Khatri v Minister for Immigration

[2018] FCCA 995

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHATRI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 995

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal entitled to dismiss the applicant’s proceeding by reason of the failure of the applicant to appear at a scheduled hearing – whether Administrative Appeals Tribunal invited the applicant to attend a hearing in accordance with the Migration Act 1958 (Cth) – whether Administrative Appeals Tribunal notified the applicant of its decision in accordance with the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.360, 360A, 362, 362B, 362C, 368, 379A, 379B, 379C, 474, 476
Migration Regulations 1994 (Cth), r.4.35D

Applicant: SHIVESH KHATRI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1540 of 2017

Judgment of: Judge Emmett

Hearing date: 20 April 2018

Date of Last Submission: 20 April 2018

Delivered at: Sydney

Delivered on: 20 April 2018

REPRESENTATION

Applicant: Appeared in person

Solicitors for the Respondents: Ms Sharon Sangha
(Mills Oakley Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1540 of 2017

SHIVESH KHATRI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 17 May 2017 (“the Tribunal”), made pursuant to s.362B(1E) of the Act, in which the Tribunal confirmed an earlier decision to dismiss an application for a student visa under s.362B(1A)(b) of the Act, arising from the failure of the applicant to attend the scheduled hearing. The issue before this Court is whether or not the Tribunal did so in accordance with the relevant legislative scheme.

2. The Tribunal’s decision is accurately summarised in the written submissions of the first respondent as follows:

   “The Tribunal

   4. The applicant applied for review to the Tribunal on 16 June 2016 (CB 51-61). In his review application the applicant provided his mobile phone number [actual number redacted], his email address [actual email redacted], and consented to the Tribunal sending all correspondence to him by email (see CB 52, CB 55, CB 59).

   5. On 5 April 2017, the Tribunal emailed the applicant at his nominated email address attaching a letter that invited him to attend a hearing on 1 May 2017 (CB 65-68). The letter enclosed a "Response to hearing invitation" form for the applicant's completion. The applicant did not respond to the hearing invitation.

   6. The Tribunal sent SMS hearing reminders to the applicant on 21 April 2017 and on 28 April 2017 to his nominated phone number. The SMS messages reminded him to attend his hearing on 1 May 2017 and provided him with contact details should he have any questions (CB 69-70).

   7. The applicant failed to attend the scheduled hearing on 1 May 2017 (CB 73-76). The Tribunal hearing record indicates that the Tribunal checked the "waiting area" for the applicant at 11am, 11:15am, and 12:55pm.

   8. On 1 May 2017, the Tribunal found that the applicant had been invited to attend a hearing on 1 May 2017 at 11:30am, but as he did not appear at the scheduled time and place for the hearing and provided no satisfactory reason for his failure to appear, the Tribunal dismissed the application without further consideration of the application under s 362B(1A)(b) of the Act (CB 81).

   9. On 2 May 2017, the applicant called the Tribunal. The Tribunal's record of the telephone call on 2 May 2017 at 1 :35pm states (CB 77):

   Applicant called RE hearing decision notification. I confirmed with him that I have it on my desk and will process it within the hour.

   10. The applicant was notified of the non-appearance decision by email to his nominated address on 2 May 2017 at 2:08pm (CB 78-83). The email attached the non-appearance decision, a letter addressed to the applicant and an information sheet. The letter informed the applicant that he may apply in writing for reinstatement of the application by 16 May 2017 (CB 79) and the information sheet informed him that if he did not reinstate the application or failed to apply for reinstatement within the 14 day period, it must confirm the decision to dismiss the application (CB 82). The applicant did not seek reinstatement or otherwise contact the Tribunal.

   11. On 17 May 2017, the Tribunal confirmed its decision on review (CB 86-87). It found that as the applicant had been validly advised of the decision to dismiss his application and had failed to apply for reinstatement of the application within 14 days of receiving the application, the Tribunal was required to confirm its dismissal decision and found the decision under review was affirmed (CB 87, [4]).”

The proceeding before this Court

1. The applicant was unrepresented before this Court and did not have need of an interpreter.

2. On 19 June 2017, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support.

3. At the commencement of today’s hearing, the applicant confirmed that he has not filed any Amended Application, evidence or submissions in support of his application and has no further documents to present to the Court this morning in support of his application.

4. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

5. The applicant confirmed that he relied on the grounds contained in an Application filed on 18 May 2017 as follows:

   “1. The applicant was not accesed according to the law.

   2. The Delagates of Minister made error and they did not grant him visa according to the law.

   3. The applicant is genuine entrant and he is countiunesly studying . when he apply for visa he study and countiunes doing his study work.

   4. Delagtes not comply with rule of law and refused to grant him visa.

   5. AAT did not look matter but simply dismiss this matter.

   6. I appeal to higher court to restore my visa.

   7. AAT did not reschedule for hearing but dismiss this matter and did call me for interview.”

   (Errors in original)

6. The applicant confirmed that he continued to rely on the grounds of his application for judicial review.

7. Each of the grounds was discussed with the applicant.

8. The applicant had nothing to say in support of ground 1. 

9. In grounds 2, 4 and 6, the applicant’s complaint was about the decision of the Delegate. I explained to the applicant that the Court did not have jurisdiction to consider that decision, and was concerned only with whether or not the decision of the Tribunal was made according to law. 

10. In ground 3, the applicant did not identify any error capable of review by this Court, and agreed that he was doing no more than restating his claims.

11. The applicant indicated that he did not have anything further to say in support of either ground 5 or ground 7.

12. I then asked the applicant if there was anything further he wished to say generally in support of his application, and he said, No.

13. As stated above, the issue before the Court is whether or not the Tribunal was entitled to affirm the decision under review to refuse the applicant a student visa, by reason of the failure of the applicant to appear before it.

14. On 1 May 2017, the Tribunal decided to dismiss the applicant’s application for review of a decision by the Delegate to refuse his student visa application without further consideration. The Tribunal noted that the applicant was invited, under s.360 of the Act, to appear before the Tribunal on 1 May 2017 at 11:30am, but did not appear at that time.

15. The applicant’s application for review makes clear that the Tribunal was entitled to communicate with the applicant at the applicant’s email address.

16. On 5 April 2017, the Tribunal wrote to the applicant, by email, inviting him to attend a hearing to give evidence and present arguments relating to the issues in his case. That invitation identified 1 May 2017 at 11:30am as the date and time for hearing, and provided the details of the location where the applicant’s hearing was to be held.

17. The letter invited the applicant to send any further documents for consideration and also informed him that if he was not able to attend the hearing, he needed to advise the Tribunal as soon as possible. The letter also informed the applicant that if an adjournment was not granted, he must assume that the hearing would go ahead.

18. The letter went on to inform the applicant that if he did not attend the scheduled hearing, a decision on the review may be made without taking any further action to allow or enable him to appear before the Tribunal and, that his application for review may be dismissed without further consideration of the application or the information before the Tribunal.

19. The letter also informed the applicant that a dismissed case can be reinstated if the Minister considers it appropriate to do so and the application is made within 14 days of receiving the dismissal.

20. On 21 and 28 April 2017, SMS reminders were sent to the applicant notifying him of the time and date of the hearing. The migration hearing record of 1 May 2017 discloses that the applicant did not appear and that the waiting area had been checked at 11:00am, 11:15am and 12:55pm.

21. That notification letter of the Tribunal’s decision made 1 May 2017 was sent to the applicant by email as provided for in s.379A(5)(b) of the Act. The letter afforded the applicant the prescribed period of notice of the hearing as required by s.360A(4) of the Act. Regulation 4.35D of the Regulations identified the prescribed period as 14 days from the day on which the applicant received the invitation, in this case 5 April 2017. The hearing date of 1 May 2017 was in excess of the prescribed 14 day notice period.

22. The letter advised the applicant the effect of s.362B of the Act (namely, the consequences of the failure of the applicant to appear before the Tribunal) and informed the applicant of the time, date and location of the hearing, as required by s.360A(1).

23. On 2 May 2017, the Tribunal received a call from the applicant in relation to the hearing decision notification, which was sent to him later that day by way of email.

24. The Tribunal’s invitation to attend the hearing dated 5 April 2017 was sent in accordance with the relevant statutory scheme

25. The valid invitation to attend the hearing in accordance with the statutory scheme and the failure of the applicant to attend the hearing enlivened the Tribunal’s power under s.362B of the Act. Pursuant to s.362B(1A) of the Act, the Tribunal had the power either: (a) to make a decision on the review without taking any further action to enable the applicant to appear; or (b) to dismiss the application without any further consideration. The Tribunal opted for the latter course.

26. In circumstances where the applicant was validly invited to attend the hearing under s.360 of the Act and he failed to appear, it was open to the Tribunal to exercise its discretion under s.362B(1A)(b) of the Act to dismiss the application without any further consideration of the application or information before it. Once a Tribunal has complied with its obligations to issue a valid invitation under s.360A of the Act, it was not under any obligation to take additional steps to ensure that the applicant was aware of the Tribunal hearing.

27. The applicant did not respond to the hearing invitation and did not engage with the Tribunal prior to 1 May 2017. However, the applicant’s telephone call on 2 May 2017 requesting an update on his “hearing decision notification” suggests that he knew that his hearing had been scheduled on 1 May 2017 and was awaiting the outcome of that decision.

28. The hearing decision notification letter, dated 2 May 2017, informed the applicant that as he had failed to attend the scheduled hearing, a decision had been made to dismiss his application for review. That email also attached a copy of the Tribunal’s decision, together with an information sheet about dismissal of applications.

29. The hearing decision notification letter informed the applicant that he may apply in writing for reinstatement of the application by 16 May 2017. The letter went on to say that in any reinstatement application the applicant can set out why he failed to appear and provide any other information he wished the Tribunal to consider in deciding whether reinstatement should be granted.

30. The information sheet attached to the hearing decision notification letter informed the applicant as to what steps he could taking following the dismissal of his application. In particular, it stated that within 14 days after receiving notice of the dismissal, the applicant could apply in writing for reinstatement, and also informed the applicant that if the applicant failed to apply for reinstatement within the 14-day period, then the Tribunal must confirm the decision to dismiss the application.

31. The applicant did not provide anything further to the Tribunal by way of application for reinstatement or any other communication.

32. On 17 May 2017, the Tribunal wrote to the applicant, annexing a copy of its decision, confirming the decision made on 1 May 2017. The decision on 1 May 2017 dismissed the applicant’s application for review by the Tribunal of the Delegate’s decision refusing him a student visa.

33. The decision dated 17 May 2017 stated that the Tribunal had dismissed the application for review pursuant to s.362B(1A)(b) of the Act, on the basis that the applicant did not appear before it.

34. The Tribunal’s decision record noted that the applicant had been notified of the dismissal decision dated 1 May 2017 and given a copy of the written statement setting out the decision and the reasons for the decision in accordance with s.362C(5) of the Act. The Tribunal’s decision record noted that the review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement, and that a failure to apply for reinstatement within that period would result in confirmation of the dismissal decision.

35. The Tribunal’s decision record noted that if the applicant did not apply for reinstatement of the application within 14 days, the Tribunal must confirm the decision to dismiss the application, and accordingly affirm the decision under review.

36. As stated above, it is clear from the documents referred to above that the applicant was invited to attend a hearing in compliance with the requirements of s.360 of the Act. It is also clear from the legislative scheme that if the applicant failed to appear before the Tribunal, having been properly invited to attend by written statement, then under s.362C of the Act, the Tribunal may dismiss the application without any further consideration of the application or information before the Tribunal.

37. Where an applicant fails to apply for reinstatement within 14 days of being notified of a decision under s.362(1B) and was validly notified of the non-appearance decision, the Tribunal is obliged to dismiss the application by a written statement under ss.368 and 362B(1E) of the Act.

38. The Tribunal’s decision dated 17 May 2017 was also sent in accordance with the statutory regime. As the applicant was notified by email on 2 May 2017, he was taken to have received notification of the decision at the end of 2 May 2017 (see ss.379B(4) and 379C(5) of the Act).

39. The applicant had 14 days after receiving notice of the non-appearance decision to apply to the Tribunal for reinstatement of the application by 16 May 2018.

40. No request for reinstatement was received from the applicant within the statutory period of 14 days. In the circumstances, the Tribunal confirmed its dismissal decision by written statement dated 17 May 2017. Section 362B(1F) of the Act provides that if the Tribunal confirms the decision to dismiss the application, then the decision under review is taken to be affirmed.

Conclusion

1. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

2. The applicant has had nothing to say to the Court this morning by way of anything further.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate: 

Date:  4 May 2018