Adhikari v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 624
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Adhikari v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 624
File number: MLG 2838 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 10 August 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal to dismiss review application pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) due to applicants’ failure to appear at hearing - whether Tribunal properly notified applicants of invitation to attend a hearing – whether Tribunal denied applicants procedural fairness by failing to give them a hearing – no jurisdictional error – application dismissed Legislation: Constitution s 75
Migration Act 1958 (Cth) ss 360, 360A, 361, 362B, 362C, 379A, 476, 477
Migration Regulations 1994 (Cth) cll 500.211, 500.311, reg 4.21
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73
NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 4 August 2022 Place: Perth Applicants: The first applicant appeared in person Counsel for the First Respondent: Ms B Roscoe Second Respondent: Submitting appearance, save as to costs Solicitor for the Second Respondent: Mills Oakley Lawyers ORDERS
MLG 2838 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANTOSH KUMAR ADHIKARI
First Applicant
PUSHPA RAWAL
Second Applicant
SALINA ADHIKARI, BY HER LITIGATION GUARDIAN, SANTOSH KUMAR ADHIKARI
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
10 AUGUST 2022
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
Before the Court is an application filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicants seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The applicants applied to the Tribunal for review of a decision of a delegate of the Minister not to grant them Student (Temporary) (Class TU) visas (student visas). The Tribunal made two decisions in relation to the applicants’ application for review of the delegate’s decision. On 12 December 2017 the applicants failed to appear at a hearing listed before the Tribunal and the Tribunal exercised its discretion in s 362B(1A)(b) of the Migration Act to dismiss the application for review without any further consideration of the application or the information before the Tribunal (dismissal decision). On 9 February 2018 the Tribunal confirmed the dismissal decision in circumstances where the applicants did not apply for reinstatement within the 14 day period (confirmation decision). By the application to this Court, the applicants seek judicial review of the dismissal decision.
For the reasons explained below, I have found that there is no jurisdictional error in the Tribunal decision and I dismiss the application to this Court.
BACKGROUND
The applicants are non-citizens who applied for student visas on 27 September 2016. The first applicant is the primary visa applicant and the second applicant, who is the wife of the first applicant, was included in the application as a member of the same family unit. The third applicant is their daughter, who was born in Australia in December 2016 and added as an applicant to the visa application as a member of the same family unit.
On 7 April 2017 a delegate of the Minister made a decision not to grant the applicants student visas. The delegate was not satisfied that the first applicant was enrolled in a course of study as required by cl 500.211(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied that the second and third applicant were members of the same family unit of a person who holds a student visa as required by cl 500.311.
On 27 April 2017 the applicants lodged an application to the Tribunal for review of the delegate’s decision.
On 16 November 2017 the Tribunal sent to the applicants via email an invitation to attend a hearing on 12 December 2017, which included the following information:
If you are not able to attend the hearing, you need to advise me as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
The invitation was also accompanied by an information sheet that contained the following information:
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.
What happens if an application is dismissed?
If we dismiss your application, a written statement of the dismissal decision will be given to you. Within 14 days after receiving notice of the dismissal decision you may apply for reinstatement of the application.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so. If we reinstate the application, the application is taken never to have been dismissed and we will conduct (or continue to conduct) the review accordingly.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application. If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department's decision remains in force.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
On 5 December 2017 and 11 December 2017 the Tribunal sent SMS reminders to the applicants at the first applicant’s mobile phone number, which was the mobile number provided in the applicants’ application to the Tribunal.
On 12 December 2017 the applicants failed to appear at the scheduled Tribunal hearing and the Tribunal made the dismissal decision. The Tribunal notified the applicants of the dismissal decision on 13 December 2017. The notification was sent to the applicants by email and advised them that:
You may apply to us, in writing, for reinstatement of the application by 27 December 2017. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
The notification also enclosed an information sheet, which included the following information:
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
The applicants did not apply to the Tribunal for reinstatement of their application. Instead, within the 14 day period during which they could seek reinstatement of their application, the applicants filed an application to this Court seeking judicial review of the dismissal decision.
On 9 February 2018 the Tribunal made the confirmation decision.
TRIBUNAL DECISIONS
Dismissal decision
The Tribunal’s reasons comprise only three paragraphs, set out here in full:
1.The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 12 December 2017 at 1:30pm. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing, the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non‑appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
Confirmation decision
The Tribunal was satisfied that the applicants had been notified of the dismissal decision and given a copy of a written statement setting out the decision and its reasons pursuant to s 362C(5) of the Migration Act. The Tribunal was also satisfied that the applicants were advised that reinstatement of the application could be sought within 14 days of receiving the dismissal decision and that failure to apply for reinstatement within this period would result in confirmation of the dismissal decision.
The Tribunal found that the applicants did not apply for reinstatement of the application within the 14 day period and therefore confirmed the decision to dismiss the application.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review of the dismissal decision was filed within 35 days of that decision, within the timeframe prescribed by s 477(1) of the Migration Act.
The applicants raise three grounds of application, reproduced without alteration:
1.I was not advised of the hearing date and time properly and feel that I was not provided procedural fairness as I was not afforded the opportunity of a hearing to explain my circumstances.
2.I also feel that Natural justice was not given to me as no application should be decided without allowing the applicant proper opportunity to comment on their application.
3.I also feel that the law was incorrectly applied as the AAT did not attempt to contact me personally even though I had provided my telephone and home address. It was such an important application for me and I feel that a direct refusal of my review is very harsh punishment for missing one hearing for which I was not properly notified anyway.
The only relief sought by the applicants in their written application was a writ of certiorari for the Tribunal’s decision to be quashed. As the Minister identified in written submissions filed on 21 July 2022, the Court’s jurisdiction under s 476 of the Migration Act is the same as the High Court’s jurisdiction under s 75(v) of the Constitution, which does not extend to matters where only a writ of certiorari is sought. At the hearing, I made an order to allow the applicants to orally amend their application to seek a writ of mandamus. The Minister did not object to this, and I thank the Minister for raising this issue in written submissions.
The application was accompanied by an affidavit affirmed by the first applicant, in which the first applicant relevantly deposed that:
(a)he did not receive the email from the Tribunal advising him that his hearing was scheduled on 12 December 2017 and fears that email may have gone to his junk emails;
(b)he received the letter from the Tribunal dated 13 December 2017 advising him of the dismissal decision and his failure to attend the hearing; and
(c)he did not receive any letter, email or phone call to let him know that he would not get another hearing date, and the Tribunal could easily have contacted him via the home address and telephone number that he provided to the Tribunal.
CONSIDERATION
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief, the applicant must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.” (emphasis added)
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the opportunity of a successful outcome: SZMTA at [45].
Applicants’ submissions at the hearing
The applicants did not individually address the grounds of application in oral submissions at the hearing. Rather, the first applicant simply submitted that he did not see the email from the Tribunal attaching the invitation to attend a hearing, and that is why he did not attend the hearing before the Tribunal. The first applicant also submitted that he did not have the opportunity to give his point of view to the Tribunal.
I take these general submissions into account in addressing the grounds raised in the application.
Ground 1
By ground 1, the applicants assert that they were not properly advised of the hearing date and time and were denied procedural fairness because they were not afforded the opportunity of attending a hearing to explain their circumstances.
The Tribunal was required by s 360 of the Migration Act to invite the applicants to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to give the applicants notice of that invitation to appear in accordance with s 360A of the Migration Act. Section 361 of the Migration Act further requires that the notice under s 360A include certain information about the invitation to give evidence and present arguments. I accept the Minister’s submission that the Tribunal complied with its obligations under ss 360, 360A and 361 of the Migration Act. The reasons for reaching this view are as follows:
(a)As required by s 360, the Tribunal invited the applicants to give evidence and present arguments relating to the issues in their case at a hearing on 12 December 2017. The applicants were given notice of that invitation by correspondence sent by email on 16 November 2017.
(b)Section 360A(1) required that the Tribunal must give the applicants notice of the day on which, and the time and place at which, the applicants were scheduled to appear. The notice sent on 16 November 2017 clearly set out the date, time and place of the scheduled hearing on the first page of the notice.
(c)Section 360A(2)(a) required that the notice must be given to the applicants by one of the methods specified in s 379A of the Migration Act. Section 379A(5) allowed the Tribunal to give the notice to the applicants by transmitting the notice by email to the last email address provided to the Tribunal by the applicants in connection with the review. The notice dated 12 December 2017 was given to the applicants by email sent to the email address nominated by the applicants in their application to the Tribunal.
(d)Section 360A(4), read in conjunction with reg 4.21(4) of the Regulations, required that the period of notice given to the applicants must be at least 14 days from the day on which the applicants received the notice of the invitation to appear. In circumstances where the notice was provided by email, the applicants were taken to have received the notice at the end of the day on which it was transmitted, namely, at the end of 16 November 2017. The applicants in the present case were therefore given 26 days’ notice of the hearing, which exceeds the 14 day period prescribed by reg 4.21(4).
(e)Section 360A(5) required that the notice contain a statement of the effect of s 362B of the Migration Act. Section 362B sets out the options available to the Tribunal in the event that an applicant fails to appear at the scheduled hearing. A statement of the effect of s 362B was set out in the notice itself and in the information sheet that accompanied the notice. The relevant parts of the invitation and notice are extracted above at [6] and [7] of these reasons for judgment.
(f)Section 361 required that, in the notice under s 360A, the Tribunal:
(i)notify the applicants that they are invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and
(ii)give information to the effect that they may, within seven days of the notification, give the Tribunal written notice that the applicants want the Tribunal to obtain oral or written evidence from a person named in the notice or other written material relating to the issues arising in relation to the decision under review.
The notice sent on 16 November 2017 clearly indicated that the applicants were invited to appear before the Tribunal to give evidence and present arguments relating to the issues in that case. The information sheet that accompanied the notice clearly advised the applicants that they may, within seven days after being notified that they were invited to attend a hearing, give the Tribunal written notice that they wanted the Tribunal to take oral or written evidence from a person or persons named in the notice or to obtain other written material.
In circumstances where the notice of the invitation to attend a hearing complied with all relevant statutory requirements, the applicants’ assertion that they were not ‘properly’ notified of the Tribunal’s invitation to attend a hearing cannot be accepted. The first applicant’s assertion that he did not see the email or that it may have gone to his junk folder does not establish jurisdictional error. As the Tribunal sent to the applicants, by a method specified in s 379A of the Migration Act, a notice of invitation which complied with the requirements of s 360A, the applicants are deemed to have received the Tribunal’s notice of invitation to a hearing, irrespective of whether they in fact did not see the notice: see, for example, NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 at [16].
I do not accept the applicants’ assertion that they were not afforded the opportunity of a hearing to explain their circumstances. The reasons set out above show that the Tribunal afforded the applicants an opportunity to attend a hearing, but they did not avail themselves of that opportunity.
Further, the applicants were clearly notified of the dismissal decision and of their option to seek reinstatement within 14 days. It is clear that the applicants in fact received the Tribunal’s correspondence notifying them of the dismissal decision because their application for judicial review was filed during the period within which they might have sought reinstatement. The first applicant indicated at their hearing to the Court that he did not make a reinstatement application because he was misguided by his migration agent. There is no evidence before the Court that the applicants engaged a migration agent at any stage of the Tribunal review, but in any event, mere incorrect advice from a migration agent does not amount to any jurisdictional error on the part of the Tribunal.
Ground 1 is not established.
Ground 2
By ground 2, the applicants assert that they were denied natural justice because no application should be decided without allowing the applicants a proper opportunity to comment on their application.
The Tribunal in this matter acted in a way that was open to it under the Migration Act. In circumstances where the applicants were invited to a hearing in accordance with s 360 and failed to appear at that hearing, the Tribunal’s discretion to dismiss in the application in accordance with s 362B(1A)(b) was enlivened: s 362B(1) of the Migration Act.
I accept the Minister’s submission that the matters to which the Tribunal had regard in making the dismissal decision (set out at [13] above) established a sound basis to support the Tribunal’s exercise of its discretion to make the dismissal decision pursuant to s 362B(1A)(b) of the Migration Act. I also accept the Minister’s submission that it is the intention of the Migration Act that the Tribunal be permitted to consider the exercise of its discretionary powers in s 362B if an applicant fails to appear at a hearing having properly been notified of the hearing in accordance with ss 360 and 360A: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at [7].
Having been invited to attend a hearing, the applicants did not avail themselves of the opportunity to attend that hearing and, having been advised of the dismissal decision and the option to seek reinstatement, the applicants opted not to seek reinstatement of their application. In circumstances where the applicant failed to apply for reinstatement within 14 days of being notified of the dismissal decision, the Tribunal was required to confirm the dismissal decision: s 362B(1E) of the Migration Act. The applicants were not denied natural justice.
Ground 2 does not establish jurisdictional error in the Tribunal decision.
Ground 3
The applicants’ assertion by ground 3 is that the Tribunal applied the law incorrectly because it did not attempt to contact the applicants personally even though they had provided a telephone number and home address.
The Tribunal, having invited the applicants to attend a hearing in accordance with s 360 of the Migration Act and notified them of that invitation in accordance with s 360A, was under no further obligation to take additional steps to ensure that the applicants were aware of the hearing: Minister for Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 at [39].
In any event, even though it was not required to do so, the Tribunal did take additional steps to ensure the applicants were aware of the hearing. The evidence before the Court shows that the Tribunal sent two SMS hearing reminders to the applicants at the mobile phone number provided in their application to the Tribunal. There is nothing in the evidence before the Court to indicate that those SMS reminders were not successfully delivered. Those SMS messages were sent one week and one day before the hearing respectively, and included the text:
Reminder – Your AAT hearing is on 12/12/17. Please check the hearing invitation to confirm details.
The SMS messages also included a telephone number by which the applicants could contact the Tribunal if they had any questions. It is clear from this that the applicants’ ground also fails on a factual level because the Tribunal did in fact contact them using the telephone number they provided.
The applicants’ further assertion in ground 3 that ‘I feel that a direct refusal of my review is very harsh punishment for missing one hearing for which I was not properly notified anyway’ might, on a very generous reading of the ground, be interpreted as an assertion that the Tribunal acted unreasonably in making the dismissal decision.
The power of the Tribunal to make the dismissal decision pursuant to s 362B(1A)(b) of the Migration Act is a discretionary power, and is subject to the presumption that it be exercised reasonably: see, for example, SZVFW at [4], [89], [134].
The applicants have not established that the Tribunal acted unreasonably in dismissing their application. The Tribunal was satisfied that the applicants had been properly notified of the hearing and that they had been sent the SMS hearing reminders. The reasons given by the Tribunal disclose a rational basis for the dismissal decision.
Contrary to the applicants’ assertion, the dismissal decision should not be viewed as ‘harsh punishment’. The dismissal decision is not a punishment, but rather the exercise of a discretionary power available to the Tribunal to progress a review application in circumstances where the applicants, properly notified of the hearing, failed to appear at that hearing.
Ground 3 is not established.
CONCLUSION
I have found that there is no jurisdictional error in the Tribunal decision. It follows that the application to this Court is dismissed.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 10 August 2022
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