Khant v Minister for Immigration
[2009] FMCA 328
•21 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHANT v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 328 |
| MIGRATION – Review of MRT decision – applicant the holder of a student visa – where visa subject to condition 8202 – where visa cancelled for non-attendance – whether existence of exceptional circumstances – Tribunal’s obligation to make enquiries – where applicant did not respond to request for additional information and did not comment on adverse information – whether residual discretion in the Tribunal to allow applicant to appear at a hearing despite loss of entitlement – whether purported exercise of discretion by Tribunal miscarried – nature of merits review in the Tribunal considered. |
| Migration Act 1958 (Cth), ss.116, 353, 357A(3), 359A, 360, 363A, 379A, 379C, 420, 499 Family Law Act 1975, s.79(2) |
| Zubair v Minister for Immigration & Anor (2004) 211 ALR 261 Minister for Immigration & Anor v Ahmed [2005] FCAFC 58 Minister for Immigration & Anor v Le & Anors [2007] FCA 1318 SZHUH v Minister for Immigration & Anor [2008] FCA 1893 SZMCE v Minister for Immigration & Anor [2008] FCA 1803 Seyfarth v Minister for Immigration & Anor [2004] FCA 1713 M v Minister for Immigration & Anor [2006] FCA 1247 Khergamwala v Minister for Immigration & Anor [2007] FMCA 690 Uddin v Minister for Immigration & Anor (2005) 149 FCR 1 In the Marriage of Mallett (1983) 52 ALR 193 Minister for Immigration & Anor v Eshetu (1999) 162 ALR 577 Sun Zhan Qui v Minister for Immigration & Anor [1997] FCA 324 |
| Applicant: | OAK SOE MAUNG HEIN HTET KHANT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2711 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 1 April 2009 |
| Date of Last Submission: | 1 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Mr S Miller |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2711 of 2008
| OAK SOE MAUNG HEIN HTET KHANT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Khant is a young man born in Myanmar who arrived in Australia on 3 February 2006 seeking to study on a Class TU-573 visa. On 10 April 2006 a new TU-573 visa, valid until 30 July 2010 and subject to condition 8202, was issued to him. Mr Khant began to study at an institution known as the Curtin International College (“Curtin”) which is associated with the Curtin University of Technology in Perth. On 1 February 2007 Curtin sent Mr Khant a letter advising him that he had been reported to the Department of Immigration & Multicultural Affairs for non-compliance with his visa conditions. The relevant visa condition was 8202 and his non-compliance was stated to be a failure to attend 80% of the contact hours required.
Mr Khant attended the Department and was offered an interview which the Department then agreed to reschedule. It was rescheduled again. He had been told when he first attended the Department that it intended to consider cancelling his visa. On 2 March 2007 he attended the Department for the interview and explained that his grandfather had died. The departmental officer considered that this constituted circumstances beyond his control and determined not to cancel his visa.
It appears that Mr Khant then returned to Curtin where he remained enrolled until August 2007. It is said that in June, July and August there were increasing difficulties in finding sufficient funds to pay the education provider’s fees as a result of the Burmese political situation. It would appear that although the applicant remained enrolled at Curtin he did not actually attend any classes after about June. Mr Khant says that in August his mother and father were held by government officials following the cyclone disaster in that country. On 23 November 2007 the Department, now known as DIAC, sent an email to the applicant advising him:
“It is a breach of student visa condition 8202 to be onshore and not studying a full time CRICOS registered course. If you continue to remain in Australia and do not reply to this email by 30/11/2007, I may take action to consider cancelling your student visa.
You may make contact with me by:
[Email, post, phone and fax details are provided]”
The applicant responded to that email and made an appointment to go and see the officer on 21 January 2008 but did not attend. A further email was sent to him. During a phone conversation on 5 February 2008, another interview was arranged for 11 February 2008. The file note of that phone call records:
“Client informed that he had not been studying since June 2006”
[This should probably have read 2007]
On 13 Febuary 2008 Mr Khant telephoned the case officer and told her he was ill and had been unable to attend the interview. Another appointment was arranged for 19 February but he did not turn up. There is a note on the file that the officer tried to telephone the applicant several times but he picked up the phone and cut her off. On 26 February 2008 the Department sent a notice of intention to consider cancellation under s.116 of the Migration Act 1958 (the “Act”) to the applicant at his last known address. The letter appears at [CB 44 – 46]:
“It has come to the Department’s attention that there may be grounds for cancellation for your visa under section 116 of the Migration Act 1958 (‘the Act’) because you have not commenced study since 22 June 2007.
If this is the case, your visa may be cancelled under sections 116(1)(b) and 116(3) of the Migration Act 1958 and Regulation 2.43(2)(b) which sets out the following ground for cancellation:”
There is then set out s.116(1)(b) and Regulation 2.43 but for some reason s.116(3) has been omitted.
The letter explains condition 8202 and the responsibility of the delegate to consider whether or not the applicant can establish exceptional circumstances beyond his control to alleviate the effect of the statutory provisions. A copy of the Minister’s Direction under s.499 which deals with guidelines for considering the revocation of an automatic cancellation of a student visa and student visa condition 8202 were included in the letter.
The applicant appears to have sent to DIAC some medical report documents [CB 52 – 65]. At [CB 66] there is a birth certificate of a female person born on 10 December 1958. At [CB 52] there is a report on a person known as Daw Ong Saw Lyan aged 79 years but that report, apart from some personal details, is written in a non Roman script. There are other documents which appear to be hospital notes of some sort that are written in the Roman script but they do not tell one anything about the patient apart from medication that he or she was on. There is then at [CB 65] another document also written in a non Roman script in which the name NG Han Chong, the person whose birth certificate appears at [CB 66] and who was alleged to have been born in 1958, is referred to.
At [CB 67] there is found a decision of the DIAC officer upon cancellation of the applicant’s visa under s.116. There is set out below the provisions of s.116(1)(b), s.116(3) and Regulation 2.43(2)(b):
“116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(b) its holder has not complied with a condition of the visa; or
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Regulation 2.43(2)(b):
(b) in the case of a Student (Temporary) (Class TU) visa:
(i) that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or
(ii) that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non‑compliance was not due to exceptional circumstances beyond the visa holder's control.”
It is said that these conditions were breached because:
“Mr Khant has not been enrolled and studying a full time CRICOS registered course since 22 June 2007.”
It is said that the reasons for the decision are:
“Breach of Condition 116(1)(b) and 116(3) of the Migration Act 1958 and Regulation 2.43(2)(b) breach of student visa condition 8202.”
The applicant was advised of his rights to seek review from the Migration Review Tribunal and on 8 April 2008 he completed and filed an application form for such review. [CB 97 – 107]. He gave as his residential address in Australia 1/1 Chapman Road, St James, Western Australia, 6102. He gave an email address and mobile telephone number [CB 98]. In section F of the form [CB 101] he responded to the question “where do you want us to send correspondence about your application?” by completing the section “To me at my address”. The address he gave was 1/1 Chapman Road, St James, Western Australia, 6102. The decision to cancel the applicant’s visa was attached to the MRT review application. At [CB 106] is set out Part B of the record of decision indicating that the applicant responded to the notice to consider cancelling the visa and under the heading:
“Provide a summary of the reasons the visa holder considers that the grounds for cancellation do not exist”
There is entered:
“Mr Khant has been unable to demonstrate exceptional circumstances under the following circumstances:
· the wrong student was reported
· the section 20 notice was defective
· the event of a critical incident”
Under Item 5 on the same page the following appears:
“Evidence of and reasons why GROUNDS for cancellation DO OR DO NOT EXIST”
Underneath these words there is a box into which the same comments as those referred to above have been inserted. Those comments were also inserted in response to Part 7 of the form.
On 22 July 2008 the Migration Review Tribunal wrote to Curtin International College asking for some details about Mr Khant’s attendance at the school. [CB 112]. The letter was responded to on 29 July 2008 [CB 115]. Relevantly, the letter states that:
“The student was withdrawn from enrolment at the College on 8 August 2007.”
On 1 August 2008 the Tribunal wrote to the applicant asking him to respond to certain information under s.359A of the Act and requesting additional information pursuant to s.359(2) [CB 119 – 122]. Part A of the letter sets out the applicant’s history of enrolment and attendance including the history of the earlier visa breach and importantly the following facts.
· “On 26 February 2008 the Department issued you with a second Notice of Intention to Consider Cancellation on the basis that you had ceased to be enrolled in a registered course of study and invited you to provide your comments at an interview scheduled for 10 March 2008.”
· You subsequently provided to the Department untranslated medical records relating to Ms Daw Ong Saw Lyan, aged 79 years, and a translated birth certificate for her daughter, Ms Ng Han Chong, born on 10 December 1958.
· However, there is no record on the departmental file that you were interviewed by the Department at an interview held on 10 March 2008.
· Curtin International College advised the Tribunal that you were withdrawn from enrolment on 8 August 2007 and, to its knowledge, that there were no exceptional circumstances that should be taken into account in relation to your failure to maintain your enrolment during the relevant visa period.”
It is then explained to the applicant that this information is relevant to the review because it may support a finding that he has not complied with condition 8202(2)(a) of his student visa:
“Between 10 April 2006 when it was granted to you, and 1 April 2008, when it was cancelled on the basis that you had ceased to be enrolled in a registered course on 8 August 2007. In addition, if the Tribunal finds that you did not comply with condition 8202 of your student visa during this period, based on the information set out above, including your failure to attend the various Department interviews scheduled for you, the Tribunal may not be satisfied that the non-compliance was due to exceptional circumstances beyond your control.”
Part B of the letter asks the applicant for some additional information:
“The Tribunal invites you to provide:
· Any evidence that any non-compliance with condition 8202 in the trimesters between 10 April 2006 and 1 April 2008 was due to exceptional circumstances beyond your control.”
There is then set out in bold the following:
“Consequences of not responding to either invitation
If the Tribunal does not receive your comments or response or the additional information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your views on the information or to obtain the additional information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.”
The letter of 1 August was placed in an envelope and sent by registered mail to the applicant at the Chapman Road address. A copy of the envelope which was returned to sender on 17 September 2009 is found at [CB 177]. It is not denied by the applicant that he was at that address in August 2008. On 28 August 2008 the Tribunal, not having had a response to the letter of 1 August, made its decision upon the review without requiring the applicant to attend for an interview. The decision was communicated to the applicant by letter on 17 September 2008.
The Tribunal’s decision which commences at [CB 163] notes that the issues for its determination are:
· “Whether there were grounds for cancellation of the review applicant’s visa pursuant to section 116 of the Act;
· If so, whether the non-compliance was due to exceptional circumstances beyond the review applicant’s control; and
· Whether the review applicant’s student visa should have been cancelled in all the relevant circumstances.”
The Tribunal then sets out the applicant’s history noting the first non-compliance notice, the first notice of intention to consider cancellation, the second notice of intention to consider cancellation and the primary decision. It noted that the primary decision included the finding by the delegate that the review applicant had not been enrolled in and studying a full time registered course since June 2007 and that he had been unable to demonstrate exceptional circumstances. At [27] of [CB 166] the Tribunal notes:
“In addition, Curtin International College advised the Tribunal that the review applicant withdrew his enrolment from this course on 8 August 2007.”
The Tribunal then notes its invitation to the applicant to provide information and comment on adverse information.
At [33] of [CB 167] the Tribunal deals with the loss of right to a Tribunal hearing. It notes that the invitation was sent to the last known address of the applicant and it had evidence indicating the date of dispatch in accordance with s.379 of the Act.
The relevant legislation is contained at s.359C, 360 and 363A. The applicant submitted that s.353 was also highly relevant to his situation. All sections are set out below:
“353 Tribunal's way of operating
(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
359CFailure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
363ATribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.”
The Tribunal considered its position relating to inviting the applicant to a hearing at [35 – 37] [CB 167 – 168]:
“[35]In addition, the Tribunal notes that the decision in M v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1247 confirmed that section 363A of the Act operates to remove any residual discretion the Tribunal may have to permit an applicant to appear at a hearing notwithstanding his or her loss of an entitlement do so. On this basis, as the review applicant failed to give the information within the prescribed statutory period, the Tribunal has proceeded to make a decision on the review without taking any further action to obtain the information in accordance with section 359C of the Act.”
At [43] after noting the decisions of the Full Bench of the Federal Court in Zubair v Minister for Immigration (2004) 211 ALR 261 and Minister for Immigration v Ahmed [2005] FCAFC 58 and the Tribunal’s ability to cure a defect in a delegate’s decision it says:
“[43]Accordingly, the Tribunal has examined the procedure followed by the delegate and finds that the procedure set out in subdivision E of the Act has been followed. The Notice of Intention to Consider Cancellation of the visa provided to the review applicant set out the grounds of the alleged non-compliance, including the fact that the non-compliance was reported by Curtin International College. The Tribunal observes that the review applicant’s response to the Notice of Intention to Consider Cancellation indicates he understood the nature of the alleged non-compliance, including the fact that the non-compliance was in respect of his enrolment at Curtin International College. In the circumstances, the Tribunal is satisfied that the Department provided the review applicant with sufficient information to adequately understand and therefore, respond to the Notice of Intention to Consider Cancellation.”
I am not entirely satisfied that this paragraph is an accurate reflection of what occurred before the delegate. I am not satisfied that the procedure set out in sub-division E of the Act had been followed because the letter of 26 February 2008 excludes s.116(3) of the Act and the formulaic repetition of the fact that Mr Khant had been unable to demonstrate exceptional circumstances in the record of decision might indicate an absence of concentration upon exactly what the delegate was responding to. Furthermore, I have been unable to find in the papers any evidence of the fact that the non-compliance was reported by Curtin International College. The first non-compliance most certainly was but there is no evidence about the latter. Indeed, it is unlikely that the non-compliance was advised by Curtin, except perhaps informally because the delegate had been operating under the assumption that the applicant was not enrolled in June 2007. The Tribunal had discovered that he was in fact enrolled until August, although he does not appear to have attended any classes. The Tribunal notes that the delegate found that the review applicant had not complied with condition 8202 because the review applicant had not been enrolled in full time registered course of studies since June 2007, which was patently incorrect.
At [49] the Tribunal commences its own consideration of the applicant’s situation under the heading “Compliance with Condition 8202” stating at [53]:
“[53]Subclause 8202(2)(a) requires the visa holder to be enrolled in a registered course and does not allow the visa holder to cease to be enrolled in a registered course: see Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170. In the matter before the Tribunal, on 8 August 2007 the review applicant ceased to be enrolled in a registered course at Curtin International College or elsewhere. Accordingly, the Tribunal finds that the review applicant was not enrolled in a registered course on this date and therefore did not strictly comply with subclause 8202(2)(a) of his subclass 573 visa.
[54]As a result of this finding, the Tribunal is satisfied that for the purposes of subsections 116(1)(b) and 116(3) of the Act and subparagraph 2.43(2)(b)(ii)(A) of the Regulations the review applicant did not comply with condition 8202 during the period under review.”
The Tribunal then commences a lengthy section on mandatory cancellation setting out the guiding principles, the relevant case law and under the heading “Application of these Guiding Principles to the Current Case”:
“[63]In the case currently before the Tribunal, the review applicant put forward to the Department untranslated medical records relating to his maternal grandmother. However, no submissions were provided to the Department to explain the significance or relevance of this evidence to the possible cancellation of the review applicant’s student visa. In addition, the Tribunal notes that, in its section 359A letter dated 1 August 2008, the review applicant was invited to provide comment and further information relating to the issues arising in relation to his application for review. However, the review applicant failed to do so within the prescribed period, namely, 19 August 2008, or at any time thereafter.”
The Tribunal goes on to consider the evidence presented to the Department and concludes that whilst the applicant may have been concerned about his maternal grandmother’s health there was not sufficient evidence to allow that concern to reach the heights of exceptional. It then states at [CB 65]:
“In addition, there is no evidence before the Tribunal of any particular political upheaval or natural disaster that affected the review applicant’s ability to comply with condition 8202.”
Before concluding at [67]:
“Under paragraph 2.43(2)(b)(ii)(B), in order for the review applicant’s visa to be subject to mandatory cancellation under subsection 116(3) the Tribunal must be satisfied that the “non-compliance [with condition 8202] was not due to exceptional circumstances beyond the visa holder’s control”. In this case, based on the evidence before it, the Tribunal is satisfied that the non-compliance with condition 8202(2)(a) by the review applicant of his subclass 575 visa was not due to exceptional circumstances beyond his control and, therefore, the review applicant’s visa is subject to mandatory cancellation under subsection 116(3).”
The applicant filed an application with this Court for review of the Tribunal’s decision on 21 October 2008. At the hearing of the matter a Further Amended Application was filed together with two affidavits, the first being of the applicant and the second being of his father. The respondent objected to the admission of these affidavits substantially on the grounds of relevance. It also had some objections to form. I read both affidavits. They inform the applicant’s submissions as to his personal situation during the relevant time including his dealings with the Department. The applicant discusses the difficulty his parents had in sending him money for his course and makes reference to the demonstrations and civil unrest which hit Burma on 15 August 2007. It indicates that the applicant became depressed but concedes that he had not enrolled in his course at that time. When he was contacted by the Department on 23 November 2007 by email he made no reference to the political situation in Burma but told the Department about his grandmother’s illness and explains why he didn’t go to the appointments with the Department because he had not received medical records at that time. He took the view that he could re-enrol at any time up to June or July 2008. He deposes to the conversation he had with the Department when he eventually did attend an interview on 1 April 2008. His response to the question as to why he had not enrolled or gone to school was that his grandmother had been sick. He appears to have made no mention of the ongoing problems in Burma.
In regard to the MRT process the applicant states that he thought that he would not only get letters from the MRT but they would correspond with him by email as the Department had done. He has no explanation as to why the letters might not have been received. He makes reference to the fact that in May 2008 his father sent him $10,000.00 and again on 28 July 2008 a further sum of $10,000.00. He makes reference to the fact that he travelled from Perth to Sydney to investigate enrolling in a course in Sydney, which he has now done. It was later revealed that that trip was not taken at a time when the letters from the MRT were being sent that he did not respond to.
The father’s affidavit explains the difficulties the father had in paying the fees and makes a general appeal to the Court to assist his son to remain studying in Australia. He provides hearsay evidence concerning the manner in which the Tribunal may have considered the medical records provided by the son concerning his grandmother.
Whilst the affidavits provide some background to the situation of the applicant and his family they do not, to my mind, have any relevance to the decision of the Tribunal and that is the decision which this Court is reviewing, not the decision of the delegate. There is nothing in the affidavits of either the applicant or his father which will assist me in my analysis of the Tribunal’s decision making process.
The Further Amended Application contains a lengthy and somewhat repetitive expression of the grounds upon which the Tribunal allegedly fell into jurisdictional error. To the extent that in these reasons I shall deal more summarily with some than with others, it is because of the way in which the argument proceeded before me at hearing. The press of the applicant’s argument at that time appeared to me to be twofold. Firstly he argued that the Tribunal should have permitted the applicant to attend a hearing even though he had not responded to the Tribunal’s letters seeking information. Secondly, the Tribunal erred by not making its own enquiries about the situation in Burma so as to provide the basis for an argument of exceptional circumstances.
The first ground found in the Further Amended Application is that “The procedures that were required by law to be observed by the Tribunal were not observed.” The first particular is said to be that the Tribunal failed to undertake an independent review of the delegate’s decision. That is a bold statement. It is not particularised. The findings of the Tribunal commence at [CB 168] and conclude at [CB 174]. The headings of the sections into which the decision is divided – notification procedures, grounds for cancellation, compliance with s.8202, mandatory cancellations, was the non-compliance due to exceptional circumstances? – would indicate that the Tribunal was bringing its own mind to bear on the decision and not merely parroting that of the delegate. Perhaps the most cogent rebuttal of this allegation is the fact that the Tribunal corrected the delegate’s decision in relation to the breach taking it back from June 2007 to August 2007.
The second ground is that the “Tribunal failed to seek and consider relevant information reasonably apparent to the Tribunal to properly exercise its jurisdiction.” Particulars are provided that the Tribunal failed to obtain information concerning the political instability in Burma in August 2007 and the effects of the severe cyclone in May 2008 and failed to consider the former as exceptional circumstances. The other particular is that the Tribunal failed to seek from the applicant an explanation as to matters which were unclear to it prior to making a decision. These complaints must be looked at in the context of the s.359(2) letter that was sent to the applicant, the relevant parts of which contain the following:
“Sub-section 359(2) of the Act allows the Tribunal to invite a person to give it additional information that it considers relevant to the review of the migration decision.
If the Tribunal ultimately finds that you did not comply with condition 8202 of your student visa for the trimesters between 10 April 2006 and 1 April 2008 the Tribunal will need to consider whether the non-compliance was due to “exceptional circumstances beyond the non-citizen’s control”. The Tribunal therefore invites you to provide:
Any evidence that any non-compliance with condition 8202 in the trimesters between 10 April 2006 and 1 April 2008 was due to exceptional circumstances beyond your control.”
The applicant failed to respond to this letter. Whilst the applicant knew that he held the belief that the political situation in Burma in August 2007 did constitute an exceptional circumstance beyond his control he had never said so to the delegate and did not raise the matter with the Tribunal. Whilst there may be an obligation in limited circumstances to obtain information on a critical issue where that information is readily available and centrally relevant Minister for Immigration & Anor v Le & Anors [2007] FCA 1318 there is no general duty upon a Tribunal to make enquiries SZHUH v Minister for Immigration & Anor [2008] FCA 1893 at [11] and any enquiries that would be made are only appropriate in rare and exceptional circumstances; SZMCE v Minister for Immigration & Anor [2008] FCA 1803 at [28]. In Seyfarth v Minister for Immigration & Anor [2004] FCA 1713 Hely J said at [95]:
“There is no general duty on a decision maker “to prompt and stimulate an elaboration which the applicant chooses not to embark upon” Re Minister for Immigration and Multicultural Affairs Ex Parte Applicant S154/2002 (2003) 201 ALR 437 at [451] (Gummow and Hayden JJ) there is no general obligation on the Minister to make his own enquiries particularly where the visa holder has been given the opportunity to put all that he or she may wish to put before the Minister: Lorenzo v Minister for Immigration & Anor [2004] FCA 435 at [45], [51] (Hill J).”
I am unable to see how the Tribunal erred in this case, when it had asked the applicant to put forward grounds and he did not do so, by trying to find grounds of its own which the applicant may not have adopted. It also does not seem to me that there were any matters in the Tribunal’s consideration that could be said to be “unclear” that were not the subject of the letter under 359A of the Act. This ground cannot be sustained.
The next ground is that “The Tribunal failed to properly exercise its discretion to invite the applicant to an oral hearing and the requirements of s.357A(3) in that discretion.” This is one of the applicant’s major submissions but it is in two parts. Firstly, the applicant argues that there was a residual discretion in the Tribunal to invite the applicant to a hearing not withstanding that the applicant had failed to respond to the Tribunal’s letters. The second part is that to the extent that the Tribunal actually did exercise the discretion the exercise miscarried. The Tribunal deals with these matters at [CB 167 – 168] at [33 – 38]. It notes that the invitations to comment and provide information were sent to the applicant’s last known address for service, that the applicant failed to give the information or respond and that ss.359C(1) and (2) apply which allow the Tribunal to take a decision on the review without taking any further action to obtain the information. It notes:
“Further as s.359C(1) and (2) apply to the review application sub-section 360(3) states that the review applicant is not entitled to appear before the Tribunal. Under 363A the Tribunal does not have the power to permit a person to do something he or she is not entitled to do unless a provision expressly provides otherwise. Section 360 does not provide otherwise….”
The Tribunal then refers to the decision in M v Minister for Immigration & Anor [2006] FCA 1247 and the decision of Riley FM in Khergamwala v Minister for Immigration & Anor [2007] FMCA 690 which distinguished M and followed Uddin v Minister for Immigration & Anor (2005) 149 FCR 1 in saying that the Tribunal retained a discretion to invite an applicant to a hearing:
[37]As a result, in the alternative, the Tribunal has also considered whether it should exercise its discretion in the visa applicant’s favour to invite him to a hearing before it. However, given the fact that there has been no response at the time of decision from the visa applicant in respect of the Tribunal letter dated 1 August 2008, and for the reasons set out below, the Tribunal is not persuaded that it should exercise any discretion it may have to invite the visa applicant to appear before it to give evidence and present arguments relating to the issues arising in respect of the review application.” [CB 168]
I am of the view that the Tribunal was correct in its first indication that it had no power to invite the applicant to a hearing once he had failed to respond to the 359A and 359(2) letters. Section 359C gives the Tribunal the power to proceed to make a decision on a review without taking further action to obtain the applicant’s views upon the information requested in the 359(2) and 359A letters. In other words the Tribunal has a discretion as to whether or not it should try and make further contact with an applicant e.g. by telephone or email. Another way of obtaining the applicant’s views upon the information would be by inviting him to a hearing; but s.360 deals with that aspect of the matter. In sub-s.1 there is an obligation to invite but that obligation is restricted by sub-s.2 which says that it does not apply where s.359C(1) or (2) applies to the applicant. Both of those sub-sections apply to this applicant. The situation regarding a hearing is reinforced by sub-s.3 which makes it clear that if sub-s.2 applies the applicant is not entitled to appear before the Tribunal.
In these circumstances it is difficult to see how any discretion may remain in the Tribunal but even if it did the provisions of s.363A must act to extinguish it. This was the view that Tracey J came to in M v Minister for Immigration & Anor at [39 – 46]:
“[46]In my view s.363A of the Act has the effect contended for by the Minister. Section 360(3) of the Act provides that a consequence of an applicant failing to provide information to the Tribunal in a timely way following an invitation to do so is that the applicant ceases to have an entitlement to appear before the Tribunal. Section 363A of the Act operates to remove any residual discretion the Tribunal may have had to permit an applicant to appear notwithstanding his or her loss of an entitlement to do so. The language of the section is clear. The construction which I have placed upon it is consistent with the observation of the Full Court in Sun 146 FCR 498 and the terms of the Explanatory Memorandum. To the extent that the dictum in Sun may be said to be inconsistent with that of the Full Court in Uddin 149 FCR 1 the differences are relevantly explicable by the absence of any reference to s 363A of the Act in the joint reasons in the latter case.”
When Federal Magistrate Riley made her decision in Khergamwala she did so after a lengthy consideration of the per incuriam rule which, she believed, required her to follow Uddin rather than M even though she accepted that Tracey J was correct in his view in M. Whilst hesitant to say that her Honour is clearly wrong I would suggest that she may not have given sufficient consideration to the context within which the particular part of the decision in Uddin that she relies upon was made. The relevant passage in Uddin is found at [59 – 61].
“[59] The appellant contended that the Tribunal made its decision to affirm the cancellation of the appellant’s visa on the false assumption that since he was not entitled to a hearing before the Tribunal, the Tribunal could not afford him a hearing. Reliance was placed on [40] of the Tribunal’s reasons for decision which is reproduced in [17] above.
[60] The papers before the Tribunal included the letter from the appellant in which he commented on the material contained in the Tribunal’s letter of 29 July 2003. The Tribunal’s reasons for decision make reference to the content of the appellant’s letter.
[61] We accept that the Tribunal was free, had it wished to do so, to accord the appellant an oral hearing. We see no reason to conclude that the Tribunal thought otherwise. The reference in its reasons for decision to the appellant being ‘no longer entitled’ to a hearing suggests a correct understanding of the legal position. Nothing in the reasons for decision of the Tribunal suggest that it proceeded on an assumption that it was not empowered to grant the appellant a hearing. In the circumstances that happened the Tribunal was entitled to decide the matter before it in the way that it did.”
The Full Bench has not given any reasons for the statement made in the first sentence at [61] and, as Tracey J has pointed out in M, there is no reference made to the long standing section 363A. A close reading of [61] would seem to indicate an acceptance (without reasoning) of a residual discretion that s.363A has removed. Given that Mr Uddin was not granted a hearing, it does not appear to me that paragraphs [59 – 61] form part of the ratio decidendi of that case. I believe that the correct course for this Court to take is to follow the decision of Tracey J in M and hold that there was no discretion in the Tribunal to grant the applicant a hearing in the instant case.
The applicant’s attack on the purported exercise of discretion by the Tribunal found at [37] of the decision is based upon the existence of facts which were evidentially totally unknown to the Tribunal. There is no evidence that the Tribunal knew anything about the political situation in Burma in August 2007 or its effect upon the applicant’s parents. There is no evidence that the Tribunal knew anything about the effects of the cyclone on the applicant’s parents. There is no evidence that the Tribunal knew anything about the applicant’s personal situation around the relevant time including those relating to his grandmother’s health. In this regard the applicant has criticised the Tribunal for saying that the documents relating to the grandmother that were submitted were not in English. It was pointed out earlier in these reasons that the doctor’s notes were certainly in English but they were almost incomprehensible and gave no indication of the status of the grandmother’s condition. All the other documents were written in Burmese. If the Tribunal had known these things then there might be an argument that any exercise of its discretion had miscarried. But it did not know them and I am not prepared to say that by declining to grant an interview on the basis that the applicant had not responded to the letters, the Tribunal erred.
The next matter raised by the applicant was that “The Tribunal failed to consider s.353 when undertaking its review.” Section 353 is in the following form:
“Tribunal's way of operating
(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.”
The gravamen of the applicant’s argument is that s.353 is in some way akin to s.79(2) of the Family Law Act 1975 which prevents the Family Court from making an order for the division of matrimonial property under s.79 of the Act unless it is satisfied that in all the circumstances it is just and equitable to make the order. In the Marriage of Mallett (1983) 52 ALR 193 at [227] Dawson J said of that sub-section:
“That is the overriding requirement and it admits of no presumptions in the consideration of the relevant circumstances, including those which s. 79(4) requires the court to take into account.”
Section 353 of the Act is identical in terms to s.420 which deals with the Refugee Review Tribunal’s way of operating. Section 420 was considered by the High Court in Minister for Immigration & Anor v Eshetu (1999) 162 ALR 577 at [46 – 53]. At [48] Gleeson CJ and McHugh J said:
“It is not an acceptable approach for statutory interpretation to negate the clear intention of the legislature by relying on s.420 of the Migration Act. In any event, s.420, when understood in its legal and statutory context, is an inadequate foundation for an attempt to overcome the provisions of s.476(2).”
Their Honours’ views were supported by Gauldron and Kirby JJ at [71]. Gummow J at [109] agreed with the approach taken by Lindgren J in Sun Zhan Qui v Minister for Immigration & Anor [1997] FCA 324 where his Honour described s.420 as containing “general exhortatory provisions, the terms of which do not conform to the common understanding of a “procedure”. It is clear that there is no room to utilise s.420 to override provisions of the Act relating to the procedures in the Tribunal such as those contained in Division 4 of Part 7 or Division 5 of Part 5 of the Act.
The applicant continues his grounds at 1(b):
“The Tribunal’s decision was not authorised by the laws under which it was made.”
The first two particulars of complaint under this heading relate to the delegate’s decision. The applicant argues that the Tribunal was in error in finding that the applicant was in breach of condition 8202 on a ground different to the ground considered by the delegate. The ability of a Tribunal to correct a fault of the delegate was recognised in Uddin and was reaffirmed in Zubair. At [28] the Full Bench Finn, Mansfield and Gyles JJ said:
“The review process applicable to the Tribunal is a full merits review. As with review under the Administrative Appeals Tribunal Act 1975 (Cth) the (the AAT Act) the Tribunal is given powers under s.349 to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. It may affirm the decision, vary it or remit the matter for reconsideration with directions or recommendations or may set aside the decision and substitute a new decision. The only limit upon its power is that it may not by varying or setting aside the decision and substituting a new decision make a decision that is not authorised by the Act or the regulations: s.349(4)”
It was made quite clear to the applicant in the s.359 letter that the Tribunal was considering a breach as at 8 August 2007 and not the date in June 2007 referred to by the delegate. The applicant would not have been taken by surprise had he responded to the letters and attended the hearing. There is no unfairness in the way the Tribunal came to its conclusions on this aspect of the matter. The Tribunal is entitled to correct the delegate’s wrong understanding of the situation as a result of additional information that it had obtained and provided to the applicant.
The principles which apply to the above considered grounds also apply to the next ground that “The Tribunal failed to review the delegate’s decision according to law by identifying jurisdictional errors in the delegate’s decision and setting aside the decision.” It is not the purpose of a merits review to undertake judicial review of a decision of a delegate. If a delegate has erred the Tribunal may correct the errors and make its own decision. That much was made clear in Zubair. The applicant then proceeds to argue that the Tribunal failed to consider ss.353 and 357A(3) when considering the effects of s.360(3). Section 360(3) is the type of statutory prohibition which the High Court in Eshetu made clear could not be overridden by s.353. The exhortation to act in a way that is fair and just found in s.357A(3) is no stronger an exhortation than that which appears in s.353 and must be subject to the same restrictions.
Paragraph 1(c) of the Further Amended Application argues that the Tribunal took into account irrelevant circumstances. It suggested that the first six bullet points of Part A of the Tribunal’s s.359A letter were not relevant to a review of the delegate’s decision. I have considered those bullet points. They provide a background to the applicant’s situation that a Tribunal acting fairly towards an applicant would inform him it proposed to take into account. The fact that it dealt with a previous set of circumstances where a delegate declined to cancel a visa had no bearing on the Tribunal’s decision in this case. The applicant then argues that s.360 “does not provide otherwise in the context of s.363A and the Tribunal’s failure to consider that ss.353 and 357A(3) did provide otherwise.” I have already expressed the view that the Tribunal was bound not to ask the applicant to a hearing because of the combined effects of the sections referred to, including s.363A.
The final irrelevant circumstances is alleged to be the fact that the applicant’s failure to respond to the letter of 1 August 2008 ended the Tribunal’s enquiry into what might be the applicant’s circumstances. I do not believe that this is a fair criticism of the Tribunal’s
decision-making in this case. A reading of the decision as a whole would indicate that the Tribunal gave very serious consideration to those of the applicant’s circumstances it was aware of. The real complaint made by the applicant is that the Tribunal did not, by some method unknown, make itself aware of circumstances peculiar to the applicant that he had not advised it of.
Paragraph 1(d) of the Further Amended Application sets out ten relevant circumstances that the Tribunal is alleged not to have taken account of. Most of them concern the actions of the delegate which I have already expressed as irrelevant in the circumstances of this decision. One matter pressed hard by the applicant was the Tribunal’s finding that the medical records provided by the applicant to the delegate were in a foreign language and not in English. I have already made reference to this. I am satisfied that the Tribunal was not wrong in the manner in which it classified those records. The really relevant parts of those records were not written in English.
The applicant then moves on in his grounds at 1(e) to say:
“The Tribunal failed to exercise its discretions in a manner that afforded the applicant natural justice, and according to law.”
The first discretion relates to the invitation to the applicant to attend a hearing. I believe I have dealt with this matter comprehensively earlier in these reasons and will not repeat what I have previously said. The second point is that the Tribunal failed to seek from the applicant an explanation of matters that were unclear to it. The problem that I have with this complaint is that I am not sure, and I have not been told, what the matters were that were unclear. If they were those matters that were raised in the 1 August 2008 letter then the Tribunal had no obligation to seek an explanation once the applicant had failed to respond. The third point raised is that in the circumstances the applicant was not afforded an opportunity to establish that his failure to comply with condition 8202 was due to circumstances beyond his control. That is a statement of the obvious which does not, with respect, advance the applicant’s case. He was not afforded an opportunity because he failed to respond to the letters.
At the hearing the applicant’s solicitor told me that it was important when considering this case to look at three simple facts in the light of s.353. The first was that the applicant’s father could not pay the enrolment fees because of the instability in Burma. The second was that when he went to the interview with the delegate the applicant did not have time to explain this. The third was that the applicant did not get the correspondence from the Tribunal so that he had no opportunity to put his case. The applicant argues that he had no control over these three things and that as a result the cancellation of his visa in the circumstances was unfair, which meant that the Tribunal had not carried out its task as required by s.353(1). He argued that the MRT should have picked up these three matters and that its failure to do so constituted a failure of the process. In my view this argument is flawed. It makes one fundamental assumption that it cannot make. That assumption is that the Tribunal was somehow in possession of the knowledge that the applicant had about his own personal circumstances. There is no evidence of this. The only evidence before the Tribunal was that the applicant was from Burma. There was no evidence who was paying the applicant’s fees. There was no evidence that the person paying the applicant’s fees might be detrimentally affected by the political crisis in Burma. There was no evidence that the reason that the applicant did not enrol was because of his financial position and that this continued through to the time when the cyclone also caused financial difficulties, evidence of which was not before the Tribunal. All this information could have been given to the Tribunal as it could have been given to the delegate. The applicant has explained why it was not; see affidavit of 19 February 2009 at [15], [22], [26] and [34].He made a decision himself not to provide the delegate with that information. He thought it was not necessary. He thought he could wait and when the money came through he could re-enrol. He was wrong.
The applicant says that he did not have time to tell the delegate about the problems other than those surrounding his grandmother. This implies there could be relevance in any of the matters before the delegate. This is also a gloss put upon the facts by the applicant. The applicant did not go to a number of proposed interviews with the delegate. The reason that he gave in his affidavit was that he didn’t have the money to re-enrol. He could have told the delegate this but he chose not to. It is not surprising that without any information concerning the applicant’s financial situation the delegate dealt with the only matter that had been raised, namely the illness of the applicant’s grandmother. There is no basis for saying that the delegate erred in this way or that this was a matter over which the applicant had no control.
Finally, the applicant argued that he did not get the correspondence from the Tribunal so he had no opportunity to put his case. I accept, as does the Minister, that the applicant did not receive the letter. I am also aware that the correspondence was sent by registered mail. The applicant accepts that he was at the address to which the correspondence was sent at all the relevant times. Whilst I might be able to hazard a guess at what occurred I do not know why the applicant did not receive the correspondence. It is not a matter of concern to me or to the Tribunal because of the provisions of the Act (ss.379A and 379C). More importantly, the Tribunal did not know why the applicant had not responded to the letters. The decision was made before the letters were returned to the Tribunal’s offices. Once again the applicant proceeds on the basis that the Tribunal was aware of some particular fact when it was not. Certainly, if the Tribunal had known that the letters had not been received it might have been fair for it to make other attempts to communicate with the applicant. Such attempts are permitted by s.359C as previously discussed. But that is not the situation the Tribunal found itself in. I am unable to impute the Tribunal with knowledge that it did not have.
If the lack of control over these three matters is the pillar upon which the applicant’s case rests then I am afraid that it falls. He did have control, he did not exercise it.
The applicant has not persuaded me that the Tribunal erred in law in the manner in which it came to its decision in this case. I am unable to find any jurisdictional error in the decision. The application is dismissed. The applicant must pay the First Respondent’s costs which I assess in the sum of $5,000.00.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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