Kumar v Minister for Immigration
[2013] FCCA 1440
•23 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1440 |
| Catchwords: MIGRATION – Applicant appointed an agent – invitation to appear at Tribunal sent to agent via prepaid registered post – invitation returned to sender unclaimed – no attendance by applicant at Tribunal hearing – inadequacy of information given as reason for Tribunal’s decision – whether it was reasonable for the Tribunal to take no further steps to bring the matter to the applicant’s personal attention. |
| Legislation: Migration Act 1958 (Cth), ss.357A359A, 359C, 360, 360A, 362B, 379A, 379G, 426A,476 |
| Haque v Minister for Immigration & Citizenship [2010] FCA 346 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63 Minister for Immigration and Citizenship v Li [2013] HCA 8 |
| Applicant: | SANJEEV KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 528 of 2013 |
| Judgment of: | Judge Demack |
| Hearing date: | 20 September 2013 |
| Date of Last Submission: | 20 September 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 23 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Burrow |
| Solicitors for the Applicant: | Gopal and Chand Lawyers |
| Counsel for the Respondent: | Mr Alderton |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application of Sanjeev Kumar filed on 28 June 2013 be dismissed pursuant to rule 16.01 of the Federal Circuit Court Rules 2001.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of five thousand, eight hundred dollars ($5,800.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 528 of 2013
| SANJEEV KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application dated 28 June 2013 under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) concerning a decision made by the Migration Review Tribunal (“the Tribunal”) on 28 May 2013 to affirm a decision of a delegate of the first respondent not to grant a subclass 572 Vocational Education and Training Sector Visa to Mr Kumar.
Mr Kumar had failed to appear before the Tribunal. He did not know that his matter was before the Tribunal on the allotted day as the invitation was sent to his appointed agent’s postal address and had been returned to sender unclaimed.
The relief sought by Mr Kumar is that an order be made quashing the decision of the Tribunal or Minister or, conversely, a writ of mandamus be directed to the Tribunal or Minister, requiring them to determine his application according to law.
He seeks such relief based on the following grounds:
1. The Tribunal engaged in conduct which amounted to jurisdictional error in the following respects:
a. That the Tribunal erred in that it denied the Applicant procedural fairness in failing to give him an opportunity to respond to matters raised by the Tribunal;
b. That the Tribunal erred in that it failed to afford the Applicant natural justice, within the meaning of Division 5 of the Migration Act, by failing to give the Applicant an opportunity to be heard;
c. that the Tribunal erred by failing to invite the Applicant to be heard at the hearing as required by s.360 of the Act and accordingly did not provide a hearing as required by the Act.
On behalf of the Minister is it argued that the fact that the applicant was unaware of the hearing date as a result of the letter being unclaimed by his agent is of no legal relevance. The first respondent complied, it submits, with the provisions of the Migration Act, and to that end, the decision made by the Tribunal was properly open to it.
Background to application for review
Mr Kumar is from India. On 14 April 2008 Mr Kumar was granted a temporary Student visa that expired on 23 June 2008. He entered Australia on 2 May 2008.
A further subclass 573 visa was issued on 23 June 2008, which expired on 1 July 2010. Another visa was then granted on 1 July 2010. That visa was held by Mr Kumar’s wife as the primary visa holder.
Mr Kumar and his wife separated. Mr Kumar did not initiate the separation.
Mr Kumar lodged an application for a student visa (class TU) on 21 April 2011.
Mr Kumar lodged an application for a Student (Temporary) (Class TU) visa on 27 April 2011.
On 9 May 2011, the Department cancelled Mr Kumar’s visa that had issued on 1 July 2010, due to his separation from Mrs Kumar. Mr Kumar lodged a review of the decision to cancel his visa on 24 May 2011.
On 1 July 2011 the first respondent’s delegate refused to grant the temporary visa (from the 27 April application) as it had been found that Mr Kumar had not complied with the conditions of his previous student visa which had subsequently been cancelled (that is, the cancellation of 9 May 2011). The delegate was not satisfied that Mr Kumar had complied with cl.572.235 of Schedule 2 to the Regulations. On 22 July 2011 Mr Kumar lodged an application for review by Tribunal.
On 26 July 2011, the Department acknowledged receipt of Mr Kumar’s valid application (of 21 April) for a student visa.
On that same day, 26 July 2011, the Migration Review Tribunal wrote to both Mr Kumar and his agent acknowledging receipt of his application for review in respect of a decision to refuse to grant a student (temporary) (class TU) visa.
By correspondence dated 10 August 2011 from the Tribunal, Mr Kumar was invited to provide material or written submissions for the Tribunal to consider in the review matter (the subject review).
On 9 February 2012, the Tribunal took Mr Kumar’s first matter – that is, the decision to cancel his student visa. The Tribunal determined to set aside the cancellation.
Mr Kumar’s agent/representative subsequently forwarded that Tribunal decision to the Tribunal for consideration in the review decision. That appears to be the last step that the agent is recorded at undertaking in terms of interface with the Tribunal with respect to the subject review.
On 28 March 2013 the Tribunal wrote to Mr Kumar, pursuant to s.379A of the Migration Act, inviting him to appear before it at a hearing on 23 May 2013 and further inviting Mr Kumar to submit further evidence in support of his application, including :
a)a certificate of enrolment as required by cl.572.222; or
b)evidence that he was enrolled in, or was the subject of a current offer of enrolment in a registered course pursuant to cl.572.231.
In the first instance, the Tribunal attempted to send the correspondence to the applicant’s agent via facsimile transmission. Six attempts were made on 28 March 2013 between 10.31am and 11.03am. All were unsuccessful. The correspondence was then posted via prepaid registered post to the agent’s postal address – a post office box.
It is common ground that the invitation pursuant to s.379A was not collected, and was ultimately returned to the Tribunal on 16 April 2013 marked “unclaimed”.
Unsurprisingly, Mr Kumar failed to appear before the Tribunal at the hearing on 23 May 2013 and failed to provide further evidence or documentation in support of his application.
The Tribunal considered the mater on the material before it and affirmed the decision of the first respondent’s delegate not to grant Mr Kumar a Student (Temporary) (Class TU) visa.
Legislative Framework
Part 5 of the Migration Act concerns the review of decisions and s.357A provides that:
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
The Tribunal is required to provide the applicant with an invitation to appear pursuant to s.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
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 360A, relevantly provides that such invitation must give the applicant notice of the day, time and place at which the applicant is scheduled to appear and, except where the applicant is in immigration detention, must be given by one of the methods prescribed in s.379A which provides:
Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
(1A) If a person is a minor, the Tribunal may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):
(a) who is at least 18 years of age; and
(b) who a member, the Registrar, a Deputy Registrar or another officer of the Tribunal reasonably believes:
(i) has day‑to‑day care and responsibility for the minor; or
(ii) works in an or for organisation that has day‑to‑day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 379C in respect of that method.
(1B) However, subsection (1A) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:
(a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.
…
If an applicant is represented by an agent, the Tribunal must send correspondence to the agent, pursuant to section 379G:
379G Authorised recipient
(1) If:
(a) a person (the applicant) applies for review of an MRT‑reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.
(4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.
(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.
The non-appearance of an applicant before the Tribunal is dealt with pursuant to s.362B.
Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 360 to appear before the Tribunal; and
(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;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(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.
The Tribunal may invite a person to provide it with information pursuant to s.359 and may also give information to the applicant and invite the applicant to comment on or respond to such information pursuant to s.359A.
SECT 359
Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
SECT 359A
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
If there is a failure to respond to or provide information, the Tribunal may proceed to make a decision without further action, pursuant to s.359C which relevantly provides:
Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
Ground 1(a) – Procedural fairness under s.359A Migration Act 1958 (Cth)
The applicant claims that the Tribunal failed to comply with s.359A of the Migration Act as it failed to give the applicant a chance to respond to matters raised by the Tribunal.
It is submitted on behalf of the applicant that something should be made of the fact that the applicant had provided his own contact details as well as the details of his authorised recipient. The requisite notices or invitation were sent to the authorised recipient’s contact details only.
Indeed, the Tribunal was obliged to send correspondence to the authorised recipient rather than to the applicant directly, pursuant to section 379G(1). Further, once the Tribunal had taken the steps to send the document to the representative, the Act provides that it is then taken that the documents have been given to the applicant (section 379G (2))
The decision of Justice Gilmour in Haque v Minister for Immigration and Citizenship [2010] FCA 346, [64] confirms that it is a matter for the Tribunal to choose the method by which the hearing invitation is sent to the applicant’s representative. Here the Tribunal determined to try two methods: the first of which, the facsimile transmission, was unsuccessful, and the second was by prepaid post prudently done via registered post.
On the basis that the Tribunal complied with its obligations under the provisions, I cannot find that there has been a denial of procedural fairness (per SZF0H and Minister for immigration and citizenship per Buchanan J)
Ground 1 (b) – Natural Justice under Division 5 of the Migration Act 1958 (Cth)
The respondent contends that the Tribunal was not required to provide Mr Kumar with common law natural justice as:
a)the Migration Act dictated his rights;
b)the Tribunal, at all material times, adhered to the requirements prescribed by the Migration Act; and
c)s.357A merely obliged the Tribunal to act in a way that is “fair and just”.
Justice Greenwood considered this issue in NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045, citing, in particular Spender, French and Cowdroy JJ in MIMIA v SZFHC (2006) 150 FCR 439: a case which I note to be on point:
21 Although I accept that the power conferred upon the Tribunal cannot be exercised capriciously and must be exercised reasonably, the election to make a decision on the review is not, by itself, the expression of an unreasonable exercise of the power. It is expressly contemplated by the section. If the evidence demonstrates in a particular case that the exercise of the power to make a decision on the review was capricious or wholly failed to take account of any matter put before it as to the reason for the failure on the part of the appellant to attend before the Tribunal, a question of procedural fairness might arise. This is not such a case. There seems to me to be no obligation falling upon the Tribunal to make any inquiry as to the failure on the part of the appellant to appear. In MIMIA v SZFHC, the applicant for a protection visa said that the Tribunal was on notice that he may not have received the invitation letter to attend before the Tribunal for the purposes of ss 425 and 425A because the “Response to Hearing Invitation” form was not returned to the Tribunal because the letter addressed to the applicant’s residential address was returned unclaimed and, in those circumstances, he did not appear at the hearing. Applicant SZFHC contended that in those circumstances an obligation fell upon the Tribunal to “find another method of contacting the respondent”[38]. Their Honours Spender, French and Cowdroy JJ at [39] said:
… it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in section 425A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.
In MIMIA v SZFHC the applicant failed to appear before the Refugee Review Tribunal. The Learned Federal Magistrate took the view that a thorough check of the file by the Tribunal would have revealed a postal address and that the consequences of the Tribunal exercising its power under s.426A of the Migration Act were so serious that the Tribunal was obliged not only to comply with the legislation but to comply with its own procedures designed to enable it to comply with the legislation.
The Full Court of the Federal Court determined that his Honour was wrong. At paragraph 33 they say:
The question to be determined by the Court is whether compliance with s 425A of the Migration Act exhausts the obligation of the Tribunal to invite an applicant under s 425, or whether additional steps must be taken by the Tribunal to comply with its obligation under s 425. It is of course clear that the internal management mechanisms within the Tribunal, such as the checklist in the present case, cannot alter the extent and content of the duty imposed by the statute.
The Full Court later formed the view as outlined above in [39] of their judgment.
The directives in the relevant section with respect to the Migration Review Tribunal and the way in which they interact with the statutory provisions are an exhaustive statement with respect to natural justice and procedural fairness: SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63, per Buchanan J at [58].
On behalf of the appellant, it was argued that the High Court decision of Minister for Immigration and Citizenship v Li [2013] HCA 18, (a decision of 8 May 2013 by French CJ, Hayne, Kiefel, Bell and Gageler JJ) is authority for the proposition that the requirement to act reasonably can require more than what was done in that particular case. At paragraph 61, the majority stated
Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal’s knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standards set by s 374A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.
Gageler J stated at paragraph 100:
However, the requirement of the MRT to act reasonably is not exhausted in every case where an applicant before the MRT is given a reasonable opportunity to give evidence, provide information and present arguments in relation to the decision under review. Reasonableness can require more. Thus, while it has been held that the MRT has no general duty to make inquiries, it has been accepted that “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.” The touchstone is reasonableness in the performance of the duty to review.
His Honour cites Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1128 as authority for the proposition in the last sentence of that quote.
With respect to the facts in the case of Li, at paragraph 31 of the decision of the Chief Justice, his Honour states:
The decision of the MRT to proceed to proceed to its determination was not, on the face of it, informed by any consideration other than the asserted sufficiency of the opportunities provided to the first respondent to put her case. The MRT did not in terms or by implication accept or reject the substance of the reasons for a deferment put to it by the first respondent’s migration agent. It did not suggest that the first respondent’s request for a deferment was due to any fault on her part or on the part of her migration agent. It did not suggest that its decision was based on any balancing of the legislative objectives set out in s 353. Its decision was fatal to the first respondent’s application. There was in the circumstances, including the already long history of the matter, an arbitrariness about the decision, which rendered it unreasonable in the limiting sense explained above.
At paragraph 113, Gageler J warns against Li’s case being used improperly:
Yet the stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. This is a rare case.
The circumstances in the present case are quite different to the circumstances in the matter before the High Court. It seems to me here, that the Tribunal made the required attempt to invite the applicant to appear before the Tribunal, and to provide the Tribunal with requested documents. The Tribunal having then determined the matter on the documents which were before it made the decision properly open to the Tribunal. Therefore, I do not consider that Li’s case assists me to form a view to the contrary.
Ground 1 (c) – Failure to Invite per s.360 of the Migration Act (Cth)
Mr Kumar submits that s.360 of the Migration Act was not complied with as upon the Tribunal receiving notification that the invitation had not reached the applicant no further steps were made to bring the invitation to his attention. Mr Kumar submits that a “substantive or reasonable” attempt must be made rather than “the mere pretence or basic technical degree of compliance”. In the circumstances of the Tribunal’s knowledge, well before the commencement of the hearing, that the invitation had not been received, Mr Kumar submits that the Tribunal erred in not attempting to deliver the invitation to him by way of one of the other means contemplated by s.379A.
The respondent rejects this submission on the basis that Mr Kumar had appointed a representative and as such the Tribunal was obliged to provide all correspondence to his representative rather than to Mr Kumar personally: s.379G(1). Furthermore, all that s.379A requires of the Tribunal is to correspond with the applicant by one of the means prescribed; it is up to the Tribunal to decide which of the means they use.
This point reflects the issues in Ground 1b. The legal issues remain the same.
Conclusion
On the evidence before me it must be accepted that the Tribunal properly complied with the requirements for inviting the applicant to appear and that such invitation included the relevant notices under s.360A. The natural justice and procedural fairness required to be afforded to the applicant was afforded to the applicant. The failure of the agent does not diminish the properly afforded natural justice.
For the reasons set out above, the Applicant has not established that the Tribunal’s decision was affected by jurisdictional error.
The application filed 28 June 2013 must be dismissed with costs. It is noted that the costs sought by the First Respondent are below those that would be ordered pursuant to the scale. The costs will therefore be fixed at the sought amount of $5,800.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Demack delivered on 23 September 2013.
Date: 23 September 2013
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