Khadka v Minister for Immigration

[2013] FCCA 1286

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHADKA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1286

Catchwords:

MIGRATION – Review of Migration Review Tribunal decision – where application for student visa refused for non-compliance with condition of previous student visa – where applicant engaged migration agent agency to seek review by Tribunal – where migration agents appointed as authorised representative – where applicant informed Tribunal of change of address but retained migration agent as authorised representative – where invitation to attend hearing sent to migration agent – where applicant alleged not informed of hearing – where applicant failed to attend hearing – whether Tribunal required to seek information from applicant – whether reasonable apprehension of bias – whether Tribunal invited applicant to hearing – whether to grant review sought.

Legislation:  

Migration Act 1958 (Cth) ss.36A, 360A, 379A 379G
Migration Regulations 1994 (Cth)

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Applicant: BIPIN KUMAR KHADKA

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3132 of 2012

Judgment of: Judge Raphael

Hearing date: 23 August 2013

Date of Last Submission: 23 August 2013

Delivered at: Sydney

Delivered on: 23 August 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3132 of 2012

BIPIN KUMAR KHADKA

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Mr Khadka was resident in this country on a student visa when on 3 August 2010 he applied for a student (temporary) class TU visa. On 28 December 2010 a delegate of the Minister refused to grant that visa on the basis that the applicant had not satisfied cl. 572.235 of Schedule 2 to the Migration Regulations 1994 (Cth)[1] because he had not complied substantially with condition 8516 of his previous subclass 572 vocational education and training sector visa.

   [1] The Regulations.

2. The non-substantial compliance was said to be the fact that Mr Khadka was not enrolled in any course of study between January 2009 and March 2010.  The delegate said:

   “The client did not provide any evidence of being enrolled in a course of study between January 2009 and March 2010, nor did he provide any explanation of his activities.  To date, the client has not provided any explanation as to activities or studies undertaken during the period, therefore I am not satisfied that the client has complied substantially with the conditions of his previous visa.  The client is therefore in breach of condition 8516.”

3. Mr Khadka determined to appeal that decision and utilised a migration agent, known as 4Nations International, to do so.  On his behalf, that agency submitted to the Tribunal an application for review that included an appointment of representative [CB 51] and a request in section F [CB 52] that correspondence be sent to the authorised representative. 

4. Under s.379G of the Migration Act 1968 (Cth) the Tribunal is required to give documents to an authorised representative where that request is made, and by subsection (2):

   “If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant.”

   Having received the application, the Tribunal sent an acknowledgment of application on 22 October 2010 to the applicant, care of the migration agent [CB55-56]. 

5. At some time, but at a date unknown, the applicant advised the Tribunal of a change of address.  He advised them again on 7 August 2012 [CB68-69].  But in that form, he has ticked the box which indicates that there was no change to the authorised recipient’s contact details. 

6. As a result, when on 12 November 2012 the Tribunal wrote offering a hearing in the matter, it wrote to the authorised representative. The letter was sent by fax in accordance with section 379A(5) and is deemed to have been received on that day. The letter offered a hearing on 11 December 2012, and so for the purposes of reg. 4.21 and s.360A(4) of the Act a sufficient period of notice can be said to have been provided. The notice also complied with s.36A(1) of the Act by providing the day, time and place at which the applicant was to attend.

7. The applicant did not attend the hearing and in the copy of the response to hearing invitation, found at [CB77-78], there is no completion of any part of the form. The Tribunal considered the applicant’s case on the basis of the information before it. It was entitled, pursuant to s.360A(5) of the Act, to make a determination on that basis in a situation where the applicant had not appeared.

8. In its findings and reasons the Tribunal said:

   “[22] The evidence before the Tribunal indicates that the applicant arrived in  Australia on 17 September 2008 as the holder of a Subclass 572 visa valid until 25 August 2010. 

   [23] The evidence before the Tribunal indicates that the applicant was not enrolled in a registered course of study from January 2009 and March 2010.  This was during the period that the applicant held a Subclass 572 student visa.

   [24] The Tribunal does not accept that the regulatory provisions allow such substantial gaps in enrolment during the period that the applicant held a Subclass 572 student visa.

   [25] The Tribunal is of the view that it would have been apparent to the applicant that as a holder of a student visa, he was required to maintain enrolment in a registered course of study.

   [26] Apart from the explanation provided by the applicant to the departmental delegate that he switched from accounting to a business course in March 2010, there has been no explanation from the applicant as to why he could not enrol in a registered course of study between January 2009 and March 2010.

   [27] The Tribunal accordingly finds that the applicant has not complied substantially with the conditions of his last held Subclass 572 student visa.

   [28] The Tribunal is not satisfied that the applicant meets the requirements of cl.572.235 and the equivalent provisions in other Subclasses of class GU.

   [29] For the reasons given above, the Tribunal is not satisfied that the applicant satisfies clause 572.235 of Schedule 2 to the Regulations.”

   The Tribunal affirmed the decision not to grant the visa.

9. On 28 December 2012 the applicant applied to this court seeking review of the decision of the Tribunal.  There were a number of grounds of application.  The first is in the following form:

   “The Migration Review Tribunal (MRT) made a jurisdictional error in that there was a reasonable apprehension of bias by reason of:

   (a). The Applicants [sic] were denied procedural fairness and natural justice by not giving them an opportunity to comment on the information which it considered would the reason, or part of the reason, for affirming the decision that is under review.

   b) The Tribunal assumed that it would not be able decide the review in the Applicant’s favour on the basis of the material which would have been submitted had a letter under s359A of the Migration Act 1958 was send [sic] to the Applicants.”

   Mr Khadka tells me today that this document was drafted by the migration agent.  It seems to suggest that it is the responsibility of the Tribunal to tease out material from the applicant, when in fact, it is the applicant’s duty to satisfy the Tribunal that he is entitled to the visa sought.  This ground cannot be sustained.

10. The second ground is:

    “The MRT made a decision which is irrational, capricious, unreasonable and unjust.

    Particulars:

    (a) The Applicant is a genuine student and has completed a substantial of subjects [sic] in his course of study despite the initial finding of the delegate that the applicant is not a genuine student and/or he has not substantially compiled [sic] with the conditions of the last visa held.

    (b) The Applicant did not get a chance to submit the documents and comments because [of] the MRT’s failure to comply with s359A of the Migration Act 1958.

    (c) The MRT decision states that they had invited the Applicants for a hearing directly.  However, the Applicants have never received purported initiation letter for the hearing, which might not have been required had the applicants were [sic] issued with a s359A letter.

    (d) The MRT failed to discharge its obligations by not using one or other methods to invite the Applicants for the hearing.”

11. It will be clear from what I have said above, that I do not accept that the Tribunal has responsibilities under s.359A to tell the applicant in advance what it is thinking.  It is for the applicant to provide the material to the Tribunal.  It will also be clear from the history that I have rehearsed, that the Tribunal did send the applicant a letter through his agent in a manner that was provided by the legislation.  And so this ground cannot be sustained

12. The applicant told me, both today and at the directions hearing which was held last month, that the migration agent never told him that it had received the hearing invitation and that was why he did not attend.  At the directions hearing I gave the applicant leave to file an amended application.  He could have filed an amended application which relied on what fell from the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 where the High Court concluded at [53]:

    “The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.”

13. The applicant may well have had a difficult job to establish the necessary fraud on the part of the migration agent.  The Court is unaware of the reason why that agent did not advise the applicant of the hearing when it appeared to have kept him “in the loop” previously.  It is interesting to note that the agent did not respond to the hearing invitation, which might indicate that it was lost, but that would be of no assistance to the applicant in these proceedings.

14. This is an unfortunate case.  I have no reason to disbelieve Mr Khadka but as I have pointed out to him, he would still have had to convince the Tribunal that there was some good reason why he had not been enrolled in a course for almost half of the time of his previous visa’s validity.  In these circumstances, I am unable to provide the applicant with the review he seeks.  The application is dismissed and the applicant must pay the respondent’s costs assessed in the sum of $5,000.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  6 September 2013