Khadka v Minister for Immigration
[2014] FCCA 1461
•20 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHADKA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1461 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal’s discretion miscarried when it refused to adjourn its hearing and proceeded to decide the review. |
| Legislation: Migration Act 1958, ss.359A, 360, 474 Migration Regulations 1994, cls.570.232, 571.232, 572.231, 572.235, 573.231, 574.231 and 575.231 of sch.2 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | DEVENDRA KHADKA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1359 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 20 February 2014 |
| Date of Last Submission: | 20 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr D. Hughes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1359 of 2013
| DEVENDRA KHADKA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Nepal, applied for a Subclass 572 Vocational Education and Training Sector visa on 8 March 2011. On 31 March 2011 his application was refused by a delegate of the first respondent (“Minister”) because he had not satisfied cl.572.235 of sch.2 to the Migration Regulations 1994 (“Regulations”) as he had not complied substantially with the conditions of his previous student visa. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
An applicant for a Subclass 572 Vocation Education and Training Sector visa is required to satisfy cls.572.235 and 572.231 of sch.2 to the Regulations. Both clauses must be satisfied at the time of the decision on the visa application.
At all relevant times cl.572.235 required:
If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.
At all relevant times cl.572.231 required:
The applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is:
(a) a principal course; and
(b)of a type that was specified for Subclass 572 visas by the Minister in a Gazette Notice:
(i) made under regulation 1.40A; and
(ii) in force at the time the application was made.
Other student visa subclasses which were potentially relevant to the applicant were 570, 571, 573, 574 and 575. Clauses 570.232, 571.232, 573.231, 574.231 and 575.231 of sch.2 to the Regulations contained requirements similar to cl.572.231.
Background facts
The applicant arrived in Australia on 1 January 2009 as the holder of a Subclass 572 student visa which had been granted on 20 November 2008. As noted earlier, on 8 March 2011 he applied for a further such visa on the basis that he was studying a Certificate IV in Business and then a Diploma of Management at the Holmes Institute.
On 31 March 2011 the delegate refused the applicant’s application on the basis that he did not satisfy cl.572.235 of sch.2 to the Regulations because each of his recorded Confirmations of Enrolment had been cancelled by October 2009 and there had been no indication of study either before or after that date.
On 28 April 2011 the applicant applied to the Tribunal for review of the delegate’s decision. On 13 March 2013 the Tribunal wrote to the applicant, inviting him to attend a Tribunal hearing on 5 April 2013 and to provide information and evidence about his current enrolments, evidence of his past studies and an explanation as to why he had not undertaken a course of study between 6 October 2009 and 22 February 2011. That information was to be provided to the Tribunal no later than two days prior to the hearing. The applicant did not provide any information or evidence, or attend the hearing, despite indicating in his response to the hearing invitation that he would attend.
On 8 April 2013, the Tribunal received from the applicant by hand a medical certificate explaining that he had been unfit for work or study on 4 and 5 April 2013. The applicant also asked for a new hearing date. On 29 April 2013 the Tribunal invited the applicant to attend a new hearing on 22 May 2013 at 1.30pm.
On the morning of the postponed hearing, the applicant hand-delivered to the Tribunal a letter and a medical “Letter of Referral”. The applicant’s letter stated that he was unable to attend the scheduled hearing due to his medical condition, which he described as depression. It also stated that he had been referred to a psychologist, that he was unable to think properly and that he needed more time to face the Tribunal. The Letter of Referral, dated 15 May 2013, was authored by a doctor from a medical centre and stated that the applicant had presented with severe anxiety, depression, insomnia and stress regarding his immigration situation.
After receiving the documents a Tribunal officer telephoned the applicant to advise him that the requested postponement had been refused as the medical evidence he had provided had not satisfied the Tribunal that he was unable to attend the hearing, especially as he had personally hand-delivered the postponement request. The applicant told the Tribunal officer that he had a medical appointment scheduled for that afternoon. The Tribunal noted that “Wednesday 22/5/13” had been hand-written on the Letter of Referral but it was not satisfied that the applicant had a medical appointment at the time of the hearing scheduled for that day. Further, as the medical appointment had been made well after the Tribunal had written to the applicant notifying him of the rescheduled hearing date, the Tribunal was unable to be satisfied that the applicant had not made that appointment deliberately so that it would clash with the hearing.
The applicant was advised by telephone at around 11am that the hearing would proceed as scheduled. The applicant did not provide any further information or evidence as requested and did not attend the hearing. In the circumstances, the Tribunal proceeded to make a decision on the information and evidence before it as it did not accept that the applicant had a good excuse for failing to attend the rescheduled hearing.
At the time of the Tribunal’s decision, the Department of Education, Employment and Workplace Relations Provision Registration and International Student Management System (“PRISMS”) database did not indicate that the applicant was enrolled in any course of study.
The Tribunal’s decision and reasons
On the evidence before it, or the lack of such evidence, the Tribunal was not satisfied that the applicant was enrolled in, or was the subject of a current offer of enrolment in, any course of study that was a principal course and of a type specified for any of the relevant subclasses contained in the Student (Temporary) (Class TU) category of visas and therefore found that he did not satisfy the relevant associated criteria within those subclasses. The Tribunal noted that the applicant had been put on notice in its letter offering him a hearing that that was an issue. It considered that it had given the applicant the opportunity to provide a certificate of enrolment or a letter of offer of enrolment, an opportunity of which he had not availed himself.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.Affidavit attached with this application regarding my claim.
2.Migration Review Tribunal (MRT) failed to consider my circumstance into account while making decision in relation to my student visa review application (Affidavit attached).
3.Migration Review Tribunal failed to consider the relevant fact of my circumstance which was critical in reaching the decision. (Affidavit attached)
In an affidavit dated 17 June 2013 and filed in support of his application, the applicant also relevantly alleged the following:
…
2.The matter taken into consideration by MRT of my absence for hearing at MRT was based on information that was not properly considered in all the circumstance of the case.
3.Reason given for not rescheduling another hearing date in the circumstance of this case is not acceptable, (paragraph 24 of MRT decision record).
4.Migration Review Tribunal failed to consider my medical reason for not being able to attend the rescheduled hearing. (MRT decision Paragraph 24 at Decision Record – MRT)
…
6.MRT Suspicion on my intention to attend specialist on 22/05/2013 was unfounded as proven by medical report of Dr M Allam dated 22/05/2013.
7.MRT refused to consider my mental health issue.
8.I was denied due process and attention where my application and explanation was concerned.
…
10.MRT should have given more weight to my medical condition and must have given me the opportunity to present this evidence of my mental health which I believe would have better assisted my case and re schedule another hearing.
…
The applicant did not rely on that affidavit but I quote it in order to give some context to the allegations made in the application.
The applicant did not challenge the finding reached by the Tribunal on the substance of his review but instead alleged that its decision to proceed to a final decision on the review, notwithstanding his application for an adjournment of his scheduled 22 May 2013 hearing, represented a miscarriage of discretion. The facts relevant to that question have been set out earlier in these reasons and disclose that, in substance, the Tribunal did not believe that the applicant was unfit to attend the rescheduled hearing or that the applicant’s claimed medical appointment provided justification sufficient to warrant a further adjournment of the hearing. In light of those facts and reasons, I am not persuaded that any miscarriage of discretion has been identified in the Tribunal’s decision not to further adjourn its hearing.
The applicant also relied on the report of a psychiatrist, dated 3 August 2013, which was annexed to his affidavit sworn or affirmed on 14 August 2013 which he did read. While that report recorded a diagnosis of adjustment disorder with depressed mood, it also stated:
There were no abnormalities in the form of thought. In thought content, there were worries and anxious preoccupations … There were no psychotic symptoms to note. He was attentive and the concentration was sustained throughout the period of interview. He was oriented to time, place and person. Judgment appears to be fair and the insight is present.
Consequently, there is no reason to find that the Tribunal’s conclusion concerning the applicant’s capacity to attend the rescheduled hearing was wrong in fact, should that have been a matter of any consequence, and also no reason to conclude that there was any breach of s.360 of the Act by reason that the applicant was medically unfit to present his case to the Tribunal on the rescheduled date.
Finally, in discharge of his duties as a model litigant, the Minister referred to the possibility that the Tribunal’s reference to or reliance on the information contained in the PRISMS documents reproduced in the Court Book, which was exhibit A in this proceeding, without putting those documents to the applicant, represented a breach of s.359A of the Act. However, those documents represented an absence of evidence that the applicant was enrolled to study, not evidence that he was not enrolled. As such, it was not information which s.359A required be disclosed.
Conclusion
For these reasons, I find that jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 10 July 2014
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