Khabra v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 24
•23 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khabra v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 24
File number: MLG 1562 of 2018 Judgment of: JUDGE FORBES Date of judgment: 23 January 2024 Catchwords: MIGRATION – applications for temporary and permanent spousal visas - judicial review of decision of Administrative Appeals Tribunal to dismiss application – where applicant did not attend Tribunal hearing – whether applicant notified of invitation to Tribunal hearing – manner of service of invitation – whether service of hearing invitation on applicant’s representative sufficient – where applicant knew of invitation in any event – whether any injustice where Tribunal determined application without hearing from applicant Legislation: Migration Act 1958 (Cth) s 65, 360, 360A, 362B, 379A, 379C, 379G, 494D Cases cited: Bala v Minister for Immigration and Border Protection [2019] FCA 600
BOT18 v Minister for Immigration and Border Protection [2019] FCCA 2793
FEY17 v Minister for Home Affairs [2020] FCA 1014
Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627
Minister for Immigration, Citizenship and Multicultural Affairs v Nguyen (2022) 295 FCR 640
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of hearing: 19 December 2023 Place: Melbourne Applicant: In person Counsel for the Respondents: Ms Chan Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1562 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASPREET SINGH KHABRA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
23 JANUARY 2024
THE COURT ORDERS THAT:
1.The Applicant’s application for judicial review filed on 5 June 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
By a decision dated 7 May 2018 the Administrative Appeals Tribunal (the Tribunal) affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The Tribunal’s decision was made under s 362B(1A)(a) of the Act after the applicant did not appear at a hearing scheduled that day.
The applicant seeks judicial review of the Tribunal’s decision.
By an application dated 5 June 2018 the applicant seeks an order that the Tribunal’s decision be quashed and advances fifteen paragraphs of “grounds” of asserted error. When distilled, those grounds come down to two contentions of jurisdictional error, namely:
(1)that the Tribunal erred by proceeding to hear and dismiss the application without hearing from the applicant; and
(2)that there was no proper basis for the Tribunal to dismiss the application and affirm the decision of the delegate.
For the reasons set out below, I am not satisfied that the applicant has established jurisdictional error. Accordingly, the application for review will be dismissed and the applicant should pay the Minister’s costs.
BACKGROUND
The applicant is a citizen of India who first arrived in Australia on 6 January 2009 as the holder of a Subclass 573 student visa. The applicant’s student visa expired on 30 September 2011.
In late 2012 the applicant met Ms Poni, an Australian citizen, and the couple commenced a relationship shortly after.
On 14 July 2013, the couple married. It is not in issue that their marriage is valid for the purposes of the Act.
Shortly thereafter, on 6 August 2013, the applicant lodged an application for a Subclass 820 (Temporary) Partner visa and for a Subclass 801 (Permanent) Partner visa with the Department of Immigration and Border Protection (the Department). These two Partner visa types are typically applied for jointly. One of the criteria for the grant of a Subclass 801 (Permanent) Partner visa, as set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), is that the applicant is a holder of a Subclass 820 (Temporary) Partner visa.
Relevantly, at the time the applicant applied for the visas, Clause 820.211(2)(d) of Schedule 2 to the Regulations provided as follows:
(d) in the case of an applicant who is not the holder of a substantive visa--either:
(i) the applicant:
(A)entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. (emphasis added)
Criterion 3001 of Schedule 3 requires the application to be made within 28 days after the day the applicant ceased to hold a substantive visa[1].
[1] Criterion 3001(1); (2)(c)(iii) of Schedule 3 to the Migration Regulations 1994 (Cth) (the Regulations)
On 15 July 2014 the applicant’s Subclass 820 Partner visa application was refused by a delegate of the Minister on the basis that the applicant did not meet Criterion 3001, as the visa application was lodged more than 28 days after the applicant held a substantive visa (i.e., the student visa), and compelling reasons did not exist to waive the Schedule 3 criteria. As the Subclass 820 Partner visa was not successful, the Subclass 801 Partner visa application was also refused.
On 8 August 2014 the applicant applied to the Migration Review Tribunal (MRT) for review of the decision, but on 8 October 2014 the MRT found that it did not have jurisdiction to review the matter as the application for review had been filed out of time.
On 6 November 2014 the applicant applied to the Federal Circuit Court for judicial review of the MRT’s decision. The application was dismissed on 28 August 2015. The applicant appealed to the Federal Court of Australia, where the application was dismissed on 11 December 2015. The applicant then appealed to the High Court. On 31 May 2016 the High Court remitted the matter by consent to the Department. The Minister conceded that[2]:
“[…] his delegate fell into jurisdictional error for the reasons identified in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (Waensila), in construing clause 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 as confining the decision-maker's satisfaction of whether there are compelling reasons for not applying Schedule 3 criteria 3001, 3003 and 3004 to circumstances which only exist as at the time of application.”
[2] Court Book (CB) 302-303
Second delegate decision and second Tribunal decision
On 22 December 2016 the applicant was invited by the Department to provide further information regarding “compelling reasons” that might allow the Schedule 3 criteria to be waived. The applicant was also invited to provide further evidence about his relationship with Ms Poni. On 18 January 2017 the applicant responded, providing a brief email and attaching a letter written by the applicant.
On 4 April 2017 the Partner visa applications were again refused by a second delegate of the Minister. As in the first delegate’s decision, the second delegate was not satisfied that compelling reasons existed to waive compliance with Criterion 3001.
On 20 April 2017 the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review. On the application form, the applicant nominated Owlet Migration & Education Consulting, a registered migration agent, as his representative.
On 12 April 2018 the Tribunal sent an email to the applicant’s representative inviting the applicant to attend a hearing at 2.00pm on 7 May 2018. The invitation included a form entitled: “Response to hearing invitation – MR Division. Please complete and return this form to us”.
On 1 May 2018 the applicant’s representative returned the abovementioned form, completed and signed by the applicant, indicating both he and his representative would attend the hearing.
On 7 May 2018 at 12.04pm the applicant’s representative informed the Tribunal via email that the applicant would not be attending the hearing. Full details of the correspondence are laid out below. That same day, the Tribunal proceeded to affirm the second delegates’ decision to refuse the Partner visas without taking any further action to allow the applicant to appear before it.
On 5 June 2018, the applicant applied to this Court for judicial review of the Tribunal’s decision.
Application for judicial review
As mentioned, the application for review filed by the applicant relies upon fifteen “grounds” expressed as follows[3]:
[3] CB 413–414
1.I am applying Judicial Review at Federal circuit court under the s.476 of the Migration Act 1958 related to federal circuit court regulations.
2.I am not happy with the decision of tribunal as The Tribunal has affirmed the decision not to grant my Partner (Temporary) (Class UK) visa due non- attendance of tribunal hearing.
3.Time of the application I was eligible to spouse visa onshore under the criterion of Migration act 1958, because of Immigration processing I have been victim, now tribunal doesn’t spare my non attendance even I do have exceptional circumstances beyond my control as I was in interstate due to some family issue, also I have forgotten the hearing date.
4.My circumstances are not considered at all, I haven’t been given second chance to attend the hearing or haven’t been allowed to do written explanation by tribunal after my no-attendance of tribunal hearing, the Tribunal has decided to make its decision on the review without taking any further action under the s.362B of the Act which has Jurisdictional error.
5.Tribunal and Delegate previously and also present situation says same thing as I haven’t submitted the submissions, but tribunal and delegate never looked in to my situation what situation I am in, why did not allow me for hearing that is the main question here, if I did not submit orally or written evidence on hearing date then tribunal use the words of I did not submit any material to tribunal in regarding my spouse visa decision record. It looks to me unfair and clear view of there is no procedure fairness conducting review process by tribunal.
6.Accordingly, the delegate has found that I am not the spouse of the sponsor, as defined under s.5F of the Migration Act, I question myself and wanted to question Migration Review Tribunal or Immigration in this regard without considering the material with application, all the information is available with Immigration record.
7.I have compelling reasons for Schedule 3 criteria waiver, for instance, tribunal could satisfy my long time relationship with Australian partner as I could be eligible for waiver under the case of Waensila v MIBP [2016] FCAFC 32; they did not assess my application totally wrongly and talking about biological child to get the schedule three waiver, this argument which is pragraghs’20 & 22’ from tribunal decision record need to be examined by Federal circuit court again.
8.I have already taken this matter this case up to high court and case has been remitted back to tribunal, tribunal has made same mistake in assessing the application which is not fair and I have felt it is totally wrong according to natural justice.
9.That is the reason I went for the review at Administrative Appeal Tribunal, but the tribunal comes up with decision in Five minutes without hearing my conversation.
10.I am still legally married to the sponsor and is still waiting for her it is long time relationship what should I do in this scenario, where should I go to for natural justice in this matter? My wife is nice woman and I wanted to live with her.
11.Here, if she doesn’t like me she could have given divorce but that did not happen. It means there is question of non-genuine relationship.
12.As such, the Tribunal is not satisfied that at the time of decision the applicant and the sponsoring partner have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal should have given me chance to bring more documents of evidence of our genuine relationship or Tribunal should have called sponsor for hearing to clarify whether she wants go with me or not. Likewise tribunal should have done in same manner for schedule three criterion, but it did not happen in my matter, that is the reason I am bringing this matter to Federal circuit court.
13.Tribunal decision is not justified properly that is the reason I am bring the matter to Federal circuit court under the judicial Review.
14.I do have exceptional circumstances behind missing the tribunal hearing.
15.Therefore, I am requesting the federal circuit court to consider my situation under exceptional circumstances and give me decision legitimately that I could finish my studies in Australia.
Procedural history
Prior to the hearing of the application on 19 December 2023 two procedural orders were made by a Registrar of the Court.
On 25 August 2021 Registrar Van Der Westhuizen directed the Minister to file and serve a court book by no later than 4 September 2019 and to file and serve a written outline of submissions at least 14 days before the final hearing. On that occasion, the applicant was directed to file and serve any amended application with proper particulars of the grounds of the application, any supplementary court book and an outline of written submissions at least 28 days before the final hearing date.
Subsequently, on 26 July 2023 a directions hearing was conducted by the Registrar. The applicant appeared at that hearing by telephone as did a representative of the Minister. The orders made that day adjourned the hearing to a date to be advised and included a notation that “[t]he applicant confirmed he has received a copy of the court book”.
The Minister’s solicitors prepared and served a copy of the court book and written outline of submissions in accordance with the orders. However, by the time of the final hearing, the applicant had not amended his application or filed written submissions or any other material in support of the application.
HEARING
I heard the application on 19 December 2023. The applicant was self-represented and did not require the assistance of an interpreter. He plainly had a strong command of the English language. The Minister was represented by Ms Chan of counsel.
At the commencement of the hearing, I explained the course the hearing would follow, including the order of oral submissions and the applicant’s right of reply. I informed the applicant that the Court could not review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. I explained that the role of the Court was restricted to determining whether the Tribunal had acted in accordance with law and within the scope of its statutory authority. I was satisfied that the applicant understood the explanation and I invited him to ask questions or seek further clarification if there was anything about the process he did not understand.
The applicant confirmed that he had received a copy of the court book and a copy of the Minister’s outline of submissions.
Applicant’s submissions
The applicant sought to give an overview of some of the events which had led him to bring the current application. He said that it had been 15 years since he arrived in Australia on a student visa. He said that he had come here to study but because of issues with the training college, by the time he finished his study there was no time to get a temporary residence visa.
The applicant said that he had met a girl, established a relationship and then married. He said that he received some bad advice and applied for the Partner visa onshore. The applicant said that the visa had been refused by a delegate and the Tribunal previously and seemed to attribute blame to a previous representative who he had subsequently reported to a regulator. The applicant said that he had lost all his connections back in India, had been in Australia continuously since he arrived and did not know what he would do if he had to go back.
When I asked the applicant to address the Tribunal decision to dismiss his application after his nonappearance, he again attributed responsibility to his agent. He said that he had appointed an agent to represent him and had spent a lot of money, but did not know that the Tribunal hearing was to take place. The applicant said he only found out about the hearing three days afterwards when the Tribunal decision came out.
Minister’s submissions
Ms Chan relied upon the materials contained in the court book and on the outline of submissions filed on 5 December 2023. She sought to develop those submissions orally.
The Minister submitted that the grounds of review could be dismissed on the basis that they lacked sufficient particulars[4]. However, making allowance for the fact the applicant is unrepresented[5], Ms Chan helpfully distilled the grounds to the two propositions identified in the introduction to this judgment and she structured her submissions to answer each of them.
[4] E.g., FEY17 v Minister for Home Affairs [2020] FCA 1014 at [90]
[5] Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7] (Anastassiou J).
That the Tribunal erred by dismissing the application without hearing from the applicant
The Minister submits that the applicant was validly invited to the Tribunal hearing and that the hearing invitation complied with the requirements of s 360A of the Act. Once the applicant failed to appear at the scheduled hearing, s 362B of the Act empowered the Tribunal to make a decision in relation to the application based on the material before it without taking any further action to enable the applicant to appear. The Minister submits that the Tribunal had the power to do so under s 362B(1A)(a) and that its dismissal of the application in those circumstances was not erroneous.
The Minister pointed to the following facts and circumstances which they say lead to the inevitable consequence that the application for judicial review must fail.
On 20 April 2017 the Tribunal received an online application[6] for review of the delegate’s decision to refuse the Partner visa on 4 April 2017. The online application contained various personal contact details of the applicant, including his address, telephone number and an email. The application also identified a registered migration agent, Mr Jayapal Reddy Vadlakonda of Owlet Migration & Education Consulting as the applicant’s representative. Contact details of the representative including business address, telephone number and email address were included in the online application filed with the Tribunal.
[6] CB 363-364
On 21 April 2017 the Tribunal wrote to the applicant’s representative, at the representative’s email address, to confirm receipt of the application for review. In that letter, the Tribunal enclosed various documents which contained information about the review process. The Tribunal’s covering letter explained[7]:
“The enclosed documents are given to you as the authorised recipient of the applicant. As the authorised recipient, we are required to give you, instead of the applicant, any document that we would otherwise have given to the applicant.
By providing you with these documents, we are taken to have given the documents to the applicant. You should ensure that the applicant is informed of this letter as soon as possible.” (originally bolded)
[7] CB 366
Among the documents conveyed to the applicant via his representative, there was an “Acknowledgement of Application” addressed to the applicant and a document headed “Information for migration review applicants” which included the following note[8]:
“How will we correspond with you?
You may choose to have correspondence sent to yourself, or may nominate a person to receive correspondence on your behalf (this person is known as your authorised recipient).
If you nominate an authorised recipient, we will send all correspondence to that person. There are two circumstances where we will send a copy of any correspondence to a review applicant, as well as to the review applicants authorised recipient. The first is where the review relates to a decision to refuse or cancel the bridging visa of a non-citizen who is in detention as a result of that decision… The second is where a review applicant has nominated a migration agent as his or her representative or authorised recipient, and that migration agent’s registration has been suspended or cancelled or has lapsed.
You should promptly inform us of any change in your contact details and, if you have an authorised recipient, any change in theirs. You should also inform your authorised recipient (if you have one) and the Department of any changes. If we do not receive a response to correspondence, your case may be decided without further notice.”
[8] CB 372
On 12 April 2018 the Tribunal sent an email[9] to the applicant’s representative extending an invitation for the applicant to a hearing scheduled for 7 May 2018 at 2.00pm. Again, the covering email to the representative stated that the documents were being sent to him as authorised recipient of the applicant and that the representative was required to ensure that the applicant was informed of the invitation as soon as possible.
[9] CB 374-375
The hearing invitation identified the date, time and place of the hearing and its estimated duration. The invitation which was addressed to the applicant, but sent through his representative, cautioned as follows:
“If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you did not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss the application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.”
The documents sent to the applicant’s representative also included an information sheet[10] which reinforced the caution set out above. It reiterated that in the event of non-attendance at the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear or may dismiss the application without any further consideration of it.
[10] CB 379-382
A further document enclosed with the hearing invitation, which was required to be completed and returned to the Tribunal, was headed “Response to hearing invitation - MR Division”. That document, which was partly populated with details of the case number, the applicant’s name and his representative’s name, required the applicant to identify who would attend the hearing, whether witnesses would be called and whether an interpreter would be required.
According to Tribunal case notes, the Tribunal sent an SMS text message[11] to the applicant’s mobile phone at 11.01am on 30 April 2018 reminding him of the hearing scheduled for 7 May 2018. The message also prompted the applicant to check the hearing invitation to confirm details.
[11] CB 395
On 1 May 2018 the applicant’s representative emailed the Tribunal and attached a completed and signed “Response to hearing invitation”[12]. That completed document appears to bear the handwritten name, date and signature of the applicant. During the course of submissions counsel for the Minister took the Court to a number of other documents in the court book which bear the applicant’s signature and noted the signature on the response returned on 1 May 2018 appeared identical. I also note, during his reply, the applicant admitted that he had signed a number of documents presented to him by the representative and he did not challenge the Minister’s submission on this point.
[12] CB 386-389
According to the Tribunal case notes in the court book, the Tribunal sent another SMS reminder to the applicant’s mobile phone at 11.00am on 4 May 2018. That SMS message stated that the hearing was on 7 May 2018.
At 12.04pm on 7 May 2018, just under two hours before the scheduled hearing, the Tribunal registry received an email from the applicant’s representative in the following terms:
“Dear officer
I am notifying the Tribunal that applicant is not able to attend the hearing. I rang the applicant few minutes ago, he claims that he is in Queens land [sic]. So far he did not do any submission, I don’t think so he would be able to do some submissions. Therefore, I leave this matter to Tribunal.
Thank you very much, Have a nice day.
Note: travel ticket is not provided to us yet.”
As stated in the background above, the Tribunal member proceeded to determine the matter notwithstanding the applicant’s nonappearance. The Tribunal dismissed the application and published its reasons later that day. Explaining why it decided to hear the matter without the applicant in attendance, the Tribunal said at [6]:
“[6]Mr Khabra did not attend the Tribunal at the scheduled hearing time. There has been no satisfactory explanation for that. Mr Khabra’s representative’s email indicates that the representative had a discussion with Mr Khabra today yet the email does not explain why Mr Khabra is interstate, if he is interstate. The email does not say, for instance, that Mr Khabra would be unable participate in the hearing by telephone. The email does not contain any request for the hearing to be postponed so that Mr Khabra can attend in person or participate by telephone. In the circumstances, 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 Mr Khabra to appear before it.”
CONSIDERATION
I accept the Minister’s submission that the circumstances described above do not reveal any error on the part of the Tribunal.
At the time of the Tribunal’s decision, s 362B of the Act relevantly provided:
362B Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.
Section 362B is not engaged unless the Tribunal invites the applicant to appear at a Tribunal hearing pursuant to s 360 of the Act. A valid invitation must comply with the various requirements of s 360A, being:
Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies-by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention-by a method prescribed for the purposes of giving documents to such a person.
(4)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(5) The notice must contain a statement of the effect of section 362B.
The Tribunal wrote to the applicant (through his registered migration agent) via email on 12 April 2018 and invited him to attend a hearing. I am satisfied that the invitation complies with the requirements of s 360A. The relevant notice[13] plainly identified the time, date and place at which the applicant was scheduled to appear, it was sent with adequate notice[14] and it contained the necessary caution about the consequences of non-attendance (as required by s 362B)[15].
[13] CB 374
[14] The prescribed period in matters of this sort is 14 days (see reg 4.21 of the Regulations). Here, the notification was sent to the applicant’s migration agent 25 days prior to the hearing date: s 360A(4) of the Migration Act 1958 (Cth) (the Act)
[15] CB 377
As to whether the notice was given to the applicant as required by s 360A(2)(a), the Minister submits that it was sufficient for the hearing invitation[16] to be given to the applicant’s representative “as the authorised recipient of the applicant”. For the reasons set out below, I am satisfied that service of the notice in that manner constitutes the giving of notice to the applicant.
[16] CB 375
As a model litigant the Minister referred the Court to a recent decision of the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v Nguyen (2022) 295 FCR 640 (Nguyen). The Minister conceded the possibility that this decision may enliven the question of whether the Tribunal, in the current case, complied with s 360A by giving the hearing invitation only to the applicant’s representative and not to the applicant himself.
In Nguyen, the Full Court found that the nomination by an applicant of a representative through a Form 956 did not necessarily constitute written notice that the representative, instead of the applicant, is to receive documents under all circumstances. The Court there found that where the legislation[17] requires a notice to be in connection with “specified matters”, a notice from the Minister to an applicant’s representative dealing with other matters might not be sufficient notification to the applicant. In that case, the Court found that the applicant had appointed a representative to receive documents in relation to his application – it was an appointment limited in scope. A notice to the representative in relation to the revocation of the cancellation of the applicant’s visa was outside the scope of the specified matters.
[17] In that case s 494D(1)
Secondly, the Full Court in Nguyen rejected a finding by the primary judge that service of documents by the Minister on an authorised representative alone would only be sufficient where the applicant had expressly authorised the representative to receive documents instead of the applicant. In relation to a different statutory provision, s 494D of the Act, the Court held that one purpose of that section is that in circumstances where the Minister is given written notice of an authorised representative, there will be only one recipient of communications, namely the authorised recipient. This purpose of a single recipient “[…] of itself, in many cases is likely, as a practical matter, to reduce the possibility of confusion, and, from confusion, error, and, from error, unfairness and hardship.”[18]
[18] Minister for Immigration, Citizenship and Multicultural Affairs v Nguyen (2022) 295 FCR 640 at [35]
The Minister distinguished the particular circumstances of Nguyen from the decision of Judge Driver in BOT18 v Minister for Immigration and Border Protection [2019] FCCA 2793 (BOT18). In BOT18 his Honour found that when the applicant filed the online review application form appointing his representative, the representative was also appointed as an authorised recipient[19]. The applicant there, as here, was invited, via correspondence to the applicant’s representative, to attend a hearing before the Tribunal. The Court found that “the Tribunal’s invitation to hearing dated 5 December 2017 complied with the statutory requirements of the Migration Act […]”[20].
[19] At [25]
[20] At [26]
Having considered the authorities to which I was taken, I am satisfied that service of the invitation notice upon the representative identified in the application for review to the Tribunal did comply with s 360A(2)(a) of the Act. Here the applicant’s appointment of the authorised representative in his application form was clearly in relation to his application for review to the Tribunal and the Tribunal’s invitation to a hearing clearly pertained to that review process. Further, I am satisfied that purpose of the relevant statutory scheme, including s 360A(2)(a), is consistent with the purpose identified by the Full Court in Nguyen – that where the Minister is given written notice by an applicant of an authorised representative, there will be only one recipient of future communications, namely the authorised recipient.
In any event, should I be wrong about that, I am satisfied that any failure on the part of the Tribunal to provide the hearing invitation to the applicant did not give rise to jurisdictional error. The Minister advanced two persuasive reasons why that should be the case.
First, s 360A(2)(a) requires a hearing invitation to be sent “by one of the methods specified in s 379A”. One such method is by transmitting the document by email to the last email address provided to the Tribunal by the applicant in connection with the review[21]. By purporting to send the hearing invitation to the applicant’s representative, the Tribunal can be taken to have adopted that method of service.
[21] S 379A(5)(b) and (d) of the Act
If, however, the Tribunal was incorrect in the selection of the email address to which the invitation was to be sent (which is not conceded by the Minister), s 379C(7) serves to cure the error by deeming the application to have been received in certain circumstances. Relevantly, s 379C(7) provides:
Document not given effectively
(7) If:
(a)the Tribunal purports to give a document to a person in accordance with a method specified in section 379A (including in a case covered by section 379AA) but makes an error in doing so; and
(b)the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time. (emphasis added)
The background facts and circumstances described above give rise to an overwhelming inference that the applicant did in fact receive the hearing invitation before the hearing. He received two SMS text messages prior to the hearing which made direct reference to the hearing invitation. Moreover, and critically, the Tribunal received a Response to the hearing invitation bearing the handwritten name, date and signature of the applicant. In his reply submission at the final hearing, the applicant admitted that he had signed documents given to him by his representative.
The Minister submits that the Court should not accept the applicant’s submission, made from the bar table during the hearing, that he did not receive the invitation to the hearing. The Minister argued that the applicant’s submission is implausible and untenable, particularly having regard to the grounds in his application for judicial review which included the assertion[22]:
“3.[…] now tribunal doesn’t spare my non-attendance even I do have exceptional circumstances beyond my control as I was in interstate due to some family issue, also I have forgotten the hearing date.”
[22] CB 413
I accept the Minister’s submission. The applicant bears the onus on judicial review to adduce evidence that he did not in fact receive the hearing invitation. He has not done so, and any statement from the bar table sits uncomfortably with the material in the court book. I am left in little doubt that the applicant was aware of the hearing before it occurred and that, by reason of s 379C(7), any shortcoming in the manner of service would be cured.
Second, I accept the Minister’s submission that even if there was a failure by the Tribunal of an obligation to give the hearing invitation to the applicant himself, that failure did not result in any prejudice to the applicant or denial of natural justice.
Compliance with s 360A is not an “inviolable [restraint] conditioning the Tribunal’s jurisdiction to conduct and decide a review”[23]. Whether any departure would result in invalidity depends upon a “consideration of the extent and consequences of the departure”[24]. It is not conceded by the Minister that there was any departure from the requirements of s 360A(2) in this case, but if there were it was simply that the invitation was sent to the applicant’s nominated representative rather than the applicant himself. I agree with the Minister that it would be absurd to conclude “that the legislature intended that invalidity be the consequence of departure”[25] in circumstances where the applicant in fact clearly received the invitation and was aware of the hearing. The applicant did not lose an opportunity to be heard and was not subjected to an injustice.
[23] Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 (SZIZO) at [36]
[24] SZIZO at [35]
[25] SZIZO at [35]
For the reasons set out above, s 362B of the Act empowered the Tribunal to be make a decision in relation to the application based on the material before it without taking any further action to enable the applicant to appear. The Tribunal had the power to do so pursuant to s 362B(1A)(a) and did not fall into error.
That there was no proper basis for the applicant to dismiss the application
There was also, in my opinion, no error in the Tribunal’s decision to affirm the decision of the delegate not to grant the Partner visa.
It is necessary to briefly return to the background of the applicant’s Partner visa application.
Criterion 3001 of Schedule 3 required that the applicant make the visa application within 28 days after the day on which he ceased to hold a substantive visa. At the time the applicant applied for the Partner visa, the 28 days had long passed and he was therefore not capable of satisfying clause 820.211(2)(d) of Schedule 2 of the Regulations. However, this requirement may be waived if the Minister is satisfied that there are “compelling reasons” for not applying criterion 3001.
Prior to making a decision in relation to the visa application, the applicant was invited by the Department to provide information about the existence of any compelling reasons why the Schedule 3 criteria, including 3001, should be waived. In a very detailed letter to the applicant dated 22 December 2016[26] the applicant was also invited to provide further evidence regarding his relationship with his partner, for consideration by the delegate.
[26] CB 308-312
On 18 January 2017 the applicant sent a three-page response[27] to the Department. On any reasonable reading, that response did not advance any reasons why criterion 3001 should be waived, nor did it engage with the Department’s enquiries about the status of his spousal relationship.
[27] CB 315-317
On 6 February 2017 the Department again wrote to the applicant requesting further and more detailed information to support his Partner visa application[28]. The correspondence from the Department enclosed a checklist which provide detailed descriptions of the information required from the applicant. The applicant did not respond.
[28] CB 319
On 4 April 2017, after providing these opportunities to the applicant to submit information relating to any compelling reasons for waiving criterion 3001, the delegate made a decision[29] refusing the visa application. The delegate did so because they were not satisfied that there were compelling reasons not to apply the criterion.
[29] CB 330-338
As described earlier, after the applicant applied to the Tribunal for review, the Tribunal wrote to him via his representative on 21 April 2017[30]. In that letter, inter alia, the applicant was invited to provide “material or written arguments for us to consider”. The information notices provided with the correspondence also informed the applicant that he could provide other material which he believes support his application, including a statement explaining why he disagreed with the Department’s decision. The applicant did not avail himself of these opportunities.
[30] CB 367
Turning then to the decision of the Tribunal and whether the findings made were open to it.
The Minister submits that the Tribunal’s reasons are free of error and that the decision to dismiss the application was reasonably open to it. Again, I agree.
At [14]-[15] of its reasons the Tribunal correctly states the question for determination on the review, namely whether the applicant satisfies the Schedule 3 criteria, or if not, whether there are compelling reasons for not applying those criteria. At [18] the Tribunal correctly concludes that the applicant does not satisfy criterion 3001 because he did not make the visa application within 28 days of the relevant day.
At [19] the Tribunal turned its mind to considering whether there are compelling reasons for not applying the Schedule 3 criteria. At [20]-[22] the Tribunal gives definition to the expression “compelling reasons” by reference to relevant authorities of this Court and the Federal Court, including the Full Court. There can, in my view, be no criticism of the legal framing of the question.
At [23]-[26] the Tribunal considered whether there were any claims or evidence that would support a waving of the criterion for compelling reasons. There the Tribunal considered whether there were any children of the relationship, the financial circumstances and other attributes of the relationship and whether there was any medical or other expert evidence relevant to the Tribunal’s consideration.
The conclusion at [27] that there were no compelling reasons for not applying the Schedule 3 criteria was plainly open to the Tribunal on the evidence before it. The Tribunal’s pathway of reasoning does not reveal any jurisdictional error.
DISPOSITION
For the reasons set out above, the applicant has failed to establish any jurisdictional error in the Tribunal’s decision dated 7 May 2018.
Accordingly, the application is dismissed and the applicant should pay the Minister’s costs.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 23 January 2024
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