Kumar v Minister for Home Affairs

[2018] FCCA 3384

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3384

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for student visa – application for judicial review of a decision of the Administrative Appeals Tribunal to dismiss for non-appearance at scheduled hearing – decision to dismiss confirmed by Tribunal subsequently because no application for reinstatement of review application – applicant sent two SMS text reminders reminding applicant of scheduled hearing – no jurisdictional error committed by Tribunal in dismissing without a review – application for judicial review dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.2A
Migration Act 1958 (Cth), ss.360, 362B, 363, 375A, 379A

Federal Court Rules 2011 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

AYX17v Minister for Immigration and Border Protection [2018] FCAFC 103
Minister for Immigration v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640
Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365
Sullivan v Department of Transport (1978) 20 ALR 323

Applicant: RAJINDER KUMAR

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1929 of 2018

Judgment of: Judge Dowdy

Hearing date: 16 November 2018

Delivered at: Sydney

Delivered on: 16 November 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr R. White

Solicitor for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 11 July 2018 is dismissed. 

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,200. 

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 17 December 2018 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1929 of 2018

RAJINDER KUMAR

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. The Applicant is a male citizen of India aged 23 years, having been born on 15 December 1994. 

2. By Application filed in this Court on 11 July 2018 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 12 June 2018 which under s.362(1E) confirmed its earlier decision under s.362B(1A)(b) of the Migration Act 1958 (Cth) (the Act), dated 24 May 2018 to dismiss the application for review of a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 3 October 2017 refusing to grant to him a Student (Temporary) (Class XU) (Subclass 500) visa (Student visa). 

3. The Tribunal was bound to make the decision to dismiss the application for review under s.362B(1E) of the Act when the Applicant did not seek reinstatement in the circumstances mentioned below. The Applicant really needs to attack the anterior decision of 24 May 2018 and I grant leave to the Applicant to amend the Tribunal decision he seeks to set aside to substitute “24/5/2018” for “12/6/2018”, and dispense with any need for the Applicant to file an Amended Application to that effect.

Background

1. The Applicant applied for the Student visa on 23 March 2017.

Decision of Delegate

1. The Delegate in his Decision Record found that the Applicant had provided misleading information in relation to his financial capacity for study and did not satisfy PIC4020(1) (i.e. the bogus document or false or misleading information criterion) and that there were no compassionate or compelling circumstances to waive PIC4020.

2. Accordingly, the Delegate found that the Applicant did not meet cl.500.217, as was required, and refused to grant to him the Student visa.

Decision of Tribunal

1. On 20 October 2017, the Applicant via his registered migration agent lodged an application with the Tribunal to review the Delegate’s decision.  By letter dated 13 April 2018 emailed to the nominated email address of the Applicant, being that of his registered migration agent, the Tribunal invited the Applicant to an interview before the Tribunal to be held on 23 May 2018. 

2. That letter enclosed information about hearings before the Tribunal and specifically advised under the heading of “What if I cannot attend the scheduled hearing?” that if he was not able to attend the scheduled hearing on 23 May 2018 he needed to advise the Tribunal as soon as possible and that the Tribunal would only change the date if satisfied that there was a very good reason for granting an adjournment. 

3. The information further advised that if the Applicant did not attend the scheduled hearing a decision might be made on the review without taking any further action to allow or enable to Applicant to appear before the Tribunal or might also dismiss the application for review before it without further consideration. In particular it advised that if the Applicant sought to adjourn the scheduled hearing for a medical reason he had to provide a doctor’s certificate and that if he could not provide a medical certificate he had to provide a convincing reason for the inability to appear. 

4. The evidence further establishes that first on 16 May 2018 the Tribunal sent an SMS text message to the mobile phone number given by the Applicant in his review application to remind him of the hearing on 23 May 2018.  Then the Tribunal sent a second SMS text reminder to the same mobile telephone number on 22 May 2018.  At 6.46 am on 22 May 2017 the registered migration agent sent an email to the Tribunal which in short stated that the migration agent had just been called by the Applicant who had asked the migration agent to inform the Tribunal that he had got the SMS text message about the hearing from the Tribunal “but he is too sick to attend the hearing”. 

5. Then the evidence discloses that on 23 May 2018 at 9.42 am an officer of the Tribunal rang the migration agent to ask whether the Applicant had anything to support his non-attendance due to sickness.  No square answer to that inquiry is recorded in the evidence but simply that the migration agent informed the officer from the Tribunal that the Applicant had contacted him regarding the Tribunal’s SMS text reminder and said that he could not attend. 

6. The officer is recorded as enquiring whether the Applicant had received the hearing invitation previously extended and the migration agent confirmed that this had been forwarded to the Applicant. In the result, the Applicant did not attend the Tribunal hearing on 23 May 2017 and no medical evidence was provided to the Tribunal and no medical evidence has ever been produced by the Applicant since, including in this proceeding. The next day, being 24 May 2018, the Tribunal in its Decision Record of that date dismissed the application for review without further consideration pursuant to s.362(1A)(b) of the Act.

7. The Tribunal found that the Applicant had been properly invited to attend the hearing in accordance with s.379A(5) of the Act on 23 May 2018 and decided to dismiss the application for review because the Applicant did not appear at the scheduled time and place for the hearing and had provided no satisfactory reason for his failure to attend. The Tribunal in its Decision Record recorded that the two SMS text reminders had been sent and the information received from the migration agent that the Applicant would not attend the hearing, but that there was no material to support the claim that he was sick.

8. The Applicant was notified of the dismissal of his application on 24 May 2018 by email to the nominated email address of his migration agent on 25 May 2018, which email attached the Decision Record of the Tribunal in that regard and the letter informed the Applicant that he could apply in writing for reinstatement of his review application by 8 June 2018. The information sheet which was attached to the email to the migration agent informed the Applicant that if he failed to apply for reinstatement within the 14 day period the Tribunal had to confirm the decision to dismiss the review application. 

9. However, the Applicant did not seek reinstatement or otherwise contact the Tribunal within the relevant 14 day period. Accordingly, by its Decision Record of 12 June 2018 the Tribunal confirmed its decision on review and this meant that the effect of the confirmation decision was that the decision under review was affirmed, namely the Delegate’s decision under review was taken to be affirmed. 

Ground of Attack on Tribunal Decision in this Court

1. The Grounds relied upon in the Application filed in this Court are as follows:

   1. That the Tribunal did not apply procedural fairness in the applicant’s case by dismissing his application without offering him an opportunity to present the facts and evidence, and thereby incurred a jurisdictional error.

   2. That the Tribunal’s decision to dismiss the application due to non-attendance was unreasonable, in that the Tribunal was informed of the inability of the applicant to attend on the day of the hearing and thereby incurred a jurisdictional error. 

   3. The applicant says that the Tribunal should have postponed the hearing to a later date to allow the applicant to participate effectively.

Consideration

Grounds 1, 2 and 3

1. I take these Grounds as attacking as legally unreasonable the Tribunal’s decision on 24 May 2018 to dismiss the application for review because of the non-appearance of the Applicant at the hearing and implicitly as contending that the Tribunal should have on that day adjourned the hearing or alternatively proceeded to make a decision on the review and consider his claims in his absence under s.362(1A)(a) of the Act. In this respect, I note that in reality Ground 2 is contending that the Tribunal hearing should simply have been adjourned and a new hearing date appointed.

2. I note that the exercise of a discretionary power of a kind given by s.362B of the Act to the Tribunal is subject to judicial scrutiny in order to determine whether it was exercised in a legally unreasonable way: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Under s.363(1)(b) the Tribunal has the power to adjourn a review from time to time. Further, the Tribunal is exhorted by s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to carry out its functions in a way that is:

   …fair, just, economical, informal and quick.

3. However, these discretionary powers to adjourn a hearing, to proceed with a hearing and to operate economically, informally and quickly must be exercised reasonably in a legal sense and not arbitrarily, capriciously or without common sense, having regard to the central obligation of the Tribunal under s.348 of the Act to review relevant decisions and to give the relevant applicant a meaningful opportunity or a real chance to appear to present evidence and arguments pursuant to the invitation extended under s.360.

4. However, in my view the decision of the Tribunal to dismiss the application for review without any further consideration on 24 May 2018 was not legally unreasonable and did not “lack an evident or intelligible justification”. In particular also because eo instanti it afforded the Applicant the opportunity to seek reinstatement within 14 days. The Tribunal had given to the Applicant more than sufficient opportunity to appear and argue his case.

5. The appointed Tribunal hearing date of 23 May 2018 was presumably a very important day for the Applicant. The Applicant was under a personal responsibility to attend in aid of his application for review if he was not precluded for good reason. As Barker J in Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365 said at 372 [56], referring to proceedings before the Migration Review Tribunal:

   [56] What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.

6. Here the Applicant had been first given opportunity to appear before the Tribunal at the scheduled hearing on 23 May 2018.  He had been on notice of that Tribunal hearing date since the letter of invitation of 13 April 2018.  The Applicant, however, did not appear at the scheduled hearing on 23 May 2017 and provided no medical evidence in support of his alleged sickness. No Court in this country would adjourn a scheduled hearing on the basis of a mere assertion of sickness, as was made in this case by the Applicant.

7. Even when offered the chance of reinstatement, the Applicant did nothing and remained completely unresponsive and he has never explained, even in this Court, why he did not seek to avail himself of the option of seeking reinstatement. In my view, the Tribunal simply could not properly administer its caseload if applicants could act in the way the Applicant has with respect to his application for review in this case.  As Deane J pointed out in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, the Tribunal’s duty is to give an applicant a reasonable opportunity to present his or her case, but there is no obligation imposed upon the Tribunal to engage in the impossible task of ensuring that a party takes the best advantage of the opportunity to which he or she is entitled.

8. In my view, the Tribunal’s decision to dismiss the application for review was not “arbitrary” or “irrational” or “lacking an evident and intelligible justification”. The Tribunal had a “genuinely free discretion” and “decisional freedom” to make the decision, which it did, and in that regard its decision did not fall outside of the range of possible, acceptable outcomes: see Wigney J in Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 at 650 [52].

9. As Tracey and Mortimer JJ said further in AYX17v Minister for Immigration and Border Protection [2018] FCAFC 103 at [39]:

   [39] …     In Minister for Immigration and Border Protection v Stretton [2016] 237 FCR 1 at [92], Wigney J placed the reference to a range of outcomes in what we consider, with respect, to be its correct context: namely as another way of explaining the general limits of the judicial function in a supervisory jurisdiction:

   In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]- [45]), or if the decision is within the “area of decisional freedom” of the decision-maker (Liat [28], [66], [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently.

10. Further, as recently pointed out by Kiefel CJ in Minister for Immigration v SZVFW [2018] HCA 30 at [11], in a similar context to this case, “the test for unreasonableness is necessarily stringent”.

11. In my view the Tribunal’s decision of 24 May 2018 was legally reasonable and not the subject of jurisdictional error and the decision of the Tribunal of 12 June 2018 was mandated by s.362B(1E) of the Act. Otherwise I find that the Applicant was properly invited to attend the hearing before the Tribunal on 23 May 2018 by the s.360 letter of 13 April 2018.

12. Further, the Applicant was properly notified of the decision of 24 May 2018 because the email was sent on 25 May 2018 which was within 14 days of the date of the non-appearance decision. The Minister submitted at [25] of his Written Submissions and I find as follows:

    [25]In this case, the applicant was validly notified of the non-  appearance decision:

    a) The email was sent on 25 May 2018, which was within 14 days of the date of the non-appearance decision (24 May 2018), as required by s 362C(5)(a).

    b) The Tribunal provided a copy of the statement of its non-appearance decision, together with a statement describing the effect of s 362B(1B)-(1F), as required bys 362C(6).

    c) The notification was sent to the applicant's representative by email transmission to the email address provided by the applicant for the purposes of the review, a method specified ins 379A: s 362C(5)(b). As the applicant was notified by email on 25 May 2018, he was taken to have received notification of the decision at the end of that day: s 379B(4), s 379C(5).

    d) The applicant had 14 days after receiving notice of the non-appearance decision to apply to the Tribunal for reinstatement of the application (s 362B(1B) of the Act) which fell on 8 June 2018.

13. I finally note that at the hearing the Applicant tendered and I received a copy of his father’s death certificate printed on 30 November 2017 which indicates that his father died on 20 November 2017, some six months before the scheduled Tribunal hearing for 23 May 2018. 

14. That medical certificate and the fact of his father’s death was never given to the Tribunal by him at the time as a reason for not being able to attend.  He has now submitted that in fact the sickness was a result of his father’s death.  That is a mere assertion by him from the Bar table. It is not corroborated or in any way backed up by any medical evidence. It was not the reason given at the time and the death certificate was never submitted to the Tribunal. The fact of the father’s death does not seem to me to establish that the decisions of the Tribunal were affected by jurisdictional error. 

A Final Matter – s.375A Certificate

1. At Court Book page 116 appears a Certificate purportedly under s.375A of the Act by which a Delegate of the Minister certified to the District Registrar of the Tribunal that certain documents should not be disclosed (s.375A certificate). The s.375A certificate states that it applies to folios 119 to 122 in a file number referable to the Applicant.

2. The Minister has raised the existence of the s.375A certificate as a model litigant but nevertheless submits and contends that it has no relevance to this proceeding and I agree with that submission. Because of the nature of the Tribunal’s dismissal decisions there has never been a hearing or consideration of the merits of the Applicant’s claims and whatever the subject of the s.375A certificate was, and that subject is not in evidence, it was certainly irrelevant to the dismissal decision and the exercise of the discretion to dismiss the application for review.

3. The existence of the s.375A certificate in these circumstances has not caused any practical injustice or led to any procedural unfairness and had nothing to do with, in any conceivable way, the decision of the Tribunal that is under review in this proceeding.

Conclusion

1. The result is that the Applicant has failed to establish that the decision of the Tribunal was affected by jurisdictional error and has not established that he has suffered from any procedural fairness.  

2. Accordingly, the Application to this Court is to be dismissed. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  26 November 2018