Singh v Minister for Immigration
[2013] FCCA 1291
•27 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1291 |
| Catchwords: MIGRATION – Judicial review – Migration Review Tribunal decision – temporary skilled graduate visa – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.356, 359(2), 359B(1) and (2), 359C, 360, 363A, 379A |
| Hasran v Minister for Immigration & Citizenship & Anor (2010) 183 FCR 413, [2010] FCAFC 40 Minister for Immigration & Multicultural & Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 218 |
| Applicant: | JASWINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 245 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 27 August 2013 |
| Date of Last Submission: | 27 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 27 August 2013 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the Respondents: | Mr Rogers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The first respondent’s name be amended to read Minister for Immigration, Multicultural Affairs and Citizenship.
The application be dismissed.
The applicant pay the first respondent’s costs in the sum of $5000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 245 of 2013
| JASWINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
This is an application by the applicant, Jaswinder Singh, for review of a decision of the second respondent, the Migration Review Tribunal,[1] made on 4 February 2013.[2] The Tribunal Decision affirmed a decision of the delegate of the first respondent, the then Minister for Immigration and Citizenship, now the Minister for Immigration, Multicultural Affairs and Citizenship,[3] made on 18 November 2011, to refuse to grant Mr Singh a skilled graduate temporary class VC, subclass 485 visa.[4]
[1] “Tribunal”.
[2] “Tribunal Decision”.
[3] “Minister”.
[4] “Delegate’s Decision”.
The relevant facts and chronology are as follows:
a)Mr Singh is a national of India;
b)Mr Singh applied for the visa on 15 February 2011;
c)on 16 February 2011, the Department of Immigration and Citizenship,[5] as it then was, sent Mr Singh a system-generated email advising that, amongst other things, Mr Singh would need to provide the Department with certain documents. It suffices for present purposes to observe that those documents were not produced by Mr Singh;
[5] “Department”.
d)on 18 November 2011, the delegate decided to refuse to grant the visa;
e)the delegate found that Mr Singh did not satisfy the following requirements:
i)the Australian study requirement in cl.485.213(a) of Schedule 2 to the Migration Regulations 1994 (Cth);[6]
[6] “Migration Regulations”.
ii)in cl.485.213(b) of Schedule 2 to the Migration Regulations, the requirement that each qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation;
iii)in cl.485.215 of Schedule 2 to the Migration Regulations, the requirement to have competent English;
iv)in cl.485.221 of Schedule 2 to the Migration Regulations, the requirement to have a skills assessment; and
v)in cl.485.217 of Schedule 2 to the Migration Regulations, the requirement that the application be accompanied by evidence that Mr Singh had made arrangements to undergo a medical examination;
f)the delegate found that Mr Singh had not made a valid application for a subclass 487 visa, on the basis that he had not paid the totality of the relevant fees;
g)on 8 December 2011, Mr Singh applied to the Tribunal for review of the Delegate’s Decision;
h)on 9 December 2011, the Tribunal wrote to Mr Singh, acknowledging receipt of the application for review. The Tribunal’s letter advised that if Mr Singh wished to provide written material or written arguments for the Tribunal to consider, he should do so as soon as possible, and
i)on 26 November 2012, Mr Singh sent the Tribunal a change of contact form, providing an address in Swan Hill as his residential and postal address;
j)on 20 December 2012, the Tribunal wrote to Mr Singh under s.359(2) of the Migration Act 1958 (Cth),[7] inviting him to provide information about his ability to satisfy the criteria for the visa, that being the 485 visa;[8]
[7] “Migration Act”.
[8] “Invitation Letter”.
k)on 26 November 2012 the Invitation Letter was sent to Mr Singh by post on 20 December 2012, to the address in Swan Hill provided to the Tribunal;
l)the Invitation Letter stated that:
i)the information should be provided by 31 January 2013, or Mr Singh should request an extension of time before that date;
ii)if the Tribunal did not receive the information within the period allowed or as extended:
(A)the Tribunal may make a decision on the review without taking any further action; and
(B)Mr Singh would lose any entitlement to appear before the Tribunal.
Again, it suffices to observe that Mr Singh neither produced information nor sought an extension of time;
m)the Tribunal Decision affirmed the Delegate’s Decision. The Tribunal Decision found that:
i)there was no evidence that Mr Singh met the criteria in cll.485.213, 485.215, 485.217 and 485. 221 of Schedule 2 to the Migration Regulations, and accordingly those criteria were not met. The Tribunal further found that Mr Singh did not meet the criteria for a subclass 487 visa;
ii)Mr Singh did not respond to the invitation by 31 January 2013, so that section 359C(1) of the Migration Act applied to empower the Tribunal to make the Tribunal decision without taking any further action to obtain the information; and
iii)as s.359C(2) of the Migration Act applied as a consequence of s.360(3) of the Migration Act, the applicant was not entitled to appear before the Tribunal. The Tribunal proceeded to make its decision on 4 February 2013 without taking any further action to obtain the information;
n)the grounds of review stated in the application to this Court, filed on 1 March 2013, are:
1.I applied for the visa to the Department of Immigration, which was refused.
2.Then I applied at MRT for review of that decision.
3.I think MRT tribunal and Department of Immigration did not look at my situation.
o)no particulars were provided in relation to the grounds of review;
p)orders were made in the usual terms for a first migration directions hearing on 3 April 2013 by this Court;
q)Mr Singh did not file an amended application as permitted by the Court’s orders made on 3 April 2013, nor has he filed written submissions as required by that same order;
r)the Minister’s contentions of fact and law in response to the grounds raised in the application for review were filed on 11 July 2013. Essentially, they submit that there was no jurisdictional error, including no procedural error, in the Tribunal Decision; and
s)the Court notes again that there is no appearance by the applicant today, the matter having been called outside the Court.
The Court turns then to a consideration of the matter. Of the grounds themselves, grounds 1 and 2 evince uncontentious factual assertions, neither relevant to, nor revealing of, jurisdictional error, or any other error whatsoever. Ground 3, if interpreted as a failure to consider the case of the applicant at all, or as a failure to consider relevant material, or as an ignoring of relevant material, or a failure to provide for procedural fairness, might disclose jurisdictional error, but for reasons set out below, those types of errors are not manifest in this case.
There was no error in the Tribunal Decision insofar as it concluded that Mr Singh did not satisfy cll.485.213, 485.215, 485.217 and 485.221 of Schedule 2 to the Migration Regulations. Those findings were open to the Tribunal because there was no evidence before the Tribunal that Mr Singh satisfied the relevant criteria. Having found that the criteria were not met, the Tribunal was bound to affirm the Delegate’s Decision. Likewise, there was no procedural error disclosed by the Tribunal’s procedure. Section 359(2) of the Migration Act allows the Tribunal to invite a person to give information orally or in writing. The Invitation Letter doing so was sent on 20 December 2012.
The Invitation Letter was required to be given by one of the methods specified in s.379A of the Migration Act, and was so given, having been dispatched:
a)on the same day that it was dated, and therefore within three working days of the date of the document;
b)by Registered Post, a form of pre-paid post; and
c)to the last address for service or last residential address provided to the Tribunal by Mr Singh in connection with the review, and the Court refers to s.379A(4)(a)-(c) of the Migration Act.
The Invitation Letter sent under s.359(2) of the Migration Act complied with the requirements for written invitations set out in s.359B of the Migration Act in that it:
a)specified the way in which the information was to be given, being in writing, thereby satisfying s.359B(1) of the Migration Act; and
b)correctly specified the period in which the information was to be given, thereby satisfying s.359B(2) of the Migration Act.
Because the Invitation Letter was given correctly and Mr Singh did not give the information to the Tribunal before the time for giving it had passed, s.359C of the Migration Act applied. Consequently, the obligation under s.360(1) of the Migration Act to invite the applicant to a hearing did not apply. The Court refers to s.360(1) and (2) of the Migration Act.
A further consequence was that Mr Singh was not entitled to appear before the Tribunal under s.360(3) of the Migration Act. As the Tribunal correctly found, s.363A of the Migration Act was thereby enlivened, the effect of which was that the Tribunal had no power to permit Mr Singh to appear at the hearing, and the Court refers to the judgment of the Full Court of the Federal Court in Hasran v Minister for Immigration & Citizenship & Anor,[9] referring there to an earlier decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Sun.[10]
[9] (2010) 183 FCR 413, [2010] FCAFC 40 at paras.25-32 per Jacobson, Gilmour and Foster JJ.
[10] (2005) 146 FCR 498; [2005] FCAFC 201.
There was, therefore, no error in the Tribunal’s finding that the applicant was not entitled to appear at the Tribunal hearing. The exercise of the Tribunal’s discretion under s.359C(1) of the Migration Act was not in all of the circumstances affected by error, jurisdictional or otherwise. Mr Singh has therefore not established that the Tribunal Decision is affected by jurisdictional error, and the application will be dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date:9 September 2013
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