JULIUS v Minister for Immigration

[2015] FCCA 430

FEDERAL CIRCUIT COURT OF AUSTRALIA

JULIUS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 430

Catchwords:
MIGRATION – Migration Review Tribunal – Student Temporary (class TU) visa – procedural fairness – whether the Tribunal should have granted further adjournment – application dismissed.

Legislation:  
Migration Act 1958

SZFDE v the Minister for Immigration (2007) 232 CLR 189; [2007] HCA 35

Applicant: H.M. JULIUS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1390 of 2014

Judgment of: Judge Street

Hearing date: 25 February 2015

Date of Last Submission: 25 February 2015

Delivered at: Sydney

Delivered on: 25 February 2015

REPRESENTATION

Counsel for the Applicant: Mr Dobbie

Solicitors for the Applicant: Dobbie And Devine Immigration Lawyers Pty Ltd

Counsel for the Respondent: Mr Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application for leave to extend time be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1390 of 2014

H.M. JULIUS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958, and the applicant requires an extension of time under s.477. The application identified two grounds and the first ground, relating to an alleged non-compliance with s.360 in terms of the statutory framework for notification of a hearing has been withdrawn by the solicitor for the applicant. I should add that it has been properly withdrawn because it is clear that the requirements of notification were, in fact, complied with in respect of the first hearing and that the Court adjourned the matter at the request of the applicant to a further date and that there was no non-compliance with s.360.

2. The learned solicitor for the applicant advanced what was a second ground:

   1. The Tribunal failed to conduct the review required by law, by misinterpreting and misapplying the applicable law and by not complying with the Migration Act 1958 (‘the Act’).

   Particulars:

   (i) The Tribunal failed to conduct the review by law because it did not comply with ss360 and 360A of the Act.

   (a) Section 360(1) of the Act required the Tribunal to invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issue arising in relation to the decision under review.

   (b) Section 360A(1) of the Act required the Tribunal to give the Applicant notice of the day on which, and the time and place at which, the Applicant is scheduled to appear.

   (c) Section 360A(4) of the Act required that the period of notice given for the purposes of s360A(1) be at least the prescribed period or, if no period is prescribed, a reasonable period.

   (d) Regulation 4.21 prescribed that, for the purposes of s360A(4), r4.21(4) applied, as the Applicant was not a detainee at that time. That subregulation provided:

   4.21

   …(4) If the invitation relates to any other application for review of a decision, the period of notice:

   (a)Commences when the person receives notice of the invitation to appear before the Tribunal; and

   (b)End at the end of:

   (i)     14 days after the day the person received notice of the invitation to appear before the Tribunal; or

   (ii)  If the person agrees, in writing, to a shorter period of not less than 1 working day – the shorter period.

   (e) The Tribunal did not comply with r4.21(4) because it has only given the Applicant approximately eight days of notice for the hearing rescheduled for 19 September 2013. It was required to give the Applicant 14 days of notice, because the Applicant was not in detention and he had not agreed, in writing, to a notice period shorter that the prescribed 14 days.

   (f) The Tribunal was not permitted to make an adverse decision when it had not complied with s360A of the Act. Its failure to comply with s360A of the Act also meant that it did not discharge its obligation under s360 to invite the Applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (g) The failure to comply with ss360 and 360A constituted jurisdictional error.

   (ii) The Tribunal further failed to conduct the review required by law.

   (a) Section 360(1) of the Act required the Tribunal to invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (b) The Applicant was unable to attend the hearing rescheduled for 19 September 2013 because, as a result of being a drug addict, feeling sick and feeling very down and tired, he could not get out of bed.

   (c) In those circumstances, the Tribunal was not permitted to make a decision on the papers. Rather, it was required to give the Applicant a new hearing invitation for the purposes of s360 of the Act.

   (d) The failure to do so, and the making of the decision on the papers, constituted jurisdictional error.

3. In considering whether an extension of time should be granted, the explanation for the failure is a relevant and can be material consideration.  In this case, the Tribunal’s decision was delivered on 27 September 2013, affirming the decision of the delegate made on 16 December 2011 not to grant the applicant a Student Temporary (class TU) visa. 

4. The application in this matter was filed on 23 May 2014, as the submissions of counsel for the first respondent point out, more than six months out of time.  At the commencement of the hearing, the Court identified that it had concerns concerning both the adequacy of the nature of the explanation, which was effectively that the applicant was a drug addict and had an ice habit which was the heart of his explanation for his delay, and that this appeared to be less than a compelling ground for an extension of time under s.477. 

5. Secondly, the Court expressed concern that the affidavit in support of the extension of time appeared to lack candour in explaining what had occurred and what was done by the applicant in the context of seeking to support an extension of time.  The learned solicitor for the applicant was invited to seek to adduce any further evidence to address those concerns.  No further evidence was adduced.  The applicant’s explanation is less than satisfactory as to how it is that he came not to pursue the application in a timely manner. 

6. In that regard, the applicant was less than candid in explaining in his affidavit the communications that had taken place between him and his agent.  Specifically in relation to the email of 20 September 2013 that was not put into evidence. This was clearly material in the context of the explanation, for his absence of attendance at the hearing by the Tribunal and his limited participation in the invitation given by the Tribunal to adduce further material.  The lack of candour in the applicant’s affidavit extends to the explanation of the events surrounding his obtaining of an enrolment, which appears to have occurred on 25 September 2013.  The steps that he clearly must have taken in engaging a solicitor to put submissions to the Tribunal on his behalf, which occurred by letter dated 25 September 2013. The solicitor on 25 September 2013 put a number of submissions to the Tribunal in the context of the review application. 

7. Materially, nowhere in that letter by the solicitor dated 25 September 2013 was any further opportunity sought to adduce further material or to request some further hearing.  In fact, the contrary position was clearly identified by the letter from the agent on behalf of the applicant to the Tribunal of 19 September 2013, which relevantly said as follows: 

   I ask that you may allow me to make written submission on my client’s behalf before deciding on the matter. 

   I understand that this is of great inconvenience to the Tribunal and respectfully ask that you consider my client’s request for written submission in lieu of personal attendance this morning. 

8. It is clear from the affidavit of the applicant that he was well alive on 20 September 2013 to a timeframe that was fixed by the Tribunal for the applicant to provide further submissions by 25 September.  This was in circumstances where the applicant failed to attend either the first hearing or the adjourned hearing that was granted at the applicant’s request.  The lack of candour surrounding those events is material when it comes to the s.477 application in this case, and the length of the delay. 

9. It is also relevant that there is no candid explanation in the affidavit of the applicant as to what occurred in respect of the failure to attend the hearing on 11 September 2013.  The circumstances of the communication to the Tribunal that the applicant was in hospital are by no means apparently supported by the hospital records.  The invitation that was given to the applicant a day before the hearing on 10 September 2013 to attend or provide medical records was one that was not embraced by the applicant but, rather, a letter sent by the applicant’s representative on 11 September 2013 seeking an adjournment of the hearing. 

10. In this case, it is also one where the original notification consistent with the Act inviting the applicant to attend the hearing fixed for 11 September invited the applicant to address a combination of matters, relevantly:

    1. A certificate of enrolment as required by cl.572.222.

    2. Evidence of your past studies in Australia, including attendance certificates, academic transcripts and certificates of completion. This may be relevant to cl.572.223(2)(a)(ii) which relates to whether a person is a genuine applicant for entry and stay as a student.

    3. Evidence that you satisfy the financial capacity requirements in any of the alternative ways applicable for your assessment level set out in Schedule 5A for the purposes of cl.572.223(2)(a)(i). This includes:

    - Evidence to show that you have funds from an acceptable source. If you are relying on a money deposit, in most cases, this must have been held for at least 6 months immediately before the date of the visa application on 22 September 2011.

    - Where you have shown evidence of a loan, which is secured against a money deposit, please provide evidence of the source of funds used to create that money deposit. The loan must be current at the time of the Tribunal’s decision.

    - Evidence that the regular income of any person (including yourself) providing fund to you was sufficient to accumulate the level of funding being provided by that person.

    -  Evidence of your relationship to the person supporting you which demonstrates that they are an ‘acceptable individual’.

    - Evidence of any course fees you have already paid for your current course.

    4. Evidence that, while you hold the visa, you will have access to the funds demonstrated or declared in accordance with the financial capacity requirements of Schedule 5A for the proposed period of your stay in Australia, as required by cl.572.223(2)(a)(iii). This may include evidence of money transfers to you, or copies of your bank statements showing that the funds have been paid into your account.

    5. Evidence to show that you meet the English language proficiency requirements in any of the alternative ways applicable for your assessment level set out in Schedule 5A.

    6. Evidence to show you have successfully completed secondary schooling to the year 12 level.

    …

    The tribunal invites you to provide the above information as soon as possible prior to the hearing but no later than 2 working days before the hearing date. If you are unable to provide this information, the tribunal will require good reason to grant additional time. The Tribunal may make a decision at the conclusion of the hearing.

    The tribunal will only change this hearing date for good reason. Please contact the tribunal immediately if you are unable to attend the hearing on this date. Please note that if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it (the emphasis was in the letter).

11. The letter also invited the completion of a form within seven days, which the applicant also failed to attend to. 

12. In relation to the applicant’s want of candour, the material annexed to the affidavit including the enrolments of particular courses which appear to have occurred on 25 September 2013, being the last day for submissions, are ones in which it is the case that no evidence has been adduced as to whether those courses were ever pursued or undertaken by the applicant.  The only inference this Court could draw was that they were not genuine enrolments and that those courses were never undertaken and pursued by the applicant.  The absence of explanation as to what occurred in that regard is a further matter going to the want of candour of the applicant in this application under s.477. 

13. In this case, for those reasons, I am not satisfied that this is an appropriate case for an extension of time under s.477 because I regard the explanation for the delay as entirely unsatisfactory and the lack of candour by the applicant means that there is no proper explanation for invoking this Court’s discretionary jurisdiction to extend time under s.477. I have, however, also taken into account the ground of the application advanced in support of the allegation of jurisdictional error in relation to s.477.

14. There is no substance in the asserted non-compliance with s.360 of the Migration Act. It is clear that the Tribunal invited the applicant to attend a genuine hearing on 11 September 2013 and invited the applicant to attend an adjournment under s.363(1)(b). That hearing was to take place on 19 September 2013, at which the applicant again failed to attend. It is clear that the Tribunal turned its mind to the question of whether it should proceed with the hearing, as is apparent from paragraph 7 of the Tribunal:

    7. In the circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

15. Indeed, Mr Dobbie on behalf of the applicant, frankly conceded that it is clear from that passage that the Tribunal did deliberate whether it should exercise its power to determine the matter or to adjourn it. In those circumstances, the challenge to s.360 must fail. Mr Dobbie did skilfully seek to advance that this case might fall into the category where the agent had somehow subverted the process and relied upon a passage in SZFDE v the Minister for Immigration (2007) 232 CLR 189 at [201]. However, it is clearly the position in this case that the applicant was well alive to the hearing date that was to have been held on 19 September 2013and was well alive to the further opportunity that had been provided to provide further submissions by 25 September 2013 and, indeed, availed himself of that by the steps he took in seeking to obtain a course of education enrolment and by engaging the solicitor who wrote the letter dated 25 September 2013, putting further submissions to the Tribunal.

16. There was, in this case, no subversion of the process of the Tribunal by the communications from the agent and it is not a case where there is any substance in the alleged jurisdictional error.  Mr Dobbie frankly conceded that in the circumstances it was open to the Tribunal acting reasonably to proceed to make a decision and that this was not a case where the Tribunal could be said to have acted unreasonably.  It was clearly the case that the applicant through both his representative and his lawyer had ample opportunity to seek a further adjournment or opportunity to put further material and didn’t do so. 

17. In those circumstances, there was an evident and intelligible justification for the decision of the Tribunal to proceed to determine the matter on 27 September 2013. The Tribunal did identify the issues it had to determine and addressed the evidence on the claims that were advanced and made findings that were clearly open on the material before the Tribunal.

18. I am satisfied that in these circumstances there is no jurisdictional error in terms of the conduct of the review or in the decision-making by the Tribunal and that there was no failure to comply with the statutory requirements in respect of the review.  There is accordingly no merit in the application for an extension of time under s.477, as the ground raised, have no prospect of success.  Accordingly, the application for an extension of time is dismissed. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 March 2015