Sidhu v Minister for Immigration

[2016] FCCA 2465

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDHU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2465

Catchwords:
MIGRATION – Visa – student visa – whether Tribunal decision demonstrated bias – whether Tribunal failed to comply with duty to conduct a review – no error demonstrated.

Legislation:

Migration Act 1958 (Cth), ss.65, 116, 351, 368, 379A & 379C

Migration Regulations 1994 (Cth), cls.572.11 & 572.211 to Schedule 2

Cases cited:

Kaur v Minister for Immigration and Citizenship [2013] FCA 275

Applicant: INDERPREET SINGH SIDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 343 of 2015

Judgment of: Judge Heffernan

Hearing date: 8 April 2016

Date of Last Submission: 8 April 2016

Delivered at: Adelaide

Delivered on: 4 October 2016

REPRESENTATION

The Applicant: In person with an interpreter

Solicitors for the Respondents: Ms C Stokes for the Australian Government Solicitors

ORDERS

1. The application filed 14 September 2015 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 343 of 2015

INDERPREET SINGH SIDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 20 August 2015 which affirmed an earlier decision made by a delegate of the Minister on 4 February 2015 which refused to grant a Student (Temporary) (Class TU) visa (‘the visa’) to the applicant under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant appeared before me unrepresented with the assistance of an interpreter in the English and Punjabi languages.  His application seeks an extension of time in which to file his application for review and identified three grounds of review as follows:

   “1.My college make fake request to immigration because I did not pay extra money.

   2.I won MRT case, but my case officer did not take action when she get decision and also did not contact to me.

   3.Administrative Appeals Tribunal wrong and one sided decision and hide mistakes of case officer. [sic]”

3. The applicant relies on his affidavits dated 14 September 2015 and 29 March 2016.  The second affidavit is in reality an outline of submissions which annexes further materials the applicant says are relevant to this matter.  The applicant also indicated that he relies on the material contained in the Court Book filed by the first respondent.

4. The first respondent relies on the affidavit of Katarina Malekin dated 22 January 2016 and the materials in the Court Book.

Background

1. Certain aspects of the background to this matter are not in dispute and have been helpfully summarised by the first respondent in its outline of submissions and a chronology of the events.  I will paraphrase those documents in so far as they deal with the uncontentious aspects of the chronology.  I will then identify an aspect that is disputed.

2. The applicant is an Indian citizen.  He applied for a student visa on 11 December 2011.[1]  That visa was granted on 19 March 2012 and it was valid until 7 June 2014.[2] 

   [1]     Court Book (‘CB’) p 84.

   [2]     CB p 84.

3. A delegate of the Minister cancelled the applicant’s student visa on 21 May 2013. This was done pursuant to s.116 of the Act.[3]

   [3]     CB p 84.

4. The applicant applied to review the delegate’s decision in the Migration Review Tribunal.  That Tribunal affirmed the decision of the delegate on 6 August 2013.

5. On 22 August 2014, this Court made orders by consent quashing the Migration Review Tribunal’s decision dated 6 August 2013 and ordering that the matter be remitted to that Tribunal for reconsideration of the cancellation decision.[4]  As will be noted, the original expiry date for the visa would have been approximately six weeks earlier had it not originally been cancelled in May 2013.

   [4]     CB p 28.

6. On 19 November 2014, a differently constituted Tribunal found that the decision to cancel the visa should be set aside.  It substituted that decision with a decision not to cancel the applicant’s visa.[5]

   [5]     CB p 46.

7. At this point, I reach a part of the chronology over which there is some dispute.  The first respondent contends that the Tribunal notified the applicant by letter sent by ordinary prepaid post of the decision referred to above on 20 November 2014.[6] If the first respondent is correct about the date on which the letter was sent, then the applicant was taken, by virtue of s.379C of the Act, to have received the letter on 1 December 2014. On this scenario, the applicant was required to lodge his visa application by 29 December 2014.[7]  The applicant says he did not receive this letter.

   [6]     CB p 42; See Affidavit of Katarina Malekin.

   [7] Clause 572.11 to Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’).

8. On 22 January 2015, the applicant lodged an application for a further subclass 572 visa.[8]  That application was refused by a delegate of the first respondent on 4 February 2015.  The applicant applied to the Tribunal for a review of that delegate’s decision on 16 February 2015.[9]  The applicant appeared before the Tribunal on 18 August 2015 and on 20 August 2015 the Tribunal made the decision to affirm the decision under review.[10]

   [8]     CB p 53.

   [9]     CB p 86.

   [10]    CB p 129.

Tribunal reasons and decision

1. The Tribunal identified the relevant subclass for the visa application as being Subclass 572 and identified that it was necessary that the applicant meet the requirements of cl.572.211 in Part 572 of Schedule 2 to the Regulations.[11] The Tribunal correctly noted that as the applicant did not hold a substantive visa at the date of the application, he was required to satisfy cl.572.211(3). The Tribunal referred to the previous history of the matter before the Migration Review Tribunal, and noted that the decision of that Tribunal had been posted to the applicant and that by virtue of s.379C of the Act, he was taken to have received that document within 7 working days from the date on the document, which in this case was 1 December 2014. It noted that the applicant was therefore required to lodge his application for the visa on or before 29 December 2014. The Tribunal correctly noted that Mr Sidhu lodged his student visa application on 22 January 2015.

   [11]    CB p 130-131.

2. The Tribunal concluded that by virtue of the late lodgement of his application, the applicant was unable to satisfy cl.572.211(3). As a result, the Tribunal concluded that it had no other option but to affirm the decision under review and it did so.[12]

   [12]    CB p 132.

Submissions

1. I will summarise the written and oral submissions of both parties.

2. The applicant made brief oral submissions before me, essentially indicating that he was prepared to rely on his written submissions because they properly summarised his arguments.  He clarified them briefly and it seems that the real basis of his application is that he has been done an injustice, firstly because he did not receive the letter telling him that he had 28 days to reply, and secondly, because he seems to have assumed that when the Migration Review Tribunal granted his earlier application for review, a visa would automatically issue to him, and that it was the responsibility of the Department to provide him with one.  He made a submission, that is not disputed by the first respondent, that he had visited the Department on a number of occasions after the Migration Review Tribunal decision to enquire about his visa status.  He claims that it was only at the end of that process that he became aware that he was required to actually apply for a visa.

3. The applicant’s written submissions repeat some of the history of the events that led to his successful review before the Migration Review Tribunal and his subsequent dealings with his case officer and the Department.  The submissions give further detail of the applicant’s belief that, based on what he was told by the Department, he believed they would contact him either to grant the visa, or possibly to facilitate the grant of the visa.  It was, he submits, because of the erroneous advice of the Department that he was late in lodging his application.

4. The applicant claims not to have been informed by the Tribunal that he had 28 days to lodge his visa application.  With respect to the Tribunal hearing on 18 August 2015, the applicant complains that it was extremely brief and simply amounted to the Tribunal member following the earlier decision of the delegate.  This amounts to a complaint that the Tribunal did not discharge its duty to conduct a review, and that it did not engage in an active intellectual process in considering his application.  It is for this reason that the applicant says the process was “one-sided”.

5. The applicant was critical of the affidavit of Ms Malekin and submits that it serves only to divert attention from the root of the problem, namely the mistake made by the case officer.

6. The first respondent conceded that the applicant did not receive a letter saying that he had 28 days in which to apply for his visa.  It contends however, that he was sent a letter from the Tribunal informing him that it had set aside the decision of the delegate and enclosed a Fact Sheet which had a section clearly marked ‘What happens next?’.  That document set out clearly the scenario with respect to substituted decision.  The decision of the Tribunal did not amount to a grant of a visa but rather the setting aside of the cancellation decision.  The letter to the applicant is included at page 127 of the Court Book.  It is dated 26 August 2015 and encloses a copy of the decision and reasons, as well as a Fact Sheet.  The letter advised the applicant that a copy of the reasons was being given to the Department of Immigration and Border Protection.  Whilst the Fact Sheet, which was enclosed with the letter, is not included in the Court Book, the first respondent points to the ‘M25’ ‘Information about Tribunal Decisions’ Fact Sheet that was sent to the applicant after his first successful migration review.  The information under the heading, ‘What happens next?’ includes the following paragraphs:

   “After the department receives a copy of your decision, the department will act to give effect to the Tribunal’s decision.  If you are not an Australian citizen or permanent resident, your immigration status in Australia may change following the Tribunal’s decision.

   If you hold a bridging visa associated with the application that was the subject of the Tribunal’s review, or with a decision to cancel a visa, your bridging visa may cease, depending on the Tribunal decision.  One of the following situations may apply:

   §Where the Tribunal sets aside the decision under review and substitutes a decision that your visa be granted, your bridging visa will cease.

   §If the Tribunal remits the decision under review back to the department of reconsideration, your bridging visa will remain in effect while your application is being processed by the department.

   §If the Tribunal affirms the decision under review, deciding that the delegate’s decision should not be changed, or decides it has no jurisdiction to review a decision, your bridging visa will cease 28 days after you are notified of the Tribunal’s decision.

   If you decide to seek judicial review of the Tribunal’s affirmed or no jurisdiction decision, you may be eligible for a bridging visa that will keep your immigration status lawful throughout this process.  You should apply for another bridging visa before your current bridging visa ceases.

   The effect on a bridging visa may be different where there is a decision to set aside the decision under review and substitute a decision not to cancel a visa, or that the visa application is invalid.  In these circumstances contact the department for specific information about your situation.

   If you have any questions about your immigration status, or if your contact details have changed since you last communicated with the department, you should contact the department on 131 881.”

7. As I have indicated, the first respondent does not dispute that the applicant made contact with the Department as he has asserted. It submitted that with respect to the subject application, the Tribunal had no discretion because the applicant could not satisfy cl.572.211(3). It submitted that the decision in Kaur v Minister for Immigration and Citizenship[13] supports this proposition and accordingly the reasons for the applicant not having made his application within time were not relevant to the Tribunal.  For that reason, whatever the content of the discussions the applicant had with the Department, that was not a matter relevant for the Tribunal to take into account.  The Tribunal was required to apply the law and was obviously bound by the regulations.  It was required to affirm the decision under review.  The first respondent submitted that the affidavit of Ms Malekin establishes that the relevant letter was sent to the applicant and that by virtue of the legislation he was deemed to have received the decision within 7 days.

   [13] [2013] FCA 275 at [15]-[16].

Consideration

1. This is an unfortunate matter.  There is no doubt that at all relevant times the applicant wanted to renew his student visa and was prepared to do all things necessary in order to do so.  He had the benefit of the initial Migration Review Tribunal decision that made that possible. 

2. There is no doubt that the applicant was required to meet the criteria in cl.572.211(3). That clause states as follows:

   “(3)An applicant meets the requirements of this subclause if:

   (a)the applicant is not the holder of a substantive visa; and

   (b)the last substantive visa held by the applicant was:

   (i)     a student visa; or

   (ii)     a special purpose visa; or

   (iii)   a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or

   (iv)    a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or

   (v)     a Subclass 497 (Graduate—Skilled) visa; and

   (c)the application is made within 28 days (or within such period specified in a legislative instrument made by the Minister) after:

   (i)     the day when that last substantive visa ceased to be in effect; or

   (ii)     if that last substantive visa was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

   (A)the day when that last substantive visa ceased to be in effect; and

   (B)the day when the applicant is taken, under sections 368D and 379C of the Act, to have been notified of the Tribunal’s decision; and

   (d)the applicant satisfies Schedule 3 criterion 3005.”

3. The Tribunal did give a copy of its decision to the applicant in a manner which was compliant with s.379A(4) of the Act. By virtue of s.379C of the Act, the applicant was taken to have received the document seven working days after the date on the document.

4. With respect to ground one of the application to this Court, it raises the factual dispute which was the subject of the review before the Migration Review Tribunal, and which led it to set aside the earlier decision to cancel his student visa.  Those matters are not relevant to this application for judicial review.  I dismiss this ground.

5. With respect to ground two, in this case, any error by the Department does not establish a jurisdictional error on the part of the Tribunal in the way that it dealt with the applicant’s application for review.  The applicant was notified by the Department in the M25 document that his visa status may have changed as a result of the decision of the Tribunal.  At no stage was the applicant informed by either the Tribunal or the terms of M25 that he would be granted a visa as a result of the Tribunal decision.  This ground cannot be made out and I dismiss it.

6. With respect to ground three, I do not regard the decision of the Tribunal in this matter as being either one-sided or wrong.  I am not satisfied that the decision of the Tribunal is affected by either actual or apprehended bias.  In so far as the applicant complains that the review hearing itself was very brief, that is correct and is reflected in the hearing record.[14] As the first respondent correctly submits, the matter to be considered by the Tribunal was of a very narrow compass. It was bound by the terms of cl.572.211(3) and as the decision in Kaur’s case establishes, it had no discretion or power to waive the requirements of cl.572.211, or to consider the reasons that the applicant lodged his application outside the stipulated time frame. The decision of the Tribunal discloses that it correctly identified both the law and the issues before it. The written statement of decision complied with the terms of s.368 of the Act. I am satisfied that the Tribunal complied with its duty to conduct a review. There was no jurisdictional error in the Tribunal’s conclusion that the applicant did not satisfy the requirements for the grant of a visa and that in those circumstances, it was required to affirm the decision under review. There is nothing in the reasoning of the Tribunal that supports the applicant’s contention that it was motivated by a desire to hide the “mistakes” of the Department’s case officer.  I dismiss this ground.

   [14]    CB pp 122–124.

7. As I have said, this is a most unfortunate case. Whilst the applicant bore the responsibility for making a further application for the visa, there seems no reason to doubt that he became genuinely confused as to what he was required to do once the Migration Review Tribunal had made its decision. As the first respondent has pointed out, it would be open to the applicant to make a submission to the Minister requesting ministerial intervention in these circumstances. Pursuant to s.351 of the Act, if the Minister thinks it is in the public interest to do so, he may substitute a decision of the Tribunal with a decision that is more favourable to the applicant. This would seem to be an appropriate matter for the applicant to make a request to the Minister for ministerial intervention. The Court cannot identify any reason beyond the ‘mix up’ on the part of the applicant that has prevented him from obtaining a further visa. It is not appropriate for me to make any recommendation to the Minister but I repeat, this seems simply to be a case where the applicant has endeavoured to do what he thought was necessary in order to obtain the visa, but being mistaken as to what he was required to do.

8. To avoid any confusion, I note that it is entirely up to the applicant to request intervention from the Minister if he chooses to do so.  The Court plays no role in that process.

9. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 4 October 2016