Narang v Minister for Immigration

[2016] FCCA 1185

FEDERAL CIRCUIT COURT OF AUSTRALIA

NARANG v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1185

Catchwords:
MIGRATION – Application for judicial review – notification provisions of Migration Act 1958 – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A, 362B, 362C, 379A, 379C, 426A

Migration Regulations 1994 (Cth), cl.573.223 of sch.2, reg.1.40A

Cases cited:
AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383

Applicant: MAYANK MAHENDER NARANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2595 of 2014

Judgment of: Judge Jones

Hearing date: 18 April 2016

Date of Last Submission: 18 April 2016

Delivered at: Melbourne

Delivered on: 17 May 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Young

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.

2. The application for judicial review filed on 19 December 2014 be dismissed.

3. The Applicant pay the First Respondent’s costs.

.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2595 of 2014

MAYANK MAHENDER NARANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an Application for judicial review of a decision of the (then) Migration Review Tribunal (“the Tribunal”) dated 1 December 2014, in which the Tribunal affirmed a decision of the delegate of the First Respondent (“the delegate”) not to grant the Applicant a Student (Temporary) (Class TU) Visa (“the visa”).

2. The application filed by the Applicant in this Court for judicial review on 19 December 2014 specified the following three grounds:

   (1)    I was not provided natural justice.

   (2)    The law was not properly applied during the assessment of my review application.

   (3)    I do not believe a fair process was followed by the MRT.

3. The Applicant, a citizen of India, was self-represented. Consequently, I explained to the Applicant at the commencement of the proceedings the nature of judicial review, that being that the question the Court must decide is whether the Tribunal’s decision was affected by jurisdictional error or, as I put it to him, serious legal mistake. I asked him to explain the grounds that he had specified in his application for judicial review. From his explanation, it is clear that each of those grounds relate to the one fact that he asserts, which is that he did not receive a copy from the Tribunal of its correspondence inviting him to attend the Tribunal hearing and, for that reason, he did not attend. This, he says, was offensive to the concept of natural justice, was not a fair process and consequently the Tribunal did not properly apply the law.

4. The Applicant for the visa on 29 January 2014. It is unnecessary to deal with that background. The chronology that is relevant commences with the Applicant’s application for review of the decision of the delegate refusing to grant the Applicant his visa.

5. The Applicant made an online application for review by the Tribunal on 21 May 2014 (CB 69-70). In the Application, the Applicant sets out his correspondence details, including his residential address and his email address (CB 70). He said to the Court that he received the acknowledgement of his application (CB 71-72). He said his address changed after this point, but he did not notify the Tribunal. The Applicant confirmed with the Court that the email address set out in his review application (CB 70), was his current email address.

6. On 30 October 2014, by email sent to the Applicant’s email address listed on his online application (CB 73), the Applicant was invited to attend a Tribunal hearing (CB 74-76).

7. The Applicant was taken to the email and the correspondence I have just referred to. He confirmed that this was the correct email address listed in the email sent to him (CB 73). He said, however, he did not receive that email. He had no explanation for that. 

8. In the correspondence, the Tribunal, in accordance with its requirements under s.360 of the Migration Act 1958 (“the Act”) set out the date, time and location of the hearing, which was listed on 1 December 2014, and, in addition, informed the Applicant that he was to provide particular information, which included a copy of his current Certificate of Enrolment, documents that show he was currently enrolled in a course, documents showing his past studies, including any certificates, academic transcripts and so forth, explanations of any gaps in his enrolment, documents that demonstrated he had sufficient funds for study in accordance with the Migration Regulations 1994 (“the Regulations”), evidence that he met English language proficiency requirements and evidence that he had completed secondary school year 12 level equivalent. He was informed that the Tribunal required him to provide this information seven days before the hearing date.

9. The information was not provided, and the Applicant did not attend the hearing. The Tribunal then proceeded to make its decision. In essence, the Tribunal set out the requirements that the Applicant was required to meet in order to be granted the visa. That is set out in cl.573.223(2) of sch.2 to the Regulations. In particular, the Applicant was required to demonstrate that, at the time of decision, he was enrolled in, or was the subject of a current offer of enrolment, in a course of study that is a principal course and is of a type specified under reg.1.40A of the Regulations for the particular subclass at the time of the application. The reference to the criteria is set out in the Tribunal decision (CB 85, [7]-[8]).

10. The Tribunal found that (CB 86, [9]):

    “There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study.  Therefore clause 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.”

11. The Tribunal also noted that there was no evidence that the Applicant met criteria for other subclass 576 or 580 visas (CB 86, [10]). Consequently, it affirmed the decision under review.

12. I should note that there is a document, called the Provider Registration and International Student Management System, “PRISMS” (CB 77). I took the Applicant to that document during his submissions and put to him that it suggested that the last course that he completed was a Certificate IV in Hospitality which finished on 28 March 2011. He agreed with this. He said that the reason that there were no other courses completed, was because in 2014 the College that he was enrolled in got in trouble with the Federal Police, and no longer exists. I also asked the Applicant whether he would have been able to provide a certificate of enrolment to the Tribunal had there been a hearing, and he said he could not, and he again related this to the closure of the College in 2014.

13. The primary issue to determine, is the Applicant’s complaint that he did not receive a copy of the invitation to the Tribunal hearing. In order to address this issue, the Court is required to refer to the relevant notification provisions of the Act, commencing with s.360 of the Act. That section is headed ‘Tribunal Must Invite Applicant to Appear’. Sub-section 360(1) of the Act provides:

    “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.”

14. Section 360A deals with the notice of the invitation. Sub-section 360A(1) provides:

    “If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.”

15. The correspondence from the Tribunal (CB 74) inviting the Applicant to a hearing conforms with the requirements of subsection 360A(1) of the Act.

16. Sub-section 360A(2) of the Act is relevant. It provides:

    “The notice must be given to the applicant except:

    (a)  where paragraph

    (b) applies -- by one of the methods specified in section 379A…

17. Sub-section 360A(2)(b) of the Act, concerns a person or Applicant who is in immigration detention, which the Applicant was not.

18. Section 379A of the Act is headed ‘Methods by which Tribunal gives documents to a person other than the Secretary’, and the relevant subsection is sub-s.379A(5) of the Act. Sub-section 379A(1) of the Act commences by providing:

    “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:

    …”

    Subsection 379A(5) of the Act refers to transmission by fax, email or other electronic means and states:

    “Another method consists of a member or an officer of the Tribunal transmitting the document by:

    …

    (b), email;

    …

    to:

    (d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review;

    …”

19. It is obvious from the history I have recounted that the Applicant, in his online application for review, provided an email address, and the invitation to the Tribunal hearing was sent to the Applicant at that email address (CB 73-76).

20. The next relevant section is s.379C of the Act, titled ‘When a person other than the Secretary is taken to have received a document from the Tribunal’. Sub-section 379C(1) of the Act provides:

    “This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA).”

    Subsection 379C(5) of the Act is relevant, and refers to transmission by fax, email or other electronic means. It provides:

    “If the Tribunal gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.”

21. The effect of these notification provisions of the Act is that the Applicant was taken to have received the invitation to attend the Tribunal hearing on 1 December 2014, by the end of the day of the email, which was dated 30 October 2014. The Applicant’s submission that he did not receive the invitation to the Tribunal has no basis, because the effect of the relevant provisions is that he is taken to have received the email.

22. The Applicant having not attended at the required time, the Tribunal was entitled to exercise its discretion pursuant to s.362B of the Act to proceed to make a decision on the review without taking further action to allow or enable the Applicant to appear before it.

23. Section 362B of the Act provides:

    “(1) This section applies if the applicant:

    (a) is invited under section 360 to appear before the Tribunal;  but

    (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.”

    Subsection 362B(1A) of the Act then enables the Tribunal to make a decision on the review without taking further action to allow or enable the Applicant to appear before it, or, by written statement under s.362C of the Act, dismiss the application without any further consideration of the application or information. The Tribunal, as is apparent, proceeded to make a decision on the review without taking any further action.

24. There is another issue that is addressed by the Minister’s written submissions, and this arises from a decision of North ACJ in AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383.

25. North ACJ held that the Refugee Review Tribunal erred in exercising its discretion pursuant to s.426A of the Act, which is the equivalent provision to s.362B, under pt.7, div.4 of the Act, in proceeding to hear and determine the matter in the absence of the Applicant in that case without attempting to contact the Applicant on their mobile phone number, which the Refugee Review Tribunal had in its records.

26. The Minister deals with this in two ways. Firstly, the Minister says that the decision in AZAFB was wrongly decided; however, no reasoning is provided as to the Minister’s views. Secondly, it says that the circumstances leading to the decision in AZAFB can be distinguished from the present proceedings in two ways: firstly, the Minister says that in this case, the invitation to attend the hearing was sent to the email address provided in the Applicant’s application for review to the Tribunal; further, the Tribunal, on 24 November 2014 and 28 November 2014, sent to the Applicant’s mobile phone number, provided in the application for review, SMS hearing reminders of the hearing scheduled for 1 December 2004. 

27. These SMS hearing reminders are set out in an affidavit of Mr Oliver Young, filed on 11 April 2016. Mr Young is a solicitor who is employed by the solicitors instructed to act for the Minister. Attached to that affidavit of Mr Young, is a case note, in which it is apparent that two SMS hearing reminders were sent to the Applicant on 24 November 2014 and on 28 November 2014 in relation to the hearing. The reminders were sent to a mobile number listed on the Applicant’s online application (CB70).

28. Secondly, the Minister submits that in AZAFB, the Applicant changed his residential address and did not receive the hearing notice. As I have indicated, the Applicant advised the Court that he had changed his residential address but had not notified the Tribunal; however, in this case, the invitation to the Tribunal was sent to the Applicant’s email address and not to his residential address. 

29. The First Respondent notes that in this matter, the Applicant, in his affidavit filed with his application for judicial review, stated that in relation to the decision of the Tribunal, he “only got the decision straightaway” (CB 96). The decision of the Tribunal was, in fact, sent to the Applicant’s email address listed on his online application.

30. The third way in which the Minister maintains that AZAFB is distinguishable is that the Applicant in AZAFB had filed a substantial and serious written submission in support of his application to the Tribunal. The Applicant in this case had not done so, and, in particular, he had not provided evidence that he was currently enrolled in a course or had an offer of enrolment in a registered course, and, in fact, confirmed to the Court today that he could not have done so at the Tribunal hearing.  The effect of this, of course, is that the Tribunal would have been bound to have found that the Applicant did not satisfy the relevant criteria for the grant of the visa.

31. In all the circumstances, I am satisfied that the Tribunal decision is not affected by jurisdictional error. 

32. The Applicant’s grounds for judicial review do not give rise to jurisdictional error.

33. Orders will be made dismissing the application with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  17 May 2016