Ghauri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 691

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ghauri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 691

File number(s):

SYG 3290 of 2019

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

31 March 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Student (Temporary class) (TU) Higher Education Sector Subclass 573 visas – whether the Tribunal provided the applicants’ with due procedural fairness when it decided to dismiss the application for review – whether the decision to dismiss the application for review was unreasonable and therefore erroneous – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth) ss 362B(1)(e), 379A, Part 5 of Division 5, 365C(5)

Cases cited:

BVD17 v Minister for Immigration and Border Protection (2018) FCAFC 114

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) FCCA 273

VZAVW v Minister for Immigration and Border Protection (2016) FCA 760

Number of paragraphs:

30

Date of last submission/s:

31 March 2021

Date of hearing:

31 March 2021

Place:

Parramatta

Solicitor for the Applicants:

The First Applicant Appeared in person

Solicitor for the Respondents:

Ms Lewis appeared on behalf of the First Respondent.

ORDERS

SYG 3290 of 2019

BETWEEN:

MR MUHAMMAD NASIR GHAURI

First Applicant

MS AYESHA NASIR GHORI

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	31 MARCH 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicants’ are to jointly and severally pay the First Respondent’s costs, fixed in the amount of $5400.

REASONS FOR JUDGMENT
(AS REVISED FROM TRANSCRIPT)

JUDGE HUMPHREYS

INTRODUCTION

1. The applicants’ are husband and wife, and are citizens of Pakistan. The first applicant is the primary visa applicant. The applicants’ came to Australia as holders of Student (Temporary class) (TU) Higher Education Sector Subclass 573 visas. On 1 December 2017, the first applicant was issued with a Notice of Intention to consider cancellation of his visa on the basis that the first applicant had not complied with the condition of his visa, in that, he was not enrolled in a registered course of study since 22 April 2017.

2. The first applicant provided the Department of Immigration (“the Department”) with certain information. However, the decision was made by a delegate of the Minister for Immigration (“the delegate”), to cancel the first applicant’s visa, and consequently, the second applicant’s visa, on 20 February 2018.

3. The applicants’ sought merits review at the Administrative Appeals Tribunal. On 15 October 2019, the Tribunal sent the applicants’ an invitation to attend a hearing letter for a hearing on 14 November 2019. The invitation to attend the hearing was sent to the applicants’ nominated representative, MIC Lawyers. That document included the following paragraphs:

   If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

   If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.

4. In a document titled Information about Hearings – Migration Review Division, that accompanied the invitation to attend the hearing letter, the following appears:

   If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

5. On 14 November, being the date of the scheduled hearing, neither the applicants’ nor their representative attended the hearing. On the same day, a letter was sent to the applicants via their nominated representative advising the applicants that, as they had failed to attend the scheduled hearing, the Tribunal had decided to dismiss the application for review. The letter included the following paragraph:

   You may apply to us, in writing, for reinstatement of the application by 28 November 2019. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.

6. On 3 December 2019, as no application had been received from the applicants’ for a reinstatement, the Tribunal confirmed the decision to dismiss the applicants’ review application.

   GROUNDS OF JUDICIAL REVIEW

7. The applicants’ grounds of judicial review are contained in an Initiating Application filed with the Court on 13 December 2019. The grounds of the application are as follows, verbatim:

   Ground One

   That the Tribunal did not provide the applicants with due procedural fairness when it decided to dismiss the application for review.

   Ground Two

   That the decision to dismiss the application for review was unreasonable and therefore erroneous.

8. No particulars were provided to supplement the above grounds of judicial review. In an Affidavit affirmed on 12 December 2019, the first applicant stated as follows:

   1.   I am the applicant in this matter and the deponent above named.

   2.   My Student (Subclass 573) Higher Education Sector visa was cancelled by the Delegate to the Minister. I applied for review with the Administrative Appeals Tribunal. The Tribunal dismissed my application as I could not attend the hearing scheduled as I was not well.

   3.   I say the Tribunal erred when it dismissed my application without enquiring into my review application.

   4.   I am requesting the honourable Court to set aside the decision of the Tribunal and to have the matter reviewed according to law.

   5.   I attach marked 'A' decision of the Tribunal.

   THE APPLICANT’S SUBMISSIONS

9. The first applicant appeared before the Court unrepresented. The second applicant, his wife, did not appear. The first applicant was assisted by an Interpreter in the Urdu language. Prior to the hearing commencing, the Court ensured that the first applicant was in possession of a copy of the relevant Court Books, and that the first respondent’s written submissions had been interpreted to him.

10. The Court also ensured that the first applicant was provided with a pen and paper so that he could take notes during the course of the hearing, should he so wish to. At the commencement of the hearing, the Court explained that it was undertaking judicial review and not merits review, and the difference between the two types of review.

11. The procedure by which the hearing would be conducted was also explained. The Court told the first applicant that if a decision were given at the conclusion of the hearing, and reasons given orally, that he could apply to the Court for a copy of the oral reasons to be reduced to writing.

12. Despite Court orders, no written submissions or additional material was provided to the Court in support of the application for judicial review. The first applicant told the Court in oral submissions that he had made every effort to do everything under his control. The first applicant stated that he had engaged a solicitor, Mr Chaudhry. Mr Chaudhry did not assist, as the first applicant had no money for his lawyer.

13. When asked about the reasons for the applicants’ non-attendance at the hearing, the first applicant stated that Mr Chaudhry did not inform him of the hearing date. It was pointed out to the first applicant that this was inconsistent with the material contained in his Affidavit, in which he stated that he was not well. No evidence was provided to support the claim that Mr Chaudhry did not tell the applicants’ of the hearing dates, nor was any evidence presented, to assist in relation to the claim that the first applicant was unwell.

14. At the conclusion of the first respondents’ oral submissions, the first applicant was again asked if there was anything that he wished to tell the Court. The first applicant stated that he did not wish to say anything further.

    THE FIRST RESPONDENT’S SUBMISSIONS

15. The legal representative for the first respondent noted that the applicants’ had appointed a Mr Chaudhry of MIC Lawyers, as their nominated representative. Accordingly, all correspondence was forwarded to Mr Chaudhry. Mr Chaudhry contacted the Tribunal the day before the nominated hearing date of 14 November 2019 and informed the Tribunal that he had been unable to contact the applicants’. Mr Chaudhry therefore stated that the applicants’:

    …would not attend the hearing date, as he is not in contact with us and therefore has no knowledge of the hearing date.

16. In initially dismissing the matter pursuant to s 379A of the Migration Act 1958 (Cth) (“the Act”), the Tribunal was satisfied that an invitation had been sent to the applicants’ authorised representative, and the representative had advised the Tribunal that he had been unsuccessful in contacting them.

17. The Tribunal found that there was no information before it, that the applicants’ contact details had changed and it was satisfied that appropriate endeavours to contact the applicants’ had been made. In these circumstances, it was appropriate to dismiss the application.

18. On 28 November 2019, the Tribunal confirmed the decision to dismiss the application, pursuant to s 362B(1)(e) of the Act. The Tribunal was satisfied that the applicants’ were properly notified of the dismissal decision and given an appropriate witness statement as their reinstatement rights.

19. As no application for reinstatement had been made within the 14 day period, it was appropriate to confirm the decision to dismiss the application. It was submitted in relation to ground one, which claimed that the applicants’ were not provided with procedural fairness, that the Tribunal complied with all procedural fairness obligations contained in Part 5 of Division 5 of the Act. In the absence of any particulars of an alleged breach of those requirements of procedural fairness, this ground must fail.

20. Ground 2 alleges that the decision to dismiss the review was unreasonable and therefore erroneous. The first respondent notes that this ground does not contain particulars and has not been explained by way of written submissions. The onus of establishing unreasonableness is on the applicants’; (see BVD17 v Minister for Immigration and Border Protection (2018) FCAFC 114).

21. Second, the impugned decision was made under s 362B(1)(e) of the Act. Under this provision, the Tribunal must confirm a decision to dismiss an application if no application for reinstatement is made. There is no discretion to be exercised by the Tribunal, so there is no implied requirement of legal unreasonableness; (see Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) FCCA 273).

    CONSIDERATION

22. The Court firstly notes that the applicants’ were properly advised of the time, date and place of the hearing via a letter sent to their nominated representative, Mr Chaudhry. The Court is satisfied that the Tribunal complied with its procedural requirements in notifying the applicants’ of the time, date and place of the hearing.

23. The Court notes that Mr Chaudhry contacted the Tribunal the day before the hearing to advise that he was unable to contact the applicants’, and that he nor the applicants’ would be appearing the following day. In these circumstances, when there was no appearance before the Tribunal, it is unsurprising that the Tribunal elected to dismiss the matter. The Court is satisfied that there was nothing legally unreasonable nor procedurally unfair in that decision.

24. The Court notes that no explanation has been put forward by the first applicant, supported by evidence, that he was unwell, as he claimed in his Affidavit, nor has he sought to rebut the allegation that Mr Chaudhry was unable to contact him. It was the applicants’ responsibility to stay in contact with their legal representative.

25. The Court is reasonably satisfied that the Tribunal notified the applicants’ of the dismissal decision, as required by s 365C(5) of the Act, together with their right to seek reinstatement of the matter. The Court is satisfied that the applicants’ did not seek a reinstatement. It is, again, unsurprising that the Tribunal elected to confirm the dismissal after the expiration of the 14 day period.

26. In terms of the first applicant’s Affidavit of 12 November 2019, if he was unwell, it was his responsibility to contact the Tribunal and seek an adjournment. The Court is satisfied that the first applicant, via his nominated representative, was properly informed of what he was to do if he was unable to attend the hearing due to illness.

27. The Court is satisfied that the Tribunal complied with all procedural requirements set out in the Act in dealing with this matter. Given that Part 5 of Division 5 of the Act is an exhaustive statement of the requirements of natural justice in relation to the matters it deals with, no procedural unfairness issues arise in the manner that the Tribunal dealt with the matter. Ground one has no merit.

28. Ground two alleges the decision to dismiss the matter was legally unreasonable. Ground two consists of a bland assertion without any particulars. In the absence of particulars, a bland assertion cannot constitute jurisdictional error; (see VZAVW v Minister for Immigration and Border Protection (2016) FCA 760 [35]). The decision to initially dismiss the application was within the legitimate decisional freedom of the Tribunal in these circumstances.

29. Given that there was no application for reinstatement, the Tribunal had no discretion other than to confirm the dismissal, and this was expressly authorised by the Act. Ground two has no merit.

    CONCLUSION

30. As the applicants’ are unrepresented, the Court has considered the decision record of the Tribunal, but is unable to detect any unarticulated jurisdictional error. Accordingly, both applications are dismissed.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       9 April 2021

Written Reasons for judgment requested on 6 April 2021 and published on 9 April 2021