Kang v Minister for Immigration
[2017] FCCA 2785
•14 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KANG v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2785 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – confirmation of a dismissal for non appearance – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.338, 347, 348, 360, 360A, 362B, 362C, 368, 379A, 379B, 379C, 379G |
| Cases cited: AYT16 v Minister for Immigration [2017] FCA 252 AZAFB v Minister for Immigration [2015] FCA 1383 |
| Applicant: | MICHAEL IMAN SINGH KANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1229 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms S He of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667 in accordance with Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1229 of 2017
| MICHAEL IMAN SINGH KANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Kang, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 27 March 2017 under s.362B(1E) of the Migration Act1958 (Cth) (Migration Act).
In that decision the Tribunal confirmed its decision made on 6 March 2017 under s.362B(1A) of the Migration Act, dismissing Mr Kang’s application because of his failure to appear at the scheduled Tribunal hearing.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 3 November 2017.
Background
Mr Kang is a male citizen of India, who on 1 November 2016, applied for a medical treatment (visitor) class UB subclass 602 visa[1]. Mr Kang requested that all written communications be sent to his migration agent, Mr Gaganjot Singh Bhatia of Ace Immigration Consultants[2]. In the form appointing Mr Kang’s migration agent, the agent indicated that he consented to the Minister’s Department communicating with him by fax, email or other electronic means, and provided the email address [email protected][3].
[1] Court Book (CB) 1-11
[2] CB 7; CB 12
[3] CB 12
Along with the application, Mr Kang provided a letter[4] signed and addressed to the director of Ace Immigration Consultants dated 31 October 2016 stating:
I, Michael Iman Singh Kang, understand and acknowledge that I have been told that my application for subclass 602 is vexatious and unfounded. I understand that this application is likely to be unsuccessful. Still I instruct you to go ahead and lodge my application. I shall be responsible for the outcome.
[4] CB 15
Mr Kang was assessed against the criteria in Part 602 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). It was a criterion for the grant of the visa that for an applicant who did not hold a substantive visa at the time of the application and was not deemed to be unfit to depart Australia, the applicant was required to meet certain Schedule 3 criteria[5]. Criterion 3001 required Mr Kang to have lodged his application within 28 days of the last day Mr Kang held a substantive visa.
[5] Clause 602.213(3)‑(5) in Schedule 2 to the Regulations
On 2 November 2016, a delegate of the Minister (delegate) refused Mr Kang’s application[6]. The delegate found that Mr Kang’s last substantive visa was a subclass 573 visa that ceased on 30 August 2015. As he did not hold a substantive visa at the time of the application, and had not made his application within 28 days of the day his last substantive visa ceased to be in effect, he did not meet clause 602.213.
[6] CB 22-24
The Tribunal proceedings
Mr Kang applied for review of the delegate’s decision on 18 November 2016[7]. In his review application he again provided the contact details of his migration agent Mr Gaganjot Singh Bhatia of Ace Immigration Consultants, including the email address [email protected]. He also provided his mobile number[8].
[7] CB 25-26
[8] 0434 798 153
On 23 January 2017, the Tribunal sent an email to the agent’s email address, attaching a letter inviting Mr Kang to attend a hearing on 10 February 2017[9]. Neither Mr Kang nor the representative appeared at the scheduled hearing.
[9] CB 36-42
On 3 February 2017 and 9 February 2017, the Tribunal sent SMS hearing reminders to Mr Kang’s mobile number. The Tribunal records indicated that the delivery of both SMS hearing reminders failed[10].
[10] CB 46
On 10 February 2017, Mr Kang failed to appear at the scheduled hearing[11].
[11] CB 43-45
On 6 March 2017, the Tribunal made a decision under s.362B(1A)(b) of the Migration Act dismissing the application (the dismissal decision). The Tribunal found Mr Kang had not provided any reasons for his failure to appear at the scheduled hearing and as no satisfactory reason for the non‑appearance was given, the Tribunal dismissed the application without further consideration of that application or the information before the Tribunal[12].
[12] CB 53
On 7 March 2017, the Tribunal emailed Mr Kang’s migration agent, attaching a copy of the non-appearance decision, and a letter addressed to Mr Kang advising him that he could seek reinstatement of the application by 21 March 2017[13]. Attached to the letter was an information sheet advising Mr Kang that he could apply for reinstatement of the application within 14 days after receiving notice of the non-appearance decision, and that if he failed to apply for reinstatement, the Tribunal must confirm the decision to dismiss the application[14]. No reinstatement application was received by the Tribunal.
[13] CB 47-53
[14] CB 51
On 27 March 2017, the Tribunal confirmed its non-appearance decision, pursuant to s.362B(1E) of the Migration Act (the confirmation decision)[15]. The Tribunal found that Mr Kang had been validly notified of the non-appearance decision and as he had not applied for reinstatement within the prescribed period, the Tribunal was obliged to confirm its non-appearance decision.
[15] See CB 59-60
The present proceedings
These proceedings began with a show cause application filed on 24 April 2017. Mr Kang continues to rely upon that application. It is supported by a short affidavit filed with it which I received as a submission.
I received as evidence the court book filed on 27 June 2017.
The grounds of review advanced by Mr Kang are very general in nature and lack meaning in the absence of particulars. I invited oral submissions today from Mr Kang but he declined to make any.
After hearing from the Minister’s solicitor, I again invited Mr Kang to make any submission he wished but he responded that he had nothing whatsoever to say.
It is plain that there is no arguable case of error by the Tribunal in dealing with Mr Kang’s non-attendance at the Tribunal hearing and in confirming its decision.
The Minister’s submissions deal adequately with the grounds advanced by Mr Kang. I agree with those submissions.
The application for judicial review
The application only seeks review of the Tribunal’s confirmation decision of 27 March 2017, and contains three grounds of review.
Ground 1
Ground 1 merely states “jurisdictional error and lacked jurisdiction”. There is no indication that the Tribunal lacked jurisdiction to review the delegate’s decision. The Tribunal had jurisdiction to review an application that is properly made under s.347 for review of a Part 5‑reviewable decision[16]. The decision of the delegate to refuse Mr Kang a medical treatment visa on 2 November 2016 was a Part 5‑reviewable decision within s.338(2). Mr Kang made a valid application for review of the decision on 18 November 2016, as the application was in an approved form, the application was made within 28 days from the day Mr Kang was notified of the delegate’s decision, and was accompanied by the prescribed fee[17]. The bland assertion of “jurisdictional error” must fail in the absence of meaningful particulars.
[16] Section 348 of the Migration Act
[17] Section 347(1)
Ground 2
Ground 2 alleges “error in interpretation of legislation”. However, the Tribunal made no evident error in its decision to confirm the non-appearance decision under s.362B(1E). As the Tribunal found[18], Mr Kang was effectively notified of the non-appearance decision of 6 March 2017 in accordance with s.362C(5):
a)pursuant to s.362C(5)(a), the Tribunal notified Mr Kang of the non-appearance decision by giving him a copy of the decision on 7 March 2017, within 14 days of the non-appearance decision[19];
b)pursuant to s.362C(5)(b), a copy of the decision was given to Mr Kang by one of the methods specified in s.379A, being transmission by fax, email or other electronic means under s.379A(5) of the Migration Act; and
c)pursuant to s.362C(6), the notification of the non-appearance decision was accompanied by a statement describing the effect of s.362B(1B)-(1F)[20].
[18] At CB 60, [3]
[19] CB 47-53
[20] CB 51-52
As Mr Kang was notified by email to his authorised recipient on 7 March 2017, Mr Kang was taken to have received that notification at the end of that same day[21]. Consequently, Mr Kang had until 21 March 2017, to apply to the Tribunal to have the matter reinstated.
[21] Section 379B(4), s.379C(5), and s.379G of the Migration Act
Where an applicant fails to apply for reinstatement within 14 days of being notified of a decision under s.362(1B), the Tribunal is obliged to dismiss the application by a written statement under s.368[22]. As no reinstatement application was received, the Tribunal notified Mr Kang of this decision by written statement dated 27 March 2017. The effect of the confirmation decision is that the decision under review is taken to be affirmed[23]. In the absence of a request for reinstatement, the Tribunal had no lawful ability to do otherwise than confirm the dismissal of the application[24].
[22] Section 362B(1E) of the Migration Act
[23] Section 362B(1F)
[24] AYT16 v Minister for Immigration [2017] FCA 252 at [10]
Ground 3
Ground 3 merely states “natural justice” without further particulars. The ground fails to identify any jurisdictional error, and the evidence before the Court fails to establish that the Tribunal failed to comply with its procedural fairness obligations under the statutory regime in the conduct of the review[25].
[25] Compare Singh v Minister for Immigration & Anor [2016] FCCA 2746 at [25] per Judge Street, upheld on appeal in Singh v Minister For Immigration [2017] FCA 530
Non-appearance decision under s.362B(1A)
For completeness, and although Mr Kang has only sought judicial review of the confirmation decision, I find that the Tribunal made no error in making the dismissal decision under s.362B(1A)(b) of the Migration Act.
The Tribunal’s power to proceed under s.362B was contingent upon the issuing of a valid invitation under s.360, in accordance with the requirements of s.360A. Those requirements were met in the present case as the hearing invitation dated 23 January 2017:
a)informed Mr Kang of the time, date and location of the hearing[26];
b)was transmitted by one of the methods specified in s.379A[27]. The Tribunal transmitted the document by email to the last email address provided by Mr Kang to the Tribunal in connection with the review[28]. In this case, the email address was the address of the migration agent as his authorised recipient[29];
c)afforded Mr Kang at least the prescribed period of notice of the hearing[30]. The prescribed period was 14 days from the day on which Mr Kang received the invitation[31]. Mr Kang was taken to have received the hearing invitation at the end of the day on which the email was transmitted, namely 23 January 2017[32]. The hearing was scheduled for 10 February 2017, which was in excess of the prescribed 14 days' notice period[33]; and
d)advised Mr Kang of the effect of s.362B[34].
[26] CB 37; s.360A(1)
[27] Section 360A(2)
[28] Section 379A(5)
[29] CB 26; CB 35; s.379G
[30] Section 360A(3)
[31] Regulation 4.35D
[32] Section 379C(5) and s.379G
[33] CB 37
[34] CB 38; CB 41; s.360A(4)
As Mr Kang was validly invited to attend the hearing in accordance with the statutory requirements, his failure to attend the scheduled hearing on 10 February 2017 enlivened the Tribunal’s power under s.362B. Pursuant to s.362B(1A), the Tribunal had the power to either make a decision on the review without taking any further action to enable Mr Kang to appear or dismiss the application without any further consideration. The Tribunal opted for the latter course.
In circumstances where Mr Kang was validly invited to attend the hearing under s.360 and he failed to appear, it was open to the Tribunal to exercise its discretion under s.362B(1A)(b) to dismiss the application without any further consideration of the application or information before it. Once a Tribunal has complied with its obligations to issue a valid invitation under s.360A, it was not under any obligation to take additional steps to ensure that Mr Kang was aware of the Tribunal hearing[35]. The present Tribunal attempted to remind Mr Kang on two occasions to attend the scheduled hearing by way of SMS reminder[36]. Although both SMS reminders failed to be delivered to Mr Kang’s nominated mobile number, the Tribunal was not obliged to do anything more to ensure his attendance at the hearing. The present matter is distinguishable from AZAFB v Minister for Immigration,[37] as this is not a case in which there was an indication that the applicant’s address for service had changed, or where the applicant demonstrated a high degree of engagement with the Tribunal.
[35] Minister for Immigration v SZFHC (2006) 150 FCR 439 at [39]; NBBL v Minister for Immigration (2006) 152 FCR 592
[36] CB 46
[37] [2015] FCA 1383
I conclude that Mr Kang is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will accordingly order that the application be dismissed pursuant to rule 44.12.1(a) of the Federal Circuit Court Rules2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.
Mr Kang inquired as to the means by which he might pay the debt established by the order, if made. He did not, however, oppose the making of a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667 in accordance with item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 November 2017
4
7
4