Koirala v Minister for Immigration

[2015] FCCA 408

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOIRALA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 408

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.360, 360A, 362B, 379A, 379C
Migration Regulations 1994 (Cth)

Sapkota v Minister for Immigration [2014] FCAFC 160

Applicant: SAMJHANA KOIRALA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 558 of 2014

Judgment of: Judge Driver

Hearing date: 25 February 2015

Delivered at: Sydney

Delivered on: 25 February 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Senanayake of DLA Piper

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 558 of 2014

SAMJHANA KOIRALA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 10 February 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Ms Koirala, a temporary student visa.  The background facts relating to this matter are conveniently set out in the Minister’s outline of legal submissions filed on 12 February 2015. 

2. Ms Koirala applied for a Student (Temporary) (Class TU) (subclass 572) visa on 3 September 2013.[1]  The application was refused by a delegate of the Minister on 11 September 2013.[2]  Ms Koirala applied to the Tribunal for review of the delegate's decision on 30 September 2013.[3]

   [1] Court Book (CB) 1 - 26

   [2] CB 27 - 33

   [3] CB 36 - 51

3. The Tribunal wrote to Ms Koirala on 24 December 2013 inviting her to attend a hearing on 10 February 2014.[4]  This letter was sent by prepaid post to the mailing address given by Ms Koirala on her “Application for Review”.[5]

   [4] CB 57 - 63

   [5] CB 43

4. Ms Koirala did not reply to the letter.[6]  Ms Koirala did not attend the hearing.[7]

   [6] CB 64

   [7] CB 65

5. The Tribunal proceeded to make its decision on 10 February 2014, without taking further action to enable Ms Koirala to appear before it, pursuant to s.362B of the Migration Act 1958 (Cth) (Migration Act).[8]

   [8] CB 69

6. The Tribunal sent a letter to Ms Koirala notifying her of the outcome of its decision on 11 February 2014.[9]

   [9] CB 68

The decision of the Tribunal

1. The issue for the Tribunal (and the Minister's delegate) was whether Ms Koirala satisfied clause 572.211 of the Migration Regulations 1994 (Cth) (Regulations). The criterion at clause 572.211(1) requires that an applicant meet the requirements of one of subclauses (2), (3), (4) or (6).

2. Subclauses (2), (4) and (6) require an applicant to be the holder of a substantive visa of a particular type at the time the visa application is lodged.

3. Subclause (3) applies to an applicant who is not the holder of a substantive visa.

4. Ms Koirala did not hold a substantive visa at the date her application was lodged, and therefore did not meet the criteria in subclauses (2), (4) or (6).  As such the Tribunal found that Ms Koirala needed to meet the requirements in subclause (3).[10] 

   [10] CB 71 [8]

5. The Tribunal found that Ms Koirala satisfied the criteria in clauses 572.211(3)(b) and (c) because her last substantive visa was a subclass 572 visa, and her visa application was made within 28 days of her last substantive visa ceasing to have effect.[11] Therefore the issue before the Tribunal was whether Ms Koirala satisfied the criterion in clause 572.211(3)(d) which requires that an applicant satisfy Schedule 3 criterion 3005.

   [11] CB 71 [9]-[10]

6. Schedule 3 criterion 3005 requires as follows:

   A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

   (a) this Schedule; or

   (b) Schedule 6 of the Migration (1993) Regulations; or

   (c) regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

7. The Tribunal found that Ms Koirala had previously been granted a subclass 572 visa in reliance on the provisions in Schedule 3.[12] Accordingly, the Tribunal found that Ms Koirala did not satisfy criterion 3005 and therefore did not meet the requirements of clause 572.211(3)(d).[13] 

   [12] CB 71 [12] - [13]

   [13] CB 71 [14]

8. The Tribunal therefore found that Ms Koirala did not meet the requirements of clause 572.211 of Schedule 2 to the Regulations and affirmed the decision not to grant the visa.

9. These proceedings began with a show cause application filed on 7 March 2014.  The grounds in that application are reproduced at [13] of the Minister’s outline of submissions:

   1.The Migration Review Tribunal did not send me a letter to attend the Tribunal.

   2.As the Migration Review Tribunal did not communicate with me to attend the Tribunal and hear my side of the story, the Tribunal did not follow due process of law.

10. Ms Koirala continues to rely upon that application.  The application is supported by a short affidavit by Ms Koirala.  I adopted [1]-[3] of that affidavit as evidence and [4] as a submission.  That said, it is not in dispute that Ms Koirala did not receive a letter of invitation from the Tribunal.

11. I also received into evidence the court book filed on 7 April 2014 and the affidavit of Naomi Senanayake made on 17 June 2014.  

12. Ms Koirala made oral submissions at the show cause hearing today. 

13. The Minister relies upon his written submissions. 

14. The hearing in this matter was deferred, pending the decision of the Full Federal Court in Sapkota v Minister for Immigration[14].  The parties were in agreement that this case might potentially be affected by that decision.  I am, of course, bound by the decision of the Full Federal Court on the issues in that judgment. 

    [14] [2014] FCAFC 160

15. The issue raised in the show cause application concerns the Tribunal’s compliance with s.360 of the Migration Act. Accepting that Ms Koirala did not receive any invitation to attend a hearing before the Tribunal, the question for the Court is whether there is an arguable case that the Tribunal did not comply with its obligation under that section.

16. I accept the Minister’s submissions on this issue. Ms Koirala was properly invited to attend a hearing before the Tribunal, in accordance with the requirements of the Migration Act and Regulations.

17. The Tribunal’s hearing invitation letter was sent to Ms Koirala’s postal address as nominated on the Tribunal application form.[15]  The hearing invitation:

    a)specified the date, time and location of the scheduled hearing as required by s.360A(1) of the Migration Act; and

    b)contained a statement to the effect of section 36(2B) of the Migration Act as required by s.360A(5) of the Migration Act.

    [15] CB 57-61.

18. Section 360A(2) of the Migration Act requires that the hearing invitation is given to the applicant by a method specified in s.379A of the Act.

19. The hearing invitation was sent to Ms Koirala by the method in s.379A(4), namely by prepaid post to the last address for service provided to the Tribunal by Ms Koirala in connection with the review.

20. Where this method of dispatch is used, s.379A(4)(a) requires that the hearing invitation is dated and despatched within three working days of the date of the document.

21. The hearing invitation was dated 24 December 2013 and was despatched on 24 December 2013.[16] Therefore the hearing invitation letter was dispatched within three working days of its date in compliance with s.379A(4)(a) of the Migration Act.

    [16] See affidavit of Nayomi Senanayake filed on 18 June 2014, page 10.

22. Section 360A(4) of the Migration Act and regulation 4.21 require that the hearing invitation gave Ms Koirala at least 14 days' notice of the hearing.

23. Section 379C(4) of the Migration Act provides that if a document is given to a person by the method set out in s.379A(4), then the person is deemed to receive that document seven working days after the date of the document.

24. As the letter was despatched in accordance with s.379A(4), Ms Koirala is deemed to have received the hearing invitation on 7 January 2014. Ms Koirala was therefore given more than 14 days notice of the hearing listed on 10 February 2014.

25. Even if Ms Koirala did not actually receive the invitation to hearing letter dated 24 December 2013, by operation of the deeming provision in s.379C(4) of the Migration Act, Ms Koirala is taken to have received the letter.

26. In circumstances where Ms Koirala failed to appear at the hearing and did not contact the Tribunal. I accept that it was reasonable and open to the Tribunal to proceed to make its decision on the review pursuant to s.362B of the Migration Act without any further action.

27. I further accept that the findings made by the Tribunal on the applicability of clause 572.211 were without legal error.

28. Ms Koirala’s last substantive visa ceased to be in effect on 30 August 2013.[17]  The next visa granted to Ms Koirala was a bridging visa on 4 September 2013 in association with the present student visa application.

    [17] CB 51, 71 [10]

29. Therefore, the Tribunal was correct to conclude that Ms Koirala did not hold a substantive visa at the date of her application, and was correct to assess Ms Koirala against clause 573.211(3). 

30. Clause 573.211(3) required Ms Koirala to satisfy criterion 3005.  Criterion 3005 bars the grant of a visa if one has previously been granted on the basis of the satisfaction of that Schedule 3 criterion as picked up by a Schedule 2 criterion.[18]  As Ms Koirala had previously been granted a student visa on reliance of criterion 3005, the Tribunal was correct to find that Ms Koirala could not again rely on criterion 3005.  The Tribunal was therefore correct to conclude that Ms Koirala did not satisfy clause 573.211(3)(d).

    [18] Sapkota v Minister for Immigration

31. I accept that the Tribunal met its obligation under s.360 and related provisions to invite Ms Koirala to a hearing. It is unfortunate that she did not receive that invitation. Obviously, she would have been able to give a better account of herself if she had attended the Tribunal hearing.

32. The circumstances, while unfortunate, do not, however, point to any jurisdictional error by the Tribunal.  I conclude that Ms Koirala has not been able to establish an arguable case of jurisdictional error by the Tribunal.

33. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

34. In consequence of the dismissal of the application the Minister seeks an order for costs in the sum of $3,326.  Ms Koirala did not wish to be heard on costs.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  27 February 2015