Singh v Minister for Immigration and Border Protection

[2014] FCA 923

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2014] FCA 923

Citation:	Singh v Minister for Immigration and Border Protection [2014] FCA 923
Appeal from:	Singh v Minister for Immigration & Border Protection [2014] FCCA 733
Parties:	BALJIT SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number(s):	NSD 422 of 2014
Judge(s):	GLEESON J
Date of judgment:	26 August 2014
Catchwords:	MIGRATION – appeal from decision of Federal Circuit Court – refusal to grant Tourist (Class TR) visa – where decision based on incontrovertible facts – whether denial of procedural fairness – appeal dismissed
Legislation:	Migration Act 1958 (Cth) s 362B Migration Regulations 1994 (Cth) Sch 2 cl 676.215, Sch 3 cl 3001
Cases cited:	Singh v Minister for Immigration & Border Protection [2014] FCCA 733 Stead v State Government Insurance Commission (1986) 161 CLR 141 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 307 ALR 262 Wasfi v Commonwealth (1998) 155 ALR 310
Date of hearing:	5 August 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	20
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms A Carr (DLA Piper)
Counsel for the Second Respondent:	The second respondent filed a submitting notice save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 422 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BALJIT SINGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	GLEESON J
DATE OF ORDER:	26 AUGUST 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 422 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BALJIT SINGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	GLEESON J
DATE:	26 AUGUST 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of a judge of the Federal Circuit Court (“FCC”) dismissing his application for judicial review of a decision of the Migration Review Tribunal (“Tribunal”): Singh v Minister for Immigration & Border Protection [2014] FCCA 733. The Tribunal’s decision was to affirm the decision of a delegate of the Minister not to grant the appellant a Tourist (Class TR) visa.

   Background facts

2. The appellant is a male citizen of India, aged 28 years. In June 2009, he arrived in Australia on a Student (Vocational Education and Training Sector) Subclass 572 visa, which was valid until 3 November 2011.

3. Since the student visa expired, the appellant has held a series of bridging visas.

4. On 2 October 2012, the appellant applied for a Tourist (Class TR) Subclass 676 visa to extend his stay to 31 March 2013. The application was refused the following day, on 3 October 2012.

5. On 30 October 2012, the appellant applied to the Tribunal for a review of the decision to refuse the application.

6. On 28 March 2013, the Tribunal wrote to the appellant informing him that it had considered the material before it but was unable to make a favourable decision on that information alone, and inviting him to give oral evidence at a hearing on 19 April 2013. The letter was sent by registered post to the postal address nominated by the applicant on his application to the Tribunal. The appellant did not reply to that letter or attend the Tribunal hearing.

7. On 19 April 2013, the Tribunal made its decision without taking further action to enable the appellant to appear before it, pursuant to s 362B of the Migration Act 1958 (Cth) (“the Act”). The Tribunal gave the following reasons for affirming the decision not to grant the appellant a Tourist (Class TR) visa:

   [8] At the time the visa application was lodged, Class TR contained one subclass, Subclass 676 (Tourist): item 1218 of Schedule 1 to the Migration Regulations 1994 (the Regulations). The criteria for a Subclass 676 visa are set out in Part 676 of Schedule 2 to the Regulations

   [9] Clause 676.215 sets out requirements the applicant must meet if he or she is in Australia at the time of the application. If the person does not hold a substantive visa at the time of the application, but has previously held a substantive temporary visa, the person must meet criteria 3001, 3003, 2004 and 3005 of Schedule 3 to the Regulations.

   [10] The application completed by the applicant stated that he held a bridging visa at the time of his application and the Tribunal accepts he did not hold a substantive visa at the time of his application. No further information was provided on this issue.

   [11] The Departmental decision identified the criterion in issue (cl.676.215) and the Tribunal also summarised the requirements of the regulation and the relevant Schedule 3 criteria in its hearing invitation letter of 28 March 2013. However, the applicant did not attend a hearing and did not provide any further information relevant to the application for review.

   [12] In these circumstances the Tribunal is not satisfied on the material before it that the applicant meets the requirements of cl.676.215 and on this basis finds the applicant is not eligible for the grant of a Subclass 676 visa.

8. In May 2013, the appellant made an application to the FCC for judicial review of the Tribunal’s decision. The grounds of review were largely the same as the grounds of appeal in this Court.

9. The primary judge dismissed the appeal for the following reasons:

   a.As to the appellant’s claim that he had been denied procedural fairness by the Tribunal, the primary judge observed (at [33]) that Part 5 Division 5 of the Act contains an exhaustive statement of the requirements of procedural fairness applicable to decisions reviewable by the Tribunal. He found (at [34] to [39]) that the Tribunal complied with the requirements of Division 5.

   b.As to the complaint that the Tribunal erred in the weight that it gave to the appellant’s claims that he held a bridging visa at the time of the visa application, the primary judge said, in substance (at [41]), that the gravamen of the complaint was unclear. It was the appellant’s obligation to provide any information to the Tribunal indicating that he held a substantive visa. There was no evidence that the applicant satisfied the relevant criteria for grant of a Tourist (Class TR) visa.

   c.As to the claim that the Tribunal fell into jurisdictional error in failing to request more information regarding the appellant’s skills and whether the appellant had applied for assessment of his skills to the relevant assessing authority, the primary judge said (at [42]) that the claim misunderstood the function of the Tribunal and the applicant’s responsibility for presenting his claim.

   d.Finally, as to the claim that the Tribunal acted in a manifestly unreasonable manner in that it failed to “consider the applicant’s claim that it ignored the fact the applicant held a bridging visa”, the primary judge said (at [44]) that this complaint demonstrated that the appellant “completely ignored” the Tribunal’s written request for information to support the visa application.

   Grounds of appeal

10. The grounds of appeal are:

    1.The primary judge was in error in not determining that the Tribunal had failed to accord procedural fairness to the appellant because of:

    1.1Its failure to carry out its role in an inquisitorial manner when it should have considered all of the evidence before it rather than make a contrary finding;

    1.2The weight it gave to the claims of the appellant in his application for a tourist visa that he held a bridging visa at the time of the application.

    2.The primary judge was in error in not determining that the Tribunal acted in a manifestly unreasonable manner towards the appellant when dealing with the appellant’s claims because of its failure to consider the claims by the appellant;

    3.The primary judge was in error in not determining that the Tribunal fell into jurisdictional error in failing to request more information regarding the appellant’s skills.

    Appellant’s submissions

11. The appellant did not lodge written submissions. At the hearing, the appellant was assisted by a Punjabi interpreter.  The appellant did not seek to say anything in support of his appeal.

    Consideration

12. The underlying difficulty for the appellant is that he did not have a substantive visa at the time that he applied for the Tourist (Class TR) visa. He held, as he acknowledged, a bridging visa. By s 5 of the Act a bridging visa is not a “substantive visa”.

13. The criteria for the Tourist (Class TR) visa are set out in clause 676.215 of Schedule 2 to the Migration Regulations 1994 (Cth) which states:

    If the applicant is in Australia:
    (a)       either:

    (i)at the time of application, the applicant held a substantive temporary visa other than:

    (A) Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; or    

    (B) Subclass 426 (Domestic Worker (Temporary)--Diplomatic or Consular) visa; or

    (ii)if the applicant did not hold a substantive temporary visa at the time of application:

    (A)  the last substantive temporary visa held by the applicant was not a visa mentioned in paragraph (a); and

    (B)the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005; and

    (b)  the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

14. The applicant did not satisfy Schedule 3 criteria 3001. That criteria was, relevantly:

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    …  

    (c)        if the applicant:

    (i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; … 

    whichever is the later of:

    (iii)the last day when the applicant held a substantive or criminal justice visa; or

    (iv)      the day when the applicant last entered Australia unlawfully;

15. In the appellant’s case, he ceased to hold a substantive visa in November 2011, but he did not apply for the Tourist (Class TR) visa until October 2012. Accordingly, it is plain that the appellant did not satisfy the criteria for the Tourist (Class TR) visa.

16. This is a case in which, even if he had been denied procedural fairness (an issue addressed below), the incontrovertible facts provided a basis for the Tribunal’s decision such that any procedural unfairness could not have affected the outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141; Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [140]; Wasfi v Commonwealth (1998) 155 ALR 310 at 323-324; Ucar v Nylex Industrial Products Ltd [2007] VSCA 181 at [75]; Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 307 ALR 262 at [42].

17. In any event, there was no denial of procedural fairness. As explained by the primary judge, the Tribunal complied with the procedural requirements set out in the Act.  It did not fail to carry out its role in the manner required by it and, as explained above, if any attempt to look for more evidence that the appellant did not satisfy the criteria for the Tourist (Class TR) visa would be in vain because the appellant did not satisfy clause 3001. No weight could be given to the fact that the appellant held a bridging visa because that visa was insufficient to meet the requirements for the Tourist (Class TR) visa.

18. It follows that there was nothing unreasonable about the manner in which the Tribunal dealt with the appellant’s claims: it dealt with the claims correctly by dismissing the application.

19. There was no jurisdictional error in failing to request more information about the appellant’s skills: any such information could not overcome the problem that the appellant did not hold a substantive visa at the time of his application for the Tourist (Class TR) visa.

    Conclusion

20. The appeal must be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Associate:
Dated:       26 August 2014