Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1002
Federal Circuit and Family Court of Australia
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1002
File number: MLG 1847 of 2019 Judgment of: JUDGE FORBES Date of judgment: 8 November 2022 Catchwords: MIGRATION – alleged denial of procedural fairness – Tribunal erroneously referred to s 359A letter in its decision – conceded no such letter sent to applicant – whether Tribunal’s misdescription of letter led to procedural unfairness – where Tribunal decision based on information provided by applicants – no obligation to put information back to applicants pursuant to s 359A – no procedural unfairness – error not material – application dismissed Legislation: Migration Act 1958 (Cth) s 359, 359A
Migration Regulations 1994 (Cth) r 500.212
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission: 8 November 2022 Date of hearing: 8 November 2022 Place: Melbourne Applicants: Mr Singh in person Solicitor for the First Respondent: Mr A Cunynghame of Sparke Helmore ORDERS
MLG 1847 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JEEVANPREET SINGH
First Applicant
AMANDEEP KAUR KHATROW
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
8 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application for judicial review be dismissed.
2.The Applicant pay the First Respondent's costs fixed at $5,000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)Judge Forbes
Pursuant to section 476 of the Migration Act 1958 (Cth) (the Act), the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 2 June 2019. In its decision, the Tribunal affirmed a decision of the delegate to refuse to grant the applicants a student temporary class TU subclass 500 visa. The decision of the Tribunal was annexed to an affidavit sworn by the first applicant Mr Singh on 12 June 2019 and a copy of the Tribunal's decision has been included in the Court Book.
By their application for judicial review, dated 12 June 2019, the applicants seek an order that the decision of the Tribunal be quashed and that the Tribunal be directed to determine the application according to law.
The application for judicial review identifies a single ground of judicial error which has been articulated in the following terms by Mr Singh: "The tribunal in its decision refers to a section 359A letter. However I did not receive this. As a result I have been denied procedural fairness".
In his oral submissions to the Court today, Mr Singh confirmed that ground of alleged error. At the outset, I note Mr Singh is correct to observe that the Tribunal made reference to a section 359A letter in its decision. In fact, the Tribunal did so twice, at paragraphs 14 and 24 of its decision. However, there is no contest that the applicant did not receive such a letter from the Tribunal. The Minister accepts that the Tribunal did not send a section 359A letter to the applicants at any time in the course of conducting its review of the delegate's decision.
The question that I have to decide in this case is whether that error, that is the Tribunal's reference to a section 359A letter in its decision, reveals a jurisdictional error. The ground that is pressed by Mr Singh is that the applicants were denied procedural fairness.
Background
Before answering that question, it is appropriate to briefly set out some of the background which led to the making of the Tribunal's decision. The relevant background is set out at paragraphs 3 to 12 of the written outline of submissions that was filed by the Minister. That background is not controversial. Pursuant to the Minister's outline, the background (including references to documents in the Court Book) is as follows:
3.The first applicant (applicant), a citizen of India, arrived in Australia on 22 February 2009 as the holder of a Student visa. The applicant subsequently held a Temporary Graduate visa which ceased in May 2017 (Court Book (CB) 116-117).
4On 4 May 2017, the applicant applied for the visa to study a Diploma of Leadership and Management (Diploma) at New England College Perth from 5 June 2017 to 4 March 2018, and an Advanced Diploma of Leadership and Management (Advanced Diploma) at the same institution from 2 April 2018 to 30 December 2018. The second applicant was included in the visa application as a member of the applicant's family unit (CB 1-22, 56-57).
5On 31 May 2017, a delegate of the Minister (delegate) requested, inter alia, evidence that the applicant met the genuine temporary entrant criterion (CB 60-70). In response, the applicant provided an undated written statement (CB 71-73).
Paragraphs 8 to 11 of the background provided by the Minister sets out the correspondence between the Tribunal and the applicants from 27 March 2019, as follows:
8.On 27 March 2019, the Tribunal invited the applicants to provide information pursuant to s 359(2) of the Act (s 359(2) invitation), that the applicant was enrolled in a registered course of study and was a genuine temporary entrant by 10 April 2019 (CB 97-101). The s 359(2) invitation included a link to a Request for Student Visa Information form and referred the applicant to Ministerial Direction No. 69 (Direction 69, a copy of which was enclosed at CB 102-106).
9.On 8 April 2019, the applicant wrote to the Tribunal withdrawing his representative and seeking an extension of time to provide a response to the s 359(2) invitation (CB 107-109). On the same day, the Tribunal granted an extension until 24 April 2019 (CB 110-111). The applicant subsequently provided a complete Request for Student Visa Information form to the Tribunal on 23 April 2019 (CB 112-126).
10On 8 May 2019, the Tribunal invited the applicants to attend a hearing on 28 May 2019 (CB 127-130). The Tribunal's hearing invitation referred the applicant to Direction 69 (a copy of which was enclosed with the invitation) and requested that the applicant provide (inter alia) a copy of the applicant's current Confirmation of Enrolment (COE), any documents that showed current enrolment or an offer of enrolment in a registered course, documents that showed the applicant's past studies in Australia and, an explanation of any gaps in enrolment (CB 129).
11.On 28 May 2019, the applicant appeared before the Tribunal (CB 137-139). At hearing, the applicant provided the Tribunal with academic documents as evidence of his previous study in Australia (CB 140-144), an IELTS report form (CB 145) and a COE for an Advanced Diploma of Leadership and Management at Australian Tertiary Institute from 5 June 2019 to 27 May 2020 (second COE) (CB 146).
The background narrative makes reference to various documents in the court book. I can indicate to the parties that I have read the documents in the court book.
Requests for information
It appears that on 27 March 2019 the Tribunal invited Mr Singh to provide certain information. In particular, the applicants were invited to give, in writing, information about the courses of study Mr Singh was undertaking during his stay in Australia as a student. Specific details about the information requested was then set out in a Request for Student Visa Information form and the applicant was invited to provide the necessary information either by completing the online form or by doing it manually and submitting the form. The correspondence from the Tribunal to Mr Singh did not identify the specific statutory provision of the Act under which the Tribunal was seeking that information. However, in its written outline of submissions the Minister submitted, and I accept, that the Tribunal invited the applicants to provide that information pursuant to section 359(2) of the Act.
It appears that on 8 April 2019, Mr Singh wrote to the Tribunal withdrawing his representative at the time and he sought an extension of time to provide a response to the invitation. The Tribunal then granted an extension until 24 April 2019 and Mr Singh subsequently provided a completed request for student visa information form to the Tribunal on 23 April 2019. The response contained considerable information in response to the Tribunal's invitation for information.
On 8 May 2019 after receipt of that information, the Tribunal invited the applicant to attend a hearing which was then conducted on 28 May 2019. The applicant was asked to provide more information including a current certification or confirmation of enrolment, any documents which showed current enrolment or an offer of enrolment in a registered course or documents that showed the applicant's past studies in Australia. Again, it is not in contest that the applicant appeared before the Tribunal on 28 May 2019 and, on that occasion, he provided the Tribunal with various academic documents, report forms and a certificate of enrolment for his proposed studies.
Tribunal decision
The Tribunal's decision was made on 2 June 2019. The Tribunal correctly identified that the issue it had to determine was whether the applicant satisfied the genuine temporary entrant criterion at clause 500.212(a) of the Migration Regulations 1994 (Cth) (the Regulations).
The Tribunal summarised the evidence that it had before it in coming to its decision not to grant the visa. The Tribunal set out at paragraphs 10 to 12 of its decision that it had the departmental file, including the written submissions the applicant had made to the department, and also the applicant's response to a request for further information sent by the delegate on 31 May 2017. The Tribunal had before it the written information which had been provided by Mr Singh.
In addition to that, the Tribunal said at paragraph 14 it had other evidence including material which had been provided in response to the Tribunal's "section 359A letter" and what the Tribunal then did was to identify various courses which had been undertaken by the applicant.
As I said earlier, the Minister properly conceded that the Tribunal had not sent a section 359A letter to the applicant, so that invites consideration of what the Tribunal might have actually been referring to in paragraph 14. It seems to me that the Tribunal was referring to information which had been submitted by Mr Singh in response to some kind of invitation and, as will become evident in a moment, the information referred to by the Tribunal in paragraph 14 of its decision is the information that was set out in the completed Request for Student Visa Information form, which Mr Singh had sent to the Tribunal on 23 April 2019.
The Tribunal also sets out at paragraph 15 other information which it says the applicant had provided. At paragraph 16 of the decision, the Tribunal referred to information which had been extracted from the applicant's written submissions to the Tribunal and it cites two paragraphs from the applicant's written submissions. Then at paragraph 17, the Tribunal records that the applicant attended a hearing and that he gave evidence and presented arguments. The Tribunal then goes on at paragraph 19 to refer to various documents which had been provided to it by the applicant prior to the commencement of the hearing.
The Tribunal then goes on to discuss information it had obtained during the course of its discussions with Mr Singh at the tribunal hearing. In paragraphs 20 to 26 of its decision the Tribunal deals with those discussions at the hearing and it alludes to various information and evidence which had been submitted by Mr Singh to the Tribunal.
Of particular note, at paragraph 24 of the Tribunal decision, there is another reference to the applicant's response to the Tribunal's "section 359A letter" and it refers to information about Mr Singh's parents and two of his three sisters who reside in Perth. In that paragraph of the decision, the Tribunal explores certain information around the applicant's family, where they spend their time and the father's interest in property in India and other matters.
Again, paragraph 24 is of particular note because of the reference to section 359A, which is clearly incorrect because it is common ground that no such letter had been issued to the applicant. Accordingly, the information referred to in that paragraph regarding the applicant's family, which the Tribunal said had been submitted to by the applicant in response to a section 359A invitation, must have been submitted in response to something else. On my review of the material, when one looks to the information and evidence referred to in paragraph 24, it will be seen that it was actually sourced or came from Mr Singh's completed Request for Student Visa Information form.
Ultimately the Tribunal concludes that it is not satisfied that Mr Singh intends genuinely to stay in Australia temporarily. Importantly, the Tribunal reaches that conclusion by saying, it is "based on the matters discussed in the paragraphs above". In other words, the Tribunal says that its decision is based on the information it has discussed in the preceding paragraphs. The information that the Tribunal relied upon has been sourced from the following: the departmental file including the applicant's written submissions and information provided by the applicant to the department, evidence that was submitted by Mr Singh in response to the Tribunal's request, information provided to the Tribunal by Mr Singh, the applicant's written submissions to the Tribunal, documents that were provided to the Tribunal at the hearing and the evidence and arguments presented to the Tribunal by Mr Singh. There is some significance in all of that which I will come to in a moment.
Application for judicial review
In the application for judicial review, the applicant contends that he has been denied procedural fairness because he did not receive the section 359A letter referred to in the Tribunal decision.
Since the application for review was filed in 2019, the Court has made various orders to prepare this case for hearing. Those orders included that the Minister prepare and file an electronic court book and that the applicant file and serve written submissions, an amended application or any evidence on which he wanted to rely. I note that by the time of the final hearing, the Minister had filed an outline of submissions dated 21 October 2022, but the applicant had not filed any outline of submissions or any amended application or any evidence. I am satisfied, and it has been confirmed by Mr Singh in Court today that he has received a copy of the court book and copy of the Minister's submissions.
At the final hearing before me today, Mr Singh appeared on behalf of the applicants, self-represented, and Mr Cunynghame, a solicitor, appeared for the Minister. Because the applicant was self-represented, I explained the process that would be followed and invited Mr Singh to make submissions.
The submissions made by Mr Singh in support of the application for judicial review confirmed the basis of the application. That is, Mr Singh submitted that the Tribunal had made an error by referring to a section 359A letter in its decision and because he had not been sent such a letter, he had been denied procedural fairness. I have heard those submissions and I have taken those into account.
The Minister has relied upon its written outline of submissions and has also made short oral submissions and I have taken those into account also.
Consideration
Against that background, I now have to determine the matter.
Section 359A provides as follows:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies-by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention-by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
As has already been mentioned, the Minister has conceded that the Tribunal did not in fact extend an invitation to the applicant pursuant to section 359A. The Minister contends that the reference to section 359A is either a typographical error or a mistake, but in neither case does it amount to the Tribunal having failed to exercise its powers properly.
Section 359A reflects the natural justice hearing rule which requires the Tribunal to put certain adverse information to an applicant for comment or response. The purpose behind that provision is that an applicant should be put on fair notice of critical matters of concern to the Tribunal so that the applicant understands the significance of those matters to the decision-making process and the applicant has a reasonable opportunity to comment or respond to them. There is an obligation under section 359A, on the Tribunal, to put to or invite an applicant to comment upon adverse information so that the applicant is not taken by surprise.
Importantly, pursuant to s 359A(4)(b) and (ba), information that has to be put to an applicant does not include information that the applicant, himself, has given to the Tribunal or information given to the Tribunal during the course of the process leading to a decision. In other words, information that an applicant has provided to the Tribunal for a review does not have to be put back to the applicant for comment because it is the applicant, him or herself, who has conveyed that information to the Tribunal of their own volition or provided that information in response to questions asked by the Tribunal. There is no obligation for the Tribunal to then go back to the applicant and ask the applicant to comment on his own information.
I have gone through the process of reviewing the tribunal's decision in some detail to identify what the Tribunal has relied upon and to determine what information the Tribunal actually turned its mind to in reaching its decision. I am satisfied that, in reaching its decision, the Tribunal relied only upon the material provided by Mr Singh to the department, material provided by him to the Tribunal and his oral evidence at the hearing. In other words, it appears that all of that material relied upon came from Mr Singh, himself, and therefore it is not information which has to be put back to the applicant for comment in accordance with section 359A.
Accordingly, if there was no information the Tribunal was required to put to the applicant pursuant of section 359A, then there can have been no failure to properly exercise jurisdiction and no denial of procedural fairness. There can be no denial of procedural fairness where the Tribunal does not do something it was not required to do.
Moreover, it seems to me self-evident that the Tribunal mistakenly referred to section 359A in its reasons. When one looks to the various documents and other information provided by Mr Singh - that information was, in fact, sourced from the applicant and, in the main, from the response information contained in the completed Request for Student Visa Information form that was sent to the Tribunal by Mr Singh on 23 April 2019.
In my view, when the Tribunal decision is read fairly and as a whole, the Tribunal did not misdirect itself in the proper exercise of its power. This is not a case where the Tribunal thought it was doing one thing but, erroneously, did another. Rather, for some inexplicable reason, the Tribunal simply misdescribed what it was doing.
Can I say, it is perfectly understandable that Mr Singh would be confused by this and be led to complain about the decision. The applicant is correct to observe that he had not been sent a section 359A letter and, understandably, would have been confused by the Tribunal's reference to that in its decision. However, the issue for the Court is whether the Tribunal's decision is affected by jurisdictional error. That is, whether the Tribunal has engaged in making a decision beyond its power or asked itself the wrong question or ignored relevant material or relied on irrelevant material in a way which affects its exercise of power. The misdescription of a statutory provision by the Tribunal did not cause it to fail to provide procedural fairness to the applicant.
I accept that the Tribunal did provide an invitation to Mr Singh to attend a hearing, that he did attend and give oral evidence at the hearing and that the applicants were always on notice as to the issue that the Tribunal had to determine, namely whether he was genuine temporary entrant, as required by the regulations.
Disposition
There are cases that come before this Court where the Tribunal engages in errors which might be regarded as material, but this is not one of them. Here I am satisfied that the error on the part of the Tribunal was not jurisdictional error. It did not affect the Tribunal's exercise of power, the error did not give rise to procedural unfairness and, therefore, the application for judicial review must be dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 8 November 2022
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