Shrestha v Migration Review Tribunal

Case [2015] FCAFC 87

FEDERAL COURT OF AUSTRALIA

Shrestha v Migration Review Tribunal [2015] FCAFC 87

Citation: Shrestha v Migration Review Tribunal [2015] FCAFC 87
Appeal from: Shrestha v Minister for Immigration [2015] FCCA 256
Parties: BIKAS SHRESTHA v MIGRATION REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND BORDER PROTECTION
File number: NSD 146 of 2015
Judges: MANSFIELD, TRACEY AND MORTIMER JJ
Date of judgment: 19 June 2015
Catchwords: MIGRATION – application for visa – visa refused for failure to satisfy condition – review by Federal Circuit Court of Australia – summary dismissal of application – failed to accord procedural fairness to appellant – whether Federal Circuit Court wrongly exercised power under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) – appeal allowed – matter remitted to Federal Circuit Court of Australia for re-hearing before different judge
Legislation:

Constitution
Federal Circuit Court of Australia Act 1999 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Federal Circuit Court Rules 2001 (Cth)

Federal Court of Australia Act 1976 (Cth)

Criminal Organisation Act 2009 (Qld)
Cases cited: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
Taylor v Taylor (1979) 143 CLR 1
Re JRL; Ex parte CJL (1986) 161 CLR 342
Allesch v Maunz (2000) 203 CLR 172
Cameron v Cole (1944) 68 CLR 571
Commissioner of Police v Tanos (1958) 98 CLR 383
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Agar v Hyde (2000) 201 CLR 552
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Date of hearing: 3 June 2015
Date of orders: 3 June 2015
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 80
Counsel for the Appellant: Mr J Mitchell (Pro Bono)
Counsel for the Respondents: Mr MJ Smith
Solicitor for the Respondents: Sparke Helmore Lawyers
Table of Corrections
14 July 2015 In paragraph 22, replace semicolon after “transcript” with a comma
14 July 2015 In paragraph 58(4), delete duplicated phrase “in the proposed”
14 July 2015 In paragraph 58(7), delete comma after “defensible”
14 July 2015 In paragraph 69, replace “Minster” with “Minister”
14 July 2015 In paragraph 73, insert closing quotation marks after the word “cases”.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 146 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

BIKAS SHRESTHA
Appellant
AND:

MIGRATION REVIEW TRIBUNAL
First Respondent

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Second Respondent

JUDGES:

MANSFIELD, TRACEY AND MORTIMER JJ

DATE OF ORDER:

3 JUNE 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS…

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Details
AGLC
Shrestha v Migration Review Tribunal [2015] FCAFC 87
Case
[2015] FCAFC 87
Decision Date

CaseChat Overview and Summary

The appellant in Shrestha v Migration Review Tribunal sought to challenge a decision of the Federal Circuit Court of Australia (FCC) which dismissed an application to set aside a decision of the Migration Review Tribunal to cancel his visa. The appellant claimed that the FCC had failed to give him procedural fairness by not allowing him to present evidence and arguments before dismissing his application. The High Court of Australia allowed the appeal, set aside the orders of the FCC, and remitted the matter back to the FCC for a rehearing before a different judge.

The legal issues in this case were whether the FCC had wrongly exercised its power to summarily dismiss the appellant's application under section 17A of the Federal Circuit Court of Australia Act 1999 (Cth), and whether the FCC had failed to give the appellant procedural fairness by not allowing him to present evidence and arguments before dismissing his application. The High Court found that the FCC had clearly erred in summarily dismissing the application and had failed to give the appellant procedural fairness by not allowing him to present evidence and arguments.

The High Court held that the FCC had an obligation to accord procedural fairness to the appellant, which includes providing him with a reasonable opportunity to present evidence and to make submissions. The power of the FCC to summarily dismiss an application is subject to the obligation of procedural fairness. The FCC had failed to give the appellant procedural fairness by not allowing him to present evidence and arguments before dismissing his application, which was clearly wrong. The Court also noted that it was desirable to expand upon the principles of procedural fairness, which require that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it.

The High Court ordered that the appeal be allowed, that the orders of the FCC including as to costs be set aside, and that the matter be remitted to the FCC for rehearing according to law before a different judge. The Court also ordered that the Minister pay the appellant's costs of the application for leave to appeal, and of the appeal, because the Minister had not acknowledged error on the part of the primary judge at an early point or at all and had presented submissions which were directed to pointing out to the Court reasons why it might not allow the appeal in any event.

Orders

Orders of the court

1. Leave to substitute Ground 3 of the Notice of Appeal filed on 14 May 2015 so that it reads:

“The Court below erred:

(a) in fact and in law, by making findings that there was no arguable issue of fact or law in circumstances where the application before the Court and the submissions made as to that application highlighted issues of fact and law; and

(b) in the exercise of its discretion by denying the Appellant an opportunity to file and serve evidence in support of the disputed matters of fact and law and then finding that the application was untenable and that the propositions advanced in respect of the alleged errors had no reasonable prospect of success and were not reasonably arguable”.

2. The appeal be allowed.

3. The orders of the Federal Circuit Court of Australia made on 6 February 2015 including as to costs are set aside.

4. The application to the Federal Circuit Court of Australia be remitted to that court differently constituted for rehearing and determination according to law.

5. The costs of the application for leave to appeal and the appeal to this Court be paid by the Minister for Immigration and Border Protection, the second respondent, to the appellant.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

These are the reasons for those orders.PROCEDURAL BACKGROUND The appellant was until 13 June 2014 the holder of a Class TU Subclass 572 Vocational Education and Training Sector visa issued under the Migration Act 1958 (Cth) (the Act). On that date, a delegate of the Minister cancelled the visa, on the basis that he had not been enrolled in a registered course since 31 October 2013 as required by Condition 8202(2) of the visa. The appellant sought review of the cancellation decision by the Tribunal. It conducted a hearing on 11 December 2014. Following that hearing, on 19 December 2014, the Tribunal affirmed the decision to cancel the appellant’s visa. Condition 8202(2), in Sch 8 to the Migration Regulations 1994 (Cth) (the Regulations) required the appellant to be enrolled in a registered course, and condition 8202(3) required him to achieve satisfactory course attendance and to achieve satisfactory course progress. It was because neither the delegate nor the Tribunal was satisfied that the appellant met condition 8202(2) that the Minister, through his delegate cancelled the visa, and the Tribunal affirmed that decision. Each exercised the power pursuant to s 116(1)(b) of the Act. In short, it was found that the appellant had not been enrolled in a registered course of study at all since 31 October 2013 as required by Condition 8202(2). The appellant then applied to the FCC to have the decision of the Tribunal set aside on the ground of jurisdictional error. The application to that Court was listed first on 5 February 2015 and on that occasion, was adjourned until the following day, as the lawyer or representative of the appellant did not attend (in the understandable circumstances set out below). On 6 February 2015, the FCC summarily dismissed the application, pursuant to the power to do so in s 17A of the FCCA Act. Although it is not explicitly stated by the primary judge that he was using that power, the transcript shows that he was using the formula of that section, and both the appellant and the Minister by their submissions accepted that his Honour did so. The Minister did not apply for that order, and did not support the making of it. Subsequently, the appellant was given leave to appeal from that decision, it being of the character of an interlocutory order. GROUNDS OF APPEAL There are four grounds of appeal, namely:(1)that the FCC did not give the appellant a reasonable opportunity to appear and present his case on appeal, and was therefore denied procedural fairness;(2)that FCC erred by exercising its power summarily to dismiss an application under s 17A of the FCC Act and r 13.10 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) in circumstances where the Court did not have a pleading before it and had not satisfied itself that each party had filed and served the evidence relevant to the application;(3)that the FCC erred:(a)by making findings that there was no arguable issue of fact or law in circumstances where the submissions made highlighted issues of fact and law; and (b)in exercising its discretion by denying the appellant an opportunity to file and serve evidence in support of the disputed matters of fact and law, and then finding that the application was untenable and that the propositions advanced in respect of the alleged errors had no reasonable prospect of success and were not reasonably arguable; and(4)that the FCC erred by making a finding that s 359AA of the Act had been complied with by the Tribunal, when there was no evidence before the Court as to how the particulars required by s 359A of the Act were given during the course of the Tribunal hearing.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As the appellant’s counsel submitted, the primary judge erred in concluding at [18] of his reasons that there was no arguable issue of fact or law, and that the application was not tenable. In the light of the material referred to, it is difficult to understand how that conclusion could have been reached. It is sufficient, however, to say that it was clearly wrong.CONCLUSION For those reasons, the Court ordered that the appeal be allowed, that the orders of the FCC including as to costs be set aside, and that the matter be remitted to the FCC for rehearing according to law. We directed that the matter be reheard before a different judge because we do not see, in the particular circumstances, that the appellant or the Minister could be confident that the primary judge, having expressed such firm views, could bring an open mind to its reconsideration. In this matter, we also ordered that the Minister pay the appellant’s costs of the application for leave to appeal, and of the appeal, because the Minister – as we have said, acting properly – nevertheless chose not to acknowledge error on the part of the primary judge at an early point or at all and, in our view, presented submissions which were directed to pointing out to the Court reasons why it might not allow the appeal in any event. It was, therefore, necessary for the appellant to prepare written submissions and appear to speak to those submissions on the appeal.

Ratio Decidendi

Legal Principle Established

It is not necessary to address the primary judge’s reasons for rejecting summarily grounds 2, 3 and 5 of the application.CONSIDERATION The primary judge plainly erred in his decision summarily to dismiss the application. It is axiomatic that the primary judge was obliged to accord procedural fairness to the appellant: Taylor v Taylor (1979) 143 CLR 1; Re JRL;Ex parte CJL (1986) 161 CLR 342 at 350 per Mason J; Allesch v Maunz (2000) 203 CLR 172 at 184-185 per Kirby J. Counsel for the Minister did not, of course, gainsay that proposition. It is equally axiomatic that the requirements of procedural fairness include the provision of a reasonable opportunity for the appellant to present evidence and to make submissions: Cameron v Cole (1944) 68 CLR 571 at 589 per Rich J; Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-396 per Dixon and Webb JJ. The power of the FCC summarily to dismiss an application under s 17A of the FCCA Act and r 13.10 of the FCC Rules is subject to that obligation: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 as there is no indication of a legislative intention to qualify or abrogate it. It is desirable to expand upon those propositions. At the level of general principle, it is as true now as it was in 1944 that:It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.(Cameron v Cole (1944) 68 CLR 571 at 589 per Rich J) In Re JRL; Ex parte CJL (1986) 161 CLR 342 at 350 Mason J said:A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. There are many more recent restatements of similar principles. In International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at [54] French CJ, stated:Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary. The High Court’s decision in Assistant Commissioner Condon v PompanoPty Ltd (2013) 252 CLR 38 (Pompano) concerned the performance of functions and the exercise of powers by State Courts under the Criminal Organisation Act 2009 (Qld), and the compatibility of those functions and powers with Ch III of the Constitution. It was, in that sense, a very different case to the present. Nonetheless, the observations by various members of the Court in that case about the role of procedural fairness in the exercise of judicial power were unequivocal. At [156], the plurality said (omitting footnotes):The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision-making but in terms which have more general and immediate application, “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.” To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.