Kumar v Minister for Immigration
[2018] FCCA 2448
•5 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2448 |
| Catchwords: MIGRATION – UK Partner (Temporary) (subclass 820) and BS Partner (Residence) (subclass 801) visa – application for review of decision of the Administrative Appeals Tribunal (AAT) – AAT application dismissed for non-appearance – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 360, 362B, 362C Migration Regulations 1994 (Cth), sch.3 |
| Cases cited: Minister for Immigration and Border Protection v SZVFW & ORS [2018] HCA 30 Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 |
| Applicant: | JATIN KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 692 of 2016 |
| Judgment of: | Judge Kirton |
| Hearing date: | 27 August 2018 |
| Date of Last Submission: | 27 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 September 2018 |
REPRESENTATION
| The applicant appearing in person |
| Counsel for the respondents: | Mr Goodwin |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 692 of 2016
| JATIN KUMAR |
Applicant
and
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
and
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant, who is a citizen of India, arrived in Australia on 11 March 2014 as the holder of a Subclass 573 visa, which was cancelled on 31 October 2014. On 18 February 2015 the applicant applied for a UK Partner (Temporary) (subclass 820) visa and a BS Partner (Residence) (subclass 801) visa.
On 30 October 2015 a delegate of the first respondent refused to grant the applicant the Subclass 820 and Subclass 801 visas. The Subclass 820 visa was refused on the basis that the delegate was not satisfied that the applicant met the sch.3 criteria in the Migration Regulations 1994 (Cth). In order to meet the sch.3 Criteria 3001, the application for the Subclass 820 visa must have been made within 28 days of the cancellation of the applicant’s Subclass 573 visa. As the applicant’s Subclass 573 visa was cancelled on 31 October 2014 and the application for the Subclass 820 visa was not made until 18 February 2015, the application for the Subclass 820 visa did not meet the sch.3 Criterion 3001.
The delegate refused the Subclass 801 visa as the Applicant did not hold and never had held a subclass 820 visa at the time of decision, which is a requirement for the grant of a subclass 801 visa.
Administrative Appeals Tribunal
On 16 November 2015 the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision to refuse to grant him a Subclass 820 visa.
The Tribunal wrote to the applicant on 21 January 2016 inviting him to attend a hearing on 19 February 2016. The hearing invitation stated that arrangements had been made for the hearing to be held by video link from Sydney and the Bowen Magistrates and District Court, Queensland, which was near where the applicant lived. The hearing invitation stated as follows:
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
On 28 January 2016 the applicant sent an email to the Tribunal advising that he would not be able to attend the hearing due to his financial circumstances, as he could not afford the cost of tickets. The applicant requested a postponement of the hearing. On 29 January 2016 a Tribunal member spoke to the applicant by telephone and the applicant advised that he was now living in Melbourne. By a further email later that day the applicant advised the Tribunal of his address in Mernda, Victoria.
The Tribunal wrote to the applicant on 1 February 2016 in response to his request to postpone the hearing. The letter from the Tribunal advised the applicant that the hearing would not be postponed but would instead take place on 19 February 2016 at the “MRT/RRT-VIC, Level 10, 120 Spencer Street, Melbourne, VIC, 3000”. This letter provided the same statement to the effect in paragraph 5 above.
On 12 February 2016 the Tribunal sent to the applicant an SMS to his mobile number reminding him of the scheduled hearing date and time.
On 17 February 2016 the applicant provided to the Tribunal a medical certificate indicating that from “Wednesday, 17 February 2016 to Sunday, 21 February 2016 inclusive [he] is unfit for work”. The applicant included a hand written notation on the lower part of the medical certificate stating that he had back pain and that “I have badly back pain for a few days. I might not attend the hearing on 19th Feb”.
The Tribunal wrote to the applicant on 17 February 2016 advising that it had rescheduled the hearing to 4 March 2016. This letter again contained the same statement referred to in paragraph 5 above.
The Tribunal sent to the applicant SMS reminders on 26 February 2016 and 3 March 2016, advising him of the date and time of the hearing scheduled for 4 March 2016.
The applicant did not attend the Tribunal on the day of the scheduled hearing on 4 March 2016.
On 11 March 2016 the Tribunal wrote to the applicant advising that as he had failed to attend the hearing scheduled on 4 March 2016, it had decided to dismiss his application for review. It provided a copy of the Decision Record, dated 9 March 2016 (Non-Appearance Decision). The basis for the decision was stated to be that the application was dismissed pursuant to s.362B(1A)(b) of the Migration Act 1958 (Cth) (Act). The letter advised the applicant that he may apply to the Tribunal in writing for reinstatement of the application by 29 March 2016.
The applicant did not respond to the Tribunal’s letter dated 11 March 2016.
On 1 April 2016 the Tribunal again wrote to the applicant and advised that it had confirmed the Non-Appearance Decision. A copy of the Decision Record and Statement of Decision and Reasons, dated 31 March 2016 was also sent (Affirming Decision). The Affirming Decision confirmed that the applicant had been given a copy of a written statement setting out the Non-Appearance Decision and the reasons for decision in accordance with s.362C(5) of the Act. It also confirmed that the applicant had been advised that reinstatement of the application could be sought within 14 days of receiving the Non-Appearance Decision and that a failure to apply for reinstatement within 14 days would result in confirmation of the Non-Appearance Decision.
Federal Circuit Court
On 6 April 2016 the applicant applied to this court for review of the Affirming Decision (Application). The Application is supported by an affidavit deposed and filed by the applicant on 6 April 2016.
The grounds of application are stated to be (Grounds of Application):
1.I have applied on 18 Feb 2015 for a Partner (Temporary) (Class UK) visa under s.65 of the Migration A 1958 (the Act) on the basis of my marriage with my Partner Ms Nickea Adel Mastwika.
2.I have applied to Administrative Appeals Tribunal to reconsider the decision made by the delegate, at the time of making application, also I was in Relation with Nickea Adel Mastwika.
3.I have received letter from AAT to attend hearing on 04th March 2016, I was prepared to attend hearing unfortunately I was seek (sic) and wasn’t able to reply to their letter also.
4.Tribunal refused my application saying that I didn’t attend hearing. I was sick due this wasn’t able to attend hearing.
5.I am in love with Nickea Adel Mastwika. Since long time I always wished to leave Australia, I discussed with my Wife Nickea Adel Mastwika and requested her to accompany me to India and live there. She asked me about my location of my native place, I told her it is a small village in remote area of Haryana, she did some home work regarding going to India and gave me following reason.
Factors which stopped her going to India was
She does not speak Indian language at all and felt that she would be restricted to talk to me only. This language barrier would make her life very difficult in India.
I never wanted to harm her so I decided to lodge my visa application.
6.I request honourable authority to please consider my application and grant me time so that I can collect the documents and can present documents before honourable justice.
The Grounds of Application are concerned with a complaint about the Tribunal’s dismissal of the Application in the absence of a hearing. Consequently the legislative framework within which the dismissal of the Application took place is relevant.
Legislative Framework
The invitation to attend the hearing and subsequent correspondence were sent pursuant to s.360 of the Act. This section provides:
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
[…]
When the applicant is invited to appear before the Tribunal under s.360 and does not appear, the Tribunal may make a decision on the review or dismiss the proceedings pursuant to s.362B of the Act. This section provides:
362B Failure of applicant to appear before Tribunal
Scope
(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;
Tribunal may make a decision on the review or dismiss proceedings
(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.
Reinstatement of application or confirmation of a dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application
[…]
(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.
(1F)If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G)To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
Section 362C of the Act is also relevant in relation to the information that is to be included in a non-appearance decision. The section provides:
362C Failure to appear – Tribunal’s decisions, written statements and notifying the applicant
Decisions to which this section applies
(1) This section applies in relation to the following decisions (each of which is a non-appearance decision):
(a)a decision to dismiss an application under paragraph 362B(1A)(b);
[…]
Written statement of decision
(2) If the Tribunal makes a non-appearance decision, the Tribunal must make a written statement that:
(a) sets out the decision; and
(b) sets out the reasons for the decision; and
(c) […]
(d) records the day and time the statement is made.
(3) A non-appearance decision is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(4)The Tribunal has no power to vary or revoke a non-appearance decision after the day and time the written statement is made.
Notice to applicant
(5)The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b)by one of the methods specified in section 379A.
(6)In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 362B (1B) to (1F).
[…]
Consideration
The Tribunal made two decisions. The Non-Appearance Decision on 9 March 2016 and the Affirming Decision on 31 March 2016.
Non-Appearance Decision
The applicant was invited to appear before the Tribunal by letters dated 21 January 2016, 1 February 2016 and 17 February 2016 sent to the applicant’s nominated email address. The Tribunal therefore complied with s.360 of the Act.
The applicant did not appear before the Tribunal in Melbourne on 4 March 2016 at the time and place where the hearing was scheduled. As the applicant did not attend the hearing the Tribunal therefore had the power by reason of s.362B(1)(a) and (b) of the Act, to proceed to make a decision on the review or to dismiss the proceeding pursuant to s.362B(1A).
The Tribunal elected to exercise its discretion pursuant to s.362B(1A)(b) of the Act and dismissed the Application without any further consideration of the Application. The Tribunal was entitled to exercise its discretion to dismiss the Application pursuant to s.362B(1A)(b), provided that the discretion was exercised reasonably.
The High Court has recently considered the test for unreasonableness in Minister for Immigration and Border Protection v SZVFW & ORS ([2018] HCA 30) (SZVFW). In that case Kiefel CJ said:
Statements such as that made in the Wednesbury case (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230), that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 376 [108]). And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.
[…]
But this is not to deny that within the sphere of the statutory purpose there is scope for a decision-maker to give effect to the power according to his or her view of the justice of the case, without interference by the courts [11-12].
Gagler J warned a court against substituting its own view through the lens of legal unreasonableness. His Honour said:
Except to the extent specifically permitted by statute, a judge undertaking judicial review of administrative action would depart from performance of the judicial function and impermissibly enter the zone of discretion committed to the administrator were the judge to be drawn into forming his or her own conclusion as to whether the administrator had exercised power in a manner which, though lawful, might be characterised as an abuse (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 23 [72]; [2003] HCA 6). So much was recognised in the joint judgement in Li in the statement that “courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power” and that “[p]roperly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker ((2013) 249 CLR 332 at 363 [66]) [58].
In SZVFW the High Court considered a case where the respondents sought a review of a decision of the Refugee Review Tribunal. The respondents had not responded at all to invitations from the Refugee Review Tribunal to appear before it, in order to give evidence and to present arguments.
Gageler J applied the principles that he set out in the decision in SZVFW to the case, the facts of which are similar to this case. His Honour said:
Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that “no sensible [Tribunal] acting with due appreciation of its responsibilities” (Cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 365 [71], quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064) could have taken that course.
Nothing before the Tribunal took the respondents’ application for the review into the realm of the extraordinary. To the contrary, the respondents’ failure to respond to the earlier invitation from the Minister’s Department and their failure to provide the Tribunal with any further documentation in support of their claims for protection, both of which considerations were expressly taken into account by the Tribunal, suggest that a further attempt by the Tribunal to make contact with them would be unlikely to elicit a response [69-70].
In SZVFW the High Court held that the Tribunal did not act unreasonably in choosing to make a decision without taking any further action to allow or enable the respondents to appear before it. The primary judge’s conclusion that the Tribunal acted unreasonably was held to be wrong.
In this case, notwithstanding that the applicant had requested two postponements of the hearing, one of which was granted, I find that the Tribunal acted reasonably in dismissing the Application. In relation to legal reasonableness, I rely upon the judgments of Kiefel CJ and Gaegler J in SZVFW, as set out in paragraphs 26 and 27 above and also the decision of the plurality in that case. Further, the following circumstances give rise to my finding that the Tribunal acted reasonably in dismissing the application.
No satisfactory explanation for the applicant’s non-appearance at the hearing was given by the applicant. The Tribunal specifically made reference to this circumstance in its reasons for decision in the Non-Appearance Decision.
The applicant states in the Grounds of Application that he was ill and was not able to attend the hearing. No medical evidence was provided to the Tribunal or to this court to substantiate this claim.
All the Tribunal’s correspondence with the applicant was sent by email. It was evident that the applicant was receiving and responding to correspondence from the Tribunal by email. The applicant requested an adjournment by email on 28 January 2016, advised of his current address by email on 29 January 2016 and sent a medical certificate dated 17 February 2016 by email to the Tribunal. Further evidence of the fact that the applicant was receiving email correspondence from the Tribunal is that the Application was filed in this court, five days after the Affirming Decision was emailed to the applicant under cover of a letter from the Tribunal dated 1 April 2016. Ground 3 of the Grounds of Application concede that the applicant received the invitation to attend the hearing on 4 March 2016.
Two SMS confirmations were sent to the applicant’s mobile phone number advising the date and time for the hearing scheduled on 4 March 2016. The first SMS was sent on 26 February 2016 at 11.00 am and the second on 3 March 2016 at 11.01 am. The Tribunal was proactive in attempting to remind the applicant about the scheduled hearing.
Affirming Decision
The letter dated 11 March 2016 forwarding the Non-Appearance Decision to the applicant advised that the application may be re-instated by an application in writing to the Tribunal by 29 March 2016. This information was in accordance with s.362B(1B) of the Act. There was however no response from the applicant.
As the applicant failed to apply for reinstatement the Tribunal was required pursuant to s.362B(1E) of the Act to confirm the decision to dismiss the application. Section 362B(1E) provides that the Tribunal must confirm the decision to dismiss the application. The principles of legal unreasonableness have no application in relation to a decision made pursuant to the statutory duty under s.362B(1E) of the Act (Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 at [81]-[82]). Consequently the Tribunal did not have a discretion to exercise in relation to confirming the decision as the applicant did not apply for reinstatement.
Conclusion
The applicant’s Grounds of Application have not identified any jurisdictional error in the Non-Appearance Decision or the Affirming Decision.
I therefore make the following orders:
(1)The application be dismissed.
(2)The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,000.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 5 September 2018
2
5
0