FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCA 1347

ORDERS

THE COURT ORDERS THAT:

1.    Leave to raise grounds 2, 4 and 5 of the notice of appeal is refused.

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

PERRY J:

1.    INTRODUCTION

1    This is an appeal from the decision of the Federal Circuit Court given on 13 July 2017 dismissing the appellant’s application for judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) dated 27 July 2016. The Tribunal affirmed a decision by the delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the appellant a Bridging (Class WE) visa (the bridging visa).

2    The appellant appeared at the hearing of the appeal and made short submissions assisted by an interpreter. The appellant confirmed that he had received the Minister’s written submissions and that he had not filed any written submissions in advance of the hearing.

2.    BACKGROUND

2.1    The decision by an officer of the Department

3    On 4 December 2015, the appellant applied for the bridging visa on the basis that he was seeking judicial review in relation to a substantive visa: Appeal Book (AB) 1. By a letter dated 11 December 2017 sent by registered post to the appellant to the address which he specified in his visa application, the Department of Immigration and Border Protection (the Department) acknowledged receipt of the appellant’s application for a bridging visa: AB 66. Importantly, the letter also advised that the appellant was required to attend an interview with an officer of the NSW Community Status Resolution section and that this was “one of the legal requirements to be met for an application for a Bridging Visa E to be assessed”, referring to subclause 050.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The letter emphasised that the applicant “must present in person to NSW Community Status Resolution” (emphasis in the original), and gave the address of the NSW Community Status Resolution and its opening hours. The letter further advised that:

If the applicant:

(a)    holds a visa, they should attend before the expiry of the Bridging Visa E they hold;

(b)    does not hold a visa, they should attend as soon as they receive this letter;

(c)    does not attend the interview, a decision will be made on the application after 25 December 2015.

(emphasis added)

4    The letter instructed the appellant that he must bring the letter together with certain documents to the interview and that, if he attends the office, a decision on his visa application will be made after the interview. I also note that the contact details of the delegate and the Department are set out in the letter, even though the letter does not give a telephone number for the office where he was required to attend.

5    On 6 January 2016, the Department sent a letter by email to the appellant to the email address given by him in his visa application (AB 2) advising that his application had been refused:

… because Amardeep Singh did not satisfy 050.222 of the Migration Regulations 1994 (the Regulations) which states that the applicant is required to attend an interview.

You were asked in writing on 11/12/2015 to attend an interview by 25/12/2015. You did not comply with this request.

(AB 68)

2.2    The decision of the Tribunal

6    The appellant applied to the Tribunal on 23 January 2016 for review of the delegate’s decision: AB 75. He attended a hearing before the Tribunal on 27 July 2016: AB 96. The appellant provided a letter from the College of East London in the United Kingdom dated 11 September 2014 to the Tribunal at the hearing: AB 95.

7    The Tribunal affirmed the delegate’s decision on 27 July 2016: AB 102. The Tribunal identified the issue as whether the applicant meets clause 050.222: Tribunal reasons at [6].

8    While the appellant indicated to the Tribunal that he did not require an interpreter, the Tribunal was concerned that he may not understand the issues to be considered and arranged for an interpreter to assist in the hearing: Tribunal reasons at [9].

9    At the Tribunal hearing, the appellant acknowledged that he had received the letter about the interview and confirmed that he had not been interviewed by an officer since making his visa application. He said that he thought he would receive a letter with the date and time of the interview, and when asked why he did not contact the Department and make enquiries about the interview, said it was a holiday. However, the Tribunal noted that the letter was sent on 11 December 2015 and that there were working days before the public holiday. The Tribunal also noted that the delegate did not make the primary decision until 6 January 2016, it appeared that the appellant had an opportunity after the holiday period to contact the Department, and that the appellant had said that this was his fault (Tribunal reasons at [10]).

10    The Tribunal found as follows:

12. There is no evidence before the Tribunal to indicate that the applicant was in detention at the time of application. There is no evidence before the Tribunal to indicate the applicant is the holder of a Bridging E (Class WE) visa, or held such a visa at the time of application. He confirmed this at the hearing. Therefore he does not meet cl.050.222(2).

13. There is no evidence before the Tribunal to indicate that the applicant has previously held a Bridging E (Class WE) visa. At the hearing he indicated he had been the holder of a visitor visa but had no evidence of previously holding a Bridging E (Class WE) visa. Therefore cl.050.222(3) is not met.

14. There is no evidence before the Tribunal to indicate that cl.050.212(4AAA) or cl.050.222(4AB) apply to the applicant. Therefore the applicant does not meet cl.050.222(4).

(Clause 050.222 is quoted below at [14].)

11    Accordingly the Tribunal found that the appellant did not satisfy the criteria for the grant of a Bridging E (Class WE) Visa: Tribunal reasons at [16]. The Tribunal also noted that the visa application is an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. However the Tribunal found that the appellant is not a relevant eligible non-citizen as set out in cl 051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

2.3    The decision of Court below

12    The appellant applied for judicial review in the Federal Circuit Court on 25 August 2016. This application was supported by an affidavit dated 20 August 2016: AB 112. The application identified seven grounds of review namely:

1.    I applied for student visa, which was refused by DIBP. I applied for AAT review, which was also refused. I applied for judicial review and sent Form 1005 to get bridging visa E. DIBP sent me a letter for interview without indicating the date of interview. I kept waiting for date of interview.

2.    I was shocked to know that irrespective of my appeal in judicial court, my bridging visa application was refused.

3.    I applied to AAT for review but AAT failed to understand my genuine arguments.

4.    AAT could have interviewed me and grant me bridging visa E but AAT did not look my case favourably.

5.    I applied for AAT review and my application was refused. I had great expectation from administrative appeals Tribunal but AAT did not take my circumstances in to consideration and just refused my application.

6.    I believe the facts of my case and my situation were not fairly assessed by the AAT and that this has resulted in an unfavourable outcome for me.

7.    I believe I was dealt with unfairly and I would like to lodge a judicial review application because I believe that the AAT did not follow all legislative requirements and did not act in a fair manner in finalising my refusal decision.

(Errors in original) (AB 105)

13    On 13 July 2017, the primary judge heard the application and delivered ex tempore (oral) reasons dismissing the application with costs.

3.    CONSIDERATION

14    Clause 050.222 of the Regulations provides that:

050.222 

(1)    Unless subclause (2), (3) or (4) applies, the applicant has been interviewed by an officer who is authorised by the Secretary for the purposes of this clause.

(2)    This subclause applies if:

(a)    the applicant is not in immigration detention; and

(b)    the applicant has made a valid application for a substantive visa; and

(c)    the applicant holds a Bridging E (Class WE) visa; and

(d)    the applicant is not seeking to be granted a further Bridging E (Class WE) visa that is subject to conditions other than those that apply to the Bridging E (Class WE) visa that the applicant currently holds.

(3)    This subclause applies if:

(a)    an officer who is authorised by the Secretary for the purposes of this clause was not available to interview the applicant:

(i)    at the time of application; or

(ii)    if the bridging visa could be granted under regulation 2.21B, at the time of decision; and

(b)    the applicant is not in immigration detention; and

(c)    the applicant has made a valid application for a substantive visa; and

(d)    the applicant has previously held, but does not currently hold, a Bridging E (Class WE) visa.

(4)    This subclause applies if the applicant is a person:

(a)    to whom subclause 050.212(4AAA) applies; or

(b)    to whom subclause 050.212(4AB) continues to apply.

Further to cl.050.222, sub-cl.052.212(4AAA) and (4AB) of the Regulations state:

050.212

…

(4AAA)    An applicant meets the requirements of this subclause if the applicant has applied for:

(a)    a declaration from a court that the Act does not apply to the applicant; or

(b)    judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act 2007;

and the proceedings for the declaration or review have not been completed.

…

(4AB)    An applicant meets the requirements of this subclause if the applicant is:

(a)    a member of the immediate family of a person who meets the requirements of subclause (4AAA); or

(b)    a brother or sister who has not turned 18, of a person who:

(i)    meets the requirements of subclause (4AAA); and

(ii)    has not turned 18.

15    The notice of appeal raises six grounds. The Minister accepted that grounds 1 and 3 had been raised below but correctly pointed to the fact that grounds 2, 4 and 5 had not been raised before the primary judge and therefore that the appellant required a grant of leave in order to raise them on the appeal.

16    As the primary judge noted, in order to succeed it was necessary for the appellant to establish that the Tribunal’s decision was affected by jurisdictional error, that is, that the Tribunal did not make a valid and lawful decision. In order to demonstrate jurisdictional error, it is necessary to establish that the Tribunal for example, applied the wrong criteria for the grant of a visa, misconstrued the criteria for the grant of a visa, or failed to act in compliance with statutory and, where relevant, common law, principles of procedural fairness so as to afford an applicant the opportunity to be heard on the critical issues: Craig v South Australia (1995) 184 CLR 163.

17    First, it is apparent that the Tribunal correctly identified the relevant criteria. Section 31 of the Act provides for a class of visa known as “bridging visas” for which provision is made in s 37 of the Migration Act (Cth) 1958 (the Act). Section 37 in turn provides that “[t]here are classes of temporary visas, to be known as bridging visas, to be granted under subdivision AF [of Division 3 of Part 2 of the Act].” Section 31(3) provides that the regulations may prescribe criteria for visas of a specified class. Regulation 2.02(2) of the Regulations provides that:

For the purposes of this Part and Schedules 1 and 2, a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitem "Subclasses" in the item in Schedule 1 that refers to that class of visa.

18    This means the criteria specified in Schedule 2 apply to a particular class of visa, relevantly a bridging visa, where Schedule 1 identifies the applicable subclass. In this regard, regulation 2.03(1) provides that:

For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulations 2.03A and 2.03AA, the prescribed criteria for the grant to a person of a visa of a particular class are:

(a) the primary criteria set out in a relevant Part of Schedule 2; or

(b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.

19    Clause 1305 of Schedule 1 of the Regulations under the heading “Bridging E (Class WE)” identifies two subclasses at sub-clause 4, namely “050 Bridging General” and “051 Bridging (Protection Visa) Applicant”. The reference to subclass 050 takes the reader to subclass 050 in Schedule 2 which specifies under 050.2, primary criteria of two types that all applicants under this criteria must satisfy, namely, criteria to be satisfied at the time the application is made and criteria to be satisfied at the time of the decision. Clause 050.222 is one of the criteria to be satisfied at the time of the decision. It follows that the Tribunal correctly found that it was necessary for the appellant to satisfy at the time of its decision the criterion clause 050.222 of Schedule 2 of the Regulations.

20    Secondly, as the primary judge held at [11], while the letter from the Department dated 11 December 2015 did not specify a date for the interview, there was no requirement in the Regulations or under the Act for any invitation to be given to a visa applicant to attend a particular place on a specified date or time. Furthermore and in any event, as the primary judge also found, the letter from the delegate dated 11 December 2015 clearly and unambiguously explained that it was a requirement for the appellant to attend for an interview in person, and that if he did not attend an interview the decision would be made after 25 December 2015. It also gave the address and opening hours of the office which he needed to attend. Most relevantly, the Tribunal noted that the appellant had conceded that he did not attend an interview. That matter was fatal to the application for judicial review, as the primary judge also held, there having been no suggestion that the Tribunal erred in holding that none of the exceptions to cl 050.222(1) specified in 050.222(2), (3) or (4) applied to the appellant.

21    Thirdly, I agree with the primary judge that the appellant’s complaints that the Tribunal failed to understand his arguments, did not take his circumstances into consideration, did not fairly assess the facts of his case, and dealt with him unfairly, had no basis in the evidence. The Tribunal correctly ensured that an interpreter was present on being concerned that the appellant may not understand the issues to be considered, despite the appellant indicating that that was unnecessary. The provision of the interpreter in circumstances where a decision maker has doubts as to a litigant’s capacity to understand the proceedings and to be understood is an essential element of the requirements of procedural fairness: see e.g. SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142; Recommended National Standards for Working with Interpreters in Courts and Tribunals (JCCD) (2017) at 27 and 29. Further as the primary judge held, the Tribunal then with the assistance of the interpreter explained the issue, gave the appellant an opportunity to respond, and took his evidence into account, including his concession that he had not been interviewed by an authorised officer since making the visa application. That being so, the finding that the appellant had not on his own evidence attended the interview led inevitably to the decision to affirm the delegate’s decision.

22    Turning to Grounds 2, 4 and 5 of the notice of appeal, the Minister submitted that leave should be refused to raise these issues on the appeal because the appellant has not explained why the grounds were not raised below and they lack any merit.

23    As the appellant is unrepresented, I have focused on considering whether the proposed grounds could have any reasonable prospect of succeeding and have not taken into account the lack of an explanation by the appellant for not raising those grounds below.

24    By ground 2, the appellant alleges that the Tribunal did not comply with the requirements of procedural fairness because it did not advise him of the existence of a certificate under s 438 of the Act. That provision relates to the issue of a certificate by the Minister that the disclosure of certain information would be contrary to the public interest or that the information was given to the Minister or the Department in confidence. That section appears in Division 7 of Part 7 of the Act concerning protection visa applications and therefore has no relevance here. However, to the extent that the appellant intends to refer to a non-disclosure certificate under s 375A or s 376 (which are to similar effect in Part 5 of the Act), the short point is that no non-disclosure certificates were issued by the Department in this case.

25    By ground 4, the appellant alleges that the Tribunal failed to comply with s 359 or 359A of the Act by failing to give him clear particulars of adverse information that the Tribunal considered would be a reason, or a part of the reason, for affirming the delegate’s decision, namely, that he did not attend an interview with the Department despite being asked to do so. However, as the Minister submits, the ground could not succeed because the appellant gave the information in question for the purposes of the application for review, thereby attracting the exception in s 359A(4)(b).

26    Finally, by ground 5 the appellant alleges that:

The Court below erred in finding that the [Tribunal] that it did not ask the applicant whether the applicant has taken reasonable steps to depart to grant BV E.

27    I read the reference to ‘BVE’ as a reference to a Bridging Visa E.

28    Nonetheless the nature of the error alleged is not clear. However as the Minister submitted, the ground appears to refer to cl 050.212(2) of Schedule 2 to the Regulations which states that “an applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.” However as the Minister also submitted, that matter was not relevant to the Tribunal’s decision, the issue identified by the Tribunal being whether the appellant met the requirements of clause 050.222. As the appellant accepted that he had not satisfied that criterion, it was unnecessary for the Tribunal to consider whether he met the requirements of clause 050.212(2). As such the ground could not succeed.

29    As none of the new grounds sought to be raised by the appellant have any reasonable prospects of success for the reasons I have explained, leave must be refused to raise them. Ultimately, it is apparent that the appellant’s real complaint is with the requirement that he satisfy the criterion in cl 050.222 and the fairness of the outcome of applying that criterion in his case. He has not identified any error which could sound in invalidity of the Tribunal’s decision and which this Court or the Court below could correct.

4.    CONCLUSION

30    For these reasons the appeal must be dismissed. I will hear the parties as to costs.

Associate:

Dated:    16 November 2017