KAUR v Minister for Immigration
[2014] FCCA 161
•13 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 161 |
| Catchwords: MIGRATION – Application for judicial review of Migration Review Tribunal decision – applicant not receiving letter of invitation to hearing – letter sent by Tribunal to applicant’s nominated address – whether Tribunal should have made enquiry when applicant failed to appear – applicant deemed to have received invitation letter by terms of the Migration Act – Tribunal not obliged to make further enquiry – application dismissed. |
| Legislation: Migration Regulations 1994 |
| Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618 |
| First Applicant: | RANJIT KAUR |
| Second Applicant: | SACHIN KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 446 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 20 November 2013 |
| Date of Last Submission: | 20 November 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 13 February 2014 |
REPRESENTATION
| The Applicants: | In Person (The First Applicant also appeared on behalf of the Second Applicant) |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The Applicants application be dismissed.
The Applicants pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 446 of 2013
| RANJIT KAUR |
First Applicant
| SACHIN KUMAR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants seek judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) dated 7 March 2013. The Tribunal affirmed their decision of a delegate of the first respondent not to grant the applicants Student (Temporary) (Class TU) Visas. The grounds of application are essentially that the Tribunal fell into jurisdictional error by failing to give the applicants an opportunity to attend a hearing on 20 February 2013. It seems clear that the invitation to attend the hearing was sent to the applicants’ nominated address, which turned out to be the wrong address and the invitation was returned to the Tribunal.
Although the result is not one with which I am comfortable, I accept the submissions of the first respondent that the course of conduct embarked on by the Tribunal does not reveal jurisdictional error and it follows that the application must be dismissed with costs.
It should be noted that the first applicant (whose gender was initially misunderstood by the Department) is the primary applicant and the second applicant is only in Australia as her spouse. Since the second applicant’s case stands or falls wholly by reference to that of the first applicant, I will refer in these reasons for judgment to the first applicant as “the applicant”.
The Initial Application for an Adjournment
When the matter came on before the Court, the applicant, who was self-represented, sought that the proceeding be adjourned to give her more time to obtain legal representation. She said she had attempted to contact many barristers, but had been unable to obtain representation.
The first respondent’s counsel opposed the application for an adjournment making the point that there is no right to representation before the Court in proceedings such as these.
I indicated that I would not accede to the adjournment application and give my reasons in my judgment.
In order to understand why I refused the application for an adjournment, it is appropriate to say something about the procedural history of the matter. What follows is essentially taken from the written submissions of the first respondent and the Court Book (“CB”) and is not controversial.
At CB231 (paragraphs 14-16) the Tribunal records:
“14. The applicant first entered Australia on 14 April 2008 as the holder of a student visa, subclass 573. She applied for a student visa on 12 March 2010 which was refused on 24 June 2010 because the delegate was not satisfied that the applicant had access to sufficient funds as required by schedule 5A because the applicant did not provide any evidence to demonstrate that she had access to sufficient funds to support herself and her family members.
15. The applicant sought review of this decision on 21 July 2010 and provided a copy of the delegate’s decision record to the Tribunal.
16. The Tribunal invited the applicant to a hearing on 4 June 2012. In the hearing invitation, the applicant was also invited to provide evidence of her enrolment and financial capacity in accordance with schedule 5A.”
The invitation to the 4 June 2012 hearing was sent by the Tribunal by registered post on 3 May 2012 (see CB65). That letter was sent to the applicant at her nominated address: 8/32 Royal Avenue, Melbourne, VIC 3163.
The applicant clearly received that correspondence because she attended the hearing on 4 June 2012. She had already sent, on 28 May 2012, a response to the invitation indicating that she would appear at the scheduled hearing and certain evidence as to her financial capacity. Further evidence was provided again on 30 May 2012 (CB86-88).
At the hearing on 4 June 2012, the Tribunal indicated to the applicant that the material that the applicant had already provided was insufficient to satisfy the requirements in Schedule 5A of the Migration Act 1958 (Cth) (“the Migration Act”) relating to her financial capacity. The Tribunal explained to the applicant what evidence she would need to provide in order to satisfy the relevant criteria and decided to give the applicant additional time to provide the necessary evidence (paragraphs 23-25 of the Tribunal’s decision, CB232).
On 5 June 2012, the Tribunal sent a letter reiterating the kind of evidence that the applicant would need to provide (CB113-114).
As the first respondent’s submission makes clear at paragraph 10:
“In the period that followed leading up to 29 January 2013, the applicant provided various items of evidence, requested information from the Tribunal about what further evidence was required, and made six different requests for extensions of time to provide further evidence” (CB127, 128, 129, 145, 150 and 154).
The Tribunal granted various extensions of time (CB130, 135, 145 and 151).
On 29 January 2013, the Tribunal sent a letter by registered post to the applicant at her nominated address (CB209-210). The letter made it clear that the Tribunal had considered the applicant’s material before it “but it is unable to make a favourable decision on this information alone”. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in her application.
The posited for the second hearing was 20 February 2013 but the applicant failed to attend. On 4 March 2013, the Tribunal’s letter was delivered back to the Tribunal by Australia Post and marked “RTS Unknown” (CB216 and CB222).
It was against this history of very extensive delay that I decided that it was inappropriate to exercise my discretion to adjourn the proceedings yet again. There has been a very substantial delay between the application to the Tribunal in 2010 and 2012. This, of course, does not in any way redound as criticism of the applicant as she did not cause the delay at all. Nonetheless, the fact is that she has had ample opportunity to get together her various materials and to prepare herself for the hearing for which she originally applied. Even from when the matter became active again, so to speak, in May 2012 there has still been a very substantial period of time by 20 November 2013 for the applicant to obtain representation. The applicant’s oral submissions did not indicate to me, at least with any precision or certainty, whether in fact representation could be obtained. Rather, the impression I got from what the applicant said was that her numerous endeavours to obtain the assistance of counsel had all been unsuccessful.
In the circumstances, and bearing in mind the listing difficulties that the Court confronts at the moment, it seemed inappropriate to me, in all the circumstances, to adjourn the proceeding and I declined to do so.
The Tribunal’s Decision
It is sufficient to say that the Tribunal was primarily concerned with whether or not the applicant met the requirements in Schedule 5A to provide evidence of funds from an acceptable source sufficient to fund her studies as posited. The applicant had provided a number of documents in support of her application and the Tribunal considered these in turn from CB231-238.
I note that the letter of invitation was returned on 4 March 2013 and the Tribunal’s decision is dated 7 March 2013. What the Tribunal relevantly said is at paragraph 37 (CB234):
“On 29 January 2013 the Tribunal wrote to the review applicants by letter addressed to the first named applicant, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 20 February 2013. They were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice. No response was received and the applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. In these circumstances the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.”
I note that the Tribunal observed that “the Tribunal had hoped to discuss this concern with the applicant at the second hearing but the applicant failed to attend” (paragraph 50, CB236). Remarks of a similar sort are made elsewhere (e.g. paragraph 53, CB236).
While it is possible that the Tribunal member was aware that the invitation letter had been returned, it seems far more probable to me than otherwise that this was not the case. The Tribunal’s decision is entirely consistent with a Tribunal member who had wished to discuss matters with the applicant being unable to do so because of their non-attendance. It is, in my view, less probable than otherwise that the Tribunal member deliberately and maliciously suppressed from mention a knowledge that the applicants had, in fact, not been invited in the sense that they had not received the invitation.
It should also be noted that insofar as the Tribunal reached conclusions in relation to the criteria to be met under the Migration Regulations 1994, the first respondent’s submission is correct. Namely (paragraph 18, written submissions):
“The applicants do not challenge the validity of the Tribunal’s decision on the ground of any deficiency in the Tribunal’s factual findings or reasoning. In any event, it is noted that the Tribunal’s decision accorded with the relevant case law concerning the proper interpretation of the relevant provisions …”
Nonetheless, I also note that in reply the applicant asserted (in addition to repeating that she had not received the invitation letter) that she could have presented all relevant documentation to the Tribunal if she had attended. While the applicant did not identify the said documentation, I am prepared to assume in her favour that the opportunity she lost was one of at least some potential value.
The Applicant’s Case
As earlier indicated, the applicant’s application refers solely to the non-receipt of the letter of invitation. The affidavit in support asserts simply that “the Tribunal did not give me chance to attend the hearing. The Tribunal knew that I did not receive it as the letter was returned”.
As earlier indicated that latter assertion is not probable.
The applicant in the ultimate relied upon written contentions of fact and law. The essential point made by those written submissions is at paragraph 12 where it is said:
“The main applicant says that the decision of the Tribunal was a denial of procedural fairness and natural justice in that the main applicant was not given the opportunity to attend the second hearing and give the tribunal an explanation with regards the large number of documents she had provided the tribunal with after the first hearing on 4 June 2013.”
Having set out the process whereby the confusion as to the address occurred (and noting that it did not prevent the applicant from receiving the original letter of invitation in 2012) the applicant’s written submissions go on to say at paragraphs 18-20:
“18. The named applicant says that she never received the unusual calling card left by Australia Post, when there is no one to collect a registered letter. She further states that the Tribunal should have exercised some discretion and not proceeded to make a decision on the review at that point and should have made further attempts to contact the main applicant, especially given the fact that the said letter was returned to the MRT on 4 March 2013. This surely would have rung alarm bells that there was a good chance the main applicant had not received the decision and was unaware of it.
19. It was open to the tribunal to check the main applicant’s address and if it chose to do so it would have been obvious that there was some minor error with the address, in that it said Melbourne, but had the postcode of 3163 which was Glenhuntly. Furthermore, the main applicant had provided her e mail address with her last notification of change of address, which could have been used by the tribunal to notify the main applicant.
20. The main applicant says it was unreasonable for the MRT to proceed to make a decision on the review.”
The applicant did not elaborate upon the submissions in any meaningful way in her oral submissions. She was content to rely upon the written submissions.
The First Respondent’s Submissions
The first submission made by the first respondent was that by reason of the terms of the Act in the Migration Regulations 1994 the applicants must be taken to have been deemed to have received the invitation and the fact that they may not have done so as a matter of fact is irrelevant.
The second submission is that the Tribunal did not commit jurisdictional error by failing to follow up the applicant when she failed to attend the hearing but before the decision was given.
Consideration
In the particular circumstances of this case, it is unfortunately all too easy to see that the submissions of the first respondent are correct. It is not necessary for me to deal with the matters put at paragraphs 21 and 22 of the first respondent's submissions because the Tribunal did invite the applicant to a second hearing. Pursuant to s.379A(4) and s.379C(4)(a) of the Migration Act, the applicant was taken to have received the invitation posted to her on 29 January 2013 seven working days later, namely 11 February 2013. (See Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 at [16]-[26]).
There is no dispute that the letter to the applicant was posted by registered post on 29 January 2013 and it is clear that the Tribunal did not otherwise elect to forward the information.
It is clear that the invitation was sent to the applicant’s nominated address for service (see CB64).
Similarly, the authorities make it clear that the Tribunal was not obliged, even if it had known of the applicant’s failure to receive the invitation, to have followed them up. See SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159 where Rares J said at [60]:
“Here the Act gave the Tribunal the discretion to proceed or not once the appellant did not appear on 22 March 2001. The Tribunal did not have to give reasons for its exercise of discretion under s 426A because s 430 of the Act did not require it to do so.”
In Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439, the Full Court held that where the Tribunal had sent to an applicant for a review, at his address for service, a letter inviting him to a hearing in accordance with s.425 and s.425A (in circumstances where s.422B was not then in force), the mere fact that the Tribunal received the letter back with a return to sender endorsement did not oblige the Tribunal to do anything further to search in its files to see other addresses at which the applicant may be contacted.
Their Honours said at [38]-[39]:
“38. The respondent says that the tribunal was on notice that he may not have received the letter, because the “Response to Hearing Invitation” form was not returned, because the letter to his residential address was returned unclaimed and because he did not appear at the hearing. The respondent says that in these circumstances, the tribunal was obliged under s 425 to search both its own and the department file to attempt to find another method of contacting the respondent. He says that in this case, the tribunal had an obligation to contact the migration agent listed in the respondent’s department file to find more recent contact details, and possibly also to ring the residential telephone number contained in the respondent’s protection visa application.
39. The submissions of the respondent in this respect are rejected. In view of the decision in VNAA, it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the tribunal, having complied with one of the methods prescribed in s 425A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.”
At [62]-[65] in SZHSQ, Rares J continued:
“[62]. Section 426A permitted the Tribunal to make a decision without taking any further action to allow or enable the appellant to appear before it, once it had discharged what the uncontested position is in this case — its obligation to invite the appellant to appear in a way that conformed with the Act. She did not appear at the time and place and on the day which she was invited to do so. While it may have been preferable, and while most decision-makers possibly would have decided, to attempt to make contact with the appellant to see whether some mistake had occurred, the Act in express terms authorised the Tribunal to do as it did.
[63]. I think that a construction of s 426A(1) that obliged the Tribunal to accord natural justice to an applicant for review if they did not appear in accordance with s 426A(1)(b), was at odds with the express words of the discretion in the section. Those words are that:
[It] may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
[64]. It seems to me to be quite inconsistent with those words to construe the obligations of procedural fairness to require the decision maker to give the applicant an opportunity to retrieve his or her position after a failure to appear in that situation.
[65]. I cannot see that it could be implied under s 426A(1) that the Tribunal had to consider whether or not to contact the applicant. The Tribunal is authorised to decide not to do so. For all the evidence reveals, the Tribunal may have considered whether or not to contact the appellant and decided against it. Again, it seems to me that if it did that no possible jurisdictional error could be established. While it seems to me that the course that the Tribunal took in the present case has produced a very unfortunate and, I think, unduly harsh result for the appellant, I do not think that the Tribunal committed a jurisdictional error in doing what it did.”
At [67], his Honour continued:
“It was plain that the Tribunal had a discretion one way or the other to decide whether or not to take further action. I do not think that it could be inferred or implied that the requirements of procedural fairness necessitated the Tribunal, in arriving at a decision under s 426A(1) to consider contacting the appellant, and, if it failed to do so, the whole of the exercise of its jurisdiction would be thrown into doubt. The very terms of the section seem to me to negate such an approach.”
At [66], Rares J had referred to the judgment of Greenwood J in NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 where at [24], Greenwood J said:
“It seems to me that in conferring a power upon the Tribunal in terms of s 426A, the Parliament necessarily had regard to the character of the review process undertaken by the Tribunal. Whilst that process might be described as inquisitorial, the power to elect to make a decision on the review in the circumstances of the conjunction of events contained within s 426A(1)(a) and (b) was expressly conferred in the context of the scope and role of the Tribunal under the Act. Further, there is nothing in the material that suggests any basis for inferring or concluding that the Tribunal by electing to make a decision on the review took a speedy or peremptory course involving a failure to consider relevant material. In addition, although the power conferred by s 426A must not be exercised capriciously, there is a clear intention on the part of the legislature not couched in indirect references or equivocal considerations to empower the Tribunal to consider and decide upon the evidence and arguments grounding the review and thus make a decision on the review, should the appellant fail to appear having been afforded an opportunity to do so.”
Here, in my opinion, the evidence simply does not go far enough to suggest that the Tribunal’s decision not to further adjourn and/or to seek to contact the applicant was capricious. There is no evidence at all that the Tribunal knew that the applicant’s invitation letter had been returned and, in my opinion, as earlier stated the terms of the decision suggest far more probably than otherwise that it did not.
Even if it did, however, it was, as the first respondent correctly submits, for the applicant to make her case. The materials she had provided up to that point (in a period from May 2012 at the very latest until March 2013), had not proved sufficient. Six extensions of time had already been granted. This was not a decision of the sort identified by the High Court in Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618 of a capricious exercise of the power.
It should be noted that although the cases from which I have quoted were plainly cases involving the regime in relation to appeals from the Refugee Review Tribunal, the terms of the legislation with which the Court is presently concerned are relevantly identical.
Conclusion
It follows that the applicant’s grounds are not made out and the application must be dismissed with costs. As I indicated at the commencement of this judgment, this is not an outcome that is satisfactory given that the applicant plainly did not receive the invitation to appear that the legislation deems her to have received.
The first respondent may deem it appropriate to consider the matter further in the light of this undeniable fact.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Associate:
Date: 13 February 2014
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