had ended in 2013. The Tribunal, equally frankly, explained to Mr Monaghan that, in the circumstances, the Tribunal was required to refuse the visa. It follows, in my opinion, that any disclosure of the certificates could not have led the Tribunal to make a different decision, because Mr Monaghan admitted that he did not satisfy the visa criteria in clause 820.221(1) of the Regulations and the Tribunal in consequence could only decide to refuse the visa. In the circumstances, it is pellucidly clear that the Tribunal’s decision was inevitable and could not have been different on the material before it.[25] I am aware that the High Court has granted special leave to the appellant in Shrestha[26] but, in my opinion, it is hard to imagine a stronger case for the withholding of relief in the exercise of discretion than this one.
[25] see Kaur v Minister for Immigration (2016) 245 FCR 296 per Perry J at [45]-[47] and Shrestha v Minister for Immigration [2017] FCAFC 69 at [12]-[17] per Bromberg J, [41]-[48] per Bromwich J and [121]-[126] per Charlesworth J
[26] [2017] HCATrans 179
The second ground (Ground 5) claims the Tribunal should have considered whether to grant Mr Monaghan a skilled visa, but it is well established that the Tribunal has no power to grant a visa different to that considered by the delegate, as its role is to review the delegate’s decision.[27] Mr Monaghan relies on SZOVB[28] but those passages concerned whether a claim to persecution was raised by family unit members before the Refugee Review Tribunal and provides no support for the suggestion that the Tribunal has power to grant a completely different visa to that considered by the delegate. This ground fails.
[27] see Minister for Immigration v Hayman [1999] FCA 217, (1999) 90 FCR 120 (Finkelstein J) at [22], [28]; Minister for Immigration v Sharma [1999] FCA 31, (1999) 90 FCR 513 (Weinberg J) at [63], [75]; Mudiyanselage v Minister for Immigration [2002] FCAFC 190 per Black CJ at [4], [8]
[28] per Katzmann J at [62]-[63]
The third ground (Ground 6) claims the Tribunal erred in failing to provide further time for Mr Monaghan to make submissions in support of being granted a skilled visa. Since the Tribunal had no power to grant such a visa, this ground necessarily fails.
The position might have been different if Mr Monaghan had put to the delegate the proposition that he put to the Tribunal. However, the delegate’s decision is entirely silent on the issue of any alternative visa having been sought and I conclude that the delegate was unaware of the proposition put by Mr Monaghan to the Tribunal because no such proposition was put prior to the Tribunal’s review. In the absence of any decision on the alternative visa allegedly sought by Mr Monaghan, there was nothing for the Tribunal to review.
Conclusion
While I have been prepared to accept that Mr Monaghan is able to demonstrate jurisdictional error in the decision of the Tribunal, I have decided to withhold relief in the exercise of the Court’s discretion, because it would be futile to remit the matter to the Tribunal for redetermination.
I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 16 March 2018
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