Hanspal v Minister for Immigration and Border Protection
[2018] FCA 1961
•6 December 2018
FEDERAL COURT OF AUSTRALIA
Hanspal v Minister for Immigration and Border Protection [2018] FCA 1961
Appeal from: Hanspal v Minister for Immigration & Anor [2018] FCCA 1408 File number: NSD 1067 of 2018 Judge: GLEESON J Date of judgment: 6 December 2018 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia to dismiss application for judicial review of decisions of Administrative Appeals Tribunal to dismiss application for non-appearance and to refuse to reinstate application for review of decision to deny appellant a partner visa – no appellable or jurisdictional error identified – appeal refused Legislation: Migration Act 1958 (Cth) ss 362B(1A), 362B(1E), 363(1)
Migration Regulations 1994 (Cth) Sch 2 cl 820.211(2), Sch 3 criteria 3001, 3003 and 3004
Cases cited: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Date of hearing: 22 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Minter Ellison ORDERS
NSD 1067 of 2018 BETWEEN: SUKHWINDER SINGH HANSPAL
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GLEESON J
DATE OF ORDER:
6 DECEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GLEESON J:
This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing an application for judicial review in which two decisions of the second respondent (“Tribunal”) were the subject of challenge: Hanspal v Minister for Immigration & Anor [2018] FCCA 1408. In the Tribunal, the appellant had sought review of a decision of a delegate of the first respondent (“Minister”) refusing to grant the appellant a Partner (Temporary) (Class UK) visa (“partner visa”).
The first decision was a decision made on 4 March 2016 pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) (“Act”) to dismiss the appellant’s application for review due to the non-appearance of the appellant at the scheduled hearing (“dismissal decision”). The second decision was a decision made on 5 April 2016 pursuant to s 362B(1E) refusing to reinstate the application and to confirm the dismissal decision (“confirmation decision”).
The notice of appeal states the following two grounds of appeal, neither of which explicitly identifies an error on the part of the FCCA judge:
Ground 1: Jurisdictional error and lacked jurisdiction
The [appellant] asked for an adjournment of the [Tribunal] hearing as he needed to obtain further evidence to support his application. The Tribunal refused the adjournment resulting in jurisdictional error.
Ground 2: Procedural fairness
The [Tribunal] erred as to procedural fairness by failing to take into account [the appellant’s] request to adjourn the hearing. The Tribunal failed to assess the relevant material on logically probative and relevant materials.
The appellant did not file written submissions in support of his appeal. At the hearing of the appeal, the appellant represented himself with the assistance of a Punjabi interpreter.
BACKGROUND FACTS
The appellant is a citizen of India, who first arrived in Australia on 18 October 2006 on a student visa. Following his arrival in Australia, the appellant was granted three further student visas. His last student visa ceased on 19 September 2011. He lodged an application for a further student visa on 19 September 2011, but that application was unsuccessful.
The appellant married his sponsor on 11 June 2012, and claimed to have known her since 11 November 2011.
On 3 August 2012, the appellant applied for the partner visa. At [5] of his Honour’s reasons, The FCCA judge noted that there was no indication on the application form that the appellant had engaged a migration agent to assist him with the application. In particular, his Honour noted that the address given for correspondence on the application was the appellant’s residential address.
On an unidentified date, the appellant wrote to the Department seeking to “disclose some facts about what will be the reason for delaying my spouse visa application”. The letter referred to an application to the then Migration Review Tribunal (“MRT”) for review of the refusal of the further student visa application. It stated that, at this time, the appellant’s mail was going to an address in Blacktown, New South Wales but the appellant was living with his sponsor and her mother in St Mary’s, New South Wales. The letter referred to the appellant’s marriage on 11 June 2012 and a subsequent two week honeymoon driving around Australia. The letter stated that the MRT had refused the appellant’s review application on 12 June 2012 but the appellant did not learn about that decision until his return from the honeymoon on 29 June 2012. The letter explained that the appellant suffered a work injury on 30 June 2012, as a result of which he was taken by ambulance to Royal North Shore Hospital. The shock of the accident caused the appellant to forget to lodge his partner visa application until 3 August 2012. The letter was supported by medical evidence including a discharge referral note from Royal North Shore Hospital Emergency Department, and a medical certificate stating the appellant’s unfitness for work from 3 to 10 July 2012.
The Minister’s delegate refused the application on 26 September 2014 because, pursuant to cl 820.211(2)(d)(ii) of the Sch 2 to the Migration Regulations 1994 (Cth), it was necessary for the appellant to satisfy Sch 3 criteria 3001, 3003 and 3004, unless the Minister was satisfied that there were compelling reasons for not applying those criteria. The appellant did not meet criterion 3001, because his last substantive visa ceased more than 28 days prior to him lodging his partner visa application. The delegate was not satisfied that there were compelling reasons for not applying the Sch 3 criteria. The delegate was also not satisfied that the appellant was in a genuine spousal relationship with his sponsoring partner.
On 5 October 2014, the appellant applied to the Migration Review Tribunal for a review of the delegate’s decision. In that application, the appellant provided an address in Belconnen, in the Australian Capital Territory, and an email address. The FCCA judge noted, at [7] of his Honour’s reasons, that there was no indication that the appellant had engaged any migration agent to assist with the review application.
By letter dated 9 October 2015, sent by post to the Belconnen address, the Tribunal invited the appellant to attend a hearing before it on 25 November 2015. The letter informed the appellant that the Tribunal was unable to make a favourable decision on the information in the review application alone. The letter noted that the Tribunal may wish to take evidence from the appellant’s sponsor and asked the appellant to arrange for her attendance at the hearing. The letter also contained words to the effect that, if the appellant did not attend the scheduled hearing, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before it, or it might dismiss his application for review without any further consideration of the application or the information before it.
On 28 October 2015 the Tribunal wrote to the appellant advising him of the postponement of the hearing. By letter dated 3 February 2016, the Tribunal invited him to a rescheduled hearing on 3 March 2016. This letter reiterated the earlier request that the appellant arrange for the sponsor to attend the hearing.
On 25 February 2016, the Tribunal received a letter from the appellant requesting postponement of the hearing. The appellant explained that he had appointed a “Senior Migration lawyer”, Mr Bilal, as a “migration legal advisor” and paid him money, and had authorised him to “takeover the case and approach the concerned authorities on [his] behalf”. The appellant said he was therefore surprised to receive the “Tribunal’s letter” himself, because he had instructed Mr Bilal that further correspondence would go through him. The appellant said that he was now “standing empty handed” without “a single paper to produce to the Honourable Member of the Tribunal to prove [his] side of the story”. The appellant therefore asked for additional time to collect all the required documents before the Tribunal’s hearing. The appellant noted that, if the Tribunal was unable to postpone the hearing, it had “every right to do so and make a decision accordingly without listening or considering [his] version”. That letter stated the appellant’s address as the Belconnen address.
On 25 February 2016 an officer of the Tribunal telephoned the appellant three times. The first time, the officer left an “incomplete” voicemail message that the postponement request had not been granted. The second time, the officer spoke to the appellant to advise that the Tribunal had considered the request but decided not to grant the postponement. The officer told the appellant that the hearing would proceed as scheduled. The appellant said that there was no point attending the hearing because he had given all of his documents to his migration agent (whom he could not contact), and he would not be able to produce a single document to the Tribunal. The officer conferred with the Tribunal and called the appellant a third time, advising that the hearing would proceed but the appellant would be allowed further time to provide further submissions in relation to his application. The appellant said that there was no point in his attending the hearing if he could not provide any documents in relation to his claims. The officer told the appellant that he can attend the hearing and discuss his issues with the Tribunal.
On 25 February 2016, the Tribunal also wrote to the appellant by email (to the email address) and by post (to the Belconnen address) confirming that the postponement had been refused and confirming the hearing details. For a third time, the Tribunal requested that the appellant arrange for the sponsor to attend the hearing.
On 26 February 2016, the appellant telephoned the Tribunal to state that he would be submitting another postponement request, as he wanted more time to get his supporting paperwork together. The Tribunal officer advised the appellant that at that stage the hearing would proceed, and that he was welcome to submit a further postponement request but it may not be granted because the previous request for the same reason was denied.
On 28 February 2016, the appellant wrote to the Tribunal by email. The appellant reiterated his complaints about Mr Bilal, and stated that he did not have any other reason for the Tribunal to grant him an extension. The appellant further stated that if the Tribunal was “not Convinced with [his] Excuse to grant me Extension they can go ahead and continue the course of action and make their decision because if I am not able to convince the officers via this email I am sure I won’t be able to express my self in person” (errors in original).
By letter dated 29 February 2016, sent by email (to the email address) and by post (to the Belconnen address), the Tribunal advised that the postponement had been refused and confirmed the hearing details. That correspondence contained the same information that was in the 25 February 2016 letter.
On 1 March 2016 the appellant wrote to the Tribunal by email and stating his belief that his application had been reviewed “‘by some computer generated program”‘. Relevantly, the appellant stated:
All I was and am requesting you to kindly grant me extension so I can collect the required additional paperwork so that I can convince the tribunal that my relationship is genuine and I am eligible for the visa application.
But I believe I am dealing with a computer generated application which keep on sending me same reply against and again, where I have been considered as an Robert there is not sentimental understanding to how to treat another human’.
[errors in original]
The appellant did not attend the hearing scheduled for 3 March 2016.
As a result of the appellant’s failure to attend the hearing, on 4 March 2016 the Tribunal made the dismissal decision. The Tribunal sent a copy of that decision by way of letter dated 4 March 2016 to the Belconnen address. The reasons for the decision stated:
The [appellant] was invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 3 March 2016 at 15:00 but did not appear at the scheduled time and place.
The applicant requested that the hearing be adjourned twice based on his claim that his representative had disappeared without trace along with the information he provided him. The Tribunal requested twice that he attend the hearing and, if necessary, additional time would be granted for him to provide further submissions. The applicant informed that he would appoint a new representative. The Tribunal then requested him to provide a new Appointment of Representative form.
As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
Accompanying the 4 March 2016 letter was an information sheet titled ‘“Information about dismissal of applications – MR Division’“, which stated, inter alia:
What happens if an application is dismissed?
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
On 15 March 2016 the appellant sent an email to the Tribunal titled ‘“Request to review my application”. The email concluded by saying:
I hope you understand my situation and will allow me to recollect all the required documents and submit them so you can make final decision on our marriage Visa petition.
If the Tribunal grant me extension I shall be highly thankful for this kind act.
On 5 April 2016 the Tribunal made the confirmation decision. The Tribunal took the appellant’s email received on 15 March 2016 to be an application for reinstatement of his application but found that it was not appropriate to reinstate the application (para 4 of decision record). The Tribunal noted (para 5 of decision record) that the appellant had made two postponement requests on the basis that his representative had disappeared without a trace along with the information provided by the appellant to him. It noted (para 6 of decision record) that it understood the appellant’s situation, but had requested that the appellant attend the hearing anyway to enable the Tribunal to question him about his circumstances and take oral evidence. The Tribunal also noted that it had informed the appellant that additional time could be granted after the hearing to provide further information. Nonetheless, the appellant did not appear at the hearing.
The Tribunal noted (paras 7 and 8 of decision record) that the appellant had indicated that he would appoint a new representative, but had not provided any additional information as at the time of decision. The Tribunal considered the appellant’s reasons provided in connection with the reinstatement application and also prior to the hearing as to his intentions not to appear (at para 9 of decision record). The Tribunal noted that it had requested that he attend the hearing and the appellant had chosen not to. In those circumstances the Tribunal considered it was not appropriate to reinstate the application.
Accordingly, the Tribunal confirmed the dismissal decision.
FCCA PROCEEDING
The appellant represented himself in relation to his application to the FCCA.
At [4] to [30] of his Honour’s reasons, the FCCA judge set out relevant facts leading up to the Tribunal’s decisions and summarised the Tribunal’s reasons.
At [31] to [34], his Honour identified the grounds of review, some procedural matters and summarised the appellant’s complaint.
At [35] and following, the FCCA judge considered the relevant statutory framework and identified that the appellant’s submissions were directed to the dismissal decision as well as the confirmation decision. At [61], his Honour concluded that it was appropriate in the relevant circumstances to consider whether either of the dismissal decision or the confirmation decision was affected by legal unreasonableness.
At [63] of his Honour’s reasons, the FCCA judge observed that the complaint raised by the appellant was essentially directed to one issue being the Tribunal’s decision not to “postpone” the hearing. At [64], his Honour noted that the reason advanced by the appellant were that his migration agent had all his documents and he was unable to attend the Tribunal hearing without them.
At [65], the FCCA judge concluded that the Tribunal’s decisions were not unreasonable because:
(1)the appellant was not unaware of the hearing date, and it was not the case that he failed to attend because of some mistake, misadventure or medical or similar difficulty ([66]);
(2)the sole reason the appellant did not want to attend was because he did not have his documents ([67]);
(3)the appellant was told on two occasions by the Tribunal that he could still come to the Tribunal hearing to give oral evidence and that further time would be given to him to provide the relevant documents after the hearing ([68]);
(4)the appellant was on notice from the Tribunal’s various communications that a failure to attend may well result in an unfavourable outcome for him ([68]); and
(5)the appellant had made an unreasonable election not to attend the Tribunal hearing and that election led to the dismissal decision ([70]).
At [71], the FCCA judge referred to the appellant’s submission that it was not possible for him to attend the Tribunal without documentation and noted that why this was the case was never satisfactorily explained.
At [77], his Honour rejected a contention that the appellant was denied procedural fairness noting, at [79], that the appellant was invited to a hearing in a manner which complied with the relevant statutory requirements.
At [78], his Honour noted that there was nothing in the evidence to indicate that the Tribunal had misunderstood or misapplied the relevant statutory requirements. Thereafter, the FCCA judge gave further reasons for concluding that the decisions of the Tribunal were not unreasonable.
Accordingly, his Honour dismissed the application with costs.
APPEAL TO THIS COURT
Appellant’s oral submissions
At the hearing before this Court, the appellant reiterated his complaint that the Tribunal had acted unfairly in not adjourning its hearing to provide him with time to locate supporting documents to replace those held by Mr Bilal, his former migration agent. He also noted the difficulties he has faced, including in obtaining new legal representation, because of the financial hardship resulting from his lack of a right to work in Australia.
First ground of appeal: jurisdictional error and lack of jurisdiction
The principal issue is whether the Tribunal committed a jurisdictional error in refusing to postpone its hearing in response to the appellant’s request based on his wish to obtain further evidence to support his application, following the disappearance of his agent.
The Tribunal has power to adjourn a review from time to time under s 363(1)(b) of the Act. Its statutory discretion to adjourn the review must be exercised reasonably: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [23]-[26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88]-[89] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [58].
The FCCA judge addressed this issue and concluded that there was no jurisdictional error. In my view, the FCCA judge was correct for the reasons given by his Honour set out above at [32].
Although the appellant asserted to the Tribunal that there was “no point” in a hearing without documents, that was evidently not the case. As the Tribunal told the appellant, he could still give oral evidence (as could his sponsor). The Tribunal told the appellant that he would be given further time to provide relevant documents after the hearing. In those circumstances, the claimed lack of documents did not provide a credible basis for refusing to attend the hearing.
Specifically, I agree with the FCCA judge’s conclusion at [70] of his Honour’s reasons that the appellant had made an election not to attend the Tribunal hearing and that election led to the dismissal decision.
In the absence of any other basis for the contention that the Tribunal lacked jurisdiction, that contention also fails and the first ground of appeal fails.
Second ground of appeal: denial of procedural fairness
The appellant did not raise any separate issue to contend that he was denied procedural fairness by the Tribunal.
The FCCA judge was correct to conclude that there was no denial of procedural fairness in the circumstances of this case. The Tribunal gave the appellant a reasonable opportunity to participate in its review of the delegate decision by providing a hearing which the appellant elected not to attend, despite the refusal of his adjournment requests in circumstances in which it had been explained to him that the hearing could occur without the documents that he sought to obtain because he (and his sponsor) could give oral evidence and he would be given further time to provide the documents to the Tribunal.
CONCLUSION
The appeal must be dismissed. Costs should follow the event.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate:
Dated: 6 December 2018
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