Aryal v Minister for Home Affairs
[2019] FCCA 2579
•29 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARYAL & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2579 |
| Catchwords: MIGRATION – Student (Temporary) (class TU) (subclass 500) visa – decision of Administrative Appeals Tribunal – where applicants failed to appear before Tribunal – whether Tribunal erred in not considering it appropriate to re-instate the application – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360A, 362B, 362C, 368, 379A, 476 Migration Regulations 1994 (Cth), reg.4.21, cll.500.215, 500.311 of sch.2 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Singh v Minister for Home Affairs [2019] FCA 723 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 |
| First Applicant: | DEV PRASAD ARYAL |
| Second Applicant: | SAPANA PANTA ARYAL |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 162 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 29 August 2019 |
| Date of Last Submission: | 29 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 29 August 2019 |
REPRESENTATION
| Applicants: | The first applicant appeared in person and on behalf of the second applicant |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 162 of 2019
| DEV PRASAD ARYAL |
First Applicant
| SAPANA PANTA ARYAL |
First Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
Introduction
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 3 April 2019 (the “Confirmation Decision”).
The Confirmation Decision confirmed an earlier decision made on 18 March 2019 to dismiss an application for non-appearance (the “Non-Appearance Decision”) of the applicants hearing that had been scheduled before the Tribunal.
The consequence of the Tribunal’s decisions was that a decision of the first respondent (the “Minister”) not to grant the applicant a Student (Temporary) (class TU) (subclass 500) visa (the “visa”) was left undisturbed.
The application for judicial review is brought pursuant to s.476(1) of the Migration Act 1958 (Cth). To obtain the relief they seek, the applicants must satisfy the Court that the Tribunal has fallen into jurisdictional error.
Before the Court is the applicants’ judicial review application dated 3 May 2019, an affidavit of the first applicant affirmed 2 May 2019, a court book (“CB”) numbering 70 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister dated 21 August 2019.
The second applicant is the spouse of the first applicant and was a member of the “family unit” in the visa application. The first applicant appeared in Court and was legally unrepresented. He spoke on behalf of the second applicant. The Minister was represented by Ms Tattersall.
Background
The Court has reviewed the materials in the Court Book and is satisfied that [3]-[11] of the Ministers outline of written submissions filed 21 August 2019 accurately detail the relevant background to this matter. The Court adopts them as its own. They provide as follows.
The first applicant, a citizen of Nepal, first arrived in Australia on a student visa in February 2013 to study a Diploma of Business (CB 13 and 16). The first applicant then appears to have studied, and completed, a Bachelor of Business in Australia (CB 14 and 24).
On 6 April 2018, the first applicant applied for the visa in order to study a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management (CB 1-27). The second applicant was included on the visa application as the applicant’s spouse (CB 4-6). The first applicant was assisted by a migration agent when completing the relevant application (CB 7).
On 24 May 2018, the delegate refused to grant the visa on the basis that the first applicant did not satisfy cl.500.215 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”), which required that the first applicant provide evidence of adequate arrangements in Australia for health insurance during the period of the first applicant’s intended stay (CB 37-40). The second applicant was subsequently also refused the visa as a member of the first applicant’s family unit under cl.500.311 of the Regulations (CB 39).
On 29 May 2018, the applicants lodged an application for review of the delegate’s decision to the Tribunal (CB 41-42). On 20 February 2019, the Tribunal invited the applicants to attend a telephone hearing scheduled for 18 March 2019, and informed the applicants what to do if they could not attend the hearing (CB 46-49). The invitation further requested that the applicants provide evidence of current enrolment, documents that showed past studies and any work related to past or intended future studies, and evidence of health insurance at least 7 days before the hearing date. The invitation was sent by email to the applicants’ email address listed in the Tribunal application. The applicants did not respond to the invitation.
Six business days (8 March 2019) and one business day (15 March 2019) before the hearing, the Tribunal sent SMS hearing reminders to the applicants at their nominated mobile phone number reminding them that the Tribunal hearing was being held on 18 March 2019 (CB 50).
At the hearing on 18 March 2019, the Tribunal made three unsuccessful attempts to contact the applicants (at 12:19pm, 12:26pm, and 1:58pm respectively). The applicants were declared as a “no show” at 2pm (CB 51-53).
On the same day, the Tribunal dismissed the application for non-appearance under s.362B(1A)(b) of the Act (CB 57).
On 19 March 2019, the Tribunal informed the applicants that they had until 2 April 2019 to apply for reinstatement (CB 54-56). The Tribunal specified that any reinstatement application should set out why the applicants failed to appear at the hearing and provide any other information the applicants wanted the Tribunal to take into consideration when deciding whether the reinstatement application should be granted. It noted that on receiving an application for reinstatement, the Tribunal may reinstate the application if it considered it appropriate to do so (CB 58-59).
On 28 March 2019, the applicants’ newly appointed representative emailed the Tribunal and requested that the application be reinstated (CB 64). The email explained that while the applicants were invited to attend the Tribunal hearing via telephone, the applicants were unable to answer the telephone on the day of the hearing due to “technical difficulties.”
On 3 April 2019, the Tribunal made the Confirmation Decision (CB 69-70).
Tribunal’s decisions
As noted the Tribunal made two “decisions”.
The Non-Appearance Decision was made on 18 March 2019. In full, that decision provides:
1. The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 18 March 2019 at 12:30pm. 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 in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. On the day of the hearing before and after the scheduled time of the hearing the Tribunal Hearing Attendant attempted to contact the review applicant on three occasions via the telephone number supplied by the review applicant. The review applicant did not answer the phone on the first attempt at 12:19pm, the second attempt at 12:26pm and the third attempt at 13:58pm. After the third attempt at 13:58pm the Tribunal Member dismissed 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.
On 3 April 2019, the Tribunal confirmed the Non-Appearance Decision (the “Confirmation Decision”).
The Confirmation Decision provides:
1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 24 May 2018 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).
2. On 18 March 2019 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The review applicants were notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicants were advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4. The review applicants applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.
5. The Tribunal received an email from the review applicant's agent on 28 March 2019 seeking reinstatement of the hearing. The email stated that the applicant "We were instructed that the applicant was invited to a hearing via telephone; however, on the day of his hearing he was able to answer his telephone due to technical difficulties". The Tribunal does not accept the review applicant's reason as to why the phone calls were not answered due to technical difficulties. The applicant made no attempt to contact the Tribunal on the day of the hearing with an alternative number.
6. On the day of the hearing before and after the scheduled time of the hearing the Tribunal Hearing Attendant attempted to contact the review applicant on three occasions via the telephone number supplied, [number omitted], by the review applicant. The review applicant did not answer the phone on the first attempt at 12:19pm (VIC time), the second attempt at 12:26pm (VIC time) and the third attempt at 13:58pm (VIC time). After the third attempt at 13:58pm (VIC time) the Tribunal Member dismissed the hearing.
7. The decision to dismiss the application is confirmed. In these circumstances, the decisions under review are taken to be affirmed.
DECISION
8. The Tribunal confirms the decision to dismiss the application.
Proceedings in this Court
The application filed in this Court seeks review of a decision of the Tribunal dated 5 April 2019. There is no evidence that the applicants were the subject of any decision dated 5 April 2019. The Court has proceeded on the basis the applicants seek review of the Tribunal’s decision dated 3 April 2019.
The judicial review application contains six grounds of review:
1. The AAT did not treat me fairly.
2. I was not able to give evidence to the AAT because I was having trouble with my mobile phone on the day of the hearing.
3. The AAT did not tell me any more and just cancel my hearing.
4. The AAT also said in a letter that I can get another hearing.
5. So I got my lawyer to tell the AAT that my telephone was having trouble.
6. But even after that the AAT did not give me hearing which is not treating me fairly.
To some extent, the first applicant’s affidavit repeats the grounds in the application. In full, it provides:
1. The AAT was wrong and made an error because they did not treat me fairly.
2. I could not give evidence to the AAT because on the day of my hearing I was having trouble with my mobile phone.
3. The AAT did not give any more chance and just cancel my hearing.
4. In the letter that said my hearing was cancelled, the AAT said I can get another hearing if I write to them and explain.
5. I got my lawyer to write to the AAT and explain that my telephone was having trouble on the day of the hearing.
6. But the AAT did not care about my explanation and refused to give me a hearing.
7. What the AAT did was unfair and I could not have a chance to have a hearing for my visa application.
The applicants were provided an opportunity to file a further amended application, any affidavits and an outline of submissions. Nothing further was provided. As already indicated, the Minister filed written submissions.
As is now the standard practice in this Court where applicants are unrepresented, the applicants were given an opportunity to explain their grounds of review and outline what they think the Tribunal “did wrong”: Bala v Minister for Immigration & Border Protection [2019] FCA 600.
To assist the first applicant, the Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visa they now seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Relevantly, the first applicant told the Court that he had not been given a “fair go” and highlighted the technical difficulties he had had with his phone. These submissions will be considered further below.
Otherwise, what the first applicant asked the Court to do was review the merits of the Tribunal’s decision. As indicated, the Court cannot do that. The Court will, however, review the grounds of review in the application and notes the oral submissions made in relation to the “technical difficulties” the applicants had with their phone.
Consideration
The applicant’s grounds of review (and the matters in the first applicant’s affidavit) all pertain to the fairness of the Tribunal acting as it did. That is, they relate to the fairness of the Tribunal dismissing the application for non-appearance and confirming that decision despite the explanation the applicants had provided for their non-appearance.
Non-Appearance Decision
In order to enliven the power in s.362B(1A) of the Act, the preconditions of s.362B(1) must be met. Section 362B(1) provides as follows:
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(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.
Here, the invitation to the hearing:
a)clearly indicated the day and time of the hearing on the first page of the document, and indicated the hearing would take place by telephone and the place where the Tribunal member was located was in Melbourne: the Act, s.360A(1);
b)invited the applicants to appear by telephone, but made it clear that the applicants could attend in person if they wished and specified the place (Melbourne) where the hearing would occur: the Act, s.360A(1); Korovata v Minister for Immigration [2001] FCA 1466 at [24]-[25];
c)was sent via email (a method approved by s.379A(5)) to the applicants’ nominated email account on 8 January 2018: the Act, s.360A(2)(a);
d)was provide to the applicants more than 14 days prior to the hearing date and thus in excess of the minimum notice period prescribed by reg.4.21(4) of the Regulations: the Act, s.360A(4); and
e)contained a statement describing of the effect of s.362B and what would happen if the applicant did not attend the hearing: the Act, s.360A(5).
Section 362B(1)(a) was satisfied in this case.
It is not in contention that the applicants did not appear on the day and time they were scheduled to appear. Section 362B(1)(b) of the Act was thus satisfied.
Turning to whether it was “reasonable” for the Tribunal to dismiss the application for non-appearance, it is noted that:
a)the applicants did not provide a response to the hearing invitation;
b)the applicants were sent SMS text messages reminding them that the hearing was on the day and at the time indicated in the invitation; and
c)the Tribunal attempted to contact the applicant on three occasions between 12:15pm and 2pm to no avail.
There is nothing in this case to suggest that it was remarkable for the applicant to have not appeared (particularly given no response to the hearing invitation had been provided): Minister for Immigration & Border Protection v SZVFW [2018] HCA 30. Noting that the Tribunal made multiple attempts to contact the applicants (and noting further that it waited nearly 90 minutes to dismiss the application) it was reasonable for the Tribunal to dismiss the application pursuant to s.362B: AZAFB v Minister for Immigration & Border Protection (2015) 244 FCR 144 at [26].
The Tribunal adhered to the procedural obligations required by the relevant statute. Its powers were enlivened and reasonably exercised without error.
The procedural obligations the Tribunal was required to observe after the Non-Appearance Decision was made are provided in s.362C.
Here, the Non-Appearance Decision:
a)set out that the decision was to dismiss the application pursuant to s.362B(1A)(b) and that the reasons for that decision was because the applicant had failed to appear at the Tribunal hearing: the Act, s.362C(2)(a)-(b);
b)clearly indicated the day and time of the Non-Appearance decision as 18 March 2019 at 2.20pm: the Act, s.362C(2)(d);
c)was given to the applicant by email (a method prescribed in s.379A(5)) on the same day that the Non-Appearance decision was made: the Act, s.362C(5); and
d)included an information leaflet which described the effect of sub-ss.362B(1B)-(1F) of the Act: the Act, s.362C(6).
The Tribunal likewise adhered to the procedural obligations in relation to notifying the applicants of the Non-Appearance Decision.
No error arises from the Non-Appearance Decision.
Confirmation Decision
In relation to the Confirmation Decision, the Tribunal was required (by s362B(1C)(b)) to provide a written statement in accordance with s.368 of the Act. Here, the Tribunal:
a)set out that the decision was to confirm the decision to dismiss the application and that the reason for that decision was because it did not consider it appropriate to re-instate the decision: the Act, s.368(1)(a)-(b);
b)referred to the evidence (or more correctly the explanation) as to why the applicants did not answer the telephone and found it did not accept the applicants’ reason for the non-appearance. Namely, that the phone calls were not answered due to technical difficulties: the Act, s.368(1)(c)-(d); and
c)clearly indicated the day and time of the Confirmation Decision was made being 3 April 2019 at 2.02am: the Act, s.368(1)(f).
The Court does observe that the Confirmation Decision did not, as required by s.368(1)(e) of the Act “indicate[s] that under subsection 362B(1F), the decision under review is taken to be affirmed”. There was no express reference to s.362B(1F) of the Act in the Confirmation Decision, although the decision did state at [7] that “the decisions under review are taken to be affirmed”.
A breach of s.368(1) is not, without more, proof of jurisdictional error: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [70] per McHugh J. In the Court’s view, the fact that the Tribunal has not expressly referred to s.362B(1F) is of no bearing to the outcome of the Confirmation Decision and does not amount to jurisdictional error.
What remains is a determination as to whether the Tribunal erred in confirming the Non-Appearance Decision.
Here, the applicants did apply for re-instatement within the 14 day period allowed by s.362B(1B). On 28 March 2019, the applicant’s representative stated as follows:
We are instructed to request the reinstatement of this Application.
We are instructed that Mr. Aryal was invited to a hearing via telephone; however, on the day of his hearing he was able to answer his telephone due to technical difficulties.
Section 362B(1C) of the Act states:
On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a)if it considers it appropriate to do so--reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or
There are no matter prescribed by the Act for the Tribunal to consider when determining whether to re-instate the application. Rather, it is for the Tribunal to determine if it considers it appropriate to do so. The reasons for the Tribunal not considering it appropriate to re-instate the application is as follows:
5. The Tribunal received an email from the review applicant’s agent on 28 March 2019 seeking reinstatement of the hearing. The email stated that the applicant “We were instructed that the applicant was invited to a hearing via telephone; however, on the day of his hearing he was able to answer his telephone due to technical difficulties”. The Tribunal does not accept the review applicant’s reason as to why the phone calls were not answered due to technical difficulties. The applicant made no attempt to contact the Tribunal on the day of the hearing with an alternative number.
6. On the day of the hearing before and after the scheduled time of the hearing the Tribunal Hearing Attendant attempted to contact the review applicant on three occasions via the telephone number supplied, 0405 759 777, by the review applicant. The review applicant did not answer the phone on the first attempt at 12:19pm (VIC time), the second attempt at 12:26pm (VIC time) and the third attempt at 13:58pm (VIC time). After the third attempt at 13:58pm (VIC time) the Tribunal Member dismissed the hearing.
Without prescribed considerations for the Tribunal to take into account in determining if it “appropriate” to re-instate the application, it is for the Court to determine if the Tribunal’s reasons have an evident and intelligible justification.
The Minister referred the Court to Singh v Minister for Home Affairs [2018] FCA 1927 (“Singh”). In Singh, the applicant had provided a medical certificate in support of an application for re-instatement. The Tribunal expressed some concerns with the medical certificate and ultimately concluded that the evidence provided was insufficient. At [22], Justice Perry stated:
Grounds one, three and five do not identify any appealable error in the FCC’s decision; nor has any error been identified in oral submissions. In this regard, it is apparent from the reasons of the Tribunal that it properly considered the appellant’s explanation for his failure to attend the scheduled hearing, including the medical evidence on which the appellant relied. However the Tribunal did not accept that explanation is sufficient. In reaching that conclusion, the Tribunal identified a number of deficiencies with the medical certificate which were apparent on its face. Furthermore, in taking into account that the appellant could have, but did not, make any attempt to contact the Tribunal, I note that the letter of invitation had included both email and telephone contact details for the Tribunal. No other information has been provided which the Tribunal could be said to have overlooked. It follows, as the Minister submits, that the Tribunal’s decision to affirm the decision to dismiss the appellant’s application for review for non-attendance “clearly fell within a range of possible, acceptable outcomes which were defensible in respect of the facts and law”.
While the reasons of the Tribunal in Singh were perhaps more detailed, the Court is satisfied that the matters highlighted by Perry J as relevant to matters of this sort are relevant to the hearing before this Court today.
Further, in Singh v Minister for Home Affairs [2019] FCA 723, Justice Flick noted as follows at [24]:
…But common to the present proceeding is the proposition that it was open to the Tribunal to proceed to resolve Mr Singh’s application for reinstatement by reference to the documents he had placed before it, whatever the deficiencies in those documents may be. The certificate was, with respect, “bland” in its assessment as to the fitness of Mr Singh to attend the hearing. It was open to the Tribunal when considering the reinstatement application to form the view that the medical certificate was “inadequate to explain the applicant’s non-appearance”.
Here the Court is of the view that the explanation provided for the non- appearance is, arguably, “bland”. There was no detail provided as to what the “technical difficulties” were. On that basis it was open to the Tribunal to conclude that it did not accept the explanation.
The Tribunal also referred to the fact that the applicants made no attempt to contact the Tribunal on another number on the day and that the Tribunal had attempted to contact the applicants on the number provided on three different occasions. Were the applicants genuinely engaged with their application for review, it is not unreasonable for the Tribunal to consider the applicants would have attempted to contact the Tribunal to make an alternative arrangement or request an adjournment. They did not do so.
In hearings before this Court, the first applicant admitted that he had not made any attempts to contact the Tribunal. He simply told the Court that he had had “a brain fade”. While the Court is sympathetic to the concerns the applicant raises, unfortunately, that sort of explanation does not assist the Court in relation to jurisdictional error and issues of unreasonableness in relation to the Tribunal’s findings and determinations.
In all of the circumstances, the Court is satisfied that it was within the area of decisional freedom for the Tribunal to have concluded that it was not appropriate to re-instate the application.
No error arises from the Confirmation Decision.
Grounds of review
In respect of the applicants’ grounds of review, the Court makes the following further observations:
a)the Tribunal afforded the applicant the fairness it was obliged to provide under the Act (grounds 1 and 6);
b)the Tribunal did “care” about the applicants explanation and did take it into consideration; however, it was not satisfied this was acceptable (grounds 2 and 5);
c)the Tribunal did not just “cancel” the applicants hearing. The Tribunal waited almost 90 minutes after the commencement of the hearing and tried to contact the applicants on three occasions before making the Non-Appearance Decision (ground 3); and
d)the Tribunal did not say in a “letter” that the applicants could have another hearing. Rather, the Tribunal indicated that the applicants must apply for re-instatement and if the Tribunal did re-instate the application the Tribunal would “conduct (or continue to conduct) the review accordingly.” (CB 58) (ground 4).
No error arises in relation to the grounds of review.
Conclusion
There is no error in the Tribunal’s decisions. The application is, accordingly, dismissed.
I certify that the preceding sixty (61) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 13 September 2019
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