Nepal v Minister for Immigration
[2015] FCCA 675
•26 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEPAL v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 675 |
| Catchwords: MIGRATION – Application for an extension of time in relation to an application to review a decision of Migration Review Tribunal – whether the Tribunal failed to invite the Applicant to a hearing in the manner prescribed by ss.360A and 379A of the Migration Act – extension of time granted but application dismissed – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.360, 360A, 360, 362B, 379A, 379C, 477 |
| NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 SZRIQv Federal Magistrates Court of Australia (2013) 139 ALD 252; [2013] FCA 1284 SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73; [2014] FCAFC 40 |
| Applicant: | BIVEK NEPAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2849 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 16 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers |
| Counsel for the Respondents: | Mr M. Smith |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The time for making the application be extended up to 18 November 2013.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2849 of 2013
| BIVEK NEPAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These Proceedings
This is an application for review of a decision of the Migration Review Tribunal dated 17 May 2012. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa.
The application to this Court was not filed until 18 November 2013, some 18 months after the Tribunal decision. Section 477 of the Migration Act 1958 (Cth) (the Act) relevantly provides:
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the Court's original jurisdiction under section 476 in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
a) an application for that order has been made in writing to the Federal Circuit Court specifying why the Applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b) the Full Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
As the application to this Court was made outside the prescribed 35 day time limit, the Applicant seeks an extension of time. In the application for review and an affidavit affirmed on 18 November 2013 the Applicant specified why he considered it necessary in the interests of the administration of justice that such an order be made.
In essence, the grounds for an extension of time were said to be: the Applicant's promptness in seeking judicial review once he became aware that the Tribunal had affirmed the delegate's decision; that there would be no prejudice to the Respondents if the extension of time sought was granted; that the application had reasonable prospects of success; that there was utility in quashing the decision as the Applicant was said to have been denied the hearing prescribed by law at which he could present arguments and give evidence in relation to his visa application; that the Applicant would suffer significant prejudice if denied the opportunity to make out his case to the Tribunal as he would therefore not be granted a Class TU (Subclass 572) visa and would also be subject to a three-year banning period on returning to Australia by virtue of cl.4014 of Schedule 4 to the Migration Regulations 1994 (Cth) as he would have to obtain a Bridging Visa (Class WE) to depart Australia. It was contended that if the decision of the Tribunal was quashed the Applicant would be found to continue to hold a Bridging Visa (Class WA) (or, at the least, that he would be entitled to be granted a Bridging Visa (Class WA) until the visa application was finally determined) and that as the holder of a Bridging Visa (Class WA) he would not be subject to the cl.4014 three-year banning period. In addition, it was contended that the Tribunal's failure to accord the “fair hearing” prescribed by s.360 of the Act was an “egregious” breach of the Act that should not be permitted to stand.
As indicated, Mr Nepal relied on an affidavit affirmed on 18 November 2013 which addressed the reasons for the delay in bringing these proceedings as well as matters relevant to the substantive ground of review. He was cross-examined during the hearing.
In support of the application for an extension of time, the solicitor for the Applicant referred to factors that are generally regarded as relevant when considering an application to extend time for the purposes of s.477(2): the extent of the delay and the reason for the delay; whether there is any merit in the application; whether there is any prejudice to the Respondents; the impact on the Applicant; the interests of the public at large; and the Court's discretion itself (see Nicholls FM in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44]). However, as Smith FM held in SZNZI v Minister for Immigration & Anor [2010] FMCA 57 (at [11]), none of the suggested relevant considerations should be elevated to the status of a necessary consideration in all cases. All the circumstances, including the “critical considerations” of a reasonable explanation for the delay and the merit of the application, must be weighed together by reference to the statutory criterion in s.477(2)(b) of the Act.
Moreover, in SZRIQv Federal Magistrates Court of Australia (2013) 139 ALD 252; [2013] FCA 1284 Foster J made the point that no particular criterion was specified in s.477 of the Act to be satisfied as part of the concept of “the interests of the administration of justice” and suggested that the matters that may be taken into account were at large, “although they must logically and sensibly relate to the interests of the administration of justice” (at [46]). His Honour referred to the guidelines developed by the Courts as to the factors which might ordinarily be taken into account (such as the list of factors referred to in SZMFJ), including “whether the Applicant's substantive case for judicial review is sufficiently arguable to justify the extension of time” (at [47]). Relevantly, Foster J described the issue in this respect as the substantive case was “reasonably arguable” or “arguable” (at [52]).
For the reasons that follow I am satisfied that an extension of time within which to bring these proceedings should be granted, but that the application should be dismissed as jurisdictional error has not been established.
The only ground in the Application of 18 November 2013 is as follows:
The Second Respondent failed to accord the Applicant the hearing prescribed by s360 of the Act
Particulars:
(a) The Applicant applied for a Class TU (subclass 572) visa on 12 March 2010. On 11 June 2010, a delegate of the First Respondent refused the application. On 14 July 2010, the Applicant applied for review of the delegate’s decision at the Migration Review Tribunal (‘the Tribunal’).
(b) On 17 May 2012, the Tribunal affirmed the delegate’s decision.
(c) The Tribunal did not invite the Applicant, in the manner prescribed by s360A and s379A of the Act, to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was therefore not permitted to make a decision pursuant to s362B, thereby committing jurisdictional error.
In order to consider the application for an extension of time, in particular the explanation and reasons for the delay in commencing these proceedings and whether the ground is sufficiently arguable to warrant an extension of time, as well as the question of whether, if an extension of time is warranted, such ground is made out, it is necessary to outline the background to these proceedings, the basis for the Tribunal decision and the evidence before the Court.
Background
The Applicant, a citizen of Nepal, lodged an application for a Student Visa on 12 March 2010. On 11 June 2010 his application was refused by a delegate of the First Respondent on the basis that he had been unable to provide evidence of engaging in any course of study and no record existed of such study for the period during which he was the holder of a previous Student Visa.
On 14 July 2010 the Applicant sought review by the Migration Review Tribunal. In his review application form he provided a residential street address in Bexley NSW (the Bexley address). He did not appoint an authorised recipient. He indicated that he wanted all correspondence in relation his application sent to him at the Bexley address.
On 15 July 2010 the Tribunal acknowledged receipt of the application by letter sent to the Applicant at the Bexley address. Included in that letter was a reminder that it was important that the Applicant tell the Tribunal immediately if he changed his contact details, such as his home address, his mailing address or other specified details. He was advised that he should use his specified MRT case number when he contacted the Tribunal.
The letter also enclosed information about Tribunal procedures for review applicants which set out the circumstances in which the Tribunal granted priority to certain kinds of cases, advised about requests for priority and stated that the Tribunal would contact the Applicant when consideration of his application for review commenced. This information also reminded the Applicant that he must inform the Tribunal and the Department of any change in his contact details and that if the Tribunal did not receive a response to important correspondence his case may be decided without further notice.
In addition, the review application receipt dated 14 July 2010 enclosed with the letter of 15 July 2010 stated that the Tribunal would contact the Applicant in the near future about his application. It advised him to quote his specified MRT case number in all future dealings with the Tribunal.
On 16 April 2012 the Tribunal wrote to the Applicant by letter addressed to him at the Bexley address. The Departmental file copy of this letter in the Court Book is marked with a registered post sticker and a notation that the letter was posted on 16 April 2012. The letter invited the Applicant to appear at a Tribunal hearing on 10 May 2012. It enclosed a response to hearing invitation form which the Applicant was asked to return to the Tribunal.
It appears from the Tribunal's checklist dated 2 May 2012, a copy of which appears in the Court Book, that the Tribunal did not receive a response to this hearing invitation. The form records that the case officer checked that the hearing invitation was sent to the correct address. It contains an instruction to “Check Case Mate and files for change of address notification”.
On 8 May 2012 the Tribunal member who made the decision of 17 May 2012 assigned a task to a Tribunal officer. The details are recorded on a “Task Details” form in relation to this matter contained in the Court Book. The Tribunal member instructed the officer to try the Applicant's mobile telephone number (provided in connection with the review application) to inquire if he would be attending the hearing. The form contains a section at the bottom headed “Notes” which records:
Tried to contact teh (sic) Applicant on his mobile number, he did not answer the phone, says the number is currently unavailable.
This “Note” is followed by the initials of the Tribunal officer and the date of 8/5/2012.
In addition, a separate Tribunal document in relation to this matter headed “Case Notes” records two further attempts by the same Tribunal Officer to contact the Applicant on 9 May 2012. The first note bears the time 09:54:00 am and is as follows:
Tried to contact the Applicant again, he did not answer the phone and there was no option to leave any message.
The second note bears the time 02:23:00 pm and is as follows:
Tried again to contact the Applicant, no answer.
The Applicant did not attend the scheduled Tribunal hearing.
The Tribunal Decision
In its reasons for decision of 17 May 2012, the Tribunal found that the issue in the case was whether at the time of decision the Applicant met the criterion in cl.572.235 in Schedule 2 to the Migration Regulations1994 (Cth) (the Regulations) which required him to have complied substantially with conditions that applied to the last substantive visa, and to any subsequent bridging visa, held by him. The Tribunal referred to the law in relation to substantial compliance. It recorded that the delegate had found that the Applicant had not complied substantially with condition 8202 which had applied to his last substantive visa and which imposed enrolment, course progress and course attendance requirements. The delegate had reached this decision in circumstances where, despite being requested to do so, the Applicant had not provided evidence of any course of study for the period 20/07/09 to 21/02/10 when he was the holder of a Subclass 572 visa and there was no record of the requisite enrolment in the “PRISMS” records of the Department of Education, Employment and Workplace Relations.
The Tribunal referred to the material in the Departmental file and the delegate's decision and to the fact that the Applicant had not made any further submissions or provided any material in support of his review application.
Consistent with the information in the “Task Details” and “Case Notes” records, the Tribunal continued:
On 16 April 2010, (sic) the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a hearing on 10 May 2012. The review Applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. On 8 May 2012 and twice on 9 May 2012, a Tribunal officer attempted to contact the Applicant on the mobile phone he provided on his application for review form to inquire if he would be attending the hearing, but was unsuccessful and there was no facility to leave a message for the Applicant on that number. The Applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.
It is clear that the reference to 16 April 2010 is a typographical error and is intended to be a reference to 16 April 2012 (the date of the Tribunal hearing invitation). No issue was taken in relation to this date.
The Tribunal found that it could not be satisfied that the Applicant had complied substantially with condition 8202 to which his earlier substantive visa was subject. It referred to the delegate’s decision and to the Applicant’s failure to provide evidence of enrolment or any submissions in relation to the period of non-enrolment identified by the delegate. It observed that the Applicant had not attended the scheduled Tribunal hearing to present evidence or arguments identifying any relevant factors or considerations.
On the evidence before it, the Tribunal could not be satisfied that the Applicant was enrolled in a registered course after he completed a Certificate III course at the end of July 2009 until his enrolment in a Diploma of Management course which was to start on 22 February 2010. The Tribunal was of the view that the intervening period of at least six months was a significant period given the purpose for which the visa was granted. It was not satisfied that the Applicant met the criterion for a subclass 572 visa in cl.572.235.
Nor was the Tribunal satisfied that the Applicant met the equivalent provision in relation to other subclasses of Class TU visa or the prescribed criteria for a Subclass 580 (Student Guardian) visa. The Tribunal affirmed the decision not to grant the Applicant a Student (Temporary) (Class TU) visa.
The Tribunal decision dated 17 May 2012 was sent by post to the Applicant at the Bexley address.
On 24 May 2012 the hearing invitation letter dated 16 April 2012 was returned to sender marked “unclaimed”, in an envelope bearing the same registered post number as appears on the Departmental file copy of that letter. On 21 June 2012 the letter dated 17 May 2012 containing a copy of the Tribunal’s decision and reasons was also returned to sender marked “unclaimed”.
The evidence in relation to notification to the Tribunal of a change of address
As indicated, the Applicant’s application to this Court was not filed until 18 November 2013. In his affidavit of 18 November 2013, Mr Nepal stated that he moved from the Bexley address to a Carlton address in early December 2011. He claimed that in “mid-Janruary 2012” (sic) he notified the Sydney Registry of the Tribunal of this change of address by telephone. He affirmed that, to the best of his recollection, words to the following effect were said in his conversation with the Registry:
Mr Nepal:: I am calling about my change of residential address.
MRT officer: What is your name?
Mr Nepal: Bivek Nepal.
MRT officer: Just give me a few minutes.
He claimed he was put on hold for about two minutes and that, to the best of his recollection, words to the following effect were then said:
MRT officer: What is your new address?
Mr Nepal: 136 [street address provided] Carlton, New South Wales, 2218.
MRT officer: We have changed your address.
Mr Nepal: Okay. Thank you.
Mr Nepal claimed that he expected to hear from the Tribunal and to attend a hearing, but that at the start of November 2013, because he had not heard from the Tribunal, he asked a named friend to see if he could find out “anything”. He claimed that the friend checked the internet, found that the Tribunal had made a decision refusing the application on 17 May 2012. The friend advised him of this on 6 November 2013 and gave him a copy of the Tribunal decision.
In the application it was contended that the Applicant had acted promptly in seeking judicial review once he became aware that the Tribunal had affirmed the delegate’s decision.
The Applicant sought legal advice on 11 November 2013. He gave evidence that after seeing his solicitor he went to the Sydney Registry of the Tribunal on 11 November 2011 and spoke to a counter officer and that to the best of his recollection words to the following effect were said:
Mr Nepal: My name is Bivek Nepal. Could you please give me a copy of the decision and the notification letter.
MRT officer: Please fill out this form.
There is no Tribunal “form” in evidence before the Court and no evidence from Mr Nepal as to the details he provided on such form. His evidence is that he filled out the form and gave it back to the officer and that after waiting for about 15 to 20 minutes he was given a copy of the Tribunal’s decision and notification letter in relation to his student visa application.
He also claimed that, to the best of his recollection, words to the effect were then said:
MRT officer: What is your new address?
Mr Nepal: 136 [street specified] Carlton, New South Wales, 2218.
Mr Nepal gave a copy of the Tribunal decision to his solicitor and after receiving advice, instructed the solicitor to commence judicial review proceedings. The Application was filed on 18 November 2013. Mr Nepal relied on this evidence both in support of his application for an extension of time and in support of the substantive ground of review. He submitted that the Tribunal erred in failing to give the hearing invitation letter to him in accordance with s.379A of the Act.
In cross-examination Mr Nepal confirmed that he had moved from Bexley to Carlton in early December 2011 and that he telephoned the Tribunal in “mid-January 2012”. He claimed that this was “as soon as I realised”, but agreed that he had not told the Tribunal that he had moved in early December 2011. Nor had he checked with the Tribunal as to whether any documents had been sent by the Tribunal to the Bexley address in the interim period.
Mr Nepal claimed that, to his best of his recollection, the January 2012 conversation was limited to the effect of the words set out in his affidavit. His evidence was that he did not have any documents in front of him when he made the telephone call to the Tribunal, that he did not offer any further information to the Tribunal and that he did not ask any other questions of the Tribunal (including when his hearing might be). He claimed that the Tribunal officer did not ask him any questions other than those stated in the affidavit and that he did not receive any follow up correspondence from the Tribunal confirming that his address had changed.
He was unable to provide an explanation as to why he had not telephoned the Tribunal before November 2013 to inquire about the status of his case, except to indicate that he thought that the Tribunal would call him and “inform [him] about everything”.
The Applicant also confirmed his recollection of the conversation at the Sydney Registry of the MRT on 11 November 2011, including that the Tribunal officer had asked him: “What is your new address?”. He conceded that he had not told the Tribunal on 11 November 2011 that he had informed it about his change of address at an earlier time.
The First Respondent relied on an affidavit of Marina Sara Osmo affirmed on 2 May 2014. Ms Osmo was also cross-examined. Ms Osmo is a Registry Manager of the Migration Review Tribunal and the Refugee Review Tribunal and has been in that position since July 2003. Part of her role is to oversee procedural aspects of the work done in the New South Wales Registry and to supervise staff providing services to Tribunal members, applicants and their representatives. Her evidence is that by reason of her role and function she is familiar with the procedures and processes employed by the Tribunal.
Ms Osmo gave evidence about the Tribunal records, including the fact that it maintains a physical and electronic file in relation to every matter commenced in the Tribunal which is created upon lodgement of each matter. Every file is allocated a file (or case) number. The electronic file maintained by the Tribunal is an electronic case management system called “CaseMate” which is used to record the “main steps” in progressing a review application from lodgement to finalisation. A function of “CaseMate” is to record file notes (called “Case Notes”) in relation to review applications.
Ms Osmo explained the procedure for searching “CaseMate” (using the relevant case number) for “Case Notes” for that file. She attested that on 30 April 2014 she undertook such a search in relation to the present application using the case number for the Applicant’s matter. She generated a print version of the “Case Notes”, which was printed and annexed to her affidavit.
The “Case Notes” screen records three “Case Notes” in relation to Mr Nepal’s case. These record the two attempts by a Tribunal officer to contact him by telephone on 9 May 2012 described above and also that on 11 November 2013 the Tribunal file was not located.
Ms Osmo gave evidence that the Tribunal “has” a standard procedure for handling telephone calls from Applicants concerning a change of address. A copy of this “Standard procedures” document was annexed to Ms Osmo’s affidavit. In January 2012 there was no document recording this procedure. The Tribunal’s procedure for handling telephone calls from applicants concerning a change of address was first documented on 21 December 2012. However Ms Osmo attested that the procedures document “reflects the procedures which were already in place in January 2012”.
The “Standard Procedures” document in relation to “change of address – oral notification” describes the addresses to which correspondence may be sent by post to a review applicant including, relevantly, the “last” address provided to the Tribunal by the recipient in connection with the review. It notes that while an address for service must be notified to the Tribunal in writing, a residential or business address may be provided to the Tribunal orally or in writing.
The document sets out a procedure for Tribunal officers processing a change of address notification received by telephone. Relevantly, it sets out “steps” where a review applicant who has not appointed an authorised recipient (as in this case) telephones the Tribunal to advise of a change of address. In such a case the Tribunal officer “should verify the identity of the caller by asking the caller to confirm date of birth, last address for service, type of decision under review, date the review application was lodged.” In addition, the officer “should confirm” whether the new address is a residential or business address and whether it is the address for service and “request that the review applicant provide the tribunal with written confirmation of the change of address as soon as possible”.
The Form states that the officer “may request” that a specified change of contact details form be completed, although any confirmation in writing is acceptable. It indicates that to facilitate receipt of a written confirmation, the officer should request the email address (if available) of the review applicant and should email details of the new address to the review applicant, asking the applicant to confirm the new address by return email. It is explained that the written confirmation is for evidentiary purposes only and to ensure the address is recorded correctly. The document also states that the officer should “case note the conversation” and immediately update the address in “CaseMate”, attach a change of address tag to the case note and place the case note on the file.
In addition, it records that if written confirmation is not received within 2 working days of the telephone call, the officer should send a letter to the review applicant’s new address (copied into the old address) confirming the new address and advising that all future correspondence will be sent to the new address. A template for such a letter is provided.
In cross-examination Ms Osmo acknowledged that “sometimes” information given to the Tribunal was not put on the file and documents were lost or misplaced within the physical premises of the Tribunal.
She agreed that although her evidence was that the December 2012 document reflected the procedures in place in January 2012, there was no written procedure in place as at January 2012 in relation to the receipt of oral notification of a change of address by telephone. Ms Osmo accepted that she could not give a 100 per cent guarantee that Tribunal officers would have followed this process strictly. She acknowledged that it was fair to say that the procedures document was created to minimise the risk of errors in relation to proper record-keeping and changes to information on the Tribunal system when people telephoned in relation to change of address as well as to formalise a procedure already in place. She conceded that it was “possible” that a person may have telephoned the Tribunal and given his or her address in January 2012 and that it “might not” have been recorded.
Delay and other factors
The Applicant submitted that his delay in commencing these proceedings was because the Tribunal did not send the Tribunal decision to his Carlton address, despite the fact he had notified the Tribunal of his change of address in January 2012, approximately four months before the Tribunal decision was made.
The solicitor for the Applicant also submitted that while the Applicant had taken no steps to contact the Tribunal between January and November 2013, his evidence that he was waiting for the Tribunal to contact him was consistent with the information for applicants provided to him when he lodged his review application. It was pointed out that there was no positive obligation on an applicant to make inquiries of the Tribunal, albeit that the applicant was required to inform the Tribunal of any change in his contact details. It was submitted that the Applicant’s evidence in relation to his contact with the Tribunal in November 2013 showed that he was not “sitting on his hands” and that no adverse inference should be drawn from his failure to raise with the MRT officer in November 2013 any claim that the Tribunal had not sent documents to his correct address.
It was submitted that Mr Nepal had acted promptly in seeking judicial review once he became aware that the Tribunal had affirmed the delegate’s decision. He claimed that he found out about the decision on 6 November 2013. He sought legal advice on 11 November 2013 and he made the judicial review application on 18 November 2013.
The First Respondent submitted that insofar as the explanation for the delay rested on the Applicant’s assertion that he did not receive the Tribunal decision because (despite the fact he notified the Tribunal in January 2012 of his new address) the Tribunal decision was subsequently sent to his former Bexley address, the Court should not be satisfied that the Applicant had met the onus of establishing that he made the asserted contact with the Tribunal in January 2012. It was submitted that if the Applicant did not receive the Tribunal decision this was due to his own failure to keep the Tribunal informed of his contact details and that this was not an adequate explanation for the delay.
It was also submitted that even if the Court accepted that the Applicant did inform the Tribunal of his change of address in January 2012, it was nonetheless relevant to have regard to the adequacy of the explanation for the delay in commencing proceedings after the date of the Tribunal decision.
It was submitted that the Applicant’s explanation for the delay was simply his claim that he was not notified of the Tribunal hearing or of the Tribunal decision and that once he became appraised of the decision, he acted with speed. The First Respondent submitted that this contention ignored the fact that one of the reasons for the extent of the delay was that the Applicant had not taken steps to keep up with the progress of his review application. It was contended that his conduct in that respect was inconsistent with concern about the progress of his matter.
While the First Respondent accepted that the Applicant had acted with some speed following the notification of the Tribunal decision by his friend, it was submitted that he had not been able to explain why he had taken no steps prior to that, in particular, why he had not contacted the Tribunal to find out what was happening. This was said to be relevant to whether a satisfactory explanation for the delay had been provided.
Insofar as the First Respondent suggested that it was relevant that the Applicant had not taken steps after January 2012 to check on the progress of his review application, I place little weight on the fact that he took no positive action until November 2013. In its acknowledgement of his review application the Tribunal had advised him that it would contact him. His application was not one to which the Tribunal had stated that it accorded priority.
As the Applicant submitted, there would be no prejudice to the Respondents if the extension of time sought was granted. It was contended that the impact on the Applicant, if the extension of time was not granted would be significant because he had missed the opportunity to attend a Tribunal hearing. It was submitted that if denied the opportunity to make out his case to the Tribunal the Applicant would not be granted a Class TU (Subclass 572) visa and would be subject to a three year banning period on return to Australia by virtue of cl.4014 of Schedule 4 of the Migration Regulations as he would have to obtain a Bridging Visa (Class WE) to depart Australia which would be subject to condition 4014. However it was submitted that if the decision of the Tribunal were to be quashed, the Applicant would be found to continue to hold a Bridging Visa (Class WA) or would at least be entitled to be granted a Bridging Visa (Class WA) until the visa application was finally determined. As the holder of such a Bridging Visa (Class WA) he would not be subject to condition 4014 and the three year banning period. The First Respondent did not address this contention. Insofar as it proceeds on the assumption that if the review application was redetermined by the Tribunal the Applicant would be granted a student visa, this is not a matter to be determined in these proceedings. I have however had regard to the broader issue raised by the Applicant.
The Applicant also submitted that it was in the interests of the public at large to grant the extension of time sought because the Tribunal’s failure to accord the fair hearing prescribed by s.360 of the Act and its making of the decision on the papers, were “egregious” breaches of the Act that should not be permitted to stand. This contention assumes that the Tribunal erred in proceeding as it did. However there is a public interest in ensuring that the Tribunal meets its statutory obligation, as the Applicant also submitted.
Unusually, in this case determination of the issue of whether the Applicant has established that he notified the Tribunal of his change of address in January 2012 is not only relevant to the determination as to whether he has provided a satisfactory explanation for the delay in commencing proceedings but is also the factual issue on which his substantive application rests. As expressed, the ground he relies on is arguable. In these circumstances, and bearing in mind the other factors raised by the Applicant and the fact that there is no appeal from a decision not to grant an extension of time (although see SZRIQ and also SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40) I consider that it is in the interests of the administration of justice in the particular circumstances of the case to grant the extension of time sought. However, for the reasons that follow, no jurisdictional error has been established.
The ground of review
Both parties addressed the ground in the Application in full on the basis that the Court should consider the merits of this ground in determining whether to grant the extension of time sought and, if so, whether the ground for review was made out. While I accept that the ground is arguable, for the reasons that follow, it is not made out.
Under s.360(1) of the Act the Tribunal must invite the Applicant to a hearing. Under s.360A(2)(a) of the Act the notice of invitation must be given to an applicant who is not in immigration detention by one of the methods specified in s.379A of the Act (see s.379A(1)). Relevantly, s.379A(4) provides:
Dispatch by prepaid post or by other prepaid means. Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:
(a)Within three working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)to:
(i)the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii)the last residential or business address provided to the Tribunal by the recipient in connection with the review; or
(iii)if the recipient is a minor - the last address for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.
Where the Tribunal gives a document to a person by the method in s.379A(4) of the Act the person is taken to have received the document under s.379C(4), even if he or she did not actually receive it.
Section 362B of the Act is as follows:
(1) If the applicant:
(a) is invited under section 360 to appear before the Tribunal; and
(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;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
The Applicant acknowledged that the Tribunal sent a s.360 hearing invitation to him by registered post and that this was one of the methods specified in s.379A(4) as required under s.360A(2)(a) of the Act. However it was submitted that in sending it to the Bexley address the Tribunal had not sent it to any of the addresses specified in s.379A(4) of the Act. In particular, the Applicant contended that because the hearing invitation letter was not sent to his Carlton address it was not sent to the residential address he last notified to the Tribunal. He claimed that he notified the Tribunal of that address in a telephone conversation in mid-January 2012. Hence it was contended that the Tribunal had not complied with the requirement in s.379A(4) that the hearing invitation document be dispatched to “the last residential… address provided to the Tribunal by the recipient in connection with the review”.
In these circumstances it was submitted that the deeming provision in s.379C(4) (in relation to when a person was taken to have received a document from the Tribunal) did not apply as the Tribunal had not given the hearing invitation to the Applicant by a method in subsection 379A(4) of the Act.
The Applicant also submitted that the Tribunal had not invited him to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review as provided for in ss.360, 360A and 379A of the Act because it did not “give” the invitation to him. Such an invitation was said to be a precondition to the valid exercise by the Tribunal of the discretionary power in s.362B of the Act to make a decision on the review without taking any further action to allow or enable an applicant who has failed to appear at a hearing to appear before it. It was submitted that in this case the Tribunal was not permitted to make a decision without taking further action to allow or enable the Applicant to appear before it and that in proceeding to do so it had fallen into jurisdictional error.
Reference was made to the remarks of Greenwood J in NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 in relation to the provisions applicable to the Refugee Review Tribunal. His Honour stated (at [22]):
What is important is that the Tribunal only proceed to make a decision on the review pursuant to [the equivalent of s.362B] in circumstances where there has been compliance by the Tribunal with [the equivalent of ss.360 and 360A] thus affording the appellant an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Applicant acknowledged that what was in issue in this case was whether the Court accepted that he had contacted the Tribunal by telephone in January 2012 and advised it of his change of address. The Applicant's solicitor accepted that unless the Applicant could persuade the Court on the balance of probabilities that he in fact made such a telephone call to the Tribunal in January 2012 and advised it of his change of address, he could not succeed.
It was submitted that the Applicant gave his evidence in a forthright manner, that he was not shaken by questions, that he did not provide any inconsistent answers or evade any questions and that the Court could be satisfied that his consistent evidence was truthfully given and that it should be accepted that the event he said occurred in January 2012 did occur.
The Applicant also contended that the “standard procedures” document annexed to Ms Osmo's affidavit, should be given little or no weight because it was created some time after the alleged events of January 2012 and could not in itself prove the existence of what actually occurred in the Tribunal in January 2012. In any event it was submitted that this document itself did not negate the Applicant’s evidence.
It was submitted that it did not necessarily follow that a Tribunal officer had to go through all of the suggested procedural steps to be satisfied as to a caller’s identity, that a name alone could be sufficient and that in the absence of evidence of review applicants with similar names to the Applicant it could not be inferred that his name was not sufficient for the Tribunal officer to identify him or to infer that such conversation did not take place. It was submitted that an inference could be drawn that simply by giving his name the Applicant was identified and his details were taken.
It was also pointed out that in cross-examination Ms Osmo had conceded that it was possible that a Tribunal officer might not have followed the procedure and that the guideline was set up to minimise the risk of error occurring.
The Applicant submitted that it was relevant that the Case Notes record in the Annexure to Ms Osmo's affidavit did not contain a record of the Tribunal telephone call said to have been made to the Applicant on 8 May 2012 that was recorded on the “Task Details” form in the Court Book. On this basis it was contended that it appeared that the Tribunal in this case had not recorded all telephone calls made by the Tribunal to the Applicant and suggested that this was consistent with Ms Osmo's acceptance that it was possible that a call notifying the Tribunal of a change of address might not be recorded.
The Applicant acknowledged that there was a general Tribunal practice in relation to how oral notifications of change of address were dealt with by the Tribunal, but pointed out that in January 2012 there was no written guideline in force. It was contended that the “Case Notes” document in the Court Book showed a failure to report calls and was evidence that an imperfect record keeping process occurred in relation to the Applicant's file.
The Applicant submitted that the Court could be satisfied that in this case that his change of address was notified to the Tribunal in January 2012 and that, for whatever reason, it was not recorded on the Tribunal system.
Insofar as the Applicant was cross-examined as to why he had asked his friend to make inquiries about the progress of his review application in November 2013, it was submitted that the Applicant had provided an answer and that this action did not mean that he had not made the telephone call to the Tribunal in January 2012. Rather, it was said that his evidence was that he wanted someone else to see if he could find anything out. His friend had checked the internet and had found that the decision in relation to the Applicant's case had been made on 17 May 2012 and had advised him of this. It was submitted that there was no obligation on the Applicant to call the Tribunal in these circumstances and that his action in November 2013 did not have any bearing on the truth of what he said had occurred in January 2012. being after the event and relating to a different issue.
The First Respondent pointed out that if the Court was not satisfied that the conversation the Applicant claimed he had with the Tribunal in January 2012 had occurred, then it was not in dispute that the hearing invitation was properly dispatched to the last address notified by the Applicant for the purposes of the review. On that basis the First Respondent submitted that the Tribunal had complied with its obligations to the Applicant in relation to the provision of notice of the invitation to the Tribunal hearing and that pursuant to s.362B(1) of the Act it was permitted to proceed in the Applicant's absence to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.
It was submitted that it was not unreasonable in circumstances where the Applicant did not attend the hearing for the Tribunal to proceed to make a decision in accordance with s.362B of the Act. It was pointed out that there was evidence of unsuccessful attempts by the Tribunal to contact the Applicant by telephone.
In relation to the events of January 2012 the First Respondent pointed out that while Ms Osmo accepted that the reason the written guideline was prepared was so that there would be a safeguard in place, she had also said that the document formalised procedures that were already in place in the Tribunal. It was submitted that as no challenge had been made to this aspect of her evidence, the Court must accept that the procedures in the document reflected those already in place in the Tribunal at the time of the alleged telephone call of January 2012.
It was submitted that insofar as the Applicant asserted that there must have been an error in the recording of the telephone call or that someone in the Tribunal neglected to record it, the better explanation for the absence of a record of such a telephone call was that it was not made at all. This was said to be an equally compelling explanation that should be accepted by the Court on the basis that the Applicant had not established, on the balance of probabilities, that the telephone call was made.
In this respect the First Respondent submitted that the Applicant's account of what occurred in the claimed telephone conversation of January 2012 was implausible. It was pointed out that his evidence was that the conversation occurred almost exactly in the terms deposed to in paragraphs 4 and 5 of his affidavit and hence that it was a very short conversation in which, according to his account, none of the steps set out in the procedures in place in the Tribunal at that time to verify the identity of the caller had occurred.
It was pointed out that in cross-examination the Applicant was given the opportunity to expand on his account of the conversation, but that he had confirmed no more than was attested to in his affidavit. He had agreed that nothing else was said, that he had asked no further questions and that he did not have any documents in front of him at the time he made the call.
On the Applicant's account the Tribunal officer took no steps to ask him to confirm his date of birth, last address, the case or file number, the type of decision under review, the date the review application was lodged, or whether the new address was the Applicant’s residential or business address or address for service.
It was submitted that it was implausible that the Applicant, having no documents in front of him, would have had a conversation in which he was asked a very limited number of questions about his matter that were not in accordance with the stated policy and that all he would have been required to provide was his name.
Counsel for the First Respondent also pointed to the fact that the Applicant had been asked why he waited over a month between the date of moving to Carlton in early December 2011 before making a telephone call to notify the Tribunal in “mid-January 2012”. He was also asked about whether he was concerned that documents have been sent to him in the interim. However his explanation was simply that when he first thought of it, he made the appropriate phone call and on his evidence he made no inquiry as to whether any documents had been sent to the Bexley address by the Tribunal since December 2011.
Insofar as the Applicant suggested that he acted in a diligent way, it was submitted that a diligent person who was keen to follow the progress of his review application would not have proceeded in this manner. It was contended that a diligent person who would had had such contact with the Tribunal in January 2012 would not have waited until November 2013 to make any inquiries about the status of his matter.
In addition, it was said to be relevant to have regard to the nature of the inquiry that the Applicant ultimately did make in November 2013 when he asked a friend to look into this matter. It was submitted that he had not provided a satisfactory explanation for his failure to take steps in the interim to contact the Tribunal to find out what was going on.
The First Respondent submitted that it was necessary to have regard to the totality of the Applicant’s conduct in considering his claim that he claimed had the conversation of January 2012 with the Tribunal and that the delay in action after the alleged conversation of January 2012 was inconsistent with what would have been expected from someone who was keen to ensure that his matter was progressing.
It was also pointed out that when the Applicant did approach the Tribunal directly in November 2013, on his account there was only a short conversation with the Tribunal in which he did not express any concern about the fact that he had already given the Tribunal updated address details or question why he was being asked for his “new address”.
It was conceded that in isolation the First Respondent would not suggest that the events of November 2013 would decide the matter in the Minister’s favour, but submitted that as the Applicant’s credibility was in issue, his evidence in this respect had to be taken into account in considering the implausibility of his claim that the events of January 2012 occurred as alleged. It was submitted that one would expect that a person who had previously given an updated address to the Tribunal would express some concern about being asked for it again at a later stage when it was clear that the Tribunal decision had been made in the intervening period.
Consideration
What is in issue in this case is whether the Tribunal erred in determining pursuant to s.362B of the Act to make a decision on the review without taking any further action to allow or enable Mr Nepal to appear before it in circumstances where he had not appeared at the Tribunal hearing. A prerequisite to the operation of s.362B is that the applicant has been invited under s.360 of the Act to appear before the Tribunal.
Such an invitation is to be given to the Applicant by one of the methods provided for in s.379A of the Act (see s.360A). In this case s.379A(4) is in issue. The Applicant did not appoint an authorised recipient in connection with his review application. In his student visa application he provided a residential street address in Bexley. He provided the same address as his address for correspondence. The delegate’s decision was sent to the Applicant at that Bexley address. In his application for review lodged with the Migration Review Tribunal on 14 July 2010 the Applicant again provided the Bexley address as his residential address. He indicated that he did not wish to nominate a representative to act on his behalf. In “Section F” of the review application form he asked the Tribunal to send all correspondence in connection with the review to him at the Bexley address.
As set out above, the Tribunal sent its acknowledgement of the application and information about Tribunal procedures by mail to the Applicant at the Bexley address. It posted the hearing invitation dated 16 April 2012 to the Applicant at the Bexley address.
The Applicant did not reply to the hearing invitation which was returned to the sender as unclaimed after the Tribunal had made its decision.
The hearing was scheduled for 10 May 2014. Included in the Court Book is a Tribunal document headed “No Reply – Checklist” which is described as a form to be completed by a case officer after the deadline has passed with no response to an invitation to a hearing. It records that on 2 May 2012 no reply had been received to the invitation to hearing. The box “yes” is ticked beside the question “was the invitation sent to the correct address of the applicant or to the correct address of the authorised recipient (check CaseMate and files for change of address notification)”.
It can be inferred that the document headed “Task Details 7494530” is a document from the Tribunal file. It records that the Tribunal member who heard this matter assigned to a Tribunal officer the task of telephoning the Applicant to inquire whether he would be attending the hearing. On 8 May 2012 a Tribunal officer unsuccessfully attempted to contact the Applicant on the mobile phone number he had provided on his review application form. The performance of this task is recorded on this form in the “Note” that describes the officer’s unsuccessful attempt to contact the Applicant (as set out at [18] above).
In addition, as the Tribunal recorded in its reasons for decision, and as is recorded on the “Case Notes” Tribunal file document (described at [20] – [21] above), a Tribunal officer also twice unsuccessfully tried to contact the Applicant by mobile telephone on 9 May 2012. It was recorded that there was no facility to leave a message for the Applicant on the telephone number he had provided. There is no evidence or suggestion that the Applicant had given the Tribunal another telephone number. The Applicant did not attend the scheduled hearing on 10 May 2012.
As indicated, the Tribunal proceeded pursuant to s.362B of the Act to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.
In the present case no issue is taken in relation to the method or time of dispatch of the hearing initiation. Rather, the Applicant’s contention is that the Tribunal did not comply with the requirements of s.379A(4) because it did not send the hearing invitation to any one of the addresses provided for in that sub-section. In particular it is submitted that the Tribunal did not send the hearing invitation to the last residential address provided to the Tribunal by the Applicant in connection with the review.
The Tribunal sent the invitation to the address provided in the review application. The Applicant bears the onus of establishing on the balance of probabilities that he notified the Tribunal of a change of address. He claimed he did so in a telephone conversation in mid-January 2012. The Applicant’s account of the claimed telephone conversation with the Sydney Registry of the MART is that it was very short. On his account, apart from asking for his name, the Tribunal officer did not take any verification steps whether of the kind later specified in the Tribunal standard procedures document or otherwise. Nor did the Tribunal ask (or the Applicant offer) details of his previous address. Contrary to the advice to the Applicant in the letter acknowledging receipt of his review application, on his account he did not tell the Tribunal member his case or file number. In cross-examination the Applicant confirmed the conversation was as he had attested. He agreed that he did not offer any information to the Tribunal other than that put in his affidavit, that he did not have any documents in front of him when he made the telephone call, that he did not ask any other questions of the Tribunal and that he was not asked any questions by the Tribunal officer other than those stated in his affidavit. The Applicant also agreed that he did not receive any follow-up correspondence from the Tribunal confirming that his address had changed. Nor did he make any subsequent inquiries of the Tribunal (prior to 11 November 2013).
In contrast, Ms Osmo’s evidence, which I accept, is that the Tribunal had a standard procedure for handling telephone calls from applicants concerning change of address that was in effect in January 2012, albeit there was no document recording this procedure in existence at that time. I accept that the document that was produced in December 2012 reflected the procedures already in place in January 2012.
This procedure, relevantly, was that where a review applicant telephoned the Tribunal to advise of a change of address, the officer should verify the identity of the caller by taking steps to ask for specific listed details. The officer was also to ask whether the new address was a residential address and request the Applicant to provide written confirmation of the change of address. To facilitate receipt of written confirmation the officer was to request the review applicant’s email address if available and was to email details of the new address to the review applicant asking him or her to confirm the new address by return email. (I note that according to the information he provided in his review application the Applicant had an email address at the time of his application). The procedure was that the officer should “case note” the conversation, should immediately update the address “in CaseMate” and should attach a change of address tag to the case note which should be placed on file. If written confirmation was not received from an Applicant within two working days of the telephone call there was a further procedure specified which involved a letter being sent by the Tribunal both to the new address notified and to the old address.
It is also possible that a Tribunal officer could make an error in recording details or neglect to record details of a telephone call or a change of address. However apart from the absence of any record in the Applicant’s Tribunal file of any notification of change address in January 2012 or anything to suggest that the Applicant’s address was updated, there is no evidence of any record of contact with the Applicant in January 2012. I also accept that, as Ms Osmo conceded, Tribunal officers may not always follow Tribunal procedures in relation to a telephone notification of a change of address.
However, in this case the absence of any Tribunal record of a change of address is to be seen in light of the fact that the Applicant’s account of what was allegedly said in a telephone call of January 2012 is implausible. On his account the only identifying information he gave the Tribunal was his name. He did not provide his Tribunal case or file number or any other details. He did not even explain that he was a review application. He did not provide his previous address. According to the Applicant no other details were requested. It is notable that the Applicant, on his account, was not asked to provide written confirmation of his change of address. There is no evidence of any verification or confirmation procedures having been required or carried out. According to the Applicant, the Tribunal did not verify his identify, did not ask whether the new address was a residential address, did not ask for written confirmation and did not confirm the new address by email or by letter. It is, of course, possible that a Tribunal officer may not always follow Tribunal procedures, or may not follow all the procedures. However, even if it was possible to identify the Applicant from his name alone, in this case there is no evidence of any follow up procedures in relation to an oral notification of change of address having occurred.
Insofar as the Applicant relied on what was said to be an incomplete “Case Note” record, the Tribunal Registry Manager, Ms Osmo, gave evidence that the electronic case management system called “CaseMate” was used to record the “main steps” in progressing a review application from lodgement to finalisation and that a function of “CaseMate” was to record file notes (case notes) in relation to applications made to the Tribunal. However there was no suggestion in her evidence that every step taken in relation to a Tribunal review would appear in the “Case Notes” part of the file. I am not satisfied that an inference that a Tribunal officer did not record a change of address that was notified by the Applicant or that an officer recorded it incorrectly should be drawn from the fact that the telephone call by a Tribunal officer of 8 May 2012 was not recorded as a “Case Note”. The call of 8 May 2012 was made by the Tribunal officer in response to a Tribunal instruction that the officer carry out a particular “task”. It was recorded in the Tribunal records on the Task Details form. Moreover, what is in issue in this case is the Tribunal procedure in recording incoming calls, in particular calls in which an applicant orally notifies the Tribunal of a change of address.
The brevity of the claimed telephone conversation, the difference between the Applicant’s account of the telephone conversation and the Tribunal procedures then in place, the lack of any identification by him of his matter beyond his name, the absence of reference to his file number or even his old residential address and the absence of any request for written confirmation (let alone any confirmatory email or mail follow up by the Tribunal), as well as the absence of any evidence of any record of a notification of change of address on the Tribunal file are factors that are of relevance. In addition, notwithstanding that the Applicant acknowledged that he moved from Bexley in early December 2011, he did not make the claimed telephone call until mid-January 2012 and he then took no steps to inquire as to whether the Tribunal had communicated with him in any way in the period between early December 2011 and mid-January 2012. His evidence in relation to the claimed telephone conversation in January 2012 lacks plausibility.
When the Applicant did eventually take action in November 2013, rather than contacting the Tribunal direct he asked a friend if he could find out anything and the friend checked on the internet. I draw no inference from this aspect of the applicant’s activities or from his failure to contact the Tribunal prior to November 2013 about the progress of his review application (given the Tribunal’s advice in the acknowledgment of the application for review). I accept that on 11 November 2013 the Applicant went to the Tribunal Registry after seeing his solicitor. I also accept that he was given a form to fill out and received a copy of the Tribunal’s decision and notification letter.
However it is not plausible that “out of the blue” and for no reason whatsoever, on 11 November 2013 the Tribunal officer asked the Applicant “what is your new address?” Clearly if such a question was asked, there would, contrary to the Applicant’s evidence, have been something to prompt the question. Moreover, on the Applicant’s evidence, he did not ask the Tribunal about this or indicate that he had previously advised the Tribunal of a new address (before it made the decision of May 2012). These concerns about the Applicant’s account of what did occur on 11 November 2013 are relevant to the credibility of his claims about a telephone conversation of January 2012.
On balance, having regard to all of the circumstances, on the information before the Court the Applicant has not satisfied me that he notified the Tribunal of his new address in January 2012 as he claimed.
Hence the Tribunal did not fall into error in sending the Tribunal hearing invitation to the Bexley address as the last residential address (and for that matter the last address for service) provided to the Tribunal by the Applicant in connection with the review.
It is not in dispute that the Tribunal otherwise complied with its obligations in relation to the invitation to the hearing. In these circumstances the Tribunal was permitted to proceed in the Applicant’s absence pursuant to s.362B of the Act. There is nothing in the circumstances of the case to suggest that it failed to act reasonably in so doing.
As the ground relied on by the Applicant has not been established the application must be dismissed.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 26 March 2015
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