Federal Court of Australia

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1495

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellants pay the First Respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

HESPE J:

1    The Appellants appeal the judgment of the Federal Circuit Court which held that a mistake made by the Administrative Appeals Tribunal was not jurisdictional in nature.

2    The First Appellant, Mr Singh, is a citizen of India. The Second Appellant is a member of Mr Singh’s family unit. Mr Singh arrived in Australian in February 2009 as the holder of a Student visa. Mr Singh was subsequently issued a Temporary Graduate visa which expired in May 2017.

3    In May 2017 Mr Singh applied for another Student visa to study for a Diploma of Leadership and Management from 5 June 2017 to 4 March 2018.

4    On 5 October 2017 a delegate of the First Respondent refused to grant the visa on the basis that Mr Singh did not satisfy the requirements of cl 500.212(a) of sch 2 of the Migration Regulations 1994 (Cth). The delegate was not satisfied that Mr Singh intended genuinely to stay in Australia temporarily.

5    The Appellants sought review of the delegate’s decision by the Tribunal. On 27 March 2019 the Tribunal invited Mr Singh to provide certain information set out in a “Request for Student Visa Information form”. Mr Singh provided the completed information form to the Tribunal on 23 April 2019.

6    On 28 May 2019 Mr Singh attended a Tribunal hearing. On that occasion Mr Singh provided the Tribunal with further documents.

7    On 2 June 2019 the Tribunal affirmed the delegate’s decision. In the course of its reasons, the Tribunal referred to the applicant’s “response to the Tribunal’s s.359A letter” (TR [14] and [24]). These paragraphs relevantly provided:

[14]    According to the evidence submitted by the applicant, including his response to the Tribunal's s.359A letter, since arriving onshore he has successfully completed the following courses…

…

[24]    In respect of his family circumstances, according to the evidence submitted by the applicant in his response to the Tribunal's s.359A letter both of his parents and two of his three sisters presently reside in Perth, with his remaining sister resident in India…

8    It was common ground that the reference to a s 359A letter was an error. No letter under s 359A of the Migration Act 1958 (Cth) had been sent by the Tribunal to Mr Singh. The Court below accepted that the Tribunal had requested that Mr Singh provide information pursuant to its power in s 359(2).

9    The Appellants sought judicial review of the Tribunal’s decision in the Federal Circuit Court on the ground that they had been denied procedural fairness because Mr Singh had not received a s 359A letter. Mr Singh submitted that the Tribunal made an error in referring to a s 359A letter because he had never received such a letter.

10    Section 359A of the Migration Act relevantly provides:

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.

…

(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.

…

11    The Court below concluded the Tribunal’s erroneous reference to a s 359A letter was not a jurisdictional error. The Court below concluded that the Tribunal relied only on material provided by Mr Singh. As a result, s 359A(4)(b) and (ba) applied and s 359A(1) was not engaged. The Court below was satisfied that the Tribunal misdescribed the section pursuant to which information had been sought from and provided by Mr Singh. Although it was understandable that Mr Singh would have been confused by the erroneous reference to a s 359A letter in the Tribunal’s reasons, that error was not jurisdictional.

12    At the hearing on appeal, Mr Singh relied upon the same error in the Tribunal’s reasons to support his grounds of review. The grounds of review set out in the Notice of Appeal contend a broad assertion that the Tribunal’s error was jurisdictional.

13    At its most fundamental level, jurisdictional error is an error which results in a decision lacking statutory force: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24]. It is an error which results in the decision-maker (in this case, the Tribunal) failing to perform its statutory task. Not every error that is made by a decision-maker is jurisdictional.

14    In this case, the Tribunal’s erroneous reference to a “s.359A letter” whilst confusing did not result in the Tribunal failing to carry out its statutory task. The error made was not jurisdictional.

15    The Tribunal was empowered to seek further information from Mr Singh pursuant to s 359 of the Migration Act. That section relevantly provides:

359     Tribunal may seek information

(1)     In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)     Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

…

16    The Tribunal had power to send the information request form to Mr Singh. Mr Singh provided a response to that request and the Tribunal considered the information provided in that response. There was no suggestion that the Tribunal took into account information that had not been provided by Mr Singh. Mr Singh was invited to provide information, attend a hearing and provide documents. Mr Singh responded to each invitation extended to him. There was no denial of procedural fairness.

17    The Tribunal Reasons record the information and evidence the Tribunal considered material and on which it relied. Whilst the misdescription of the statutory provision pursuant to which the Tribunal sought and was provided with information was confusing and therefore unfortunate, it did not amount to jurisdictional error. The erroneous reference to s 359A in the Tribunal’s reasons did not result in the Tribunal failing to carry out its statutory review task.

18    For these reasons, the appeal must be dismissed. The Minister is entitled to costs, to be taxed if not agreed.

Associate:

Dated:    29 November 2023