Gazi v Minister for Immigration
[2012] FMCA 895
•30 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAZI v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 895 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – non enrolment in a course of study – Tribunal inviting comment on adverse information – applicant requesting an extension of time – whether the request was a response to the invitation considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.66, 359A, 360, 359C, 362B, 363A, 477 Migration Regulations 1994 (Cth) |
| Minister for Immigration v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11 |
| Applicant: | MD SHAHINUR RAHMAN GAZI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 904 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 25 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Bell, pro bono publico |
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitor |
ORDERS
The application filed on 24 April 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 904 of 2012
| MD SHAHINUR RAHMAN GAZI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (the Tribunal). The decision was made on 8 March 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant (Mr Gazi) a temporary student visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Gazi is a citizen of Bangladesh who arrived in Australia on 1 March 2008 as the holder of a subclass 575 visa. He later obtained a temporary student (class TU) subclass 572 visa before applying for a further subclass 572 visa on 3 March 2011[1].
[1] court book (CB) 1, 45
On 12 May 2011 a delegate of the Minister refused Mr Gazi’s visa application on the basis that he had not met the requirement in regulation 572.223(2)(a)(i)(A) of the Migration Regulations 1994 (Cth) (the Regulations), that is, he had not provided evidence in accordance with Schedule 5A of his having satisfied the English language requirements for the grant of the visa[2].
[2] CB 29-34
On 20 June 2011, Mr Gazi applied to the Tribunal for review of that decision[3].
[3] CB 35
On 23 November 2011, the Tribunal sent to Mr Gazi a letter seeking his comment on information, being the fact that according to information from the Department of Employment, Education and Workplace Relations, as at 2 November 2011, Mr Gazi was not currently enrolled in any course. Mr Gazi was asked to respond by 30 December 2011[4].
[4] CB 51-52
On 30 December 2011, Mr Gazi wrote to the Tribunal seeking further time to respond to the Tribunal’s request. He indicated that he had been suffering acute depression, had recently moved and had only just received the Tribunal’s letter. The Tribunal refused the extension but nonetheless sent Mr Gazi an invitation to a hearing on 2 February 2012[5].
[5] CB 53-59
On 30 January 2012, Mr Gazi sought a postponement of the hearing. In a letter to the Tribunal he outlined various medical issues and, on 1 February 2012, provided to the Tribunal a medical certificate for the period 1 to 2 February 2012 and a letter, dated 31 January 2012, from a mental health nurse which indicated that while Mr Gazi had been treated since July 2011 he was now fit to return to work and study. The Tribunal decided not to postpone the hearing. Mr Gazi did not attend but contacted the Tribunal afterwards and provided a further medical certificate[6].
[6] CB 61-76
On 9 February 2012, the Tribunal invited Mr Gazi to attend a further hearing of the Tribunal on 2 March 2012[7]. On 29 February 2012, Mr Gazi faxed to the Tribunal a further medical certificate for the period 29 February 2012 to 2 March 2012 and a letter stating that he was suffering fever and folliculitis and could not attend the hearing[8]. After further telephone calls with the Tribunal, regarding his ability to attend the hearing by telephone, the hearing was postponed until 7 March 2012. In a letter, dated 1 March 2012, the Tribunal noted that as this was the second postponement of a hearing to which Mr Gazi had been invited, the Tribunal would only change the date again in exceptional circumstances[9].
[7] CB 79
[8] CB 81-82
[9] CB 83-86
On 5 March 2012, Mr Gazi attended the Tribunal’s registry and stated that he was too unwell to attend a hearing on 7 March 2012. He was advised to provide a medical certificate and that he could attend by telephone if required. Mr Gazi did not attend the hearing on 7 March 2012 but later that day telephoned the Tribunal stating that he had been unable to attend the hearing due to an injured foot. He faxed a medical certificate to the Tribunal which stated Mr Gazi had been suffering headaches, folliculitus and injury to his big toe which resulted in him being unable to attend between 7 and 9 March 2012[10].
[10] CB 86-92
Tribunal decision
On 8 March 2012, the Tribunal affirmed the decision under review. The Tribunal found that:
·The letter notifying Mr Gazi of the decision of the delegate was not dated and it therefore did not meet the requirements of s.66(2)(d)(ii) of the Migration Act 1958 (Cth) (the Migration Act). The Tribunal therefore decided that as there was no commencement date for the period from which the date for an application for review could be calculated and the Tribunal accepted that Mr Gazi was within time for the making of his application[11].
·The Tribunal noted what it considered to be the basis on which the delegate made its decision but decided there was a preliminary issue as to whether Mr Gazi could meet the requirements in clause 572.222 of Schedule 2 to the Regulations, that is, whether he had given to the Minister a certificate of enrolment[12].
·The Tribunal recounted the procedural history of the matter and the material before it. In relation to Mr Gazi’s non appearance on 7 March 2012, the Tribunal noted that Mr Gazi had been informed that any further adjournment would only be granted in exceptional circumstances. The Tribunal stated that it was not satisfied that such evidence was provided and found that the medical evidence provided by Mr Gazi was not sufficient to explain why Mr Gazi could not appear, including by telephone. The Tribunal noted that Mr Gazi had been advised in November 2011 that he needed to provide a certificate of enrolment and despite two postponements of the hearing since that time had not done so. The Tribunal therefore decided, pursuant to s.362B of the Migration Act to make a decision on the review[13].
·The Tribunal noted that Mr Gazi had made his application in person in Australia (not by electronic transmission) and he was therefore required to provide a certificate of enrolment as required by clause 572.222(1) of Schedule 2 to the Regulations. As Mr Gazi had not done so, he did not satisfy a time of decision criterion for the grant of the visa[14].
·The Tribunal also considered the other subclasses of class TU visas but found Mr Gazi did not meet the criteria for those either[15].
[11] CB 97 at [5]
[12] CB 98 at [9]
[13] CB 98-101
[14] CB 102 at [31]-[35]
[15] CB 102 at [36]
The Tribunal therefore affirmed the decision not to grant Mr Gazi a visa.
The judicial review application
These proceedings began with a show cause application filed on 24 April 2012. In that application, Mr Gazi asserted a want of procedural fairness in the process followed by the Tribunal. Mr Gazi required an extension of time for his application pursuant to s.477(2) of the Migration Act. I granted that request on 1 August 2012. I also made an order pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules) for the Minister to show cause why relief should not be granted in relation to the following issues:
(a)whether the Tribunal committed jurisdictional error in exercising its discretion not to grant an extension of time to the applicant for his response to the invitation issued pursuant to s.359A of the Migration Act 1958 (Cth), having regard, in particular, to the legal consequence of a refusal of an extension of time;
(b)whether the Tribunal committed jurisdictional error in issuing the hearing invitations dated 10 January 2012, 9 February 2012 and 1 March 2012;
(c)whether the Tribunal committed jurisdictional error in purporting to exercise its discretion pursuant to s.362B of the Migration Act 1958 (Cth) to make a decision on the review without taking further action to enable the applicant to appear before it.
The issue apparent at that time was that if Mr Gazi had failed to respond to the Tribunal’s invitation to comment within the time fixed for that response, then the Tribunal was not permitted to invite Mr Gazi to a hearing and, in consequence, the three invitations issued by the Tribunal, and its ultimate decision to proceed pursuant to s.362B, would have lacked any legal foundation. Ms Bell agreed to represent Mr Gazi on a pro bono basis to deal with the issues arising. The Court is grateful for the willingness of counsel to appear on that basis.
The parties prepared written submissions directed to the issues. It was agreed at the hearing before me on 25 September 2012 that the issues raised by the Court in the rule 44.12(1)(a) order were the issues requiring resolution by the Court, although the parties also addressed the issue of whether, in the event that the Court identified jurisdictional error by the Tribunal, the Court ought to refuse relief in the exercise of discretion.
I have before me as evidence the book of relevant documents filed on 25 June 2012.
Consideration
This matter was ultimately argued before me in a curious way. The parties agree that the decision of the Federal Court in Minister for Immigration v Saba Bros Tiling Pty Ltd[16] has a bearing upon this case, but both Mr Gazi and the Minister submit that that case was wrongly decided. The Minister puts that submission formally on the basis that the Court is bound by the decision of the Federal Court (which was decided on appeal from this Court). Mr Gazi submits that the decision can be distinguished on the facts.
[16] (2011) 194 FCR 11
In Saba Bros Tiling Jagot J dealt with the issue of what constituted a “response” to an invitation issued pursuant to s.359A of the Migration Act. Her Honour relevantly found at [30]-[32]:
Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: “comment on or respond to” the information in the case of s 359A(1)(c), and “the comments or the response” in the case of s 359C(2)(b). This indicates that an applicant may either “comment on” or “respond to” the information in the invitation, or both comment on and respond to the information. The choice – to comment, respond or both – is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines “to comment” as “to make comments or remarks [upon]”; by contrast, “to respond” is simply “to answer in speech or writing; to reply”. An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.
It is true that s 359C(2)(b), read with s 359A(1)(c), requires a response to the information in the invitation. But beyond that the Migration Act imposes no minimum requirement of content for a response or a comment. Accordingly, on the face of the provisions, any reply or answer directed to the information itself will constitute a response.
Nothing in the context of or purpose underlying the relevant provisions indicates that the word “respond” should be given other than its ordinary and natural meaning of “to answer” or “to reply”. As Saba Bros submitted, the option of responding to (as opposed to commenting on) information under s 359A was inserted into the Migration Act by the Migration Amendment (Review Provisions) Act 2007 (Cth). If, as the Minister contended, a “response” requires an applicant expressly to state a position in relation to the information, the distinction between comment and response introduced by Parliament in 2007 would be rendered redundant.
Her Honour found that Saba Bros has “responded” to the invitation by its letter of 22 February 2010 which stated[17]:
We refer to section 351 notice [sic] and note adverse information therein. We have put the adverse information to our client, however we are instructed that he would still like the opportunity of an oral hearing.
[17] at [15]
Both the Minister and Mr Gazi contend that a response to an invitation issued pursuant to s.359A which does not address the information raised in the invitation is not a response for the purposes of the section. The Minister, however, concedes that I am bound by the decision of the Federal Court in Saba Bros Tiling. Mr Gazi does not. Mr Gazi contends that this case can be distinguished from Saba Bros Tiling on the basis that, in that case, the company had expressly sought to address the issues raised in the invitation at a hearing. In the present case, Mr Gazi’s response to the invitation was to seek more time to respond in writing.
In my view, there is no material distinction. Both in this case, and in Saba Bros Tiling, the persons to whom the invitation was sent by the Tribunal responded within the time prescribed seeking an opportunity to deal with the issues at a later date. I find that the present case is indistinguishable from Saba Bros Tiling. It follows that, Mr Gazi having responded to the invitation within the time prescribed in that invitation, the Tribunal was not disentitled from inviting Mr Gazi to appear to attend a hearing because of the operation of s.360(3) read in combination with s.359C(2) and s.363A.
The Tribunal wrote to Mr Gazi by letter dated 10 January 2012 in response to his request for an extension of time[18]. The penultimate paragraph of that letter states:
The Tribunal has carefully considered your request for extension of time to respond and decided not to extend the time as requested. However a hearing had been scheduled for 2 February 2012, so you may provide information to the Tribunal prior to that date, or any time up until a decision is made.
[18] CB 57
It is plain from the terms of that response that the Tribunal refused the request for an extension of time on the understanding that it was entitled to invite Mr Gazi to a hearing. On the basis of the Federal Court authority in Saba Bros Tiling that understanding was correct. It follows that the question of whether the Tribunal exercised its discretion not to extend time to respond to the invitation issued pursuant to s.359A on the basis of a false understanding of the law must be answered in the negative.
It is common ground that if the Tribunal did not err in refusing to grant an extension of time because the Tribunal was entitled to invite Mr Gazi to a hearing, there was no jurisdictional error in issuing the hearing invitations dated 10 January 2012, 9 February 2012 and 1 March 2012. I find that the Tribunal committed no jurisdictional error in issuing those invitations. Neither was there any error committed by the Tribunal in exercising its discretion pursuant to s.362B of the Migration Act to ultimately make a decision on the review without taking further action to enable Mr Gazi to appear before it when he failed to appear at the third hearing to which he was invited. That proposition only arose because of the doubt whether the Tribunal was entitled to invite Mr Gazi to a hearing following the expiration of the period for responding to the invitation to comment.
In the light of these conclusions, it is unnecessary to deal with the other issues raised by the parties in their submissions. The Tribunal was correct in treating Mr Gazi’s request for an extension of time as a response to its s.359A invitation and made no error in its subsequent hearing invitations or in relation to the final hearing invitation.
Conclusion
Because the Tribunal decision is free from jurisdictional error, it is a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 30 October 2012
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