FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3343 |
| Catchwords: MIGRATION – Judicial review of decision of Migration Review Tribunal (Tribunal) not to grant the applicant Skilled (Residence) (Class VB) Subclass 885 visa (885 visa) – whether Tribunal failed to consider medical certificates and applicant’s medical condition when determining whether to grant applicant time to take a further IELTS test – whether the Tribunal acted unreasonably in deciding not to give the applicant further time to take another IELTS test – whether information the Tribunal obtained from a third party the substance of which the Tribunal disclosed to the applicant was information to which s.359A of the Migration Act 1958 (Cth) applied – whether in finding the applicant had not been honest with the Tribunal and relying on that finding not to give the applicant further time to take another IELTS test the Tribunal was obliged to give the applicant notice of the possibility that it might make such finding – whether by failing to give such notice the Tribunal made a jurisdictional error – jurisdictional error found. |
| Legislation: Migration Act 1958 (Cth), s.353, 353(1), 357A(1), 357A(3), 359A, 359A(1), 360, 360(1), 363, 363(1)(b), 424A, 425, 425(1) Migration Regulations 1994 (Cth), reg.1.15C(1) |
| Applicant: | SULTAN SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2446 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 24 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| Applicant in person with the assistance of Mr Jamal, with leave of the Court. |
| Solicitors for the Respondents: | Mr M Glavac of Clayton Utz |
ORDERS
The decision of the second respondent made on 29 July 2014 affirming the decision of the delegate of the first respondent made on 17 January 2014 not to grant the applicant a Skilled (Residence) (Class VB) Subclass 885 visa (885 visa) is quashed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Migration Review Tribunal to review the…
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Details
- Case
- [2016] FCCA 3343
- Decision Date
CaseChat Overview and Summary
This decision concerns an appeal by Mr. Singh against a decision of the Minister for Immigration. The core of the dispute revolved around the conduct of the Administrative Appeals Tribunal (the Tribunal) in relation to Mr. Singh's application and the Tribunal's obligations under the relevant legislation. The matter was heard by Judge Manousaridis.
The legal issues before the court included whether the Tribunal had failed to accord Mr. Singh procedural fairness, particularly in its exercise of the power to refuse an adjournment under section 363(1)(b) of the Act. A further issue was whether such a failure would constitute jurisdictional error and, consequently, affect the validity of the Tribunal's decision. The court also considered the interplay between section 357A of the Act and the Tribunal's duty to ensure a fair hearing.
The court's reasoning, drawing on the plurality's judgment in *Minister for Immigration and Citizenship v Li*, established that the Tribunal's duty under section 360(1) to invite an applicant to appear and present evidence and arguments is fundamental. An unfair exercise of the power to refuse an adjournment, without according procedural fairness, would frustrate this purpose and lead to jurisdictional error. The court held that a failure to accord procedural fairness in refusing an adjournment would mean the Tribunal's decision was not "fair and just" under section 357A(3), thus not preventing the Tribunal from being under a duty to accord procedural fairness. Specifically, the Tribunal was required to identify critical issues not apparent from the Act or the material, and to advise of any adverse conclusions that were not obvious.
The legal issues before the court included whether the Tribunal had failed to accord Mr. Singh procedural fairness, particularly in its exercise of the power to refuse an adjournment under section 363(1)(b) of the Act. A further issue was whether such a failure would constitute jurisdictional error and, consequently, affect the validity of the Tribunal's decision. The court also considered the interplay between section 357A of the Act and the Tribunal's duty to ensure a fair hearing.
The court's reasoning, drawing on the plurality's judgment in *Minister for Immigration and Citizenship v Li*, established that the Tribunal's duty under section 360(1) to invite an applicant to appear and present evidence and arguments is fundamental. An unfair exercise of the power to refuse an adjournment, without according procedural fairness, would frustrate this purpose and lead to jurisdictional error. The court held that a failure to accord procedural fairness in refusing an adjournment would mean the Tribunal's decision was not "fair and just" under section 357A(3), thus not preventing the Tribunal from being under a duty to accord procedural fairness. Specifically, the Tribunal was required to identify critical issues not apparent from the Act or the material, and to advise of any adverse conclusions that were not obvious.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The plurality then said that the “duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example”.[49] After explaining the nature and purpose of the Tribunal’s obligations under s.360 of the Act, the plurality said (emphasis added):[50]It is not necessary to determine what s 357A(3) requires and what may be the consequence of a breach of that provision. Even if s 357A(3) by itself has no consequence for the ultimate decision of the Tribunal, to affirm the delegate's decision, it might nevertheless be concluded that the purpose of s 360(1) was not met. Without Ms Li being provided an opportunity to present her further evidence, it might be concluded that the hearing contemplated did not take place. It is not necessary to determine the appeal on this basis, since there is a more direct route to its resolution, by reference to s 363(1)(b) and a requirement of the law.[49] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [60][50] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [62] In my opinion, the effect of this part of the plurality’s judgment is that an unfair exercise by the Tribunal of the power under s.363(1)(b) of the Act not to grant an adjournment would lead to the applicant’s being denied that which s.360(1) of the Act confers, namely, an opportunity to appear before the Tribunal to give evidence and present arguments. That, in turn, will result in the Tribunal’s decision being affected by jurisdictional error. In my opinion, a failure by the Tribunal to accord an applicant procedural fairness when exercising the power under s.363 of the Act would not be “fair and just” within the meaning of s.357A(3) of the Act; and s.357A(1) of the Act would not, therefore, prevent the Tribunal from coming under a duty to accord an applicant procedural fairness. It therefore follows that if, in the exercise of the power conferred by s.363(1)(b) of the Act, the Tribunal were to refuse to grant an applicant an adjournment without according the applicant procedural fairness, the purpose of s.360 of the Act will not be met because the applicant will be denied the opportunity conferred by s.360 to appear before the Tribunal. I have so far concluded that, ignoring s.357A(1) of the Act, the Tribunal would be under a duty to accord the applicant procedural fairness before deciding not to grant the applicant further time; and that, because of s.357A(3) of the Act, s.357A(1) did not abrogate that duty. The next question, then, is whether the Tribunal accorded the applicant procedural fairness when it made a finding based, in part, on its conclusion that the applicant had not been honest with the Tribunal. That, in the first instance, depends on what, in the circumstances of this case, the Tribunal was required to do to accord the applicant procedural fairness. In my opinion, the Tribunal was required, at the very least, to identify to the applicant any issue that was critical to its decision not to grant the applicant further time that was “not apparent from its nature or the terms of the” Act under which the Tribunal made its decision; and it was required to “advise of any adverse conclusion which” it may have arrived at “which would not obviously be open on the known material”.[51][51] Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at pages 591-592; quoted with approval in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]
Ratio Decidendi
Legal Principle Established
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