ENJAM v Minister for Immigration
[2013] FCCA 1046
•2 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ENJAM v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1046 |
| Catchwords: MIGRATION – Judicial review of decision of the Migration Review Tribunal – non-appearance by the Applicant at the Migration Review Tribunal hearing – Applicant claims did not receive invitation to attend hearing – Migration Review Tribunal determined the review in his absence – hearing invitation complied with legislative requirements – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360A, 362B, 379A |
| SZIGQ & Minister for Immigration and Citizenship [2007] FCA 328 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 |
| Applicant: | ASHOKREDDY ENJAM |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 556 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 2 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 2 August 2013 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Ms Whittemore |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
THE COURT ORDERS THAT:
The name of the First Respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.
The Application filed 26 April 2013 is dismissed.
The Applicant pay the First Respondent’s cost fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 556 of 2013
| ASHOKREDDY ENJAM |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP AND ANOR |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings commenced upon the Applicant seeking judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 27 March 2013 as contained in the Application filed by him on 26 April 2013. The grounds of that application are as follows:-
“1. Under the section 475, my tribunal decision comes under the Federal court jurisdiction
2. I am not happy with Tribunal decision.
3. I am applying for the Judicial Review in 35 days Time frame.”
Thus, it would appear that the basis on which the Applicant makes his application is that he is not happy with the Tribunal decision.
The Applicant filed an Affidavit sworn by him on 26 April 2013, to which he annexed the decision record of the Tribunal, and an annexure A, being a letter to the Court dated 26 April 2013 from him. Included in that letter was the Applicant’s statement that he had not received any letters from the Tribunal regarding his hearing dates to attend.
The First Respondent filed a Response on 15 May 2013. The First Respondent sought dismissal of the application on the basis that the application for judicial review did not provide any particulars or any legal grounds of review; that the application did not establish any jurisdictional error in the decision of the Tribunal dated 27 March 2013; that the application invited the Court to undertake an impermissible review of the merits of the Tribunal’s decision; and that the application did not raise an arguable case for the relief claimed pursuant to Part 44.12 of the Federal Circuit Court Rules 2001 (Cth). The First Respondent relied upon an Outline of Submissions filed on 18 July 2013 and an Affidavit sworn by Ms Lal on 4 June 2013 and filed 5 June 2013. The Affidavit of Ms Lal provided evidence to the Court that on 31 May 2013, an officer of the Department of Immigration and Citizenship (‘as it then was’) (‘the Department’) sent an email attaching a copy of the Australia Post ‘Lodgement receipt - Multiple lodgements’ form for the Tribunal for 30 January 2013. Those records indicated that a letter dated 29 January 2013 was dispatched by the Tribunal to the Applicant at his nominated postal address by registered post on 30 January 2013.
There is also before the Court and in evidence a Court Book filed by the First Respondent. Although Orders were made by Registrar Caporale on 3 July 2013 providing for the Applicant to file and serve any amended application including any additional grounds of review with complete particulars of each ground and written submissions, the Applicant has not filed and served an amended application nor any written submissions in respect of the final hearing of this matter this day.
History
On 6 June 2011, the Applicant lodged an application for a Student (Temporary) (Class TU) visa. The Applicant also submitted an International English Language Testing System (‘IELTS’) test report form dated 9 July 2011, various financial documents and his health insurance cover note. On 31 October 2011, a delegate of the First Respondent (‘the delegate’) refused to grant the Applicant the visa because the Applicant had provided no evidence that he met the English language requirements in cl.572.223(2)(a)(i) of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 572.223 is as follows:-
“(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under regulation 2.07AO:
(i) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; and
(iii) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity; or
(b) for an applicant who is a person designated under regulation 2.07AO — the Minister is satisfied that:
(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative; and
(ii) the applicant’s proficiency in English is appropriate to the proposed course of study; and
(iii) the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter.”
On 20 November 2011, the Applicant applied to the Tribunal for a review of the delegate’s decision. By letter dated 22 November 2011, the Tribunal acknowledged receipt of the Application for Review dated 20 November 2011 and invited the Applicant to provide material or written arguments for the Tribunal to consider as soon as possible. In letter dated 29 January 2013, the Tribunal invited the Applicant to attend a hearing before it on 27 March 2013 at 9.30am at Level 12, 460 Lonsdale Street, Melbourne. The Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The Applicant was also invited to provide the following:-
a)a certificate of enrolment as required by cl.572.222 of Schedule 2 of the Regulations or evidence that he was enrolled in or was the subject of a current offer of enrolment in a registered course as set out in cl.572.231 of Schedule 2 of the Regulations;
b)evidence of all his academic achievements and evidence of his enrolment in a registered course or courses since his arrival in Australia as the holder of a student visa for the purposes of clause 572.223(2)(a)(ii) of Schedule 2 of the Regulations.
Otherwise the Applicant was invited to provide evidence of adequate arrangements for health insurance during the period of his intended stay in Australia, having regard to cl.572.225, and current evidence that he satisfied English language, financial capacity and “other” requirements in any of the alternative ways applicable for his assessment level set out in Schedule 5A of the Regulations for the purposes of clause 572.223(2)(a)(i). Finally, the Tribunal invited the Applicant to provide evidence that while he held the visa, he would have access to the funds demonstrated or declared in accordance with the financial capacity requirements of Schedule 5A of the Regulations for the proposed period of his stay in Australia as required by cl.572.223(2)(a)(iii) of Schedule 2 of the Regulations. Relevant extracts of the Regulations were attached to that communication for the Applicant’s reference.
The hearing invitation complied with legislative requirement. It:-
a)invited the Applicant to appear before it to give evidence (s.360(1) of the Migration Act 1958 (Cth) (‘the Act’));
b)provided notice of the specified day, time and place of the hearing (s.360A(1) of the Act);
c)was given to the Applicant by one of the means specified in s.379A of the Act, namely, by prepaid post;
d)provided a period of time to the Applicant exceeding the prescribed period of seven working days (reg.4.21);
e)contained a statement about the effect of s.362B of the Act, namely, the options available to the Tribunal if the Applicant failed to appear before it (s.360A(5) of the Act).
No response was received from the Applicant to the Tribunal’s hearing invitation, and the Applicant did not appear at the scheduled hearing on 27 March 2013. Accordingly, the Tribunal, empowered by s.362B of the Act, proceeded to determine the review without taking any further action to enable the Applicant to appear before it.
The Tribunal found that there was no evidence before it that the Applicant was currently enrolled or the subject of a current offer of enrolment in a course of study. It accordingly found the Applicant did not meet the necessary requirements of Schedule 2 of the Regulations. The Tribunal also found there was no evidence before it that the Applicant met the criteria for a Student (Temporary) (Class TU) Subclass 576 visa or a Student (Temporary) (Class TU) Subclass 580 visa or the remaining subclasses of the Student (Temporary) (Class TU) visa.
The Applicant submitted in his Affidavit filed 26 April 2013 that not only was his failure to attend the Tribunal hearing a consequence of him not receiving any letters from the Tribunal regarding his hearing date to attend, but also a consequence of the ‘unexpected health and stress’ which he was suffering at that time. No medical evidence was annexed to the Affidavit filed 26 April 2013 in support of the Applicant’s claim.
The Applicant claims to not have received the Tribunal invitation inviting him to attend a hearing on 27 March 2013. That hearing invitation complied with legislative requirements. It was forwarded to the Applicant by prepaid post (s.379A(4) of the Act). In SZIGQ & Minister for Immigration and Citizenship [2007] FCA 328 at paragraph 5, Downes J. said as follows:-
“In the Federal Magistrates Court, the appellants gave evidence that they did not open the post box where the invitation was sent until after the hearing date. Turner FM did not accept that the letter was late in arriving. However, the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries. … In several of these cases the invitation was allegedly never received by the applicant.”
The invitation hearing from the Tribunal advised the Applicant that if he failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it. The Tribunal proceeded in the absence of the Applicant. The Applicant claimed, on the hearing of the matter this day, that he was ill around the time of the Tribunal hearing and unable to attend. He also claimed to have not had sufficient time to obtain medical evidence to put before the Tribunal.
The hearing invitation is dated 29 January 2013. The date of the Tribunal hearing was 27 March 2013. The Applicant had ample time to obtain medical evidence to place before the Tribunal at the hearing and, furthermore, he had ample time to, in the alternative, advise the Tribunal of the then state of his health, provide whatever necessary material was required and obtain an adjournment. He did not do so. He provides no medical evidence as to his then state of health and continuing to this day.
The Applicant’s grounds of review as set out in his application are not proper grounds of review; and do not identify any jurisdictional error on the part of the Tribunal. The factual findings made by the Tribunal were open to it on the evidence before it and it is not for this Court to review the merits of the Tribunal’s decision.
The hearing invitation was correctly addressed to the Applicant at the address nominated in his Application for Review dated 20 November 2011. Irrespective of his claim to non-receipt of such hearing invitation, the Applicant was deemed to have received the Tribunal’s invitation to hearing. The Tribunal was under no obligation to make any inquiry as to the failure on the part of the Applicant to appear or “to search the papers lodged with it to discover if there might be some other avenue of communication with the applicant.” (Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 per Spender, French and Cowdroy JJ at paragraph 39).
There is no jurisdictional error in the Tribunal’s decision. The application will be dismissed and costs will follow the event.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 16 August 2013
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