KAUR v Minister for Immigration

[2016] FCCA 1831

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1831

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal – application for a Student (Temporary) (Class TU) visa – grounds of application impermissible merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360A(1), 360A(2), 360A(4), 360A(5), 362B, 379A(4), 379C(4), 474(2)
Migration Regulation 1994 (Cth). Regs.1.40A, 4.21, Sch.2: cls.572.231, 572.235
Migration Amendment (Redundant and Other Provisions) Regulation2014 (Cth), cl.572.235

Cases cited:

AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383

First Applicant: MAJINDER KAUR

Second Applicant: GURPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2363 of 2014

Judgment of: Judge Hartnett

Hearing date: 11 May 2016

Delivered at: Melbourne

Delivered on: 11 May 2016

REPRESENTATION

The First Applicant: In Person

Counsel for the First Respondent:

Mr Day

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The application is dismissed.

3. The Applicants pay the cost of the First Respondent fixed in the sum of $4,092.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2363 of 2014

MAJINDER KAUR

First Applicant

GURPREET SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed on 24 November 2014 in which the Applicants seek relief in the form of constitutional writs against a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) dated 28 October 2014.  The Tribunal, by that decision, affirmed the decision not to grant the First Applicant’s Student (Temporary) (Class TU) visas. 

2. The grounds of application are as follows:-

   “1. The tribunal made an error in judgment as I meet all the requirements of the grant of my student visa (572)

   2.  My application was not assessed properly and the tribunal did not provide me an opportunity to explain my situation and circumstance.”

   These grounds are not particularised.

3. The Applicants are self-represented in these proceedings.  By order of Registrar Burns on 4 March 2015, the Applicants were to file and serve by 8 April 2015 any amended application, including any additional grounds of review with  complete particulars of each ground; and any affidavits.  Further, the Applicants, pursuant to those orders, were to file and serve written submissions and a list of authorities 14 days before the final hearing. The Applicants have not amended the grounds of application and nor have they filed any written submissions in the proceedings.

4. The First Respondent filed a response on 5 December 2014 opposing the orders sought by the Applicants on the basis that no arguable case for the relief sought was raised. The First Respondent contended that the Applicants sought to engage the Court in impermissible merits review and otherwise contended that the Applicants were provided with an opportunity to present their case before the Tribunal, in the invitation to attend a hearing before the Tribunal forwarded to their authorised recipient in correspondence of 14 September 2014.

5. The First Respondent also relied upon an affidavit affirmed on 29 April 2015 by Nayomi Senanayake, Solicitor.  Attached to that affidavit and marked with the letter “A” is a true copy of the letter sent from the Tribunal to the Applicants, dated 24 September 2014. Also attached to that affidavit and marked with the letter “B” is a true copy of the postal dispatch register dated 24 September 2014.  The First Respondent also relied upon an affidavit affirmed by Aaron Michael Day, Solicitor, on 10 May 2016 which annexes as annexure A, case note 13291002 of 21 October 2014 and case note 13322783 of 27 October 2014.  Both case notes detail separate SMS hearing reminders sent to the First Applicant’s mobile number of 0413 837 847 (as provided in her application for review to the Tribunal) on 21 October 2014 at 11:24:02 am and 27 October 2014 at 11:00:17 am. 

History

1. The First Applicant (‘the Applicant’) applied for a Student (Temporary) (Class TU) visa on 15 April 2013.  The Second Applicant is the spouse of the Applicant.  The relevant subclass for the application was subclass 572.

2. The delegate for the Minister (‘the delegate’) refused to grant the Applicant a visa on 17 December 2013.  The Decision Record of the delegate was before the Tribunal. 

3. The delegate refused to grant the Applicant a visa on 17 December 2013 for failure to satisfy cl.572.235 of Sch.2 to Migration Regulation 1994 (Cth) (‘the Regulations’). Pursuant to Item 142 Part 6 Sch.1 of Migration Amendment (Redundant and Other Provisions) Regulation2014 (Cth) cl.572.235 was repealed. The removal of the (complied substantially criterion) for student visas applies to all visa applications not finally determined as at 22 March 2014, as well as those made on or after that date. Therefore, the repeal of cl.572.235 was applicable at the time of the Tribunal decision as noted by the Tribunal in its Statement of Decision and Reasons (‘the Decision Record’).

The Tribunal

1. The Applicant applied to the Tribunal for review of the delegate’s decision on 2 January 2014. The Tribunal received applications for review made by the First and Second Applicants in respect of decisions to refuse to grant Student (Temporary) (Class TU) visas on 2 January 2014. The Tribunal acknowledged receipt of such applications to the authorised recipient of the Applicants by correspondence dated 7 January 2014.

2. The application for review to the Migration Review Tribunal (form M1) was completed relevantly as to paragraph 3, details of the person applying for review, ‘Person 1’ as identified as on the form, being Mrs Manjinder Kaur.  In paragraph 5 of the application, ‘Person 1’ contact details were provided and they were as follows:-

   “Address in Australia where you currently live:  18 Canterbury Close Narrewarren Vic 3805

   Contact telephone numbers in Australia:  Mobile [phone]

   Your e-mail address:  [email protected]”

3. In Part F, paragraph 23, the Applicant’s representative’s details were provided as follows:-

   “Family name: Sharma

   Given names: Dr Vijay K

   Organisation name: Disha Migration & Career Consulting

   Postal address:  Suite 609, Level 6, 530 Little Collins Street Melbourne Vic 3000

   Contact numbers: Daytime: [phone]

   Mobile: [phone]

   Email address:  [email protected]”

4. The representative’s signature appeared in paragraph 24 with a date of 1 December 2014. In paragraph 21, the Applicants indicated by completing the box “yes” that they wished to appoint a representative to act on their behalf and to be their authorised recipient. The Applicants signed the declaration contained in Part I and the applications were lodged as described in paragraph 9 herein.

5. By letter dated 24 September 2014, the Tribunal invited the Applicant to appear at a hearing scheduled for 28 October 2014 at 9.30 am. The location of the hearing was provided in the invitation.  Further, in the hearing invitation, the Tribunal asked the Applicant to provide a Certificate of Enrolment (COE) as required for the grant of a student visa and documents that showed the Applicant was currently enrolled in a course, or had an offer of enrolment in a registered course, as required for the grant of a student visa. The Tribunal further requested “documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia” and “an explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.”

6. The Tribunal requested that the written statement and other evidence be provided to it at least seven days before the hearing date. The Applicant did not provide any information. The Applicant did not return the response to hearing invitation. 

7. The Applicant did not appear at the scheduled hearing on 28 October 2014, despite the Tribunal’s invitation to the Applicant to attend at the hearing to give oral evidence and present arguments. The Applicant was advised in the correspondence of 24 September 2014, that if she did not attend the hearing, and a postponement was not granted, the Tribunal may make a decision on the Applicant’s case without further notice. 

8. Given the failure of the Applicants to appear before the Tribunal on the day and at the time and place at which they were scheduled to appear, the Tribunal, pursuant to s.362B of the Migration Act 1958 (Cth) (‘the Act’) determined to make its decision on the review without taking any further action to enable the Applicants to appear before it. I note that in addition to the hearing invitation letter forwarded to the authorised recipient of the Applicants, the Tribunal had, as set out in the affidavit of Mr Day, affirmed 10 May 2016, sent two SMS hearing reminders to the Applicant’s mobile phone number as indicated in her application for review, reminding the Applicants of the hearing date of 28 October 2014.

9. In the decision of the Tribunal, the Tribunal noted that the issue before the delegate was whether the Applicant met the criterion cl.572.235 of the Regulations. The Tribunal stated, however, that the issue for it was whether at the time of its decision, the Applicant met the enrolment requirements for a student visa.

10. The Tribunal noted, pursuant to cl.572.231 of the Regulations, that at the time of decision, an Applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course and is of a type specified under reg.1.40A of the Regulations for the subclass at the time of application. 

11. The Tribunal found that there was no evidence before it that the Applicant was then enrolled in, or had a current offer of enrolment in any applicable course of study.  Furthermore the Tribunal noted there was no evidence before it that the Applicant met the criteria for a subclass 576 (Ausaid or defence sector) or subclass 580 (student guardian) visa, the remaining subclasses of class TU.

12. The Tribunal noted there was no evidence or claim that the Second Applicant sought to satisfy the primary criteria for the grant of the visa.  As the First Applicant did not meet a primary criterion for the grant of the visa, the Second Applicant was unable to satisfy the secondary criteria.

Consideration

1. The decision of the Tribunal is a privative clause decision as defined by s.474(2) of the Act. The Applicant was required to establish jurisdictional error attending the decision of the Tribunal.

2. To the extent that the Applicant seeks impermissible merits reviews of the decision, that ground of the application cannot be sustained.

3. In respect of the Applicant’s issue with the Tribunal proceeding to review the delegate’s decision, pursuant to s.362B of the Act, in circumstances where the Applicant submits orally in Court this day that she was unaware of the hearing invitation and that her authorised recipient had failed to provide it to her, that ground also cannot be made out.

4. The Tribunal’s hearing invitation complied with the requirements of the Act and Regulations, and it was open to the Tribunal to exercise its discretion under s.362B of the Act and make a decision on the basis of the information before it.

5. The Tribunal’s hearing invitation letter was sent as required to the Applicant’s authorised recipient at the postal address nominated on the application to review the decision of the delegate.

6. As submitted by Counsel for the First Respondent, the hearing invitation specified to the Applicant the date, time and location of the scheduled hearing as required by s.360A(1) of the Act and contained a statement to the effect of s.362B of the Act as required by s.360A(5) of the Act.

7. The hearing invitation was sent to the Applicant’s agent by the method specified in s.379A(4) of the Act, namely by prepaid post to the last address for service provided to the Tribunal by the Applicant in connection with the review. Section 360A(2) of the Act was complied with in respect of the forwarding of the hearing invitation to the Applicant’s authorised recipient.

8. Section 360A(4) of the Act and reg.4.21 of the Regulations required that the hearing invitation give the Applicants at least 14 days notice of the hearing and there was compliance with those legislative directives. The Applicants were deemed to have received the hearing invitation on 3 October 2014 well prior to the hearing date of 28 October 2014.

9. The hearing invitation letter was not returned to sender. 

10. By operation of the deeming provision in s.379C(4) of the Act, the Applicants were taken to have received the hearing invitation letter and the Tribunal was entitled to proceed to a decision pursuant to s.362B of the Act.

11. Following the forwarding of the hearing invitation, the Tribunal received nothing from the Applicants’ authorised recipient by way of a response to the hearing invitation or by way of the provision of any submissions or documents. Likewise, the Tribunal received no correspondence or communications of any sort from the Applicants.

12. The Tribunal went further than it was required to go, by taking a cautionary step of sending not one, but two, SMS messages to the Applicants directly on the phone number provided by the First Applicant in the application for review filed with the Tribunal to remind the Applicants of the upcoming hearing date. 

13. The facts of this case are distinguishable (given the above) from those set out in the decision of AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383. The Tribunal was not under any further obligation to communicate with, or ascertain how to communicate with the Applicants in the circumstances of this case, beyond that which they did in compliance with the legislative framework.

14. The Tribunal, in the manner prescribed by the Act, afforded the Applicant an opportunity to be heard and the Applicant did not attend that hearing. The Tribunal did not fail to afford the Applicant natural justice by proceeding to make its decision on the Applicant’s review application in her absence. The Tribunal exercised its discretionary power to proceed as it did in a manner which was reasonable.

15. There is no jurisdictional error attending the decision of the Tribunal and the judicial review application before the Court must be dismissed.   There was indeed no arguable case before the Court.  Costs shall follow the event.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 19 July 2016