Aneja v Minister for Immigration
[2014] FCCA 413
•7 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANEJA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 413 |
| Catchwords: MIGRATION – Failure to appear before the Tribunal – invitation to appear ‘returned to sender’. |
| Legislation: Migration Act 1958 (Cth), ss.359, 359C, 360, 360A, 362B, 379A, 379C, 379G(2), 476 |
| Haque v Minister for Immigration and Citizenship [2010] FCA 346 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 MIMIA v SZFHC (2006) 150 FCR 439 SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63 Minister for Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 |
| Applicant: | VIKRAM ANEJA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 535 of 2013 |
| Judgment of: | Judge Demack |
| Hearing date: | 15 October 2013 |
| Date of Last Submission: | 15 October 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 7 March 2014 |
REPRESENTATION
| The Applicant appeared on his own behalf. |
| Solicitors for the Applicant: | Clayton Utz |
ORDERS
The name of the first respondent be amended to the Minister for Immigration and Border Protection.
The application be dismissed.
The applicant pay the costs of the first respondent fixed at six thousand, six hundred and forty-six dollars ($6,646.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 535 of 2013
| VIKRAM ANEJA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his application filed on 2 July 2013 Mr Vikram Aneja seeks, under s.476 of the Migration Act 1958 (Cth) (“the Act”), to review a decision made by the Migration Review Tribunal (“the Tribunal”) on 4 June 2013 to affirm a decision of a delegate of the first respondent not to grant him a Student (Temporary) (Class TU) visa.
Mr Aneja did not appear before the Tribunal. He was unaware of the hearing date as the invitation, addressed to himself at a Gatton address, had been returned to the sender as unclaimed.
By way of relief Mr Aneja seeks an order that the respondent pay his costs and that “an order of probation to restrain the Respondent from giving any further effects to the purported decision” be made.
He seeks such relief on the ground that the Tribunal failed to exercise its jurisdiction and in particular that:
“The Tribunal decision was fundamentally influenced by not receiving evidence from the hearing. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.”
Mr Aneja appeared on his own behalf before the Court. An interpreter was provided and used. Mr Aneja did not file a written outline of submissions or any further affidavits as provided by Judge Jarrett’s orders of 5 August 2013. Mr Aneja did not make any oral submissions of substance but repeated that he wanted to stay in Australia and would like to study here to “have a good future”. He stated that he was “quite confused”, which I took to refer to both the visa refusal and his role in the appeal process/litigation continuum.
On behalf of the Minister it is contended that there was no jurisdictional error in the Tribunal’s decision as the fact that Mr Aneja was unaware of the hearing due to the invitation to attend being “returned to sender” is of no legal relevance.
Background
Mr Aneja is an Indian national. He was granted a student visa on 4 March 2009. In late March 2011 he submitted an application for a further class TU-572 student visa. By email dated 31 March 2011 he was advised by the Department of Immigration and Citizenship that his application had been received and that he had been granted a bridging visa so that he could lawfully remain in Australia while his application was being processed.
Ultimately Mr Aneja was notified that his application had been refused on 19 July 2011.
On 9 August 2011 the Tribunal received Mr Aneja’s application for review. This application included a section, which had been completed, stating the address that all correspondence in connection to the review was to be forwarded.
The Tribunal sent correspondence to Mr Aneja, at the address elected by him in his application for review, via registered post on 24 April 2013. The letter of 24 April 2013 included an invitation to appear before the tribunal at the hearing of the matter and to provide further evidence on or before the hearing date.
Mr Aneja never received the letter, it was returned to the Tribunal marked “return to sender”.
The hearing before the Tribunal took place as scheduled on 3 June 2013. The issue before the Tribunal was whether Mr Aneja was enrolled in, or the subject of a current offer for enrolment in, any course of study, that met the requirements of the Regulations. Mr Aneja did not attend the hearing and did not provide the further evidence requested. In the circumstances the Tribunal found that they could not be satisfied that Mr Aneja had fulfilled the requirements of the visa and affirmed the decision of the delegate of the first respondent.
Legislative framework
The Act requires the Tribunal to invite the applicant to appear at the hearing before it and prescribes what must be included in such invitation:
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C (1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
360A Notice of invitation to appear
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(5) The notice must contain a statement of the effect of section 362B.
Any documents given to a person by the Tribunal must be given in a way prescribed by s.379A:
379A Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
(1A) If a person is a minor, the Tribunal may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):
(a) who is at least 18 years of age; and
(b) who a member, the Registrar, a Deputy Registrar or another officer of the Tribunal reasonably believes:
(i) has day‑to‑day care and responsibility for the minor; or
(ii) works in or for organisation that has day‑to‑day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 379C in respect of that method.
(1B) However, subsection (1A) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:
(a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.
Transmission by fax, e‑mail or other electronic means
(5) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to:
(d) the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e) if the recipient is a minor—the last fax number, e‑mail address or other electronic address, as the case may be, for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.
Documents given to a carer
(6) If the Tribunal gives a document to a carer of a minor, the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.
Section 379C(4) relevantly provides that:
Dispatch by prepaid post or by other prepaid means
(4) If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.
Non-appearance of an applicant before the Tribunal is dealt with pursuant to s.362B.
Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 360 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
The Tribunal’s invitation for Mr Aneja to provide further evidence to it is made pursuant to s.359:
359 Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
The Tribunal may proceed to make a decision without further action, if no information is provided pursuant to the invitation, s.359C relevantly provides:
359C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
Ground 1: failure to exercise jurisdiction
The Particulars of the Grounds of the Application are thus:
The Tribunal decision was fundamentally influenced by not receiving evidence from the hearing. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
No issue has been taken with the details contained in the invitation, and I am satisfied that there were no material deficits in the invitation that was sent.
The Tribunal complied with the legislative requirements when it posted the invitation to the address that the applicant had provided. It is a matter for the Tribunal to choose the method by which the hearing invitation is sent to the applicant (per Gilmour J in Haque v Minister for Immigration and Citizenship [2010] FCA 346, [64]). Once the Tribunal had taken the steps to send the document to the address provided by the applicant, the Act provides that it is then taken that the documents have been given to the applicant (section 379G (2)).
The invitation was ‘returned to sender’ and the Tribunal was then on notice that the applicant was not aware of the date of the hearing and not aware of the invitation to provide further material. Was the Tribunal obliged to do more? Did the Tribunal have jurisdiction? Should some remedy follow?
In NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045, Greenwood J stated, citing, in particular Spender, French and Cowdroy JJ in MIMIA v SZFHC (2006) 150 FCR 439:
“21 Although I accept that the power conferred upon the Tribunal cannot be exercised capriciously and must be exercised reasonably, the election to make a decision on the review is not, by itself, the expression of an unreasonable exercise of the power. It is expressly contemplated by the section. If the evidence demonstrates in a particular case that the exercise of the power to make a decision on the review was capricious or wholly failed to take account of any matter put before it as to the reason for the failure on the part of the appellant to attend before the Tribunal, a question of procedural fairness might arise. This is not such a case. There seems to me to be no obligation falling upon the Tribunal to make any inquiry as to the failure on the part of the appellant to appear. In MIMIA v SZFHC, the applicant for a protection visa said that the Tribunal was on notice that he may not have received the invitation letter to attend before the Tribunal for the purposes of ss 425 and 425A because the “Response to Hearing Invitation” form was not returned to the Tribunal because the letter addressed to the applicant’s residential address was returned unclaimed and, in those circumstances, he did not appear at the hearing. Applicant SZFHC contended that in those circumstances an obligation fell upon the Tribunal to “find another method of contacting the respondent” [38]. Their Honours Spender, French and Cowdroy JJ at [39] said:
… it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in section 425A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.
In MIMIA v SZFHC the applicant failed to appear before the Refugee Review Tribunal. The Learned Federal Magistrate took the view that a thorough check of the file by the Tribunal would have revealed a postal address and that the consequences of the Tribunal exercising its power under s.426A of the Migration Act were so serious that the Tribunal was obliged not only to comply with the legislation but to comply with its own procedures designed to enable it to comply with the legislation.
The Full Court of the Federal Court determined that his Honour was wrong. At paragraph 33 they say:
“The question to be determined by the Court is whether compliance with s 425A of the Migration Act exhausts the obligation of the Tribunal to invite an applicant under s 425, or whether additional steps must be taken by the Tribunal to comply with its obligation under s 425. It is of course clear that the internal management mechanisms within the Tribunal, such as the checklist in the present case, cannot alter the extent and content of the duty imposed by the statute.”
The Full Court later formed the view as outlined above in [39] of their judgment.
The directives in the relevant section with respect to the Migration Review Tribunal and the way in which they interact with the statutory provisions are an exhaustive statement with respect to natural justice and procedural fairness: SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63, per Buchanan J at [58].
The High Court decision of Minister for Immigration and Citizenship v Li [2013] HCA 18, (a decision of 8 May 2013 by French CJ, Hayne, Kiefel, Bell and Gageler JJ) is authority for the proposition that the requirement to act reasonably can require more than what was done in that particular case. At paragraph 61, the majority stated
“Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal’s knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standards set by s 374A (3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.”
Gageler J stated at paragraph 100:
“However, the requirement of the MRT to act reasonably is not exhausted in every case where an applicant before the MRT is given a reasonable opportunity to give evidence, provide information and present arguments in relation to the decision under review. Reasonableness can require more. Thus, while it has been held that the MRT has no general duty to make inquiries, it has been accepted that “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.” The touchstone is reasonableness in the performance of the duty to review.”
His Honour cites Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1128 as authority for the proposition in the last sentence of that quote.
With respect to the facts in the case of Li, at paragraph 31 of the decision of the Chief Justice, his Honour states:
“The decision of the MRT to proceed to proceed to its determination was not, on the face of it, informed by any consideration other than the asserted sufficiency of the opportunities provided to the first respondent to put her case. The MRT did not in terms or by implication accept or reject the substance of the reasons for a deferment put to it by the first respondent’s migration agent. It did not suggest that the first respondent’s request for a deferment was due to any fault on her part or on the part of her migration agent. It did not suggest that its decision was based on any balancing of the legislative objectives set out in s 353. Its decision was fatal to the first respondent’s application. There was in the circumstances, including the already long history of the matter, arbitrariness about the decision, which rendered it unreasonable in the limiting sense explained above.”
At paragraph 113, Gageler J warns against Li’s case being used improperly:
“Yet the stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. This is a rare case.”
It seems to me that the Tribunal made the required attempt to invite Mr Aneja to appear before the Tribunal, and to provide the Tribunal with further evidence. The Tribunal having then determined the matter on the documents which were before it made the decision to properly open to the Tribunal. Therefore, I do not consider that Li’s case assists me to form a view to the contrary.
As the Tribunal complied with its obligations under the provisions, I cannot find that there has been a denial of procedural fairness (per SZF0H and Minister for Immigration and Citizenship per Buchanan J). The Tribunal had the jurisdiction to make the decision open to it on the evidence before it.
Conclusion
On the evidence before me it must be accepted that the Tribunal properly complied with the requirements for inviting the applicant to appear and that such invitation included the relevant notices under s.360A. The natural justice and procedural fairness required to be afforded to the applicant was afforded to the applicant.
For the reasons set out above, the Applicant has not established that the Tribunal’s failed to exercise its jurisdiction.
The application filed 2 July 2013 must be dismissed with costs. The costs should be at scale for migration proceedings that have been concluded being $6,646.00 and I fix the order at that amount.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Demack
Date: 7 March 2014
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