Singh v Minister for Immigration
[2020] FCCA 780
•8 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 780 |
| Catchwords: MIGRATION – Temporary Business Entry Visa – decision of Administrative Appeals Tribunal – failure to respond to invitation to provide information – loss of right to attend hearing – validity of invitation – whether the Tribunal erred – no error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), sch.1 |
| Cases cited: Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 |
| Applicant: | MANPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1903 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 3 December 2018 |
| Date of Last Submission: | 3 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 April 2020 |
REPRESENTATION
| The Applicant appearing in person |
| Solicitor for the First Respondent: | Ms Ward |
| The Second Respondent submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s application, dated 6 September 2016, be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1903 of 2016
| MANPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 6 September 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 5 September 2016.
The Tribunal refused the Applicant’s application for a Temporary Business Entry (Class UC) visa (Visa).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (Act). To obtain assistance from this Court, the Applicant must show jurisdictional error on the part of the Tribunal.
Factual Background
The Court had before it a Court Book numbering 142 pages. The Court has reviewed the material contained in the Court Book in detail.
The Court notes that the First Respondent’s (Minister) written submissions filed on 26 April 2017 at [3]-[12] accurately summarise the factual history of this matter. The Court adopts those submissions, with amendments, as its own. They provide, relevantly, as follows.
The Applicant, a national of India, applied for the Visa on 17 September 2013[1].
[1] Court Book (CB) 7-31.
On 11 February 2014, a delegate of the Minister (Delegate) refused the Visa application on the basis that cl.457.223(4)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was not met, because the Delegate was not satisfied that the position of “Customer Service Manager” associated with the nominated occupation was “genuine” (Delegate’s Decision)[2].
[2] CB 45-47.
On 4 March 2014, the Applicant applied for a review of the Delegate’s Decision to the then named Migration Review Tribunal, attaching various documents. These documents included a copy of the Delegate’s Decision and the related Department Nomination Application Refusal Notice, dated 11 February 2014[3].
[3] CB 48-75.
The Applicant was represented by a migration agent before the Migration Review Tribunal[4].
[4] CB 55.
On 2 April 2015, the Migration Review Tribunal found that it did not have jurisdiction in the matter (First Tribunal Decision)[5].
[5] CB 97-99.
On 1 May 2015, the Applicant applied for judicial review of the First Tribunal Decision in this Court. The matter was remitted back to the Tribunal by orders of the Court made by consent on 6 June 2016. Those orders noted that the Migration Review Tribunal had erred in finding it had no jurisdiction to review the Delegate’s decision on the basis of the decision in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182[6].
[6] CB 109-110.
On 21 June 2016, the Tribunal contacted the Applicant and confirmed that his contact details were still the same as those that he had previously provided when his matter was before the Migration Review Tribunal. The Applicant also confirmed that he no longer had a migration agent[7].
[7] CB 117.
On 12 August 2016, the Tribunal sent an invitation letter (Invitation) to the Applicant at his personal email address (Yahoo Email Address) which provided as follows[8]:
[8] CB 114-116.
INVITATION TO PROVIDE INFORMATION - MR MANPREET SINGH
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Temporary Business Entry (Class UC) visa.
Your application was refused by a delegate who was not satisfied that the position associated with your nominated occupation was genuine. The delegate accordingly determined that you did not meet the requirements contained within clause 457.223(4)(d) of Schedule 2 to the Migration Regulations 1994 (Cth).
[…]
You are invited to provide the following information in writing:
• Information demonstrating that you are the subject of an approved nomination by a standard business sponsor in accordance with clause 457.223(4)(a).
The information should be received by 26 August 2016. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 26 August 2016, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us before 26 August 2016 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
(Emphasis in original)
The Applicant did not provide a response to the Invitation and did not make any request for an extension of time within which to respond to the Invitation.
On 30 August 2016, the Tribunal wrote to the Applicant, by way of an email sent to the Yahoo Email Address, advising the Applicant that he had lost his right to attend a hearing. However, the Tribunal gave the Applicant until 2 September 2016 to provide any further information in support of his Application[9].
[9] CB 119.
On 2 September 2016, the Applicant contacted the Tribunal by telephone claiming that he had not received the Invitation[10]. Later that day, the Applicant sent an email to the Tribunal attaching a letter of offer for the position of “Customer Service Manager” with his former nominating employer. The Applicant’s email did not provide the Tribunal with any evidence of an approved nomination of an occupation as the Tribunal requested in the Invitation[11]. The Applicant’s email stated, as follows:
[…] I am writing this email regards My AAT application, as per your last email , I have lost my hearing rights. But reality is ,i didn receive any email on 12 august 2016. I have checked my junk and inbox. if i would have received it, i would have replied like today.
I am not sure what is the truth.
I spoke my 7 eleven boss and he has signed me a new offer of letter. And we spoke about my future with their company. He is more than happy to sponsor me as he was 3 years ago.
Please find the new offer of letter […][12]
(Without alteration)
[10] CB 118.
[11] CB 119.
[12] CB 119.
Tribunal Decision
The Tribunal’s decision appears at pages 128-131 of the Court Book (Tribunal Decision).
At [1]-[5] in its decision, the Tribunal provided a brief factual history of the matter.
As to the remainder of the Tribunal Decision, the Minister accurately summarised this at [13] in the Minister’s written submissions. The Court adopts the summary provided in those submissions, with amendments, as its own.
On 12 August 2016, the Tribunal sent the Invitation to the Applicant at the Yahoo Email Address pursuant to s.359 of the Act, and requested that he provide information that he was the subject of an approved nomination as required by cl.457.223(4)(a) of the Regulations. The Applicant was advised that if the information was not provided by 26 August 2016:
a)The Tribunal could make a decision on the review without taking any further steps to obtain the information; and
b)The Applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present argument[13].
[13] CB 115-116.
The Tribunal found that the Applicant did not provide the information within the prescribed period as requested[14].
[14] CB 129 at [6].
In the circumstances, the Tribunal found that s.359C of the Act applied, and pursuant to s.360(3), the Applicant was not entitled to appear before the Tribunal. The Tribunal also had no power to allow the Applicant to do so by virtue of s.363A of the Act[15].
[15] CB 129 at [7].
The Tribunal was satisfied that the statutory requirements were met in respect of the Invitation and that the Applicant had been given sufficient time and had been provided with a reasonable opportunity to provide material in support of the Application for review. In this context it proceeded to make its decision[16].
[16] CB 130 at [9].
The issue under review was whether the Applicant met the requirements of cl.457.223(4)(a)[17].
[17] CB 130 at [11].
The Tribunal found that the employment contract that the Applicant provided to the Tribunal in relation to the “Customer Service Manager” position was not an approved nomination as required by c.457.223(4)(a) of Schedule 2 to the Regulations. Further, nothing had been provided to the Tribunal to demonstrate that a nomination approval application for the position had been made to the Department[18].
[18] CB 130 at [15].
There was no evidence before the Tribunal at the time of its decision that there was an occupation in relation to the Applicant that had been approved under s.140GB of the Act. The Tribunal determined that the Applicant did not satisfy the requirements of cl.457.223(4)(a)(i) of the Act[19].
[19] CB 130 at [16].
The Tribunal noted that no claims had been made in respect of other streams in cl.457.223 of the Regulations and there was no evidence that the Applicant would be able to satisfy the specific criteria for those streams[20].
[20] CB at 130-131 at [18].
The Tribunal affirmed the decision under review.
Proceedings Before This Court
To obtain assistance from this Court, the Applicant must show jurisdictional error on the part of the Tribunal.
The Applicant filed his judicial review application on 6 September 2016 (Application). The Application contained one ground of review, as follows:
Subclass 457 (visa) was applied on 17-09-13. And all the documents were provided as per position, I applied for. And position was genuine for Customer Service Manager. I received an email stating that Department of Immigration and Border Protection refused to grant me 457 visa. On the basis of nomination was not considered approved by Authority. I was not satisfied with the decision made by department. Therefore I decided to review decision in MRT on 4 March 2014. Again was not considered genuine. But document was clearly up to mark and well presented. MRT affirmed the decision of DIBP.
So, I applied the Federal Court last year and my case was remitted to AAT again. This time they sent me an email on 12 August 2016, but I did not receive anything, and I have checked with my email provider Yahoo, stating Marpreet Singh did not receive anything from AAT on 12 August 2016. There for AAT decided to refused to consider my case. My humble request to Magistrate to look into my case. Because assumption was taken into my matter. I believe, there is an error in decision made by MRT and DIBP.
(Without alteration)
In support of the Application, the Applicant filed an affidavit on 6 September 2016, which annexed the Tribunal’s notification of decision letter and a copy of the Tribunal Decision, both dated 5 September 2016. The Applicant’s affidavit also stated:
I am not satisfied with the decision made by the MRT on my application therefore I want to appeal against the decision in court.
Despite being given an opportunity by a Registrar of this Court to amend his application to provide “particulars”, any affidavit evidence and written submissions, no further materials were provided by the Applicant. The Applicant’s grounds of review remain unparticularised.
The Minister filed written submissions on 26 April 2017.
At the hearing, the Applicant made only one submission which was that when the matter was before the Migration Review Tribunal, he was represented by a migration agent who did not tell him that the Migration Review Tribunal had invited him to comment. The Applicant’s submission refers to the First Tribunal’s Decision. That decision was quashed by this Court. To the extent the Applicant’s agent is relevant to these proceedings, the Court will discuss this below.
Consideration
The Applicant’s ground of review suggests that he did not receive the Invitation. The effect of this was that the Applicant did not respond to the Invitation and the Tribunal found that s.359C of the Act applied. This meant that the Applicant lost his right to attend a hearing before the Tribunal.
In order for s.359C(1) of the Act to be enlivened and allow the Tribunal to be able to proceed without inviting the Applicant to attend a hearing, the following must be satisfied:
a)The Invitation must be valid: s.359C(1)(a) of the Act, and provided to the Applicant in accordance with s.379A of the Act: s.359(3); and
b)The Applicant must fail to “give the information” to the Tribunal within the prescribed time: s.359C(1)(b) of the Act.
Therefore, the issue before the Court is whether the Tribunal was correct to find, or proceed on the basis that, s.359C of the Act applied in relation to the Applicant in the particular circumstances of this matter.
Was the Invitation Valid?
The Invitation must comply with s.359B of the Act, which provides:
(1) If a person is:
(a) invited in writing under section 359 to give information; or
[…]
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
Here, the Invitation:
a)Specified that the information should be given in writing. It also indicated that if it was in a language other than English, a translation should be provided: s.359B(1) of the Act; and
b)The Invitation specified that the Applicant had until 26 August 2016 to provide the information. The “prescribed” period for s.359B(2) (found in reg.4.17(4) of the Regulations) is 14 days from the date the Applicant received the Invitation. The Tribunal correctly calculated the time in which the Applicant had to respond to the Invitation and provide the information.
The Minister submits that the Invitation was sent to the Applicant’s email address provided to the Tribunal in connection with his application for review.
The Invitation was sent to the Yahoo Email Address. Email is an approved method of communication: s.379A(5)(b). The Applicant asserts that he did not receive this email and that he made inquiries and no email was recorded as being received at the Yahoo Email Address from the Tribunal on 12 August 2016. The Applicant has not provided any evidence of this to the Court.
In any event, s.379C(5) of the Act deems that the Applicant received the Invitation at the end of the day on 12 August 2016. The Court cannot inquire into whether or not a document has or has not been received: Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64. Section 379C creates an irrebuttable presumption that the Applicant was taken to have received the Invitation on 12 August 2016.
The Court notes that, while the Applicant provided the Yahoo Email Address in connection with the application for review[21], the Applicant also completed a section in the same form appointing a “representative” who it was indicated would receive correspondence from the Tribunal in relation to the application[22].
[21] CB 50.
[22] CB 55.
The Court has considered whether the Tribunal has erred in the sense that it should have provided the Applicant’s agent with the Invitation as opposed to the Applicant, pursuant to s.379G of the Act.
The Tribunal’s case notes indicate that on 21 June 2016 at 10.02 am, a Tribunal officer called the Applicant and the following was noted:
Called RA and he confirmed his contact details are still the same as the previous AAT case. He also confirmed that he did not have a migration agent[23].
(Emphasis added)
[23] CB 117.
In the Court’s view, this reflects that the Applicant has, pursuant to s.379G(3) of the Act, withdrawn the authority given under s.379G(1). In MZZDJ v Minister for Immigration & Border Protection [2013] FCAFC 156 at [34] it was stated:
The variation can be oral. There are textual and contextual reasons for this construction. Textually, the legislative insistence on writing is, as the appellant submitted, absent from subs (3). The omission should be taken to be conscious. Contextually, the provisions should be given a practical operation so that they can achieve their purpose of ensuring there is effective notification to visa applicants. One can imagine circumstances in which a variation was urgently required and a telephone call might be all that is possible.
While the Court was referring to “variation”, the same textual and contextual reasons apply to a “withdrawal”.
Here, the Invitation was valid and the Applicant was properly notified.
Did the Applicant “give the information”?
It does not appear to be in dispute that the Applicant did not respond to the Invitation within the prescribed timeframe. Nor did the Applicant request an extension of time (within the prescribed timeframe) to provide the information.
The Court is satisfied that the Applicant did not provide the information required by the Invitation.
Did the Tribunal err?
Having failed to provide the required information in the Invitation, s.359C(1) of the Act was enlivened. The consequence of this was that the Tribunal was not required to invite the Applicant to attend a hearing: s.360(2)(c), and, in fact, the Tribunal did not have any power or discretion to invite the Applicant to a hearing: s.363A of the Act; Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413.
The Applicant complains that the Tribunal “refused to consider” his case because he did not respond to the Invitation. This is incorrect. The Tribunal did consider, and conduct a full review, of the Applicant’s case. It simply did so without allowing the Applicant to appear before it.
The Minister provided submissions addressing why it was reasonable for the Tribunal to proceed to determine the review. The Court agrees with those submissions.
The Tribunal was entitled (by s.359C(1)) to proceed with the review without taking any further action to obtain the information from the Applicant.
Nevertheless, on 30 August 2016, when the Tribunal wrote to the Applicant to advise him that he had lost his right to a hearing, it advised him that he could provide any further information or documents in writing. The Applicant did so. His correspondence read as follows[24]:
[24] CB 119.
I am writing this email regards My AA T application, as per your last email , I have lost my hearing rights. But reality is ,i didn receive any email on 12 august 2016. I have checked my junk and inbox. if i would have received it, i would have replied like today.
I am not sure what is the truth.
I spoke my 7 eleven boss and he has signed me a new offer of letter. And we spoke about my future with their company. He is more than happy to sponsor me as he was 3 years ago.
Please find the new offer of letter[25].
[25] CB 119-125.
There was nothing in that correspondence to suggest that the Applicant wanted to provide more information and documents. Rather, it indicated that the Applicant had attached and provided the information he wanted to be considered. The Tribunal specifically considered that information at [15].
Ultimately, on the material before the Tribunal, there was nothing to indicate that the Applicant met cl.457.223(4)(a) of the Regulations. The Tribunal’s finding that the “Customer Service Manager” letter of offer was not an approved nomination was correct.
The Court therefore is not satisfied that the Tribunal has made any jurisdictional error.
Conclusion
The application must be dismissed.
The Minister seeks the sum of $5,800 for costs, which is less than the costs allowed in Part 3, Division 1 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) of $7,467. An Order will accordingly be made that the Applicant pay the Minister the sum of $5,800 for costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 8 April 2020
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