Nidanakavi v Minister for Immigration & Anor

[2017] FCCA 873

FEDERAL CIRCUIT COURT OF AUSTRALIA

NIDANAKAVI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 873

Catchwords:
MIGRATION – Review of decision of the Administrative Appeals Tribunal – where Applicant did not participate in Tribunal proceedings – s.362B of the Migration Act 1958 (Cth) – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A(5), 362B(1A)(b), 362B(1E), 362C(4)

Migration Amendment (Protection and Other Measures) Act 2015 (Cth)
Migration Regulations 1994 (Cth) cl.572.223

Applicant: UDAY KUMAR NIDANAKAVI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 550 of 2016

Judgment of: Judge Hartnett

Hearing date: 14 March 2017

Delivered at: Melbourne

Delivered on: 14 March 2017

REPRESENTATION

The Applicant: In Person

Solicitor for the First Respondent: Ms Kowalewska

Solicitors for the First Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application for judicial review filed by the Applicant on 21 March 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 550 of 2016

UDAY KUMAR NIDANAKAVI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 2 February 2016. The Tribunal dismissed the application before it pursuant to s.362B(1A)(b) of the Migration Act 1958 (Cth) (‘the Act’). The basis for that dismissal was that the review Applicant was invited, under s.360 of the Act, to appear before the Tribunal on 2 February 2016 but did not appear at the scheduled time and place. As no satisfactory reason for the nonappearance had been given, the Tribunal decided to dismiss the application without further consideration of that application or the information before the Tribunal. In dismissing the application, the Tribunal affirmed the decision made by a delegate of the Minister for Immigration and Border Protection on 19 September 2014 not to grant to the Applicant a Student (temporary) (Class TU) (subclass 572) visa (‘the visa’).

2. By letter of 3 February 2016 the Tribunal notified the Applicant of the dismissal of his application for review.  The Tribunal noted in that correspondence, that on 8 January 2016, the Tribunal had sent a letter to the Applicant inviting him to attend a hearing on 2 February 2016 to give evidence and present arguments relating to the issues arising in his case.  The Tribunal also provided the Applicant with a further opportunity to be heard, including in that correspondence the following:-

   “You may apply to us in writing for re-instatement of the application by 17 February 2016.”

3. On 25 February 2016, having received no communication from the Applicant, the Tribunal affirmed the decision under review and notified the Applicant on 26 February 2016 as follows:-

   “I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Student (temporary) (Class TU) visa. 

   On 2 February 2016 we dismissed your application for review.

   We now confirm the decision to dismiss your application for review.

   A copy of our statement of decision and reasons is attached along with an information sheet about dismissal of applications.  A copy of the statement of decisions and reasons has also been given to the Department of Immigration and Border Protection. 

   The review has now been completed …”

4. The Statement of Decision and Reasons (‘the Decision Record’) of 25 February 2016 noted in paragraphs 2, 3, 4 and 5 therein:-

   “(2) On 2 February 2016 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review Applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

   (3) The review Applicant was notified of the dismissal decision and given a copy of the written statement setting out the decision and the reasons for the decision in accordance with section 362C(5).  The review Applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision. 

   (4) As the review Applicant did not apply for re-instatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. 

   DECISION

   (5) The Tribunal affirms the decision under review.” 

Background

1. The Applicant is a citizen of India who arrived in Australia on a Student (subclass 573) visa on 5 November 2013 and commenced the English Language Intensive Course for Overseas Students (‘ELICOS’).  He repeated this course, but his enrolment in the second course was cancelled on 13 May 2014 for unsatisfactory attendance.  On 1 April 2014 his enrolment in his principal course of study, a master of information systems, was cancelled for non-commencement of studies.

2. On 21 July 2014 the Applicant applied for a Student (temporary) (Class TU) (subclass 572) visa to study a diploma of hospitality, which was the subject of the Tribunal’s review.

3. The delegate was not satisfied that the Applicant was a “genuine applicant for entry and stay as a student” as required in cl.572.223 in Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’), at the date of the decision, because he was not satisfied that the Applicant met the “genuine temporary entrant criterion” having regard to the matters set out in sub-cl.572.223(1) and the factors in Ministerial Direction 53.

4. The Tribunal affirmed the delegate’s decision. The Applicant applied to the Court for judicial review of that decision.  On 22 July 2015 the Court made orders by consent between the parties remitting the matter to the Tribunal to be determined according to law. 

5. In his application to the Tribunal, differently constituted, the Applicant appointed Ms Mei Xiao Lin of Ezy Visa as his authorised recipient.  On 5 January 2016, the Tribunal wrote to the Applicant advising that it had considered the material before it but was unable to make a favourable decision on the information alone.  The Applicant was invited (through his authorised representative) to appear before the Tribunal to give evidence and present arguments at a hearing schedule for 2 February 2016 at 1.00pm.  The Applicant was advised that if he did not attend the hearing, the Tribunal may make a decision on his case without further notice.

6. On 8 January 2016 the Tribunal wrote to the Applicant to advise that due to the interpreter unavailability the hearing was rescheduled to 2 February 16 at 3.00pm.  That correspondence was sent by email to the Applicant’s representative. 

7. On 25 January 2016 and 1 February 2016 the Tribunal sent SMS reminders of the hearing to the Applicant’s phone number provided in the application. On 1 February 2016 the Applicant’s authorised representative advised the Tribunal by email that:-

   a)the Applicant had advised he would not be attending the hearing scheduled for 2 February 2016 at 3.00pm;

   b)the Applicant’s authorised representative had not been instructed to lodge information with the Tribunal or to attend the hearing; and

   c)in view of the above the Applicant’s authorised representative would not attend the hearing. 

The Tribunal Decision

1. The Tribunal’s non-appearance decision was made pursuant to s.362B(1A)(b) of the Act, a provision introduced with effect from 18 April 2015 by item 11 of Part 1 to Schedule 4 of the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) and applicable to decisions made by the Tribunal after 18 April 2015.

Consideration

1. The application for judicial review contains five grounds, none of which relate to the Tribunal’s non-appearance decision.  The Applicant was given an opportunity to file and serve any amended application and written submissions by orders made by the Court on 7 February 2017.  The Applicant did not take such opportunity.  He filed and served no amended application or written submissions.  The Applicant was given an opportunity this day to make oral submissions.  He made none.  He did, however, request an adjournment of the proceedings so that he could obtain legal advice. 

2. That application for an adjournment was not acceded to by the Court.  The Court noted that the Applicant had filed his application on 31 March 2016, with a period of almost 12 months elapsing since that time. Further, the First Respondent tendered in evidence correspondence of 29 March 2016 wherein it is clear the First Respondent put the Applicant on notice that the First Respondent would not agree to delay the proceedings if the Applicant failed to act promptly in the matter, that action involving him seeking legal assistance with his application.  The First Respondent provided contact details for Victoria Legal Aid and the Law Institute of Victoria to the Applicant. The Applicant had some 50 weeks thereafter to secure legal representation. 

3. In the absence of any re-instatement application made by the Applicant to the Tribunal, the Tribunal had no power to vary or revoke a nonappearance decision as set out in s.362C(4) of the Act, which is relevantly as follows:-

   “MIGRATION ACT 1958 - SECT 362C

   Failure to appear-Tribunal's decisions, written statements and notifying the applicant

   …

   (4)  The Tribunal has no power to vary or revoke a non-appearance decision after the day and time the written statement is made.

   Note: However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 362B(1D)).”

4. There was thus no other course open to the Tribunal other than to affirm its non-appearance decision pursuant to section 362B(1E) of the Act, which is as follows. 

   “MIGRATION ACT 1958 - SECT 362B

   Failure of applicant to appear before Tribunal

   …

   (1E)  If the applicant fails to apply for reinstatement within the 14 day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.

   Note:  Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.”

5. The Tribunal invited the Applicant to appear before it by way of a notice that complied with the necessary statutory requirements as set out in the Act. The hearing invitation complied with the requirement of s.360A(5) of the Act. The Tribunal was at liberty to proceed in these circumstances to dismiss the application without any further consideration of the application or information before the Tribunal pursuant to s.362B of the Act.

6. The application is without merit. It will be dismissed and costs shall follow.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 2 May 2017