Acharige v Minister for Immigration

[2015] FCCA 3236

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACHARIGE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3236

Catchwords:
MIGRATION – Application for judicial review – denial of natural justice – extension of time – application dismissed.

Legislation:

Education Services for Overseas Students Act 2000 (Cth)

Migration Act 1958 (Cth)

Kaur & Anor v Minister for Immigration and Border Protection & Anor [2014] FCA 915

Applicant: MAHEESHA MADMANTHA ALUTHGAMA ACHARIGE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2242 of 2014

Judgment of: Judge McGuire

Hearing date: 29 October 2015

Date of Last Submission: 29 October 2015

Delivered at: Melbourne

Delivered on: 21 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: Ronald Gordon Solicitors

Counsel for the Respondents: Ms Noble

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2. The application for extension of time to file an application for judicial review be dismissed.

3. The substantive application filed on 7 November 2014 be dismissed.

4. The applicant pay the first respondent’s costs set in the quantum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2242 of 2014

MAHEESHA MADMANTHA ALUTHGAMA ACHARIGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed 7 November 2014 seeking judicial review of a decision of the Migration Review Tribunal (as it then was) (“the Tribunal”) affirming a decision of the Minister’s delegate not to revoke automatic cancellation of the applicant’s Student (Class TU) Subclass 572 visa (“the visa”).

2. The applicant relies on an amended application filed 19 June 2015.  Despite reference in that application otherwise, the applicant requires and applies for an extension of time to bring his application. 

3. The application and supporting affidavit are comprehensive in content but effectively argue two grounds being: 

   (1) that the applicant was denied natural justice and/or procedural fairness; 

   (2) that the Tribunal erred in law in “that it conceded that had the applicant attended the tribunal hearing the tribunal would have spoken with him and sought more detail about his study since arrival in Australia.”

4. Mr Gordon appeared on behalf of the applicant. Mr Gordon was instructed only shortly before the hearing before this Court.  Mr Gordon isolated only a narrow issue for argument being that the applicant had made an honest and reasonable mistake in advising the Department of Immigration of a change of address but not advising the Tribunal directly.  It followed that the hearing proceeded in the absence of the applicant.  Mr Gordon takes no issue with the discretion to proceed to hearing being properly exercised or the course of the Tribunal’s reasoning.  He argues, however, that the Tribunal itself referenced on a number of occasions in its reasons that had the applicant been present then it would have sought clarification or amplification of the applicant’s argument as to his special circumstances.

5. The application for an extension of time is opposed on the bases that the applicant does not provide a reasonable excuse for the delay and also as to there being no merit to the substantive application.

Background

1. The applicant is from Sri Lanka. On 22 December 2011 he was granted a student visa. On 4 July 2012 the applicant’s education provider, South Cross Education Institute Pty Ltd, issued a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) stating that the applicant had failed to meet the statutory requirements, being clause 8202(3), in that he had not achieved satisfactory course progress and breached condition 8202 of his visa.

2. The applicant did not comply with the Notice to Attend an Office of the Department within the prescribed time. It followed that on 2 August 2012 the applicant’s visa was automatically cancelled pursuant to s.137J of the Migration Act 1958 (Cth) (“the Act”).

3. On 11 October 2012 the applicant applied to the Department to revoke the automatic cancellation.  On 6 November 2012 the applicant provided documentation to the Department by email.  On 16 November 2012 a different delegate determined not to revoke the automatic cancellation.

4. On 16 November 2012 the applicant applied to the Tribunal for a review of the delegates’ decisions.  The applicant provided a notice of address for service as “10 Woodward Street, Springvale, Victoria 3171”.  The applicant provided email and a telephone contact number.

5. On 14 August 2014 the Tribunal wrote to the applicant inviting him to appear before the Tribunal on 18 September 2014. Notice was given in accordance with s.379A of the Act and specifically by pre-paid post pursuant to subsection (4).

6. On 19 September 2014 the Tribunal affirmed the delegate’s decision in the absence of the applicant.  As mentioned above, Counsel for the applicant does not take issue with the Tribunal’s process.

7. Notably, the Tribunal’s reasons reference the absence of the applicant to clarify or amplify his application.  Specifically, at [30] the Tribunal says: 

   Had the applicant attended the tribunal hearing tribunal (sic) would have spoken with him and sought more detail about his study since arrival in Australia.  The tribunal would have asked for details of his academic results and about any courses completed and qualifications gained in Australia.  That information would be relevant to consideration of the applicant’s prior commitment to his studies.  The tribunal would have asked him about what corroborative evidence there was concerning the need for him to provide such a level of support to his wife.  The applicant referred to his wife’s suffering from an allergy to cold however it is not apparent to the Tribunal why someone would need to be with her for that reason.  Indeed it is not apparent exactly what is meant by the term an “allergy to cold”.  The tribunal would have sought details of any medical diagnosis supporting the claim as well as the claim that the applicant’s wife required so much assistance at a very early stage of her pregnancy.

8. At [36] the Tribunal provides:

   The tribunal would have also asked the applicant about his statement that he did not know about the cancellation of his visa until he was caught by police.  It is unclear in what circumstances “caught” by the police.  In this respect the tribunal would have asked the applicant whether his contact with police was in the course of employment or whether he was working at any stage in 2011 or 2012.  If he was employed, the tribunal would have asked him questions concerning how he was able to attend to employment but not his studies.  Of course that is speculative on the evidence before it and the tribunal makes no findings on the point of whether the applicant was working at the time or not.  It illustrates however the range of questions and discussions that would have occurred had the applicant attended the tribunal hearing.

9. Further at [39]: 

   The applicant has provided explanations as to various the various (sic) circumstances he claims impacted on his ability to attend classes and progress in his studies.  Based on the evidence before it the tribunal is simply not satisfied that the events described by the applicant constituted exceptional circumstances beyond his control which led to the breach of the visa conditions.  He makes broad sweeping claims with very little corroborative evidence and it is somewhat difficult to accept the claims he has made without further explanation or clarification.  As set out above the tribunal had a number of questions for the applicant had he attended the hearing in order to clarify his situation and possibly to provide him with an opportunity of lodging any further relevant corroborative evidence in support of the review application.  The tribunal is simply not satisfied that the breach was due to exceptional circumstances or that the circumstances referred to by the applicant constituted exceptional circumstances beyond his control which led to the breach.

Application to this Court

1. Counsel for the applicant argues that the applicant made an honest and reasonable mistake in notifying the Department rather than the Tribunal as to his change of address.  It is emphasised that English is not the applicant’s first language. Counsel argues that the mistake is a reasonable one given that the Tribunal is effectively a part of the Department and, in fact, it is evident that the Tribunal has sourced departmental files for documents.  Counsel also observes that the notice of change of address (albeit to the Department and not the Tribunal) was provided on 6 August 2013 and that the Tribunal’s invitation to the applicant to attend its hearing was not sent until 14 August 2014, being more than a year later.

Extension of time

1. The applicant was out of time in the filing of his application for judicial review by only approximately two weeks.  The uncontroversial evidence is that the applicant himself contacted the Tribunal and sought a copy of its determination and reasons and then acted prudently in filing his application to this Court within a matter of only two days.

2. In considering an application for extension of time the Court is to take into account the following: 

   (i) the length of the delay; 

   (ii) the reasons for the delay; 

   (iii) the relative prejudice to the parties of the granting or the refusal of an extension of time; and

   (iv) the merits of the substantive application.

Consideration

1. The applicant candidly admits that he did not follow the proper statutory process for the notification of a change of address.  He relies on what he says was an honest and reasonable mistake in the circumstances as set out above.  He says that he was then denied natural justice or procedural fairness but specifically, in the sense, that the Tribunal itself observed that clarification or amplification may have assisted the Tribunal in its determination.

2. It is important to emphasise that this is not a Court charged with providing yet another merits review on the applicant’s substantive application.  Rather, the applicant must point to a jurisdictional error in the process or determination of the Tribunal.  As such, any sympathies that this Court may have for the applicant’s particular circumstances or their reasonableness or honest admission of his mistake are irrelevant.  The fact remains that the applicant seeks an indulgence in the face of his non-compliance with statutory requirements.

3. It is indisputable that the Tribunal followed the correct process in both hearing the application in the absence of the applicant and in its process of consideration and determination.  I repeat that Counsel for the applicant does not here take issue.

4. I am satisfied that the facts in this case can be distinguished from those before Mortimer J in Kaur & Anor v Minister for Immigration and Border Protection & Anor.[1]  In Kaur her Honour was of the view that the Tribunal should have been alerted by the non-attendance of the applicant at the hearing against a background where the applicant had consistently and frequently engaged with the Tribunal. In the matter now before me, such frequent engagement was not evident albeit perhaps not required for this applicant. Statute provides for the Tribunal to proceed to hearing in the absence of an applicant in particular circumstances and there is no argument that the Tribunal did not act properly in this instance.

   [1] [2014] FCA 915

5. It is for the Tribunal to make its determination on the evidence given or adduced. It is not for the Tribunal to itself seek out the evidence.  Again, and against a concession that the Tribunal did not err in its process, I am not persuaded that the comments of the Tribunal as to the questions it might ask the applicant if he had appeared before it lead to a denial of natural justice or procedural fairness for the applicant.  The Tribunal engaged the evidence before it and made its determination.

Conclusion

1. In all of the circumstances, therefore, I am not persuaded that the Court’s discretion should be exercised to extend time for the applicant to bring his application.  In doing so, I note that the delay was a relatively short one and there is no evidence of prejudice on the first respondent.  I am satisfied that the applicant did make an honest and reasonable mistake in non-compliance with statute and hence he simply seeks an indulgence of this Court.  Significantly, however, I am not satisfied that the applicant has been able to point to a jurisdictional error in the process or determination of the Tribunal and I am not persuaded that the applicant was denied natural justice or procedural fairness.

2. The application will be dismissed with an order for costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 21 December 2015