RATHINAM v Minister for Immigration
[2018] FCCA 1231
•4 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RATHINAM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1231 |
| Catchwords: SHOW CAUSE – No arguable case – first and second grounds devoid of merit – third ground not made out – fourth ground devoid of merit – application summarily dismissed. |
| Legislation: Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 Siddique v Minister for Immigration and Border Protection [2014] FCA 1352Spencer v Commonwealth of Australia (2010) 241 CLR 118 |
| First Applicant: | PRABU RATHINAM |
| Second Applicant: | SANGEETHA RATHINAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 783 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 4 May 2018 |
| Date of Last Submission: | 4 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 4 May 2018 |
REPRESENTATION
| First applicant: | In person |
| Solicitors for the applicant: | None |
| Second applicant: | In person |
| Solicitors for the second applicant: | None |
| Counsel for the first respondent: |
| Solicitors for the first respondent: | Mills Oakley Lawyers |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Mills Oakley Lawyers |
ORDERS
This proceeding is dismissed.
The applicants pay the first respondent’s costs fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 783 of 2017
| PRABU RATHINAM |
First Applicant
And
| SANGEETHA RATHINAM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
By order of a registrar of this court made 25 October 2017 this case was ordered to go forward under the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules.
By consent orders made on 7 December 2017 the applicants were required to file and serve written submissions and any amended application by 21 March 2018. The applicant filed amended grounds for judicial review on 26 March 2018 and although they were later than the date ordered, no point was taken by the minister. The applicant filed written submissions by 20 March 2018 within time.
The show cause procedure
Under the procedure set out in r.44.12 of the Federal Circuit Court Rules, on a show cause hearing the court possesses an array of powers including the power to summarily dismiss the proceeding if the court is not persuaded that the applicants have raised an arguable case for the relief claimed. In this case the applicants have sought judicial review of the decision of the Administrative Appeals Tribunal made on 20 March 2017. In that decision the tribunal decided to affirm the delegate’s decision not to grant the first applicant’s student temporary (class TU) visa. Accordingly, unless persuaded that the applicants have an arguable basis for the issue of constitutional writs by reason of jurisdictional error, it is open to me to dismiss this proceeding. However, as was held in Spencer v Commonwealth of Australia,[1] as well as in AMF15 v Minister for Immigration and Border Protection,[2] a decision to summarily dismiss a case is not to be lightly made.
[1] (2010) 241 CLR 118
[2] (2016) 241 FCR 30.
Further, in Siddique v Minister for Immigration and Border Protection[3] and also in SZTTW v The Minister for Immigration and Border Protection,[4] it was held that the power in r.44.12 of the Federal Circuit Court Rules has two components to it. The first involves the lack of satisfaction that an applicant has raised an arguable case for the relief claimed. The second component involves a residual discretion whether or not to dismiss the application. That latter component calls for an examination to be made of the merits of the case. As Gilmour J held in Siddique v Minister for Immigration and Border Protection,[5] the answer to the first question will often lead to the second question, a concept consistent with the observations of Beach J in SZTTW v The Minister for Immigration and Border Protection.[6]
[3] [2014] FCA 1352
[4] [2014] FCA 837
[5] [2014] FCA 1352
[6] [2014] FCA 837
Short factual narration
With that introduction it is necessary to shortly go to the backdrop against which this application was set. The first applicant at all relevant times was a citizen of India. He applied for a student visa on 6 April 2016. The second applicant is the wife of the first applicant. She was listed as a dependent on the first applicant’s visa application.
On 26 May 2016 the minister’s delegate refused to grant the applicants the visas they sought. The delegate was not satisfied that the first applicant met the requirements of cl.572.211(3)(d) of the Migration Regulations. As for the second applicant, the delegate found that she was not a member of a family unit of a person who was the holder of a student visa and that she did not meet the requirements of cl.572.332 of the Migration Regulations.
In essence the delegate found that the first applicant did not hold a substantive visa at the time of the visa application, that he last held a substantive visa on 29 March 2016 and that he had previously been granted a visa after becoming an unlawful non-citizen on the basis of satisfying cl.572.211(3) and criterion 3005.
Being dissatisfied with the decision of the delegate the applicants applied to the tribunal for a merits review. The tribunal invited the applicants to participate in a telephone hearing at 1:30pm on 16 March 2017. The applicants completed the response to hearing invitation by indicating each would be taking part. In addition the applicants indicated that the services of a Tamil-speaking interpreter was required. The date of that document was 11 March 2017.
According to the tribunal records the first applicant telephoned the tribunal soon after midday on 15 March 2017 to say he was unwell and that he would not be attending the hearing to be held the following day. The tribunal officer told the first applicant the hearing would be by telephone. The first applicant again said he was unwell and that he was to attend a medical appointment on 16 March 2017. The tribunal officer told the first applicant that he needed to submit a postponement request in writing together with a medical certificate and that the decision to postpone was that of the tribunal member. The applicants did not produce any medical information nor did they provide a written request to postpone the hearing.
According to other tribunal records on 16 March 2017 at 9:37am the first applicant telephoned the tribunal to say he and his representative would be attending the hearing. He requested a NAATI 3 Tamil Indian interpreter. The tribunal officer told the applicant that a Tamil Nadu NAATI 2 interpreter had been booked and that by reason of his late request, a NAATI 3 interpreter would not be cancelled on account of the lateness of the request. The tribunal officer told the first applicant that if there were any difficulties with the interpreter, the applicants should raise the matter with the tribunal member.
On 16 March 2017 the hearing proceeded by telephone. It commenced at 2 35pm and concluded at 5:17pm, almost three hours in duration. The following day the first applicant telephoned the tribunal to say he was unhappy with the telephone hearing and that he wished to have a further hearing in person. A tribunal officer informed the applicant that he needed to put that request in writing for submission to a tribunal member. No such written request was provided. The tribunal declined to provide a further hearing. On 20 March 2017 the tribunal decided to affirm the delegate’s decision not to grant the first applicant a student temporary (class TU) visa.
Relevantly synthetised the tribunal’s reasons for its decisions may be shortly stated. The tribunal identified, correctly in my view, that the question for its determination was whether the first applicant met the requirements of cl.572.211(3)(b)-(d) of Schedule 2 to the Migration Regulations, in paragraph 6 of its reasons.
In paragraph 9 of its reasons the tribunal summarised the first applicant’s evidence in the following terms –
a)his last substantive student visa ceased on 29 March 2016;
b)when the first applicant applied for the visa in issue in this case on 6 April 2016 he had no visa of any kind;
c)in 2014 the first applicant missed the expiry of his student visa and then applied for a new visa;
d)he gave as his reasons for missing the expiry of his visa that he was investigating the RSMS visa as an alternative after having been told that he might not be granted any further student visas; and
e)he was ignorant of the fact that the schedule three criterion 3005 had the effect that he could only meet student visa criteria once when applying without holding a substantive visa.
In paragraph 10 of its reasons the tribunal found that the applicant applied for a student visa in 2014 when he did not hold a substantive visa and that the visa that was granted to him on the basis that he satisfied schedule three criterion 3005. When he applied on 6 April 2016 the tribunal said in paragraph 11 of its reasons that –
10.… The applicant applied for a student visa in 2014 when he did not hold such a substantive visa and that visa was granted to him on the basis that he satisfied Schedule 3 criterion 3005 for the purpose of cl. 572.211(3)…
11.… not being the holder of a substantive visa on the day of the visa application[7]
[7] Court book, filed 4 September 2017, p.74.
In paragraph 13 of its reasons the tribunal stated that –
As the applicant did not hold a substantive visa on the day the visa application was made, the applicant does not meet the requirements of any of the subparagraphs of cl. 572.211.[8]
[8] Ibid, p.75.
In paragraph 16 of its reasons the tribunal addressed the fact that the first applicant informed the tribunal he had no current confirmation of enrolment document in respect of any course and that therefore he did not meet cl.572.222. The tribunal found that the second applicant failed to meet the relevant secondary criteria.
In paragraph 26 of its reasons the tribunal stated that it had no discretion to employ extenuating circumstances to find that criterion 3005 had been satisfied. The tribunal declined the first applicant’s request to hold a further hearing
In this court
Being dissatisfied with the decision of the tribunal the applicant applied to this court for judicial review. He needed to show that jurisdictional error had been exhibited by the tribunal. The onus was on him to show that. The applicants initially filed an application in this court that was defective for a number of reasons. It is not now necessary to address those deficiencies because the applicants filed an amended application. That document was not filed in accordance with the time limited by paragraph 1 of the consent orders that I made on 7 December 2017. Neither party took issue with the late filing of the amended application.
The amended grounds for judicial review (as the applicants described the document) contained several conventional prayers for relief, including an application for orders quashing the tribunal’s decision. It also included a claim to relief that this court has no power to grant especially the application in paragraph two of the final orders sought being an order requiring the delegate in this case to provide the first applicant’s information under freedom of information legislation.
The applicants relied on four amended grounds of application. It is necessary to set them out in terms and then to address a consideration of each of them.
Ground 1
This ground was in the following terms[9] –
[9] Applicant’s amended application, filed 26 May 2018, p.2.
1.Legal Error
The Tribunal (AAT) had no direct evidence that the satisfaction of criterion 3005 was the reason that the applicant had been granted the visa in 2014 and it is more likely that the decision record relating to the grant of the visa in 2014 may have been on a basis other than the satisfaction of criterion 3005. Hence, there is a legal error made by AAT as there is no mention consideration of criterion 3005 in DIBP decision record in 2014.
(errors in original).
That ground was more in the nature of a submission than a statement of fact or law on which the application proceeded but be that as it may the ground was misconceived for several reasons.
First, the applicants invited me to descend into the delegate’s decision. That is not the function of judicial review. In this court the decision of the tribunal, not of the delegate, was of critical importance. The Federal Court of Australia’s decision in Zubair v Minister for Immigration and Citizenship[10] put that beyond argument.
[10] [2013] FCA 422
Second, under this ground the applicants seemed to place emphasis on a matter unrelated to criterion 3005. That criterion was pivotal to the first applicant’s visa application in this case, a matter mentioned by the tribunal several times in its reasons, especially in its reasons at paragraphs 6, 8, 8(f), 9(c), 12 and 26. In his written submissions the first applicant focused on criterion 3005. He described criterion 3005 as the critical question.
On page six of a document entitled “Final Submissions for Judicial Review” he contended that his student visa was valid between 18 April 2013 and 13 June 2014. He also asserted that a valid visa was operative between 7 August 2014 and 29 March 2016. That much seemed to be common between the parties but it did no more than highlight the fact that on the date the first applicant applied for the visa in this case he did not hold a valid substantive visa. He applied for that eight days later on 6 March 2016.
It seemed to me to be a red herring in this case for the first applicant to argue that there was no direct evidence about compliance with criterion 3005 as being the reason for the grant of a visa in 2014. Equally it seemed to me to be an irrelevant distraction for the first applicant to have argued that the 2014 visa had been granted for reasons unconnected criterion 3005.
The real issue for the applicants was the first applicant’s compliance with cl.572.211 of the Migration Regulations when he applied for the visa. Part of the matters he needed to satisfy related to criterion 3005. The operative effect of criterion 3005 was explained by the tribunal in paragraphs 8(e), 8(f) and 10 of its reasons. Relevantly paraphrased, in 2014 at a time when the first applicant did not hold a substantive visa, he was granted a substantive visa on the basis that he satisfied criterion 3005 as well as the other elements of cl.572.211.
Compliance with criterion 3005 was a one-off event. In other words, once a substantive visa had been granted based on among other things compliance with criterion 3005, for any later substantive visa application the grant of it had to be for reasons unconnected with criterion 3005. Put differently again cl.572.211(3) permits cl.572.211 to be met by the applicant meeting criterion 3005. That was done in 2014 because in 2014 the first applicant applied for the first time for his substantive visa.
For applications for any substantive visa thereafter he needed to meet the mandatory criteria of cl.572.211 but he had to do so in reliance upon grounds unconnected to criterion 3005. The tribunal found that the first applicant did not meet cl.572.211 as a whole. That finding by the tribunal was correct. I do not agree that the tribunal fell into jurisdictional error in relation to its conclusion about the first applicant’s satisfaction of criterion 3005. Specifically, I do not agree with the following submission by the first applicant taken from page 6 of his written submissions –
Hence there is a strong argument that the Tribunal fell into jurisdictional error in inferring, from logically probative evidence, that criterion 3005 was met in 2014 and could not be met in 2016.[11]
[11] Applicant’s outline of submissions, filed 11 April 2018, p.6.
Here, criterion 3005 was met in 2014 and therefore could not be met again in 2016. The legal position was the opposite to the way the first applicant submitted. In my view, the applicant’s ground 1 was devoid of merit.
Ground 2
The casting of ground 2 was discursive and difficult to follow. In it the applicants seemed to contend that they were denied procedural fairness in connection with the 2014 visa. To the extent that ground 2 put in issue the activity of the delegate, that was not a matter for me on this judicial review application as was held in Zubair v Minister for Immigration and Citizenship[12] mentioned above. To the extent that ground 2 put in issue a freedom of information request then this court has no power to deal with the matter. In short, ground 2 was devoid of merit.
[12] [2013] FCA 422
Ground 3
Under this ground the first applicant asserted that the tribunal denied him procedural fairness for four reasons. They were –
a)only offering a telephone interview rather than a face-to-face interview;
b)not accepting a rescheduling request;
c)not providing a Tamil interpreter; and
d)conducting the interview with a lot of background noise, discussing matters in some other language, conducting the interview in broken sessions, not giving enough time to respond and rushing the interview.
It must be remembered that at all stages of this judicial review application the applicants have borne the onus of establishing that they were entitled to the relief they sought in this case. To the extent that the applicants complained about the way the tribunal conducted the hearing it fell to the applicants to show how and in what way the hearing was defective. Ordinarily that proof is given by a hard copy transcript of the proceeding before the tribunal or by a sound file. Neither was put in evidence in this case.
Thus, although out of sequence, I reject the complaints made about the conduct of the hearing in paragraph 3(d) of the amended grounds of review. That was for the simple reason that whatever complaint the applicants wished to make went unproven. So far as the complaint in paragraph 3(a) of the amended grounds was concerned, the tribunal was under no obligation to conduct the interview in person. As the chronological sequence of events unfolded, the invitation to attend a hearing dated 20 February 2017 informed the applicants that the hearing would be conducted by telephone.
It stated that the applicants should contact the person who sent the notice if the applicants wished to appear in person. On 11 March 2017 the first applicant completed the response to hearing invitation. In several places on that form the applicants could have if they had wished put in writing whatever they wanted to say about leaving a personal face-to-face interview but they did not. Instead, they remained silent on point, saying nothing about their wish for a face-to-face meeting. On 15 March 2017 when the first applicant telephoned the tribunal to say he was unwell and that he was not able to attend the hearing on the following day, he said nothing about his need for a face-to-face interview.
During a telephone call on 16 March 2017 no mention was made of the need for a face-to-face interview. Then, on 17 March 2017, the first applicant raised for the first time that he was not happy with the telephone hearing (although he did not say why) and he said he wanted another hearing when he could appear in person. In response the tribunal officer told him he needed to put that request in writing. He failed to do that either. It seemed to me that up to and including the day on which the tribunal conducted the hearing, the applicants expressed no opposition whatever to the hearing being conducted by telephone.
It was so conducted. After the hearing the applicant made a verbal request for a face-to-face hearing and upon being told by a tribunal officer that he needed to put such a request in writing, he failed to do so. To my mind, there was no basis on which the applicants could be heard to complain about a denial of procedural fairness in circumstances where they –
a)agreed to a telephone hearing being conducted up to and during the hearing itself; and
b)only complained that they wanted a face-to-face hearing after the hearing had been held.
In other words, they agreed to, or acquiesced in, the very method employed. In those circumstances, no denial of procedural fairness was shown.
Next, in paragraph 3(b) the first applicant complained that the tribunal denied him procedural fairness because it did not accede to his request to reschedule the “review interview” based on his medical condition, supported by medical certificates. He did not say what he meant by the “review interview”.
Several things must be said about this allegation.
First, in the supplementary court book on which the applicant relied were several medical certificates. No evidence was adduced about whether those medical certificates were put before the tribunal. It seems they were not because they were not among the documents in the minister’s court book, plus the tribunal did not refer to them in its reasons. Further, the tribunal’s records of the telephone conversations between the first applicant and the tribunal officers made no reference to medical certificates having been received by the tribunal.
To whatever use those documents may have been put, they seemed not to have been put before the tribunal.
Next, one of the medical documents in the supplementary court book was a document entitled “Medical Certificate” that stated the first applicant was affected by a medical condition (it did not say what condition that was) and that he was unable to attend work on 16 March 2017. The person who provided that document did not say what the alleged medical condition was or how it bore upon the first applicant’s inability to attend work.
It said nothing about why the alleged medical condition prevented the first applicant using a telephone to participate in a telephone hearing. The document was in the category of documents about which Lindgren J wrote in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[13] where his Honour held that a document in those terms did not canvas matters about which the court needed to know. Another document from a psychiatrist stated that the first applicant was suffering from a severe depressive disorder. It post-dated the hearing in March 2017 so its probative value was difficult to assess.
[13] [2004] FCA 79
Another document from a medical practitioner dated 9 July 2016 also post-dated the hearing in March 2016. For that reason it seemed to me to have little temporal value in this case. In addition it said nothing about why the first applicant was unable to give evidence by telephone in March 2017. None of those medical documents were of assistance to the first applicant in support of his contention that he was denied procedural fairness.
At paragraph 3(c) of the applicants’ amended application, the applicant made a complaint about a Tamil interpreter.
It must be recalled that the first applicant asked for a Tamil interpreter in his response to hearing invitation. Such an interpreter was provided. As the tribunal recorded in paragraph four of its reasons the alleged difficulties in communication were not specified by the applicants. I reject this complaint.
Paragraph 3(d) has already been addressed. I was not persuaded that ground 3 was made out.
Ground 4
This ground seemed to be an omnibus catch-all grievance that the tribunal failed to consider the applicant’s personal circumstances. The minister submitted that once the tribunal found that the first applicant was not the holder of a substantive visa when the application for a visa was made and the applicant had relied on schedule three criteria for the grant of the earlier student visa, the tribunal was bound to apply cl.572.211 and any discretionary issues were irrelevant as was held in such cases as Sayadi v Minister for Immigration and Border Protection[14] and Kaur v Minister for Immigration and Border Protection.[15]
[14] [2015] FCA 1235
[15] [2017] FCA 1411
I agree. It was not proper for a merits review to be undertaken in a judicial review application as was held in an array of authorities including the Minister for Immigration and Ethnic Affairs v Wu Shan Liang[16] To the extent that in ground 4 the activities of the delegate were under consideration, that was erroneous as only the tribunal’s decision was relevant as was held in Zubair v Minister for Immigration and Citizenship.[17]
[16] (1996) 185 CLR 259
[17] [2013] FCA 422
Conclusion
All grounds of review failed. None were arguable. On the discretionary ground recorded in Siddique v Minister for Immigration and Border Protection[18] and in SZTTW v Minister for Immigration and Border Protection,[19] the applicants failed to make out a basis for my interfering with the tribunal decision. I dismiss this application and order the applicant to pay the first respondent’s costs.
[18] [2014] FCA 1352
[19] [2014] FCA 837
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 15 May 2018
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