Singh v Minister for Immigration
[2010] FMCA 1006
•21 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 1006 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal to renew a Student (temporary) Class TU visa – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), ss.65, 360 Migration Regulations 1994 (Cth), regs.572.223, sch.5A, cl.5A404 |
| Abebe v Commonwealth [2010] FCA 470 Applicant VEAL of 2002 v MIMIA (2005) CLR 88 Khant v Minister for Immigration & Citizenship [2009] FCA 1247 Luu v Renevier (1989) 91 ALR 39 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 Minister for Immigration & Multicultural Affairs. Re; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Rana v Minister for Immigration & Citizenship (2009) FLR 329 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372 SZNWA v Minister for Immigration & Citizenship [2010] FCA 470 Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108 Yang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 258 |
| Applicant: | PRABHJOT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 977 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 1 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar (on a direct access basis) |
| Counsel for the Respondents: | Mr Kennett (SC) |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed on 5 May 2010 is dismissed.
The Applicant is to pay the first Respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 977 of 2010
| PRABHJOT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application by Prabhjot Singh for a review of the decision of the Migration Review Tribunal (“the Tribunal”) dated 14 April 2010 by Andrew Jacovides, MRT case number 0900858. The Tribunal affirmed a decision of a delegate of the Minister for Immigration & Citizenship to refuse to grant the Applicant a Student (Temporary) (Class TU) visa to the Applicant under s.65 of the Migration Act 1958 (Cth) (“the Act”).
The Applicant applied to the Department of Immigration & Citizenship for a Student (temporary) Class TU visa on 5 November 2008. The delegate decided to refuse to grant a visa on 12 January 2009 and notified the Applicant of the decision and his review rights by letter dated 12 January 2009. The delegate refused the visa application on the basis that the Applicant was not a genuine Applicant for entry and stay as a student because he did not satisfy the requirements of clause 572.223 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). Specifically the delegate was not satisfied that the Applicant met the English language proficiency requirements of clause 572.223(2)(a)(i)(A). The Applicant applied to the Tribunal on 9 February 2009 for a review of the delegate’s decision.
The Applicant applied for a Student visa to undertake a Diploma of Business Administration at Pacific College Pty Ltd (“Pacific College”). He submitted documents relating to the course which commenced on 27 April 2009 and ended on 26 April 2010. The delegate found that the Applicant did not provide evidence that he satisfied the English language proficiency requirement for the grant of a visa. The Applicant indicated in his review application that he had completed the Certificate for a course in Business Administration at Pacific College and he had booked an IELTS test for 29 February 2009. He provided a partial copy of his Indian passport. An officer of the Department contacted the Applicant at the Tribunal’s request and asked him to provide a copy of his IELTS results. He submitted the test report form which indicated that on 16 April 2009 he obtained an overall band result of 5.0.
On 11 March 2010, the Tribunal forwarded to Mr Singh a formal invitation to appear before the Tribunal on 6 April 2010. Mr Singh attended the hearing alone on that date. The decision record indicates that the Tribunal discussed with Mr Singh the Schedule 5A requirement relating to English language proficiency for his visa that he was seeking to obtain. The Tribunal indicated to Mr Singh that the IELTS result he submitted did not satisfy the minimum requirement of a 5.5 IELTS result for the purposes of cl.5A404(a). The Tribunal noted that only a 5.0 score was required for persons undertaking an ELICOS course, as per the requirements of cl.5A404(b), but the papers he submitted did not indicate that he was an ELICOS student. The Tribunal discussed with Mr Singh the provisions of cl.5A404 with the view of determining whether he satisfied any of the alternatives English language proficiency requirements for a student 572 visa.
The decision record states that the Applicant indicated that he had successfully completed a Certificate IV course at Pacific College. He stated that he completed the course in April 2009 before commencing the Diploma of Business Administration. He claimed that he had been informed by the Department that the qualification enabled him to meet the English language requirement for the visa. The Tribunal asked the Applicant if this information from the Department was in writing or if he submitted the Certificate IV to the Department for consideration. He stated he did not have anything in writing and he did not contact the Department in writing regarding the Certificate IV. He stated that he assumed that he could continue with his studies once he completed the Certificate IV course. The Tribunal commented that he did not have a Student visa in April 2008 because his application from November 2008 had been rejected in January 2009.
The decision record notes that the Tribunal discussed with Mr Singh the other ways in which the English language proficiency requirement could be met. The Tribunal commented that clause 5A404(c) relates to students who are fully funded. The Tribunal indicated that fully funded was a defined term and essentially related to students who were funded by a government or an agency. Mr Singh indicated that he did not fall into that category.
Grounds of Review
Mr Singh filed his application for review in this Court on 5 May 2010 and attended a first Court date directions hearing on 25 May. On that date he was granted leave to file and serve an amended application, giving complete particulars of each ground of review relied upon. Mr Singh availed himself of this opportunity and filed an amended application on 5 July 2010 which contained the following grounds.
1. The Tribunal committed jurisdictional error by failing in its interpretation of clause 5A404 of Schedule 5A to consider all material that the Applicant provided to the delegate on which the primary decision was made.
Particulars
The Tribunal states at failed to consider that the Applicant had completed ELICOS at Geos College in Sydney in respect of which the Applicant had the visa and provided the evidence to the delegate. The Tribunal erred in its interpretation of clause 5A404(b)(i) of Schedule 5A in stating that the Applicant did not qualify under the clause when the Tribunal states at [37] that the Applicant did not complete ELICOS in ignorance of the fact that the Applicant had completed ELICOS [and thus qualified under Clause 5A404(b)].
2. The Tribunal committed jurisdictional error by erring in its interpretation and/or failing in its interpretation of clause 5A404 of Schedule 5A to consider all the material that the Applicant provided to the Tribunal on which the primary decision ought to have been made denying Applicant natural justice / procedural fairness by failing to consider Pacific College of Technology Cert IV / transcript faxed to the Tribunal on 12 April 2010.
Particulars
The Tribunal states at failed to consider that the Applicant had completed ELICOS at Geos College in Sydney in respect of which the Applicant had the visa and provided the evidence to the delegate. The Tribunal erred in its interpretation of clause 5A404(b)(i) of Schedule 5A in stating that the Applicant did not qualify under the clause when the Tribunal states at [37] that the Applicant did not complete ELICOS in ignorance of the fact that the Applicant had completed ELICOS [and thus qualified under clause 5A404(b)] and had provided the Tribunal with the evidence of IELTS test with Overall Band Score of 5.0.
The Tribunal also erred in its interpretation of clause 5A404(d)(iii) and / or failing to consider all the material in particular evidence provided that the Applicant had subsequently completed a course leading to Cert IV level or higher in that ignored Pacific College of Technology Cert IV in Graduate Administration dated 17 April 2009 and letter dated 12 April 2010 (Romi Kharel) from Pacific College of Technology that the Applicant had completed more than 75% of Diploma in Business Administration.
3. The Tribunal committed jurisdictional error by failing to exercise jurisdiction when it failed in its duty to enquire about obvious and critical fact, the existence of which could be easily ascertained in the circumstances the Applicant had stated in his February 2010 letter and had given evidence at the hearing before the Tribunal that he was in the possession of the Certificate IV from Pacific College of Technology and this is a critical fact on which its decision would have turned.
Particulars
The Tribunal was in clearly on notice of the existing of Certificate IV from Pacific College of Technology. At [44] at (CB 75.9) Tribunal states: “…The Tribunal finds that the Tribunal evidence in accordance with requirements of Schedule 5A…” The evidence was easily obtainable easily by a telephone call to Pacific College of Technology or to the Applicant. The Applicant deposes that he was forwarded the Certificate but has been ignored. This critical fact would have resulted in the Tribunal being satisfied under Schedule 5A.
4. The Tribunal committed jurisdictional error when it misconstrued its role at [44] and required the Applicant to provide material afresh.
Particulars
At [44] (at CB 75.9) Tribunal states “…The Tribunal finds that the Tribunal evidence in accordance with requirements of Schedule 5A…” Such a finding is flawed as the material was already provided to the delegate.
5. [not pressed] Alternatively, the Tribunal committed jurisdictional error in failing to provide Applicant particulars of “information” pursuant to s.359A of Act in its interruption of clause 5A404(d)(iii) & iv) of Schedule 5A in failing to consider the completion of Certificate Level IV course in Australia and / or denied the Applicant natural justice in particular when it was put on notice that the Certificate Level IV had been completed by the Applicant.
Particulars
The Tribunal failed to give particulars of “information” as why the Applicant did not qualify under 5A404(b) by omitting to do so. The Tribunal failed to properly hear the Applicant on such a critical matter and allow Applicant to provide the relevant proof by way of documentation.
6. The Tribunal committed jurisdictional error by failing in its interpretation of clause 5A404(d)(iii) & (iv) of Schedule 5A to consider the completion of Certificate Level IV course in Australia and / or breach in s.360 did not allow the Applicant to be heard on this issue or alternatively breached s.359A of the Act.
Particulars
The Tribunal failed to properly hear the Applicant on such a critical matter and allow Applicant to provide the relevant proof by way of documentation.
Evidence
A Court Book (“CB”) prepared and filed by the first Respondent’s solicitors is marked Exhibit “A”. Mr Kumar, appearing for Mr Singh on a direct access basis, indicated that he relied on the following material.
a)affidavit of Prabhjot Singh affirmed 5 May 2010; and
(Only para.1 of this affidavit was read as the remainder was objected to on the ground that each paragraph of the affidavit was in the nature of submissions. The attached documents were tendered).
b)affidavit of Prabhjot Singh, affirmed 5 July 2010. (Paragraph 1 and part of paras. 6, 7 and 8 were read and the annexures were tendered).
Mr Kumar indicated that he intended to call Mr Singh to give evidence under oath to clarify what occurred on 12 April 2010.
Mr Kennett, appearing for the Minister, indicated that he relied on the following evidence:
a)affidavit of Sonja Karsai affirmed 22 July 2010 which was read without objection.
Testimony given by Prabhjot Singh
In evidence in chief, Mr Singh indicated that he forwarded documents to the Tribunal by facsimile communication on 12 April 2010. He states that the bundle contained: his Certificate IV; his Certificate of enrolment “COE”; and a letter from Pacific College indicating that he had completed 75% of his diploma and his ELICOS Certificate.
Mr Kumar then sought to identify and tender the following documents:
a)Exhibit A1 – New South Wales Government Department of Education, information for overseas students;
b)Exhibit A2 – Pacific College Certificate for Business Administration;
c)Exhibit A3 – document concerning successful completion of certain subjects; and
d)Exhibit A4 – Pacific College letter.
Mr Kennett then cross examined Mr Singh. Mr Kennett referred the witness to p.49 of the CB (case note 4082332 recorded Izabella Balogh on 4 March 2010 at 4:11pm) which records the following comment:
I rang the RA, as instructed by the Member, and asked him to submit a copy of his current CoE and an IELTS Certificate if he has obtained one since his application was refused. He said he would fax them tomorrow.
Mr Singh confirmed that he recalled the conversation.
The witness was then referred to p.50 of the CB which was the copy of the International English Language Test System (“IELTS”) test report form for Mr Singh. Mr Singh confirmed that the report contained his name and picture and that was the document that he had forwarded to the Tribunal by facsimile on 5 March. The witness was then referred to p.51 of the CB, which contained a photocopy of his COE Certificate. Mr Singh confirmed that he forwarded a copy of that document to the Tribunal on 5 March. Mr Singh was then referred to p.52 of the CB, which contained a copy of his IELTS form, however, he stated that he had not forwarded that document to the Tribunal.
Mr Singh was then referred to p.64 of the CB which was case note 4170889 recorded on 6 April 2010 at 3.09pm. Mr Singh indicated that he did not recall that conversation. He was then referred to p. 65 of the CB which was a letter from Pacific College dated 12 April 2010. This was a copy of the document now marked as Exhibit A4. Mr Singh indicated that on the day that he received that document, he went to a local newsagent to have it faxed to the Tribunal. He acknowledged that he had not observed the person faxing the actual document but indicated that the newsagent had shown him a facsimile transmission report produced by the machine. However, he had not retained a copy of that report.
Consideration
Ground one
Mr Kumar submits that the Tribunal committed a jurisdictional error in failing, in its interpretation of cl.5A404 of Schedule 5A, to consider all of the material that the Applicant provided to the delegate on which the primary decision was made. Mr Kumar advanced the argument that evidence was clearly before the Tribunal that the Applicant had completed 20 weeks ELICOS at GEOS College (at CB 20 between 5 November 2007 and 4 April 2008). There was also evidence before the Tribunal that the Applicant enrolled in the principal course (CB 65 on 20 July 2009). The completion of the ELICOS course preceeded the commencement of the Applicant’s principle course of the Diploma of Business Administration. Mr Kumar submits that the Tribunal failed to recognise clear and overwhelming evidence capable of satisfying cl.5A 404(b) of Schedule 5A of the Regulations. It is argued that the Tribunal erred in this conclusion that Mr Singh did not complete ELICOS as it ignored the fact that Mr Singh had completed the ELICOS course therefore satisfying 5A404(b). However, the Tribunal decision at [37] (CB 75) states:
The Tribunal finds that the Applicant did not undertake an ELICOS course before commencing his principle course of study so he cannot satsify cl.5A404(b).
Mr Kennett submits that there are three reasons why ground one cannot succeed:
Firstly, if the Tribunal had overlooked the Certificate, that would in itself be no more than an error of fact. Something more would be needed to demonstrate that the Tribunal had misconstrued the statutory requirement.
Secondly, whether a course that the Applicant had completed or proposed to complete was an “ELICOS” was a matter for assessment by the Tribunal. ELICOS is a defined term, referring to a course which is (inter alia) “intensive” (reg. 1.03). The Certificate to which reference is made gives no indication that the course in question was a course of that kind. The Tribunal cannot be said to have erred by failing to accept that the Certificate was evidence of Mr Singh having been completed an ELICOS.
Thirdly, although the Tribunal asked itself whether Mr Singh had undertaken an ELICOS, what paragraph (b) actually called for was evidence that the Applicant was “going to undertake” and ELICOS before commencing his “principal course”. This requirement was, of course, embedded in a “time of decision” criterion (cl.572.223). By the time of the Tribunal decision, it was logically impossible for such evidence to exist, since the applicant had already commenced and almost completed his principle course (CB 65, 74 at[25] and 75 at [37]).
Mr Kennett submits that the intended operation of cl.5A404(a) and (b) is as described in Rana v Minister for Immigration & Citizenship (2009) 229 FLR 329 at [34]-[39] where it is inferred:
a)a student who has a requisite level of English proficiency will not delay matters by undertaking an ELICOS before commencing a principle course (para (a)); whereas;
b)a student who has a lesser level of proficiency (such as Mr Singh) must provide evidence that tuition will be put in place (para (b)).
Evidence of an ELICOS already undertaken is irrelevant here. Mr Kennett submits that para. (b) can only be satisfied by evidence of commitment to a “future” ELICOS. There is no such evidence before the Tribunal. Further, the future ELICOS must be undertaken “before commencing” the principle course.
Observation in respect of ground one
Evidence that Mr Singh had completed a registered English Language Intensive Course for Overseas Students (ELICOS) was necessary to satisfy reg.1.03. The Certificate at CB p.20 from GEOS International Colleges Oceana is a Certificate of achievement which states:
This is to certify that Prabhjot Singh has attended a General English Course at GEOS Sydney for 20 weeks between 5th November 2007 and 4th April 2008. The final level studied was intermediate: Reading 4 Writing 4 Speaking 3 Listening 3.
On the face of the document, the language does not indicate that what Mr Singh had attended and completed an ELICOS course which could satisfy the definition. It was an issue of fact for the Tribunal to ascertain whether Mr Singh had provided evidence to show he had completed an ELICOS. The Tribunal was entitled to take the view that there was no such evidence because the Certificate did not identify that the course met the statutory requirement.
This statutory requirement is set out in cl.5A404(a) and (b). Paragraph. (a) states that a student must achieve an IELTS test result of at least 5.5 but Mr Singh did not satisfy this requirement. This requirement appears to ensure that the student begins the course immediately.
Paragraph (b) provides for two sub requirements as follows:
(i) will undertake an ELICOS of not more than 20 weeks duration for commencing his or her principle course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0
The document appearing at p.20 of the CB does not assist Mr Singh in satisfying either of these requirements. When the Tribunal made its decision, the Applicant had commenced his principle course and in fact had completed more than 75% of it. Therefore, he cannot meet that requirement in any event but certainly evidence of having undertaken an ELICOS a year or two earlier would not have assisted him with it.
I accept the submissions made by Mr Kennett and I have formed the view that the Certificate that appears on p.20 of the CB was not a critical document. There was no material error in the Tribunal not referring to it. Consequently, ground one cannot be sustained.
Ground two
Mr Kumar contends that Mr Singh could satisfy the English language requirement alternatively by relying on cl 5A404(d)(iii). In support of this, Mr Kumar contends that Mr Singh had completed a substantial part of a course (CB 65) and held a Certificate IV. Mr Singh had advised the Tribunal at the hearing that he held the Certificate and on request forwarded it to the Tribunal. However, according to the Tribunal the Certificate was not received.
Mr Kumar submits that the Tribunal committed a jurisdictional error by erring in its interpretation of cl.5A404 of Schedule 5A, and by not considering all the material that Mr Singh provided to the Tribunal. Mr Singh was therefore denied natural justice / procedural fairness by failing to consider Certificate IV. Mr Singh claims that he forwarded the Certificate to the Tribunal by facsimile transmission on 12 April 2010. Mr Kumar submits that the Tribunal failed to consider (despite evidence before it at CB 20) that Mr Singh had completed an ELICOS at GEOS College in Sydney. The Tribunal erred in its interpretation of cl.5A404(b)(i) of Schedule 5A when it stated that Mr Singh did not qualify pursuant to this clause when the Tribunal stated in its decision at para [37] (CB 75), that Mr Singh did not complete an ELICOS.
Mr Kumar submits that the Tribunal also erred in its interpretation of cl.5A404(d)(iii) and / or failed to consider all the material, in particular, evidence that Mr Singh had subsequently completed a course leading to a Certificate IV level or higher. He submits that the Tribunal ignored the Pacific College of Technology Certificate IV in Graduate Administration dated 17 April 2009, and a letter dated 12 April 2010 (signed by Romi Kharal), from Pacific College of Technology stating that Mr Singh had completed more than 75% of the Diploma of Business Administration course. Mr Kumar submits that Mr Singh was reminded on 6 April 2010 (CB 64) to send documents including the Pacific College of Technology Certificate IV. Mr Kumar submits Mr Singh had forwarded documents by facsimile to the Tribunal on 12 April 2010 which included the Pacific College of Technology Certificate IV in Graduate Administration, dated 17 April 2009, as deposed in his second affidavit. Mr Kumar submits that the Tribunal has made a decision in ignorance of the documents before it, as the Applicant had satisfied the English language requirement under cl.5A404(b) and, alternatively under cl5A404(d)(iii).
Mr Kennett submits that the Certificate, issued by Pacific College and dated 20 April 2009, recording that Mr Singh had fulfilled the requirements for a Certificate IV in business administration (Exhibit A3), is not on the Tribunal’s file in the present matter. The evidence led by the Minister is that the Certificate was not received by the Tribunal at any stage prior to the commencement of the proceedings (affidavit of Sonja Karsai affirmed 22 July 2010). Mr Kennett submits that this document was not before the Tribunal and there is no error in failing to have regard to it.
Mr Kennett submits that it is relevant to note the following:
a)No mention was made of a Certificate level IV course in Business Administration in the Applicant’s visa application which was lodged in November 2008 and at this time he claimed to be engaged in a Certificate III course at a different college, which was due to finish in April 2009 (CB 4-5, 18-19);
b)On 6 February 2009 the Applicant told the Tribunal that he was studying for his Certificate IV in Business Administration (CB 47) but did not provide any documentation (although he did submit a new confirmation of enrolment document for his diploma course) (CB 51);
c)At the Tribunal hearing on 6 April 2010, he asserted that he had completed the Certificate IV course but again did not provide any documentation (decision record CB 73 at [22], 74 at [25], [30], 75 at [40]);
d)On the same day, a Tribunal member rang Mr Singh and asked him to provide him more details about the Certificate IV course (CB 64); and
e)On 12 April the Tribunal received a one page facsimile message (CB 65, affidavit of Ms Karsai at [8] and annexures B and C) consisting of a letter from Pacific College relating solely to the Applicant’s Diploma course.
Mr Kennett submits that the evidence that had Mr Singh completed a Certificate IV course could only have assisted him in satisfying cl.5A404(d)(iii) if there was also evidence that he was a holder of a Student visa during a “substantial part” of that course. The Tribunal was not satisfied of this (CB 75 at [40]) and it could not have been satisfied merely on the basis of a Certificate of completion. There was evidence that the Applicant’s previous student visa had expired on 5 November 2008 (CB 24) but there was no indication of when he had begun the Certificate IV course.
Observations in respect of ground two
The issue in respect of this ground is whether the actual Certificate, allegedly sent to the Tribunal by facsimile was before the Tribunal. Annexed to the affidavit of Sonja Karsai affirmed 22 July 2010 is a copy of the entire Tribunal file and Ms Cussai gives evidence in para. 10 that she conducted and directed wider searches on the Tribunal database in an attempt to locate the Certificate. However, the search results were negative. In paragraph 8 of her affidavit, she deposes that there are no electronic records of the Certificate.
Annexure B to Ms Cussai’s affidavit is a copy of the screen print from the Tribunal’s database which records outgoing and incoming documents that relate to Mr Singh’s file. In that record, there are four documents described as incoming. One of them is described as “general submission” and is dated 12 April 2010 at 14:17 hours. That document appears at CB p.65. Mr Singh’s sworn testimony was that on that date he took four documents to a newsagent to forward by facsimile to the Tribunal. This single page is also reproduced as Annexure “C” to Ms Cassai’s affidavit. Significantly at the base of that document (CB 65 and annexure C) there is a facsimile machine print out which states:
PAGE 1/1 * RCVD AT 12/042010 1:30:03 PM [AUS Eastern standard time] SVR: SYD FAX 1/0 * DNIS: 5599*CSID*DURATION (mm-ss: 00.26)
The objective material records that the Tribunal received at that time a one page facsimile. The oral evidence of Mr Singh is that he believes there were four documents sent to the Tribunal. However, he did not physically operate the machine and he does not have any documented confirmation regarding how many pages were actually sent.
The Court must also consider that if the Certificate was received and available to the Tribunal, would it have changed the outcome of the decision? The relevant part is cl.5A404(b)(iii) which states:
As a holder of a student visa – successfully completed a substantial part of a course (other than a foundation course) that:
(A) was conducted in English; and
(B) was leading to a qualification from the Australian qualifications framework at Certificate IV level or higher.
The Tribunal addressed this issue in para. 40 (CB 75) where it noted that Mr Singh had claimed that he had successfully completed a Certificate IV course. The Tribunal stated that he did not provide evidence to indicate that he had completed this course. That problem would have been partially overcome if the Tribunal had received that document. However the evidence before this Court was that the Tribunal did not.
The Tribunal addressed the requirement set out in cl.5A404(d)(iii) which requires Mr Singh to have:
successfully completed a substantial part of that course while on a Student visa. The Tribunal member came to this realisation after the interview with Mr Singh was completed and instructed a staff member to follow this up. This resulted in case note 4170089 issued 6 April 2010 at 3:09pm and states:
as requested by the member I rang the RA via TIS (JOB no: 10247221) to advise him that he had just realised that his student visa ceased on 5 11 208 and for him to satisfy the conditions discussed at the hearing he had to be on a student visa at the time he did the Certificate IV course or his current course. I asked him to provide a copy of his passport with all Australian visas he has been granted and details regarding his Certificate IV course, including when it commenced and how much he had completed by 511208 when his student visa expired. He said he understood and would provide the requested information within one week. (CB 64)
In the affidavit of Ms Cassai, Annexure “D” folio 27 there is a print out of Mr Singh’s movement details and the visas that he has held since his initial visa was granted in September 2007. Mr Singh arrived in Australia on 1 October 2007 and there was a further visa granted on 13 November 2007 which ceased on 5 November 2008. That was visa category TU 570 which is a student visa. Following that expiry, he was granted a category WA 0100, a bridging visa. A further Bridging Class visa was granted on 17 April 2009 category WB 0020 Bridging visa. Mr Singh ceased to be the holder of a student visa on 5 November 2008. If the Certificate IV was before the Tribunal, it would not establish that Mr Singh had completed a substantial part of his Certificate IV course as a holder of a student visa (decision record at [40], CB 75). I am satisfied that the document would not have been sufficient to satisfy the requirements of the Regulations. This ground cannot be sustained.
Ground three
Mr Kumar acknowledges that there may not be a general duty on the Tribunal to make enquiries. However, there are limited circumstances which render a decision invalid for failure to enquire. Mr Kumar submits that in undertaking a review of the delegate’s decision, the Tribunal in this instance “was bound to make its own enquiries and form its own views” about the application being made: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at [26]; further discussed in Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 at [18]. The fact that Mr Singh was asserting that he did have a Certificate IV was readily discernable: SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372 at [29].
Mr Kumar submits that Mr Singh had advised the Tribunal that he had completed Certificate IV (decision record at [22] CB 73.5). It was argued that the Tribunal was made aware of this critical qualification to be held by Mr Singh in a number of ways other than at the hearing. On 6 February 2009, Mr Singh had advised the Tribunal that he was enrolling in Certificate IV from Pacific College (CB 47).
Mr Kumar relies on the decision in Khant v Minister for Immigration & Citizenship [2009] FCA 1247 per Cowdroy J at [63]-[80], [82] where His Honour found that there would be a duty on the Tribunal to enquire in some circumstances. It was argued that the Tribunal was clearly on notice about the existence of Certificate IV from Pacific College of Technology (Tribunal decision at [44], CB 75.9) as it states:
…The Tribunal finds that the Applicant had not given the Tribunal evidence in accordance with the requirements in Schedule 5A for sub-class 572 and assessment level 4.
Mr Singh has attempted to provide all the documents that he had foreshadowed at the hearing
Mr Kumar argues that the Applicant’s qualifications was critical factor in the determination of the matter before the Tribunal. The evidence was easily available by a telephone call to Pacific College: Khant v Minister for Immigration (supra) at [75]-[80]. Mr Singh submits if the document had reached the Tribunal, the Tribunal that would have been satisfied under Schedule 5A404(d)(iii): Khant v Minister for Immigration & Citizenship (supra) at [68]-[72].
Mr Kumar submits that this enquiry should have been made prior to making the decision. Particularly, when it was indicated on 6 April 2010 that this document was required and that Mr Singh had followed it up: Khant v Minister for Immigration & Citizenship (supra) at [72]-[74].
It is submitted that a duty arose as Mr Singh:
a)had the qualifications;
b)he foreshadowed that he held a Certificate IV before the hearing (CB 47 and 64) and at the hearing (CB 73.5);
c)that he would be forwarding the Certificate; and
d)the decision turned on the Certificate and would have satisfied the English language requirements.
Mr Kumar submits that in Yang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 258 Ryan and Finkelstein JJ at [29] imposed an obligation on a Tribunal to enquire further in circumstances where the Tribunal sought to rely on “obscure statement” about the qualifications a student Applicant had obtained in China.
Mr Kumar also relied upon Luu v Renevier (1989) 91 ALR 39 per Davis, Wilcox and Pincus JJ at [50] where their Honours held that the failure of a decision maker to make further enquiries before making critical findings unsupported by probative evidence renders the decision unreasonable.
Mr Kumar submits that the missing information in this case is a critical fact that was readily ascertainable. The Tribunal was clearly aware that this fact was crucial to make its decision (decision record at [40], CB 75.6) yet it did not take a step of making a telephone call. The Tribunal would also have been aware that Mr Singh himself was contacting the Tribunal to ascertain if all the information had reached the Tribunal. Mr Singh had previously stated that he had a Certificate IV as noted by the Tribunal ([22], CB 73.6).
Mr Kumar submits that the exercise of this power by the Tribunal was so unreasonable that no reasonable Tribunal would have exercised it It is submitted that the Tribunal did not make any further attempt to obtain the information: Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108 at [110]; SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372 at [19].
Mr Kennett argues that the relevant information (as to the details of the Certificate IV course which Mr Singh said he had completed) was known by Mr Singh. Mr Singh agreed to supply the information which he had agreed to do. It is argued that he could not have failed to understand that it was in his interest to do so. In those circumstances, there was no unreasonableness by the Tribunal and Mr Singh was left to furnish the information if he wished. It was Mr Singh’s responsibility to advance his case: SZNWA v Minister for Immigration & Citizenship [2010] FCA 470 per Foster J at [37], [41]; Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [187]; Minister for Immigration & Multicultural Affairs, Re; Ex parte Applicant S 154/2002 (2003) 201 ALR 437 per Gummow and Heydon JJ at [57]; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [40].
Observations re Ground three
The decision SZNWA v Minister for Immigration & Citizenship (supra) was a case where an Applicant in the proceedings before the Tribunal referred to the existence of a document which he said would assist his case. The Tribunal never received that document. His Honour notes at [37] that the Applicant had not asked for an adjournment in order to procure the document. At [40] His Honour referred to the decision of the High Court in SZIAI and then at [41] His Honour states:
It was not unreasonable for the Tribunal to proceed on the basis that it was a matter for the Applicant as to whether or not the penalty or notice would be provided by the Tribunal.
His Honour accepts the submission from the Minister that:
The Tribunal can hardly be expected to hijack the task of running the Applicant’s case for her by making enquiries of the Applicant’s migration agent or taking any other steps which the Applicant now asserts should have been taken. There would usually have been good reason for the Tribunal not to have gone down that path.
His Honour then refers to Abebe v Commonwealth (supra) which is authority that it is for the review Applicant to put forward whatever evidence he or she wants the Tribunal to examine.
I am satisfied that the Applicant had foreshadowed evidence in his case but did not deliver the material to the Tribunal.
Ground four
Mr Kumar submits that the decision record at [44] (CB 75.9) the Tribunal states:
The Tribunal finds that the Applicant has not given the Tribunal evidence, in accordance with the requirements of Schedule 5A for sub class 572 at assessment level 4.
Mr Kumar submits that such a finding is flawed as the material was already provided to the delegate. Mr Kumar argues that the Tribunal committed jurisdictional error when it misconceived its role at [44] (CB 75.9) and required Mr Singh to provide material afresh in circumstances in the material to satisfy the English language requirement under cl.5A404(b) of the Regulations had already been provided.
Mr Kennett submits that the Tribunal’s reasons provide no basis for an inference that it undertook its task by requiring that all relevant evidence be submitted rather than considering material that had been submitted to the delegate. The conclusion that Mr Singh had not “given the Tribunal” evidence in accordance with cl.5A404, fairly and in context, was merely noting that at all relevant evidence needed to be before the Tribunal (as decision maker). It does not follow that relevant material on the Departmental file would not be considered. If that had been the Tribunal’s understanding, any error would not have been material. There was “no evidence” provided to the Department that assisted the Applicant in satisfying the requirement of cl.5A404.
Observations re ground four
In the decision record at para. [14] the member records the following:
The Tribunal has before it the Departmental file CLF 2009 /24946, with the student’s visa application and the delegate’s decision, and the Migration Review Tribunal’s (MRT file 0900858, with the review application). I accept the submissions of Mr Kennett that there is no basis for the claimed inference that the Tribunal member disregarded the content of the Departmental file and required Mr Singh to file all material again to support his review application.
As discussed above, the essential documents which led to the rejection of Mr Singh’s visa were not present. An officer from the Tribunal contacted him indicating that there were documents missing and asked that he provide them. Although Mr Singh claims that he took steps to forward four documents to the Tribunal, the evidence clearly indicates that the Tribunal only ever received one of those documents. This is detailed in the observations regarding ground three. In these circumstances, ground four cannot be sustained.
Ground five
Ground five was not pressed.
Ground six
Mr Kumar submits that the Tribunal was dealing with the subject of the ELICOS course. Mr Singh claims that he completed the course at the time of the review. The Tribunal states that:
the papers he submitted did not indicate that he was an ELICOS student. (decision record at [20], CB 73)
Mr Kumar submits that the Tribunal failed to accord a hearing to Mr Singh, in addition to the Tribunal failing to consider the completion of an ELICOS course as a relevant consideration. Mr Kumar submits that the ELICOS Certificate was already before the delegate. (CB 20). Mr Kumar submits that the Tribunal committed jurisdictional error by failing to allow the Applicant to be heard in relation to the ELICOS and was in breach of s.360 of the Act.
Mr Kennett submits that ground six relates to cl.5A404(d)(iii) and (iv), and the Certificate IV course whereas the argument addressed in Mr Kumar’s submissions refer to a different subject being the question of whether Mr Singh had completed an ELICOS. Mr Kennett submits as to either issue the submission that Mr Singh was denied a hearing cannot be maintained because:
a)On the Certificate IV point, the only evidence about the hearing (namely the Tribunal’s summary), serves to confirm that Mr Singh put forward his position, was pressed for further information, and was given an opportunity to provide that information at a later date (decision record at [22], [25], [30]).
b)On the ELICOS point, the summary of the hearing indicates that it was put to Mr Singh that “the papers he submitted did not indicate that he was an ELICOS student”. (decision record at [20]). Even if s.360 of the Act required the Tribunal to outline to the Applicant what it saw as gaps in the material, Mr Singh had put forward, and invited further submissions or evidence the evidence before the Tribunal provides no basis for a finding that was done.
Observations re ground six
Paragraph 20 of the decision record states:
The Tribunal discussed with the Applicant the schedule 5A requirement relating to English language proficiency for the visa she was seeking to obtain. The Tribunal indicated to the Applicant that the IELTS result he submitted did not satisfy the minimum requirement of a 5.5 IELTS result for the purposes of cl.5A404(a). The Tribunal noted that only a 5.0 score was required for a person undertaking an ELICOS course, as per the requirements of cl.5A404(b), but the papers he submitted did not indicate that he was an ELICOS student. (CB 73)
That paragraph clearly indicates that only a 5.0 score was required for a person undertaking an ELICOS course. However, the papers that Mr Singh had submitted did not indicate that he was an ELICOS student. I am satisfied that the above paragraph clearly indicates that the point was raised with Mr Singh to allow him to understand that the Tribunal did not believe he had sufficiently evidenced this point. In the absence of a verified transcript, the Court must rely on the decision record and I am satisfied that document indicates that the issue was fairly raised by the Tribunal with Mr Singh. Consequently, there can be no failure to comply with s.360 of the Act and this ground cannot be sustained.
Conclusion
I am satisfied that none of the grounds in the amended application can be sustained and that this application should be dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 21 December 2010
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