Gampola v Minister for Immigration
[2019] FCCA 3126
•28 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAMPOLA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3126 |
| Catchwords: MIGRATION – Student (Temporary)(Class TU) Student (subclass 500) visa – where applicant failed to attend Tribunal hearing – whether Tribunal properly exercised power to dismiss for non-appearance – where applicants applied for reinstatement – whether Tribunal acted reasonably in not confirming non-appearance decision – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360A, 362B, 362C, 379A, 476 Migration Regulations 1994 (Cth), reg.4.21 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 |
| First Applicant: | HENNANANYAKE MUDIYANSELAGE BINENDRA BANDARA GAMPOLA |
| Second Applicant: | JOVITA DESEREE GAMPOLA |
| Third Applicant: | JAZLYN RESMINI BANDARA GAMPOLA |
| Fourth Applicant: | LAKSHITHANI BETHANY NICOLA BANDARA GAMPOLA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 206 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 28 October 2019 |
| Date of Last Submission: | 28 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 28 October 2019 |
REPRESENTATION
| Applicants: | The first applicant appeared in person and on behalf of the second, third and fourth applicants |
| Counsel for the First Respondent: | Mr M Sunits |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The first applicant and second applicant pay the first respondent’s costs fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 206 of 2019
| HENNANANYAKE MUDIYANSELAGE BINENDRA BANDARA GAMPOLA |
First Applicant
| JOVITA DESEREE GAMPOLA |
Second Applicant
| JAZLYN RESMINI BANDARA GAMPOLA |
Third Applicant
| LAKSHITHANI BETHANY NICOLA BANDARA GAMPOLA |
Fourth Applicant
And
| MINISTER FOR MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
Introduction
By application filed in this Court on 16 May 2019, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 15 April 2019.
The Tribunal confirmed an earlier decision it had made on 20 March 2019 to dismiss the applicants’ review application for non-appearance. The effect of the decision was that a decision of a delegate of the then Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicants a Student (Temporary)(Class TU) Student (subclass 500) visa (the “visa”) was undisturbed.
The application is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court, the applicants must satisfy the Court that the Tribunal has fallen into a jurisdictional error.
The first applicant appeared without legal assistance in this Court on 28 October 2019. He spoke for the second applicant, third applicant and fourth applicant. The second applicant is the first applicant’s wife. The third and fourth applicants are their children.
The Court had before it the application for judicial review, an affidavit from the first applicant sworn 15 May 2019, a Court Book (“CB”) numbering 123 pages (which the Court marked as Exhibit 1) and a detailed outline of written submissions filed by the Minister on 21 October 2019. The Court confirmed that the applicant had received the Court Book and the Minister’s submissions.
In Court, the first applicant also handed up evidence (which the Court marked as Exhibit 2) of a Regional Employee Nomination Visa application not yet determined. Unfortunately, that application is not relevant to today’s proceedings, which can only look at whether there is jurisdictional error in relation to a decision of the Tribunal which is relevant to a different visa application.
The first applicant also provided medical evidence (marked as Exhibit 3) that his daughter is unwell and receiving medical care in Australia. While sympathetic to the issues the applicant outlined today in relation to his daughter’s health, this issue and the material relevant to it, was not before the Tribunal and is not relevant to the issues addressed by the Court on review.
Background
The Minister’s submissions (at [3]-[12]) accurately summarise the factual background to these proceedings. The Court adopts this summary as its own. It provides as follows.
The first applicant is a national of Sri Lanka (CB 2). The second, third and fourth applicants are the applicant’s wife and two children, respectively (CB 4-8). They were secondary applicants to the first applicant’s visa application.
On 7 March 2017, the first applicant lodged an application for the student visa with the then Department of Immigration and Border Protection (CB 1-45).
On 10 July 2017, a delegate of the Minister refused to grant the visa to the first applicant (CB 57). On 24 July 2019, the applicants applied to the Tribunal for review of the delegate’s decision (CB 67).
In the application for review, the applicants requested that the Tribunal send correspondence about the application to a nominated email address (CB 68).
By letter dated 1 March 2019, sent by email to the applicants’ email address, the applicants were invited to attend a hearing before the Tribunal on 20 March 2019 at 1:30pm (VIC time) (CB 94).
The applicants did not attend the hearing on 20 March 2019 and the Tribunal decided to dismiss the application under s.362B(1A)(b) of the Act without further consideration of the application or the information before the Tribunal (the “Non-Appearance Decision”) (CB 111).
The applicant was notified of the Non-Appearance Decision by letter dated 20 March 2019 which was sent by email on that date to the applicants’ email address (CB 106). The letter attached a copy of the Tribunal’s statement of, and reasons for, the Non-Appearance Decision, together with an information sheet and advised them that they could apply, in writing, for reinstatement of the application by 3 April 2019 (CB 107).
On 3 April 2019, the first applicant applied for reinstatement of the application (CB 112).
On 15 April 2019, the Tribunal confirmed the dismissal decision pursuant to s.362B(1C)(a) of the Act (the “Confirmation Decision”) (CB 116).
The applicants were advised of the Confirmation Decision by letter dated 23 April 2019 which was sent by email to the applicants’ email address on that date (CB 114).
The Tribunal’s Decisions
The Tribunal dismissed the application for non-appearance on 20 March 2019. In full, the Non-Appearance Decision provides as follows:
1. The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 20 March 2019 at 1.30pm. 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. 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.
The Tribunal confirmed the non-appearance decision on 15 April 2019. The Confirmation Decision provides as follows:
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) of the Act. 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 primary review applicant (the applicant) applies on behalf of the review applicants for reinstatement of the review application. The applicant claims he was unable to attend the scheduled hearing on 20 March 2019 because he was away from Melbourne and “had a mix-up with the dates.”
6.No information has been provided to the Tribunal which explains the purpose for which the applicant was absent from Melbourne on the date of the hearing. The applicant provided no explanation for failing to respond to the Tribunal’s invitation to attend the hearing scheduled for 20 March 2019. The Tribunal notes no application was made to adjourn the scheduled hearing.
7. The information the applicant provided to the Tribunal does not demonstrate the applicant was unable to return to Melbourne in time to attend the review hearing or apply for the review hearing to be adjourned to another date.
8. The applicant indicates in the reinstatement application, he was “not in sound mindset” and that this mental condition was induced by a number of factors, including uncertainty about the status of his Student visa and that his daughter was suffering from a serious ear infection. According to the applicant, these influences prevented him from attending to his general responsibilities. The applicant did not expressly state that his state of mind prevented him from responding to the Tribunal’s invitation to attend the hearing; nevertheless, the Tribunal assumes (in favour of the applicant) the applicant is claiming that to be the case.
9. No medical evidence was provided to the Tribunal to support the applicant’s various health and wellbeing related claims. These claims, without supporting medical evidence, amount to no more unsubstantiated, unverifiable assertions. No explanation has been provided to the Tribunal for the applicant’s failure to provide any medical evidence in support of his claims about the existence of various medical and welfare related conditions upon which he relies for success in this reinstatement application.
10. It is reasonable to expect the applicant would provide evidence of the existence of the relevant medical conditions, and just how those conditions may have prevented the applicant from responding to the Tribunal’s invitation to attend the scheduled hearing, or apply to adjourn the hearing, or attend the scheduled hearing, or otherwise engage in a timely manner with the Tribunal in regard to the review application. The Tribunal finds the applicants failed to demonstrate to the Tribunal the existence of facts sufficient to justify reinstatement of the application to review the decision of the delegate.
11. Taking into consideration all of the reasons advanced in support of this application for reinstatement of the review hearing, the Tribunal does not consider it appropriate to reinstate the application.
12. The decision to dismiss the application is confirmed. In these circumstances, the decisions under review are taken to be affirmed.
Proceedings in this Court
The application for judicial review contained five grounds as follows:
1. The Tribunal failed to consider that applicants personal circumstances and to apply the relevant laws correctly.
2. That a breach of the rules of natural justice occurred in connection with the making of the Decision
3. That the applicant was denied procedural fairness in connection with the making of the Decision.
4. That procedures that were required by law to be observed in connection with the making of the Decision were not observed.
5. That the making of the Decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made
Paragraphs [1]-[4] of the first applicant’s affidavit refer to uncontested factual matters.
Arguably relevant are [5]-[6] in the first applicant’s affidavit, which provides as follows:
5. Unfortunately, the Tribunal Member failed to consider all the relevant factors and correctly assess my situation and make a decision accordingly.
6. I believe the tribunal member made a Jurisdictional error by not considering the essential facts and by not giving correct weight to the matters.
The applicants were afforded an opportunity by a Registrar of this Court to file a written outline of submissions. No submissions were filed.
Noting recent remarks in the Federal Court in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] that an applicant should be offered an opportunity to orally explain what they believe the Tribunal “did wrong”, the Court provided the first applicant an opportunity to do so.
To assist him, the Court explained to the first applicant that this Court can only turn its attention to the issue of jurisdictional error. The Court noted that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. It was explained that for migration decision of this sort, they most commonly include, but are not limited to, 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 & Anor (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) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the first applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he now seeks. 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.
In effect, the first applicant made submissions pertaining to the merits of the Tribunal’s decision. He detailed why he did not attend the Tribunal hearing, with particular reference to Exhibit 3. Unfortunately, as indicated, Exhibit 3 was not relevant to today’s proceedings.
To the extent that any submissions made by the first applicant are relevant to the application for judicial review, the Court will address them below in considering the applicants’ grounds of review and those paragraphs in the first applicant’s affidavit that are relevant to the issue of jurisdictional error.
Consideration
In effect, the applicants’ grounds of review all pertain to the fairness of the Tribunal’s exercise of the power to dismiss the proceedings under s.362B(1A)(b) of the Act and the confirmation of that decision. On this basis, the Court will simply address each of the Non-Appearance Decision and Confirmation Decision for jurisdictional error.
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. This requires that, first, the applicants be validly invited to the hearing and, second, that the applicants not attend at the scheduled hearing.
Here, the invitation to the hearing:
a)was addressed to the attention of each of the applicants (CB 95)
b)clearly indicated the day, time and place of the Tribunal hearing (on the first page of the invitation): the Act, s.360A(1); (CB 95);
c)was sent via email (a method approved by s.379A(5)) to the applicants’ nominated email account on 1 March 2019: the Act, s.360A(2)(a). The notice given to the applicants exceeded the minimum notice period prescribed by reg.4.21(4) of the Migration Regulations 1994 (Cth): the Act, s.360A(4); and
d)contained a statement describing of the effect of s.362B and what would happen if the applicants did not attend the hearing: the Act, s.360A(5).
It is not in contention that the applicants did not appear at the Tribunal hearing. The necessary preconditions to the exercise of the power in s.362B(1A)(b) were, as a result, enlivened.
The Tribunal’s natural justice obligations required it to comply with s.362C of the Act. Here, the Tribunal did so as follows:
a)it made a written statement of its decision (being the Non-Appearance Decision) in accordance with s.362C(2);
b)the Non-Appearance Decision was provided to the applicants by email on the same day of the hearing (hence within 14 days of the decision being made) and thereby satisfying s.362C(5) of the Act; and
c)it correctly advised the applicants that they could apply to the Tribunal, in writing, for reinstatement of the review application by 3 April 2019 and provided a brochure titled ‘Information about dismissal of applications – MR Division’, which contained a statement describing the effect of s.362B(1B)-(1F) of the Act (as required by s.362C(6)) (CB 109-110).
The Tribunal adhered to the procedural obligations mandated by the relevant statute.
A final issue in relation to the Non-Appearance Decision is whether it was reasonable for the Tribunal to dismiss the application for non-appearance.
The Court is satisfied that it was reasonable to do so in circumstances where the applicants did not provide a response to the hearing invitation and the applicants were sent SMS text messages reminding them that the hearing was on the day and at the time indicated in the invitation (CB 102). Notwithstanding that the Tribunal could have attempted to contact the applicants on their mobile telephone number, there is no obligation to do so, particularly in circumstances where there was nothing to suggest it was remarkable for the applicants to have not appeared (noting that no response to the hearing invitation had been provided): Minister for Immigration & Border Protection v SZVFW [2018] HCA 30.
At the time of the Non-Appearance Decision there were no “personal circumstances” offered to the Tribunal that in some way suggested that the applicant was unable to attend the hearing. It cannot be said that it was unreasonable for the Tribunal to exercise the power under 362B(1A)(b) where the applicants were validly notified, the Tribunal had reminded them of the time and date by SMS and no request for adjournment had been sought.
Hence, ground 1 is arguably of no relevance to the Non-Appearance Decision.
The Court notes in this context that the medical evidence (Exhibit 3) relevant to the first applicant’s child was not in evidence before the Tribunal.
Here, the procedural requirements required to notify the applicant of the Non-Appearance Decision were all performed in accordance with the Act. There is no error in this aspect of the Tribunal’s conduct. The power under s.362B(1A)(b) was enlivened and there was no improper exercise of power.
On this basis, grounds 2-5 of the judicial review application, in relation to the Non-Appearance Decision, must be dismissed.
Further, paragraphs 5 and 6 of the first applicant’s affidavit do not identify any error. The Tribunal considered the “relevant factors” of s.362B(1) which enlivened s.362B(1A)(b). Here, the “essential facts” were that the applicants did not attend the hearing and there was no explanation for doing so. It was a matter for the Tribunal what weight it gave the “essential facts” and there was nothing unreasonable about the Tribunal’s consideration of those facts and the conclusion it came to: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [10].
Accordingly, there is no error in the Tribunal’s Non-Appearance Decision.
Confirmation Decision
What remains is a determination as to whether the Tribunal erred in confirming the Non-Appearance Decision.
In relation to grounds 2-4, and the obligations of procedural fairness in relation to the Confirmation Decision, having been notified of the Non-Appearance Decision correctly grounds 2-4 cannot be sustained. It is noted that there is no obligation on the Tribunal to invite the applicant to a hearing or to provide further information in support of the application for reinstatement: Singh v Minister for Home Affairs [2019] FCA 723 at [23] (“Singh”).
As a result of the above, grounds 2-4 must be dismissed.
Ground 1 and paragraphs 5 and 6 in the first applicant’s affidavit suggest the applicants are arguing the Tribunal did not properly consider the reinstatement application. It could be suggested that ground 5 of the judicial review application is an allegation that the Tribunal erred in its consideration of whether to reinstate the application.
It is noted that on 3 April 2019, and within the 14 day period allowed by s.362B(1B), the applicants applied for reinstatement. The written application was as follows:
With reference to the above case number, I would like inform that I was unable to attend the hearing on the 20th March 2019, I was away from Melbourne and had a mix-up with the dates.
Due to the uncertainty of my student visa and continuous medical reasons I was not in sound mindset. My elder daughter Jazlyn Gampola has been suffering from a serious ear infection and at the moment she is partially deaf. This been an ongoing condition and I was not at a clear state of mind and that impacted my personal life and my meeting my responsibilities.
It will be much appreciated if you could kindly consider my personal circumstances and make your decision to reinstate my appeal application
Section 362B(1C) of the Act is enlivened when an applicant applies for reinstatement. Section 362B(1C) relevantly 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
(b)confirm the decision to dismiss the application, by written statement under section 368
There are no matters prescribed by the Act that the Tribunal must consider when determining whether to reinstate the application. Rather, it is for the Tribunal to form an opinion as to whether it was “appropriate in the circumstances”. That is, it is both suited to the particular circumstances as well as sensible, right and proper, for the application to be reinstated: Singh v Minister for Immigration [2018] FCAFC 184 at [29].
The reasons for the Tribunal not considering it appropriate to reinstate the application in this matter appear at [6]-[10] of the Confirmation Decision.
It is apparent that the Tribunal took into account the “circumstances” advanced in support of reinstatement. The Tribunal expressly quoted from first applicant’s statement. Specifically, the Tribunal addressed the first applicant’s claim he did not attend because there was a “mix up” with the dates and it also addressed, more substantively, the claim to not have been in a “sound mindset”.
Clearly the Tribunal considered the relevant facts and circumstances that the applicants provided in support of their application for reinstatement. Once again, it was a matter for the Tribunal to assess those matters and give what weight it thought necessary. What the applicants appear to be suggesting in ground 1 of the application and [4] and [5] of the first applicant’s affidavit is that they disagree with the Tribunal’s consideration of the circumstances.
Disagreement does not amount to jurisdictional error and, while the Court is of course sympathetic, ground 1 and [4] and [5] of the first applicant’s affidavit do not identify any error in the Confirmation Decision.
In relation to ground 5, without prescribed considerations for the Tribunal to take into account in determining if it was “appropriate” to reinstate the application, it is for the Court to determine if the Tribunal’s reasons have an evident and intelligible justification (and hence that the Tribunal did not act “improperly”).
In Singh v Minister for Home Affairs [2018] FCA 1927 (“Singh”) at [22] Justice Perry stated:
…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… 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”.
In Singh, Justice Flick noted as follows at [24]:
… 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 Tribunal formed the view that the applicants’ explanation for non-attendance was “unsubstantiated” and “unverifiable”. In some respects the circumstances that the applicant presented with were, arguably, “bland”. The Tribunal noted a number of “deficiencies” in the applicants’ explanation for non-attendance. There was a lack of any detail provided by the applicants. On that basis it was open to the Tribunal to conclude that it did not accept the explanation.
It was also reasonable for the Tribunal to consider that the applicants’ lack of response to the hearing invitation or application for an adjournment was relevant to the consideration of the circumstances surrounding the applicants’ failure to appear.
It is also noted that the Tribunal gave the applicants the benefit of the doubt in respect of the explanation (at [8]). That is, while the applicant did not suggest that his “state of mind” prevented him from attending the hearing (rather his being away from Melbourne did), the Tribunal nonetheless considered the applicant’s state of mind as a part of the “mix up of the dates”. There was nothing arbitrary or capricious in the Tribunal doing so. Rather, the Tribunal appeared to give the applicants the best possible chance to succeed in their application.
While the Court is sympathetic, particularly given the evidence provided by the first applicant today, unfortunately that is not the relevant test here. The test is whether the Tribunal acted reasonably. The Court is satisfied that it did so. The Tribunal formed an opinion, within the area of decisional freedom that it has, that the circumstances were not appropriate to warrant reinstatement
While this Court may have considered differently, there was no error in the Tribunal concluding as it did. The Tribunal acted reasonably and there was no improper exercise of the power under s.362B(1C) of the Act.
Accordingly, no error can be found to have arisen from the Confirmation Decision.
Conclusion
Overall, as indicated, while the Court is sympathetic to the situation the first applicant now finds himself in, the Court is satisfied that the Tribunal’s decisions, both the Non-Appearance Decision and the Confirmation Decision, were sound and open to be made on the evidence before the Tribunal.
There is no jurisdictional error demonstrated by the 5 grounds of review or the first applicant’s affidavit filed in this Court. Further, there is nothing otherwise apparent on the face of both of the Tribunal’s decisions that indicates jurisdictional error.
In light of what has been outline above, the applicants’ application for judicial review is, accordingly, dismissed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 5 November 2019
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