Singh v Minister for Immigration

[2015] FCCA 556

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 556

Catchwords:
MIGRATION – Review of decision of Migration Review Tribunal – application for skilled visa – denial of procedural fairness – applicant denied adjournment to have face to face hearing with Tribunal – was adjournment unreasonably withheld – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.474; 476(1); 476(2)

Migration Regulations 1994, r.572

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kruger v Commonwealth (1997) 190 CLR 1
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Applicant: MANINDERBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 194 of 2014

Judgment of: Judge Brown

Hearing date: 16 February 2015

Date of Last Submission: 16 February 2015

Delivered at: Adelaide

Delivered on: 26 March 2015

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not applicable

Counsel for the Respondents: Mr Tredrea

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 4 June 2014 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3,239.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 194 of 2014

MANINDERBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in these proceedings is Maninderbir Singh.  He seeks the judicial review of a decision made by the second respondent, the Migration Review Tribunal “the MRT”, which affirmed an earlier decision of a delegate of the first respondent, the Minister for Immigration & Border Protection “the Minister”, not to grant him a Student (Temporary) (Class TU) visa pursuant to the Migration Act, 1958 (Cth) “the Act”.  The applicant seeks that this decision be quashed. 

2. The legal principles applying to applications of this type are complex.  I will do my best to explain them.  In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did. 

3. Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. 

4. Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Migration Review Tribunal.  Part VIII of the Act deals with judicial review.  Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions. 

5. Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the MRT by way of a writ of certiorari, which is what, in effect, the applicant seeks. 

6. However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions.  A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[1] 

   [1]  See Migration Act at section 5

7. Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.

8. Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision. As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act.

9. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[2]

   [2]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

10. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[3]

    [3]  See Craig v South Australia (1995) 184 CLR 163

11. As previously indicated, jurisdictional error is a complex concept.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction. 

Background

1. Mr Singh is a citizen of India.  Between July 2008 and July 2011, he undertook a course of study, at the Cambridge International College in Adelaide, in the field of community welfare work.  However, he did not complete all of his necessary field work required to complete the diploma.

2. On 27 October 2011, he applied for the visa relevant to these proceedings, which is a Student (Temporary) (Class TU) visa.  In his application, he nominated as his intended course of study a diploma of hospitality, which was to be undertaken at the Salford College, Adelaide between 1 August 2011 and 1 August 2013.

3. On 19 July 2011, Cambridge International College wrote a letter entitled Letter of Release, the effect of which was that it approved the transfer of Mr Singh to another registered education provider.  The letter concluded with the advice that Mr Singh should contact the Department as to whether he needed to have a new student visa.[4]

   [4]  See case book at page 48

4. On or about this date, the Department of Education, Employment and Workplace Relations issued a confirmation that Mr Singh had transferred from one course and one education provider to another.  In bold at the top of the document in question was written the following this is not a visa and does not act as an extension of your visa. [5]

   [5]  Ibid at page 53

5. On 19 July 2011, Salford College provided the applicant with a letter of offer in its Diploma of Hospitality Course.  The commencement date of the course was 1 August 2011, with completion due on 1 August 2013.  This letter of offer has not been followed by a current certificate of enrolment, which has been provided to the MRT.

6. On 16 December 2011, a delegate of the Minister refused the application for the visa in question.  As a result, on 20 December 2011, the applicant applied to the MRT for a review of this decision.  On 7 May 2014, the Tribunal affirmed the decision not to grant the visa.  It is this decision, which is the subject of these judicial review proceedings. 

The grounds for review

1. The applicant commenced these proceedings on 4 June 2014.  They are within time.  The applicant has prepared his own application, completing the pro forma application in his own handwriting.  The grounds of the application are as follows:

   “My application for student visa was refused and I applied to the MRT for more favourable outcome but they affirmed DIBP’s decision. Now I have only hope to apply to Federal Court to get justice.  I am sure I will be given justice cos I was a genuine applicant for visa I applied.”

2. In an affidavit, filed in support of his application, the applicant has reiterated this statement.  On 4 July 2014, the proceedings were fixed for a show cause hearing on 16 February 2015.  The applicant was directed to file any submissions, he wished to make in this regard, ten days prior to this hearing.  He has not filed any such submissions.  He remains unrepresented.

3. For the hearing of 16 February 2015, the applicant was provided with a Punjabi interpreter.  To my ear, the applicant was reasonably fluent in the English language.  As such, he did not automatically utilise the assistance of the interpreter provided.  However, on occasions, I asked the interpreter to translate things said in court into Punjabi. 

4. It now seems to be the case that the applicant has two specific complaints about the hearing and subsequent decision of the MRT.  Firstly, he was denied a face to face hearing before the MRT and this constituted a breach of procedural fairness.

5. Secondly, the MRT fell into error as it did not give proper consideration to the fact that he was not actually a student for only a period of around eighteen days, which period fell between his transfer between Cambridge International College and Salford College. 

6. The Minister seeks the dismissal of the application on the basis that it does not raise an arguable case for the relief claimed. At a show cause hearing, pursuant to rule 44.12 of the Federal Circuit Court Rules, the court may dismiss an application if it is not satisfied that the application in question has raised an arguable case for the relief claimed. 

Events leading to the hearing before the MRT

1. The MRT acknowledged receipt of Mr Singh’s application for review on 21 December 2011.  On 20 January 2014, the applicant was invited to appear before the Tribunal to give evidence and present any arguments relating to issues in his case.  The date provided for this was 26 February 2014. 

2. In his invitation letter, Mr Singh was advised that the hearing would be in Melbourne and therefore, as Mr Singh lived in suburban Adelaide, arrangements would be made for him to attend the hearing by telephone.  He was asked to contact the Tribunal, if he wished to attend in person. 

3. The hearing of 26 February 2014 did not take place as Mr Singh advised that he would be in India at the time.  On this basis, the hearing was re-scheduled to 26 March 2014.  Again, Mr Singh was advised that the hearing would be by telephone but if he wished to attend in person, he should contact the Tribunal to make appropriate arrangements.

4. The hearing of 26 March 2014 did not occur either.  Mr Singh contacted the Tribunal and advised that he was once again in India and was unable to return to Australia due to an accident.  It seems to be the case that he had fractured his ankle. 

5. In these circumstances, the Tribunal agreed to a further deferral.  The date re-scheduled for the hearing was 7 May 2014.  As with the two earlier letters advising Mr Singh of the changed date, Mr Singh was told that the hearing would be by telephone from Melbourne but that if he wished to attend the hearing in person, he should contact a Tribunal officer. 

6. On 5 May 2014, Mr Singh completed a document entitled response to hearing invitation.  In this document he requested a Punjabi interpreter for the hearing of 7 May 2014.  In addition, he provided a contact telephone number on which he could be contacted. 

7. I have not been provided with a transcript of what occurred at the hearing.  The hearing itself, according to the hearing record, occupied forty-four minutes.

8. On each occasion Mr Singh was invited to appear before the Tribunal, he was requested to provide documents which were considered by the Tribunal to be relevant to his case.  These documents included the following:

   ·a copy of his current certificate of enrolment, which was said to be required for the grant of a student visa;

   ·relevant documents to evidence his current enrolment in a course or an offer of enrolment in a registered course.

The hearing before the MRT

1. The Tribunal, in its statement of decision, noted the procedural history of the matter, including the adjournments granted at the applicant’s instigation.  It also noted that the applicant had been formally required to supply a copy of his current certificate of enrolment or a document to establish that he was enrolled in a course of study or had an offer of such enrolment.

2. In this context, the Tribunal noted that the production of satisfactory documentary proof of enrolment was a mandatory pre-condition of the grant of the visa in question.  The Tribunal noted as follows:

   “If the Tribunal finds that the applicant has failed to demonstrate he is currently enrolled in, or has an offer of enrolment in a registered course, he would not meet clause 572.231 and the Tribunal would have no option other than to affirm the decision under review.”[6]

   [6]  See case book at page 128 [9]

3. Clause 572, referred to above, is contained in the Migration Regulations 1994. It applies to vocational education and training visas. Clause 572.22 stipulates criteria which are to be satisfied at time of decision.  Clause 572.231 is one such criterion.  It mandates the necessity for an applicant to be enrolled in, or the subject of a current offer of enrolment, in a course of study specified by the Minister and how that is to be established.

4. The Tribunal invited the applicant to respond to the proposition that he had not provided satisfactory proof of enrolment, either at the time of the original application for the visa in question, or at the time of the hearing before the Tribunal.  Mr Singh did not dispute the contention that he had not provided a certificate of enrolment. 

5. Rather, Mr Singh asserted that the College in question had not provided him with the document required for a variety of reasons.  These included that the College had declined to provide confirmation of enrolment until he had obtained the necessary visa and that he himself had felt uncomfortable in requesting the necessary document. 

6. The Tribunal also considered whether the applicant was a genuine applicant for entry and stay as a student in Australia.  In this context, the Tribunal had evidence which indicated that the applicant had been absent from Australia for extended periods in both 2012 and 2013. 

7. The Tribunal also noted that the applicant had not fully completed either of his courses of study undertaken at firstly Cambridge International College and more recently Salford College. It further noted that he had ceased attending Salford College in reference to his diploma of hospitality from January 2012 onwards. 

8. The Tribunal did not find the applicant to be a credible witness in regards to much of his evidence provided in this context.  The Tribunal indicated that it had concerns not only about Mr Singh’s evidence as to why he had not continued his studies but also about his history of overseas travel.

9. In all these circumstances, the Tribunal declined the applicant’s request to adjourn the proceedings in order to obtain documentary proof of enrolment in a relevant course of study.  In particular, the Tribunal rejected the applicant’s assertion that he had either not understood or not read the various invitation letters send to him, which included a request to produce such documentation.

10. It was when the Tribunal indicated to Mr Singh that it proposed to make its decision then and there to affirm the decision not to grant him the visa in question, on the basis that there was no evidence of current enrolment, that the applicant sought to adjourn the proceedings on the basis that he wished to attend a hearing in person in Melbourne.

11. In this context, the Tribunal found as follows:

    “The Tribunal noted that the hearing had been going for 40 minutes and it was only when the Tribunal alerted the applicant to the fact that it was about to make a decision that he claimed, for the first time, that he was not comfortable on the phone, notwithstanding the fact that the Tribunal had asked the applicant at the commencement of the hearing to let it know immediately if there was something he did not understand or he could not hear the Tribunal and he did, in fact, earlier confirm that he could hear the Tribunal clearly and, further, he had not at any time indicated during the hearing that he could not hear the Tribunal.  Further, the applicant did not appear to the Tribunal to have experienced any difficulty in giving his evidence.  For those reasons, the Tribunal refused the applicant’s request for an adjournment.

    The applicant claimed that he wanted to see the Tribunal face to face and show the Tribunal some documents.  He is not able to work because he has a broken ankle.  He has some documents like that; that is why he has not been going outside home.  The Tribunal noted that the applicant had been sent several hearing invitations, all of which asked him to provide any documentation that he wanted to rely on at the hearing beforehand.  The Tribunal refused the applicant’s request for an extension of time and observed that it found the applicant to be unpersuasive, unconvincing, and not a credible witness. The Tribunal then affirmed the delegate’s decision on the basis that the applicant had not given evidence that he is currently enrolled in a registered course, of [sic] has an offer of enrolment in a registered course.  The following are the reasons for the decision.”[7]

    [7]  See case book at page 132 [38] – [39]

Discussion

1. The requirement that the applicant provide the prescribed documentary proof that he was enrolled in an authorised form of vocational study was a mandatory requirement.  Neither the delegate of the Minister nor the MRT had authority to dispense with it. 

2. In the circumstances of this case, given the period of time which has elapsed since the application was initially fixed for determination and the number of requests for the production of the relevant documents, it does not seem to me to amount to any species of procedural unfairness that the Tribunal elected to proceed to finalisation of the application.

3. The applicant disagrees with many of the findings of the Tribunal regarding the circumstances surrounding his transfer of studies from Cambridge International College to Salford College and his progress at the latter institution.  Given the nature of the judicial review exercise, it is not the function of the court to substitute its own views as the applicant’s status at the College in question. 

4. In any event there is no dispute that the applicant did not provide the Tribunal with the documentary evidence that he was enrolled in an approved course of study, regardless of the fact that, on his case, he had some form of understanding with the College in question that he would be studying there, at some stage or other. 

5. The Tribunal did not accept this evidence.  In my view, the absence of the document in question and the finding of fact make in respect of it is necessarily fatal to the application herein.

6. As McHugh J observed the making of findings of fact on the credibility of any witness is a function of a primary decision maker “par excellence”.[8]  It is in this context, that the refusal of the Tribunal to adjourn the proceedings purported so that the applicant could obtain the necessary document or documents in question must be considered, particularly given that those documents were mandatory at the time of the making of the application.

   [8]  See Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]

7. In the exercise of its functions under the Act, the MRT is required to provide a mechanism of review that is fair, just, economical, informal and quick [section 353].  It is authorised adjourn reviews before it from time to time [section 363].  The power to adjourn proceedings is one which must be exercised reasonably. [9]  

   [9]  See Kruger v Commonwealth (1997) 190 CLR 1 at 36 per Brennan CJ

8. The history of the proceedings prior to the hearing of 7 May 2014 is a somewhat tortuous one.  The original review application was filed in late 2011.  Mr Singh was first invited to give evidence and provide documentation to the Tribunal on 26 February 2014, which on his request was deferred to 26 March 2014 and then 7 May 2014.

1. In each invitation letter Mr Singh was requested to provide information relating to his course enrolment.  It is common ground that he did not provide the requested documentation or ask to attend the hearing, in Melbourne, in person.

2. During the hearing, Mr Singh was asked directly why he had not provided documents relating to his enrolment.  His response was that he had not read the invitation letters properly but could provide the necessary documents next week.[10] 

   [10] See case book at page 129 [16]

3. The Tribunal declined to adjourn the proceedings to enable this to occur.  It did not accept that the applicant had not read any of the invitation letters sent to him and had so had not received and understood the request put to him.  In the circumstances which prevailed, particularly its findings regarding the applicant’s credibility, it does not appear to be unreasonable that the Tribunal declined to adjourn the proceedings.

4. The applicant made a further application for adjournment, when the proceedings in question had been on foot for approximately forty minutes.  This application occurred when the Tribunal indicated to him that it proposed finalising the review application then and there.

5. It also occurred after the applicant had successfully sought two earlier adjournment of the hearing, during none of which he had previously sought to have a face to face hearing.  The Tribunal declined the application, regarding it as spurious and a delaying tactic.

6. As previously indicated, the Tribunal has authority to adjourn proceedings from time to time.  It appears to be the applicant’s position that it was either unfair or unreasonable for the Tribunal not to adjourn the case, when he requested it to do so.

7. In Minister for Immigration & Citizenship v Li[11]under the heading Judging Unreasonableness Gageler J said as follows:

   “Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”

   [11]  See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at 256

8. Also in Li, Hayne, Kiefel and Bell JJ said as follows:

   “It cannot be suggested that the tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence.  Of course, it may decide, in an appropriate case, that ‘enough is enough’, but it is not apparent how that conclusion was reached in the present case…

9. Necessarily, it seems clear that the issue of whether it was unreasonable to refuse to adjourn proceedings or the overall reasonableness of the extent of any adjournment granted is one which must be determined by the circumstances prevailing in the individual case concerned.

10. In my view, the record of decision discloses no jurisdictional error in respect of the exercise of Tribunal’s discretion to adjourn proceedings from time to time arising under section 363.  The Tribunal had already adjourned the proceedings twice on Mr Singh’s application.

11. Mr Singh had consistently been on notice of the requirement that he provide written proof of his enrolment in an approved course of study.  He had not previously sought a face to face hearing of his application.  Rather, he had signalled his acquiescence to a telephone hearing.  In all these circumstances, it was not unreasonable for the MRT to decline his adjournment application.

12. Accordingly, I have come to the view that Mr Singh has not established that he has an arguable case for the relief sought and therefore his application should be dismissed and an order for costs made in the sum of $3,239.00.

13. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:                  26 March 2015