Singh v Minister for Immigration - [2015] FCCA 509

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 509

Catchwords:
MIGRATION – Whether migration agent engaged in fraud – whether fraud gave rise to jurisdictional error – whether no valid visa application – where applicant not eligible nor ever would be eligible for visa sought in application – effect of s.48 – whether relief sought futile – whether utility pre-requisite to establishment of jurisdictional error – whether Court has jurisdiction to hear and determine application for judicial review – no jurisdiction.

Legislation:

Migration Act 1958 (Cth), ss.476, 46, 349(1), 48, 46, 47, 65 and 338, 476(1), 5, 476(2)(a), 474, 474(5), 474(6), 195A, 46A

Migration Regulations 1994 (Cth), rr.2.17(4), 2.07(4), cl 485.221(1), cl485.224 of Sch 2

Minister for Immigration and Border Protection v Kim [2014] FCAFC 47
Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Lansen v Minister (2008) 174 FCR 14
Plaintiff M 61/2010E v the Commonwealth (2010)
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476
SZSRY v Minister for Immigration and Citizenship [2013] FCCA 1284
MZYLE v Minister for Immigration and Citizenship [2011] FMCA 589
Minister v Bhardwaj (2002) 209 CLR 597

Applicant:

MOHINDER PAL SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1966 of 2013

Judgment of:

Judge Jones

Hearing date:

19 December 2014

Date of Last Submission:

13 February 2015

Delivered at:

Melbourne

Delivered on:

11 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr Aleksov

Solicitors for the Applicant:

Ravi James Lawyers

Counsel for the Respondent:

Mr O'Donnell

Solicitors for the Respondent:

Sparke Helmore Lawyers

ORDERS

The Application for judicial review made on 15 November 2013 and the Amended Application for judicial review made on 27 March 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1966 of 2013

MOHINDER PAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

Mr Mohinder Pal Singh (“the applicant”) has applied for judicial review pursuant to s.476 of the. Migration Act 1958 (Cth) (“the Act”) of a decision of the Migration Review Tribunal (“the Tribunal”) dated 14 October 2013 affirming a decision of a delegate of the first respondent made on 16 April 2012 refusing to grant the applicant a Skilled (Provisional) (Class VC) visa (“the visa”).
The ground for judicial review pressed by the applicant at the hearing of this application is that jurisdictional error arose because there was no valid visa application within the meaning of s.46 of the Act:
a)because of fraud engaged in by the applicant’s original migration agent; and
b)because the application did not comply with r 2.07(4) of the Migration Regulations 1994 (Cth) (“the Regulations”).
The relief sought by the applicant is:[1]
a)Prohibition against the first respondent (the Minister), restraining him from acting on the decision of the second respondent (dated 14 October 2013 ); and
b)Certiorari to quash the purported…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 509
Decision Date: 11 March 2015

CaseChat Overview and Summary

In this matter before Judge Jones, the applicant, Mr. Singh, sought judicial review of a decision made by the Migration Review Tribunal. The core of the dispute concerned whether the Tribunal's decision was susceptible to review by the Court, given the operation of certain provisions within the Migration Act 1958 (Cth) concerning "privative clause decisions."

The legal issues before the Court were whether the Tribunal's decision constituted a "migration decision" within the meaning of the Act, and if so, whether it was a "privative clause decision" that would oust the Court's jurisdiction. Specifically, the Court had to determine if the applicant's contention that there was no valid visa application under s.46 of the Act, if established, would amount to a jurisdictional error that rendered the Tribunal's decision reviewable, notwithstanding the privative clause provisions.

The Court reasoned that its jurisdiction to grant constitutional and ancillary relief in migration matters is conferred by s.476(1) of the Act, which grants it the original jurisdiction of the High Court under s.75(v) of the Constitution. This jurisdiction is confined to judicial review "in relation to migration decisions." The Court noted that a migration decision affected by jurisdictional error is not a "privative clause decision" because it is not considered a decision made "under the Act" for the purposes of s.474(2). Such decisions remain susceptible to judicial review, as the privative clause provisions do not protect decisions involving jurisdictional error or oust the constitutional jurisdiction. The Court observed that the applicant's substantial application, alleging no valid visa application under s.46, did not fall within the exceptions specified in s.474(4) or s.474(5) of the Act. Therefore, for the Court to exercise its jurisdiction, it needed to be satisfied that the Tribunal's decision was affected by jurisdictional error.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

S.474(2) of the Act provides:(2) In this section: "privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). S.474(4) specifies decisions which are non-privative clause decisions by reference to specified sections of the Act. s.474(5) provides that the regulations may specify a decision or class of decisions which are not privative clause decisions. S.474(6) confirms that decisions falling within subsection (4) and (5) are non-privative clause decisions. S.476(1) confers on the Court the original jurisdiction of the High Court under s.75(v) of the Constitution “in relation to migration decisions”. Thus, the jurisdiction of the Court to grant constitutional and ancillary relief is confined to circumstances where the Court exercises its powers of judicial review “in relation to a migration decision.” Section 75(v) of the Constitution provides that:In all matters –…(v)In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:the High Court shall have original jurisdiction. The jurisdiction given to this Court in migration matters is therefore the original jurisdiction of the High Court under s.75(v) of the Constitution to issue a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth. S. 476(2) provides that the Court has no jurisdiction in relation to a privative clause, purported privative clause or a primary decision (which includes a decision of a delegate of the Minister). It is well-established that a migration decision which is affected by jurisdictional error is not a privative clause decision as it is not a migration decision made under the Act and is, consequently, susceptible to judicial review. The privative clause provisions of s.474, do not protect decisions involving jurisdictional error or oust the jurisdiction conferred by s.75(v) of the Constitution: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 508 [83: Plaintiff S157. The exercise of power by the Court is, therefore, conditioned by the existence of jurisdictional error affecting the decision of the Tribunal (being a decision, which is not a primary decision, of an administrative character made under the Act). S. 474(4) specifies decisions which are non-privative clause decisions by reference to specified sections of the Act. The applicant’s substantial application is that there was no valid visa application under s.46 of the Act. This section is not one specified under s.474(4). Nor is it the case that the regulations provide that decisions made under s.46 are non- privative clauses: s.474(5). The applicant’s substantial application, therefore, requires the Court to be satisfied that the Tribunal’s decision was affected by jurisdictional error.

Ratio Decidendi

Legal Principle Established

S.5 of the Act provides that:"migration decision" means: (a) a privative clause decision; or (b) a purported privative clause decision; or (c) a non-privative clause decision. and"privative clause decision" has the meaning given by subsection 474(2). and"purported privative clause decision" has the meaning given by section 5E. and "non-privative clause decision" has the meaning given by subsection 474(6). S.5E sets out the meaning of “purported privative clause decision as:(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not: (a) a failure to exercise jurisdiction; or (b) an excess of jurisdiction; in the making of the decision. (2) In this section, decision includes anything listed in subsection 474(3). S.474(2) of the Act provides:(2) In this section: "privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). S.474(4) specifies decisions which are non-privative clause decisions by reference to specified sections of the Act. s.474(5) provides that the regulations may specify a decision or class of decisions which are not privative clause decisions. S.474(6) confirms that decisions falling within subsection (4) and (5) are non-privative clause decisions. S.476(1) confers on the Court the original jurisdiction of the High Court under s.75(v) of the Constitution “in relation to migration decisions”. Thus, the jurisdiction of the Court to grant constitutional and ancillary relief is confined to circumstances where the Court exercises its powers of judicial review “in relation to a migration decision.” Section 75(v) of the Constitution provides that:In all matters –…(v)In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:the High Court shall have original jurisdiction. The jurisdiction given to this Court in migration matters is therefore the original jurisdiction of the High Court under s.75(v) of the Constitution to issue a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth. S. 476(2) provides that the Court has no jurisdiction in relation to a privative clause, purported privative clause or a primary decision (which includes a decision of a delegate of the Minister). It is well-established that a migration decision which is affected by jurisdictional error is not a privative clause decision as it is not a migration decision made under the Act and is, consequently, susceptible to judicial review. The privative clause provisions of s.474, do not protect decisions involving jurisdictional error or oust the jurisdiction conferred by s.75(v) of the Constitution: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 508 [83: Plaintiff S157.