Haque v Minister for Immigration

[2013] FCCA 1275

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAQUE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1275

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error. 

Legislation:
Migration Act 1958 (Cth), ss.353, 360, 360A, 362B, 363, 379C

Migration Regulations 1994 (Cth), regs.4.21, 572.223

Cases cited:

Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39

Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41

Singh v Minister for Immigration and Citizenship [2013] FCA 669

Applicant: MOLLAH FARHANUL HAQUE

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 463 of 2013

Judgment of: Judge Barnes

Hearing date: 8 August 2013

Delivered at: Sydney

Delivered on: 8 August 2013

REPRESENTATION

Applicant: In person

Counsel for the Respondents: J Knackstredt

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Multicultural Affairs and Citizenship’.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,900.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 463 of 2013

MOLLAH FARHANUL HAQUE

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal dated 12 February 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Student Temporary (Class TU) visa. 

2. The Applicant applied for the visa in question on 30 April 2010.  He provided a submission and some supporting documents in support of that application.  It appears from the documentation and the delegate’s decision that he did not provide a current certificate of enrolment.  On 10 August 2010 a delegate of the First Respondent refused his application for a student visa. 

3. In the decision record the delegate recorded that the Applicant did not meet the criteria for any of the subclasses within Class TU, in particular he did not satisfy reg.572.223(2)(a) of the Migration Regulations 1994 (Cth) in relation to the financial requirements of the grant of a Subclass 572 visa.

4. The delegate referred to the fact that on 4 May 2010 the Applicant had been requested to provide specified information about funds available from an acceptable source to meet the costs of his proposed stay in Australia as required under the Migration Regulations, including the amount required and evidence that such money had been held in an acceptable account for a period of six months prior to the visa application. On 4 June 2010 the delegate advised the Applicant that the amount held was insufficient. The Applicant provided another bank account statement. The department obtained advice from the Australian High Commission in Bangladesh that two of the bank statements the Applicant had provided were fraudulent.

5. The Applicant sought review by the Migration Review Tribunal on 3 September 2010.  At that stage he had a nominated migration agent acting as his authorised recipient.  On 6 September 2010 the Tribunal wrote to the Applicant c/- his authorised recipient acknowledging receipt of the review application.  It pointed out, among other things, that if the Applicant wished to provide material or written arguments for the Tribunal to consider he should do so as soon as possible.

6. Some considerable time later, on 14 December 2012, the Tribunal wrote to the Applicant c/- his authorised recipient inviting him to attend a Tribunal hearing on 12 February 2013.  Such letter gave the Applicant a greater period of notice than is required under the Migration Act 1958 (Cth) and the Regulations (see ss.360, 360A and 379C(4) of the Act and reg.4.21 of the Migration Regulations)

7. In addition, the Tribunal also invited the Applicant to provide specified information which it set out in detail with an explanation about its relevance. In particular the Tribunal asked the Applicant to provide a current certificate of enrolment as required under the Regulations as well as evidence of his academic achievements and past enrolment in Australia and current evidence that he satisfied the English language, financial and other requirements set out in Schedule 5A to the Migration Regulations. The Tribunal drew the Applicant’s attention to aspects of these requirements and the manner in which the Tribunal would assess his financial capacity, pointing out that he may be required to show a savings history for six months prior to the date of his visa application. The Tribunal specified the ways in which such evidence might be provided. It attached relevant extracts of the Regulations for the benefit of the Applicant.

8. The Tribunal invited the Applicant to provide this information as soon as possible, but no later than 14 calendar days prior to the hearing date.  It indicated that it would seek to make a decision at the conclusion of the hearing.

9. In other words, the Tribunal not only specified that the requested information should be provided as soon as possible, it also gave a specified date by which it had to be provided (that is, 14 calendar days prior to the hearing which had been set for 12 February 2013).  The Tribunal noted that the delegate had first requested this information on 4 May 2010 and that there were difficulties with and insufficiencies in the information provided by the Applicant to the delegate.

10. The Tribunal also advised:

    If you are unable to provide this information by the due date, the Tribunal will require good reason to grant additional time.

    In addition the Tribunal advised the Applicant that it would only change the hearing date for good reason and that he should contact the Tribunal immediately if he was unable to attend on that date.  Finally, it informed him that if he failed to attend the hearing the Tribunal may make a decision without taking any further action to allow or enable him to appear before it.

11. There is no suggestion, and nor is it apparent that the Tribunal failed to comply with the requirements of the Migration Act in relation to the invitation to a hearing (see s.360 and s.360A of the Act).

12. Relevantly, on 7 January 2013 the Tribunal received a letter from the Applicant advising that he had received the hearing invitation documents and enclosing a change of contact details form.  The Applicant asked that all future correspondence be sent to the address provided in that form. 

13. In his change of contact details form the Applicant provided a residential address as his postal address, a mobile telephone number and an email address.  He indicated that he wanted all correspondence sent to him.  He withdrew the previous authorisation of his migration agent. 

14. On 6 February 2013 the Tribunal received a letter dated 4 February 2013 from the Applicant.  It referred to the scheduled hearing date of 12 February 2013 and stated relevantly:

    Please be advised that I am unable to attend the hearing due to my health condition.  I have been feeling unwell.  I have visited the doctor as well.  Please find the attached doctor’s letter. 

    In addition, I am still in progress to collect relevant documents to submit before the Tribunal. 

    Therefore, I humbly request for an extension of 8 weeks time and to reschedule the hearing date.

15. Attached to this letter was a copy of a document dated 3 February 2013 on letterhead of the Campsie Physiotherapy and Rehabilitation Centre described as a Certificate of Attendance under the name of a physiotherapist.  This document certified that the Applicant had “attended this clinic for treatment of physiotherapy” on six specified dates – 15, 17, 21, 25, and 29 January and 3 February.

16. In a Case Note dated 8 February 2013 a Tribunal officer recorded that she had attempted to contact the Applicant “with no response” and had left a message for him to return the call.  In addition, a Case Note recorded another attempt by a Tribunal officer to contact the Applicant by telephone on 11 February 2013.  A message was left for the Applicant to return the call urgently. 

17. On 11 February 2013 the Tribunal wrote to the Applicant by letter sent to the email address he had provided in his change of address form, referring to the fact that it had attempted to contact him on several occasions regarding his request for a postponement of the hearing and an eight week extension to provide information requested.  The letter stated that the Tribunal member had considered the request but was not prepared to postpone the hearing or to grant an extension of time for the provision of documents on the basis of the information provided.  The letter advised that the hearing would proceed as scheduled but that the Tribunal member may consider a request from the Applicant to attend the hearing via telephone if he would prefer.  The Tribunal officer noted that none of the information requested in the hearing invitation letter had been provided, despite the fact that the information was requested on 14 December 2012 and a request was made that it be provided at least 14 days prior to the scheduled hearing date (i.e. by 29 January 2013).  The Tribunal provided contact details, including for a telephone translating and interpreting service. 

18. The Applicant did not attend the Tribunal hearing scheduled for 12 February 2013.  In its reasons for decision the Tribunal recorded that it kept the arrangements for the hearing open for 30 minutes past the scheduled time, but that the Applicant did not appear and did not contact the Tribunal.

19. In its reasons for decision the Tribunal set out in detail the content of the letter of 14 December 2012 and referred to the advice given to the Applicant about the need for good reason to grant additional time or to change the hearing date.  It also referred to receipt of the change of contact details form and the Applicant’s letter of 4 February 2013 and the unsuccessful attempts by the Tribunal to contact the Applicant by telephone as well as by email letter of 11 February 2013.

20. The Tribunal stated that it had considered whether to take any further action before proceeding to make a decision on the review.  It acknowledged that the Applicant had requested a postponement of the hearing, had stated that he could not attend due to a “health condition”, and that he had been “feeling unwell”.  However the Tribunal recorded that it had declined his request.  It referred to the fact that while the Applicant claimed he had visited a doctor and referred to an attached letter from a doctor, the document attached was a certificate of attendance from a physiotherapist for a number of sessions.  There was said to be “little if any information before the Tribunal about the nature of the condition from which the applicant claim[ed] to be suffering (other than it may have entailed some physiotherapy sessions)” or why it might have prevented him from attending a Tribunal hearing.

21. The Tribunal recorded that the Applicant had been advised that his request for a postponement had been declined, but that the Tribunal would consider a request to attend the hearing by telephone.  It noted that the letter was sent to a recently provided email address and that several telephone messages were left but the telephone calls were not returned. 

22. In these circumstances the Tribunal found that it was not satisfied that the Applicant was prevented from attending the scheduled hearing for any medical or physical or other reason as claimed.  It was satisfied he had an opportunity to appear at a hearing but had failed to avail himself of that opportunity.

23. The Tribunal then considered the Applicant’s request for an additional eight weeks to provide information.  It referred to his statement that he was still in the process of collecting the relevant documents.  The Tribunal noted that it had declined that request, that the Applicant had been invited to provide a range of information specified in the letter of 14 December 2012, but that no information had been provided and no reasons given as to why it was not available.  The Tribunal was of the view that the Applicant had had “ample opportunity to provide information about enrolment but ha[d] not done so” and that he had “been provided with the opportunity to provide relevant evidence to the tribunal and ha[d] not availed himself of that opportunity”.  In these circumstances the Tribunal decided to proceed to make a decision. 

24. In its brief findings and reasons the Tribunal referred to the absence of any evidence that the Applicant was currently enrolled in or the subject of a current offer of enrolment in any course of study.  It was therefore not satisfied that the Applicant met the criteria for the subclasses within Class TU that required such evidence.  It found that the Applicant did not satisfy the applicable clauses within Schedule 2 to the Regulations.

25. In addition, the Tribunal found that the Applicant did not meet, or there was no evidence that he met, the criteria for any other subclasses within the class of visa for which he had applied.  Hence the Tribunal concluded that the decision under review must be affirmed.

26. The Applicant sought review of the Tribunal decision by application filed in this court on 11 March 2013.  There are four grounds in his application.  The Applicant filed written submissions on 24 July 2013.  I have considered the grounds raised in the application and the submissions and by the Applicant today. 

27. The first ground in the application is that the MRT made an error of law, being a jurisdictional error “because it did not give [him] opportunity to attend the hearing because [he] requested to reschedule the hearing date”.

28. It is convenient to consider this ground in conjunction with grounds two and three.  Ground two takes issue with the fact that the Tribunal did not grant the extension of time, which I take to be a reference to the request for an extension of time to provide documents.  I have also considered this ground in relation to the request for a postponement of the hearing as ground two also states that:

    I was sick and I informed unable to attend the hearing.

29. Ground three is an unparticularised contention that the Tribunal did not give the Applicant natural justice. 

30. There are two main issues raised by the Applicant in the first three grounds.  First, he takes issue with the Tribunal’s failure to grant an adjournment of the Tribunal hearing.  Secondly he raises its refusal to provide him with an eight week extension of time within which to submit additional supporting documentation. 

31. Dealing first with the hearing invitation, as indicated, the hearing invitation letter of 14 December 2012 was sent to the correct address.  It met the requirements of the Act and the Regulations.  The Tribunal invited the Applicant to attend a Tribunal hearing scheduled for 12 February 2013.

32. There is no suggestion and nor is it apparent that the Tribunal failed to provide all the necessary information in relation to the hearing.  Relevantly, the Tribunal advised the Applicant that it would only change the hearing date for good reason, that he should contact the Tribunal immediately if unable to attend on that date and that if he failed to attend the Tribunal may make a decision without taking further action to allow or enable him to appear before it. 

33. The Applicant did not attend the Tribunal hearing. Under s.362B(1) of the Migration Act, if the applicant is invited under s.360 to appear before the Tribunal and does not appear at the scheduled time, place and date, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Under s.362B(2) the Tribunal may reschedule the applicant’s appearance before it or delay its decision on the review “in order to enable the applicant’s appearance before it as rescheduled”. In other words, the Tribunal has a discretion to grant an adjournment of the hearing. In addition, the Tribunal has power under s.363(1)(b) to adjourn the review from time to time.

34. In this case the Tribunal considered whether to grant an adjournment but, for the reasons given, determined that it would not do so. It proceeded to make a decision in accordance with s.362B(1) of the Act without taking further action to allow or enable the Applicant to appear before it.

35. Counsel for the Minister drew the Court’s attention to the recent decision of the High Court in the Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18. However as the First Respondent submitted, the circumstances in Li can be distinguished from those of the present case.

36. In Li the High Court considered the discretionary power of a Tribunal to adjourn a hearing.  The plurality (Hayne, Kiefel and Bell JJ) made the point (at [63] – [76]) that such power must be exercised reasonably.  Their Honours acknowledged (at [66]) that “a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker” and stated (at [67]) that the “legal standard of reasonableness must be the standard indicated by the true construction of the statute”.

37. After discussing authorities in relation to reasonableness, rejecting some restrictions that had been suggested in earlier cases and considering the doctrine generally referred to as Wednesbury unreasonableness, their Honours referred specifically to the power in s.363(1)(b) to adjourn the review from time to time.

38. Their Honours made the point (at [76]) that even where some reasons had been provided for the exercise of a discretion, it may nonetheless not be possible for a court to comprehend how the decision was arrived at and that, relevantly:

    Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

39. In considering the exercise of the Tribunal’s discretion in Li their Honours reiterated that the Tribunal had to consider whether to adjourn in the context of the statutory purpose of s.360 of the Act and stated that while it “may be accepted that the Tribunal [wa]s to act with some efficiency” (see for example s.353(1) of the Act) such a consideration had to be “weighed against the countervailing consideration of the purpose of s 360 and Div 5” of Part 5 of the Act (at [80]).

40. Their Honours stated (at [82]):

    It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence.  Of course it may decide, in an appropriate case, that “enough is enough”…

41. However, their Honours continued (at [82]):

    …it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.

42. The unreasonableness of the exercise of the Tribunal’s discretion in relation to adjournment is to be determined having regard to the circumstances of the particular case.  Thus in Singh v Minister for Immigration and Citizenship [2013] FCA 669 at [32] Foster J was of the view that the fact that the circumstances of that case differed “in a material respect” from those considered in Li, was a proper basis for distinguishing that case. 

43. In Li what was in issue was a request by the visa applicant that the Tribunal defer its decision pending completion of an internal review of a skills assessment by Trades Recognition Australia.  A satisfactory skills assessment was a necessary condition of the grant of the visa.  The Tribunal in Li had refused the request on the basis that the visa applicant had been provided with enough opportunities to present her case.

1. However in Singh, as in this case, what was in issue was a request for an adjournment or additional time to provide further information.  In Singh the applicant attended the Tribunal hearing.  At that time he had not provided a certificate of enrolment as required by the class of visa for which he had applied.  The need for such a certificate had been made clear by the delegate some time earlier.  There was no evidence of any steps taken by the applicant to obtain such a certificate of enrolment or of any prior request for additional time at the hearing.  The applicant asked the Tribunal for additional time to provide a certificate of enrolment in circumstances where he had had many months to do so but had apparently done nothing at all (Singh at [31]). It was in that context that Foster J was of the view that the reasoning of the High Court in Li did not require him to conclude that the decision by the Tribunal not to allow more time to procure the necessary certificate of enrolment was a jurisdictional error. 

2. Similar reasoning may be applied in this case in relation to the Tribunal’s refusal to adjourn the hearing as well as to its refusal to allow the Applicant more time to procure the documentation that had been sought by the Tribunal in its letter of 14 December 2012.  Li can be distinguished having regard to the different circumstances of this case.  The Tribunal’s reasoning makes it clear that the circumstances are different.  The Tribunal provided an evident and intelligible justification for its refusal to grant an adjournment of the hearing or to allow additional time to provide documentation.  It had regard to the absence of a medical certificate.  The Applicant today confirmed that when he referred to a medical certificate he was in fact referring to the certificate from the physiotherapist referred to above.  It is not a medical certificate.  As the Tribunal recorded in its decision, that certificate did not provide any information about the nature of the condition from which the Applicant claimed to be suffering or why it might prevent him from attending a Tribunal hearing.  The Tribunal referred to all of these factors and gave proper consideration to the request.  In all the circumstances I am not satisfied that the Tribunal acted unreasonably in a manner constituting jurisdictional error in refusing the application for a postponement of the hearing. 

3. The Tribunal did not fall into such error in proceeding to make its decision without taking further action to allow or enable the Applicant to appear before it.  In circumstances where there was insufficient evidence to indicate that the Applicant was or might be unfit to attend or participate in a hearing scheduled for 12 February 2013 it has not been shown that the Tribunal exercised this power unreasonably.  The Tribunal made multiple attempts, including by an email sent to the correct email address, to contact the Applicant prior to the hearing time.  The Applicant did not respond.  In addition, the Tribunal advised the Applicant that he may seek to participate in the hearing by way of telephone.  He did not seek to do so. 

4. As to the request for an additional eight weeks to provide the information requested by the Tribunal, the only explanation provided by the Applicant in relation to this request was that he was still in the process of collecting relevant documents.  Taking it at its highest, it would appear that it might be inferred that the Applicant was indicating that the process of collecting relevant documents was in some way affected by what he described as his “health condition” and “feeling unwell”.  However the Tribunal considered all of the evidence before it, including the fact that he had been invited to provide the information on 14 December 2012, that no information had been provided and that no reasons had been given as to why the relevant information was not available.  The Tribunal was of the view that the Applicant had had ample time to provide such documentation.

5. The Applicant had been made aware since the delegate’s decision, and possibly prior to that time, of the need for the information later requested by the Tribunal.  There was a considerable period of time allowed after 14 December 2012 for that information to be provided.  There was no evidence of any steps taken by the Applicant to obtain that information, or of any particular difficulties he was experiencing in obtaining that information (beyond the reference to not feeling well, which was not substantiated by anything other than a certificate as to attendance at a physiotherapist).

6. There is no indication that between 14 December 2012 and his request of 4 February 2012 the Applicant raised any issues about obtaining the information or sought or gave any reasons for difficulties in obtaining such information.  The need to provide such information was reiterated by the Tribunal on 11 February 2013.  There was no response to that letter from the Applicant.  The Tribunal indicated that it had refused to provide an extension of time.  There is no indication that the Applicant subsequently contacted the Tribunal to provide any reason for not having provided such information.

7. Insofar as the Applicant sought to provide such an explanation in oral submissions today relating to his sickness, as indicated, the evidence that he provided to the Tribunal referred only to attendance at a physiotherapist on a number of occasions, in the second half of January and early February 2013.  Such attendance does not provide an explanation for his inability to provide such documentation throughout the period allowed or explain how the claimed sickness inhibited him from obtaining further information.

8. In such circumstances, having regard to the approach taken in Li, this is not a case in which it can be said that the Tribunal’s decision not to adjourn the review to enable the Applicant additional time to provide information was a decision which lacked an evident and intelligible justification.  Nor was it a failure properly to exercise the discretion amounting to an unreasonable exercise of a statutory power.  This is not a case in which the Court cannot comprehend how the decision was arrived at, or where the decision was unreasonable or plainly unjust in the manner considered by Hayne, Kiefel and Bell JJ in Li.  The Tribunal considered the Applicant’s request.  It was open to it on the material before it not to grant the extension of time requested by the Applicant, having regard, in particular, to the history and the absence of a proper explanation from the Applicant as to his inability to provide such documents and the reason given for the requested extension of time.  The circumstances are clearly distinguishable from those in Li.

9. No jurisdictional error is established on any of the bases contended for in grounds one, two and three of the application. 

10. The fourth ground in the application for review is that the Tribunal failed to deliver a fair decision.  Insofar as this is a complaint about the Tribunal’s conclusions it seeks impermissible merits review.  The ground is not particularised.  However in the  affidavit accompanying his application it is explained that the Applicant’s concern is that the Tribunal did not reschedule the hearing. 

11. Insofar as the complaint of a lack of fairness is related to the Tribunal’s decision not to adjourn the hearing or allow additional time to provide documents, those matters have been considered in relation to the other grounds in the application.  The Tribunal’s approach does not establish a lack of procedural fairness, let alone a lack of procedural fairness constituting a jurisdictional error. 

12. Insofar as the Applicant also complained generally that the Tribunal made a “wrong” decision, he seeks impermissible merits review.

13. The Applicant also contended that the Tribunal made an error by not asking him to provide more medical evidence so that it could reschedule the hearing.  He claimed that if the Tribunal had asked him for more documents about his sickness he could have provided them.

14. However it is well-established that the Tribunal is not under an obligation to press or advise an Applicant to call further evidence on an issue or to seek additional time to do so (see Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41). Moreover as Keane CJ pointed out, there is no general duty on the Tribunal to make inquiries, insofar as this might be contended. There is nothing in the circumstances of this case to satisfy me that this is a case in which the Tribunal would be under an obligation to make an inquiry as to a critical fact the existence of which is easily ascertained of the nature considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.

15. I note that it is apparent from the Tribunal reasons for decision and the Court Book that the Tribunal endeavoured to contact the Applicant in relation to his requests to postpone the hearing date and for an extension of time.  The Applicant did not contact the Tribunal in response.  In all the circumstances the suggestion that the Tribunal should have asked for more medical evidence is not such as to establish jurisdictional error on the part of the Tribunal.

16. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.

RECORDED  :  NOT TRANSCRIBED

1. The Applicant has been unsuccessful. The Minister seeks costs in the sum of $5,900. The Applicant asked whether it would be possible to reduce the amount of the costs. However the amount sought is reasonable and appropriate having regard to the nature of this and other similar matters. It is less than the amount provided for in the Federal Circuit Court Rules.

2. Insofar as the Applicant’s request for a reduction in the amount of costs might be seen as reflecting any lack of available funds, an applicant’s impecuniosity is not of itself a reason for either departing from the normal principle that an unsuccessful applicant should meet the costs of the first respondent or for reducing the amount of such costs.  It may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  In my view the amount is appropriate and the order sought by the Minister should be made.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Barnes.

Associate: 

Date:  4 September 2013