Singh v Minister for Immigration
[2014] FCCA 733
•17 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 733 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal to grant a Tourist (Class TR) Subclass 676 visa – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.362B |
| Alsaket v Minister for Immigration & Anor [2012] FMCA 411 Zaman v Minister for Immigration & Anor [2012] FMCA 620 |
| Applicant: | BALJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1090 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 5 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared via teleconference with the assistance of a Punjabi interpreter. |
| Solicitor for the First Respondent: | Ms A. Carr of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The name of the first respondent be amended to “Minister for Immigration & Border Protection”.
The Application filed on 20 May 2013 be dismissed.
The Applicant pay the First Respondent’s costs and disbursements of and incidental to the Application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1090 of 2013
| BALJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Migration Review Tribunal (the “Tribunal”), being MRT Case Number 1216759, a decision of Tribunal Member L. Nicholls dated 19 April 2013 affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”) (at the time of the visa application the Minister for Immigration and Citizenship), to refuse to grant the applicant a Tourist (Class TR) visa.
The solicitors for the Minister on 13 June 2013 filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”), has been marked as Exhibit “A” and is the only evidence before the Court.
The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 20 November 2013. The applicant elected not to file an amended application or any evidence.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a male citizen of India born on 25 September 1985 (CB 7). He arrived in Australia on 8 June 2009 as a holder of a Student (Vocational Education and Training Sector) (Subclass 572) visa which was valid until 3 November 2011. Since that time the applicant held a series of bridging visas (CB 13).
The applicant made an application for further stay as a visitor on 2 October 2012 (CB 1-6). This application was made for a Tourist (Class TR) Subclass 676 visa, to extend the applicant’s stay until 31 March 2013 (CB 1). The application was refused on 3 October 2012 (CB 8-14).
The applicant applied to the Tribunal for review of the Minister’s delegate’s decision on 30 October 2012 (CB 16-26).
The Tribunal wrote to the applicant on 28 March 2013 inviting the applicant to attend a hearing on 19 April 2013 (CB 38-39). This letter was sent by registered post to the mailing address given by the applicant on his “Application for Review” (CB 38). The applicant did not reply to the letter (CB 47).
The applicant did not attend the hearing (CB 48-50). It was confirmed that the hearing invitation had been delivered to the nominated address for service on 4 April 2013 (CB 45-46).
The Tribunal proceeded to make its decision on 19 April 2013, without taking further action to enable the applicant to appear before it, pursuant to s.362B of the Migration Act (CB 52-56).
The Tribunal sent a letter to the applicant notifying him of the outcome of its decision on 19 April 2013 (CB 51).
The Tribunal’s Decision
The issue before the Tribunal was whether, at the time of the application, the applicant met the requirements set out in clause 676.215 of the Migration Regulations 1994 (Cth) (the “Migration Regulations”) (CB 53 at [9]):
a)At the time of the application, the Tribunal noted that the applicant held a bridging visa, which was accepted by the Tribunal as not being a substantive visa (CB 54 at [10]); and
b)The Tribunal noted that the applicant did not provide any further information relevant to the application for review and, as the applicant did not attend a hearing, the Tribunal ultimately found that on the limited material before, it was unable to be satisfied that the applicant met the requirements set out in clause 676.215 (CB 54 at [10]-[12]).
Legislative Framework
The decision of the Tribunal in the present case is a privative clause decision as defined by s.474(2) of the Migration Act. Section 474 therefore validly operations to prevent the judicial review of all decisions under the Migration Act except those vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
Current Proceedings
The Application, filed 20 May 2013, seeks the following orders:
1. An order that the decision of the tribunal or Minister be quashed.
2. A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
3. A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application.
4. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Reviewer.
5. An Order that a Writ of Prohibition be directed to the Respondents preventing the respondents from acting upon further or giving effect to the decision of the Second Respondent (RRT) and to the decision of the First respondent’s delegate to refuse a Tourist (CLASS TR) visa to the Applicant
6. An Order that the Respondent pay the Applicant’s costs of the Application.
7. Such further or other Orders as this Honourable Court deems fit.
The Application pleads the following grounds:
1. The Tribunal failed to accord “Procedural Fairness” to the Applicant because of:
1.1 it failure to carry out its role on an Inquisitorial Manner when it said:
“…review applicant did not appear before the Tribunal… the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it “(MRT decision paragraph 6)
1.2 the weight it gave to the claims of the Applicant that he held a Bridging visa at the time of the application. (MRT decision paragraph 10)
The Applicant submits that the Tribunal erred in not assessing the Applicant’s claims in a manner that was required as mandatory under sec.414 of the Migration Act 1958, thus giving rise to a breach of a statutory provision in the Act which amounts to jurisdictional error made by the Tribunal.
2. The Tribunal acted in a ‘manifestly unreasonable’ manner towards the Applicant when dealing with the Applicant’s claims because of its failure to consider the claims by the applicant. The Applicant submits that the Tribunal acted in a manifestly unreasonable way when dealing with the Applicant’s claims and ignoring the fact that the applicant had held a Bridging visa in order to meet criteria 3001, 3003, 2004 and 3005 of Schedule 3 of the Regulations. Hence the Tribunals failure to observe this obligation amounted to a breach of a Statutory Obligation, thus amounting to a jurisdictional error committed by the Tribunal. The Tribunal fell into jurisdictional error in failing to request more information regarding the Applicant’s skills and whether the Applicant had applied for assessment of his skills to the relevant assessing authority.
Minister’s Submissions
Ground One
The Minister submits that the Tribunal did not err by proceeding to make its decision pursuant to s.362B of the Migration Act without enabling the applicant a further opportunity to appear before it. The Tribunal’s hearing invitation complied with all of the statutory and regulatory requirements: ss.360, 360A, 361, 379A and 379C of the Migration Act; reg.4.21 of the Migration Regulations 1994. In the absence of the applicant at the Tribunal hearing, and without further information before it, it was an ‘inevitable consequence’ that the Tribunal affirmed the decision under review;
In regard to the complaint that the Tribunal should have made inquiries into the applicant’s absence, the Minister submits that this complaint cannot be made out. The Minister submits that as the Tribunal complied with ss.360(1) and 360A of the Migration Act, the tribunal was entitled to proceed to make a decision pursuant to s.362B of the Migration Act: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] and NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5]. Consequently, the Minister submits that there was no denial of procedural fairness to the applicant for reasons of the Tribunal proceedings to make a decision given the applicant’s non-attendance at the hearing.
The Minister contends that as the Tribunal complied with s.360(1) and 360A of the Migration Act, the Tribunal was entitled to proceed to make a decision pursuant to s.362B of the Migration Act: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592. Further, there is no obligation on the Tribunal to make inquiries into the application lodged and establish if there might have been another avenue of communicating with the applicant: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39]; Zaman v Minister for Immigration & Anor [2012] FMCA 620; Alsaket v Minister for Immigration & Anor [2012] FMCA 411.
The Minister submits that it is unclear what issue the applicant takes with the Tribunal’s reasoning at [10] of the Decision Record. The Minister submits that the factual findings made by the Tribunal were open to it to make on the material before it and, consequently, no error is revealed.
In regard to the applicant reference to s.414 of the Migration Act, this refers to the Refugee Review Tribunal and, therefore, has no application in these proceedings. Nevertheless, pursuant to the equivalent provision, s.348 of the Migration Act which is applicable to Migration Review Tribunal and reviewable decisions, it remains unclear what claims the applicant alleges the Tribunal failed to assess.
The Minister respectfully submits that at no stage did the applicant submit, or was required to submit, claims before the Tribunal. Rather the applicant was required to present evidence in order to satisfy clause 676.215.
Contrary to the applicant’s contention, the Minister submits that the Tribunal complied with s.348 of the Migration Act in undertaking its review of the decision. However, it simply could not be satisfied that the applicant met the relevant criteria on the material and evidence before it and finalised the review by affirming the decision of the delegate.
The Minister submits that Ground One cannot be made out and should be dismissed.
Ground Two
The Minster submits that Ground Two of the Application makes a number of assertions:
a)The Tribunal acted in a manifestly unreasonable manner for reason that it failed to consider the applicant’s claims and ignored that the applicant held a Bridging visa; and
b)The Tribunal failed to make inquiries for the reason that it did not request more information regarding the applicant’s skills and whether the applicant had applied for a skills assessment to the relevant assessing authority.
The Minister respectfully submits that the applicant did not submit claims for the Tribunal to consider, rather, the applicant was required to present the required evidence to demonstrate that he fulfilled the relevant criteria. Contrary to what the applicant asserts, the Minister respectfully submits that the Tribunal acknowledged that the applicant held a Bridging visa, but found that this visa was not a substantive visa for the purpose of the Migrations Regulations. This factual finding was open to the Tribunal to make on the material and evidence before it.
To the extent that the applicant complains that the Tribunal should have made inquiries about the applicant’s skills assessment, the Minister submits that this is not relevant to this matter.
Consequently, the Minister submits that Ground Two cannot be made out.
Consideration
This matter was first before the Court at a directions hearing on 18 June 2013 presided over by his Honour Judge Raphael. At that time his Honour granted leave for the applicant to file an amended application giving complete particulars of each ground of review relied upon by 20 November 2013, and any supporting evidence to be filed and served in affidavit form. The matter was set down for final hearing on 5 March 2014 at 10.15am in Court 6D. The applicant was also required to file and serve a short written outline of submissions and list of authorities 14 days before the date of the final hearing. Prior to the hearing, the applicant contacted the Court, indicating that he was currently resident in Griffith and was unemployed, which prevented him from attending the hearing due to the distance and cost of travel. In accordance with Court policy, leave was granted for the applicant to attend by telephone and he was assisted by an interpreter competent in the Punjabi-English translation.
At the commencement of the hearing, the applicant confirmed that he had not filed an amended application or prepared a short written outline of submissions. When invited to make oral submissions in support of his Application, the applicant declined and informed the Court that he relied totally on the Application.
I informed Ms Carr, appearing the Minister that I had read the written submissions prepared on behalf of the Minister and indicated that I was satisfied that those submissions adequately and comprehensively responded to the pleaded grounds contained in the Application. I then asked whether the applicant had received and had had interpreted to him the written submissions prepared by the representatives of the Minister. The applicant confirmed that he had received a copy which had been translated to him, but he had no submissions to make in respect of any aspect raised therefrom.
On the material before the Court contained in the Court Book, the Application and the Minister’s submissions, the Application cannot be sustained and should be dismissed for the following reasons.
Ground One claims that the Tribunal failed to accord the applicant with procedural fairness on the basis that it failed to carry out its role in an inquisitorial manner and failed to give weight to the applicant’s evidence that as he held a Bridging visa at the time of his application.
Part 5 of the Migration Act deals with the provisions applicable to decisions reviewable by the Migration Review Tribunal, which is the part of the Migration Act relevant to the decision being reviewed. Division 5 therein addresses the issue of the conduct of the review and s.357A states:
Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
The Tribunal complied with the requirements of Division 5 in that it followed the following provisions:
a)Section 360 – Tribunal must invite applicant to appear;
b)Section 360A – Notice of invitation to appear; and
c)Section 361 – Applicant may require Tribunal to call witnesses and obtain written material.
In the Decision Record at [5]-[6], the Tribunal records the steps that it took to comply with the Migration Act:
5. On 28 March 2013 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.
6. No response was received. The review applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. An officer of the Tribunal checked the tracking summary for the hearing invitation which was sent by registered post and that summary indicated the postal item had been delivered. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
(CB 53)
Part of the material contained in the Court Book is the Tribunal’s invitation to the applicant to appear before it dated 28 March 2013 (CB 38-39) which confirms that the Tribunal’s requirements under the Migration Act were complied with. The applicant failed to respond to the invitation and failed to appear at the hearing, allowing the Tribunal under s.362B of the Migration Act to make a decision in the absence of the applicant due to his failure to appear before the Tribunal.
There is a line of authority that confirms that this sequence of events meets the requirements of the Migration Act. In NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5], their Honours French (as he then was), Emmett and Dowsett JJ stated:
5. In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
In NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 his Honour Greenwood J considered the exercise of the power conferred by s.426A (the equivalent section to s.362B of the Migration Act for matters before the Refugee Review Tribunal). At [24] therein his Honour stated:
24. It seems to me that in conferring a power upon the Tribunal in terms of s 426A, the Parliament necessarily had regard to the character of the review process undertaken by the Tribunal. Whilst that process might be described as inquisitorial, the power to elect to make a decision on the review in the circumstances of the conjunction of events contained within s 426A(1)(a) and (b) was expressly conferred in the context of the scope and role of the Tribunal under the Act. Further, there is nothing in the material that suggests any basis for inferring or concluding that the Tribunal by electing to make a decision on the review took a speedy or peremptory course involving a failure to consider relevant material. In addition, although the power conferred by s 426A must not be exercised capriciously, there is a clear intention on the part of the legislature not couched in indirect references or equivocal considerations to empower the Tribunal to consider and decide upon the evidence and arguments grounding the review and thus make a decision on the review, should the appellant fail to appear having been afforded an opportunity to do so.
Although not specifically pleaded, I agree with the submission by Ms Carr in respect of any residual obligation on the Tribunal to make attempts to locate and contact the applicant when there has been a failure by him to respond to the invitation or appear at the scheduled hearing. This issue is addressed in the decision of Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (supra) per Spender, French (as he then was) and Cowdroy JJ at [39] where their Honours stated:
39. The submissions of the respondent in this respect are rejected. In view of the decision in VNAA, it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s 425A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.
In respect of the second particular in Ground One which raises the issue of the weight to be given to the fact that the applicant held a Bridging visa at the time his application was filed and takes issue with the finding by the Tribunal at [10] of the Decision Record which states:
10. The application completed by the applicant stated that he held a bridging visa at the time of his application and the Tribunal accepts he did not hold a substantive visa at the time of his application. No further information was provided on the issue.
(CB 54)
The pleaded ground refers to s.414 which is incorrect as this matter is being considered under the provisions of the Migration Review Tribunal. The equivalent section of the Migration Act relating to the Migration Review Tribunal is s.348 which states:
Migration Review Tribunal must review decisions
(1) Subject to subsection (2), if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.
It is not immediately apparent as to what the applicant is claiming that the Tribunal failed to review other than it is some mistaken misunderstanding concerning clause 676.215. The misunderstanding lies with the applicant as it is his obligation to provide the Tribunal information indicating that he does hold a substantive temporary visa. There is no evidence that the applicant satisfies Schedule 3 criteria, 3001, 3003, 3004 and 3005.
In Ground Two of the Application the applicant seeks to make the assertions that:
a)The Tribunal acted in a manifestly unreasonably manner in that it failed to consider the applicant’s claim that it ignored the fact the applicant held a bridging visa; and
b)The Tribunal failed to make inquiries as it did not request more information regarding the applicant’s skills and whether the applicant had applied for a skills assessment to the relevant assessing authority.
The claims clearly indicate that the applicant misunderstands the function of the Tribunal and the applicant’s responsibility in presenting his claim.
In a letter sent by the Tribunal to the applicant on 28 March 2013, headed Invitation to appear before the Tribunal, it states:
I am writing in relation to the application for review made by you in respect of the decision to refuse to grant a Tourist (Class TR) visa.
The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.
You are invited to appear before the Tribunal to give evidence and present argument relating to the issues arising in your case. The Tribunal has arranged a hearing for….
In undertaking the review the Tribunal must consider whether you met the requirements for a subclass 676 Tourist visa.
One of the requirements for the visa is that you meet clause 676.215 which provides that you must either be a substantial visa holder or satisfy the schedule 3 criteria 3001, 3003, 3004 and 3005 (copy of criteria attached). A substantial visa means a visa other than a bridging visa, criminal justice visa or an enforcement visa. You may wish to provide further evidence on whether you were a substantive visa holder at the time of your application for a visa or whether you satisfied the criteria in 3001, 3003, 3004 and 3005. If you wish to provide such evidence you should forward that to the Tribunal at least seven days prior to the date scheduled for the hearing.
Ground Two of the Application indicates that the letter from the Tribunal to the applicant on 28 March 2013 was either ignored or not understood as it clearly states that the obligation falls on the applicant to supply this information as requested, given the applicant is the only person who would be in possession of the information requested. The assertion in Ground Two that the Tribunal failed to make enquiries or request further information is completely contrary to the contents of the letter of 28 March 2013. Similarly, the assertion that the Tribunal acted in a manifestly unreasonable manner by suggesting that it ignored that the applicant held a bridging visa further demonstrates that the response to the Tribunal’s request for information and appearance by the applicant at a hearing to address these issues was completely ignored. There is no evidence that any attempt was made by the applicant to contact the Tribunal to clarify the situation if there was any misunderstanding or to make some alternative arrangement to place this required material before the Tribunal and make an appearance to explain his circumstances.
I am satisfied that Ground Two cannot be sustained and should be dismissed.
The Court notes that the applicant was provided with a copy of the Court Book at some time after 13 June 2013 when copies were filed in the Court’s Registry by the lawyers representing the Minister. If the Court Book had been reviewed by the applicant it would have been immediately apparent the letter of 28 March 2013 sent by the Tribunal was critical to his case. I am acutely aware that the applicant is a self-represented litigant, however, I believe that he has been receiving some form of assistance from an unidentified third party who has some knowledge of the operation of applications to the Tribunal seeking review of Minister’s delegates’ decisions and applications to this and superior Courts. The existence of the unidentified third party is reinforced in the nature of the documents that the applicant has filed in these proceedings which demonstrates that assistance is being provided by someone with some knowledge of the proceedings. Despite this the applicant, when invited to make submissions in support of his case or to respond to the written submission prepared by the legal representatives of the Minister, declined to make any.
Conclusion
In the circumstances I am satisfied that the Application should be dismissed with costs awarded to the Minister.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 17 April 2014
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