Sekigawa v Minister for Immigration and Border Protection

1. The Application for leave to appeal is refused.
2. The proceeding is otherwise dismissed.
3. The Applicant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FLICK J: 1 The Applicant, Mr Takeshi Sekigawa, arrived in Australia in February 2014 on a holiday visa, a UD-601 visa. He decided to stay on as a student. In July 2014 he applied for a student visa. 2 The relevant visa category was Student (Temporary) (Class TU), Subclass 572. The criteria for the grant of that Subclass of visa are set out in cl 572 of Sch 2 of the Migration Regulations 1994 (Cth) (the "Migration Regulations"). 3 Relevantly cl 572.211 provided, as at the date of application, as follows: (1) If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6). (2) An applicant meets the requirements of this subclause if the applicant is: (a) the holder of a visa of one of the following classes or subclasses: … (v) Electronic Travel Authority (Class UD); … (xiii) Student (Temporary) (Class TU); … (3) An applicant meets the requirements of this subclause if: (a) the applicant is not the holder of a substantive visa; and (b) the last substantive visa held by the applicant was: (i) a student visa; or …; and (c) the application is made within 28 days (or within such period specified in a legislative instrument made by the Minister) after: (i) the day when that last substantive visa ceased to be in effect; or … Clause 572.211(4) and (6) assume no present relevance. 4 The application was refused by a delegate of the Minister for Immigration and Border Protection on 4 August 2014. The delegate was of the view that the Applicant failed to satisfy the requirements of cl 572.211. When he applied for his student visa in July 2014 his previous visa had expired. That visa expired on 5 May 2014. Mr Sekigawa, accordingly, was not the holder of a substantive visa at the time of application and his last substantive visa, his holiday visa, was not one of those listed in cl 572.211(3)(b). 5 Mr Sekigawa then sought review by the Migration Review Tribunal of the delegate's decision. He attended before the Tribunal at a hearing held in February 2015. He was assisted by an interpreter. The Tribunal affirmed the delegate's decision and published reasons for its decision on 9 February 2015. Those reasons provide in part as follows (without alteration): Was the last substantive visa of the specified type? 11. The last substantive visa held by the applicant was a UD-601 visa which does not meet the requirements of cl.572.211(3)(b) and in any event the application was not made within 28 days as required by cl.572.211(3)(c). In making this decision the Tribunal has considered the evidence of the applicant but has no discretion in this matter. 12. On the basis of the above, the Tribunal finds that the applicant does not satisfy cl.572.211(3), and therefore, does not meet the requirements of cl.572.211 of Schedule 2 to the Regulations. 13. For applicants in Australia who do not hold a substantive visa at the time of visa application, the other subclasses within the Class TU visa class have a requirement that is the same as cl.572.211(3). For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. 6 An application seeking judicial review of the Tribunal's decision was then filed with the Federal Circuit Court of Australia. That Court in an ex tempore judgment summarily dismissed the proceeding in April 2015 pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the "Federal Circuit Court Act"): Sekigawa v Minister for Immigration & Anor [2015] FCCA 815. Before that Court Mr Sekigawa was represented by a solicitor, Mr Geering. According to the reasons for decision of the Federal Circuit Court Judge, the grounds relied upon in the application as filed "were not good and … had no prospect of success". Alternative grounds of review, however, were relied upon, being arguments that there had been: a failure to take relevant considerations into account; an improper exercise of power; a failure to allow the Applicant "to present critical evidence"; and a failure to "take into account critical information". The Federal Circuit Court Judge concluded that "[t]here is no identifiable jurisdictional error that arises" from these reformulated grounds: [2015] FCCA 815 at [5]. Whether that conclusion was correct, without further explanation or qualification, may be open to question. The conclusion was presumably not a conclusion that in no circumstances could one or other of the grounds relied upon constitute jurisdictional error. 7 One aspect of the arguments sought to be advanced under the reformulated grounds was, apparently, an argument seizing upon an asserted lack of procedural fairness by reason of inadequacy in the standard of interpretation afforded before the Tribunal. Reliance was placed upon SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142, (2013) 219 FCR 212. But that argument failed. There was no material before the Federal Circuit Court Judge upon which such a conclusion could be reached. Notwithstanding the dearth of material available to that Court, it was nevertheless concluded that the Tribunal hearing was "fair and just": [2015] FCCA 815 at [6]. Before this Court, the Applicant filed an affidavit stating (inter alia) that he had requested the Tribunal to furnish him with "an audio recording of the MRT hearing." 8 A further aspect of the arguments sought to be relied upon which assumed significance was the failure to take into account "critical information". The reasons for decision identify that information to be a letter dated 11 July 2014. In addressing this argument, the Federal Circuit Court Judge observed (without alteration): [7] It was suggested that the Tribunal failed to take into account critical information, being a letter dated 11 July 2014, allegedly sent by AEC Education Migration Pty Limited. That proposition has no substance. That letter does not change the position in any respect in relation to the issue of non-compliance that was before the Tribunal. It is clear that that the letter was material to which the Tribunal had regard. The letter does not established that the applicant in fact was the holder of a visa within the 28 days or the making of a visa application within the 28 days of the last substantive visa expiring. That visa expired on 5 May 2014. [8] The letter dated 11 July 2014 cannot possibly explain the want of compliance prior to the expiry on 5 May 2014. Mr Geering was unable to advance any proposition that identified how that 28 day period was complied with … The proceeding was then dismissed. 9 An application seeking leave to appeal from that decision was filed in this Court on 15 April 2015. 10 Leave to appeal is required because the decision of the Federal Circuit Court Judge was an interlocutory and not a final decision: Federal Court of Australia Act 1976 (Cth), s 24(1A) (the "Federal Court Act"). See: Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd [2004] FCAFC 303 at [15], (2004) 51 ACSR 473 at 476 per Ryan, Weinberg and Crennan JJ. 11 Mr Sekigawa appeared before this Court unrepresented. He did, however, have the assistance of an interpreter. 12 Considerations relevant to the exercise of the discretion as to whether leave to appeal should be granted are: (a) whether in all the circumstances the judgment of the primary Judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused supposing the decision would be wrong. These considerations are "cumulative" and are not satisfied unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139 at [5], (2010) 81 ATR 36 at 38 per Ryan, Stone and Jagot JJ. The utility or otherwise of granting relief is also relevant to the exercise of the discretion: cf. SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [88], (2007) 81 ALJR 1190 at 1207. 13 If the review of the facts is confined to that material that was before the Federal Circuit Court, it becomes apparent that: Mr Sekigawa could not bring himself within cl 572.211(2) because he was not "the holder of a visa" of one or other of those classes or subclasses thereafter set forth and could not bring himself within cl 572.211(3)(c) because he had not applied for a visa within 28 days after the expiration of his earlier visa on 5 May 2014. Clause 572.211(3)(b) may presently be left to one side. But that provision ultimately assumes relevance. It is nevertheless also apparent that Mr Sekigawa was maintaining before that Court that: there were deficiencies in the translation of what was said at the hearing before the Tribunal; and he had posted a student visa application on 2 May 2014, so much being stated in the 11 July 2014 letter. 14 Confined to this material, it is open to question whether it was an appropriate exercise of the discretion conferred by s 17A of the Federal Circuit Court Act summarily to dismiss the proceeding without at least making inquiries, or causing inquiries to be made: of the Department, to determine whether or not there was in fact a letter dated 2 May 2014; and of the Tribunal, to determine if there was available an audio recording of the hearing before the Tribunal. Had those inquiries then been made, the current concerns still being advocated by Mr Sekigawa before this Court could well have been satisfied. The importance of a hearing before the Tribunal being conducted in a procedurally fair manner is, of course, central to the proper determination of claims. 15 Before this Court, Counsel for the Respondent Minister properly conceded that the Department had not undertaken a search of its files to determine the existence of any letter dated 2 May 2014 and also properly conceded that there was in fact an audio recording of the Tribunal hearing. The 2 May letter, if it existed, could potential satisfy cl 572.211(3)(c); the audio recording being potentially relevant to an alleged denial of procedural fairness by reason of deficiencies in the translation carried out before the Tribunal. Counsel for the Respondent Minister further submitted, however, that: there was no reason to question the proper discharge by the Secretary of the Department imposed by s 352(4) of the Migration Act 1958 (Cth) (the "Migration Act") to forward to the Tribunal a copy of each document "considered by the Secretary to be relevant to the review of the decision", the documents forwarded to the Tribunal not including any letter dated 2 May 2014; and the fact that different Judges may have approached the exercise of the discretion conferred by s 17A of the Federal Circuit Court Act differently, and may have caused further steps to have been undertaken before exercising that discretion, did not of itself prove any error in the exercise of the discretion within the parameters set by House v The King (1936) 55 CLR 499. Reliance was also placed by Counsel for the Respondent Minister upon the fact that in the proceedings before the Federal Circuit Court Mr Sekigawa was represented and that no attempt was apparently made to have any further search of the Departmental records undertaken and no attempt made to secure the production before that Court of any audio recording of the Tribunal hearing. 16 It is unnecessary, however, to pursue such matters further. It is unnecessary to reach any conclusion as to whether the discretion summarily to dismiss the proceeding was properly exercised. It must nevertheless be recognised that where, as in the present proceeding, both parties are represented, a Court should be able to rely upon the representatives to ensure that all relevant factual material and arguments are advanced for consideration. 17 Leave to appeal in the present proceeding is to be refused because there is no self-evident error in the conclusion reached by the Tribunal. 18 Even if jurisdictional error could have been established in the manner in which the Tribunal proceeded by reason of either not affording adequate translation facilities at the hearing or by reason of error that may have emerged had Mr Sekigawa been able to establish that a letter dated 2 May 2014 had in fact been forwarded to the Department, the Tribunal was clearly correct in concluding that he could not satisfy the requirements of cl 572.211(3)(b). The last visa held by Mr Sekigawa, namely the UD-601 visa was not a visa prescribed by cl 572.211(3)(b). Each of the requirements imposed by cl 572.211(3), it will be noted, are cumulative requirements each of which must be satisfied. The Tribunal clearly recognised the importance of cl 572.211(3)(b) to the decision it reached (at para [11] of its reasons). Other than extracting the Tribunal's reasons which address that requirement, however, it is not at all certain that it was a requirement which assumed importance to the reasoning of the Federal Circuit Court Judge. 19 Whatever other potential grounds of review may have otherwise been made out had the proceeding before the Federal Circuit Court Judge been more fully explored, the inability to satisfy the requirement of cl 572.211(3)(b) would almost certainly have precluded the grant of any relief in any judicial review application. Before this Court the Respondent Minister did not contend otherwise.