Singh v Minister for Immigration

[2017] FCCA 1934

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1934

Catchwords:
MIGRATION – Bridging visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by not advising date of interview in their invitation to attend interview – was the applicant afforded procedural fairness – whether the Tribunal failed to fairly assess the facts of the case – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cll.051.211, 050.212, 050.222 in sch.2

Applicant: AMARDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2310 of 2016

Judgment of: Judge Smith

Hearing date: 13 July 2017

Date of Last Submission: 13 July 2017

Delivered at: Sydney

Delivered on: 13 July 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms A. Wong, Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2310 of 2016

AMARDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 27 July 2016.  The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a bridging visa.  In order to succeed in his application, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error.  The applicant applied for a student visa on 19 November 2014.  That application was refused by a delegate of the Minister on 13 January 2015 and the applicant applied to the Migration Review Tribunal[1] for review of that decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The Tribunal affirmed the decision of the delegate on 2 November 2015.  On 1 December 2015, the applicant made an application to this Court for judicial review of that decision.  In order to enable him to pursue those proceedings, the applicant then applied for a bridging visa.  That application was lodged on 4 December 2015.  In order to be granted that visa, the Minister had to be satisfied that the criteria for the grant of the visa was satisfied by the applicant.  One of the criteria for the grant of the bridging visa was found in cl.050.222 in sch.2 to the Migration Regulations 1994 (Cth), which I set out below:

   050.222

   (1)Unless subclause (2), (3) or (4) applies, the applicant has been interviewed by an officer who is authorised by the Secretary for the purposes of this clause.

   (2)This subclause applies if:

   (a)the applicant is not in immigration detention; and

   (b)the applicant has made a valid application for a substantive visa; and

   (c)the applicant holds a Bridging E (Class WE) visa; and

   (d)the applicant is not seeking to be granted a further Bridging E (Class WE) visa that is subject to conditions other than those that apply to the Bridging E (Class WE) visa that the applicant currently holds.

   (3)This subclause applies if:

   (a)an officer who is authorised by the Secretary for the purposes of this clause was not available to interview the applicant:

   (i)     at the time of application; or

   (ii)     if the bridging visa could be granted under regulation 2.21B, at the time of decision; and

   (b)the applicant is not in immigration detention; and

   (c)the applicant has made a valid application for a substantive visa; and

   (d)the applicant has previously held, but does not currently hold, a Bridging E (Class WE) visa.

   (4)This subclause applies if the applicant is a person:

   (a)to whom subclause 050.212(4AAA) applies; or

   (b)to whom subclause 050.212(4AB) continues to apply.

3. Further to cl.050.222, sub-cll.052.212(4AAA) and (4AB) of the Regulations state:

   050.212

   …

   (4AAA)An applicant meets the requirements of this subclause if the applicant has applied for:

   (a)a declaration from a court that the Act does not apply to the applicant; or

   (b)judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act 2007;

   and the proceedings for the declaration or review have not been completed.

   …

   (4AB)An applicant meets the requirements of this subclause if the applicant is:

   (a)a member of the immediate family of a person who meets the requirements of subclause (4AAA); or

   (b)a brother or sister who has not turned 18, of a person who:

   (i)meets the requirements of subclause (4AAA); and

   (ii)has not turned 18.

4. On 11 December 2015, a delegate of the Minister wrote to the applicant at the address given by the applicant in his visa application.

   …

   Thank you for the application Form 1005 lodged on 4/12/15.

   Subclause 050.222 of Schedule 2 of the Migration Regulations sets out which applicants for a Bridging Visa E must be interviewed. An interview by an officer of the NSW Community Status Resolution Section is one of the legal requirements to be met for an application for a Bridging Visa E to be assessed.

   This requirement applies to the applicant. Applicants must present in person to NSW Community Status Resolution.

   The applicant is required to attend an interview at:

   NSW Community Status Resolution

   
   

   Level 4, 26 Lee Street

   
   

   Sydney NSW 2000

   If the applicant:

   (a)holds a visa, they should attend before the expiry of the Bridging Visa E they hold;

   (b)does not hold a visa, they should attend as soon as they receive this letter;

   (c)does not attend the interview, a decision will be made on the application after 25^th December 2015.

   Please bring this letter, together with the following documents:

   *Evidence that the applicant is living at the current residential address stated eg electricity, gas, telephone or water bills, car insurance, rental receipts, recently dated and postmarked letters etc addressed to the applicant at the current address, other than the applicant’s driver’s licence.

   *The applicant’s passport and/or other I.D.

   If the applicant attends the office, a decision on the bridging Visa E application will be made after the interview.

   …

   (Emphasis in original)

5. The applicant did not attend at the Department for an interview and on 6 January 2016, the delegate made a decision to refuse to grant the applicant a bridging visa.  The delegate explained that:

   As the client has not been interviewed by an authorized officer he therefore does not satisfy 050.222(1) of the Migration Regulations 1994 (the Regulations).

6. The applicant then applied to the Tribunal for review of the delegate’s decision.  The applicant attended a hearing conducted by the Tribunal on 27 July 2016.  At the hearing, the applicant explained that he had received the letter about the interview, that is, the letter dated 11 December 2015, but he thought that he would receive a letter with the date and time of the interview.  When he was asked by the Tribunal why he did not contact the Department and make inquiries about the interview, the applicant said that it was a holiday.

7. The Tribunal noted that the letter was sent on 11 December 2015 and that there were working days before the public holiday.  The Tribunal also noted that, as the decision was not made until 6 January 2016, the applicant had an opportunity after the holiday period to contact the department.  The applicant said that it was his fault.  He thought he might have been interviewed by an officer in November 2015, but confirmed he had not been interviewed by an authorised officer since making his application.

8. The Tribunal made its decision on 27 July 2016 affirming the decision of the delegate. The Tribunal found that sub-cll.050.222(2), (3), (4AB) and (4AAA) did not apply to the applicant and that the applicant had not been interviewed by an authorised officer for the purpose of his bridging visa application. For that reason, the Tribunal found that the applicant did not meet cl.050.222. In addition, as a consequence, it found that the applicant did not satisfy the criteria of the grant of a Bridging E (class WE) visa.

9. The Tribunal also considered the criteria for the ground of a subclass 051 (Bridging (Protection Visa Applicant)) visa and found that the applicant did not meet those criteria because he was not a relevant eligible non-citizen: see cl.051.211.  For those reasons, the Tribunal affirmed the decision of the delegate.

10. The grounds of the application filed by the applicant are as follows:

    1.I applied for student visa, which was refused by DIBP. I applied for AAT review, which was also refused. I applied for judicial review and sent Form 1005 to get bridging visa E. DIBP sent me a letter for interview without indicating the date of interview. I kept waiting for date of interview.

    2.I was shocked to know that irrespective of my appeal in judicial court, my bridging visa application was refused.

    3.I applied to AAT for review but AAT failed to understand my genuine arguments.

    4.AAT could have interviwed me and grant me bridging visa E but AAT did not look my case favourably.

    5.I applied for AAT review and my application was refused. I had great expectation from administrative appeals tribunal but AAT did not take my circumstances in to consideration and just refused my application.

    6.I believe the facts of my case and my situation were not fairly assessed by the AAT and that this has resulted in an unfavourable outcome for me.

    7.I believe I was dealt with unfairly and I would like to lodge a judicial review application because I believe that the AAT did not follow all legislative requirements and did not act in a fair manner in finalising my refusal decision.

    (Errors in original)

11. The applicant first complains that the letter dated 11 December 2015 did not indicate the date of the interview.  However, that does not mean that the Tribunal fell into jurisdictional error.  First, there is no requirement for any invitation to a particular interview at a particular date, time or place for the purposes of an application for a bridging visa.  Secondly, and in any event, the letter dated 11 December 2015, made it very clear that the applicant had to attend for an interview as soon as he received the letter and that if he did not attend an interview, the decision would be made after 25 December 2015.

12. The fact that the applicant did not attend such an interview was the basis of the Tribunal’s decision and, given that sub-cll.050.222(2), (3) and (4) did not apply to the applicant, that fact was fatal to the applicant’s application for review.  There was no jurisdictional error made by the Tribunal in respect of that aspect of its decision. 

13. The applicant also complains variously that the Tribunal failed to understand the applicant’s arguments, did not take his circumstances into consideration, that the Tribunal did not fairly assess the facts of his case, and that he was dealt with unfairly.

14. None of those complaints has any basis in the material before the Court.  The Tribunal’s statement of reasons sets out each of the matters told to the Tribunal by the applicant in connection with his review application.  Importantly, the Tribunal also included the applicant’s concession that he had not, in fact, attended the interview with an authorised officer.  The Tribunal took all of those matters into account and, as I have said, its conclusion that the applicant, on his own evidence had not attended the interview, led inevitably to the decision to affirm the decision of the delegate.

15. There was nothing unfair in the process by which the Tribunal came to this conclusion. If the applicant considers that the outcome itself was unfair, that is not a matter which can justify any interference in the Tribunal’s decision.  This Court is concerned only with the legality of the Tribunal’s decision and not with any apparent injustice incurred as a result of the decision itself. 

Conclusion

1. For those reasons, there is no jurisdictional error in the Tribunal’s decision.  The application must be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  16 August 2017