KAUR v Minister for Immigration

[2015] FCCA 1798

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1798

Catchwords:
MIGRATION – Application for judicial review of refusal of grant of Skilled visa – show cause application – application particularises no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

Applicant: BALJEET KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1976 of 2014

Judgment of: Judge McGuire

Hearing date: 5 June 2015

Date of Last Submission: 5 June 2015

Delivered at: Melbourne

Delivered on: 29 July 2015

REPRESENTATION

Solicitors for the Applicant: In Person

Counsel for the Respondents: Ms Senanayake

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Leave is granted to amend the Second Respondent’s name to the Administrative Appeals Tribunal.

2. The application filed 17 December 2014 be dismissed.

3. The applicant pay the costs of the first respondent fixed in the sum of $3416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1976 of 2014

BALJEET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made 5 December 2014 affirming a decision of the Minister’s Delegate not to grant the applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa (“the visa”).

2. The application is listed for a Show Cause Hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant’s husband had been previously granted a Subclass 485 visa. The applicant was applying for a visa as a secondary applicant.

4. Clause 485.311 of schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) provides the relevant criteria as follows:

   The applicant:

   (a) is a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and made a combined application with that person; or

   (b) is a member of the family unit of a person who holds a Skilled (Provisional) (Class VC) visa on the basis of satisfying the primary criteria for the grant of a Subclass 485 visa.

5. The applicant’s husband’s visa ceased on 29 September 2013 and was no longer in effect.

6. The applicant’s visa application came before a Delegate and was refused on 24 January 2014 on the basis that the applicant did not satisfy the criteria in clause 485.311. Specifically, the applicant’s husband no longer held a visa and the applicant was therefore not a member of a family unit of a person holding a visa.

7. The applicant applied to the Tribunal for a merits review of that decision on 11 February 2014.

8. On 8 August 2014 the Tribunal wrote to the applicant pursuant to s.359 of the Migration Act 1958 (Cth) (“the Act”) inviting the applicant to provide information to satisfy the criteria under cl.485.311 of the Regulations. The letter sought a response by 2 September 2014.

9. The applicant did not respond to the Tribunal’s invitation.

10. The Tribunal made its determination on 5 September 2014 affirming the Delegate’s decision. The Tribunal found that the applicant had failed to provide the requested information. The Tribunal relied on s.359C(1) of the Act and proceeded to its determination without taking any further action to obtain information. The Tribunal was satisfied that pursuant to s.360(3) of the Act, the applicant was not entitled to appear before it and that s.363A of the Act precluded the Tribunal from inviting the Applicant to appear. At [12] of its reasons the Tribunal noted:

    In addition, the Tribunal observes that the Courts have held that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing.

11. At [14] of its reasons the Tribunal determined:

    Based on the evidence before it, the Tribunal is not satisfied that the applicant meets cl.485.311 at the time of its decision. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

12. The applicant appeared before this Court self-represented. The application disclosed only one ground of complaint being “I am not satisfied with MRT Decisions.”

13. The applicant provided an affidavit sworn/affirmed on 30 September 2014 with an annexed statement of 29 September 2014. The applicant’s affidavit confirms her receipt of the letter of 8 August 2014 from the Tribunal. She confirms that no documents were submitted. She deposes in that statement:

    I was expecting that I will be able to explain my situation to MRT on my hearing but they didn’t call me for hearing.

14. The applicant made oral submissions at the hearing before this Court. She said that she lodged her application through a migration agent but that she was not informed of anything further. She says that she was told “you will not be called for the hearing”. She says that she submitted “all our documents to the agent but he didn’t provide them to the MRT”. She provided no further particulars.

Consideration of the application.

1. The application itself particularises no jurisdictional error in the Tribunal. Rather, on any reading, it indicates simple dissatisfaction of the Tribunal’s decision on the merits. This Court does not offer a further hearing on the merits.[1]

   [1] Section 474 of the Migration Act 1958 (Cth)

2. The short submission made before this Court, at its highest, references only possible negligence or inadvertence on the part of the applicant’s agent and particularises no allegation of fraud. The applicant does not, therefore, discharge her onus proving jurisdictional error in the sense of a fraud stultifying the Tribunal’s process.[2]

   [2] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

3. I am satisfied that the applicant’s admitted failure to respond to the Tribunal’s letter resulted in her having no right to appear at the hearing. S.359 of the Act provides:

   (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   (2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   (3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

   i)(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or

   ii)(b) if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   (4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

4. S.359B of the Act sets out additional requirements for an invitation under s.359, being:

   (1) If a person is:

   (a) invited in writing under section 359 to give information; or

   (b) invited under section 359A to comment on or respond to information;

   the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.

   (2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

5. The invitation here to provide information was dated 8 August 2014. It was properly sent to the applicant’s appointed migration agent being the applicant’s advised address for service. The prescribed period for a response is 14 days from the presumed date of receipt. I accept that the period for a response expired on 2 September 2014 in accordance with the Regulations.

6. There is no evidence of any request for an extension of time to provide a response. The applicant’s failure to respond activates s.359C(1) and s.360(3) of the Act in that the applicant was not entitled to appear before the Tribunal.

Conclusion

1. The applicant’s application and its one ground of complaint does not particularise any jurisdictional error in the Tribunal. It arguably seeks in a generic sense a further merits review which is not available to the applicant. I am satisfied that the Tribunal was entitled to proceed to its determination on the basis that the applicant had been invited to provide requested information and had failed to respond. The application does not therefore raise an arguable case for the relief sought and will be dismissed pursuant to rule 44.12(1)(a) of the Rules.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  29 July 2015