Fang v Minister for Immigration & Border Protection

[2015] FCCA 3056

FEDERAL CIRCUIT COURT OF AUSTRALIA

FANG v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 3056

Catchwords:
MIGRATION – Migration Review Tribunal – whether the Migration Review Tribunal can send an invitation to attend a hearing to only one of two addresses provided by an applicant.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.360, 362, 379A, 499
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases Cited:
Minister for Immigration and Border Protection v Kim [2014] FCA 390
Radzi v Minister for Immigration and Border Protection [2014] FCA 626

Applicant: PEIQUN FANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1817 of 2015

Judgment of: Judge Emmett

Hearing dates: 27 October & 12 November 2015

Date of Last Submission: 12 November 2015

Delivered at: Sydney

Delivered on: 12 November 2015

REPRESENTATION

The Applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitors for the Respondents: Ms Hervee Dejean
Ms Brooke Griffin
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1817 of 2015

PEIQUN FANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 30 June 2015, the applicant filed an application seeking judicial review of a decision of the Migration Review Tribunal dated 4 June 2015 and handed down on 5 June 2015 (“the MRT”).

2. On 6 August 2015, the applicant attended a directions hearing before a Registrar of the Court. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support.

3. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in the applicant’s own language.

4. At the request of the first respondent, the matter was listed for 27 October 2015 for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the applicant.

5. Rule 44.12 of the Rules provides as follows:

   “(1) At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

6. Relevantly, r.44.13 provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

7. The applicant was unrepresented at both the hearing on 27 October 2015 and this morning’s hearing, though has had the assistance of an interpreter on both occasions.

8. When the matter came before me on 27 October 2015 for hearing, an issue arose in relation to the means by which the applicant was invited to attend a hearing before the MRT. In her application for review by the MRT, lodged on 16 February 2015, the applicant provided both a postal address and an email address. The issue identified for determination today was whether the MRT had erred in sending an invitation pursuant to s.360 of the Migration Act 1958 (Cth) (“the Act”) to the applicant to attend a hearing to the applicant’s email address only.

9. I raised with the first respondent’s solicitor at the time whether the MRT was also obliged to write to the applicant at the street address provided and whether it was sufficient for the MRT to invite the applicant to attend a hearing via her email address only. The matter was stood over until today to allow the parties an opportunity to file any further evidence and submissions on that issue.

10. At the recommencement of the hearing today, the applicant confirmed to the Court that she had not filed any further documents, either in accordance with my directions or otherwise.

11. The first respondent read the affidavit of Nathan William Price, affirmed on 4 November 2015 and filed on that date. Mr Price is a product delivery manager at the office of the second respondent. The solicitor for the first respondent this morning, Ms Griffin, acknowledged that in light of the authorities by which this Court is bound, it was not necessary for the first respondent to rely on that evidence. However, out of abundant caution, the affidavit was read without objection.

12. A summary of the relevant background and a summary of the MRT’s decision are accurately reflected in the first respondent’s submissions, filed on 20 August 2015, as follows:

    “Background

    3. The applicant is a 38 year old citizen of China. She arrived in Australia on 14 September 2014 as the holder of a Visitor visa (UD 601) and applied for a Student visa on 10 October 2014. At the time of the application, the applicant was enrolled in a Certificate IV in Human Resources, with course dates from 17 November 2014 to 15 November 2015.

    4. On 30 January 2015, a delegate of the Minister refused to grant the Student visa on the basis that the applicant did not satisfy the requirements of cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Regulations). That clause requires that, at the time of the decision, the Minister is satisfied that the applicant is a ‘genuine applicant for entry and stay as a student’. Among other matters, the delegate noted that, on her incoming passenger card, the applicant recorded her occupation as ‘housewife’, whereas she later provided evidence that she had been working full-time for a transport company.

    5. On 16 February 2015, the applicant applied to the Tribunal for review of the delegate’s decision.

    6. On 5 May 2015, the Tribunal sent the applicant an invitation to attend a hearing on 2 June 2015. The invitation was sent by email to the email address provided by the applicant in her application for review. The Tribunal did not receive any response to its invitation. On 26 May 2015 and 1 June 2015, the Tribunal sent SMS ‘hearing reminders’ to the applicant’s listed mobile number regarding the hearing.

    7. The applicant did not attend the scheduled hearing and the Tribunal decided to exercise its discretion under s 362B of the Migration Act 1958 (Act) and proceed to make a decision.

    Tribunal decision

    8. On 4 June 2015, the Tribunal affirmed the decision of the delegate to refuse to grant a Student visa (RD 65-69).

    9. The Tribunal found that the applicant provided contradictory evidence in relation to some of her submissions, including that she had incentive to return to mainland China because she had a daughter there. When asked for further information, the applicant said she had a stepdaughter who had resided in Hong Kong for the last 7 years. The Tribunal also found that the applicant had provided contradictory evidence in relation to her employment (RD 69 [16]).

    10. The Tribunal found that, on the evidence before it, it could not make a finding in the applicant’s favour as the Tribunal had concerns which had not been adequately addressed by the applicant (RD 69 [17]). It concluded that it was not satisfied that the applicant genuinely intended to stay in Australia temporarily pursuant to cl 572.223(1)(a) of Schedule 2 of the Regulations (RD 69 [18]).”

13. On 4 November 2015, the first respondent filed submissions addressing the issue raised with them on 27 October 2015 as to whether the first respondent was entitled to send an invitation to the applicant to attend the hearing to only one of two addresses provided by the applicant. Those submissions are as follows:

    “1. These submissions address the issue of whether the Tribunal was entitled to send a hearing invitation exclusively to the email address provided by the applicant in her application for review in circumstances where the applicant had provided both a postal address and an email address (see CB 48 and 51).

    2.   The first respondent submits that the Tribunal made no error in sending the hearing invitation to the applicant exclusively by email.

    3. The use of email is an authorised method of communication under s 379A(5)(b) of the Migration Act 1958 (Act) and the applicant has not given any evidence that she did not receive the hearing invitation. The applicant has provided the same email address for communication in these proceedings.

    4.   In Minister for Immigration & Border Protection v Kim [2014] FCA 390 (Kim), which was an appeal from a decision of the Federal Circuit Court, Buchanan J considered the terms of s 494B of the Act (which is relevantly identical to the text of s 379A) and held that the Minister retained an effective discretion to choose any of the methods prescribed by s 494B in circumstances where the respondent had provided 2 residential addresses and an email address. In that case, the Department notified the respondent by email that a bridging visa had been granted but communicated the delegate’s decision not to grant a Student visa by sending the decision by post to the respondent’s residential address in Australia. Buchanan J rejected the submission that the Department was bound not to send the letter to her residential address, but, instead, to send it to her email address. The authority in Kim was positively referred to by Rangiah J in Radzi v Minister for Immigration and Border Protection & Anor [2014] FCA 626 at [34]-[35] in considering s 379A.

    5.   In the present case, the facts are different to those in Kim in that the Tribunal decided to write to the applicant at her email address rather than her residential address. However, this is a difference without a distinction. The same principle applies that the Tribunal retained an effective discretion to choose any of the methods prescribed by s 379A.

    6.   Further, the first respondent submits that the Tribunal’s decision to send the hearing invitation to the applicant by email did not amount to a breach of procedural fairness. In this regard the first respondent notes that the application for review by the Tribunal was submitted electronically and both the Department and the Tribunal communicated with the applicant exclusively by email over the course of the application and review process. The applicant also sent the Department supporting documents via the same email address (CB 33). In these circumstances, it cannot be said that the Tribunal’s actions lead the applicant to have a reasonable expectation that the Tribunal would communicate with the applicant by post.

    7.   In addition, the applicant was informed at the time of lodgement of her application that the Tribunal would communicate with her by email (see affidavit of Nathan William Price affirmed on 4 November 2015).”

14. The applicant’s application for judicial review, filed on 30 June 2015, stated the grounds of review as follows:

    “1. I was not given proper procedure fairness.

    2. I was not given an opportunity to give my evidence.

    3. I should be given another chance to respond to the visa application decision”.

    (Errors in original.)

15. The applicant confirmed that she continued to rely on these grounds. The grounds of the application were interpreted for the applicant and the applicant was invited to say whatever she wished in support of the grounds of her application and in support of her application generally. The applicant made no relevant submission in support of any of the assertions of error made in the grounds of her application.

16. I explained to the applicant that the further submissions, filed by the respondent on 4 November 2015, suggest that the MRT is entitled to communicate with the applicant either at her email address or her street address where both those addresses were provided on her application for review.

17. In support of that proposition, the solicitor for the first respondent referred to Minister for Immigration and Border Protection v Kim [2014] FCA 390 and Radzi v Minister for Immigration and Border Protection [2014] FCA 626. Those were cases heard in the Federal Court of Australia on appeal from decisions of this Court. This Court is bound by those decisions and, accordingly, I accept that the principle, as enunciated by Ms Griffin, is correct.

18. In the circumstances, I am bound to find that there was no jurisdictional error in the first respondent sending an invitation to attend a hearing to the email address only of the applicant. However, I do note that the form that the applicant was required to complete, ‘Form eM1’, made provision for the applicant to give at least two addresses, yet did not suggest that the first respondent may choose to communicate with the applicant at only one of those addresses.

19. Otherwise, there is no evidence before this Court to suggest that the MRT’s hearing invitation was sent otherwise than in accordance with the statutory regime, in particular, s.360 of the Act and the consequent cascading relevant provisions.

20. The MRT referred to its invitation to the applicant to appear before it to present evidence and arguments in support of her application for review on 5 May 2015. That is a communication via email to the applicant’s email address identified in her review application. It provides the date, time and location of the hearing. It further informs the applicant that an adjournment would only be granted if the MRT was satisfied there was a very good reason for doing so and, if the applicant had not been advised that an adjournment had been granted, she must assume the hearing would proceed at the scheduled time and place. The MRT also noted that the email advised the applicant that if she did not attend the scheduled hearing, the MRT may dismiss the matter or make a decision without taking any further action to allow or enable her to appear before it.

21. The invitation was for a hearing on 2 June 2015 at 9.30am. The MRT noted that there was no response received in relation to the hearing invitation. The MRT further noted that on 29 May 2015, the MRT completed a ‘No Reply to Invitation’ Registry Checklist and confirmed that there had been no oral request for an extension, no response to the hearing invitation and no change to the applicant’s contact details. The MRT noted that, in addition, on both 26 May 2015 and 1 June 2015 the MRT had sent SMS ‘Hearing Reminders’ to the applicant’s listed mobile number regarding the hearing set for 9.30am on 2 June 2015.

22. The MRT noted that the applicant did not appear at the scheduled hearing and, accordingly, the MRT proceeded to exercise its discretion under s.362(b) of the Act to proceed to make its decision. The MRT noted that it exercised its discretion having been satisfied that the hearing invitation was sent to the last email address provided to the MRT by the applicant in connection with the review, thereby satisfying s.379A(5) of the Act.

23. The MRT then proceeded to consider whether the applicant met the relevant mandatory criteria in respect of the visa for which she had applied and noted that the issue was whether or not those criteria were met at the time of decision.

24. The MRT noted that it must have regard to Direction No.53, ‘Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications’ (“Direction No.53”), made under s.499 of the Act. The MRT set out the factors required to be considered pursuant to Direction No.53. The MRT then found that the applicant did not satisfy the genuine temporary entrant criteria.

25. The MRT found that the applicant had provided contradictory evidence in relation to other material that she had provided and that the information provided was contradictory on its face. The MRT noted that the applicant had been asked for further information. However, the MRT was not satisfied by the explanation provided by the applicant in response.

26. There is nothing before me to suggest that those findings made by the MRT were not open to on the evidence and material before it and for the reasons it gave. The applicant has not identified any jurisdictional error and none is apparent on the face of the MRT’s decision record.

27. In the circumstances, the MRT’s decision to affirm the decision under review not to grant the applicant a Student (Temporary) (Class TU) visa is not affected by jurisdictional error.

28. Accordingly, the proceeding before this Court, commenced by way of application filed on 30 June 2015, should be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 26 November 2015