Mathew v Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3128

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mathew v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3128

File number(s):	PEG 3 of 2020
Judgment of:	JUDGE VASTA
Date of judgment:	20 October 2020
Catchwords:	MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.
Legislation:	Migration Act 1958 (Cth)
Number of paragraphs:	24
Date of last submission/s:	20 October 2020
Date of hearing:	20 October 2020
Place:	Brisbane
The Applicant:	Representing Himself
Solicitor for the Respondents:	Mr Gerrard

ORDERS

PEG 3 of 2020

BETWEEN:

EMIL MATHEW

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	20 OCTOBER 2020

THE COURT ORDERS ON A FINAL BASIS:

1.That the Application filed 3 January 2020 is dismissed.

2.That the Applicant pay the costs of the First Respondent fixed in the sum of $5,400.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 6 December 2019, the Administrative Appeals Tribunal (“the Tribunal”) affirmed a decision not to grant the Applicant, Emil Mathew, a student visa.  The Applicant asked this Court to review that decision on 3 January 2020. 

2. The background to this is that the Applicant is a citizen of India.  He was in Australia on a student visa.  He wanted the student visa to be extended so that he could finish his final semester of the Masters course that he was undertaking. 

3. In the application, he had to provide proof of his financial position so that the Minister could be satisfied that he had the financial means within which to subsist in this country as well as to pay the fees associated with his course.  The only financial documents that he gave to the Minister was an Allianz insurance certificate relating to his overseas student health cover.  Once he did that, the online application prompted him to provide an explanation.  The Applicant made the following statement:

   I have uploaded my OSHC and CoE with this application.  Other documents have been uploaded previously when applied for the course.

4. On 26 October 2017, the delegate of the Minister refused the application on the basis that there was an absence of sufficient evidence establishing that the Applicant met the financial requirements to have such a visa granted.

5. On 7 November 2017, the Applicant sought the review in the Tribunal.  He appointed Mr Tonio Thomas, who is a solicitor and migration agent from Tonio Lawyers as his authorised representative. On 8 November 2017, the Tribunal sent the Applicant an acknowledgement by email to Mr Thomas. 

6. The Tribunal, obviously, a very busy Tribunal, did not get to the position where they could give a hearing date for the application by the Applicant for over two years; that is, the application that was filed on 7 November 2017 was the subject of a letter of 13 November 2019 in which the Tribunal sent the applicant an invitation to attend a hearing on 6 December 2019.  That invitation was sent by email to Mr Thomas.  In that same email, the Tribunal requested that Mr Thomas complete and return a response to hearing invitation and also to provide proof of access to sufficient funds.  Mr Thomas did not respond to the invitation. 

7. Even though the Tribunal had no obligation to do so, it still attempted to send two SMS text message hearing reminders to the applicant on 29 November and 5 December.  It would seem that the text messages were sent to a wrong mobile number and both attempts failed.

8. On 6 December 2019, no one attended the Tribunal hearing on behalf of the Applicant; neither the Applicant nor Mr Thomas attended.  There was no material before the Tribunal that the Applicant had met the financial requirements.  Not surprisingly, the Tribunal then affirmed the decision under review. 

9. On 9 December, the Tribunal notified the Applicant of its decision.  It did so by emailing Mr Thomas. 

10. On 10 December, a person called Kelvin Mateer, who was a solicitor in the employ of Tonio Lawyers, sent a letter to the Tribunal.  It read:

    Dear Member [name omitted],

    We refer to the above review application and your recent letter affirming the decision not to grant the applicant a student visa. 

    We wish to advise that our principal – Tonio Thomas experienced a sudden and significant health incident on the scheduled hearing day – 6 December 2019 – and was unable to make alternative arrangements for someone to attend in his absence. 

    The heath matter is ongoing and a medical certificate will be provided for your further consideration in due course. 

    We respectfully request that the matter be reinstated to afford the review applicant an opportunity to make representations concerning his financial capacity as an international student. 

    Thank you for understanding under the circumstances. 

    Yours Faithfully.

11. The Tribunal replied to the solicitor later that day in these terms:

    Dear Mr Mateer,

    APPLICATION FOR REINSTATMENT

    We received your submission dated 10 December 2019 on December 2019.

    The submission was forwarded to the Member and your request was carefully considered. However, the member has advised that he does not have power to reopen this case. 

    We made our decision in this case on 6 December 2019. Once we have made a decision under the Migration Act 1958, we have no power to take any further action on the review.

    We are not in a position to assist you any further on this issue. 

    Yours sincerely…

12. The applicant filed an originating application that he signed but was actually lodged by Mr Thomas and certified by Mr Thomas.  The sole ground of the application is

    1.Procedural Fairness and Natural Justices. –The application was made in the Administrative Appeals Tribunal to review the decision made by the Department of Home Affairs to refuse the grant of student visa owing to alleged failure of meeting the visa requirements.  The matter was listed for a hearing on 6 December 2019 and a migration agent was appointed by the applicant to represent all documents on the date of the hearing.  However due to a clerical error the email notifying the date of hearing was was [sic] missed by the migration agent who became aware only after the decision was made.  Consequently, the applicant did not know the matter was listed for a hearing.  The migration agent admits the error and upon discovery applied to the tribunal to reconsider the decision and requested that the matter is re-listed for a hearing, as the applicant did not have any role in this error.  The tribunal indicated that as a decision is made, they do not have the power to reopen or review without directions.  The applicant missed the opportunity of proving the genuineness of his application with no fault from his side.  The decision made by the tribunal is unilateral and if upheld will be denying procedural fairness and is against the principles of natural justice.

13. In the affidavit that was filed with that application, the applicant said this:

    5. On 11 December 2019, I received an email from my agent who informed me that they missed a communication sent by the tribunal which was a notification of hearing date listed for the same date and as a result my AAT application has been refused.   

    6. I was shocked as I did not know that my matter was listed for a hearing and all my hopes and dreams for my future were shattered as I was confident that once my matter is listed for a hearing I will be able to show the tribunal that I do have access to sufficient funds and that the decision of the department was not based on fact. 

    7. My agent was very remorseful and informed me that an application was made with the tribunal to re-consider my case as an exception, as the error was a clerical one and did not reflect on my personal circumstances in any way. 

    8. Later, I was informed that the tribunal responded that since the decision was made, the tribunal did not have the power to take any further action on the review.   

    9. As stated earlier I have all necessary documentation to prove the merit of my original application and I am keen to get Australian qualification to have an enriching future.

14. In written submissions that were filed in this Court, the Applicant has given the Court quite a deal of financial documentation that he said shows that he did have sufficient funds to warrant the granting of the visa.  What he says about the lawyer is this:

    I engaged Mr Tonio Thomas… to make an application on my behalf with AAT for getting the decision reviewed.  I appealed in the AAT to stay further and complete Master of Professional Accounting course.  I completed my course successfully on 20/12/2017.  After my course completion, it was hard for me to get into an accounting job as I was on a bridging visa status and employers did not prefer someone in my visa status.  Some job offers were rejected by companies after they learned about my VISA status and the regarding documents are attached as Attachment 6.  Flying back to home country to visit family was also hard as I had to apply for a bridging visa each time I had to fly. 

15. The applicant appeared before me today unrepresented.  In his submissions, he said that he dispensed with the services of Mr Thomas in the early part of this year after the application had been filed.  He said this in his submissions:

    Initially following the decision from the AAT, my lawyer was not ready to admit his mistakes and exhibited some rude behaviour.  On further discussion with the lawyer, he was left helpless and had to admit that the decision was ruled out against the candidate regardless of any mistake from his part and missed an opportunity approving the genuineness and has to be considered a clerical mistake from the part of the lawyer.

16. This is not a case where the applicant is claiming that the lawyer has acted fraudulently.  Notwithstanding that the email to the Tribunal talks of a sudden medical emergency, and the application and affidavit of the applicant speaks of a clerical error, and the application and affidavit were submitted by Mr Thomas, the lawyer, it is a case that there is no evidence of any of those matters. 

17. But even if there were evidence and it could be proven that there was a clerical error, that Mr Thomas did coincidentally have a medical emergency on the 6 December, all that goes to is to show carelessness or sloppiness or inadvertedness or maybe even negligence on the part of the solicitor.  It does not go to showing or illustrating that there was fraud on behalf of the solicitor.

18. The Applicant, not being a lawyer and being unrepresented, wanted to repeat to me that it is not his fault that he did not have material before the Tribunal.  As I said to him to stop him repeating the same matter ad nauseum, I can accept that the material not being before the Tribunal and his, the Applicant, not being before the Tribunal was not his fault, but that does not illustrate any jurisdictional error. 

19. The Migration Act 1958 (Cth) (“the Act”) dictates that the Tribunal must send a hearing invitation to the applicant. The Act legislates that the Tribunal can ask for all relevant information. The Act allows the Applicant to put any relevant material before the Tribunal. The Tribunal has acted in accordance with its obligations under the Act. There is no denial of procedural fairness. There is no denial of natural justice on behalf of the Tribunal.

20. It may be thought when one looks at the circumstances there really wasn’t much utility in this matter in any event, because the student visa that the Applicant asked for was so that he could complete his degree.  He completed his degree almost two years before the Tribunal was to review his matter.  The Applicant, as he has said, has been able to obtain employment, notwithstanding he is on the bridging visa, whilst awaiting the outcome of the student visa.  Obviously, the Applicant does not need a student visa anymore.  He would need another form of visa to stay in this country. 

21. However, the utility of this matter is that there may be some prohibition or consequences in obtaining a visa if the Applicant has had a visa previously refused, and for that reason, there was still utility in this application. 

22. However, as I have said, there is no jurisdictional error in the actions of the Tribunal.  The consequences may be somewhat unfortunate for the Applicant as I have said during this course of this hearing.  The Court may feel great sympathy towards the Applicant as I have already remarked on a number of occasions during the course of this hearing, but none of those factors can enter into a dispassionate evaluation of what it is that the Tribunal has done. 

23. In other words, this Court cannot bend the law or torture it in such a way so that it can be interpreted in such a manner to give a result that is much more palatable, as tempting as such a course may be.  It is an anathema to a Court that is acting in accordance with their oath of office. 

24. So it, therefore, with some reluctance in having to do this duty that I dismiss the application and I must do so with costs fixed in the sum of $5,400.

I certify that the preceding twenty-twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       17 November 2020