Hundal v Minister for Immigration
[2018] FCCA 2364
•27 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUNDAL v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2364 |
| Catchwords: MIGRATION – Visa – procedural fairness – where applicant complains of insufficient notice of hearing – where applicant not enrolled in or subject of offer for principal course – whether tribunal refusal reasonable request for adjournment – whether hearing procedurally unfair because applicant unable to understand it – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.360A Migration Regulations 1994 (Cth), r.4.21(4) |
| Applicant: | AJAY PAL SINGH HUNDAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 403 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 10 November 2017 |
| Date of Last Submission: | 10 November 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 27 August 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor for the Respondents: | Ms Butler for The Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 403 of 2016
| AJAY PAL SINGH HUNDAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for constitutional writs in relation to a decision of the Administrative Appeals Tribunal (the tribunal) which affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (class TU) visa (the visa).
This matter proceeded before me on the amended application filed on 7 April 2017. That application has three grounds as follows:
“1. The Tribunal denied the procedure of fairness (sic) as tribunal didn’t adjourn the hearing on another time due to doctor’s appointment at same time.
2. Given too short notification.
3. Two matters being heard at same time and too confusing.”
(Grounds reproduced verbatim).
The applicant appeared before me unrepresented. He relies on the material in the court book, the supplementary court book, and his affidavit affirmed on 22 November 2016, which annexes a copy of the decision of the tribunal, but otherwise adds nothing of substance. He has not filed written submissions.
Background
The applicant attended to give evidence and present arguments before the tribunal on 26 October 2016.
He is an Indian citizen who arrived in this country on a student visa in 2008. He applied for the subject visa in July 2014. The delegate’s decision was originally affirmed by the tribunal in 2015. That decision became the subject of an application for judicial review to this Court and was the subject of consent orders quashing the tribunal decision and remitting it for reconsideration. The tribunal affirmed the delegate’s decision for a second time in October 2016 and it is that decision which is the subject of this application.
The tribunal’s reasons for affirming the decision of the delegate are set out succinctly in its decision record.[1] The tribunal found that the applicant was unable to satisfy the time of decision criterion in clause 572.231 of the Migration Regulations 1994. That clause required the applicant to be enrolled in, or the subject of, an existing offer of enrolment in a principal course of a type specified by the Minister for the purpose of the regulations.
[1] Court book (CB) pages 225 to 228.
The tribunal found that the applicant could not satisfy that criterion because he had no relevant enrolment or offer of enrolment. It could have hardly come to any other conclusion, given the applicant admitted this during the course of the hearing.[2]
[2] CB page 226 at [16].
Further, the tribunal found that the applicant was not able to satisfy the requirements of clause 572.222, the time of decision criterion that obliges an applicant to provide the Minister with a certificate of enrolment confirming that he was not undertaking a course of study with a suspended education provider.
On the basis of the applicant’s evidence at the hearing, the tribunal found that he had not been studying “in recent years” since the visa was refused and had not maintained enrolment in the courses which were the subject of the certificates of enrolment originally submitted with the visa application.[3]
[3] CB page 227 [21].
As a result, it concluded that his original enrolment in those courses had been cancelled by the providers that issued the original certificates of enrolment. The applicant had, apparently, told the tribunal that he was not prepared to spend the money on enrolment.[4] In light of the evidence given by the applicant, the findings were clearly open to the tribunal. It is difficult to see how it could have made any other findings.
[4] CB page 227 [23].
The applicant’s complaint centres on the asserted denial of procedural fairness referred to in ground 1. I infer that the applicant also asserts that the failure to adjourn the proceedings was unreasonable in all of the circumstances. For the purpose of this hearing and bearing in mind that he is unrepresented, I have read grounds 2 and 3 as including a complaint of a denial of procedural fairness in the particulars to those grounds.
Consideration
There is no jurisdictional error established by any of the amended grounds of application. With respect to ground 1, it was not unreasonable for the tribunal to decline to adjourn the hearing in order to enable the applicant to attend a doctor’s appointment on the same day. He provided no evidence to the tribunal that he, in fact, had a doctor’s appointment that day and did not make any request for an adjournment. At the highest, the applicant mentioned that he had a doctor’s appointment and advised the tribunal that if it posed a difficulty “I will manage”.[5] Further, he consented to the hearing proceeding, notwithstanding that he had mentioned the doctor’s appointment to the tribunal member.[6]
[5] Supplementary court book (SCB) page 6 at paragraph [87].
[6] SCB page 6 at line 91.
A fair reading of the informal transcript of the hearing provided by the Minister shows that the applicant appears to have acknowledged that the hearing should have taken precedence over his doctor’s appointment. There was no denial of procedural fairness because, in the circumstances, as the first respondent has submitted, the tribunal was not ultimately called upon to exercise its discretion under section 363(1)(b) to adjourn the proceedings. I dismiss this ground.
Similarly, I am not satisfied that jurisdictional error has been established with respect to ground 2. The tribunal sent an email to the applicant on 22 September 2016 inviting him to attend a hearing on 26 October 2016.[7] That gave the applicant more than the prescribed period of notice under the Act.[8]
[7] CB pages 202 to 204.
[8] Section 360A and Regulation 4.21(4).
The reference to “too short notice” in this ground relates to the complaint made by the applicant on the day of the tribunal hearing that he had learned of the hearing date only a few days before.[9] This was claimed to be because he had moved address and that, as a consequence, he had not received any mail from the tribunal.[10] By the day of the hearing, the tribunal had contacted him by email, firstly informing him of the hearing and, on two occasions, by text message reminding him of the hearing date. The text messages were sent to his mobile phone number.[11] The applicant has not indicated how he says he was prejudiced by having only the amount of notice he claims to have had.
[9] SCB pages 9 to 10 at paragraphs [13]-[15].
[10] SCB page 9 at [13].
[11] CB page 219.
It is worth noting that in July 2016 the applicant had requested correspondence to be emailed to him and told the tribunal that he would update his residential contact details.
The tribunal implicitly rejected any complaint made on the day of the hearing that the applicant had not received adequate notice. It was open to the tribunal to proceed on the basis that the applicant had sufficient notice. I dismiss this ground.
There is no substance in ground 3. The tribunal member originally listed two hearings with apparently identical issues to be heard at the same time. The applicant complained at the time that the process was too confusing because the other applicant required an interpreter.[12] In response, the tribunal member desisted with the joint hearing approach and made an arrangement with the applicant to call him back later that day for the purpose of according him an individual hearing.[13]
[12] SCB page 5 at [75]-[79].
[13] SCB pages 6 to 7.
Prior to determining the initial joint hearing with the applicant, the tribunal member gave the applicant some brief advice about Direction 53 and the sort of matters that might be relevant to a successful prosecution of his application before it.[14] The applicant’s response to being encouraged to read Direction 53 was to ask for the member to explain it to him to obviate the need for him to think about it.[15] Further, far from being confused by what had occurred during the brief period in which the applicant’s matter was being heard jointly, the applicant indicated to the member that he had understood the introduction to the hearing that had been given to him earlier that day.[16]
[14] SCB page 7, 101-103.
[15] SCB page 7 at [102].
[16] SCB page 9 at [8]-[9].
There can be no suggestion that the applicant was not afforded a meaningful opportunity for a hearing under s.360 of the Act. An objective reading of the informal transcript of proceedings after the member had called him back does not suggest that he was confused at any stage. I dismiss this ground.
If I am wrong with respect to the dismissal of any of the above grounds I would decline to grant the relief sought. To do so would be futile. The applicant was unable to satisfy the relevant criterion for the visa and affirmation of the delegate decision was an inevitable consequence of the review.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 27 August 2018
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