UPPU v Minister for Immigration - [2012] FMCA 34

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UPPU v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 34

MIGRATION – Application for judicial review of Migration Review Tribunal decision – assertion that Tribunal was obliged to traverse each sub-part of the relevant regulation with the applicant – first respondent submitting no such obligation existed and it was for applicant to make his case – consideration of whether s.359AA complied with.

Migration Act 1958, ss.357A, 359AA

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NIAS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 88 ALD 257

Applicant:

PRAVEEN KUMAR UPPU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 985 of 2011

Judgment of:

Burchardt FM

Hearing date:

7 December 2011

Date of Last Submission:

7 December 2011

Delivered at:

Melbourne

Delivered on:

30 January 2012

REPRESENTATION

Counsel for the Applicant:

Mr T. Fernandez

Solicitors for the Applicant:

Maganty Lawyers

Counsel for the First Respondent:

Mr D. Brown

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application filed on 18 July 2011 is dismissed.
The First Respondent to file and serve upon the applicant within seven days any written submissions in support of any costs application.
The Applicant to file and serve upon the First Respondent within fourteen days any written submissions in reply.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 985 of 2011

PRAVEEN KUMAR UPPU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 22 June 2011. The applicant says that the Tribunal fell into jurisdictional error by finding that the applicant did not meet the requirements for a student visa.
The application filed on 18 July 2011 listed six grounds of application but grounds 1 and 2 were expressly abandoned by counsel for the applicant at hearing before the Court. Although counsel said that ground 5 was partly pressed, so far as I can discern no submissions were advanced that addressed it.
For the reasons that follow, I do not think that the applicant’s criticisms are made out and the application must be dismissed with costs. Because of the way in which the applicant’s counsel developed his client’s case, it is appropriate to deal with the matters raised under the same headings and grouping as that which counsel adopted.

Grounds 3 and 4 – The alleged failure of the Tribunal to put to the Applicant each of the various limbs of clause 5A404 of the Migration Regulations 1994

It is common cause that the applicant entered Australia in September 2008 on a subclass 572 student visa that was valid until 28 June 2010. There is a measure of dispute as to exactly what he has been studying in the interim. The applicant’s contentions of law and fact filed

26 October 2011 refer to the applicant’s history in Australia (which as has been noted, is perhaps partly controversial) and go on to say under the heading “Contention of Law”:
“The self-explanatory grounds mentioned in the application which will be relied upon at the hearing and, in particular ground 4 which refers to schedule 5A404 and contains several alternatives. The Tribunal has failed to discuss the various alternatives with the applicant and whether the applicant meets any of the alternatives rather than looking at one of the alternatives in isolation, which constitutes a jurisdictional error.”
That effectively paraphrased grounds 3 and 4 of the grounds of application which were dealt with together in submissions.
What the applicant was saying was that the Tribunal dealt with one aspect of clause 5A404, namely what I shall describe as the IELTS test aspect, but it is submitted the Tribunal did not deal with the others.
The gravamen of the applicant’s case as propounded by counsel was that the Tribunal never took the applicant through each of the alternate ways he could satisfy the requirements of clause 5A404. The applicant submitted that the Tribunal member should have done so and that the failure to do so constituted jurisdictional error.
The applicant also submitted that the Tribunal ignored test scores of 5.5 in English achieved by the applicant set out at Court Book (“CB”) 81 and 85.
Counsel referred to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [84] where McHugh, Gummow and Hayne JJ considered the nature of jurisdictional error. He also referred to NIAS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 88 ALD 257, at head-note (iii), where the Court held that “unfairness can arise not only from a denial of an opportunity to present a case, but also a denial of an opportunity to properly consider it”.
Although in my opinion this point is susceptible of a summary and discrete answer, namely that it is not the Tribunal’s task to make the applicant’s case for him but rather to adjudicate the claims he does advance, it is appropriate to look at what actually happened in the process whereby the Tribunal came to its decision. The decision of the delegate contrary to the applicant’s claim was issued on 24 February 2011 (CB36). The applicant applied for review to the Tribunal on

16 March 2011 (CB45). On 10 May 2011, the Tribunal wrote to the applicant’s migration agent (CB55) inviting the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Copious documentation was included with the invitation. That documentation included another letter dated 10 May 2011 directly addressed to the applicant inviting him to appear before the Tribunal which stated inter alia (CB56):
“The Tribunal invites you to provide evidence to meet English language requirement in any of the alternative ways applicable for your assessment level in accordance with applicable Schedule 5A.
You are also requested to provide evidence of a current certificate of enrolment (CoE) as required by clause 572.222 and updated financial documents in accordance with applicable Schedule 5A as the Tribunal noted that the financial arrangements you provided to a delegate of the Minister is dated 26 October 2010.
I have attached relevant extracts of the Regulations for your reference and information regarding evidence from financial institutions in India.”
The material forwarded to the applicant included, relevantly, clause 5A404.
A hearing took place on 14 June 2011. The transcript of that hearing is set out in a Supplementary Court Book filed by the solicitors for the applicant. It is not appropriate to traverse the transcript in laborious detail, but I note that the Tribunal dealt directly with the question of the completion of a Certificate IV raised by the applicant and made it clear that this would not be sufficient because it was not completed at a time when the applicant was the possessor of a student visa (transcript page 7-11).
At transcript page 14, the Tribunal set out the history of how the matter had reached it and went on at transcript page 15:
“So what do we have today? We have a Certificate IV which doesn’t meet the English language requirement and you’re saying but I sat an IELTS test and I didn’t pass but I don’t have the IELTS certificate. Did you bring the confirmation of enrolment, for example? Did you bring any evidence of the financial capacity which we referred to specifically in our letter of 10 May, did you bring any of that? You’re shaking your head, madam, Ms Lin. Did you bring anything with you about financial capacity?---No. Did you bring confirmation of enrolment?---No.”
The Tribunal went on to note that all this material had been asked for in the letter of 10 May 2011 sent by the Tribunal.
The Tribunal returned to the requirements set out in the Tribunal’s letter at transcript page 18. The Tribunal was initially minded to make a decision there and then. Leaving aside the fact that the applicant’s story seemed to change from time-to-time through the transcript, in the ultimate his agent asserted (repeating an earlier remark at transcript page 16) at transcript page 35:
“he already got evidence of IELTS score (indistinct) much time to provide and now he has got it, the IELTS result. … It’s at home … Yes, he has got it.”
The Tribunal pointed out, correctly enough, that there was nothing else needed if the score was 5 and at transcript page 36 the Tribunal indicated that it wanted to be provided with that test report that afternoon. The Tribunal member asked the applicant “Can you do that?” The answer was “Yeah”.
Despite that express indication, the IELTS score was never forwarded.
Leaving aside the Tribunal’s dissatisfaction with the failure of the applicant to provide various other pieces of information, it is clear that the Tribunal’s conclusion that the applicant had not achieved (or proved he had achieved) the relevant IELTS score was correct. As counsel for the Minister correctly submitted, the references at CB81 and 85 respectively to an English test score of 5.5 appear to be indications of required results and are certainly not IELTS report results.
Accordingly, to the extent that the applicant’s submissions sought to raise an attack on the factual conclusions reached by the Tribunal in this regard, I reject those submissions.
Likewise, and for the reasons I have already given, there is no force whatever in the applicant’s assertion that it was for the Tribunal to sit down and traverse individually each of the particular ways in which the applicant could satisfy clause 5A404. It was for the applicant to make his case and he had every opportunity to do so. He was accompanied at the hearing by a registered migration agent and the assertion advanced by the applicant fundamentally misconceives the nature of the parties’ respective obligations at the hearing. The hearing was designed to give the applicant an opportunity to convince the Tribunal of any arguments he wished to put. It was not a process whereby the Tribunal was required to make the applicant’s case for him and, indeed, the Tribunal member on several occasions pointed out that it was not for the migration adviser to ask him for advice because this was not the Tribunal’s function. Those observations were correct.

Ground 6

Here the submission made was that the procedure set out in s.357A and s.359AA of the Migration Act 1958 (“the Act”) had been breached.
Counsel for the applicant submitted that the transcript at page 24-25 shows that a substantial amount of material was put to the applicant. The propositions were put to the applicant by the Tribunal. It was put that there was nothing in the decision to suggest that the requirement in s.359AA had been invoked in any way.
Counsel for the first respondent correctly submitted that matters were put to the applicant orally, which in my view is a perfectly appropriate way for the Tribunal to satisfy the obligations contained in s.359AA. The applicant responded. It was submitted that the Tribunal did not deal with the matters raised by the applicant but I am not sure that that is correct. What is important is that the Tribunal in my view in substance complied with the obligations of s.359AA.
Insofar as the applicant’s submissions concentrated on the issue of the certificate of enrolment in this regard, which seems to me to be tantamount to merits review, I note that the applicant provided inconsistent evidence as to his circumstances (see transcript page 26, line 26).

Conclusion

These reasons for decision are difficult to structure in a clear and ordered way. That is because the submissions advanced on behalf of the applicant were themselves somewhat scattergun in their approach and hard to follow.
I am quite clear in my mind that the criticisms made of the Tribunal’s decision are devoid of merit and I will, therefore, dismiss the application. Put shortly, it was not the Tribunal’s obligation to traverse each and every facet of clause 5A404. It had been provided to the applicant and it was for the applicant to advance his case. Furthermore, the Tribunal did not fail to put to the applicant, as the Act required it to, aspects of the materials upon which it would rely.

Application for costs

Counsel for the applicant indicated that his instructing solicitor had received the night before the hearing a letter from the solicitors for the first respondent indicating that they would seek costs against the solicitor personally on the footing that the certification of the matter by him that the matter had reasonable prospects of success was itself not a proper one to have been issued in the circumstances.
Counsel for the first respondent confirmed that such an application was being pressed.
In the circumstances, and without indicating any view about the matter one way or the other, I will direct that the first respondent forward to my chambers within seven days any written submissions in support of any such application and I give the applicant seven days thereafter in which to respond.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 30 January 2012