Haq v Minister for Immigration
[2018] FCCA 683
•26 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAQ v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 683 |
| Catchwords: MIGRATION – Application to review decisions of the Administrative Appeals Tribunal under ss.362B(1A)(b) and 362B(1E) of the Migration Act 1958 (Cth) – whether legal unreasonableness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360, 360A, 362B, 362C, 379A, 379C, 379G, 477 Migration Amendment (Protection and Other Measures) 2015 (Cth) |
| Cases cited: AXI15 v Minister for Immigration and Border Protection [2016] FCA 1316 |
| Applicant: | MAZHARUL HAQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2906 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 14 June 2017 |
| Date of Last Submission: | 3 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2906 of 2015
| MAZHARUL HAQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
On 26 February 2015 the Applicant lodged an application for a Student (Temporary) (Class TU) visa. At the time of the visa application he held a bridging visa. His last substantive visa had ceased on 15 March 2014.
On 19 March 2015 a delegate of the First Respondent refused to grant the Applicant a student visa as he had not applied for the visa within 28 days of his last substantive visa having ceased and hence did not satisfy the then applicable reg.573.211(3) in Schedule 2 to the Migration Regulations 1994 (Cth).
On 9 April 2015 the Applicant sought review by the Administrative Appeals Tribunal (the Tribunal). In his review application he appointed a registered migration agent, a Mr Li of Parish Patience Immigration, as his authorised recipient. He provided contact details for Mr Li and also provided his own contact details, including his mobile telephone number.
By letter dated 28 July 2015 the Tribunal invited the Applicant to attend a hearing on 1 September 2015.
The Applicant’s authorised recipient confirmed the hearing date and time with the Tribunal on 28 July 2015. He also contacted the Tribunal on 14 August 2015 foreshadowing the provision of a response to hearing invitation. On 20 August 2015 another person from Parish Patience Immigration emailed the Tribunal on behalf of Mr Li enclosing a response to hearing invitation form. On 26 August 2015 a secretary at Parish Patience emailed an amended response to hearing invitation form to the Tribunal which asked it to take oral evidence from two named witnesses at the hearing.
As recorded in Tribunal case notes tendered by the Minister in the course of these proceedings, the Tribunal sent SMS hearing reminders to Mr Haq’s mobile telephone number on 25 August 2015 and 31 August 2015.
Mr Haq did not appear at the Tribunal hearing on 1 September 2015.
The Non-Appearance Decision
The Tribunal made the first of the decisions that is the subject of these proceedings on 1 September 2015 at 11:42am. It described this decision as the “non-appearance decision”. The Tribunal dismissed the Applicant’s application under s.362B(1A)(b) of the Migration Act 1958 (Cth) (the Act).
In its statement of decision the Tribunal stated:
The review applicant was invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on (sic) 9.30am but did not appear at the scheduled time and place. 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.
The Tribunal notes that the applicant’s migration agent had attempted to contact the applicant but was unable to do so.
A notification and copy of the Tribunal’s non-appearance decision was sent to Mr Haq by email of 1 September 2015 to his authorised recipient Mr Li at the email address provided. The notification letter recorded that as Mr Haq had failed to attend the scheduled hearing the Tribunal had decided to dismiss the application and, relevantly, advised him “[y]ou may apply to us, in writing, for reinstatement of the application by 16 September 2015” (emphasis in original).
In addition, the email to Mr Li stated “[p]lease note the Tribunal Member has advised that he may have given you the incorrect timeframe of 28 days to set the decision aside. This information is in fact incorrect with the correct period being 14 days and not 28 days.”
Included with the letter of 1 September 2015 was a copy of a Tribunal information sheet about dismissal of applications which advised that within 14 days after receiving notice of the dismissal an applicant may apply in writing for reinstatement, but that if an applicant failed to apply for reinstatement within the 14 day period the Tribunal “must confirm the decision to dismiss the application”, that if a decision was confirmed it was taken to be affirmed so that the Department’s decision would remain in force and that if an applicant thought the decision was wrong in law he or she could consider seeking review in the Federal Circuit Court, but must do so within 35 days of the date of the decision.
The Confirmation Decision
On 22 September 2015 the Tribunal confirmed the decision to dismiss the application. This decision is also the subject of the these proceedings.
In brief reasons for decision the Tribunal referred to the nature of the application for review and to the fact that on 1 September 2015 it had dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it at the time and date of the scheduled hearing. It continued:
The review applicant was 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). The review applicant was 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.
As the review applicant did not apply for reinstatement of the application within the 14 day period, the Tribunal must confirm the decision to dismiss the application.
The Tribunal affirmed the decision under review.
These Proceedings
On 26 October 2015 the Applicant sought review of the confirmation decision dated 22 September 2015.
When the matter came before me for hearing I raised with counsel for the Respondents the issue of whether the Tribunal’s non-appearance decision of 1 September 2015 could also be considered in this context (see AYT16 v Minister for Immigration & Anor [2016] FCCA 2733 and AYT16 v Minister for Immigration and Border Protection [2017] FCA 252; (2017) 71 AAR 491). I gave the parties the opportunity to make submissions on this issue in circumstances where it became apparent that part of the Applicant’s concern was in relation to the non-appearance decision.
I subsequently gave the Applicant the opportunity to file an amended application to seek an extension of time under s.477 of the Act in relation to the non-appearance decision and, if granted, review of that decision as well as review of the confirmation decision. Mr Haq now relies on his amended application filed on 17 May 2017.
The Minister did not oppose an extension of time being granted in which to seek review of the non-appearance decision. I granted such an extension of time under s.477(2) of the Act.
Mr Haq, who is self-represented, was given various opportunities to file written submissions. He has not done so, although he made oral submissions. I have considered the grounds and issues raised in the application, the amended application and in oral submissions as well as the material before the court.
The original application did not contain any grounds, but merely referred to the Tribunal decision of 22 September 2015. Mr Haq sought additional time to finish his studies. This is not such as to establish any jurisdictional error.
Similarly, insofar as in the amended application Mr Haq reiterated his request for additional time to stay in Australia and continue his studies, this is not indicative of jurisdictional error, but rather seeks impermissible merits review.
Unreasonableness
The ground in the amended application is as follows (errors in original):
‘UNREASONABLE’ decision on 1st september, where I indicated that I’d turn up which I couldnt due to medical issue (medical certificate submitted via Representative) and my representative turned up and tribunal made the decision at 11.40am on that respective day without any further information
In support of his application for an extension of time Mr Haq also expressed the view, without explanation, that the Tribunal’s non-appearance decision of 1 September 2015 was “not satisfactory”.
In oral submissions Mr Haq stated that he understood that his hearing was on 1 September 2015 and that he had said he would attend the hearing, but that due to medical reasons he could not do so. He obtained a medical certificate and sent it to Parish Patience by email. He claimed his agent said he would send the certificate to the Tribunal and ask for a reinstatement date. Mr Haq claimed that his agent had been told he had to apply for reinstatement within 28 days, when the time was only 14 days. He had not made any reinstatement application. Mr Haq claimed that on 22 September 2015 he was advised by an employee of Parish Patience that his Tribunal application had been unsuccessful.
Mr Haq also claimed that he had a copy of his email of 1 September 2015 sending his medical certificate to Parish Patience and that there were other emails between himself and Parish Patience on which he sought to rely. He was given the opportunity to file such evidence after the hearing in circumstances where it was not entirely clear when he sent the medical certificate to his agent, whether an adjournment of the Tribunal hearing of 1 September 2015 had been sought or whether the issues he canvassed raised any allegation of fraud on the part of his migration agent in the sense considered in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189. Mr Haq filed an affidavit affirmed on 3 July 2017 annexing copies of a medical certificate, prescription and imaging request dated 1 September 2015 and of email correspondence with Parish Patience.
As discussed below, it is now clear from the material before the court and the submissions that there is no suggestion of dishonest conduct or fraud on the Applicant or on the Tribunal on the part of the Applicant’s migration agent. Taken at its highest, the Applicant’s concern in this respect appears to be that an error may have been made by his migration agent or his former lawyer at Parish Patience in relation to the time within which a reinstatement application had to be made.
In this case the Tribunal utilised the procedure in s.362B of the Act introduced by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) (the 2015 Act). As the First Respondent submitted, it was open to the Tribunal to take this approach in relation to a matter in which the invitation to a hearing was made after 18 April 2015 (see Item 34 of Schedule 4 to the 2015 Act).
Section 362B of the Act provides:
Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.
Note: Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C) 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.
Note 1: Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E) If the applicant fails to apply for reinstatement within the 14 - day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.
Note: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
As indicated, by letter of 28 July 2015 Mr Haq was invited to a Tribunal hearing at 9:30am on 1 September 2015. The invitation was sent by email to the Applicant through his authorised recipient (Mr Li) at the email address provided in the review application (see ss.379A(5), 379C(5) and 379G of the Act).
The hearing invitation advised the Applicant as follows:
If you are not able to attend a hearing, you need to advise me 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 it (sic) or may dismiss your application for review without any further consideration of the application or the information before us.
While this part of the letter could have been expressed more clearly, on its face the invitation complied with s.360A of the Act. No issue was taken, and nor is any apparent, with the validity of the hearing invitation.
The evidence provided by Mr Haq after the hearing includes an email sent by him to Parish Patience at 2:56pm on 1 September 2015 attaching what were said to be all the papers given to him by the medical centre. These consisted of a medical certificate of that date indicating that Mr Haq was suffering from a migraine and would be unfit to continue his usual occupation from 1 to 2 September 2015, a prescription and an imaging request also dated 1 September 2015. However Mr Haq’s application had been dismissed by the Tribunal at 11:42am on 1 September 2015.
In other words, it is apparent that the medical certificate as to the reason the Applicant did not attend the hearing on 1 September 2015 was provided to Parish Patience after the time the Tribunal made its non-appearance decision. There is no evidence that Mr Haq or his agent sought any adjournment before or at the time of his hearing. There is no suggestion that Mr Haq’s migration agent was aware of the Applicant’s claimed ill-health or was in possession of the medical certificate at the time of the Tribunal hearing or prior to the time of its decision.
In light of the Applicant’s non-appearance the Tribunal was empowered under s.362B(1A)(b) of the Act to dismiss the application without any further consideration of the application or the information before it. It did so in accordance with the procedure in s.362C of the Act.
The non-appearance decision was taken to have been made by the making of the written statement referred to above on 1 September 2015 at 11:42am (see s.362C(3)). Under s.362C(4) the Tribunal had “no power to vary or revoke a non-appearance decision after the day and time the written statement [was] made”.
The Applicant asserted that the Tribunal had acted unreasonably in failing to grant an adjournment of the hearing on 1 September 2015 on the basis of medical evidence which he said he had provided to his migration agent. Had there been any application for an adjournment or medical evidence provided before the decision was made, it would have been necessary for the Tribunal to exercise its discretion in that respect reasonably in the sense considered in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. However this is not such a case. As indicated, there is no evidence that Mr Haq or his agent sought an adjournment of the hearing before the Tribunal made its decision of 1 September 2015. There is nothing in the material before the court to indicate that Mr Haq had provided any explanation for his non-appearance (whether to his agent or to the Tribunal) prior to the time of the Tribunal decision. He did not claim to have made any adjournment application or to have contacted the Tribunal before it made its non-appearance decision. There is no evidence to suggest that the Tribunal was made aware of any reason for the Applicant’s non-appearance before it made that decision.
Mr Haq had indicated in two response to hearing invitation forms that he would attend the hearing. The Tribunal considered Mr Haq’s non-appearance, but observed that it had no satisfactory reason for the non-appearance. This was in circumstances where, as indicated, the Tribunal had previously sent two text messages to the Applicant’s mobile telephone number (on 25 August 2015 and 31 August 2015) reminding him of the hearing date of 1 September 2015. It recorded that his agent had tried unsuccessfully to contact Mr Haq. While it had the power to adjourn the hearing, the Tribunal’s decision to proceed to dismiss the application in circumstances of the Applicant’s non-appearance and unexplained absence did not lack an evident and intelligible justification (see Li). The Tribunal was entitled to proceed on the basis of the information (and the lack of information) that it had before it at the time of the hearing on 1 September 2015.
The fact that the Applicant now has a medical certificate stating that he had a migraine on the day of the hearing does not warrant a finding that the Tribunal’s non-appearance decision was unreasonable in the sense discussed in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.
Moreover, this is not a case in which the Tribunal fell into error in failing to take further steps to contact the Applicant when he did not appear at the hearing before making its decision. It appears that his migration agent was either present at the hearing or, at least, was contacted by the Tribunal, given that the email of 1 September 2015 informed the migration agent that the Tribunal may have advised him of the wrong period of time for seeking reinstatement. The Tribunal also recorded in its decision of 1 September 2015 that the agent had attempted to contact the Applicant but was unable to do so.
There is no general duty on the Tribunal to inquire into the reasons for an applicant’s absence at a scheduled hearing to which he has been invited in accordance with the Act (as was the case in this instance). As the First Respondent submitted, the particular circumstances of the present case are plainly distinguishable from those considered by the Federal Court in AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383; (2015) 244 FCR 144 (and see AXI15 v Minister for Immigration and Border Protection [2016] FCA 1316 at [9] per Pagone J). Moreover the Tribunal had sent two SMS reminders directly to Mr Haq. His agent also attempted to contact him.
There is nothing in Mr Haq’s evidence or submissions that identifies any basis for a finding that the Tribunal’s decision to proceed to make the non-appearance decision was capricious, arbitrary, without common sense or plainly unjust as considered in Li at [28] and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]. I am not satisfied that it was legally unreasonable for the Tribunal not to adjourn the hearing in these circumstances or for it to make the non-appearance decision dismissing the application.
The notification of the Tribunal’s non-appearance decision of 1 September 2015 was sent by email to the Applicant’s authorised recipient on 1 September 2015. The written statement complied with s.362C of the Act. It recorded the decision, the reasons and the date and time of the statement. The Applicant was taken to have received that notification that day by reason of ss.379A(5), 379C(5) and 379G(2) of the Act, even if his agent did not send him a copy of the decision until a later date. No jurisdictional error has been established in relation to the non-appearance decision or the Tribunal proceeding in the manner that it did.
Issues in relation to the Confirmation Decision
As advised in the notification of the non-appearance decision, it was open to the Applicant to apply to the Tribunal for reinstatement of his application under s.362B(1B) of the Act. He had 14 days after receiving notification of the non-appearance decision under s.362C to do so. While the email of 1 September 2015 from the Tribunal to the Applicant’s authorised recipient suggests that the Tribunal may initially have given the migration agent an incorrect timeframe of 28 days in which to seek reinstatement (presumably at the hearing), the correct date was specified in the letter to Mr Haq and in the accompanying information sheet as well as in the email itself, which was sent at 1:34pm on 1 September 2015.
The time limit on a reinstatement application runs from the time of deemed notification under s.379C(5) of the Act, not from the time the Applicant was actually made aware of or personally received a copy of the notification of the non-appearance decision. In any event, no application for reinstatement was made.
In essence, it appears that Mr Haq’s concern is that his authorised recipient (or, possibly, the late Mr Bitel, who was said to have been the lawyer at Parish Patience who had advised him) did not make an application to the Tribunal for reinstatement under s.362B(1B) of the Act.
However, as the Applicant failed to apply for reinstatement, under s.362B(1E) the Tribunal was required to confirm the decision to dismiss the application (see AYT16 v Minister for Immigration and Border Protection [2017] FCA 252; (2017) 71 AAR 491).
Insofar as Mr Haq took issue with the action, or inaction, of his authorised recipient or of his lawyer, such concerns do not establish fraud in the SZFDE sense or otherwise establish jurisdictional error on the part of the Tribunal. Taken at its highest, as indicated above, the Applicant’s concern is that those who were advising him either did not follow the requisite procedure or did not keep him informed.
In oral submissions Mr Haq appeared to indicate that he was made aware on 1 September 2015 that his application had been dismissed and that he understood his agent would seek reinstatement. By email of 15 September 2015 a representative of Parish Patience (other than the authorised recipient or Mr Bitel) notified the Applicant that they had received a decision from the Tribunal and that it had “dismissed the appeal”. This was a reference to the non-appearance decision as is clear from the date and the fact that the email also sent the Applicant a copy of the 1 September 2015 email from the Tribunal, including attachments. The Applicant was advised that “[a]ny appeal that you wish to make to the Federal Circuit Court or Minister, must be filed within 28 (sic) days from 1 September 2015”, notwithstanding that the information sheet provided with the non-appearance decision addressed both the possibility of seeking reinstatement within 14 days of notification and the 35 day time limit on seeking judicial review. The letter concluded by asking Mr Haq to telephone the firm or make an urgent appointment to discuss this with Mr Bitel or Mr Li.
While the absence of a reinstatement application may be of understandable concern to the Applicant (assuming, for present purposes, that he had given no instructions in that respect), there is nothing in the material before the court or in anything said by Mr Haq to raise any arguable case of fraud on the Tribunal in the sense considered in SZFDE or otherwise. There is no suggestion or evidence from which it could be inferred that the Applicant’s migration agent and/or lawyer failed to take steps to permit him to appear before the Tribunal with a view to benefiting themselves or shielding an association with the Applicant. Rather, what appears to be suggested is that an error may have been made by an individual in the firm as to the time limit required to seek reinstatement of a review application, possibly in reliance on what was first advised by the Tribunal. However if incorrect advice was initially given by the Tribunal, it was corrected in the notification of the non-appearance decision and accompanying email. While undoubtedly unfortunate, such incorrect advice does not establish any jurisdictional error on the part of the Tribunal. Nor do Mr Haq’s concerns about his agent’s failure to seek reinstatement, although these concerns may be matters he could raise with the Minister.
In circumstances where there was no application for reinstatement within the 14 days provided for in the Act the Tribunal was obliged to confirm the decision. It did so. It complied with the obligation to notify the Applicant of its decision in that respect. In such a case, as Perram J stated in AYT16, the Tribunal had no lawful ability to do otherwise than it did in its decision of 22 September 2015. By virtue of s.362B(1F) of the Act, the effect of the confirmation was that the decision of the delegate that was under review was taken to be affirmed.
No jurisdictional error has been established in relation to the confirmation decision or any associated procedures.
More generally, it has not been established that the Applicant was denied procedural fairness in a manner constituting jurisdictional error on the part of the Tribunal.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 26 March 2018
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