Malecaj v Minister for Immigration
[2016] FCCA 1928
•27 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MALECAJ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1928 |
| Catchwords: MIGRATION – Judicial review of a decision of the Migration Review Tribunal – application for a Student (Temporary) (Class TU) visa – Tribunal decision made in circumstances where Applicant did not appear at the hearing – invitation to appear s.360 of the Migration Act 1958 (Cth) – discretion of the Tribunal under s.362B of the Migration Act 1958 (Cth) – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.347, 360, 362B |
| Cases cited: Aneja v Minister for Immigration and Border Protection [2014] FCA 572 Kaur v Minister for Immigration [2014] FCA 915 |
| Applicant: | ILIRJAN MALECAJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2447 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 29 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 27 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2447 of 2014
| ILIRJAN MALECAJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application filed by the Applicant on 3 December 2014 seeking judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) dated 31 October 2014 which affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a Student (Temporary) (Class TU) Subclass 570 Independent ELICOS Sector visa (‘the visa’).
Upon the hearing of the matter the Applicant relied upon an amended application filed on 10 March 2016 together with an affidavit of the Applicant filed on 3 December 2014 (which annexed the decision of the Tribunal), contentions of fact and law of the Applicant filed on 10 March 2016, the Applicant’s reply to the written submissions of the Minister filed on 4 April 2016 and a list of authorities filed on 21 April 2016.
The grounds of the amended application are as follows:-
“1. The decision of the Tribunal to conclude the review without taking further steps to enable the applicant to appear before it (under s 362B(2) of the Act), or to adjourn the review to enable the applicant to present written evidence or arguments (under s 363(1)(b) of the Act) is legally unreasonable in the circumstances that:
Particulars
(a) The applicant applied for the visa on 10 April 2013. A delegate refused to grant the visa on 24 April 2013, and on the same day – 24 April 2013 – the applicant sought review by the Tribunal.
(b) On 24 September 2014 the Tribunal wrote to the applicant inviting him to attend an oral hearing pursuant to s 360(1) of the Act.
(c) The letter of 24 September 2014 fixed 31 October 2014, at 1:30pm as the date and time for the oral hearing. This letter was sent to the applicant at his residential address in Melbourne.
(d) On 1 August 2014 the applicant was granted a “travel facility”, and he left Australia on 6 August 2014.
(e) The Tribunal was aware on 6 October 2014 that the applicant had not been in Australia (and so, not as (sic) his residential address) since 6 August 2014.
(f) The Tribunal sent the applicant SMS reminders about the hearing, which the Tribunal was aware were not received by the applicant.
(g) The applicant, lawfully and with the awareness of the Department and the Tribunal, travelled out of Australia. He had no way of knowing that the Tribunal would write to him whilst he was out of the country. He had no reason to expect that the hearing would be imminent, especially where the Tribunal had not taken any steps to perform the review in the 15 months after the lodgement of the application for review.”
The Applicant sought an order that the decision of the Tribunal be quashed and that a writ of mandamus issue, directed to the Second Respondent, requiring it to determine the Applicant’s application according to law. The Applicant sought a consequential costs order.
The First Respondent relied upon a response to application filed on 8 December 2014, the First Respondent’s outline of submissions filed on 23 March 2016 and a list of authorities filed on 27 April 2016. The First Respondent sought dismissal of the application for judicial review together with an order for costs.
The Court had also before it the evidence as contained in the Court Book filed on 25 February 2015.
History
The Applicant is a citizen of the United States of America. He applied for the visa, onshore, on 10 April 2013. The delegate was not satisfied that the Applicant was a genuine student as required by cl.570.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) and consequently refused the visa on 24 April 2013. On 7 May 2013, the Applicant made an application to the Tribunal under s.347 of the Migration Act 1958 (Cth) (‘the Act’) for review of the decision of the delegate. In the application form, the Applicant:-
a)provided his residential address, and indicated that that was where the Tribunal should send correspondence about his application;
b)provided his mobile telephone number; and
c)declined to provide any email address.
In his application for review of the delegate’s decision, the Applicant also made the following declaration:-
“I understand that if I change my contact details and do not inform the Tribunal of my new address, the Tribunal may proceed to make a decision about my case even if it cannot contact me.”
On 8 May 2013, the Tribunal acknowledged receipt of the review application and informed the Applicant that if he wished to provide material or written arguments for consideration, he should do so as soon as possible. The Tribunal also stated in that letter:-
“It is important that you:
·Tell the tribunal immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address)… If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;”
The Tribunal also provided the Applicant with a brochure entitled ‘Information about Tribunal procedures for review applicants’. The brochure relevantly stated:-
“…If you decide to travel overseas you should advise the tribunal in writing and provide the approximate dates for your travel and your overseas contact details.”
On 6 August 2014, the Applicant departed Australia as the holder of a bridging visa B. The Applicant did not inform the Tribunal that he was going overseas or update his contact details while away.
In a letter dated 24 September 2014, the Tribunal invited the Applicant to attend a hearing to give evidence and present arguments in relation to the Applicant’s review application. The hearing was scheduled to occur on 31 October 2014. The Tribunal said, in that correspondence:-
“If you are not able to attend a hearing, you need to advise me as soon as possible. Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment. If the Tribunal does 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, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.
The Tribunal may make a decision at the end of your hearing.”[1]
The Applicant did not provide a response to the hearing invitation.
[1] Letter from the Migration Review Tribunal to Mr Malecaj dated 24 September 2014.
On 6 October 2014 and being a date after issue of the hearing invitation, a Tribunal officer accessed a document recording “movement details” of the Applicant. That document indicated that the Applicant had twice left Australia for periods of two months or more since applying for review of the delegate’s decision. The Departmental movement records indicated that the Applicant had not returned to Australia at that time (6 October 2014) since his departure on 6 August 2014. The Applicant in fact returned to Australia on 28 November 2014.
On each of 24 October 2014 and 30 October 2014, the Tribunal sent a text message to the Applicant’s telephone number to remind the Applicant of the scheduled hearing on 31 October 2014. Both text messages failed to deliver.
The Applicant did not attend the hearing on 31 October 2014 at the scheduled time.
The Tribunal’s decision
On 31 October 2014, the Tribunal made a decision to affirm the delegate’s decision not to grant the Applicant the visa. This was on the basis that the Tribunal was not satisfied that the Applicant was a genuine applicant for entry and stay as a student for the purposes of cl.570.223(2)(b) of Schedule 2 to the Regulations. The Tribunal understood its task in considering the review application before it. It said at paragraph 17 of its Statement of Decision and Reasons dated 31 October 2014 (‘the Decision Record’):-
“17. The Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and any other relevant matter: cl.570.223(2)(b).”
The Tribunal noted that the Applicant gave it insufficient information to establish that the Applicant was a genuine applicant for entry and stay as a student. Indeed, the Tribunal said:-
“19. The applicant did not provide the Tribunal with any additional information when he lodged the review application or any time thereafter.”
In relation to the Applicant’s failure to appear at the Tribunal hearing on 31 October 2014 the Tribunal stated in the Decision Record:-
“12. The Tribunal is satisfied that the applicant was invited to appear before the Tribunal to give evidence and present arguments under section 360 of the Act. The Tribunal is satisfied that the applicant was sent a notice under section 360A of the Act giving the day on which, and the time and place at which he was scheduled to appear. The Tribunal is satisfied that the notice met all the requirements of section 360A. The Tribunal finds that the applicant did not appear before the Tribunal on the scheduled day, at the scheduled time and place.
13. Where an applicant is invited under section 360 to appear before the Tribunal and the applicant does not appear at the scheduled time, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it (section 362B). In this case the applicant did not contact the Tribunal to explain why he could not attend the hearing at the scheduled place and time. The Tribunal has therefore decided not to use its discretion to reschedule the applicant’s appearance (subsection 362B(2)). The Tribunal will therefore proceed to make a decision on the review without taking further action to allow or enable the applicant to appear before it.”
Consideration
In circumstances where an applicant fails to appear at a hearing to which they have been invited under s.362B of the Act, the Tribunal has a discretion whether to make a decision on the review or to reschedule the applicant’s appearance before it. Counsel for the Applicant alleged that the jurisdictional error in this case was of the kind identified in Kaur v Minister for Immigration [2014] FCA 915. The Applicant asserted that it was legally unreasonable for the Tribunal to decide to conclude the review without taking further steps to enable the Applicant to appear before it, or to adjourn the review to enable the Applicant to present oral or written evidence or arguments.
The discretion of the Tribunal to make a decision in the Applicant’s absence or reschedule the hearing must be exercised within the boundaries of legal reasonableness in accordance with the general principles outlined by the High Court decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Hayne, Kiefel and Bell JJ’s in their joint decision stated that the exercise of the discretion must be “legal and regular, not arbitrary, vague and fanciful”[2] and may be shown where “no sensible authority acting with due appreciation of its responsibilities” would have exercised the power in that way.[3] The Tribunal does however within the bounds of legal reasonableness, have a “genuinely free discretion”.[4]
[2] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [65] (Hayne, Kiefel and Bell JJ).
[3] Ibid at [71] (Hayne, Kiefel and Bell JJ).
[4] Ibid at [66] (Hayne, Kiefel and Bell JJ).
The general principles of legal unreasonableness have been considered and applied by the courts in relation to the exercise by the Tribunal of the discretion conferred by s.362B of the Act. In Kaur v Minister for Immigration [2014] FCA 915 Mortimer J explained that:-
“the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course it has taken, the Tribunal’s approach throughout the review, the applicant’s situation and conduct throughout the review and the other surrounding circumstances.” [5]
[5] Kaur v Minister for Immigration [2014] FCA 915 at [83].
As Counsel for the First Respondent accurately submitted, the Applicant was on notice of the potential consequence of failing to advise the Tribunal that he was going overseas, and failing to provide his contact details while there, that being that the hearing could proceed without the Applicant in attendance. Despite this, the Applicant did not inform the Tribunal that he was going overseas or provide any differing contact details while away.
The Tribunal communicated with the Applicant through all methods of communication available to the Tribunal, those being the postal address provided by the Applicant in the application and the mobile telephone number also provided. The Tribunal, it is agreed by Counsel, is “not obliged by the Act to make some roving inquiry to the end of trying to locate [the applicant]”[6]. As submitted by Counsel for the First Respondent and on the facts clearly so, the Applicant never provided any material or written arguments for the Tribunal to consider. The Applicant did not communicate with the Tribunal after making his application. By leaving Australia without advising the Tribunal of his movements or contact details, the Applicant accepted the risk that he was specifically and expressly warned about, and that he had specifically and expressly declared that he was aware of.
[6] Aneja v Minister for Immigration and Border Protection [2014] FCA 572 at [25] (Logan J).
On an objective consideration of the facts in this case the Tribunal cannot be said to have acted in a way which was legally unreasonable. The Tribunal was not required to adjourn the review in the hope the Applicant might get in touch with the Tribunal should he return to Australia, in particular noting this was an Applicant who did not actively engage in the process of the review. There was no legal error in the processes of the Tribunal given the facts and circumstances described in these reasons for judgment.
There is no jurisdictional error in the Tribunal’s decision. The application will be dismissed and costs shall follow the event.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 27 July 2016
0
4
3