SINGH v Minister for Immigration

[2014] FCCA 2137

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2137

Catchwords:
MIGRATION – Judicial review – failure of the applicant to establish his case – evidence of sufficient funds not provided – failure to attend hearings – application for judicial review dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.15.03

Migration Act 1958 (Cth), ss.65(1)(b), 357A, 360A, 362B

Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 confirm that this is a valid reason for the application (in SZIGQ (supra)) to be rejected
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328
SZOZO v Minister for Immigration and Citizenship [2011] FCA 944
Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

Applicant: MANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1839 of 2013

Judgment of: Judge F. Turner

Hearing date: 15 August 2014

Date of Last Submission: 15 August 2014

Delivered at: Melbourne

Delivered on: 23 September 2014

REPRESENTATION

The Applicant appeared In Person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The time for lodging an application for judicial review be extended to 31 October 2013.

2. The application for judicial review filed 31 October 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1839 of 2013

MANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 25 September 2013. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The decision of the Tribunal sought to be reviewed is dated 25 September 2013. The application for judicial review was filed on 31 October 2013, and is therefore one day beyond the 35 day time limit. The first respondent consents to an extension of time. The Court therefore orders that the time for lodging the application for judicial review be extended to 31 October 2013.

3. The Court will consider the merits of the substantive application.

4. The ground for judicial review is stated in the application as “I am not satisfy with decision given me by MRT. So I want to review my decision.”

5. By order of Registrar Caporale on 22 January 2014, the applicant was to file and serve written submissions 35 days prior to the final hearing. That has not been done.

6. At the hearing before the Court on 14 August 2014, the applicant represented himself and Ms Mitchell represented the first respondent. The Court invited the applicant to make submissions.

7. First, the applicant applied for an adjournment to enable his lawyer to look at the matter properly. Ms Mitchell opposed an adjournment. The Court noted that the applicant had been on notice since 2 June 2014 that the hearing was listed for today and therefore the Court dismissed the application for adjournment.

8. The applicant made submissions as to his personal circumstances since he arrived in Australia. These included that his father had fallen ill and that a lot of the applicant’s financial resources had been expended in providing medication for his father. The applicant gave details about hurting his arm, getting the flu and becoming depressed. None of those matters are relevant to whether the Tribunal made an error of law.

9. The applicant then submitted that he had not been notified by the Tribunal of the hearings before it; that he had not had an opportunity to put submissions to the Tribunal, and that he been too ill to attend the hearings before the Tribunal. The Court notes that the applicant failed to appear before the Tribunal on the last date of hearing, and supplied a medical certificate by Dr Panwar. The certificate stated that the applicant was “unfit for duties” and “was unable to attend work or school from 16/9/13 to 20/9/13” (Court Book “CB” p.92). On the day the Tribunal received that medical certificate an officer at the Tribunal telephoned Dr Panwar and asked if the applicant was fit to appear before the Tribunal to answer some questions regarding his review. Dr Panwar said “he’s definitely fit to answer questions at the Tribunal hearing” (CB p.97).

10. Details of invitations to attend the hearing and efforts to contact the applicant are set out from CB p.115 [7].

11. By letter dated 28 April 2012 (CB p.63), the Tribunal acknowledged receipt of the review application and invited the applicant to provide material or written submissions for the Tribunal to consider, as soon as possible. That letter was sent to the postal address of the applicant set out in his review application to the Tribunal (CB p.52).

12. On 14 June 2013 the Tribunal received a letter from the applicant advising that he had changed his address from East St Kilda to 12 Hourihan Avenue, Clayton VIC 3168 (CB p.72).

13. By letter dated 16 August 2013 to the new address (CB p.73), the Tribunal invited the applicant to attend a hearing on 11 September 2013 to give evidence and present arguments. He was asked to provide the following information:

    (1)A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

    (2)Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.

    (3)Documents that show your past studies in Australia, including copies of all your attendance certificates, academics transcripts and certificates of completion.

    (4)An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.

    (5)Documents that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period, including:

    ·evidence of fees of current or proposed course/s you have already paid, or still owe for past courses

    ·evidence of funds from an acceptable source

    ·if you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your visa application

    ·if you have a loan secured against a money deposit, evidence of where the money deposit came from, and the loan must still be current

    ·evidence of the regular income of any person who is providing funds to you (including yourself), and their relationship to you

    ·evidence that you have genuine access to the funds that you declare while you hold a student visa, such as evidence of any money you have received or been given

    (6)Evidence you meet the English language proficiency requirements (the requirements depend of your particular assessment level and visa subclass).

    (7)Evidence you have successfully completed secondary schooling to the Year 12 level (or other educational qualifications as required for the visa you seek).

14. The applicant was also advised that:

    “If you are not able to attend a hearing, you need to advise us as soon as possible. Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment. If the Tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.

    The Tribunal may make a decision at the end of your hearing.” (CB p.74)

15. On 10 September 2013, the Tribunal received a letter from the applicant (CB p.83) stating that he was unable to attend the hearing on 11 September 2013 and attaching a medical certificate. That medical certificate stated that the applicant “was unable to attend work or school from 9/9/13 to 13/9/13” (CB p.84).

16. The Tribunal responded by email on 10 September 2013 (CB p.85) to the email address notified by the applicant in his review application to the Tribunal (CB p.52), rescheduling the hearing to 16 September 2013 and repeating the request to provide evidence (CB p.87) as detailed in the letter of 16 August 2013. The applicant did not appear on

    
    

    16 September 2013 (CB p.116 [10]).

17. At 10.57am on 16 September 2013 the applicant sent a fax to the Tribunal stating that he was unable to attend the hearing for medical reasons and providing a further medical certificate from Dr Panwar dated 15 September 2014, stating that the applicant was “unable to attend work or school from 16/9/13 to 20/9/13” (CB p.92 and CB p.116 [11]). The Tribunal telephoned Dr Panwar who advised that the applicant was “fit to attend a tribunal hearing” (CB 116 [12]).

18. Following the conversation with Dr Panwar the Tribunal attempted to call the applicant on his nominated telephone number, but the service was not operating (CB p.116 [13]).

19. The Tribunal then sent an urgent email to the applicant’s nominated email address asking him to contact the Tribunal and provide a current telephone number (CB p.98).

20. The applicant did not respond to any of the emails (CB p.116 [16]).

21. The Tribunal sent the applicant an email on 17 September 2013 rescheduling the hearing from 16 September 2013 to 20 September 2013 and inviting him to attend on 20 September 2013 to give evidence and present arguments, and requesting again that he provide the material requested previously (CB p.101). The invitation to attend was sent to the email address provided by the applicant.

22. On 18 September 2013, an employee of the Tribunal sent a further email to the applicant notifying the applicant that the hearing had been rescheduled to 20 September 2013 and asking for a current telephone number (CB p.105).

23. The applicant did not appear at the hearing on 20 September 2013 (CB p.107) and did not contact the Tribunal (CB p.116 [17]).

24. On 20 September 2013, the Tribunal sent the applicant an email and undertook to wait until the close of business on 24 September 2013 before proceeding to a decision, and stated that it would have regard to any material provided by the applicant (CB p.111).

25. The decision of the Tribunal is dated 25 September 2013. At the time of writing the decision, the Tribunal had not received any material or contact from the applicant (CB p.116 [19]). Automated reports confirmed that the emails sent to the applicant were successfully transmitted to the targeted address (CB p.116 [20]).

26. Section 362B of the Migration Act 1958 (the “Act”) provides as follows:

    (1)If the applicant:

    (a)is invited under section 360 to appear before the Tribunal; and

    (b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

    the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

    (2)This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.

27. When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: see SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 at [4] (citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 at [5]).

28. It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: see SZIGQ (supra) per Downes J at [5].

29. By proceeding to a decision without hearing from the applicant, the Tribunal acted in accordance with the statutory scheme: see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48]. Further, there is no obligation on the Tribunal to make inquiry as to the failure on the part of an applicant to appear: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].

30. In SZOZO v Minister for Immigration and Citizenship [2011] FCA 944, Reeves J at [21] to [22] stated:

    “The appellant’s fundamental problem in this appeal is that he passed up his opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims. As the Full Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (at [8]), once he did that: “the inevitable consequence was the rejection of his application”.

    Further at [22], his Honour stated:

    “…the election to proceed to a decision on the review in the absence of the appellant cannot, by itself, be treated as the expression of an unreasonable exercise of the power.”

31. The Court accepts the submissions for the first respondent, filed

    
    

    13 August 2014, that:

    (51)…the invitation sent by the Tribunal on 16 August 2013 conformed with the requirements of ss. 360A and 379A of the Act because:

    (a)it set out the date, time and place of the hearing: s. 360A(1);

    (b)it was dispatched by prepaid (and registered) post on 16 August 2013 to the applicant’s last address for service provided by him to the Tribunal: s. 379A(4) and s.360A(2);

    (c)it was dated 16 August 2013 and therefore:

    (i)deemed, by operation of s. 379C(4), to have been received on 27 August 2013 (being 7 working days after the date of the hearing invitation); and

    (ii)provided (and in fact exceeded) the minimum statutory period of notice of 14 days: reg. 4.21. Thereby, the hearing invitation complied with s. 360A(4); and

    (d)satisfied s. 360A(5) by including a statement that explained the effect of s. 362B.

    (52)Given the [first] invitation complied with the formal notification provisions under ss. 360 and 360A, there were no statutory requirements as to the first rescheduled invitation or the second rescheduled invitation: MIMIA v SZFML (2006) 154 FCR 572 at [82]. In the circumstances of the limitations of the applicant’s medical certificates and, in particular, the information received from the Tribunal from Dr Panwar regarding the applicant’s ability to attend the hearing (which was put to the applicant), the notice period in both the first rescheduled invitation and the second rescheduled invitation was not unreasonably short: Ogawa v MIAC (2011) 199 FCR 51 at [35]-[37].”

32. The first invitation to attend gave 3 weeks’ notice (CB p.73); the second invitation gave 6 days’ notice (CB p.86); the third invitation gave 3 days’ notice (CB p.101). As the prescribed period of notice does not apply to rescheduled invitations (see Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572), s.360A(4) has effect that a “reasonable period” of notice is required. Having regard to the fact that the applicant was aware that a hearing was impending, the Court finds that each period of notice given was reasonable.

33. The Court finds that the Tribunal complied with the relevant requirements of the Act and Migration Regulations 1994 (the “Regulations”). The Court finds that the Tribunal complied with the requirements of Division 5 of Part 5 of the Act which contains an exhaustive statement of the natural justice hearing rule for matters under that Division (s.357A). Natural justice was not denied.

34. The first respondent filed and served an Outline of Submission on 13 August 2014. Counsel for the first respondent consented to the Court proceeding under r.15.03 of the Federal Circuit Court Rules 2001 (the “Rules”) to make a decision without an oral hearing. However, oral submissions were made.

35. The Court finds that the applicant’s ground for judicial review are an attempt to review the merits of the Tribunal’s decision.

36. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:

    “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

37. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.

38. The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance where his Honour had said at [16]:

    “I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so.

39. An applicant must prove their case.

40. In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40], it states:

    “This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial[1], and that there is an onus upon neither an applicant nor the Minister[2]. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.”

    [1]  See, eg, Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 985 [98]; 190 ALR 601 at 625 per McHugh J (citing, among others, Re Refugee Review Tribunal; Ex parte Aala(2000) 204 CLR 82 at 115 [76] per Gaudron and Gummow JJ); at 1001 [208]; 648 per Kirby J; at 1008 [246]; 658 per Hayne J; at 1014 [287]; 666 per Callinan J.

    [2]  See, eg, Minister for Immigration and Ethnic Affairs v Guo(1997) 191 CLR 559 at 573-574 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Abebe v The Commonwealth(1999) 197 CLR 510 at 544-545 [83] per Gleeson CJ and McHugh J; Minister for Immigration and Multicultural Affairs v Eshetu(1999) 197 CLR 611 at 673 [195] per Callinan J.

1. Although “… the concept of onus of proof is not appropriate to administrative inquiries and decision-making…” (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts.

2. The Court refers to the following decisions:

   ·Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596:

   “… the mere fact that a person claims fear of persecution… (for a particular reason) does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for… (the reason claimed). It remains… for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”

   ·A decision-maker is not required to make the applicant’s case for him or her: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45.

   ·Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at p.451.

3. The Court applies the decision SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 where the reasons that the applicant failed to establish his claim, included that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208, NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 confirm that this is a valid reason for the application (in SZIGQ (supra)) to be rejected.

4. Despite requests sent to the applicant to provide evidence of compliance with the prescribed criteria, the applicant failed to provide that evidence. The Court finds that the invitations to attend were sent to the correct address.

5. The criteria for the visa are set out on pp. 119 to 124 of the CB.

6. The Tribunal found that:

   (29)“There is no evidence before the tribunal that the applicant has the funds I [sic “in”] accordance with Schedule 5A to pay the course fees, living costs and travel costs. (CB p.118.1)

   (30)On the basis of the above, the applicant has not given evidence in accordance with the Schedule 5A requirements for Subclass 572 and assessment level 4, and therefore does not satisfy cl.572.223(2)(a)(i). (CB p.118.2)

   (31)For these reasons, the Tribunal finds that criteria for the grant of a Subclass 572 visa are not met…” (CB p.118.3)

7. In his oral submissions to the Court the applicant stated that his father became ill and the applicant diverted some of his financial resources to assisting his father with medication. The Court accepts the submission for the first respondent that there is no provision for the Tribunal to waive the requirement for the applicant to have sufficient funds, or access to them, and there is no ability for the Tribunal to consider exceptional circumstances as to why the applicant does not have sufficient funds, or access to them.

8. Having not satisfied the criteria, s.65(1)(b) of the Act requires that a visa be refused.

9. An error of law by the Tribunal has not been established. The Court finds not merit in the application for judicial review.

10. The application for judicial review is dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date:  23 September 2014