Dharmender v Minister for Immigration
[2019] FCCA 3281
•14 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHARMENDER v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3281 |
| Catchwords: MIGRATION – Student (Temporary)(Class TU) Student (subclass 500) visa – decisions of the Administrative Appeals Tribunal – where applicant failed to appear at Tribunal hearing – where applicant failed to apply for reinstatement with Tribunal – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C Migration Act 1958 (Cth), ss.360, 360A, 362B, 362C, 379A, 379G, 476 |
| Cases cited: EII17 v Minister for Immigration & Border Protection [2018] FCA 1863 Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 |
| Applicant: | DHARMENDER DHARMENDER |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 219 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 13 November 2019 |
| Date of Last Submission: | 13 November 2019 |
| Delivered at: | Perth |
| Orders Pronounced: | 13 November 2019 |
| Delivered on: | 14 November 2019 |
REPRESENTATION
| Applicant: | No appearance by or for the applicant |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The matter proceed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
The application be dismissed.
Written reasons for judgment be published from Chambers at a later date.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 219 of 2019
| DHARMENDER DHARMENDER |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 13 November 2019, the Court made orders as follows:
1. The matter proceed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
2. The application be dismissed.
3. Written reasons for judgment be published from Chambers at a later date.
4. The applicant pay the first respondent’s costs fixed in the sum of $5,000.
These reasons are those referred to in order 3 above. They outline why the Court dismissed the application.
Background
By application filed 19 June 2019 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 22 May 2019.
The Tribunal confirmed an earlier decision it had made on 7 May 2019 to dismiss the applicant’s review application for non-appearance. The effect of these decisions was that a decision of a delegate of the first respondent (the “Minister”) to refuse to grant the applicant a Student (Temporary)(Class TU) Student (subclass 500) visa (the “visa”) was undisturbed.
These proceedings are brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant bears the onus of establishing that the Tribunal made a material error in arriving at its decision.
The materials before the Court included the application for judicial review filed by the applicant on 19 June 2019, a Court Book (“CB”) numbering 90 pages and an outline of written submissions filed by the Minister on 22 October 2019.
The factual background to this matter is accurately detailed at [3]-[8] of the Minister’s submissions. The Court adopts this summary as its own. It provides as follows.
The applicant, a citizen of India, first arrived in Australia on 13 May 2008 and has held various student and bridging visas over the years that followed (CB 36).
On 5 July 2017, the applicant applied for the visa (CB 1-26). The applicant was represented by a migration agent (CB 5).
On 15 August 2017, the Ministerial delegate refused to grant to the visa (CB 34-40).
On 1 September 2017, the applicant lodged an application in the Tribunal for review of the delegate’s decision (CB 41-42). The applicant continued to be represented by a migration agent (CB 42).
On 13 March 2019, the Tribunal invited the applicant to provide information in support of his application (CB 47-48). The applicant responded on 26 March 2019 (CB 49-61).
On 3 April 2019, the Tribunal invited the applicant to attend a hearing and told him what to do if he could not attend the hearing (CB 61-66). The invitation was sent by email to the applicant’s representative (CB 42 and 62-63). The applicant confirmed that he would attend the hearing, but his migration agent indicated she would not (CB 67- 69). Despite having said that he would attend, the applicant failed to attend (CB 70).
On 7 May 2019, the Tribunal dismissed the application for non-appearance (the “Non-Appearance Decision”).
A letter accompanying the Non-Appearance Decision informed the applicant that he had 14 calendar days from the date of the letter (21 May 2019) to apply for reinstatement (CB 75 and 77). The applicant did not apply for reinstatement before the deadline expired and the Non-Appearance Decision was confirmed on 22 May 2019 (the “Confirmation Decision”).
Tribunal’s decisions
On 7 May 2019, the applicant failed to attend a hearing before the Tribunal and the Tribunal dismissed the application pursuant to s.362B(1A)(b) of the Act. The Tribunal produced a written statement of the Non-Appearance Decision. That decision provides as follows:
1. The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 7 May 2019 at 9:30 am. 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, to the mobile phone number provided to the Tribunal by the applicant, five business days and one business day before the scheduled hearing. The Tribunal acknowledges that the SMS reminders failed.
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 the Tribunal attempted to send two separate SMS reminders to the review applicant about the hearing at the mobile phone number provided by the applicant. The Tribunal tried ringing the review applicant on the same mobile phone number provided on three occasions at or around 10:28 am. The automated message received by the Tribunal was the calls could not be connected.
3. No satisfactory reason for the non-appearance has been given.
4. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
On 22 May 2019, the Tribunal confirmed the Non-Appearance Decision. The Confirmation Decision is as follows:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 August 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).
2. On 7 May 2019 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The review applicant was 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 applicant was 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. As the review applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
Proceedings in the Court
The application for judicial review contains two grounds as follows:
1. A valid application for a Student visa has been made by the applicant.
2. His initial GTE statement remarked that he had studied Building and Construction nor did it detail why he sought to undertake so many studies in International Trade, Business, Marketing, Management and Human Resources and has not provided any further supporting documentation in relation to this application.
On 24 July 2019, orders were made by consent allowing the applicant to file an amended application, any affidavits and a written outline of submissions. Those orders also indicated that the application was listed for final hearing on 13 November 2019 at 2.00pm.
No further materials were provided by the applicant and no correspondence with the Court has otherwise been received.
When the matter was called on for hearing on 13 November 2019, the applicant did not appear. The matter was called three time outside the Court and no appearance by or for the applicant was made.
While the Court has a discretion under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (2001) (the “Rules”) to dismiss an application for non-attendance, the Court also has a discretion under r.13.03C(1)(e) of the Rules to proceed with the hearing generally in relation to the claim for relief and notwithstanding the absence of a party.
In the circumstances of this case, the Court considered it appropriate to proceed under r.13.03C(1)(e) as:
a)the applicant consented to the day and time of hearing in this Court;
b)the applicant was aware of the day and time of the hearing, not only as he had expressly consented to the day and time but also as the Minister had provided him a copy of the written submissions by email and post which specifically indicated the day and time of the hearing (such correspondence marked as Exhibit 1);
c)Exhibit 1 indicated that in the event that the applicant did not attend, the Minister may seek orders that the application be dismissed and costs ordered; and
d)the applicant had failed to comply with the orders dated 24 July 2019 and had not engaged with the proceedings in any way to indicate that his non-attendance was out of character or amiss.
For these reasons, the Court proceeded to hear the matter in the absence of the applicant.
The Court, in fairness to the applicant and in light of the remarks of the Federal Court in MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 139, and more recently in EII17 v Minister for Immigration & Border Protection [2018] FCA 1863 at [16], remained astute to the possibility of any jurisdictional error in the Tribunal’s decision.
Consideration
Grounds of review
The grounds of review are misguided.
Ground 1 asserts that the visa application was valid. This is not in dispute. The delegate assessed the visa application. Hence, it was a valid application.
Ground 1 fails
Ground 2 is somewhat vague and appears entirely unrelated to this matter. It is noted that the same ground has appeared in other matters before the Court. However, the Court must consider how the ground applies to the particular circumstances of this case.
There is nothing on the face of the materials before the Court to suggest that the applicant studied any course related to building and construction, International Trade, or Human Resources. The applicant did, however, study Management and Business.
That said, none of these matters were relevant to the Tribunal’s decisions. The courses the applicant studied or the contents of the “GTE statement” are irrelevant in circumstances where the application was dismissed for non-appearance.
The grounds of the judicial review application are, accordingly, dismissed.
Otherwise
The Court has reviewed both the Non-Appearance Decision and the Confirmation Decision for error.
In circumstances where the Tribunal has exercised the power in s.363B(1A)(b), the Court has considered if the Tribunal has complied with the natural justice obligations pursuant to pt.5, div.5 of the Act and whether the exercise of the power was reasonable in all of the circumstances.
Here, the Court is satisfied that the Tribunal has accorded with the procedural fairness obligations required by the Act. Specifically:
a)the Tribunal invited the applicant to attend a hearing as required by s.360 (CB 64);
b)the invitation from the Tribunal complied with the requirements of s.360A of the Act noting the invitation was sent by email to the applicant’s representative in accordance with ss.379A(5) and 379G (CB 64-67);
c)the Tribunal made a written statement in accordance with the requirements of s.362C(2). That statement contained a statement describing the effect of s.362B(1B)-(1F) (CB 76-79);
d)the Non-Appearance Decision was provided to the applicant in accordance with the requirements of s.362C(5);
e)the Confirmation Decision was made after the expiration of the time in which the applicant had to seek reinstatement and, for finality, was notified to the applicant in accordance with s.368A.
All of the procedural fairness obligation the Tribunal was required to observe were met.
In relation to whether the Tribunal’s decision to dismiss the application for non-appearance was reasonable, the Court is satisfied that, bearing in mind the purpose of a provision such as s.362B(1A)(b) and the objects of the Tribunal, it was reasonable for the Tribunal to dismiss the application for non-appearance: Minister for Immigration & Border Protection v SZVFW [2018] HCA 30.The Court notes, in particular, that:
a)the applicant indicated to the Tribunal in the request for information that he was available for a hearing “anytime” after 5 May 2019 (CB 52);
b)the hearing invitation advised that the applicant should arrive by 9.00am for a hearing scheduled to commence at 9.30am, and it was not until 11.00am the Tribunal “made” the decision dismiss the application for non-appearance (CB 54 and 77);
c)the Tribunal had attempted unsuccessfully to send two SMS hearing reminders to the applicant’s phone number, that being the number he provided to the Tribunal to be contacted on (CB 85);
d)the Tribunal attempted to phone the applicant on the number provided to the Tribunal three times prior to dismissing the application for non-appearance. The phone number provided was disconnected (CB 86); and
e)the Tribunal had received no request for an adjournment and the invitation clearly stated how any application for an adjournment was to be made and the consequences of non-attendance (CB 66).
At hearing, the Court questioned whether it was reasonable for the Tribunal not to have called the applicant’s representative when the applicant could not be reached. The Minster submitted that where:
a)there is no statutory obligation on the Tribunal to do anything other than invite the applicant to the hearing;
b)the response to hearing invitation indicated that the representative would not be attending or partaking in the hearing; and
c)the applicant would have an opportunity to apply for reinstatement,
it was not unreasonable for the Tribunal not to attempt to contact the applicant’s representative.
The Court accepts the Minister’s submissions. It was within the Tribunal’s area of decisional freedom to proceed as it did without taking any further steps to reach the applicant or ascertain his whereabouts or reason for not attending.
The Court is satisfied that it was entirely reasonable for the Tribunal to dismiss the application for non-appearance in light of the circumstances evident here.
Accordingly, the Tribunal’s exercise of the powers under s.363B(1A)(b) was entirely reasonable.
As for the Confirmation Decision, clearly this was reasonable as it was, by virtue of s.362B(1F) and the failure of the applicant to apply for reinstatement, the only decision that was open to the Tribunal to make.
There is no error in the Tribunal’s decisions that the Court can otherwise identify.
Conclusion
The Court is not satisfied there is any error in the Tribunal’s decisions.
The application, accordingly, is dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 14 November 2019
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