Khan v Minister for Immigration

[2014] FCCA 2314

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2314

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal (Tribunal) – whether applicant received notice of Tribunal’s request for information under s.359(1) of the Migration Act 1958 (Cth) – whether because the applicant did not give the information requested by the Tribunal the Tribunal was entitled to determine application for review without inviting the applicant to attend a hearing to give evidence and present arguments – application for review dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(e), 16.05
Migration Act 1958 (Cth), ss.359, 359(1), 359(2), 359(3), 359C(1), 360(1), 360(2), 379A, 379A(5)

Applicant: SHAGIL GHANI KHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2041 of 2013

Judgment of: Judge Manousaridis

Hearing dates:

17 December 2013, 7 February 2014 and

9 April 2014

Delivered at: Sydney

Delivered on: 10 October 2014

REPRESENTATION

Applicant in person on 17 December 2013 & 7 February 2014.

No appearance by or on behalf of the applicant on 9 April 2014.

Solicitors for the Respondents on 17 December 2013:

Solicitors for the Respondents on 7 February 2014 & 9 April 2014:

Mr Baird

Clayton Utz

Mr Chami

Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the sum of $10,000.

3. The first respondent is to arrange to have these orders entered and the first respondent is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2041 of 2013

SHAGIL GHANI KHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the second respondent (Tribunal) that affirmed a decision under review not to grant the applicant a Student (Temporary) (Class TU) visa (Student visa).

2. The ground on which the Tribunal affirmed the decision under review was that the applicant had not substantially complied with his last substantive visa, a Subclass 572 visa. The Tribunal found the applicant failed to maintain enrolment in all registered courses of study he had enrolled in, and there was no evidence before it to explain the applicant’s failure to maintain his enrolment in a registered course.

3. The Tribunal made its decision without first inviting the applicant under s.360(1) of the Migration Act 1958 (Cth) (Act) to appear before it to give evidence and present arguments. The Tribunal did not invite the applicant to appear because by letter dated 14 June 2013 it had invited the applicant under s.359 of the Act to provide information, but the applicant failed to provide any information.[1] That engaged s.359C(1) of the Act which provides that if a person is invited in writing under s.359 of the Act to give information, but the person does not give the information, the Tribunal may make a decision on the review without taking any further action to obtain the information. Subsection 360(2) of the Act provides that s.360(1) does not apply if, among other things, s.359C(1) applies.

   [1] CB87-90; CB98-99, [16]

4. The Tribunal’s letter dated 14 June 2013 was addressed to Mr Bitel. The applicant, in the application form he filed with the Tribunal, had nominated Mr Bitel as his representative.[2] Mr Bitel received the letter. But, at the time he received the letter, Mr Bitel had ceased to act for the applicant.[3] The applicant claims that Mr Bitel did not provide to him the Tribunal’s letter of 14 June 2013 and the applicant, therefore, says he remained ignorant of the Tribunal’s request for information.[4] The applicant says that, had he been aware of the request for information he would have provided material information to the Tribunal.

   [2] CB60-68

   [3] 17.12.13, T7.20; Affidavit of D. L. Bitel, 29.01.14, annexure “A”; Affidavit of R. Dhakal, 25.02.14, annexure “B”

   [4] 17.12.13, T7.25-T7.30

5. Two issues arise. Did the applicant in fact receive the Tribunal’s letter dated 14 June 2013? Was the Tribunal in any event entitled to decide the application for review without inviting the applicant to appear before it to give evidence and provide arguments?

Course of proceedings

1. Although in his application for review the applicant claimed the Tribunal did not call him for a hearing, and that he did not have enough money to pay for his agent, the applicant filed no evidence before the hearing on 17 December 2013. At the hearing, however, the applicant, who is not legally represented, asserted from the bar table that he did not receive the Tribunal’s letter. He specifically asserted that, after Mr Bitel filed the application, Mr Bitel ceased acting for the applicant because the applicant could not pay the fees Mr Bitel required be paid, and that Mr Bitel did not pass on to the applicant the Tribunal’s letter of 14 June 2013.

2. I was prepared to deal with the application if the first respondent (Minister) was prepared to assume as true what the applicant had asserted from the bar table about Mr Bitel’s not having forwarded to the applicant the Tribunal’s letter of 14 June 2013. The Minister did not agree to my dealing with the matter on that assumption. I therefore adjourned the matter to 7 February 2014, and made directions that the applicant file an affidavit in support of his assertions, and the Minister also file affidavits in response.

3. At the hearing of 7 February 2014, the applicant read one affidavit made by him. In that affidavit, the applicant said:

   I did not have enough money to pay the agent that’s why he stopped acting on my behalf and did not inform me about the “Invitation to provide Information” from the M.R.T on 14/06/2013.

4. In response, the Minister read two affidavits, one by Mr David Lee Bitel made on 29 January 2014, and the other by Ms Lauren Ellen Stewart sworn on 30 January 2014. In his affidavit, Mr Bitel annexed a letter dated 28 June 2013 addressed to the applicant’s last known postal address. In that letter, Mr Bitel said:

   Enclosed is a letter received from the Tribunal for your attention. We note that we are no longer acting on your behalf. Please telephone the Tribunal to request to them to send to you directly any future correspondence.

   Please note the due date to provide the information requested by the Tribunal is by 12 July 2013.

5. In addition, Mr Bitel deposed that he caused an employee of his firm to send the same letter to the applicant’s email address. Mr Bitel annexes to his affidavit an email sent 1 July 2013 to an email address. The email states:

   Please Find attached Documents.

6. At the hearing on 7 February 2014, the applicant disputed he received the email referred to in the affidavit of Mr Bitel. The applicant also indicated he wished to cross-examine Mr Bitel on his affidavit, although he had not given the Minister notice that he required Mr Bitel to attend for cross-examination.

7. Because of a potential deficiency in the proof of the sending of the email to which Mr Bitel referred to in his affidavit, I again adjourned the matter, this time to 9 April 2014, and directed that the Minister file any further affidavits on which he intended to rely. I also indicated to the applicant that if he required any deponent to attend Court on that day for the purpose of being cross-examined, he had to give notice to the Minister’s lawyers.

8. The applicant did not appear at the hearing on 9 April 2014. I decided to hear the matter pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) (FCCR). In addition to the previous affidavits that were read, the Minister read the affidavit of Mr Rajan Dhakal affirmed on 25 February 2014 and an affidavit of Ms Marina Sara Osmo affirmed on 6 March 2014.

Did the applicant receive the Tribunal’s letter of 14 June 2013?

1. Based on the affidavits of Mr Bitel and Mr Dhakal, I am satisfied that on 1 July 2013 the applicant received by email the letter dated 28 June 2013 from Mr Bitel to the applicant attaching the letter dated 14 June 2013 from the Tribunal to Mr Bitel requesting information. Based on the affidavit of Ms Osmo, I am satisfied the Tribunal did not at any time receive any notification from Mr Bitel or anyone else that neither Mr Bitel nor the law practice of which he was a member had ceased acting for the applicant.

Was the Tribunal entitled to proceed without issuing a hearing invitation under s.360(1) of the Act?

1. Whether or not the applicant actually received the Tribunal’s letter of 14 June 2013 does not determine whether or not the Tribunal was entitled to determine the application for review without inviting the applicant to appear under s.360(1) to give evidence and present arguments. That is so because the Act mandates the persons to whom the Tribunal must send letters and notices, and the manner in which notices and letters must be sent.

2. Subsection 359(3) of the Act provides that, except where a person is in detention, if the Tribunal invites a person to give information under s.359(2) of the Act, the invitation must be given by one of the methods specified in s.379A of the Act. One of the methods is that prescribed by s.379A(5). Section 379A(5) of the Act provides that one means by which the Tribunal may send the document is by fax to the last fax number provided to the Tribunal by the recipient in connection with the review. The letter dated 14 June 2013 was sent to Mr Bitel by fax to the fax number provided by the applicant in his application for review.[5]

   [5] CB64; CB87

3. I am therefore satisfied the Tribunal sent to the applicant the letter of 14 June 2013 in a manner permitted by the Act. I am also satisfied that all other requirements specified in s.359 of the Act that attach to the sending of an invitation under s.359 of the Act were satisfied in relation to the sending of the Tribunal’s letter dated 14 June 2013.

4. Given the Tribunal invited the applicant under s.359(2) of the Act to give information, that invitation was given by one of the methods permitted under s.379A of the Act, the invitation conformed with the requirements of s.359 of the Act, and the applicant did not respond to the Tribunal’s invitation, then, because of s.359C(1) and s.360(2) of the Act, the Tribunal was entitled to decide the application without inviting the applicant to appear before it to give evidence and present arguments. There is nothing in the Tribunal’s decision that raises any doubt that its decision to so proceed was reasonable.

Conclusion and disposition

1. For these reasons, I propose to dismiss the application. I also propose to order the applicant pay the Minister’s costs.

2. In that regard, the Minister submitted that I should fix costs in the amount of $12,000. The basis of that application is that the matter was adjourned twice and thus involved work that was significantly greater than what would be the case in a typical application for judicial review.

3. The first adjournment was wholly due to the applicant not having filed evidence before the hearing as required by the previous direction I had made. The second adjournment was due, in part, to the Minister’s request to be given a further opportunity to put on evidence. On the other hand, the adjournments related to the applicant’s contention that he did not have actual notice of the Tribunal’s request for information contained in its letter dated 14 June 2013. That contention, on the basis of the evidence the Minister filed, was baseless. For these reasons, I consider it appropriate to order the applicant pay costs in the amount of $10,000.

4. I also propose to order that the Minister send a sealed copy of the orders I propose to make together with a copy of r.16.05 of the FCCR to the applicant by ordinary pre-paid post.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  10 October 2014