Khatri v Minister for Immigration and Border Protection
[2018] FCA 1310
•20 August 2018
FEDERAL COURT OF AUSTRALIA
Khatri v Minister for Immigration and Border Protection [2018] FCA 1310
Appeal from: Khatri v Minister for Immigration & Anor [2018] FCCA 995 File number: NSD 741 of 2018 Judge: WIGNEY J Date of judgment: 20 August 2018 Catchwords: MIGRATION – application for Student (Class TU) (subclass 572) visa –where appellant sent notice of invitation to Tribunal hearing in accordance with s 360A Migration Act 1958 (Cth) – where appellant failed to attend scheduled hearing – where Tribunal decided to dismiss review application pursuant to s 362B(1A)(b) Migration Act 1958 (Cth) – where appellant validly notified of Tribunal’s decision to dismiss application – where appellant did not apply reinstatement of review application within 14 days as he was entitled to do – where Tribunal obliged to confirm dismissal of review application pursuant to s 362B(1E) Migration Act 1958 (Cth) – where appellant unable to identify any error in judgment of primary judge – appeal dismissed Legislation: Migration Act 1958 (Cth), ss 360A, 362B, 368, 379A, 379C, 476
Migration Regulations 1994 (Cth), reg 4.21, cl 572.223 of Sch 2
Date of hearing: 20 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 42 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms N Johnson of Mills Oakley Lawyers Counsel for the Second Respondent: The Second Respondent made a submitting appearance, save as to costs ORDERS
NSD 741 of 2018 BETWEEN: SHIVESH KHATRI
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
20 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)WIGNEY J:
The appellant, Mr Shivesh Khatri, is a national of India. He arrived in Australia on 25 October 2013 as the holder of a Student (Class TU) (subclass 573) visa. That visa expired on 15 March 2016. Mr Khatri subsequently lodged an application for a Student (Class TU) (subclass 572) visa. A delegate of the Minister for Immigration and Border Protection refused that application. Mr Khatri then applied to the Administrative Appeals Tribunal for a review of the delegate’s decision.
Mr Khatri was in due course, invited to attend a hearing to be conducted by the Tribunal. He did not, however, respond to that invitation or appear at the scheduled hearing. In those circumstances, the Tribunal dismissed Mr Khatri’s review application. Mr Khatri did not apply to reinstate his application as he was entitled to do. The Tribunal accordingly confirmed its decision to dismiss Mr Khatri’s application.
Mr Khatri next challenged the Tribunal’s dismissal of his review application in judicial review proceedings commenced in the Federal Circuit Court of Australia pursuant to s 476 of the Migration Act 1958 (Cth). He claimed, in various different ways, that the Tribunal had failed to properly exercise its jurisdiction to review the delegate’s decision. The primary judge in the Circuit Court rejected Mr Khatri’s contentions in that regard and dismissed his application. Mr Khatri now appeals from the decision of the primary judge.
For the reasons that follow, Mr Khatri’s appeal has no merit and must be dismissed.
BACKGROUND
Mr Khatri applied for the visa on 15 March 2016. At the relevant time, the criteria that Mr Khatri was required to satisfy to be entitled to the visa were set out in cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth).
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b) the applicant meets the requirements of subclause (1A) or (2).
…
(2) If subclause (1A) does not apply:
(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii)any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
A delegate of the Minister refused Mr Khatri’s visa application on 27 May 2016. The delegate was not satisfied that Mr Khatri met the criteria in cl 572.223.
THE TRIBUNAL PROCEEDINGS AND DECISION
On 16 June 2016, Mr Khatri applied to the Tribunal for a review of the delegate’s decision. Mr Khatri provided a mobile telephone number and email address in his review application form. Mr Khatri also ticked a box that indicated his agreement to the Tribunal sending all correspondence to his nominated email address.
On 5 April 2017, the Tribunal sent a letter by email to Mr Khatri which invited him under s 360 of the Act to give evidence and present arguments at a hearing to be conducted on 1 May 2017. The Tribunal also requested that Mr Khatri provide it with certain information and documentation relating to the visa criteria.
Mr Khatri did not respond to either the Tribunal’s invitation to attend the hearing or its request for further information. The Tribunal subsequently sent a text message to the mobile phone number which Mr Khatri provided in his application for review. That message reminded the recipient of the hearing on 1 May 2017. A second text message was sent to the same mobile telephone number on 28 April 2017. The message was as follows:
Reminder – Your AAT hearing is on 01/05/2017. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
Mr Khatri did not attend the scheduled hearing on 1 May 2017. The Tribunal’s hearing record indicates that the “waiting area” was checked for Mr Khatri at 11:00am, 11:15am and 12:55pm, and that Mr Khatri was not present at any of those times.
On 1 May 2017, the Tribunal decided to dismiss Mr Khatri’s application under s 362B(1A)(b) of the Act by reason of his failure to appear at the hearing. Subsections 362B(1) and (1A) of the Act relevantly provide as follows:
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear
(1A) The Tribunal may:
(a)by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
The Tribunal’s written statement of its decision records as follows:
The review applicant was invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 1 May 2017 at 11.30 but did not appear at the scheduled time and place. As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The following day Mr Khatri contacted the Tribunal. A Tribunal “case note” records as follows:
Applicant called RE hearing decision notification. I confirmed with him that I have it on my desk and will process it within the next hour.
The same day, the Tribunal sent Mr Khatri a letter by email. The letter notified Mr Khatri of the Tribunal’s decision to dismiss his application and attached its written statement of its decision. The letter also attached an “information sheet” which relevantly stated as follows:
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when decision whether your reinstatement application should be granted.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.
The Tribunal’s letter also advised Mr Khatri that he could apply to the Tribunal in writing for reinstatement of his application by 16 May 2017.
Mr Khatri did not respond to the Tribunal’s letter and did not contact the Tribunal again.
On 17 May 2017, the Tribunal decided to confirm the decision to dismiss Mr Khatri’s review application pursuant to s 362B(1E) of the Act. Subsections 362B(1B) and (1E) of the Act provide as follows:
(1B)If the Tribunal dismisses the application, the applicant may, within 14 days after receiving the notice of the decision under section 362C, apply to the Tribunal for a reinstatement of the decision.
….
(1E)If the applicant fails to apply for reinstatement within the 14 - day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.
The Tribunal’s statement of decision and reasons dated 17 May 2017 records as follows:
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 May 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).
2.On 1 May 2017 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). 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 the 14 day period would result in confirmation of the dismissal decision.
4.As the review applicant did not apply for reinstatement of the application within the 14 days [sic] period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
THE CIRCUIT COURT PROCEEDINGS AND JUDGMENT
Mr Khatri applied to the Circuit Court for judicial review of the Tribunal’s decision. His application advanced the following seven grounds (as drafted):
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 countinues 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.
Mr Khatri also filed an affidavit in which he said that he believed that the grounds stated in his application had “good prospects of success”.
Mr Khatri’s application was heard by the primary judge on 20 April 2018.
It does not appear that Mr Khatri filed any written submissions in support of his application. It is, however, apparent from the judgment of the primary judge that, at the hearing, her Honour not only invited Mr Khatri to make oral submissions, but also actively engaged with him concerning his grounds of review. It would appear, however, that Mr Khatri did not advance any meaningful submissions in support of his grounds of review or put forward any other ground or argument which was capable of demonstrating any error, let alone a jurisdictional error, by the Tribunal.
The Judgment of the primary judge carefully addressed the relevant statutory provisions, the facts and circumstances that led to the dismissal of Mr Khatri’s review application in the Tribunal, and the Tribunal’s reasons.
The primary judge found that the Tribunal’s letter inviting Mr Khatri to appear at a hearing was sent to Mr Khatri by email in accordance with s 379A(5)(b) of the Act. The primary judge initially stated that the invitation letter was dated 1 May 2017, though it is abundantly clear that her Honour was intending to refer to the letter which was sent to Mr Khatri on 5 April 2017. The primary judge found that the 5 April 2017 invitation letter sent to Mr Khatri complied with the requirements of s 360A of the Act in that it: was given to Mr Khatri by one of the methods specified in s 379A; provided him with a period of time that was at least the prescribed period of notice of the hearing (which was, relevantly, 14 days: see reg 4.21(4) of the Regulations); advised him of the effect of s 362B of the Act; and informed him of the time, date and location of the hearing.
The primary judge found that, as the invitation to attend the hearing complied with s 360A and was sent in accordance with s 379A of the Act, the failure of Mr Khatri to appear at the hearing enlivened the Tribunal’s power under s 362B of the Act to dismiss the application without any further consideration of the application or the information before it. Her Honour noted (Judgment at [28]):
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.
The primary judge considered that Mr Khatri’s telephone call to the Tribunal on the day after the scheduled hearing requesting an update on his application suggested that he knew his hearing had been scheduled on 1 May 2017 and was awaiting the outcome of that decision.
The primary judge also found, in effect, that the Tribunal had notified Mr Khatri of the non-appearance decision as required by s 362C(5) of the Act. In that regard, her Honour found that the letter sent to Mr Khatri by email on 2 May 2017 attached a copy of the written statement of the Tribunal’s decision of 1 May 2017 and was sent to Mr Khatri in accordance with s 379A(5)(b) of the Act. The letter also advised Mr Khatri that he was able to apply in writing for reinstatement by 16 May 2017 and that, if he failed to apply for reinstatement within that period, the Tribunal was required to confirm its decision to dismiss his application.
The primary judge found that Mr Khatri failed to apply for reinstatement within the 14 day period after receiving notice of the Tribunal’s non-appearance decision. Accordingly, the Tribunal was required by s 362B(1E) to confirm its decision to dismiss Mr Khatri’s application. Her Honour noted that s 362B(1F) provided that, if the Tribunal confirms its decision to dismiss the application, the decision under review is taken to be affirmed.
In those circumstances, the primary judge held that the Tribunal had complied with its statutory obligations in the making of its decision and that the decision was not affected by any jurisdictional error.
The primary judge dismissed Mr Khatri’s application with costs.
APPEAL GROUNDS AND SUBMISSIONS
Mr Khatri’s notice of appeal, filed on 9 May 2018, contains five grounds, as follows (as drafted):
1.HON. JUDGE EMMETT FAILED HOLD THAT ADMINISTRATIVE APPEALS TRIBUNAL MADE JURISDICTIONAL ERROE OF LAW WHEN IT TOOK INTO ACCOUNT IRRELEVANT CONSIDERATION AND MISCONDUCT THE FACTS.
2.. AAT AND IMMIGRATION DEPARTMENT DID NOT PROPERLY ACCESS MY CASE.
3.AAT MISUSE HIS POWER AND DID NOT CONDUCT INTERVIEW.
4.WHEN I LODGE MY VISA APPLICATION AT THAT TIME I WAS ENROLLED IN COURSE. THE DELAGTES IGNO RE MY ENROLLEMET AND REFUSED MY APPLICATION.
5.AAT HAD POWER TO GRANT ME VISA BUT THEY RELY ON DEPARTMENT DECISION AND DID NOT CHECK THAT I WAS ENROLLED IN COURSE.
Mr Khatri also filed an affidavit in support of his application which indicated his belief that the grounds in his application had good prospects of success.
On 14 May 2018, a Registrar of the Court ordered Mr Khatri to file and serve written submissions on or before 6 August 2018. Mr Khatri did not avail himself of that opportunity.
Mr Khatri did appear at the hearing of his appeal and was invited to make any oral submissions or present any arguments in support of his appeal. Mr Khatri again did not avail himself of that opportunity. He did not make any relevant submissions in support of his grounds of appeal.
MERITS OF THE APPEAL
Mr Khatri’s grounds of appeal are entirely without merit.
As for ground one, the primary judge correctly held that the Tribunal did not err in any way in the exercise of its review jurisdiction in Mr Khatri’s case. Contrary to the implicit suggestion in ground one, Mr Khatri did not argue before the primary judge that the Tribunal took into account any irrelevant considerations or that the Tribunal made any error or errors of fact. Mr Khatri did not attempt to identify the irrelevant considerations that he says the Tribunal took into account. Nor did he attempt to identify the errors of fact that he claims were made by the Tribunal. It is abundantly clear that that is because there were none.
As for ground two, there is no merit in Mr Khatri’s contention that the Tribunal did not properly assess his case. While it is true that the Tribunal did not reconsider the merits of Mr Khatri’s visa application, in the circumstances of this case it was not required to do so. That is because Mr Khatri did not appear at the hearing and, by reason of s 362B(1A)(b) of the Act, the Tribunal exercised its power to “dismiss the application without any further consideration of the application or information before the Tribunal”.
Mr Khatri has not demonstrated, or even attempted to demonstrate, that the Tribunal’s exercise of its discretion to dismiss his application pursuant to s 362B(1A)(b) miscarried in any way. Nor did Mr Khatri demonstrate, or attempt to demonstrate, why the Tribunal’s confirmation of the dismissal of his application pursuant to s 362B(1E) was in any way erroneous. It is difficult to see how it possibly could be said that the Tribunal erred in confirming its dismissal of Mr Khatri’s application, given that he was clearly notified of the non-appearance decision and failed to apply for reinstatement of his application in accordance with s 362B(1B) of the Act.
Exactly the same can be said in relation to ground three of Mr Khatri’s notice of appeal. There is no basis for Mr Khatri’s claim that the Tribunal misused its power. While it may be correct to say the Tribunal did not conduct a hearing or interview, that is because Mr Khatri failed to appear at the hearing. He also failed to apply for reinstatement of his application once it was dismissed by reason of his non-appearance.
Ground four does not raise a proper ground of appeal and does not require any further consideration. It relates only to the delegate’s decision.
As for ground five, while it is again correct to say that the Tribunal did not consider the merits of his visa application, that is because Mr Khatri failed to appear at the hearing. In those circumstances, the Tribunal exercised its discretion to dismiss his application pursuant to s 362B(1A)(b) of the Act. As has already been noted, Mr Khatri has not demonstrated that the Tribunal’s decision to dismiss his application on that basis miscarried in any way. Nor has Mr Khatri demonstrated that the Tribunal erred in confirming its non-appearance decision pursuant to s 362B(1E) of the Act.
It follows that Mr Khatri’s grounds of appeal have no merit and his appeal must be dismissed with costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 28 August 2018
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