Singh v Minister for Immigration
[2018] FCCA 1494
•8 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1494 |
| Catchwords: MIGRATION – Temporary business entry (class UC) visa – applicant failed to satisfy requirements of public interest criterion 4013 for the purposes of cls.457.325 of the Migration Regulations 1994 – tribunal correctly considered whether applicant satisfied PIC 4013 – applicant’s witness attended tribunal hearing without notice – evidence of applicant’s witness not relevant to decision under review – tribunal properly chose not to hear from applicant’s witness – applicant failed to make out jurisdictional error – grounds of review deficient – lacked particulars – application for judicial review dismissed. |
| Legislation: Migration Act 1958, ss.116, 359A, 361 Migration Regulations 1994, Sch.2, cls.457.325, 457.725 |
| Cases cited: AQN15 v Minister for Immigration & Anor [2016] FCA 571 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | GURRINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2110 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 8 March 2018 |
| Date of Last Submission: | 8 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The proceeding commenced by the application filed on 15 September 2015 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2110 of 2015
| GURRINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The issue in this case was whether the Administrative Appeals Tribunal fell into jurisdictional error in making its decision on 20 August 2015. By that decision, the tribunal affirmed a decision of the delegate to not grant the applicant a temporary business entry (class UC) visa.
In essence, the tribunal took the view that the applicant failed to satisfy PIC 4013 for the purpose of cl.457.325 of Sch.2 to the Migration Regulations (“Regulations”).
The applicant’s grounds of review were discursive in nature, focusing mainly on the reasoning process of the delegate. They were as follows –
I applied for temporary business entry (class UC) visa on 8 May 2014. My visa application was refused by delegate of the Minister for Immigration on 1 October 2014.
The department refused to grant the visa on the basis that PIC 4013 WAS NOT met as they said that I WAS affected by a rick factor due to my student visa cancellation on 9 May 2014
The department asked for compelling reasons the why three years exclusion period should be waived. I informed the department that my uncle whom I’m providing moral support will be affected. Also my son will be affected. But they did not consider these as they said that my son is not an australian citizen. Also my company CAPITAL TRANSPORT where I worked previously is willing to hire me again and want to me to join the company again. I can also provide a supporting letter from the company if requested
I also sought review of delegate’s decision. I presented oral evidence and arguments on my hearing but the tribunal affirmed the decision.
I am not satisfied with both the department and tribunal decision. Hence I want to kill against the decision in the federal court.
(errors in original)
The question for me was whether the applicant demonstrated that the tribunal fell into jurisdictional error.
Synopsis
For the reasons that follow, in my judgment the tribunal did not fall into jurisdictional error. This proceeding should be dismissed. The applicant must pay the minister’s costs.
A short factual recital
The applicant is a citizen of India. His wife, Gurpreet Kaur applied for a long-stay temporary business visa on 8 May 2014. In that application she nominated Gurrinder Singh as the accompanying secondary visa applicant. On 1 October 2014 the minister granted a temporary work (skilled) subclass 457 visa in favour of Gurpreet Kaur. On the same day, the minister refused the applicant’s application for a temporary business entry (class UC) temporary work (skilled) (subclass 457) visa. The delegate gave reasons for decision, also dated 1 October 2014, for his refusal of the applicant’s visa application.
Being dissatisfied with the delegate’s decision, the applicant applied for merits review in the Migration Review Tribunal. He used the services of a migration agent called Study to Migrate Pty Ltd. On 26 June 2015 the tribunal invited the applicant to attend before it on 20 August 2015. The response to hearing invitation form prepared on behalf the applicant recorded that the applicant and one Tejinder Kalra would attend the hearing.
On 20 August 2015 the tribunal conducted the hearing with the assistance of a Hindi interpreter. The tribunal made its decision the same day and provided written reasons, also on 20 August 2015. Before addressing the details of the tribunal hearing, it is relevant to record that a person whose name was Liam Slattery attended the hearing. He produced a letter dated 31 July 2015 on the letterhead of Group Messengers Pty Ltd (“GM”) that recorded the contractual relationship between the applicant and that company. Relevantly paraphrased, that letter recorded that –
a)the applicant provided owner driver services to GM as a subcontractor between 28 October 2009 and 7 May 2014;
b)the applicant was paid on the basis of jobs completed on an ad hoc basis;
c)the applicant was not paid at an hourly rate;
d)if cartage work was not allocated to the applicant, he did not obtain payment.
Mr Slattery did not give viva voce evidence.
The tribunal’s reasons for its decision to affirm the refusal to grant the visa were short, spanning 32 numbered paragraphs. Relevantly paraphrased, they provided as follows –
a)the tribunal considered the letter from MG;
b)the tribunal did not hear from Mr Slattery as his evidence went to the issue of the applicant’s student visa having been cancelled as opposed to whether the applicant satisfied cl.457.325 of Sch.2 to the Regulations or PIC 4013;
c)as the applicant conceded he was an affected by a risk factor the tribunal was required to determine whether PIC 4013(1) applied;
d)the tribunal took the view that the applicant did not meet PIC 4013(1)(a) because his visa application in this case had been made not more than three years after his student visa had been cancelled;
e)the tribunal considered the applicant’s evidence concerning his uncle, his son, his wife’s employer and the applicant’s own employer and whether each would be adversely affected by the applicant being required to depart Australia;
f)the tribunal found the applicant had not demonstrated compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen such as to satisfy the elements of PIC 4013(1)(b);
g)the tribunal said the applicant had not met PIC 4013 for the purpose of cl.457.325 of Sch.2 to the Regulations
Consistent with his obligations as a model litigant, the minister in written submissions identified a collection of matters about cl.457.325 and PIC 4013. The minister pointed out, correctly in my view, that the terms of cl.457.725 stated that the applicant needed to meet, among other things, PIC 4013. The minister also identified that PIC 4013(2) provided that a person was affected by a risk factor if a visa previously held by that person was cancelled under s.116 of the Migration Act (“Act”) by reason of the fact that the person was found by immigration authorities to have worked without authority.
In this court
A close examination of the applicant’s grounds of review revealed some serious deficiencies. In making that observation, I make no personal criticism of the applicant. To the contrary. He was an unrepresented litigant for whom the complexities of the jurisprudence on migration law were seemingly insuperable and, with that in mind, I have allowed him a high degree of latitude in the formulation and presentation of this case. At my invitation the applicant was affirmed and he was asked to tell me in his own words what he asserted the tribunal did wrong. The exchange was as follows –
HIS HONOUR: Okay. Thanks. Mr Singh, would you please tell me in your own words what you say the tribunal did wrong in this case.
THE WITNESS: Because I – I – I told – because they – they just looking at what I done before, like they haven’t looked at – because I was working with a company with … and what happened there, when I start the work in the company I told them I’m 20 hours allow in the week. They say, “… you working – if you working all – all full day, you were working – you are working … just when you picking up job and dropping off the job. When you sitting empty, you did it sees no – you … getting anything, like …” As they show on that – on the … in the system, I … myself. If I’m standing … Working and not ending anything, that’s volunteer work. That’s not including my work. So according to me, I was working just three to four hours in the day, like pick up the job and drop it, and when I … numbers – like I got … they’re getting the job first … my time.
So that’s – that’s my way – I – I just tried to explain that … mine. They’re saying that’s not in the – not – that this is not the case. Case – totally different. So because – when I launched … my visa was … 20 days, so I spoke to it sees he cancelled my visa. He saying” you’ve got just 20 days, so … I give you – I’ll give you … 457, so stay with your wife, and when the immigration staff give you the visa, they can … they can give you these or not.” When they – they – when they issue of these to my wife and my son, not to me, then I apply for the MRT.
HIS HONOUR: Is that another way of saying that – and correct me if I’m wrong – that on your version of events the tribunal incorrectly construed that working requirements under the relevant public interest criterion?
MR SINGH: Get that – sorry. Yes. I think so – something misunderstanding at that – that time.
HIS HONOUR: Okay.
It was not possible to distil from that exchange precisely what jurisdictional error he said the tribunal had committed.
An examination of his grounds of review did not take the matter further. None of the grounds was the subject of particulars. It was not possible to tell what matters of fact or law on which he relied to show the existence of jurisdictional error. Commonly, although not exhaustively, jurisdictional error is demonstrated by showing that the tribunal –
a)identified a wrong issue;
b)asked itself a wrong question;
c)ignored relevant material;
d)relied on irrelevant material; or
e)in some instances, made an erroneous finding or reached a mistaken conclusion
Leading cases in the High Court such as Craig v State of South Australia[1] and Minister for Immigration and Multicultural Affairs v Yusuf[2] have so held. Yet those are illustrations only of the ambit of jurisdictional error, as was held in MZABP v Minister for Immigration and Border Protection and Ors[3] and it is neither possible nor necessary to attempt to mark the metes and bounds of jurisdictional error as the categories in Craig do not provide a rigid taxonomy of jurisdictional error, as the High Court pointed out in Kirk & Anor v Industrial Court of New South Wales & Anor.[4]
[1] (1995) 184 CLR 163
[2] (2001) 206 CLR 323
[3] (2015) 242 FCR 585
[4] (2010) 239 CLR 531
A substantial body of learning in the Federal Court of Australia has held that the ground of review of a tribunal decision that is expressed at such a level of generality as to be meaningless renders the entire proceeding amenable to dismissal. Cases among that body of learning include WZATH v Minister for Immigration and Border Protection,[5] BHK15 v Minister for Immigration and Border Protection,[6] AQN15 v Minister for Immigration & Anor[7] and WZAVW v Minister for Immigration and Border Protection.[8] Applying those authorities, unparticularised assertions about the existence of error render this proceeding amenable to dismissal for the simple reason that it was not possible to tell from the grounds what contentions the applicant was making.
[5] [2014] FCA 969
[6] [2016] FCA 569
[7] [2016] FCA 571
[8] [2016] FCA 760
Next, judicial review of the tribunal’s decision involves examining the reasoning of the tribunal, not the reasoning of the delegate. So much was the upshot of the Full Court’s decision in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs.[9]
[9] (2004) 139 FCR 344
The applicant did not number the paragraphs of the grounds of his application, so in these reasons I have attempted to describe the relevant ground by reference to its content.
In the first paragraph the applicant spoke of the delegate’s refusal of his visa application. That was not proper ground of review. It was instead an historical statement.
In the second paragraph the applicant recited that the department refused to grant the visa. That was true. However, the paragraph was not proper ground of review.
The third paragraph contained a statement of submissions. It related to the delegate’s investigations. Those matters addressed by the delegate were not pertinent to judicial review of the tribunal’s decision. In any event, the tribunal made its own independent assessment of the applicant’s claims when it undertook a merits review.
The fourth paragraph recited how the applicant sought review of the delegate’s decision. That was true. He did. But the paragraph was not a proper ground of review
In the fifth paragraph, the applicant asserted he was not satisfied with the delegate’s decision as well as the tribunal’s decision. He gave no details of his basis of dissatisfaction. But his satisfaction or otherwise with the tribunal’s decision told nothing of his contentions about the existence of jurisdictional error.
The legal representatives of the minister quite properly analysed the applicant’s grounds of review with a view to defining the existence of jurisdictional error. Two possible bases were unearthed, namely –
a)whether the tribunal fell into error of the sort that could be correctly characterised as jurisdictional error; and
b)whether the applicant was given procedural fairness and natural justice.
In undertaking the analysis of whether the tribunal fell into jurisdictional error, the minister’s solicitors contended that the tribunal correctly applied the law. Specifically, they said the tribunal –
a)correctly found that the applicant was affected by a risk factor of the type canvassed in PIC 4013(2);
b)correctly examined PIC 4013(1)(a) and (b); and
c)correctly examined the phrases “compelling” and “compassionate” where used in PIC 4013
On the last mentioned point, the minister’s solicitors referred to and relied upon a number of decided cases in which the phrases “compelling” or “compassionate” had been considered. Those included Plaintiff M64/2015 v Minister for Immigration and Border Protection,[10] Babicci v Minister for Immigration and Multicultural and Indigenous Affairs and Another,[11] Paduano v Minister for Immigration and Multicultural and Indigenous Affairs and Anor,[12] Thongpraphai v Minister for Immigration & Multicultural Affairs,[13] MZYPZ v Minister for Immigration and Citizenship[14] and Minister for Immigration and Citizenship v Khadgi.[15]
[10] (2015) 258 CLR 173
[11] (2005) 141 FCR 285
[12] (2005) 143 FCR 204
[13] [2000] FCA 1590
[14] [2012] FCA 478
[15] (2010) 190 FCR 248
But that list is not exhaustive. To it must be added Waensila v Minister for Immigration and Border Protection and Anor.[16]
[16] (2016) 241 FCR 121
The minister’s solicitors also correctly brought to my attention that the tribunal considered whether the applicant satisfied PIC 4013(1)(b). When undertaking that task, the tribunal considered, if the applicant was required to depart Australia, whether the following persons would be affected –
a)the person the applicant called his uncle to whom the applicant provided moral support;
b)the applicant’s son; and
c)the applicant’s wife’s employer.
The tribunal also addressed the document described as the support letter and recorded that the letter did not state how, if at all, the applicant’s employer would be adversely affected if the applicant was required to depart from Australia.
I agree with the minister’s submission that the tribunal did not err in its consideration of PIC 4013. A useful discussion about PIC 4013 is to be found in the decision of Buchanan J in Zhang v Minister for Immigration and Citizenship.[17]
[17] [2009] FCA 1355
As to the suggestion that the applicant’s grounds of review raised an allegation that the tribunal failed to provide procedural fairness to the applicant, in my view there was no merit in that proposition. Several things must be set on this point. First, it must be observed that Division 5 Part 5 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Next, under s.361 of the Act, an applicant is entitled to notify the tribunal in writing that the applicant wants the tribunal to obtain evidence from a particular person. In this case, the response to hearing invitation said nothing in that regard. True, Mr Slattery attended the hearing but no notice of his evidenced as required by s.361(2) was given. But even if a valid written notification had been given that the applicant wanted the tribunal to hear from Mr Slattery with his viva voce evidence it would have been perfectly proper for the tribunal to have chosen not to take evidence from Mr Slattery. That is for the simple reason that it is a matter for the tribunal to decide whether to take evidence from a person having regard to the relevance of that person’s evidence and the potential importance to the outcome of the review of that person’s evidence. The Full Court decision in Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin[18] and the Federal Court of Australia’s decision in BTF15 v Minister for Immigration and Border Protection[19] both stand for that proposition. In this case, the tribunal’s reasons explained Mr Slattery’s evidence was not relevant to any issue on review because it related to the circumstances surrounding the cancellation of the student visa previously held by the applicant.
[18] [2005] FCAFC 118 (at [38])
[19] [2016] FCA 647
Three other matters must not be forgotten. First, the applicant appeared before the tribunal with his own representative, assisted by an interpreter. Second, on and from his receipt of the department’s letter dated 2 July 2014 the applicant was on notice that he needed to demonstrate compliance with cl.457.325 of Sch.2 to the Regulations. He failed do so. He was unable to rely on the observations of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[20] Third, in my view the tribunal did not contravene s.359A of the Act because the tribunal’s findings were based on either –
a)its subjective appraisals, thought processes and considerations of the applicant’s submissions and did not involve a rejection, denial or undermining of the applicants claims, in respect of which I rely on the observations of the High Court in SZBYR v Minister for Immigration and Citizenship;[21] or
b)material the applicant himself gave to the tribunal or the department thereby engaging the exception to s.359A of the Act, the exception being found in s.359A(4)(a) or in s.359A(4)(ba) of the Act.
[20] (2006) 228 CLR 152
[21] [2007] HCA 26
Conclusion
In my view this application for judicial review failed. I dismiss the proceeding and order the applicant pay the minister’s costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 8 June 2018
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