Rathor v Minister for Immigration
[2014] FCCA 10
•7 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RATHOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 10 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a provisional skills visa – applicant represented by a solicitor before the Tribunal – applicant invited to a hearing before the Tribunal – solicitor unable to attend and requesting an adjournment, which was refused – whether the refusal to grant an adjournment was unfair or unreasonable and whether the Tribunal breached s.366A of the Migration Act 1958 (Cth) considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.276, 360, 363, 366A Migration Regulations (Cth) |
| Berenguel v Minister for Immigration (2010) 264 ALR 417 Kirk v Industrial Court of NSW (2010) 239 CLR 531 Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 Singh v Minister for Immigration & Anor [2012] FMCA 634; (2012) 266 FLR 85 Singh v Minister for Immigration [2013] FCCA 651 SZBEL v Minister for Immigration [2006] HCA 63; 231 ALR 592; 81 ALJR 515 |
| Applicant: | GURNAM SINGH RATHOR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 804 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
A writ of certiorari shall issue, removing the record of the Tribunal decision made on 15 March 2013 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 804 of 2013
| GURNAM SINGH RATHOR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 15 March 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant (Mr Rathor) a skilled (provisional) visa.
The following statement of background facts is derived from the submissions of Mr Rathor.
Mr Rathor applied for a Skilled (Provisional) Class VC visa on 13 April 2010[1].
[1] Court Book (CB) 1-10
On 12 May 2012 a delegate of the Minister decided to refuse the application[2].
[2] CB 68-75
On 23 May 2012 Mr Rathor applied to the Tribunal for review of the delegate's decision[3].
[3] CB 76-86
On 16 January 2013 the Tribunal invited Mr Rathor to a hearing on 8 February 2013[4]. On the same day, Mr Rathor’s solicitor requested an adjournment of the hearing on the ground that he was unable to attend as he was giving a training seminar on that day[5].
[4] CB 93
[5] CB 97
On 17 January 2013 the Tribunal refused to postpone the hearing[6].
[6] CB 98-101
On 18 January 2013 the solicitor wrote a letter of complaint to the Principal Member of the Tribunal[7].
[7] CB 102-103
On 23 January 2013 a letter from the Principal Member was sent to Mr Rathor’s solicitor dismissing the complaint[8].
[8] CB 104
On 8 February 2013 Mr Rathor attended a hearing under protest[9].
[9] CB 62
On 15 March 2013 the Tribunal decided to affirm the delegate's decision[10].
[10] CB 118-123
The judicial review application
These proceedings began with a show cause application filed on 17 April 2013. Mr Rathor continues to rely upon that application which contains the following grounds of review:
1. The Tribunal denied the Applicant procedural fairness by unjustifiably refusing to postpone the hearing date despite the Applicant’s solicitor being unable to attend on that date.
Particulars
On 16 January 2013 the Tribunal sent a fax to the Applicant’s solicitor inviting the Applicant to a hearing on 8 February 2013. On the same day the solicitor replied by fax that he was unable to attend on that day and requested a postponement. The Tribunal refused the request for postponement without giving any reason for doing so. A further request for postponement made to the Principal Member of the Tribunal was also denied without any reason being given.
2. The Tribunal fell into jurisdictional error by denying the Applicant the right to be assisted at the hearing, pursuant to s.366A of the Migration Act 1958.
Particulars
The Applicant attended the hearing on 8 February under protest that he had been denied his entitlement under s.366A to have a person present to assist him. The Tribunal proceeded with the hearing and affirmed the decision under review.
I have before me as evidence the book of relevant documents filed on 3 June 2013.
The parties made oral and written submissions.
Consideration
Mr Rathor’s complaint in this case is that he was denied his request for a hearing at a time when his representative of choice (Mr Jones) could attend. The Tribunal refused that request without reasons (and it is not asserted that the Tribunal was obliged to give reasons at the time of the refusal) although the Tribunal dealt with the circumstances in its reasons for refusing the visa at [15]-[20][11]:
On 16 January 2013,the Tribunal invited the applicant to appear before it and requested that the applicant provide evidence of his English language proficiency or evidence that he had booked and Occupational English Language test or an IELTS test for a test no later than 2 February 2013.
Later that day, the Tribunal received a fax from the representative advising that the representative was unable to attend because he was scheduled to give a training seminar on that day and requested that the hearing be rescheduled to another day.
The Tribunal considered this request but having regard to the only issue in this case relating to whether or not evidence had been provided of meeting the competent English definition in r.1.15C, decided not to postpone the hearing. The Tribunal considered that this was an issue which the applicant himself could properly give evidence and present arguments about at the hearing and that if there were any submissions which his representative wished to make regarding this issue it could be done in writing. The Tribunal informed the applicant of its decision not to postpone the hearing in writing and, noting that the representative would be unavailable on the day of the hearing, invited the representative to make a written submission on the applicant’s behalf for its consideration.
On 18 January 2013, a fax was received in relation to the refusal to postpone the hearing which was addressed to the Principal Member of the Tribunal. The representative submitted that the refusal to postpone the hearing without stated reasons suggests that the Member’s decision may be arbitrary or capricious and that it gave rise to an unreasonable denial of the applicant’s right to assistance at the hearing under s.366A of the Act.
The Principal Member of the Tribunal wrote to the representative acknowledging the complaint but indicated that a decision to adjourn is a matter for the member who constitutes the tribunal in a particular case.
No response to the hearing invitation was received and an officer contacted the representative who stated that he believed the applicant would attend under protest.
[11] CB 120-121
As noted in the Tribunal’s reasons, Mr Rathor did appear before the Tribunal (under protest) on 8 February 2013. He told the Tribunal that he had undertaken possibly as many as 18 International English Language Testing System (IELTS) tests and had not achieved the necessary score in any of tests. This included tests where he had applied for rechecking on four occasions. Mr Rathor confirmed that he had made a booking for a further IELTS test on 23 February 2013. After the hearing, Mr Rathor advised that his results would not be available until 13 March 2013. No test results were provided to the Tribunal before it made its decision on 15 March 2013.
I accept the Minister’s submission that the issues raised in this case need to be considered in the context of the relevant visa criteria. Those criteria are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Clause 485.215 of Schedule 2 imposed a criterion requiring that the applicant have “competent English”. At the relevant time, the term “competent English” was defined under regulation 1.15C of the Regulations. Pursuant to regulation 1.15C, a visa applicant would meet the competent English requirement if they could satisfy the Minister he or she:
(a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i)an IELTS score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii)a score:
(A) specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b)holds a passport of a type specified by the Minister in writing for this paragraph.
In accordance with the decision in Berenguel v Minister for Immigration[12], the Tribunal proceeded on the basis that it was open to the applicant to satisfy the “competent English” requirement by test scores obtained at any time up until the Tribunal made its decision[13].
[12] (2010) 264 ALR 417
[13] CB 120 at [10]
Was the refusal of an adjournment procedurally unfair or unreasonable?
The alleged denial of procedural fairness in this case could also be characterised as an alleged unreasonable exercise by the Tribunal of its power to grant an adjournment under s.363(1)(b) of the Migration Act[14].
[14] see Minister for Immigration v Li (2013) 297 ALR 225 (Li); Singh v Minister for Immigration [2013] FCCA 651 at [43]
Mr Rathor contends that jurisdictional error is established regardless of how the ground is expressed:
·The centrality of the hearing to the Tribunal’s functions in reviewing a decision has been pointed out by the High Court in Li[15], at [60]. Under s.363(1)(b) of the Migration Act the Tribunal has the power to adjourn the review from time to time. Failure to accede to a reasonable request for adjournment can constitute procedural unfairness[16].
·The Tribunal's refusal to adjourn the review was not accompanied by any explanation or reasons. Nor were any reasons given in answer to the direct suggestion to the Principal Member that the decision might appear “arbitrary or capricious”.
·Fairness, like justice, must not only be done, it must be seen to be done: see the cases cited by Flick J in SZQHH[17] at [81]-[82].
·It was not until the Tribunal had made its decision that an explanation for the refusal to adjourn was given[18]. The Tribunal states that “having regard to the only issue in this case relating to whether or not evidence had been provided of meeting the competent English definition in rule 1.15, [it] decided not to postpone the hearing”. This would amount to an assumption on the part of the Tribunal that a hearing in the case before it was a mere formality and that the relevant arguments could just as easily be made in writing. In this respect the Tribunal's justification for not postponing the hearing is itself based on a misapprehension of the centrality of the hearing process, as referred to in Li (supra) and SZBEL[19].
[15] Minister for Immigration v Li [2013] HCA 18; (2013) 297 ALR 225; (2013) 87 ALJR 618
[16] Li at [48]; Minister for Immigration v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598 at [40]
[17] Minister for Immigration v SZQHH [2012] FCAFC 45
[18] CB 121, [17]
[19] SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515
Conversely, the Minister contends that however the alleged error is characterised, no error is demonstrated in this case:
·In respect of the allegation of denial of procedural fairness, the purpose of s.360 of the Migration Act is to allow a visa applicant to give evidence and present arguments relating to the issues arising in the review[20]. In this case, Mr Rathor was not prevented from giving evidence or presenting arguments because of the Tribunal’s decision to refuse the adjournment. Rather, as the Tribunal noted in its reasons, the presence of Mr Rathor’s representative could have made no difference to the outcome on the only issue in the review – whether Mr Rathor had satisfied the competent English criterion.
·In the circumstances of this case, satisfaction of this criterion could only be demonstrated by Mr Rathor providing IELTS results indicating the required level of achievement. Mr Rathor did not produce such results and there is no evidence he has ever achieved the requisite scores. There was therefore no denial of procedural fairness because Mr Rathor suffered no practical injustice[21].
·A similar analysis applies when the issue is characterised in terms of an unreasonable exercise of discretion. In Li the High Court held that the Tribunal erred because there was no evident or intelligible justification for refusing the application for an adjournment in circumstances where there was a prospect that the adjournment would allow the visa applicant an opportunity to satisfy an essential visa condition[22]. This point was made explicit by Gageler J at [98] where his Honour held that an unreasonable decision to refuse an adjournment request will cause the Tribunal to fail to perform its statutory function where the unreasonable decision is material to the outcome.
·In this case, the refusal to allow an adjournment had no bearing on the Tribunal’s conclusion. Thus, in deciding the weight to attribute to the policy embodied in s.366A(1), when exercising its discretion to grant an adjournment, it was open to the Tribunal to give weight to its view (which is not shown to have been wrong) that Mr Rathor’s case could not be saved from failure by any contribution that might have been made by his advisor in the hearing.
[20] Li at [54]
[21] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at [37]-[38]
[22] at [76] and [83] per Hayne, Kiefel and Bell JJ
Whether or not the decision of the Tribunal to refuse to adjourn the hearing to a time when Mr Jones was available was unreasonable, I am satisfied that jurisdictional error has been established. In Li at [59]-[61] Hayne, Kiefel and Bell JJ said:
A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.
The duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example. Section 360(1) and its purpose are central to Div 5 and the conduct of the review for which the Division provides. The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal's duty therefore extends further than merely issuing an invitation to an applicant to appear.
Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal's knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.
Here, Mr Rathor was not prevented from attending the Tribunal hearing. Neither was he prevented from attending the Tribunal with the assistance of a representative. He was, however, prevented from attending the Tribunal hearing with the assistance of his representative of choice, Mr Jones. The Tribunal reasoned, in its decision, that given the simplicity of the issue before the Tribunal, Mr Rathor was as well placed as Mr Jones to address the issue at the hearing. While that was the explanation offered in the Tribunal decision, it was not necessarily what determined the Tribunal’s refusal to reschedule the hearing at the time that decision was made. It is not useful to speculate about whether other considerations may have been in play. Those considerations may hypothetically have included the Tribunal’s current practice of batching hearings in a running list on particular days and whether the dates on which Mr Jones had said he would be available included one of those days. It is unnecessary to speculate because the Tribunal has, on an ex post facto basis, provided an explanation which centred on the proposition that Mr Rathor was not prejudiced by not having his representative of choice available. The Court is entitled to rely upon the reasons of the Tribunal in its decision.
It is hard to characterise the decision on that rationale as unreasonable in the sense described by the High Court in Li. Nevertheless, in my view, the exercise of discretion by the Tribunal miscarried because the Tribunal did not give weight to the statutory code of procedure binding the Tribunal of which the hearing opportunity is a critical part. The Minister’s submissions, and the explanation proffered in the Tribunal’s reasons, both are based on the view that the simplicity of the issue before the Tribunal rendered the attendance of Mr Jones (or any other representative) unnecessary. As put by counsel for the Minister at the trial before me, in order to qualify for the visa he sought, Mr Rathor needed to produce a piece of paper. He either could produce that piece of paper or he could not. On that reasoning, nothing Mr Jones (or for that matter Mr Rathor) might have said at the hearing could alter that essential requirement. In my view, however, the flaw in that rationale is that it leads to the perception that the hearing opportunity is an empty gesture. It is up to Parliament to relieve the Tribunal of the obligation to conduct a hearing in circumstances where a hearing would not be useful. The code of procedure currently binding the Tribunal required the Tribunal to offer a hearing to Mr Rathor once the Tribunal had determined that it could not make a favourable decision on the papers. With the benefit of hindsight, that might seem to have been a pointless exercise. But, as has been pointed out repeatedly by Flick J, the procedural obligations on the Tribunal must be observed so that procedural fairness is not only afforded but it is seen to have been afforded.
It is not useful to speculate what Mr Jones might have put to the Tribunal if he had had the opportunity to attend. What is important is that Mr Jones’ attendance was no more pointless than the attendance of Mr Rathor or the hearing opportunity itself. In essence, the Tribunal reasoned that its refusal to reschedule the hearing was justified because the attendance of Mr Rathor’s representative of choice did not matter. That is but a small step from concluding that the hearing itself did not matter. That approach by the Tribunal lent to the hearing the appearance of procedural unfairness which leads, in my view, to the conclusion that the exercise of discretion by the Tribunal miscarried. The error goes to jurisdiction and Mr Rathor should receive the relief he seeks.
Did the Tribunal breach s.366A of the Migration Act?
Section 366A provides as follows:
(1) The applicant is entitled, while appearing before the Tribunal, to have another person (the assistant) present to assist him or her.
(2) The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so.
(3) Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person.
(4) This section does not affect the entitlement of the applicant to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.
The section should be read in its context with Part 3 of the Migration Act dealing with migration agents and immigration assistance, and in particular the definition of the term “immigration assistance” in s.276(1)(d):
(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
…
(d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.
As was submitted to the Principal Member in the letter[23], the entitlement to have an assistant present has been identified as a right given by Part V of the Migration Act, which also gives the Tribunal the power to adjourn the review[24]:
Part 5 of the Act specifically confers a number of powers on the Tribunal for the purpose of conducting a review. The Tribunal may, for example, take evidence on oath or affirmation (s 363(1)(a)), adjourn the review from time to time (s 363(1)(b)), summon a person to appear before the Tribunal to give evidence or to produce documents (s 363(3)(a) and (b)), and allow evidence to be given by telephone (s 366(1)(a)). Part 5 also contains provisions that expressly give or deny the applicant and other persons certain rights. Thus, the applicant is entitled to have another person assist him or her before the Tribunal (s 366A(1)), but is not entitled to examine or cross-examine anyone appearing before the Tribunal to give evidence (s 366D).
[23] at CB 102-103
[24] Minister for Immigration v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304 at [35]
In another case to which the Principal Member was referred, Singh[25], Raphael FM as he then was dealt with a similar factual circumstance to the present. The submissions made to the Principal Member are repeated here on behalf of Mr Rathor, namely, that this is a case that falls into the category of unreasonable refusals.
[25] Singh v Minister for Immigration & Anor [2012] FMCA 634; (2012) 266 FLR 85
Mr Rathor contends, consistently with his submissions in respect of the first ground of review, that the Tribunal's explanation[26] reflects a misunderstanding of the role of hearing in the review process and, with respect to the second ground, the entitlement of Mr Rathor to have an assistant present at the hearing to provide assistance as part of that process.
[26] given at CB 121, [17]
The Minister concedes that s.366A confers a right upon a review applicant before the Tribunal[27]. However, that right is not absolute or unlimited.
[27] Minister for Immigration v Maltsin (2005) ALD 304 at [35]
In Hossain v Minister for Immigration[28] Smith FM held that s.366A:
[G]ives a right to bring an assistant to a hearing appointed by the Tribunal, but not an unconstrained right to a hearing with an assistant in attendance.
[28] [2009] FMCA 1100 at [42]
Thus, s.366A gives an applicant the right to appear with assistance at a hearing held at a time appointed by the Tribunal. It does not provide an absolute right requiring the Tribunal to fix the hearing at a time convenient for a visa applicant’s assistant.
The limited nature of the right conferred by s.366A is confirmed by the decision relied on by Mr Rathor[29]. In Singh, Raphael FM (as his Honour then was) held that the Tribunal unreasonably refused an adjournment in circumstances where the visa applicant did not have a reasonable time to arrange an alternative advisor. In that case, the visa applicant, who was unable to travel because of illness, would have been required to engage a new advisor on three days notice[30]. In this case, Mr Rathor was notified of the Tribunal’s decision to refuse an adjournment more than three weeks before the hearing. There is nothing to suggest that he could not have arranged alternative representation during this period. Nevertheless, in my view the issue of principle discussed above at [25]-[26] applies with equal force to s.366A.
[29] Singh v Minister for Immigration (2012) 266 FLR 85
[30] at [18]
The Minister submits that even if the Tribunal did fail to comply with s.366A the error did not go to jurisdiction. That depends upon the gravity of the error[31]. I do not accept the Minister’s submission in this case that the error was immaterial. That would require me to accept the proposition that the attendance of Mr Jones could have made no difference to the question whether Mr Rathor had demonstrated satisfaction of the relevant visa criterion. That in turn, in my view, would lead into the more grievous error of assuming that the hearing opportunity itself was pointless. So long as Parliament requires the Tribunal to afford a hearing opportunity it must be assumed to serve a real purpose. The attendance of an applicant and his or her representative as permitted by the Migration Act should also be assumed to serve a real purpose. There may be circumstances in which it is administratively impracticable for the Tribunal to accommodate requests for the rescheduling of a hearing. That would be a legitimate reason to refuse such a request. But it is not a legitimate reason to refuse a request because the Tribunal is of the view that the attendance of the representative would be pointless.
[31] see Kirk v Industrial Court of NSW (2010) 239 CLR 531 at [64] per French CJ, Gummow, Hayne, Kiefel and Bell JJ; Minister for Immigration v SZRKT (2013) 212 FCR 99 at [98] per Robertson J
Discretion to refuse relief
I have found that the errors committed by the Tribunal go to jurisdiction. While the Minister submitted that the Court might refuse relief in the exercise of its discretion, I will not do so. It remains hypothetically possible for Mr Rathor to satisfy the requirement to meet the English language proficiency test. He will have the further opportunity to demonstrate that on remittal of the matter to the Tribunal.
Conclusion
Mr Rathor has demonstrated that the Tribunal fell into jurisdictional error in refusing to reschedule the hearing to a time when his representative of choice could attend. He should receive relief in the forms of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 7 February 2014
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