SINGH v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 253
•23 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 253 |
| MIGRATION – Application for student visa – refused by delegate and affirmed by Migration Review Tribunal – whether jurisdictional error by Tribunal. |
| Migration Act 1958 (Cth), ss.65, 349, 359AA, 368D, 474 & 476 Migration Regulations 1994 (Cth), Schedule 2 cl 572.222, 572.223, 572.231; Schedules 5A205 & 5A206 |
| Craig v The State of South Australia [1995] HCA 58 Sochorova v Minister for Immigration & Multicultural & Indigenous Affairs Unreported Judgment No BC200203579 |
| Applicant: | TEJPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 164 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 26 September 2011 |
| Date of Last Submission: | 26 September 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 23 March 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms Whittemore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application for Review filed on 4 July 2011 is dismissed.
The Applicant pay the Respondents’ costs of and incidental to the application fixed in the sum of Five Thousand Four Hundred Dollars [$5,400.00].
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 164 of 2011
| TEJPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In an application filed on 4 July 2011 in this Court the applicant seeks orders by way of judicial review in relation to a decision of the Migration Review Tribunal of 30 May 2011.
That decision was in turn a decision not to allow a review of a decision of the delegate of the Minister of 22 November 2010.
The application is filed in this Court pursuant to s.476 of the Migration Act 1958 (“the Act). Pursuant to that section this Court has the same jurisdiction as the High Court but only in relation to what are described as migration decisions. Migration decisions are defined in the Act. There is no issue before me in this matter that the Tribunal decision was a migration decision under the Act.
Section 474 though provides that certain decisions are to be regarded as final and conclusive and not amenable to review. They are described as privative clause decisions. The decision of the Tribunal is, on its face, a privative clause decision so in those circumstances a review will only be available in respect of the Tribunal’s decision if I am satisfied that the decision of the Tribunal was vitiated by jurisdictional error.
Jurisdictional error is a concept explained in a number of High Court decisions, most notably in the case of Craig v The State of South Australia [1995] HCA 58 but in particular in relation to decisions under the Migration Act it is a concept that was given explication by the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
There are two grounds set out in the application:
(1) Tribunal did not give consideration to the evidence provided so it has fall (sic) into “jurisdiction error”.
(2) Tribunal member during our hearing gave a judgment before we finished providing evidence and comment related to our case. It is clear “jurisdiction error” from tribunal.
No other information is given in relation to the grounds advanced.
On 4 August 2011, the Registrar of the Court made certain procedural orders. In particular an opportunity was given to the applicant to file and serve any amended application upon which he proposed to rely by 1 September and he was given an opportunity to file and serve such further material including a transcript of the hearing before the Tribunal that he may rely upon at the hearing by 1 September 2011.
No amended application was filed by him and no affidavit filed. The hearing proceeded without the applicant having taken up the opportunity of providing a transcript of the hearing before the Tribunal which, in the context of at least one of his arguments, or an interpretation that can be given in relation to one of his arguments, is perhaps surprising. The applicant attended at the hearing before me on 26 September but said little by way of submission in support of his application.
The application before the Tribunal related to the applicant’s desire to be granted a Student (Temporary) Visa and in relation to the Minister’s decision, under s.65, not to grant him that visa. The relevant class of visa to which the application relates is a subclass 572 visa, and that, in fact, was the visa on which the applicant first entered Australia in May 2009 and it is the visa that expired on 27 August 2010 and those circumstances gave rise to the making of the application for the current visa.
The decision of the Tribunal, the written decision record, under the heading of “Relevant Law”, sets out the relevant criteria in respect of the grant of a subclass 572 visa and as identified by the Tribunal, the issue in the case before it was whether the applicant met the criteria in clause 572.223.
That criterion requires that at the time of the decision the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the factors set out in clause 572.223(2) and paragraph 8 of the Tribunal’s written record of decision sets out the requirements of that clause, in particular subsection 2(a).
Subsection (2) provides that:
An applicant meets the requirements of this subclause if:
(a)for an applicant who is not a person designated under regulation 2.07AO:
(i) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant.
The applicable assessment level is dealt with at [10] to [13] of the written record of decision with the conclusion reached at [13] that the highest assessment level for the applicant in the present case is assessment level 4. That was not a matter that was the subject of any dispute by the applicant, apparently, before the Tribunal or before me.
The written record of the decision goes on, at [14], to describe the Schedule 5A requirements for assessment level 4. They include certain requirements as to English language proficiency, certain requirements in relation to financial capacity and certain requirements described as “other requirements” at 5A206, and in particular, the requirement that there must be evidence given that the applicant is enrolled in a vocational education and training course.
The decision of the delegate of the Minister is set out [at CB 146 – 150] and, in short, the delegate of the Minister was not satisfied that the applicant met the criteria specified in clauses 572.222 and 572.223. In particular, the delegate was not satisfied that at the time of the decision, the applicant was enrolled in an acceptable course of study and had not provided additional documentation showing that he met English language requirements in accordance with Schedule 5A criteria for his assessment level. So there were two difficulties.
It is noted, at [19] of the Tribunal’s written record of decision, that the applicant’s enrolment was cancelled prior to the delegate making her decision.
The application for review before the Tribunal was lodged in December 2010. On 1 February 2011 the applicant was invited to appear before the Tribunal with a hearing scheduled for 10 March 2011.
On 14 February 2011, that is, prior to the hearing, the Tribunal received a request from a migration agent acting on behalf of the applicant for a postponement of the hearing but, as explained at [21] of the written record of decision, given that a full copy of the Tribunal’s file and the Department’s file had been sent by post to that migration agent on 16 February, the request for postponement of the hearing was refused.
10 March 2011 was the date appointed for the hearing. That is when it transpired. It turned out that it was the first of two Tribunal hearings. The applicant was accompanied by his representative and had the assistance of a translator in his language.
It appears, from [25] of the written record of decision, that the Tribunal was satisfied at that hearing, at least, that the applicant had satisfied the English language requirement of Schedule 5A and was also satisfied that he was now enrolled in a registered course.
So by the time of the first Tribunal hearing, the matters that had been salient to the refusal of the visa before the delegate, appeared to have been addressed by the applicant.
It is the case, in relation to this matter, that different aspects of his satisfaction of eligibility criteria have been engaged at different times of his conduct of the matter before the delegate, the Tribunal and this Court.
So by the time of the first Tribunal hearing, he appears to have dealt with those matters that concerned the delegate but others matters had arisen that had concerned the Tribunal. I bear in mind that the powers of the Tribunal, in relation to the review, are those that are set forth in s.349 of the Act which provides that:
The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
So the Tribunal was not limited to only a review of the satisfaction of the criteria that concerned the delegate. It was obliged to conduct the review upon the basis that exercising the powers that the delegate had and in exercising the Tribunal’s powers, the Tribunal raised concerns in relation to this issue of financial support. That became the salient feature of the applicant’s eligibility for the grant of the visa at the first Tribunal hearing and that is set out at [25] of the written record of decision.
The Tribunal having raised the financial criteria, those described in clause 5A205 of Division 2 of Part 4 of Schedule 5A of the Regulations, the applicant sought and was granted an adjournment of ten working days to provide further submissions and it appears that on 25 March the Tribunal received a written submission from the applicant addressing these issues of financial capacity and related issues. That is set out at [27] of the written record of decision. However, on 2 May 2011 a Tribunal officer contacted the applicant’s education provider and received the following information: firstly, that the applicant had completed 50 per cent of his Certificate IV in Business course – that had been the position that maintained prior to the first Tribunal hearing – but secondly, and more importantly, that the applicant’s enrolment in that course had been cancelled due to non-payment of fees.
So by 2 May 2011 the applicant was in the same position that he had been in prior to the delegate’s decision.
Having been provided with that information the Tribunal invited the applicant to a further hearing before the Tribunal scheduled for 30 May 2011. At that hearing and in accordance with s.359AA of the Act the information that had been elicited from the education provider on 2 May 2011 was squarely put to the applicant. The Tribunal says at [32] of the written record of decision that the Tribunal has explained the relevance of the information. The applicant requested an adjournment; it was given; it was an adjournment until later in the day. The hearing resumed and the applicant then said to the Tribunal that he had paid a proportion of his outstanding tuition fees and was planning to pay more that same day. He claimed there had been a misunderstanding about the amount of fees and that that misunderstanding had been resolved and maintained that his enrolment will be reinstated and that he would be able to obtain the confirmation of the enrolment of that day.
Once again the Tribunal adjourned the hearing and itself contacted the education provider. So the hearing resumed – we are now at the third stage of the second hearing – and the Tribunal put to the applicant information that had been gathered during that second adjournment, in particular that the education provider was unable to confirm that he was currently enrolled. At [34] the Tribunal notes that the applicant indicated that he understood that.
Once again the Tribunal explained the relevance and consequences of that information and asked him if he wished a further adjournment before making comments or giving a response and [34] indicates that the applicant indicated that he will make his comments without taking an adjournment and the comments he made were to reiterate his payment of some of his tuition fees, that he had paid $1500 of the $6000 that were owing and that he would pay more fees later in the day. That was the state of the evidence at the conclusion of the hearing.
The Tribunal indicated, at [36] that it had considered his comments and it then decided to proceed to make an oral decision. At [36] the Tribunal indicates its reasons for proceeding to make an oral decision. The oral decision made was that because the applicant was not enrolled in or the subject of a current offer of enrolment in a course of study as a principal course and of a type that was specified in subclass 572 visas by the Minister that he did not meet the criteria set forth in clause 572.231 of Schedule 2 of the Regulations and that his application could not therefore succeed. The decision of the delegate was confirmed, albeit for different reasons than the delegate had given.
It should be noted that the specific aspect of the criteria set forth in clause 572.231 was not one of the criteria that was set forth in the earlier exposition of the relevant legislative and regulation proceedings as contained in the written record of decision, but 572.231 just provides that at the time of the decision the applicant must satisfy this criteria that he is enrolled in or is the subject of a current offer of enrolment in a course of study that is a principal course and of a type specified for subclass 572 visas.
So that is specifically the provision of the Regulations which the Tribunal was not satisfied had been complied with and it bases its decision squarely on that part of clause 572 of Schedule 2. The same issue though is indirectly engaged by Schedule 5A of the Regulations relating to the requirements for assessment level 4 which are set out at the earlier part of the Tribunal’s decision
Turning to the grounds set forth in the application, it is the position that the grounds are simply asserted without any explication of the way in which they are said to arise in the circumstances of this case and, as I have noted, ground 1 is simply an assertion that the Tribunal did not give consideration to the evidence; presumably it means the evidence presented by the applicant. However, a reading of the Tribunal’s account of what transpired at both of the hearings indicates a specific acknowledgement of the matters that were put by the applicant in support of his position.
If it is contended implicitly, and it certainly was not contended explicitly by the applicant, that the Tribunal’s account in its written record of decision do not adequately or properly reflect what transpired at the hearing itself, the applicant had the opportunity to file and serve a transcript of the hearing before the Tribunal and elected not to do so and I am certainly not, in the absence of his making that decision, going to draw any inferences that the Tribunal did other than accurately record what transpired at each of the hearings.
It may be that ground 1 is implicitly, really, related to the advancing of the principal ground, which is ground 2, and ground 2 says that the Tribunal gave a judgment before the applicant finished providing evidence and comment, and inferentially there is the suggestion there that the Tribunal fell into jurisdictional error by proceeding to give an oral decision.
The power to give an oral decision is to be found at s.368D of the Act, which provides that if the Tribunal gives an oral decision on an application for review the Tribunal must give the applicant a copy of the written statement within 14 days after the decision is made.
The power to make an oral decision was specifically acknowledged by Kiefel J, as she then was, in Sochorova v Minister for Immigration & Multicultural & Indigenous Affairs, unreported judgment number BC200203579, at [7] and [8] of that decision. There were problems associated with whether the applicant had complied with s.368D in that case but the power to give a decision orally is acknowledged without controversy by her Honour at those paragraphs of the judgment.
At [36] of the written record of decision the Tribunal puts in some context its decision to proceed to give an oral decision. It says as follows:
The Tribunal indicated that it has considered his comments and that his visa application has been on foot since August 2010 and enrolment has been an issue since that date. It has also considered that since the application for review, he was not enrolled for a considerable period until shortly before the first hearing and the enrolment has since been cancelled again; and he has not presented any evidence to support his oral statements today and it remains that he is not currently enrolled. It indicated that the Tribunal has concluded that it is appropriate to make an oral decision.
The applicant had resumed his studies apparently on 21 February 2011, so much is plain from [24] of the written record. The new information, as I have indicated, was provided on 2 May; that is to be found at [28] of the written record. On 30 May there is a hearing and the new information is put. The short adjournment is granted. I have noted that the Tribunal made contact with the education provider again and the fact of the non-enrolment of the application was confirmed, although the precise language used is that the education provider is “unable to confirm” that he is currently enrolled.
The applicant has then put his position as to part payment of fees. It has been squarely put to him that the consequences of his not being currently enrolled and the position that puts him in in respect of his application for the visa. This is put a second time. The adjournment is offered and it is refused and the applicant simply restates his contentions in relation to part payment and intentions with respect to payment of the balance of the outstanding fees owing. The decision of course is a decision grounded on his failure to be enrolled in a course.
The reference to the absence of supporting evidence in [36] must be seen in that light. The question of his capacity to make payment of course fees is referred to there but not as a separate ground for refusal, that is, it is not a separate consideration by the Tribunal of his not being able to meet the financial capacity requirements of clause 5A405 of Schedule 5. The bigger problem caused by the inability to meet the fees for the course is that it has resulted in the non-enrolment of the applicant in the course that 572.231 of Schedule 2 of the Regulations requires.
So against the background of those matters the Tribunal makes a decision to proceed to give an oral decision. The decision is made in the context of there being no further request for an adjournment, and once again, there is no transcript provided to support any implicit assertion by the applicant that there was some request for an adjournment promoted by him directly or indirectly prior to the point at which the Tribunal decided to proceed to give an oral decision.
The inference I draw is that the disadvantage to the applicant inuring to him on account of the decision to proceed to give an oral decision is that the applicant was thereby deprived of the opportunity of a further period of time in which to make part payments which would remedy his second cancellation of enrolment in the relevant course of study.
In the context of what the Tribunal has carefully described and what amounts to an eight month period of considerable uncertainty in relation to his enrolment, involving two separate cancellations of his enrolment, it cannot be said that the decision to give an oral decision at the conclusion of the second oral hearing was a rational or arbitrary or otherwise vitiated by jurisdictional error. Issues had been afoot in relation to the applicant’s visa since August 2010.
In all of the circumstances I am not satisfied that the applicant has been able to demonstrate that in proceeding to give an oral decision and in making an oral decision that the applicant did not meet the criteria specified by the Regulations, that the Tribunal fell into jurisdictional error and accordingly the application for review will be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 29 March 2012
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