Mohammed v Minister for Immigration

[2016] FCCA 1346

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1346

Catchwords:
MIGRATION – Migration Review Tribunal – student visa – change of criteria between delegate’s decision and Tribunal’s decision – Tribunal not clearly alerting applicant to the issue on which the decision would turn – denial of natural justice.

Legislation:

Migration Act 1958 (Cth) ss.360, 360A

Migration Regulations 1994 (Cth) cl.572.235 of Sch.2

Applicant: HABEBUDDIN MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2168 of 2014

Judgment of: Judge Riley

Hearing date: 24 May 2016

Date of Last Submission: 24 May 2016

Delivered at: Melbourne

Delivered on: 24 May 2016

REPRESENTATION

Counsel for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Kylie McInnes

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second respondent: Australian Government Solicitor

ORDERS

1. The decision of the Migration Review Tribunal made on 24 September 2014 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal for hearing according to law.

3. The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $650.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 2168 of 2014

HABEBUDDIN MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Migration Review Tribunal.

2. The applicant came to Australia on 16 February 2008 as the holder of a subclass 572 student visa which ceased on 1 March 2008.  He applied for a succession of other student visas, including one that he applied for on 2 July 2012.  The delegate refused to grant that visa on 5 September 2012.

3. The delegate’s reason was that the applicant did not satisfy clause 572.235 of Schedule 2 to the Migration Regulations 1994 in that the applicant did not comply substantially with a condition to which his last substantive visa was subject.  The delegate found that there were substantial periods during which the applicant was not enrolled in a registered course. Consequently, he was found not to have complied with condition 8202 to which his last held visa was subject.

4. The applicant then sought review by the Tribunal.  The Tribunal affirmed the decision apparently on the same basis.  The applicant then sought review of the matter in the Federal Circuit Court.  The matter was remitted by consent to the Tribunal on 11 June 2014.

5. On 27 June 2014, the Tribunal sent a letter to the applicant which included a request for the applicant to notify the Tribunal of any change of contact details.  The Tribunal sent the applicant a letter dated 28 July 2014 inviting him to appear before the Tribunal at a hearing on 24 September 2014 at 2pm.  The hearing invitation included a note in bold typing as follows:

   Please note, an issue that will be discussed during the hearing is whether you satisfy Public Interest Criterion 4020 as required by clause 572.224 of Schedule 2 to the Regulations.

6. The letter dated 28 July 2014 was returned to the Tribunal unclaimed.  The Tribunal, on 6 August 2014, sent a copy of the hearing invitation to the applicant’s email address and received a message that that attempted communication had also failed.  An officer of the Tribunal subsequently located a different address for the applicant in the department’s ICSE database.  The letter of 28 July 2014 was then resent to the applicant by mail on 7 August 2014.

7. On 14 August 2014, the applicant hand-delivered a letter to the Tribunal.  In that letter, he acknowledged that the matter was listed for hearing on 24 September 2014.  He said he now had a bridging visa which expired on 30 November 2014. He asked for his hearing to be postponed so that he could go to visit his mother in India. The applicant also provided to the Tribunal on 14 August 2014 a pro forma response to the hearing invitation in which he said he would not be attending the hearing on 24 September 2014.

8. On 15 August 2014, the Tribunal sent an email to the applicant.  It said that the Tribunal had refused his request to adjourn the hearing.  It said that the Tribunal could conduct the hearing by telephone if the applicant was out of the country.  The email asked the applicant to inform the Tribunal if he wished to participate in the hearing by telephone.

9. The Tribunal noted that the email was apparently delivered successfully.  It seems that the same information was also sent to the applicant by letter addressed to the address that had been found on the ICSE database. There was apparently no response from the applicant.

10. On 24 September 2014, an officer of the Tribunal attempted to contact the applicant on two telephone numbers.  A message was left on one of the numbers.  On the other number, a man responded to the name Mr Mohammed and acknowledged the Migration Review Tribunal when it was explained where the call was from.  However, the person who answered the telephone later claimed that he was not the applicant and that he was not on a student visa.

11. The Tribunal noted that the applicant did not appear before the Tribunal on 24 September 2014.  The Tribunal also noted that the department’s movement records for the applicant showed that he was granted a bridging visa on 6 August 2014, but that he had not departed Australia.

12. The Tribunal decided to proceed under s.362 of the Migration Act 1958 (“the Act”) to determine the matter without giving the applicant a further opportunity to appear and give evidence. The Tribunal’s decision was made on 24 September 2014, which was the day it was listed for hearing at 2pm.

13. The Tribunal noted that the applicant had been invited to appear at the hearing under s.360 of the Act. The Tribunal considered that the notice was properly provided under s.360A of the Act.

14. The material provided by the applicant on 14 August 2014 clearly showed that the applicant received at least the second letter that he was sent bearing the date 28 July 2014 inviting him to a hearing on 24 September 2014.  The Tribunal said in paragraph 17 of its reasons for decision that:

    the applicant did not contact the Tribunal and explain why he was unable to attend the hearing at the scheduled place and time.  The Tribunal will therefore not use its discretion to reschedule the applicant’s appearance (subsection 362B(2)).

15. The Tribunal at that point did not expressly deal with the applicant’s request for an adjournment or apparently consider that to be a reason that the applicant had not attended.  However, it was clear that the Tribunal had refused the adjournment and had conveyed as much to the applicant by email and post on 15 August 2014.  It is also noteworthy that the Tribunal had identified that the department’s movement records showed that the applicant had not left Australia, notwithstanding his claim that he was going to visit his mother over the period when the hearing was scheduled.

16. In any event, the Tribunal noted that the issue before the delegate had been whether the applicant had complied substantially with the conditions to which his last student visa had been subject.  However, the Tribunal noted that that requirement had been repealed in relation to visa applications that had not been finally determined as at 22 March 2014.  The Tribunal then said that, consequently, the present review had to be decided on a different basis.

17. The Tribunal said that it had alerted the applicant to that fact in the hearing invitation when it said that:

    …an issue that will be discussed at the hearing is whether you satisfy Public Interest Criterion 4020 as required by cl.572.224 of Schedule 2 to the Regulations.

18. The Tribunal noted that that public interest criterion required that there be no evidence that the applicant had provided information to the Tribunal that was false or misleading in a material particular.  The Tribunal noted that the applicant had given false information to the department in that he had indicated that he did not have any children when in fact he had a daughter.  The Tribunal considered that this was a material fact because one of the relevant criteria for the grant of the visa was that the applicant has sufficient funds to provide for all members of his family unit, whether they were in Australia or not.

19. The Tribunal noted that there had been an earlier hearing by the Tribunal differently constituted.  At that hearing, the applicant had been asked about the fact that he did not include his daughter’s details in his visa application.  The Tribunal also noted that the applicant responded to the Tribunal as previously constituted that he thought if he left his daughter’s details off the application he could avoid the costs of Medibank.  The Tribunal noted that the applicant told the Tribunal as previously constituted that that was mistake for which he apologised.

20. The Tribunal considered that this was not a case where the applicant had overlooked the question which sought details about his family unit.  The Tribunal considered that the applicant had deliberately decided to omit relevant details to avoid the costs of Medibank.

21. The Tribunal considered that the false information that the applicant had given was material because it related to a criteria which required the applicant to give evidence of funds from acceptable sources to meet the living expenses of the members of his family unit, whether they lived in Australia or not.

22. The Tribunal found that the applicant did not meet public interest criterion 4020.  The Tribunal then considered whether the requirements of public interest criterion 4020 should be waived.  The Tribunal considered there was no evidence before it of any matters that would permit the waiver of public interest criterion 4020 and consequently decided not to waive that criterion.  The Tribunal affirmed the decision not to grant the applicant a student visa.

23. The applicant appeared before this court without the benefit of legal representation. His application to the court was also evidently prepared without the benefit of legal assistance.  It simply said that the applicant was not satisfied with the Tribunal’s decision.  He said he has been in this country for a long time, had not committed any offence and said he wanted to make a career here.

24. In oral submissions the applicant was not able to point to any jurisdictional error in the Tribunal’s decision or decision making process.  However, I am concerned that there has been a denial of procedural fairness in this case.  The hearing invitation simply said:

    Please note an issue that will be discussed during the hearing is whether you satisfy Public Interest Criterion 4020 as required by clause 572.224 of Schedule 2 to the Regulations.

1. The hearing invitation did not summarise the effect of public interest criterion 4020 and did not attach a copy of it.  The advocate for the Minister said to the court today that it was a publicly available regulation that the applicant could have accessed if he had wished.  The reality of the situation is that it would be challenging for anyone, other than a migration lawyer, to be able to locate public interest criterion 4020. But perhaps the more important point is that the hearing invitation did not specify any respect in which it was thought that public interest criterion 4020 had not been met.

2. It would have been easy enough to say in the hearing invitation that there was a question as to whether the applicant had satisfied public interest criterion 4020 which required that there be no evidence that the applicant had provided information that was false or misleading in a material particular to the department, but that it appeared that the applicant had provided false or misleading material information because he had failed to state that he had a daughter, and that information was relevant because it affected the question of whether the applicant had sufficient funds from acceptable sources to meet the living expenses of all the members of his family unit.

3. The Minister’s advocate submitted that the context of the history of this matter meant that the detail I have just outlined was not required.  That was largely put on the basis that the Tribunal, as previously constituted, had discussed with the applicant his failure to divulge the existence of his daughter.  However, that was not the basis upon which the Tribunal, as previously constituted, determined the matter.  The previous Tribunal’s decision was based on the applicant’s failure to be enrolled in a registered course for a period of over five months.  The reference to the applicant’s failure to mention his daughter was very limited.  The Tribunal simply raised the issue at the hearing and noted that the applicant said that he thought that if he omitted his daughter’s details he could avoid the cost of Medibank.  He said it was a mistake for which he apologised. There is nothing in the decision of the Tribunal, as previously constituted, to indicate that the Tribunal did not accept that apology and generally regard the issue as insignificant.

1. It seems to me that the requirements of natural justice did require the hearing invitation to say more clearly what the issue was that the applicant faced at the hearing before the Tribunal.  As the hearing invitation did not do that, there has been a jurisdictional error in this case.  Consequently, the matter must be remitted to the Tribunal.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     3 June 2016