Singh v Minister for Immigration - [2012] FMCA 634

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 634

MIGRATION – Review of decision of Migration Review Tribunal – application for student visa – where applicant injured at time of hearing – where applicant’s agent overseas at time of hearing – where request to adjourn hearing refused – where hearing previously adjourned on two occasions – whether Tribunal unreasonable in refusing adjournment – where Tribunal may conduct hearing by telephone on applicant’s request – where Tribunal imposed telephone hearing upon applicant – whether Tribunal acted unlawfully – where Tribunal questioned applicant about requirement to have current enrolment certificate – where applicant informed Tribunal he did not have certificate at time of hearing – whether Tribunal failed to identify critical issue to the decision – whether applicant informed of nature and content of adverse material – whether applicant denied opportunity to be heard – where Tribunal made decision on same day as hearing – whether applicant denied chance to address certificate issue identified by Tribunal – where substantive reason for Tribunal affirming original decision was applicant’s lack of certificate of enrolment at time of hearing and decision – where evidence shows certificates of applicant cancelled prior to hearing – whether Tribunal fell into jurisdictional error.

Migration Regulations 1994
Migration Act 1958 (Cth), ss.3631(b), 360, 366A, 429
Interpretation Amendment Bill 2011 (Cth)
Acts Interpretation Act 1901 (Cth) s.13
Migration Legislation Amendment Act 1994
Migration Legislation Amendment Bill (No.1) 1998

Minister for Immigration & Anor v Li [2012] FCAFC 74
Waters v Mercedes Holdings Pty Ltd [2012] FCAFC 80
Minister for Immigration & Anor v Maltsin [2005] FCAFC 118
Korovata v Minister for Immigration & Anor [2001] FCA 1446
SZBEL v Minister for Immigration & Anor (2006) 228 CLR 152
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576
Minister for Immigration & Anor v Applicant A125 of 2003 & Anor [2007] 163 FCR 285

Applicant:

MANINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 99 of 2012

Judgment of:

Raphael FM

Hearing date:

19 June 2012

Date of Last Submission:

18 July 2012

Delivered at:

Sydney

Delivered on:

30 July 2012

REPRESENTATION

Solicitors for the Applicant:

Dobbie and Devine

Solicitors for the Respondents:

Clayton Utz

ORDERS

The decision of the Second Respondent be quashed.
A writ of mandamus directed to the Second Respondent to determine the Applicant’s application for review according to law.
First Respondent to pay the Applicant’s costs assessed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 99 of 2012

MANINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 25 November 2010 Mr Maninder Singh, who had previously been permitted to remain in Australia on the spouse visa of his wife, the holder of a student visa, lodged his own application for a student visa, being a student (Temporary) Class TU visa. There are several…

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: [2012] FMCA 634
Decision Date: 30 July 2012

CaseChat Overview and Summary

Singh v Minister for Immigration involved a dispute concerning the procedures followed by the Immigration Review Tribunal (IRT) in conducting a review of the Minister for Immigration's decision. The central issue was whether the IRT had the authority to require the applicant, Singh, to participate in a hearing via telephone without prior notice and consent. Singh argued that he was not informed of the location of the hearing and thus was not given the opportunity to request a telephone appearance under s.366 of the Migration Act 1958 (Cth). The court had to determine the scope of the Tribunal's discretion to allow telephone hearings and whether such discretion could override the requirements of other sections of the Act.

The court examined the language of s.366, noting that it grants the IRT the discretionary power to permit appearances or evidence by telephone if the applicant wishes to do so, but does not allow the Tribunal to require such appearances. This interpretation was consistent with the reasoning in Korovata v Minister for Immigration & Anor, where it was held that s.366 does not empower the Tribunal to mandate telephone appearances. The court found that the respondent had not properly exercised its discretion under s.366 as it did not provide Singh with the opportunity to request a telephone appearance. The explanatory memorandums of the relevant legislative amendments supported the view that the word "allow" in the statute denotes a discretionary power rather than a mandatory one.

Consequently, the court quashed the decision of the IRT and issued a writ of mandamus directing the respondent to determine Singh's application for review according to law. Additionally, the court ordered the respondent to pay Singh's costs, which were assessed at $6,471.00. This ruling underscored the importance of informing applicants of the location of their hearings and allowing them to exercise their rights under the Migration Act effectively.

Orders

Orders of the court

The decision of the Second Respondent be quashed.

A writ of mandamus directed to the Second Respondent to determine the Applicant’s application for review according to law.

First Respondent to pay the Applicant’s costs assessed in the sum of $6,471.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The ability of the Tribunal to conduct a telephone hearing is provided for in s.366:“Oral evidence by telephone etc. (1) For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by: (a) telephone; or (b) closed-circuit television; or (c) any other means of communication. (2) If, when a review is in public, a person appears or gives evidence by a means allowed under subsection (1), the Tribunal must take such steps as are reasonably necessary to ensure the public nature of the review is preserved.”The explanatory memorandum to the Migration Legislation Amendment Act 1994 the power is described in the following form:“Section 134A169This section gives the Immigration Review Tribunal a general power to allow a person to appear before the Tribunal or give evidence by telephone, closed circuit television or any other means of communication. The Tribunal is also directed by the new section to take such steps as are reasonably necessary to ensure that the public nature of the review is preserved when evidence is being given by telephone, closed-circuit television or other means of communication.” The respondent pointed me to the identical sub-section in the Refugee Review Tribunal legislation at s.429A of the Act. That sub-section was inserted by the Migration Legislation Amendment Bill (No 1) 1998 and in the Explanatory Memorandum the following appears:“Item 7127This item inserts new section 429A into the Migration Act. This amendment allows the Tribunal to direct that an appearance by the applicant before it, or the giving of evidence by the applicant or any other person, can be by telephone, closed-circuit television or any other means of communication. This will broaden the range of methods the Tribunal may use to facilitate a personal appearance by an applicant or another person at a formal hearing.” The respondent argues that this Explanatory Memorandum indicates that there is more to the word “allow” than the word “permit” but it seems to me that the wording of the Act is clear and one need not be driven to the Explanatory Memorandum to understand it. The clarity with which s.366 was written was considered by Emmett J in Korovata v Minister for Immigration & Anor [2001] FCA 1446 a case in which the Tribunal had indicated on the invitation letter that the hearing would be one to be conducted by telephone. His Honour said of the section:“Section 366(1) provides:For the purposes of the review of a decision the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person to be by: (a) telephone; or (b) closed circuit television, or (c) any other means of communication."That provision does not, in my opinion, authorise the Tribunal to require that an appearance be by telephone. It is a discretionary power conferred upon the Tribunal to permit an applicant to appear by telephone if the applicant wishes to do so. However, it is not, in my view, a power that overrides the requirements of s 360 and s 360A. The right is to appear before the Tribunal wherever the Tribunal chooses to sit. It appears that this Tribunal Member decided to sit in Brisbane. The applicant was entitled to be given notice of the place at which he was scheduled to appear. It may well be that it would have been convenient for the applicant, had he been informed of that place and known where the hearing was to take place, to ask the Tribunal to exercise its discretion under s 366(1) to allow his appearance in Brisbane to be by telephone. The applicant, however, was not given that opportunity.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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