Singh v Minister for Immigration
[2019] FCCA 2343
•20 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2343 |
| Catchwords: MIGRATION – Skilled Graduate (Temporary) (Class VC) visa – decision of Administrative Appeals Tribunal – whether Tribunal failed to afford natural justice – whether applicant had provided “information” – no jurisdictional error – application dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.2A Migration Act 1958 (Cth), ss.65, 358, 359, 359A, 359B, 359C, 360, 363, 379C, 476 Migration Regulations 1994 (Cth), reg.4.17, cll.485.221, 485.224 of sch.2 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 |
| Applicant: | SURENDER PAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 365 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 27 May 2019 and 19 August 2019 |
| Date of Last Submission: | 19 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 20 August 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 365 of 2018
| SURENDER PAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
By application filed in this Court on 4 July 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 25 June 2018.
The Tribunal affirmed a decision of a delegate of the now Minister for Home Affairs (the “Minister”) not to grant the applicant a Skilled Graduate (Temporary) (Class VC) visa (the “visa”).
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
Factual background
The Court had before it a Court Book (“CB”) numbering 72 pages and marked as Exhibit 1. The Court has reviewed the material therein in detail.
The Court notes that the Minister’s written submissions filed on 6 May 2019 at [2]-[10] accurately summarise the factual history of this matter. The Court adopts those submissions as its own. They provided, relevantly, as follows.
The applicant, a citizen of India, applied for the visa on 1 September 2011 (CB 1-11), nominating his occupation as a cook and stating that he held a skills assessment (reference TRA10/695174815) issued by Trades Recognition Australia on 24 August 2010 (CB 8). A copy of that skills assessment was not provided with the visa application.
On 28 March 2012, the delegate refused to grant the visa (CB 15-24). The delegate found that the applicant did not met cl.485.224 of the Migration Regulations 1994 (Cth) (the “Regulations”) (as it was at the time of the visa application), as he did not meet Public Interest Criteria 4020 (“PIC 4020”). The delegate found that the applicant did not meet PIC 4020, as he had provided false or misleading information in his visa application in so far as he claimed to have been the subject of a successful skills assessment from Trade Recognition Australia (being skills assessment reference TRA10/695174815). Departmental inquiries with Trade Recognition Australia had revealed that that organisation had no record of providing the applicant with a skills assessment (see CB 12-14 at 13, and CB 22).
On 22 August 2016, the applicant was re-notified of the decision to refuse his visa application (CB 25-28).
The applicant applied to the Tribunal for a review of the delegate’s decision. On 2 December 2016, the Tribunal found that it did not have jurisdiction to review the decision, as the prescribed application fee had not been paid (CB 32-34). The applicant sought judicial review of this decision, and the matter was remitted to the Tribunal by consent by order of this Honourable Court on 13 July 2017 (CB 35-36).
On 10 May 2018, the Tribunal invited the applicant (pursuant to s. 359(2) of the Act) to provide information in writing as to whether he met cl.485.224 of the Regulations (CB 51-52). The reference to cl.485.224 of the Regulations in that invitation was an error, in that the relevant clause of the Regulations (as they were at the time of the visa application) that concerned skills assessments was clause 485.221.
On 6 June 2018, the Tribunal sent a further invitation to the applicant (pursuant to s.359(2) of the Act) to provide information in writing as to whether he met cl.485.221 of the Regulations (as it was at the time of the visa application) (CB 54-55). Clause 485.221 of the Regulations (as it was at the time of the visa application) provided as follows:
(1) The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.
(2) If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder a registered course.
The invitation advised the applicant that he could seek an extension of time in which to provide the information (CB 54); and that, if the information was not provided in writing by 20 June 2018 and no extension of time had been sought, the Tribunal may make a decision on the review without taking further steps to obtain the information (CB 54). The invitation further notified the applicant that, in those circumstances, he would lose any entitlement he might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments (CB 54).
The applicant sent emails to the Tribunal on 19 June 2018 (CB 56 and CB 57) and 20 June 2018 (CB 61). Attached to one of the emails was a letter from the applicant in which he stated:
I am writing in relation to my application, So far my agent lodged this application in 2012 As i have given him too my all required documents and after lodging the application everything was under control until 2012 but in 2012 there time comes where Dance of life been taken a place unconsciously and i found myself in immigration detention centre, I Mean i was detained by immigration and border protection by the time i never had any chance by immigration to collect my all study documents, travel documents etc. Almost was forgot about this application by being in detention centre, Then suddenly i got my visa back somewhere in 2016 and immigration gave me another chance to review the application after being through brain washed and now i have no idea, what to do to remain strong.
On 25 June 2018, the Tribunal refused to grant the applicant the visa (CB 63-67).
The Court notes that any error in the Tribunal’s letter dated 10 May 2018 (which is referred to at [10] above) was remedied by the letter dated 6 June 2018. The Court will not consider the letter dated 10 May 2018 any further.
Tribunal Decision
At [1]-[4] in its decision, the Tribunal provided a brief factual history of the matter.
At [5]-[7], the Tribunal referred to the invitation and the response the applicant had provided (which the Court has already referred to at [11]-[13] above).
At [8]-[9], the Tribunal noted that the applicant had not provided the information it had requested (ie, information that showed that he met cl.485.221) and that his statement that he had “no idea what to do to remain strong” did not amount to the “provision of information”.
As to the remainder of the Tribunal’s decision, the Minister accurately summarised this at [12]-[14] in his written submissions. The Court adopts the summary provided in those submissions as its own. It provides as follows.
The Tribunal found that, in the circumstances, s.359C of the Act applied and that, pursuant to ss.360(3) and 363A of the Act, the applicant was not entitled to appear before the Tribunal, had no entitlement to a hearing, and that the Tribunal had no power to permit him to appear (CB 66 at [10]).
The Tribunal considered whether it ought to adjourn its review of this matter, pursuant to s.363(1)(b) of the Act, and to allow the applicant additional time in which to provide further evidence in support of his application (CB 66 at [11]). After considering the relevant judicial authorities (CB 66 at [12]-[13]), the Tribunal concluded that the applicant had had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria (CB 66 at [16]). In the circumstances, the Tribunal decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review and allow further time for the applicant to demonstrate that he met the requirements of cl.485.221 (CB 66 at [17]).
The Tribunal concluded, on the evidence before it, that it was not satisfied that the skills of the applicant for his nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation (CB 67 at [23]). The Tribunal therefore found that the Applicant had not met the requirements of cl.485.221(1) of the Regulations (CB 67 at [23]), and affirmed the decision under review (CB 67 at [24]-[25]).
Proceedings in this Court
The applicant filed his application in this Court on 4 July 2018.
That application contained six “grounds of review”:
(1) There are some jurisdictional errors in MRT decision.
(2) The MRT member did not assess my skilled provision (class VC) properly.
(3) The MRT deprived me of Natural Justice.
(4) The MRT member made an error of law since the decision the MRT member made regarding my case is wrong.
(5) The MRT made an error of law for not considering my case.
(6) The MRT member made an error of law by not considering evidence which was significant and critical to the decision under Review.
In support of the applicant’s application, the applicant filed an affidavit affirmed 4 July 2018 in which he annexed a copy of the Tribunal’s decision.
Despite being given an opportunity by a Registrar of this Court to amend his application to provide “particulars”, any affidavit evidence and written submissions, no further information was provided by the applicant.
The applicant’s grounds of review remain unparticularised.
It has historically been the case that a failure to provide particulars in submissions would allow for dismissal on that basis alone. However, the Court notes the recent comments of Anastassiou J in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] that an unrepresented applicant ought to be given an opportunity to explain any concerns he has with the Tribunal’s decision and adopts that approach as preferable.
In this context, the Court explained to the applicant that the Court could look at the issue of jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, they most commonly include the following categories:
a)where the decision make identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision, or grant him the visa. Rather, the role of the Court is strictly to determine if the Tribunal made a material error in arriving at the decision it has on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
In these circumstances, the Court asked the applicant to explain what he believes the Tribunal “did wrong”.
Unfortunately, the applicant did not provide any information that assisted him in relation to the issue of jurisdictional error.
This matter was heard over two days. During the course of the hearing on 27 May 2019, the Court had an exchange with the Minister over an issue arising in relation to the applicant’s ground 3. The Court asked the Minister to file further written submissions. The applicant was provided an opportunity to respond.
The Minister filed written submissions on 17 June 2019. The applicant filed no further materials.
On 19 August 2019, the matter returned to the Court for further hearing. The applicant was again given an opportunity to raise any matters in relation to the issue of jurisdictional error.
Unfortunately, the applicant was again unable to provide any information other than information or concerns which appealed to the merits of the Tribunal’s decision.
In the circumstances, the Court will address the application for judicial review as filed in this Court. It does so below.
Ground 1
(1) There are some jurisdictional errors in MRT decision.
Ground 1 boldly asserts there is jurisdictional error in the decision. It is difficult for the Court to determine what the applicant is alleging here.
The Court is of the view that the reference to “some jurisdictional errors” refers to the (arguably) more specific matters stated in the grounds that follow. These will be considered below.
Ground 2
(2) The MRT member did not assess my skilled provision (class VC) properly.
This ground is also vague.
It is apparent that the Tribunal assessed the applicant’s skilled provision visa. At [1]-[2], it expressly acknowledged the applicant had applied for that particular visa and correctly identified the Regulations he was required to meet and satisfy.
At [20], the Tribunal again noted the applicant applied for the skilled visa and at [23] the Tribunal noted that there was no evidence or information before it that he met cl.485.221(1) of the Regulations. The applicant was required to meet that criterion at the time of the decision. That fact that did not meant that the Tribunal had no choice but to refuse the visa.
It cannot be said here that the Tribunal failed to do what was required of it. Ground 2 must, accordingly, fail.
Ground 3
(3) The MRT deprived me of Natural Justice.
The applicant argues he was denied “natural justice”. The Court has approached this ground on the basis that the applicant is arguing that the Tribunal failed to invite him to a hearing and that, in some way, this denied him rights to which he was entitled.
It is true that the applicant was not invited to a hearing. However, the Tribunal had determined that, as the applicant had not “responded to” the information in the invitation, s.359C applied.
At [8]-[11], the Tribunal stated as follows:
8. The review applicant has not provided the information that his skills have been assessed by the relevant assessing authority as suitable for his nominated occupation and that he meets cl.485.221 (1) of the Migration Regulations within the prescribed period.
9. The Tribunal does not consider that the review applicant’s response of 20 June 2018 by which he informed the Tribunal that he has ‘no idea what to do to remain strong’ amounts to provision of information requested by s.359(2) letter.
10. In these circumstances, s.359C applies and pursuant to s.360 (3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if review applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40.
11. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support his review application.
Section 359C of the Act provides:
(1)If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
The Court asked the Minister whether the applicant’s email response on 20 June 2018 (sent within the prescribed time) was “information” for the purposes of s.359C of the Act. In circumstances where an applicant loses an entitlement to attend a hearing for failing to provide information, the Court wanted to be satisfied that nothing in the response could constitute “information”.
If the Tribunal was correct in finding that s.359C applied then consequently, by virtue of s.360(3) of the Act, the applicant would lose any entitlement to attend a hearing before the Tribunal and by virtue of s.363A, the Tribunal would have no discretion to invite the applicant to attend a hearing. However, the Tribunal could adjourn and allow the applicant time to file further written submissions. Whether or not it was reasonable in the circumstances of this matter for it not to adjourn is addressed below.
Minister’s submissions
In relation to this issue, the Minister filed written submissions which argued as follows:
a)the Minister accepts that, where an invitation has been issued to an applicant inviting them to comment on or respond to information under s.359A the authorities suggest that any response, provided it is directed to the information the subject of the invitation, will be sufficient to prevent the operation of ss.359C and 360; however that reasoning does not extend to invitations to provide information issued under s.359 of the Act;
b)whilst similar in many respects, s.359(1) is nonetheless distinguishable from s.359A of the Act. Section 359A requires the Tribunal (inter alia) to give to an applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, and to invite the applicant to “comment on or respond to it” (s.359A(1)(c)). The focus of s.359(1) is on the obtaining of information and does not involve any invitation to comment on or respond to the information;
c)therefore, in the case of an invitation issued under s.359(1), it is not a failure to “comment on or respond” to the invitation that triggers the operation of ss.359C(1) and 360. Rather, it is the failure to “give the information” that triggers the operation of those sections (s.359C(1)(b));
d)in the circumstances, where an applicant does not “give the information” requested in the invitation issued under s.359(1) within the specified time (s.359C(1)(b)), the applicant is not entitled to appear at a hearing before the Tribunal;
e)upon ss.359C(1), 360(2) and 360(3) being engaged in a particular case, an applicant will have no entitlement to attend a hearing, and the Tribunal does not have power to permit the applicant to attend a hearing;
f)in the present case, the Tribunal issued an invitation to the applicant to provide information pursuant to s.359 of the Act. That invitation complied with the requirements of s.359B of the Act, including seeking the information within the prescribed period of 14 days (see reg.4.17(4) of the Regulations). The invitation was, therefore, validly issued;
g)as the applicant failed to “give the information” within the prescribed period (s.359C(1)(b)), the Tribunal was entitled to proceed make a decision on the review without taking any further action to obtain the information, pursuant to s.359C(1) of the Act. Further, pursuant to ss.360(2)(c) and 360(3) of the Act, the failure of the applicant to give the relevant information in response to the invitation under s.359, had the effect that the applicant was not entitled to appear before the Tribunal at a hearing; and
h)the applicant’s emails to the Tribunal did not include a specific request for an extension of time in which to provide the information. Nonetheless, the Tribunal proceeded and considered whether to adjourn the review and allow the applicant further time in which to respond to the invitation under s.359 of the Act. In the circumstances, it is submitted that the Tribunal acted in a way that is fair and just, and consistent with the requirements of s.357A(3) of the Act.
Consideration
The question for the Court is whether the Tribunal was correct to find, or proceed on the basis that, s.359C of the Act applied in relation to the applicant in the particular circumstances before it. Here, the Court must be satisfied that:
a)the invitation was valid: the Act, s.359C(2)(a); and
b)the applicant did not “give the information” to the Tribunal within the prescribed time: the Act, s.359C(2)(b).
The requirements for the invitation in circumstances such as this are found in s.359B of the Act. The Court accepts that the invitation conformed to the requirements of the Act. Specifically:
a)the invitation was sent by email to the applicant’s nominated address and the applicant consented to the Tribunal communicating with him via email (CB 42); and
b)the invitation was deemed to have been received by the end of the day on 6 June 2018 (s.379C(5) of the Act) and therefore the time in which it was indicated for the applicant to respond was in accordance with the “prescribed period” (being 14 days) dictated by reg.4.17(4) of the Regulations.
Turning to the second part of the enquiry (ie, whether the applicant provided a comment or response to the information), it is noted that the invitation provided as follows:
On 10 May 2018, the Tribunal invited you to provide information in writing pursuant to s.359 (2) of the Migration Act. This letter referred to the incorrect clause of the Migration Regulations (cl 485.224 instead of cl.485.221) and as such was defective and will not attract any legal consequences.
You are invited to provide the following information in writing:
• Information in writing demonstrating that you meet cl.485.221 of the Migration Regulations (attached for your convenience).
The applicant responded on 20 June 2018 (within the prescribed time) in the following manner:
I am writing in relation to my application, So far my agent lodged this application in 2012 As i have given him too my all required documents and after lodging the application everything was under control until 2012 but in 2012 there time comes where Dance of life been taken a place unconsciously and i found myself in immigration detention centre, I Mean i was detained by immigration and border protection by the time i never had any chance by immigration to collect my all study documents, travel documents etc. Almost was forgot about this application by being in detention centre, Then suddenly i got my visa back somewhere in 2016 and immigration gave me another chance to review the application after being through brain washed and now i have no idea, what to do to remain strong.
The question here is was the email on 20 June 2018 information?
Whether the email was “information” given in response to the invitation is a jurisdictional fact: Minister for Immigration & Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11at [19] (“Saba”).
In Saba, at [30]-[31] Jagot J stated:
30 Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: “comment on or respond to” the information in the case of s 359A(1)(c), and “the comments or the response” in the case of s 359C(2)(b). This indicates that an applicant may either “comment on” or “respond to” the information in the invitation, or both comment on and respond to the information. The choice – to comment, respond or both – is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines “to comment” as “to make comments or remarks [upon]”; by contrast, “to respond” is simply “to answer in speech or writing; to reply”. An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.
31 It is true that s 359C(2)(b), read with s 359A(1)(c), requires a response to the information in the invitation. But beyond that the Migration Act imposes no minimum requirement of content for a response or a comment. Accordingly, on the face of the provisions, any reply or answer directed to the information itself will constitute a response.
(Emphasis added)
It is true that Saba concerned an invitation under s.359A of the Act which required the applicant to “comment” or “respond” to certain information. Here, the invitation was issued under s.359 of the Act, which required the applicant to give information. The question is whether the response the applicant gave on 20 June 2018 was information that was directed to what the invitation sought.
In Kaur v Minister for Immigration & Border Protection [2016] FCCA 2235 at [21]-[22], Judge Smith stated as follows:
21 The apparent difficulty with this invitation arises from the fact that it identifies the information sought as that which “demonstrates that a nomination … has been approved.” The difficulty arises because of the consequences of a failure by the applicant to provide the information within the required time, namely, the loss of a right to attend a hearing. Suppose, for example, that the applicant had provided some information that was relevant to the issue of approval but the Tribunal was not satisfied that this information established the approval; that would mean that the Tribunal's view of the information, would be determinative of whether or not the applicant had the right to a hearing. Such a result would involve significant unfairness and suggest against a construction of s 359 that would allow it.
22 However, as counsel for the Minister submitted, the resolution lies in a proper understanding of the letter, bearing in mind that it is, like the reasons of the Tribunal, not to be too closely scrutinised for error. On that basis, the letter sought information that could objectively demonstrate approval of the nomination. Once the invitation is read in that way, there is no unfairness and, in my view, it was an invitation under s 359(2).
In Sajjan v Minister for Immigration & Border Protection [2016] FCCA 3093, the applicant was required to provide information that “demonstrates that a nomination of an occupation made by a standard business sponsor in relation to you has been approved, and has not ceased”. The applicant provided information regarding a nomination which had expired, and informed the Tribunal that he was seeking an extension of the validity of the expired nomination from the Department. It was held by the Court that this did not amount to the “giving of the requested information”.
Here, while it could be inferred that the applicant’s response was an explanation as to why he could not demonstrate he met the criterion, the response did not “demonstrate” that the applicant met cl.485.221 of the Regulations. That was the information that was requested. It was information that was necessary for the applicant to obtain the visa. As such, without that information, his ability to be granted the visa he sought was not possible.
The Court is satisfied the Tribunal was correct to proceed on the basis that s.359C applied and that the applicant had thereby lost any entitlement to appear before the Tribunal. The applicant was not, it can be said, denied “natural justice” in not being invited to a hearing.
Noting that the applicant is unrepresented, the Court also turned to consider whether, in light of the email of 20 June 2018, it was “unreasonable” for the Tribunal not to adjourn determining the matter to allow the applicant an opportunity to provide the information requested in the invitation.
The Court notes that at [11]-[17] the Tribunal went on to assess whether it ought to adjourn the matter to allow the applicant a further opportunity to provide information that he met cl.485.221. Overall, the Tribunal overall considered the applicant’s circumstances and was not satisfied it was unreasonable for it to not allow the applicant to provide further information.
The Court is satisfied that it was reasonable for the Tribunal not adjourn in circumstances where:
a)the Tribunal was satisfied that the information would not likely be forthcoming given the applicant had not provided the information requested and had been given a fair opportunity to do so;
b)the applicant had, taking into account the invitation sent on 10 May 2018 which asked him to provide the same substantive information as the invitation but referred to the incorrect legislative provision, approximately 40 days to provide the information and had not yet done so;
c)the delegate had also put information to the applicant for comment in February 2012 and he had failed to respond to the request at that time (CB 12-14);
d)the overarching objectives of s.2A of the Administrative Appeals Tribunal Act 1975 (Cth) and the purpose of the “cascading” provisions of ss.359C, 360 and 363A of the Act;
e)the applicant indicated he had forgotten about the application; and
f)section 358 of the Act enabled the applicant to provide further documents to the Tribunal notwithstanding he had lost his entitlement to a hearing. He could, anytime, prior to the review being decided, have provided the information and evidence that he met cl.485.221; and
g)there was no evidence that any period of detention seriously undermined or hindered the applicant’s ability to provide the information necessary for the application.
The Court notes that in Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [80] her Honour Justice Mortimer stated:
…there was nothing in the facts and circumstances of this review which could have put the Tribunal on notice that the only reasonable course to take would have been to wait for a longer (unspecified) period of time before finalising the review.
That reasoning applies here.
Overall, the Tribunal is not required to indefinitely defer its decision-making processes, particularly in circumstances where it does not appear any information would be forthcoming and where, as here, the Tribunal had seemingly been advised by the applicant that he did not have the information the Tribunal was seeking and an extension of time was not asked for to obtain this information. The applicant simply indicated that all that he was doing was remaining “strong”.
The Court is satisfied that the applicant was not denied “natural justice” when the Tribunal chose not to exercise the discretion to adjourn or stay the review to allow the applicant to provide further information. It was reasonable and open for the Tribunal to do so.
Ground 3 discloses no jurisdictional error.
Ground 4
(4) The MRT member made an error of law since the decision the MRT member made regarding my case is wrong.
As to ground 4, the fact that the applicant thinks the Tribunal’s decision is wrong does not amount to jurisdictional error. Even emphatic and strong disagreement that a decision is wrong does not amount to an error.
In effect, what ground 4 seeks is impermissible merits review.
Ground 4, accordingly, fails.
Ground 5
(5) The MRT made an error of law for not considering my case.
The Court also rejects this ground of review.
Clearly, the Tribunal did consider the applicant’s case:
a)it noted the particular visa the applicant had applied for and the procedural history of his application for that visa;
b)it considered whether it ought to allow further time for the applicant to provide further evidence, and, with reference to this applicant’s particular circumstances, resolved not to; and
c)under the heading “Consideration of Claims and Evidence” the Tribunal considered whether the applicant met the primary criterion for the grant of the visa. On the material before it, which there was little, the applicant did not meet, or there was no evidence that he met, the primary criterion of cl.485.221.
The Tribunal clearly considered the applicant’s case, including his particular circumstances, and carried out its statutory task in making findings and determining if it was satisfied the applicant met the criterion to be granted the visa.
The finding that the applicant did not meet cl.485.221 was open to the Tribunal in the circumstances of the case before it. This is particularly so in the absence the evidence requested. Overall, it was reasonable for the Tribunal not to allow the applicant more time to provide the information or evidence.
Ground 5, accordingly, is dismissed.
Ground 6
(6) The MRT member made an error of law by not considering evidence which was significant and critical to the decision under Review.
The applicant has failed to identify what evidence the Tribunal did not consider.
The significant and critical factor here was that the applicant did not meet cl.485.221.
The only materials that appear to have been before the Tribunal were the visa application, the delegate’s decision, the review application to the Tribunal and the email dated 20 June 2018. The Tribunal acknowledged these documents at [1]-[3] and [7].
It might be argued that the applicant is suggesting that the Tribunal did not consider the skills assessment the applicant had submitted.
In the visa application form the applicant had marked that he had successfully completed a skills assessment. The delegate’s decision, which was before the Tribunal, refused the applicant the visa on the basis that the assessment number the applicant had provided in his application appeared to be a “bogus document” and that inquiries had been made and they indicated that the applicant did not, in fact, hold the skills assessment he had stated in his application.
The applicant can, arguably, be taken to have been on notice that a dispositive issue was whether he satisfied the requirement that he held a skills assessment from the relevant assessing authority.
When considering the “Claims and Evidence” the Tribunal noted that on the evidence before it, being the impugned skills assessment submitted with the visa application, it was not satisfied the applicant met cl.485.221.
There were no other claims or evidence that were provided for the Tribunal to consider, despite the applicant being on notice from the delegate’s decision and the invitation that a significant and critical matter in the review was his satisfaction of cl.485.221.
The Tribunal considered all of the applicant’s circumstances and all of the evidence to arrive at a conclusion that was reasonably open to it – that is, that the applicant had not demonstrated he met cl.485.221.
It was not for the Tribunal to make a finding that the applicant had not undertaken an assessment or that the assessment the applicant had identified in his visa application was fraudulent or legitimate. It was for the applicant to satisfy the Tribunal he met the criterion. On the basis of the materials he had provided, it was not so satisfied.
In the absence of being affirmatively satisfied that the applicant met cl.485.221, the Tribunal was mandated to refuse the applicant the visa: the Act, s.65.
Ground 6 discloses no jurisdictional error.
Conclusion
The Court has failed to identify jurisdictional error in the grounds of the judicial review applications, or otherwise on the face of the Tribunal decision.
The application, therefore, must be dismissed.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 3 September 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Natural Justice
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Judicial Review
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Jurisdiction
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Procedural Fairness
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