Giri v MIAC

[2011] FMCA 282

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GIRI v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 282

MIGRATION – Review of Migration Review Tribunal (“Tribunal”) decision – cancellation of listed Tribunal hearing because applicant failed to answer statutory notice by specified deadline – whether in such circumstances Tribunal empowered to permit applicant to appear at hearing – whether in such circumstances Tribunal empowered to cancel hearing.

Migration Act 1958, ss.116, 359, 359A, 359C, 360, 363A, 474
Migration Regulations 1994, reg.2.43, item 8202 of sch.8

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Kumar v Minister for Immigration & Citizenship [2010] FMCA 614
Minister for Immigration & Multicultural & Indigenous Affairs v Sun (2005) 146 FCR 498
M v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 333
Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413

Applicant: SHIVA GIRI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2559 of 2010

Judgment of: Cameron FM

Hearing date: 13 April 2011

Date of Last Submission: 13 April 2011

Delivered at: Sydney

Delivered on: 28 April 2011

REPRESENTATION

Counsel for the Applicant: Mr J. R. Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the First Respondent: Ms R. Francois

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2559 of 2010

SHIVA GIRI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nepal. He was granted a Subclass 572 Vocational Education and Training Sector visa on 27 May 2008 and arrived in Australia on 21 July 2008. On 20 August 2010 the applicant’s visa was cancelled by a delegate of the first respondent (“Minister”) because he had breached one of its conditions, namely, condition 8202. The applicant sought review of that decision with the Migration Review Tribunal (“Tribunal”) but was unsuccessful and has now applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant law

1. Item 8202 of sch.8 to the Migration Regulations 1994 (“Regulations”) sets out one of the conditions with which the holder of a Subclass 572 Vocational Education and Training Sector visa must comply. Under s.116 of the Act the Minister has the power to cancel a visa if its holder has not complied with a condition of that visa. Regulation 2.43(2) of the Regulations sets out the circumstances for the cancellation of a visa pursuant to s.116(3).

2. Section 359C of the Act concerns the Tribunal and provides:

   359C Failure to give information, comments or response in response to written invitation

   (1)     If a person:

   (a)is invited in writing under section 359 to give information; and

   (b)does not give the information before the time for giving it has passed;

   the Tribunal may make a decision on the review without taking any further action to obtain the information.

   (2)     If the applicant:

   (a)is invited under section 359A to comment on or respond to information; and

   (b)does not give the comments or the response before the time for giving them has passed;

   the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

3. Section 360 of the Act deals with an applicant’s right to appear before the Tribunal. It provides:

   360   Tribunal must invite applicant to appear

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)     Subsection (1) does not apply if:

   (a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c) subsection 359C(1) or (2) applies to the applicant.

   (3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

4. Section 363A provides:

   363A         Tribunal does not have power to permit a person to do something he or she is not entitled to do

   If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

   Both ss.360 and 363A are found in pt.5 of div.5 of the Act.

The Tribunal’s decision and reasons

1. The applicant’s student visa was cancelled on 20 August 2010 because he had failed to comply with its condition 8202 in that he had ceased to be enrolled in a registered course of study and this failure had not been caused by exceptional circumstances beyond his control. As noted earlier in these reasons, he applied to the Tribunal for a review of that decision.

2. On 21 September 2010, as part of its review, the Tribunal wrote to the applicant pursuant to s.359A of the Act and invited him to provide written comments on information that it considered would be part of the reason for affirming the decision under review. On 23 September 2010 the Tribunal wrote to the applicant again, this time inviting him to appear before it on 14 October 2010 to give evidence and to present arguments relating to the issues arising in relation to his case.

3. The s.359A notice of 21 September 2010 required that any response which the applicant wished to make to it had to be made by 28 September 2010. The applicant did not provide a response by the specified deadline and this led the Tribunal to conclude that, by reason of s.360(3), he was not entitled to appear before it at the hearing which had been notified in the letter of 23 September 2010. By a further letter, dated 29 September 2010, the Tribunal advised the applicant that the hearing which it had previously notified was cancelled although subsequently it did allow him to provide further written arguments and submissions.

4. The Tribunal found that the applicant was not enrolled in a registered course and had ceased to be enrolled in a registered course on 5 March 2010. It found that he had therefore not complied with condition 8202(2)(a), that a ground existed for the cancellation of his visa under s.116(1)(b) of the Act and that the non-compliance was not due to exceptional circumstances beyond his control. It affirmed the decision to cancel his visa.

Proceedings in this Court

1. The amended application in these proceedings alleges that:

   1.On 29 September 2010, the Second Respondent cancelled the hearing scheduled before the Second Respondent on 14 October 2010 (“the Tribunal hearing”) and thereby:

   (a)          Erred jurisdictionally or made jurisdictional error;

   (b)          Acted ultra vires;

   (c)          Denied the Applicant natural justice;

   (d)          Denied the Applicant procedural fairness;

   (e)      Denied the Applicant the opportunity to be heard; and/or

   (e)(a) Denied the Applicant his statutory entitlement to a hearing in accordance with s360 of the Migration Act 1958

   (f)      Failed to take into consideration relevant information and consideration in arriving at its decision on 5 November 2010.

2. By the time of the hearing the applicant’s case was confined to the question whether the Tribunal’s decision was affected with jurisdictional error by reason that it had proceeded to make that decision without affording him the opportunity to appear before it to give evidence and present arguments.

3. The applicant submitted that the Court should be guided by the reasons for decision in Kumar v Minister for Immigration & Citizenship [2010] FMCA 614 where it was found that the Tribunal had erred in concluding, by reference to ss.360(3) and 363A, that Mr Kumar had lost his entitlement to appear before the Tribunal. As the applicant said in his written submissions, in Kumar it was found:

   … that the MRT made jurisdictional error because:

   a. Section 359C(2)(c) [sic] provides that the Tribunal may (where the applicant does not give a response in the time stipulated) make a decision on the review without taking any further action to obtain the applicant’s views.

   b.     If when the time passes, the applicant has already been issued with an invitation to appear, the Tribunal is not authorised to cancel an invitation already issued.

   c. Section 360(3) has no application because s360(2) only has the effect of relieving the Tribunal of its obligation to invite the applicant to appear in certain circumstances. Here, at the time of the invitation:

   ·    The MRT did not consider a favourable decision could be made on the papers.

   ·    There was no issue arising under section 359C as the time for giving information has not yet passed. (emphasis included)

4. The applicant submitted that regard should also be had, as was identified in Kumar, to the fact that s.360 is a central element of the review process and a fundamental guarantee of procedural fairness.

5. It can be accepted that s.360 is, indeed, an essential element of the Tribunal’s review process, as codified in div.5 of pt.5 of the Act, and is also a fundamental element of the procedural fairness rights which the Act provides to applicants who apply to the Tribunal for review of MRT-reviewable decisions. Nevertheless, that statutory right can be affected by other provisions of the Act.

6. In Kumar, Driver FM said:

   It is true that s.360(3) states that an applicant is not entitled to appear before the Tribunal if s.360(2) applies. However, as I have already noted, s.360(2) bears on the obligation to [sic] the Tribunal to invite an applicant to a hearing, not on any power or obligation to conduct a hearing to which an applicant is invited. It is also true that s.363A provides that the Tribunal does not have the power to permit a person to do something that he or she is not entitled to do. It follows that if the Tribunal is not authorised to issue a hearing invitation, and an applicant is not entitled to attend the hearing, then the Tribunal has no discretion to issue an invitation or permit such attendance. It does not follow, however, in my view that an applicant is not entitled to attend a hearing to which he or she has been lawfully invited… (at [50]) (emphasis added)

   His Honour went on to say:

   Sections 360(3), 359C and 363A read in combination are a punitive restriction on a fundamental element of the review process. Having that character, the sections should be interpreted strictly. In my view, on a strict reading of those sections, the Tribunal is not prevented from issuing a hearing invitation before the time for compliance with an invitation to comment or request for information has expired, and after that period has expired, while the Tribunal would be prevented from issuing a further hearing invitation, it is not required to cancel a hearing to which an applicant had already lawfully been invited. (at [53])

7. His Honour distinguished the Federal Court decisions of Minister for Immigration & Multicultural & Indigenous Affairs v Sun (2005) 146 FCR 498, M v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 333 and Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413 on the basis that those cases were concerned with the inability of the Tribunal to invite an applicant to attend a hearing where there had been a failure to respond to a s.359 or a s.359A notice within the prescribed period and were not concerned with the Tribunal’s cancellation of a hearing to which the applicant had already been validly invited.

8. With respect, I cannot agree with the analysis of the operation of the relevant provisions set out in Kumar. In my view, s.360(3) operates independently of the Tribunal’s obligation under s.360(1) to invite an applicant to a hearing. Although s.360(2) affects the operation of both s.360(1) and (3), it does not have the effect of linking the operation of those two subsections which are concerned with distinct, if related, matters. If any of the circumstances described in s.360(2) exist then two consequences flow: first, the Tribunal is not obliged to invite an applicant to a hearing and, second, an applicant is not entitled to appear before the Tribunal. These are different concepts. In particular, s.360(3) can operate even if the Tribunal has already issued a valid hearing invitation.

9. It was said in Kumar that although the consequence of a failure to respond to a s.359A notice is that “the Tribunal may make a decision without taking any further action to obtain the applicant’s views on the information”, s.359A does not authorise the Tribunal “to make a decision without having regard to action already taken to obtain the applicant’s views on the information” (at [49]) (emphasis included). In that case, the action “already taken” was identified to be ss.359 and 359A requests and a hearing invitation which had been issued to Mr Kumar.

10. Although it was said in Kumar that ss.360(3) and 363A do not operate to deprive an applicant of the benefit of a hearing invitation which has lawfully been issued, in my view that is exactly how the two provisions do operate. Section 360(3) is unconcerned with whether a hearing invitation has been issued or not, its sole concern being to prevent the applicant from attending a hearing. Because s.360(3) removes any entitlement to attend a hearing, s.363A has the effect of preventing the Tribunal from permitting the applicant to attend a hearing.

11. In this case, the applicant’s failure to respond to the Tribunal’s s.359A notice had the effect of attracting the cascading operation of ss.359C(2), 360(2)(c) and, critically, s.360(3) which enlivened the application of s.363A with the effect that he was not entitled to appear before the Tribunal: Hasran at 417 [27] and [28].

12. The applicant submitted that Tracey J’s decision in M’s case was authority for the proposition that the Tribunal does not have power to cancel a hearing to which a valid invitation has been issued. In that case the Tribunal invited the applicant to a hearing, then vacated that date and then issued a s.359 notice requesting further information from the applicant. That notice imposed a deadline for reply which the applicant failed to observe and the Tribunal proceeded to determine the review application without permitting the applicant to appear before it. It did this on the basis that, pursuant to s.360(2)(c), the applicant was not entitled to appear and that, pursuant to s.363A, he could not be permitted to appear. The applicant referred to an argument advanced in M’s case that the Tribunal did not have the power to cancel the oral hearing which it had scheduled and submitted that Tracey J implied that this submission was correct. I do not agree that such an implication can be discerned in his Honour’s reasons. Tracey J did not need to decide whether the submission in question was correct because he concluded, on the facts, that the Tribunal had not actually cancelled the hearing, merely postponed it pending the receipt of further information.

13. Nevertheless, M’s case does have important relevance to this matter. Although it was said in Kumar that M’s case was distinguishable from the circumstances in the matter then before the Court, whose facts are similar to the facts in this case, a closer analysis of the cases does not bear out this conclusion. In both Kumar and this case the Tribunal issued a hearing invitation at a point prior to the respective applicants’ failures to respond to the Tribunal’s notices within their stipulated time limits. In each case the Tribunal concluded, in light of the applicant’s failure to respond to the notice, that the combined effect of ss.360(3) and 363A was that the applicant was no longer entitled to appear before it and, on that basis, it cancelled the hearings. In M’s case, the Tribunal had issued a hearing invitation at a point prior to the applicant failing to respond to the Tribunal’s notice within its stipulated time limit. Again, the Tribunal concluded that in light of the applicant’s failure to respond to the notice the combined operation of ss.360(3) and 363A had the effect of preventing the applicant appearing at a hearing before it.

14. The only relevant difference between the cases is that in M’s case the Tribunal did not take the additional step of advising the applicant that it was not proceeding with a hearing and it can be assumed that it did not take that step because, by the time the applicant failed to comply with the s.359 request, the hearing date which had originally been advised had been vacated so there was no hearing date whose cancellation needed to be advised. In Kumar and in this case, there had been no such postponement of the hearing and thus it was necessary for the Tribunal to let the applicant know in each case that the hearing which had been advised would not be proceeding.

15. In Kumar, and in this case, the Tribunal’s advice that the hearing was cancelled was no more than an administrative manifestation of the outcome produced by the combined operation of ss.360(3) and 363A. It did not represent the Tribunal being “required to cancel the hearing” but was simply a recognition of the fact that the hearing could not proceed because the applicant was, by force of the operation of the Act, not permitted to attend it.

16. Far from being distinguishable, the facts in M’s case are relevantly identical to the facts in this case. As a consequence, with respect I agree with Tracey J’s conclusion that:

    When that information was not suppled in a timely manner the Tribunal was deprived of any power to conduct the hearing by operation of the Act (at 348 [57])

    and am of the view that it is applicable to this matter.

17. Further, although the facts in Hasran’s case were different to the facts in this case, in that a hearing invitation had not been issued, their Honours’ reasoning need not be confined to the facts of that case and, with respect, provides important guidance to this Court in deciding this matter. I have concluded that, even though the applicant in this matter had been issued with a hearing invitation prior to his failure to comply with the s.359A notice, once he did fail to respond to that notice:

    The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing. (Hasran’s case at 417 [29])

18. In the circumstances, the Tribunal was required in the present case to deny the applicant a hearing before it, even though it had initially invited him to one.

Conclusion

1. For these reasons, I find that jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date:  28 April 2011