Aliya Banu & Mehdi Syed v Minister for Immigration, Citizenship and Multicultural Affairs & Administrative Appeals Tribunal
[2024] FedCFamC2G 602
•8 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Banu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 602
File number: SYG 1944 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 8 July 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal –Student Visa – Non-Appearance Decision – Application dismissed. Legislation: Migration Act 1958 (Cth) ss 360, 362B, 379A, 476 Migration Regulations 1994 (Cth) sch 2 Cases cited: AYT16 v Minister for Immigration and Border Protection [2017] FCA 252
Farley (Aust) Pty Ltd v JR Alexander & Sons (Q) Pty Ltd [1946] HCA 29; 75 CLR 487
FGB17 v Minister for Home Affairs [2019] FCA 725
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submission/s: 2 July 2024 Date of hearing: 2 July 2024 Place: Parramatta ORDERS
SYG 1994 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALIYA BANU
First Applicant
MEHDI SYED
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
8 JULY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicants are to pay the First Respondent’s costs fixed in the amount of $5,400.00.
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 D HUMPHREYS
INTRODUCTION
On 31 July 2019, the first applicant, Aliya Banu, and the second applicant, Mehdi Syed, (“the applicants”) filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”). They seek review of a decision of the Administrative Appeals Tribunal (“the Tribunal”), dated 12 August 2019, confirming its decision made on 25 July 2019 to dismiss the applicants’ review application pursuant to s 362B(1A)(b) of the Act, after they failed to appear at the scheduled Hearing.
BACKGROUND
The first applicant is a female citizen of India who arrived in Australia on a Visitor (Class FA) (Subclass 600) visa. The second applicant is her husband.
On 1 June 2017, the applicants applied for Student visas (Subclass 500) (“the visas”). Forming part of their visa applications they provided the following documents (CB 1 – 34):
·A copy of the first applicant’s academic results from Ambedkar Open University;
·A copy of a loan application from the State Bank of India;
·A copy of the applicants’ marriage certificate;
·A copy of the applicants’ passports; and
·An academic report.
On 11 August 2017, a delegate of the Minister (“the delegate”) refused to grant the visas, as the delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily and did not meet cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). For this reason, the second applicant’s visa application was also refused.
The delegate provided reasons for refusing the visas to the applicants and provided a history of the applicants’ previous visas (CB 70 – 72). A summary of these reasons are as follows:
·The first applicant provided no information that she has ever been employed in India;
·The first applicant stated that she has been a “housewife” since 2000;
·The first applicant does not have an offer of employment at the completion of her course in childcare;
·The first applicant did not provide any evidence to indicate she has attempted to enrol in similar courses or apply for similar jobs in India;
·The applicants have three children, two of which are currently overseas;
·The first applicant was enrolled in courses in Leadership and Management prior to lodging the visa, no explanation was provided to why the courses were discontinued;
·The first applicant applied for the courses in or around the time the applicants’ visas were expiring; and
·The first applicant provided inconsistent information regarding her strong desire to remain in Australia for the purposes of a family reunion rather than to study.
On 19 August 2017, the applicants applied to the Tribunal for review of the delegate’s decision. They provided an email address and phone number. They also provided an email address for their appointed representative.
The Tribunal
On 5 July 2019, the Tribunal invited the applicants to attend a Hearing scheduled for 25 July 2018 (CB 110-123). The applicants’ representative replied to this invitation, and provided a completed “Response to hearing information” form (CB 124 – 127).
On 18 July 2019, the applicants’ representative informed the Tribunal that she had received no further instructions and would not be attending the Tribunal Hearing. The applicants’ representative confirmed that the applicants were aware that they were still required to attend (CB 131 – 132).
Non – Appearance Decision
When the matter was called on for Hearing on 25 July 2019 the applicants failed to appear before the Tribunal. Accordingly, on that day, the Tribunal made a decision to dismiss the application without further consideration under s 362B(1A)(b) of the Act for non-appearance. The Tribunal found that the applicants were invited to a Hearing in accordance with s 360 of the Act, and the invitation informed the applicants of the consequences of non- attendance ([1]). The Tribunal noted that SMS reminders had been sent to the applicants’ personal mobile telephone numbers twice, five and one business day before the scheduled Hearing ([1]).
The Tribunal found that the applicants had not attended the Hearing “on the day and at the scheduled time and place” and having reviewed the Tribunal file was satisfied that:
·The applicants had been properly invited to a hearing in accordance with s 379A(5) of the Act;
·The invitation had not been “returned to sender”;
·Two separate SMS reminders had been sent to the applicants reminding them of the Hearing; and
·No satisfactory reason for their non-appearance had been provided.
Further on 25 July 2019, the applicants’ representatives informed the Tribunal she would not accept service of the non-appearance decision and provided the Tribunal two completed “Change of Contact Details” forms dated 20 July 2019. The Tribunal, by way of letter and email, informed the applicants that on 18 July 2019 and 25 July 2019 that their representative had notified the Tribunal that she no longer represented the applicants.
The applicants and their representatives were notified of the non-appearance decision by letter. The letter informed the applicants they had 14 days (being until 8 August 2019) to apply for reinstatement of the application to review the decision and that if they failed to apply for reinstatement within this period, the Tribunal would confirm the decision to dismiss the application.
Confirmation of the Decision
On 8 August 2019, 14 days after the non-appearance decision, the applicants had not made any application for reinstatement and did not contact the Tribunal after the non-appearance decision was made.
On 12 August 2019, the Tribunal confirmed the non-appearance decision and affirmed the decision under review.
Application for Judicial Review
By an Originating Application made on 31 July 2019 and an Amended Application 21 June 2021, the applicants seek judicial review of the Tribunal’s decision. The Court notes this application was made within the time period and the applicants could have sought a reinstatement of their matter before the Tribunal.
By Orders of this Court dated 22 August 2019, the applicants were required to file any Amended Applications by 14 November 2019. By Orders of this Court dated 6 May 2023, the applicants were required to file and serve any written submissions by 11 June 2024.
The applicants are self-represented and rely on the Amended Application filed on 21 June 2021, which raised eight grounds of judicial review.
GROUNDS FOR JUDICIAL REVIEW
The Amended Application filed on 21 June 2021 has eight grounds of review which are summarised as follows:
(1)The application for a student visa was lodged by “Stampford International”.
(2)The first applicant was a genuine student and passed the “Certificate III and Diploma in Early Childhood” and paid the fees of around $20,000 and a further $5,000 for review.
(3)The first applicant went to the representative, Janice Vu for the appearance at the Tribunal and paid her approximately $4,000 who “left [her] before the hearing”, the applicant then states that she returned to “Stampford International” who charged the applicant $3000.
(4)The applicants allege they were not aware of the Hearing date for the Tribunal and were victims of both of the representative and Stampford International.
(5)The applicants alleged the Tribunal failed to contact them and failed to make a decision in their favour based on the information on the file.
(6)The first applicant alleges that she is a victim at the hands of migration agents.
(7)The first applicant requests the Court to provide her with pro bono legal advice.
(8)The first applicant states she does not understand why the representative stopped acting for her despite being paid. She reasserts that she is a victim and has always been a genuine student.
THE APPLICANT’S SUBMISSIONS
The first applicant appeared before the Court unrepresented on her own behalf and her husband. She was assisted by an interpreter. Prior to the Hearing commencing, the Court ensured that the first applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to her. The Court also ensured the first applicant had access to a pen and paper so she could take notes during the course of the Hearing should she so wished to.
At the commencement of the Hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types. Despite Court Orders, no written submissions or other material was provided to the Court by the applicants in support of their case. The first applicant told the Court after she was taken through the Court book that she was aware of the Hearing date on 25 July 2019. Further, she candidly agreed she received the two text messages reminding her of the Hearing date. She agrees she did not attend. Further, she agreed she received correspondence from the Tribunal indicating it had dismissed her matter and her right to seek a reinstatement.
The applicant told the Court she was the sole breadwinner for her family, which consisted of her husband and three children. She worked in the childcare industry. She stated she just wanted to stay in Australia and continue her studies.
At the conclusion of the respondent’s oral submissions, the first applicant was asked if she wish to state anything in reply. She answered again stated she wanted to stay in Australia and continue her studies.
THE RESPONDENT’S SUBMISSIONS
Grounds one, two and three
The respondent submits that grounds one to three are mere statements relating to the background of the matter and are not proper grounds for review.
Grounds Four to Six
The applicants allege they are victims to migration agents and were not aware of their Hearing date before the Tribunal, who also failed to contact them and make a decision in their favour. The respondent submits that the applicants have not provided any evidence that they were victims of third-party fraud and rely on the reasoning in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 (“SZFDE”) at [15]:
In Lazarus Estates Ltd v Beasley [1956] 1 QB 702, Denning LJ declared:
No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever: see as to deeds, Collins v Blantern; as to judgments, Duchess of Kingston’s case; and as to contracts, Master v Miller.
Earlier, speaking in this Court of a fraudulently obtained trademark registration, Williams J said in Farley (Aust) Pty Ltd v JR Alexander & Sons (Q) Pty Ltd [1946] HCA 29; 75 CLR 487:
Fraud is conduct which vitiates every transaction known to the law. It even vitiates a judgment of the Court. It is an insidious disease, and if clearly proved spreads to and infects the whole transaction (Jonesco v Beard).
The respondent presses that allegations of fraud are a serious matter, and any allegation of fraud would need to be distinctly pleased and proved.
Further, the respondent relies on SZFDE that [53]:
The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.
(emphasis added)
The respondent rejects the applicants’ contention that they were not aware of their Hearing date on 25 July 2019. This is directly contradicted by evidence in the Tribunal file being that:
·On 18 July 2019, the applicants’ representative informed the Tribunal that she did not have any further instructions to act for the applicants and had informed the applicants of the scheduled Hearing date and confirmed they were aware of the scheduled Hearing (CB 131-132); and
·On 18 and 24 July 2019, SMS hearing reminders were sent to the applicants’ mobile telephone number (SCB 1).
The Tribunal had found that the applicants had been invited to the Hearing in accordance with the statutory requirements, as the invitation was sent by email to their authorised representative at the addressed nominated in their review application. While the Tribunal were notified by the representative that she was no longer representing the applicants, the representative assured the Tribunal that the applicants were aware of the date of the Hearing. The respondent relies on the reasoning in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]] per French CJ:
As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
(emphasis added)
The respondent submits that the decision made by the Tribunal was not a decision that was so unreasonable that no reasonable Tribunal could have come to it, or that it was a decision that lacked an “evident and intelligent justification”.
The respondent submits there was no denial of procedural fairness to the applicants. The notification of the Tribunal’s non-appearance decision under s 362B(1A)(b) of the Act was sent to the representative. The applicants’ affidavit filed in these proceedings on 31 July 2019 annexes a copy of the Tribunal’s decision record and the notification letter that was sent to the representative on 25 July 2019. The respondent submits that on the evidence the applicants were made aware of the non-appearance decision, as it was annexed to their affidavit filed on 31 July 2019 and were made aware of the decision within time to seek revocation which they did not do.
The respondent submits that as the applicants were validly notified of the non-appearance decision, when the applicants did not seek reinstatement, the Tribunal was bound by s 362B(1E) of the Act to make the confirmation decision: FGB17 v Minister for Home Affairs [2019] FCA 725 at [12] per Yates J; AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10] per Perram J.
Ground seven
The respondent submits that the applicants seeking pro bono legal advice is not a proper ground of judicial review.
Ground Eight
Ground eight also complains about the applicants’ former representative and asserts that the applicant has “always been a genuine student”. This ground does not allege error by the Tribunal and, at its highest, seeks impermissible merits review. Moreover, this matter was dismissed by the Tribunal under s 362B(1A)(b) of the Act without any further consideration of the application or information before the Tribunal. Accordingly, there was no occasion for the Tribunal to consider whether the applicants satisfied the relevant criteria for the grant of a student visa.
CONSIDERATION
Grounds one, two and three are no more than background statements and are not proper grounds of judicial review. They have no merit.
Ground seven asked the Court to provide the applicants with pro bono legal assistance. The applicants have had over five years to arrange legal representation. The Court is under no duty to arrange for pro bono legal assistance. Further, no evidence has been presented to the Court of the applicants seeking such assistance themselves or seeking legal aid. This ground has no merit.
Ground eight is an assertion that the first applicant has “always been a genuine student”. It does not allege any jurisdictional error and at its highest seeks impermissible merits review. As the applicants did not appear at the Tribunal Hearing, this particular issue was not considered by the Tribunal, nor was it required to be so considered. This ground has no merit.
Grounds four to six are allegations of third-party fraud by their representative. This allegation cannot be sustained. The Court is satisfied that the representative properly informed both the Tribunal and the applicants that they had no instructions and would not be appearing at the Hearing scheduled for 25 July 2019. The applicants admit they were aware of the Tribunal Hearing date as a result of information sent to them from their representative and the fact the applicants were directly sent two SMS reminders of the Hearing date by the Tribunal. They simply did not appear.
In these circumstances, the Tribunal was entitled to proceed in the way it did, by dismissing the application for non-appearance, and then confirming the dismissal following the applicants not seeking a reinstatement. The applicants confirmed they were not aware of the decision to initially dismiss the application. It appears they received erroneous advice to file with the Court an application for review dated 31 July 2019. This was within the time period for the seeking of a reinstatement at the Tribunal. The better course for the applicants would have been to seek a reinstatement before the Tribunal.
As the Court is conducting judicial review, the Court is limited to reviewing the decision of the Tribunal to dismiss the matter for non-appearance. In the factual circumstances of this matter, the Tribunal was justified in so doing. The applicants did not appear and did not seek reinstatement when given the opportunity to do so.
There is not sufficient evidence before the Court to make any adverse finding against the applicant’s agents, let alone an allegation of fraud. Indeed, the evidence points towards the agent acting in a proper manner, by informing the Tribunal that they were not instructed prior to the Hearing. In her letter to the Tribunal (CB 131), the applicants legal representative confirmed she had sent a Form MR6 to “sign and send to your office to confirm [your] instruction”. The legal representative also provided the latest contact details for the applicants.
While the notification of dismissal letter of 25 July 2019 (CB 137) is addressed to the applicants’ legal representative, a copy was sent directly to the applicants at their email address. Attached to this was an MR20 information form (CB 139-140) that set out the option for reinstatement following the initial dismissal of the matter. It cannot be said they were not aware of the Hearing date, the dismissal for non-appearance and the right to seek reinstatement. Instead they choose to lodge a misconceived application for judicial review to this Court.
In these circumstances the Tribunal had no option other than to confirm the dismissal of the application for non-appearance. No jurisdictional error is apparent in respect of the matters pleaded by the applicants.
As the applicants are self-represented, the Court has perused the Court Book as the Tribunal decision. The Court is also satisfied that there is no non-articulated jurisdictional error in the Tribunal decision.
Grounds four to six have no merit. The application must be dismissed.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 8 July 2024
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