Singh v Minister for Immigration and Border Protection

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.

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