FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2018] FCA 1596

ORDERS

THE COURT ORDERS THAT:

1.    The appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) filed on 23 March 2018 is dismissed.

2.    Costs are reserved.

3.    On or before 4 pm on 28 November 2018 the first respondent is to file and serve submissions in support of his application for the applicant to pay his legal costs and addressing the concern as to the conduct of a third party, Mr Satchi, in the proceeding and whether those concerns ought to be conveyed in one way or another by the Court to a relevant authority.

4.    The first respondent is to file and serve any evidence in support of his application for costs together with the submissions as referred to in order 2 above.

5.    On or before 4 pm on 12 December 2018 the applicant is to file and serve any submissions and evidence in response.

6.    On or before 4 pm on 19 December 2018 the first respondent is to file and serve any evidence and submissions in reply.

7.    Subject to further order the application for costs will be decided on the papers.

8.    There be liberty to apply on 3 days’ notice.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, Suhkdeep Singh, filed a notice of appeal in this Court on 23 March 2018 from a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). Mr Singh had earlier been removed from Australia and returned to India on 14 March 2018 in circumstances which I later explain.

2    By the notice of appeal, Mr Singh seeks orders, among other things, to set aside the decision by the Hon Peter Dutton MP, the Minister for Home Affairs and (then) Minister for Immigration and Border Protection (the Minister), to cancel Mr Singh’s Class TU, subclass 573 Higher Education Sector (Temporary) visa (the visa) and to permanently stay the Tribunal’s decision made on 9 March 2018. By that decision, the Tribunal dismissed his application for review on the ground that it lacked jurisdiction to determine the matter. Mr Singh also seeks orders that the Court determine the merits of the matter and for loss and damage suffered by him from the date on which notice of intention to cancel his visa was “commenced”.

3    The Minister contends that Mr Singh’s purported appeal is incompetent on the grounds set out in the amended notice of objection to competency which was served on the applicant together with the Minister’s written submissions on 2 October 2018. Leave to rely upon the amended notice of objection to competency was granted at the hearing on 15 October 2018.

4    The grounds set out in the amended notice of objection to competency were as follows.

(1)    First, in substance, by the purported appeal Mr Singh seeks review of a decision by the Minister made personally under subs 501(2) of the Migration Act 1958 (Cth) (the Migration Act) to cancel Mr Singh’s visa. However, the Court has no jurisdiction to entertain the purported appeal against the Minister’s decision by virtue of s 43C of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

(2)    Secondly, the Tribunal’s decision that it lacked jurisdiction to entertain the application for review was otherwise correct and the purported notice of appeal from the Tribunal’s decision thereby fails to identify any question of law that properly invokes the Court’s jurisdiction under s 44 of the AAT Act.

5    Mr Singh provided written submissions and made oral submissions from India via telephone hookup at the hearing with the assistance of an interpreter in Hindi and English.

6    For the reasons set out below, the objection to competency must be upheld and the appeal dismissed.

2.    EVIDENCE

7    In support of his objection to competency, the Minister relied upon the affidavit of Hadi Yazdan-Parast affirmed on 29 June 2018. Mr Yazdan-Parast is a Senior Legal Officer employed in the AAT & Removals Injunction Section of the Migration and Citizenship Litigation Branch of the Department of Home Affairs (the Department). In that role he is responsible, among other things, for managing litigation on behalf of the Minister in relation to visas refused or cancelled for character reasons. Mr Yazdan-Parast has the day-to-day conduct of this matter on behalf of the Department of Home Affairs.

8    In his role, Mr Yazdan-Parast is required to have regard to various departmental policies including “PAM3: Act - Compliance and Case Resolution: Returns and Removals: Removal from Australia” (the Departmental Removals Policy), an extract of which was annexed to his affidavit and set out the Departmental policy with respect to removals. The Tribunal’s decision dated 9 March 2018 was also annexed to the affidavit, together with an email and letter from Mr Singh dated 12 March 2018 advising the Department of his intention to file an appeal against the Tribunal’s decision in the Federal Court within 28 days from 9 March 2018. Mr Yazdan-Parast’s affidavit was also relied upon by the Minister to establish the order of events especially in relation to when Mr Singh was given notice of the intention to remove him from Australia, Mr Singh’s correspondence following the giving of that notice, and Mr Singh’s removal on 14 March 2018.

9    In addition, the Minister tendered a bundle of documents which was served on Mr Singh on 2 October 2018. The bundle contains copies of the notice of cancellation and the Minister’s decision to cancel the visa to which is annexed his statement of reasons and the documents which were before him when he made his decision.

10    Mr Singh relied in opposition to the objection to competency upon the affidavit of his sister, Ms Ramandeep Kaur, sworn or affirmed on 20 March 2018 and the affidavit of Ms Maninder Kaur, Mr Singh’s wife, dated 8 October 2018. These affidavits were received in evidence subject to relevance under s 57 of the Evidence Act 1995 (Cth).

3.    BACKGROUND

11    On 20 November 2015, Mr Singh was convicted in the Local Court of New South Wales of three sexually-based offences for which he was sentenced to a total of 28 months imprisonment. All sentences of imprisonment were suspended. He was subsequently convicted on 11 April 2018 of an offence of “assault with ACT of indecency–t2” and sentenced to 8 months imprisonment, also suspended. As a consequence of these convictions, Mr Singh did not pass the character test as defined in subs 501(6)(e) of the Migration Act.

12    By letter dated 31 January 2017, the Department of Immigration and Border Protection notified Mr Singh that consideration was being given to the cancellation of his visa under subs 501(2) of the Migration Act and invited him to make submissions as to whether he passed the character test. Mr Singh responded by a letter dated 6 March 2017 from his migration agent. In the letter, Mr Singh’s agent acknowledged that Mr Singh did not pass the character test but made submissions as to why the Minister should nonetheless not exercise his discretion to cancel Mr Singh’s visa.

13    On 9 January 2018, the Minister personally decided in the exercise of his discretion to cancel Mr Singh’s visa under subs 501(2) of the Migration Act. The notice of visa cancellation dated 23 January 2018 advising Mr Singh of the Minister’s decision also stated:

PLEASE NOTE:

The decision to cancel your visa has been made by the Minister. While the Administrative Appeals Tribunal (AAT) has the power to review decisions to cancel …. a visa under s501 made by delegates of the Minister, it cannot review decisions made by the Minister personally. You are free to seek legal advice as to your position, if you wish.

(emphasis in the original)

14    While as explained in the notice of visa cancellation, an application for review could not be made to the Tribunal, no such exclusion applies to this Court where a person may seek judicial review of decision made personally by the Minister under s 501 “within 35 days of the date of the migration decision” by virtue of subs 476A(1)(c) and 477A(1) of the Migration Act. However, after the 35 day period has elapsed, an application for judicial review to the Federal Court may be made only where the Court grants an extension of time under subs 477A(2). An extension of time may be granted under that provision only where the Court considers that it is appropriate to grant such leave and the criteria specified by subs 477A(2)(a) and (b) are met, as I later explain.

15    The “date of the migration decision” for these purposes means relevantly the date of the written notice of the decision: see subss 477(3)(d) and 477A(3) of the Migration Act. As a result (and as the Minister submitted), the 35 day period for an application for judicial review of the Minister’s decision commenced to run on 23 January 2018 and expired on 27 February 2018. It was not in issue that no application for judicial review of the Minister’s decision was made within that period.

16    However, on 5 March 2018 Mr Singh lodged a purported application for review of the Minister’s decision with the Tribunal. In the application, Mr Singh alleged that the Minister would not have had time to make the decision and merely used the Minister’s name for a decision made by a delegate of the Minister.

17    On 7 March 2018 Mr Singh was given a notice of intention to remove him from Australia.

18    The application to the Tribunal was dismissed on 9 March 2018 under s 42A(4) of the AAT Act . That subsection provides that:

The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.

19    In its reasons, the Tribunal found that it was apparent from the face of the documents that the Minister had signed the visa cancellation and accompanying reasons in his capacity as Minister for Home Affairs and Minister for Immigration and Border Protection, and that there was no evidentiary basis for finding that the visa cancellation decision was made by anyone other than the Minister. The Tribunal found as a consequence that it lacked jurisdiction for the reason that:

8. The Tribunal only has review jurisdiction that has been conferred by a relevant statutory provision: see the Administrative Appeals Tribunal Act 1975, s 25(1) & (3). The only relevant statutorily conferred review jurisdiction relating to visa cancellation decisions is that contained in Migration Act 1958, s 500(1)(b). That jurisdiction only applies to cancellation decisions made by “a delegate of the Minister”.

20    On 12 March 2018, Mr Singh sent an email to the Department asserting, among other things, that he had until 6 April 2018 to institute an appeal against the Tribunal’s decision in the Federal Court and asked that he not be “threatened” by officials in the detention centre with deportation to India until he had filed his appeal.

21    On 14 March 2018, Mr Singh was removed from Australia. By that date, the time within which he could seek judicial review of the Minister’s decision had expired, as I have explained, and there was no injunction from a court preventing his removal: see SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279 at [46] (the Court).

22    Given the concerns that I had initially expressed at the applicant having been removed despite giving notice of his intention to seek judicial review of the Tribunal’s decision, the Minister drew the Court’s attention to an excerpt from the Departmental Removals Policy. This policy provides procedures and advice on managing the removal of non-citizens from Australia under s 198 of the Migration Act and other removal issues. Under the heading “Unfinalised judicial review”, the Department set out its “policy” that the Migration Act does not prevent involuntary removal of an unlawful non-citizen who is entitled to seek judicial review or is in fact seeking judicial review. However, the policy also advised that non-citizens in this position should not be removed for three reasons: first, the person should be given adequate time after a negative Tribunal decision to seek judicial review; secondly, the court may ultimately overturn (or more accurately, set aside) the substantive visa decision; and thirdly the court may issue an injunction preventing removal of the non-citizen. In this regard, Mr Yazdan-Parast explained that he was of the opinion that the applicant’s email of 12 March 2018 and the information which he provided was not an impediment to his removal because, consistently with the Departmental policy, the applicant was out of time to seek judicial review of the Minister’s decision and there was no injunction from a Court preventing his removal.

4.    CONSIDERATION

4.1    The purported notice of appeal

23    The purported notice of appeal to this Court was filed on Form 75, being the prescribed form under rule 33.12(1) of the Federal Court Rules 2011 (Federal Court Rules) for a person who wishes to appeal to the Federal Court from the Tribunal in accordance with s 44 of the AAT Act.

24    The notice of appeal states that Mr Singh appeals from the whole of the Tribunal’s decision made on 9 March 2018 and identifies the following so-called question of law:

Migration act 1958, s500, s501, s501(1), s500(1)(b), s501(2), s501(6)(e)(i) and Administrative Appeal Tribunal act 1975 ss25(1) & (3), s42A(4), s44(7) and all other information were available before the AAT on 9/3/2018, and all the information available before the Minister on 23/1/2018 & 9/1/2018 and all the information available on 13/3/2018 before the NCCC see & Villawood Detention centre provided by and on behalf of the appellant.

25    The question is, with respect, incomprehensible and fails to identify question of law, merely reciting statutory provisions and asserting the existence and availability of “all the information”.

26    In the section entitled “Final orders sought”, Mr Singh seeks:

1.     An order that the decision of the Administrative Appeal Tribunal on 9/3/2018 be stayed permanently.

2.    The decision made by the minister on 9/1/2018 either be set aside or be varied under the option (b) of the decision, as referred therein.

3.    This court determine the merits of the matter commenced by the National Character Consideration Centre, [NCCC], the Department of Immigration and Border Protection from 31/1/2017 until he was arrested from his residence on 23/1/2017, held in Villawood Detention centre unlawfully and deported the appellant on 14/3/2018 forcefully, against the law.

4.    Loss & damages suffered by the appellant from the date, when the notice of intention cancel the appellant’s visa was commenced on 31/2/207, until the dated of final determination of this matter.

5.    Cost

(errors in original)

27    As the Minister submits, by paragraph 1 Mr Singh does not seek to set aside the Tribunal’s decision but rather seeks a permanent stay. By paragraph 2, Mr Singh seeks to challenge the Minister’s cancellation decision. Paragraph 3 expressly invites this Court to engage in merits review of the cancellation decision which this Court lacks jurisdiction to do: see e.g. Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J). The fourth paragraph seeks an order for loss and damage which this Court does not have power to award under s 44 of the AAT Act. The final order seeks costs which is the usual order made where a party is successful.

28    The “grounds relied upon” as articulated in the notice of appeal allege in substance that the Tribunal made its decision in breach of procedural fairness, challenge the steps taken by the Department, and seeks to challenge the Minister’s decision including on grounds relating to the process by which it was reached.

29    I agree with the Minister that when the text of the so-called “question of law” is read with the proposed final orders and grounds, especially those against the Department and Minister, it is apparent that in substance Mr Singh seeks to challenge the Minister’s decision to cancel his visa. To the extent that the proceedings before the Tribunal are mentioned, they are ultimately ancillary to the primary focus on the Minister’s decision. In this regard, as the Minister submits, it is illustrative of the appellant’s case that a stay only is sought against the Tribunal’s decision that it lacked jurisdiction. This is because even if a stay were granted, it could have no material effect on Mr Singh’s substantive rights. These were determined by the Minister’s decision.

30    Mr Singh’s written and oral submissions confirm this construction of the notice of appeal. Mr Singh focused in his submission on matters such as the alleged failure by the Minister to look at his individual circumstances including that he was given suspended sentences only, and had not done “anything wrong in the past three years”, the difficulties which he has had in India with finding work and pursuing a career particularly as a consequence of being deported, how his plight and the concern that his sister was now without his support in Australia were affecting his parents’ health, the effect the deportation has had upon his marriage, and that he completed his diplomas in business but could not complete his degree. He also made submissions about how scared he was in detention and the difficulties he had in obtaining a lawyer. The evidence of the applicant’s wife was also directed towards establishing Mr Singh’s good character and the impact of removal on him and members of his family. It is clear therefore that the focus of Mr Singh’s challenge is upon the Minister’s decision to cancel his visa with which he strongly disagrees, rather than the Tribunal’s decision.

4.2    A preliminary issue: Did the Minister make the cancellation decision personally?

31    As a preliminary issue, Mr Singh submitted that he still did not believe that the Minister made the decision cancelling his visa personally but rather that it was made by a delegate. Mr Singh did not however point to any evidence in support of that submission but rather focused upon his disagreement with the Minister’s decision submitting, among other things, that there had been a failure to take into account his personal circumstances and that the decision was made “randomly”.

32    However, the Court can make decisions only on the basis of evidence. No matter how genuinely Mr Singh may hold his belief that the Minister did not personally make the decision, in the absence of evidence that belief amounts to mere speculation.

33    In this regard all of the evidence unequivocally supports the finding that the cancellation decision was made by the Minister personally. First, both the cancellation decision and the accompanying statement of reasons are signed by the Hon Peter Dutton MP expressly in his capacity as the Minister for Home Affairs and Minister for Immigration and Border Protection. Secondly, the decision is expressed in the first person, that is, as a decision by the Minister, namely, “I reasonably suspect that Mr SINGH does not pass the character test and Mr SINGH has not satisfied me that he passes the character test. I have decided to exercise my discretion under s501(2) of the Act to cancel Mr SINGH’s visa. I hereby cancel Mr SINGH’s …. Visa…” (emphasis added). Thirdly, the Minister adopts the statement of reasons in his decision for the cancellation as his own reasons, stating that “My reasons for this decision are set out in the attached Statement of Reasons.” Fourthly, the statement of reasons is also expressed in the first person as a decision by the Minister. As such, while the Minister may not have drafted the reasons, he plainly adopted them: see e.g. Folau v Minister for Immigration and Border Protection [2017] FCAFC 214; (2017) 158 ALD 394 at [55]-[57] (Collier J); [82]-[93] (Murphy and Burley JJ).

34    It follows that the evidence establishes that the decision is what it purports to be, namely, a decision by the Minister personally to cancel Mr Singh’s visa.

4.3    The Court lacks jurisdiction under s 44 of the AAT Act to hear an appeal from the Minister’s decision to cancel the visa

35    While an application may be made to the Tribunal under subs 500(1)(b) of the Migration Act for review of a decision under s 501 of that Act by the Minister’s delegate, no such provision is made for review by the Tribunal of decisions under s 501 made personally by the Minister (as the Department explained in the notice of visa cancellation dated 23 January 2018). It follows, as the Tribunal held, that it did not have jurisdiction to review the decision to cancel Mr Singh’s visa because the decision was made personally by the Minister.

36    The question then arises as to this Court’s jurisdiction to entertain the so-called appeal from the Minister’s decision. (I deal later with the appeal insofar as it relates to the Tribunal’s decision.)

37    First, s 44 of Part IVA of the AAT Act provides that a party to a proceeding before the Tribunal may appeal to the Federal Court on a question of law from a decision of the Tribunal. However, as that section notes, s 43C provides that Part IVA of the AAT Act does not apply to any application in relation to, or for review of, a privative clause decision or purported privative clause decision as defined in the Migration Act. A “privative clause decision” is defined in s 474 of the Migration Act so as to include relevantly a decision cancelling a visa such as the Minister’s decision in this case: see subs 474(2) and (3)(b). It follows that no appeal can lie to this Court under s 44 of the AAT Act against the Minister’s decision. This is precluded by the combined effect of s 43C of the AAT Act and s 474 of the Migration Act. The notice of appeal is therefore incompetent to the extent that it seeks to appeal the Minister’s cancellation decision under s 44 of the AAT Act.

38    Secondly while no appeal lies against the Minister’s decision under s 44, it is still open to a person whose visa is cancelled by a decision made by the Minister personally to seek judicial review in the Federal Court: subs 476A(1)(c) of the Migration Act. However, as earlier mentioned any such application must be made within 35 days of the date of the Minister’s decision by virtue of subs 477A(1) of the Migration Act. An application of this kind is instituted by the filing of an originating application under Form 70 in accordance with rule 31.22 of the Federal Court Rules. In turn, where an extension of time within which to seek judicial review of the Minister’s decision is sought, the application must be made under rule 31.23(1) in accordance with Form 67, and by rule 31.23(2) that application must be accompanied by an affidavit setting out the facts and explaining why the application was not made within time and attaching the draft originating application. The requirements in rule 31.23 reflect the fact that the Court’s discretion to extend the time within which to seek judicial review is enlivened under subs 477A(2) of the Migration Act only where:

(a)    an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

39    It follows that while, as the Minister accepted, the Court has power to dispense with the requirements of the Federal Court Rules as is made clear by rule 1.34, the Court cannot dispense with the need for an application to be made that meets the description in subs 477A(2) of the Migration Act. It is plain, however, that no application has been made for an order to extend the time within which to seek judicial review of the Minister’s decision and the criteria for attracting the Court’s discretion to make such an order in subs 477A(2) have not been met.

40    It follows for these reasons that the “appeal” is also incompetent to the extent that it purports to seek judicial review of the Minister’s cancellation decision.

4.4    No question of law invoking the Court’s jurisdiction under s 44 of the AAT Act is articulated

41    Finally, the question arises as to whether the notice of appeal otherwise identifies an error of law that properly invokes the Court’s jurisdiction. As the Minister submits, where the question of law is not clearly identified, the question of whether a question of law is raised must be approached as a matter of substance having regard to the notice of appeal, the alleged question or questions of law, the grounds alleged, the statutory context, and the Tribunal’s reasons for decision: Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) at [94] (the Court).

42    It does not necessarily follow that a failure to identify with precision a question of law in the notice of appeal will mean that the Court lacks jurisdiction to entertain the appeal. However, ultimately if as a matter of substance no question of law arises, it will follow that the requirement in s 44 for attracting the Court’s jurisdiction will not be met. As the Full Court explained in Haritos:

97. … as an ordinary incident of its status as a superior court of record… the Court has jurisdiction to decide whether or not it has jurisdiction. This carries with it authority to decide whether a notice of appeal states a question of law and does so with sufficient precision and, if it does not, whether an appellant should have leave to amend the notice of appeal to remedy the defect.

43    In this case, the Tribunal found that the decision to cancel Mr Singh’s visa was made by the Minister personally. That finding was correctly made for the reasons I have earlier given. That being so, it followed as a matter of law that the Tribunal lacked jurisdiction to review the merits of the Minister’s decision. As such, as the Minister submits, the Tribunal’s exercise of power under subs 42A(4) to dismiss the application was not only open, but inevitable. Nothing in the notice of appeal seeks as a matter of substance to challenge the basis for this finding by the Tribunal. As I have earlier explained, it is clear that Mr Singh’s concern in substance is with the Minister’s decision to cancel his visa in the exercise of discretion. However, his strong disagreement with that decision cannot overcome the fundamental difficulty that the Tribunal had no jurisdiction to entertain his application for review. Nor can it ‘cure’ the jurisdictional difficulty that an appeal under s 44 of the AAT Act cannot be used as a means of challenging the Minister’s personal cancellation decision. Equally, for these reasons the evidence about Mr Singh’s good character given by his wife is not relevant and is not admissible on the notice of objection to competency.

44    It follows as a matter of substance that the notice of appeal fails to identify any question of law so as to invoke the Court’s jurisdiction under s 44 of the AAT Act.

5.    CONCLUSION

45    The notice of objection to competency must be upheld for these reasons. I reserve the question of costs, as requested by the Minister.

Associate:

Dated:    23 October 2018