Nadeem v Minister for Immigration

[2013] FCCA 1312

FEDERAL CIRCUIT COURT OF AUSTRALIA

NADEEM v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1312

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal to revoke cancellation of a student visa – no arguable case of jurisdictional error.

Legislation:

Education Services for Overseas Students Act 2000 (Cth), s.19
Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.137J, 137K, 137L, 360, 360A, 361, 362B, 379A, 379C
Migration Regulations 1994 (Cth)

Applicant: HASSAN NADEEM

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1338 of 2013

Judgment of: Judge Driver

Hearing date: 10 September 2013

Delivered at: Sydney

Delivered on: 10 September 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Carr

DLA Piper

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1338 of 2013

HASSAN NADEEM

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 20 May 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to revoke the automatic cancellation of the applicant’s (Mr Nadeem) Subclass 572Vocational Education and Training Sector visa.  The following statement of background facts relating to this matter is derived from the Minister’s outline of legal submissions filed on 29 August 2013.   

2. Mr Nadeem is a citizen of Pakistan born on 29 September 1986.[1] He first arrived in Australia on 24 July 2007 as a holder of a student visa.[2]

   [1] Court Book (CB 12).

   [2] CB 14-16.

3. On 7 February 2011, Mr Nadeem was granted a Student (Class TU) Subclass 572 Vocational Education and Training Sector visa which was subject to condition 8202.

4. On 3 May 2011, Mr Nadeem's education provider, ALIF Australia Pty Ltd (ALIF), certified that Mr Nadeem had not achieved satisfactory course attendance in his enrolled course of Certificate IV in Financial Services (Accounting).[3]

   [3] Pursuant to s.19 of the Education Services for Overseas Students Act 2000 (Cth) and Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (the National Code). (CB 17 and see also CB 29-35). (Prior to this certification Mr Nadeem had been sent a number of warning letters regarding his unsatisfactory attendance and non-progress (CB 36-41).)

5. On 1 June 2011, Mr Nadeem’s visa was automatically cancelled pursuant to s.137J of the Migration Act 1958 (Cth) (the Migration Act).

6. On 2 April 2012, the Minister’s Department received a Request for Revocation of Automatic Student Visa Cancellation.  Mr Nadeem was assisted in making that request by his registered migration agent.[4]

   [4] Pursuant to s.137K of the Migration Act (CB 1-5).

7. On 16 April 2012, the delegate refused to revoke the decision to cancel Mr Nadeem's visa.[5]  Consequently on 20 April 2012, Mr Nadeem applied to the Tribunal for review of that decision.[6]

   [5] Pursuant to s.137L of the Migration Act. CB 47-51.

   [6] CB 53-63.

8. The Tribunal wrote to Mr Nadeem’s representative on 20 March 2013 inviting him to comment on or respond to information that it considered would be the reason, or a part of the reason, for affirming the decision under review, by 27 March 2013.[7]

   [7] The Tribunal referred to the certification by ALIF and also the information provided by ALIF to the delegate, which it considered may establish a breach of condition 8202.  CB 78-82.

9. Mr Nadeem’s registered migration agent responded to this communication and stated that they had lost contact with Mr Nadeem. Consequently, Mr Nadeem’s representative requested an extension of time to respond to 4 April 2013.[8]

   [8] CB 83.

10. A Tribunal officer contacted Mr Nadeem’s representative to advise that the request for an extension would not be acceded to but that the Tribunal would proceed to convene a hearing.[9]

    [9] CB 84.

11. Consequently, on 27 March 2013, the Tribunal wrote to Mr Nadeem’s representative inviting Mr Nadeem to attend a hearing scheduled for 20 May 2013.[10]  Mr Nadeem did not attend the hearing.[11]

    [10] CB 85-88.

    [11] CB 95.

12. The Tribunal proceeded to make its decision on 20 May 2013, without taking further action to enable Mr Nadeem to appear before it.[12]

    [12] Pursuant to s.362B of the Migration Act (CB 100-107).

13. The Tribunal sent a letter to Mr Nadeem’s representative notifying of the outcome of its decision on 20 May 2013.[13]

    [13] CB 98-99.

14. The Tribunal noted Mr Nadeem’s submission that the ALIF had not complied with the National Code, however, it found that Mr Nadeem had not proffered any evidence or explanation of any breaches.  Consequently, without evidence to the contrary, the Tribunal was satisfied that ALIF had complied with its obligations under the National Code.[14]

    [14] See [31] at CB 106.

15. The Tribunal also noted that Mr Nadeem had not proffered any reasons for his unsatisfactory course attendance leading to the ALIF's certification.  Consequently, on the limited evidence before it, the Tribunal was not satisfied that Mr Nadeem’s breach of condition 8202 was due to exceptional circumstances beyond his control.

16. Therefore, the Tribunal determined that the automatic cancellation of the applicant's visa should not be revoked.[15]

    [15] See [32] and [33] at CB 106.

17. These proceedings began with a show cause application filed on 14 June 2013. 

18. There are two paragraphs under the heading “Grounds of Application” in narrative form:

    1. The Migration Review Tribunal (“The Tribunal”) wrote to the applicant's Authorised representative (authorised to communicate with Tribunal on behalf of the applicant and authorised to represent the applicant at 'the Tribunal' to present any document in support of applicant's claim and to represent applicant on personal hearing) on 27 March 2013 and invited him to attend a hearing at MRT on 20 May 2013 in order to provide oral evidence and any submissions in support of his claims that his education provider did not comply with its obligations under National Code to issue him enough warning and letters and his visa was cancelled automatically under section 20 without giving the applicant any change to produce his case.

    2.    The Applicant couldn't attend the above stated hearing because he was sick and now he has received a letter from 'The Tribunal' affirming the delegate of DIAC's decision not to revoke the automatic cancellation of Applicant's student visa.  The applicant is of the view that 'The Tribunal' has fell into jurisdictional error in making a finding on this decision without giving the applicant another chance to present his side of the case and thus denying him justice.

19. The application is supported by an affidavit filed on the same day.  I also have before me as evidence the court book filed on 5 August 2013. 

20. I gave directions in this matter on 16 July 2013.  At that time Mr Nadeem attended in person with the assistance of an Urdu interpreter.  I made orders by consent giving Mr Nadeem the opportunity to file and serve an amended application and further evidence and I listed the matter for a show cause hearing today. 

21. Mr Nadeem has not taken up the opportunity afforded to him to file additional material.  He appeared in person today and sought an adjournment of the hearing.  Mr Nadeem told me that he had been seeking the assistance of a lawyer.  He had had difficulty because of the cost involved.  He had, however, potentially secured the services of a Mr Mohammed Ali.  Mr Nadeem told me that Mr Ali had agreed to appear on his behalf at a later date. 

22. I invited Mr Nadeem to provide contact details for Mr Ali so that my associate could contact him to verify his statements.  However, Mr Nadeem was unable to provide any contact details for Mr Ali.  I declined the adjournment on the basis that Mr Nadeem had had a sufficient opportunity to make whatever arrangements he wished for legal representation. 

23. Mr Nadeem told me that he was unable to attend the hearing before the Tribunal, to which he was invited, due to illness.  Mr Nadeem conceded that he was aware of the hearing invitation issued to him and that he had not informed the Tribunal of his asserted illness.  I asked Mr Nadeem why, given that he was represented before the Tribunal by an experienced practitioner, David Bitel, he did not ask Mr Bitel to inform the Tribunal of the need for an adjournment.  Mr Nadeem explained that he was unable to pay the fees claimed by Mr Bitel’s firm for his continuing assistance. 

24. The court book records that on 26 March 2013, Mr Bitel wrote to the Tribunal in response to an Invitation to Comment or provide information, stating that Mr Nadeem had not been in contact with his firm for a considerable period of time.  Mr Nadeem asserted that he had been in regular contact with Mr Bitel but was unable to pay the fees required from him.  In any event, the response from Mr Bitel was treated by the Tribunal as a response to the Invitation to Comment and the Tribunal offered Mr Nadeem a hearing. 

25. Mr Nadeem did not make any communication to the Tribunal either to tell the Tribunal that Mr Bitel was no longer acting for him or that he was sick, as he claimed, or that he wanted an adjournment of the hearing.  A period of two months passed between Mr Bitel’s letter and the hearing opportunity.  This was ample time for Mr Nadeem to deal with whatever difficulties he had with representation.  In the circumstances, I see no error in the Tribunal’s decision to proceed in Mr Nadeem’s absence when he did not appear at the hearing. 

26. I otherwise agree with the Minister’s written submissions. 

27. The only remaining question for this Court's consideration is whether the Tribunal’s hearing invitation complied with all of the statutory and regulatory requirements.[16]

    [16] Sections 360, 360A, 361, 362B, 379A, 379C and regulation 4.21 of the Migration Regulations 1994 (Cth) (Regulations).

28. The Tribunal’s letter was sent by facsimile to Mr Nadeem’s nominated address for service.[17]  Consequently, as the letter was dated 27 March 2013, Mr Nadeem was deemed to have received it at the end of the day on 27 March 2013.[18]

    [17] Section 379A(5)(a) and (d) of the Migration Act.

    [18] Section 379C(5) of the Migration Act and regulation 4.21 of the Regulations.

29. The letter clearly set out the date, time and place of the scheduled hearing,[19] for Mr Nadeem to give evidence and present arguments in support of his application.[20]  The letter also informed Mr Nadeem that if he did not appear, the Tribunal may proceed to make a decision without enabling him another opportunity.[21]

    [19] Section 360A of the Migration Act and regulation 4.21 of the Regulations.

    [20] Section 361 of the Migration Act.

    [21] Section 362B of the Migration Act.

30. Moreover, in Mr Nadeem’s affidavit, filed on 4 June 2013, he accepts that he received the Tribunal’s hearing invitation.  Therefore, and consistently with the discussion above, I find that Mr Nadeem chose not to attend the hearing and, further, to not inform the Tribunal of his absence or request an adjournment.  In these circumstances, the Tribunal acted within jurisdiction.

31. I conclude that the applicant has failed to establish an arguable case of jurisdictional error by the Tribunal. I will accordingly order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

32. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. Mr Nadeem claimed impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. I will order that Mr Nadeem pay the Minister’s costs and disbursements costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  16 September 2013