RamasahayaM v Minister for Immigration

[2014] FCCA 442

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMASAHAYAM v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 442

Catchwords:
MIGRATION – Judicial review – unsatisfactory attendance at course – whether limited to material before the Tribunal – whether ‘exceptional circumstances’ are relevant – alleged denial of procedural fairness – effect of delay between application and Tribunal hearing – no error of law – findings of fact not amenable to review – credibility is a finding of fact – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.137L(1)(b), 357A, 360, 477

Migration Regulations 1994, sch.2

Abebe v Commonwealth (1999) 197 CLR 510
Attorney –General for the State of New South Wales v Quin (1990) 170 CLR 1
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Kumar v Minister for Immigration and Border Protection [2013] FCCA 1860
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZXHY v Minister for Immigration and Citizenship[2007] FCA 622
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAIS v Minister for Immigration and Multicultural Affairs (2005) 228 CLR 470
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64
SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant: Prashanth Reddy RamasahayaM

First Respondent: Minister for Immigration & Border protection

Second Respondent: Migration Review Tribunal

File Number: MLG 1358 of 2013

Judgment of: Judge F. Turner

Hearing date: 3 February 2014

Date of Last Submission: 3 February 2014

Delivered at: Melbourne

Delivered on: 3 February 2014

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Ms Latif

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application for Judicial Review filed 26 August 2013 is dismissed.

2. The applicant pay the first respondents costs of $6646.00.

3. All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne

MLG 1358 of 2013

Prashanth Reddy RamasahayaM

Applicant

And

Minister for Immigration & border protection

First Respondent

Migration Review Tribunal

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 31 July 2013. That decision affirmed the decision of the delegate to the Minister not to grant the applicant a Student (Temporary) (Class TU) visa.

2. On 16 October 2013 Registrar Caporale ordered the applicant to file and serve written submissions 14 days before this hearing. That has not been done.

3. The Court today invited the applicant to put oral submissions in support of his application. The applicant commenced by tendering a record of course results (Exhibit ‘A1’). That schedule relates to a record of results and not attendance at the course. The applicant says that the document shows that he had satisfactory attendance viewed over two periods of the course. That has not been established. 

4. Exhibit ‘A1’ relates solely to results obtained in one part of the course. The applicant also sought to tender further documents and after the matter was stood down for some period, Counsel for the Minister identified those documents [many of which are already in the Court Book (”CB”)] as follows:

   ·Confirmation of enrolment of the applicant for 2011 – 2012 (CB p.18);

   ·Medical records which were put before the delegate (CB p.52,  CB p.53 is similar, as are pp.54 and 55);

   ·Confirmation of the applicant’s enrolment for 2012 – 2013 (CB p.80); and

   ·Certificates of enrolment and academic progress (CB pp.95 and 96).

5. The applicant then sought to tender three further documents which he states were not put before the Tribunal. The Court advised the applicant that pursuant to decisions on the law on this issue, the applicant is limited to material already put before the Tribunal.

6. The court referred to decisions in SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 and MZXHY v Minister for Immigration and Citizenship[2007] FCA 622 (post).

7. The Court is therefore to decide this matter on the material in the CB, being the material that was before the Tribunal. The Court advised the applicant that it had today obtained a copy of what is referred to as a Cover Letter which is dated 26 August 2013 and is said to have covered the application for judicial review (copy attached).

8. The grounds in the application for judicial review are as follows:

   (1)S.477, Judicial review can be lodged after 35 days after tribunal review has been finalise (sic “finalised”)

   (2)I am not happy with tribunal decision, applying for judicial review for legitimate decision

   (3)I do have exeptional (sic “exceptional”) circumstances beyond the application lodgement (sic “lodged”) previously

9. The Tribunal’s decision in this matter is dated 31 July 2013. An application for judicial review had to be lodged within 35 days of that date. Section 477 of the Migration Act 1958 (the “Act”) provides:

   Time limits on applications to the Federal Circuit Court

   (1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)In this section:

   “date of the migration decision” means:

   (a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or

   (b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or

   (c)in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the oral decision; or

   (d)in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

10. The application here was lodged on 26 August 2013 and was therefore made within time. The Court finds that ground one of the application raises no ground for judicial review and is dismissed.

11. Ground two is that the applicant is not happy with the Tribunal decision, “applying for judicial review for legitimate reason”.

12. That statement does not raise any ground for judicial review and is dismissed. Not being happy with the decision is no ground for prerogative relief. Ground two is dismissed.

13. Ground three is that the applicant has ‘exeptional circumstances beyond the application lodgement previously’. As discussed during this hearing, the occurrence of exceptional circumstances is not relevant where the Court is considering whether or not the applicant has had satisfactory attendance at the course the applicant has been enrolled in.

14. The content of Condition 8202 in Schedule 2 of the Migration Regulations 1994 (the “Regulations”) that applied to the applicant’s last substantive visa is set out at CB p.113 as follows.

    (1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student-- the holder is enrolled in a full-time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000 ; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000 ; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa--the holder is enrolled in a full-time course of study or training.

15. Here Cambridge International College certified that the applicant is “not achieving satisfactory course attendance” (CB p.82). The applicant therefore did not meet Condition 8202.

16. It is not a question of whether an applicant has achieved satisfactory attendance or part-attendance; it is a question of whether an educational provider has certified that the applicant is not achieving satisfactory attendance. The applicant complained that his non-attendance is due to exceptional circumstances. That is not a relevant test. That test is relevant under s.137L(1)(b) of the Act. Condition 8202 was not met by the applicant. Ground 3 is dismissed.

17. The first respondent has looked at whether the Cover Letter with the application for judicial review raises possible grounds for judicial review, and identified the following issues.

18. The first issue is whether there was a possible denial of procedural fairness. That is raised at the 14^th bullet point of that Cover Letter. The first respondent submits that the Tribunal’s obligations of procedural fairness are codified in s.357A of the Act and exclude the common law hearing rule.

19. For that to succeed in a challenge to the Tribunal’s process the applicant must show a breach of a requirement found within Division 5 of Part 5 of the Act. That is the division in which s.357A appears. The Court accepts that submission.

20. The next issue raised in the letter is a delay in the hearing by the Tribunal. That is at the ninth bullet point of the Cover Letter. The applicant complains about the Tribunal convening a hearing more than a year after the applicant’s file was opened.

21. The applicant applied to the Tribunal on 10 January 2012 (CB p.67), and the Tribunal conducted its hearing on 29 July 2013 (CB p.101). The Court accepts a submission from the first respondent that:

    “The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare: NAIS v Minister for Immigration and Multicultural Affairs (2005) 228 CLR 470 at [5] per Gleeson CJ. Where an applicant can show delay has led to the denial of an opportunity to present his or her case, or to have his or her case considered, the applicant may be able to show breach of s 360: NAIS at [10] and [11] per Gleeson CJ and [172] per Callinan and Heydon JJ.”

22. Section 360 relates to the Tribunal having an obligation to invite the applicant to appear. Here, the applicant was invited to appear and submissions were made on his behalf. In the present case, the applicant has neither articulated nor demonstrated the basis upon which any delay between the application and the hearing led to the denial of an opportunity to present his case or have it considered. The applicant’s migration agent was invited to make submissions on behalf of the applicant. The fact the applicant was invited to appear and did appear on 29 July 2013 is recorded at [18] on CB p.114.

23. The Court notes that the Tribunal hearing was conducted with the assistance of an interpreter in the Telugu English language (CB p.114 [17]). This is not a case of an inordinate delay between a hearing and decision which may result in prerogative relief.

24. The next issue raised in the Cover Letter is a complaint about the Tribunal conducting what is referred to as a “joint hearing” or a “group hearing”. The applicant complains, in the Cover Letter, about the Tribunal conducting a group hearing. The Court accepts the submission by the first respondent that:

    “Significantly, the applicant has not identified any specific issue arising from the “group hearing” that impacted on his ability to give evidence and present argument, or his opportunity to have his case considered. The use of a joint hearing procedure was considered by Judge Whelan in Kumar v Minister for Immigration and Border Protection [2013] FCCA 1860 at [18] to [36]. Her Honour did not discern any error arising from the use of a” joint hearing process”: at [34]. In the absence of particulars as to how the joint hearing process impacted on compliance with s 360 of the Act (if at all), the first respondent is unable to respond in greater detail.”

25. The Court is unable to find an error of law. The applicant was entitled to have his application heard and decided. Those things occurred. The Tribunal considered the specifics of the applicant’s case. An error of law has not been established in the Tribunal holding a joint or group hearing.

26. The next issue raised in the twelfth bullet point is the duration and subject matter of the hearing. The Cover Letter complains about the duration of the Tribunal hearing and the narrowness of the issues involved or covered. The Court does not find that the Tribunal failed to deal with all claims put by the applicant, or in any way breached Division 5 of Part 5 of the Act.

27. The next issue (the seventeenth bullet point) is the alleged negligence of the applicant’s migration agent. The Cover Letter complains about the lack of service by his migration agent. The Court accepts the following submissions by the first respondent:

    “As a matter of law, where an applicant can demonstrate the existence of a fraud by a third party which had the effect of stultifying the operation of the natural justice provisions contained in the Act, he or she may be entitled to prerogative relief: SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35. However, mere negligence on the part of a migration agent is not sufficient to attract the operation of this principle: SZFDE at [53] per the Court constituted by Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Accordingly, even if the applicant can prove his assertions and was, in fact the victim of negligent or deficient representation…, that is not conduct of a kind that attracts the Court’s jurisdiction to grant relief.”

28. There is no evidence that the Tribunal failed to consider material before it. The applicant cannot complain that material was put and not considered by the Tribunal. Further, the applicant cannot put new material before the Court. Exhibit ‘A1’, tendered today appears to be new material. In any event, it has been considered and does not relate to the issue of satisfactory attendance of the course.

29. An applicant for judicial review is confined to material put before the Tribunal as referred to in SZJMG (supra) per McKerracher J at [27]:

    “An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J stated at [8]:

    It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework.”

30. The matters raised by the applicant in the application for judicial review and in the Cover Letter raise no errors of law. To the extent that the Cover Letter invites a review of the merits, findings of facts are not amenable to review.

31. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:

    “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

32. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347:

    “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”

33. The Court refers to the following decisions:

    ·Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 per McHugh J at [67]:

    “If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

    The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings of fact: see W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 and par excellence Durairajasingham (supra) at [67].

    ·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A (supra) at [64]-[69] per Tamberlin and R D Nicholson JJ.

    ·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.

    ·Abebe v Commonwealth (1999) 197 CLR 510 at [137]:

    “… there is no error of law… in making a wrong finding of fact…”.

1. As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

2. A wrong finding of fact is not a jurisdictional error: see Attorney –General for the State of New South Wales v Quin (1990) 170 CLR 1 at pp.35 to 36 per Brennan J.

3. The Court refers to the following passages in Quin (supra) at pp.35 to 36:

   The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

   The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modem development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

   There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v. Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”

4. The Court does not find the decision to be so unreasonable that no repository of the power could have taken it.

5. The applicant has not established an error of law by the Tribunal. The application for judicial review is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date:  7 March 2014