Patel v Minister for Immigration

[2020] FCCA 1104

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1104

Catchwords:
MIGRATION – Student (Temporary) (Class TU) visas – decision of the Administrative Appeals Tribunal – where application before Tribunal dismissed for non-appearance – where the Applicants failed to apply for reinstatement – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360A, 362B, 362C, 368, 379A, 379C, 379G, 476

Migration Regulations 1994 (Cth), reg.4.21, cl.572.223 of sch.2

Cases cited:

AYT16 v Minister for Immigration & Border Protection [2017] FCA 252

Minister for Immigration & Border Protection v SZVFW [2018] HCA 30

Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1

First Applicant: KALPANA PRAKASHKUMAR PATEL

Second Applicant: PRAKASHKUMAR KESHAVLAL PATEL

First Respondent: MINISTER FOR IMMIGRATION , CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1927 of 2016

Judgment of: Judge C. E. Kirton QC

Hearing date: 11 February 2019

Date of Last Submission: 11 February 2019

Delivered at: Melbourne

Delivered on: 13 May 2020

REPRESENTATION

Applicants: The First Applicant in person and on behalf of the Second Applicant with the assistance of an interpreter

Counsel for the First Respondent: Mr McDermott

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The Applicants have leave to amend their judicial review application, dated 8 September 2016 to request an extension of time in which to review the decision of the Administrative Appeal Tribunal dated 26 July 2016.

3. The application for an extension of time be granted.

4. The Applicants’ application for judicial review be dismissed.

5. The Applicants pay the First Respondent’s costs fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1927 of 2016

KALPANA PRAKASHKUMAR PATEL

First Applicant

PRAKASHKUMAR  KESHAVLAL PATEL

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed in this Court on 8 September 2016 (Application), the Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 11 August 2016.

2. The Applicants had applied to the Tribunal for review of a decision of the delegate (Delegate) of the First Respondent (Minister) to refuse to grant the Applicants’ Student (Temporary) (Class TU) visas (Visa).

3. The Tribunal’s decision, dated 11 August 2016 (Confirmation Decision) confirmed an earlier decision that the Tribunal had made on 26 July 2016 (Dismissal Decision), to dismiss the Applicants’ application for non-appearance pursuant to s.362B(1A)(b) of the Migration Act 1958 (Cth) (Act).

4. The Applicants’ application for judicial review specifically identifies the Confirmation Decision as the decision under review in this Court. However, the Minister noted that it was open for the Applicants to also seek review of the Dismissal Decision. However, such would require an extension of time.

5. At the hearing, Counsel for the Minister indicated that the Minister did not oppose the Applicants amending the Application to seek an extension of time in which to review the Dismissal Decision and also did not oppose the Court granting the extension of time. The First Applicant requested the Court grant leave for the Applicants to amend the Application so as to indicate that the Applicants also sought review of the Dismissal Decision and that they required an extension of time to do so.

6. Notwithstanding that the Minister did not oppose the extension of time, at the time of the hearing the Court was not minded to grant it without further consideration. Having reviewed the materials, and noting that the Minister does not oppose the extension of time being granted, the Court considers that, to the extent necessary, it is in the interests of the administration of justice to extend time to seek review of the Dismissal Decision. This would allow the Court to properly review the Tribunal’s determination of the matter as a whole. Orders will be made to that effect.

Background

1. The factual background to this matter is set out at [10]-[19] of the Minister’s written submissions, dated 26 April 2017. With some minor alteration, those submissions provide as follows.

2. The Applicants are citizens of India. They are wife and husband respectively. The First Applicant applied for the Visa on 5 March 2015. The Second Applicant was listed as a member of the family unit[1].

   [1] Court Book (CB) 1-10.

3. Following a request for further information from the Delegate[2], the Applicants provided a number of supporting documents[3].

   [2][2] CB 40-52.

   [3] CB 55-104.

4. The Delegate refused the Visa on 29 June 2015 on the basis that the First Applicant was not a genuine temporary entrant and therefore she did not meet cl.572.223 of the Migration Regulations 1994 (Cth) (Delegate’s Decision)[4].

   [4] CB 120-131.

5. On 17 July 2015, the Applicants applied to the Tribunal for a review of the Delegate’s Decision. The Applicants were assisted by a migration agent[5].

   [5] CB 132-134

6. On 23 July 2015, the Tribunal invited the Applicants to attend a hearing[6]. A response to that invitation was sent to the Tribunal to the effect that the Applicants would attend the hearing, though their migration agent would not[7]. Submissions were filed by the Applicants’ migration agent on 18 August 2015 and on 20 August 2015[8].

   [6] CB 144-148.

   [7] CB 149-151.

   [8] CB 152-182.

7. On 20 August 2015, the Applicants appeared before the Tribunal[9].

   [9] CB 183-185.

8. On 23 June 2016, the Tribunal invited the Applicants to attend a further hearing on 26 July 2016. The invitation was sent by email to the Applicants’ migration agent[10]. On 25 July 2016, a hearing reminder was sent by SMS to the First Applicant’s mobile phone number[11].

   [10] CB 205-208.

   [11] CB 223.

9. The Applicants failed to attend the Tribunal hearing and on 26 July 2016 the Tribunal dismissed the application under s.362B(1A)(b) of the Act[12]. The Applicants were notified of Dismissal Decision by email sent to their migration agent on 27 July 2016[13].

   [12] CB 215.

   [13] CB 212-217.

10. On 11 August 2016, the Tribunal made the Confirmation Decision[14].

    [14] CB 221-222.

Tribunal’s Decisions

1. The Dismissal Decision states as follows:

   The review applicants were invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 26 July 2016, but did not appear at the scheduled time and place.

   This was the second hearing the applicants having previously attended a hearing in August 2015. As a decision was not made after that first hearing, they were invited to a further hearing by an invitation sent to their registered migration agent who was also their authorised recipient.

   There was no response to the hearing invitation and they did not attend the hearing.

   As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.[15]

   [15] CB 215

2. The Confirmation Decision states as follows:

   1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 29 June 2015 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 572 visas under the Migration Act 1958 (the Act).

   2. On 27 July 2016 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

   3. The review applicants were notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicants were 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 applicants did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decisions under review are taken to be affirmed.

   DECISION

   5. The Tribunal confirms the decision to dismiss the application.[16]

   [16] CB 222.

Judicial Review Application

1. The Applicants were unrepresented before this Court. The Application contains four grounds of review:

   1. The Tribunal failed to comply with section 368 of the Migration Act 1958 (the Act) in that it failed to record its decision.

   Particulars

   a. The Applicants attended before the Tribunal on 22 August 2015 and gave evidence.

   b. The Tribunal failed to set out in its decision dated 11 August 2016:

   (i)     the findings of facts and the evidence that was provided by the applicants on 22 August 2016

   (ii)    the evidence or any other material on which the findings of fact were based.

   c. The Tribunal did not conduct a hearing of the matter as contemplated under the Act

   2. The Tribunal failed to consider that the delegate engaged in conduct which amounted to jurisdictional error in that its decision that the applicant was not a genuine temporary entrant was unreasonable or illogical.

   Particulars

   (a) The Delegate unreasonably or illogically applying the case of Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 :

   (i)     concluded that the applicants proposed study is of great benefit to the applicant than the qualifications the applicant already hold although placing weight on the value of the completed courses;

   (ii)    concluded that the applicant's proposed study is likely to significantly increase career prospects or remuneration upon return to her home country to justify the expense incurred;

   (iii)   failed to consider the applicant's circumstances in her home country; and

   (iv)    failed to consider the value of the proposed study to the applicant's future.

   3. That the Tribunal erred in not considering that the delegate misconstrued the requirements of clause 572.223 (1) (a) of

   Particulars

   (a) the delegate misconstrued clause 572.223 (1) (a) in finding that the applicants were not a genuine temporary entrant (GTE)

   (b) That although the delegate accept that the Applicant did complete various courses and had completed his courses without breaching conditions the delegate found the appellant does not meet cl.572.223(1)(a).

   4. The Tribunal engaged in conduct which amounted to jurisdictional error that it failed to consider; on balance, all relevant factors in assessing the applicant as a genuine temporary entrant.

   Particulars

   (a) The Tribunal failed and or refused to consider the application against all relevant criterions, including the factors specified in Ministerial Direction No 53 - Assessing the genuine temporary entrant criterion for Student visa applications.

   (b) The Tribunal failed to consider that the issue of progression from a lower level to a higher level of study is irrelevant because all it is needed to shown was that the courses that were undertaken were for the benefit of the applicant's future life in India.

   (Errors in original)

2. The First Applicant affirmed an affidavit, dated 8 September 2016 in which she relevantly stated:

   […]

   5. The matter before the AAT came up for hearing on 22 August 2015.

   6. My husband (second applicant) and I gave evidence before the Tribunal member on 22 August 2015 (the hearing).

   7. I believe the hearing lasted for 45 minutes.

   8. I made a request to obtain a recording of the hearing after the hearing was concluded but has yet to receive the same and will be chasing up the AAT to provide me with a copy.

   9. When I obtain a copy of the audio recordings from the Tribunal, I will be seeking leave to amend the application to include new grounds of review in the event it is not pleaded in the application.

   10.I may engage Counsel to argue the review.

3. No further documents were filed by the Applicants despite an opportunity being provided for them to do so.

4. When the matter came before the Court for hearing, the First Applicant appeared on her own behalf with the assistance of an interpreter. When asked if she had any submissions she wished to make to the Court the First Applicant indicated she wished for the Dismissal Decision to be considered. The First Applicant had nothing further to add.

Consideration

1. The grounds of review in the Applicants’ judicial review application are misconceived. They fail to appreciate the basis on which the Tribunal made its decision. Specifically, the Tribunal dismissed the application pursuant to s.362B. Nonetheless, the Court will briefly address the Applicants’ grounds of review and will also consider whether the Tribunal appropriately exercised the power under s.362B.

Ground 1

1. First and foremost, a breach of s.368 of the Act is not itself jurisdictional error[17]. On that basis, ground one is not a ground of review and does not identify any error.

   [17] Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [70].

2. Second, there was no breach of s.368 of the Act. The Confirmation Decision met the requirements of s.368 of the Act. Specifically:

   a)It set out that the decision of the Tribunal on the review was to confirm the Dismissal Decision[18].

   b)It set out that the reason for the decision, namely that the Applicants did not apply for reinstatement[19].       

   c)It sets out the “findings” on any material questions of fact and the evidence upon which those findings were based. Specifically, that the Applicants did not appear before the Tribunal on 26 July 2016, that the Applicants were notified of the Dismissal Decision and that they were advised that they had to apply for reinstatement within 14 days[20].

   d)As the decision was made under s.362B(1E), the Tribunal indicated at [4] of the Confirmation Decision, that the decisions under review were taken to be affirmed[21].

   e)The day and time the Confirmation Decision was made is recorded[22].

   [18] Act, s.368(1)(a).

   [19] Act, s.368(1)(b).

   [20] Act, s.368(1)(c)-(d).

   [21] Act, s.368(1)(e).

   [22] Act, s.368(1)(f).

3. As for the Dismissal Decision, that decision complied with the requirements of s.362C(5) of the Act as it set out that the decision was to dismiss the application under s.362B(1A)(b) and that the reason for that decision was that the Applicants had failed to appear before the Tribunal, they had been validly notified and there was no explanation for their non-appearance[23].

   [23] Act, s.362C(5).

4. Third, to the extent neither the Confirmation Decision nor the Dismissal Decision made reference to the evidence given on 20 August 2015, there was no need for the Tribunal to do so in circumstances where the application was dismissed for non-appearance. The evidence on 20 August 2015 was irrelevant to the Tribunal’s exercise of power under s.362B.

Ground 2 and 3

1. Ground 2 and Ground 3 misunderstands the Tribunal’s role. The Tribunal does not review the Delegate’s Decision for jurisdictional error. Nor does the Tribunal review the Delegate’s Decision for error generally. The Tribunal conducts a review afresh. Any jurisdictional error in the Delegate’s Decision is cured by the Tribunal’s decision.

2. Further, the Court has no jurisdiction in relation to the Delegate’s Decision (for illogicality or error of law)[24]. The Court has jurisdiction to review the Tribunal’s decisions and, relevantly, the Tribunal’s decisions here dismissed the Application without any further consideration pursuant to s.362B. That is, the Tribunal dismissed the application without any consideration of the actual merits of the application as the Applicants had failed to appear.

   [24] Act, s.476(2) and (4).

3. Ground 2 and Ground 3 are dismissed.

Grounds 4

1. Ground 4 alleges that the Tribunal failed to consider relevant factors “in assessing the applicant as a genuine temporary entrant.”

2. The Tribunal never actually assessed whether the First Applicant met the genuine temporary entrant criteria. It also did not address Direction 53. The fact is, the Tribunal was not required to do so in circumstances where it was acting under s.362B(1A)(b) of the Act and s.362B(1E) of the Act. The relevant factors to those provisions were considered and that is all that was necessary.

3. Ground 4 is dismissed.

The Dismissal Decision

1. In order to enliven the power to make the Dismissal Decision, the Tribunal must have validly invited the Applicants to the hearing and the Applicants must have failed to attend that hearing[25].

   [25] Act, s.362B(1).

2. The invitation to attend the hearing must comply with s.360A of the Act. Here, the invitation to attend the hearing before the Tribunal on 26 July 2016:

   a)Clearly stated the day, time and place the hearing was to take place in accordance with s.360A(1) of the Act.

   b)Was sent to the Applicants’ migration agent by email (a method prescribed by s.379A(5)(b) of the Act) as required by s.360A(2). It is noted that by virtue of s.379G(2) the Applicants were taken to have been given the invitation when it was given to their migration agent.

   c)Was sent over one month prior to the hearing date. This exceeds the minimum notice period prescribed by reg.4.21(4) of the Regulations and thereby satisfied s.360A(4) of the Act.

   d)Contained a clear statement of the effect of s.362B, namely what would occur if the Applicants did not attend the hearing, in accordance with s.360A(5). That statement read:

   If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.[26]

   [26] CB 207.

3. The Applicants were validly invited to the Tribunal hearing on 26 July 2016. The evidence shows that the Applicants did not attend the hearing on 26 July 2016[27].

   [27] CB 209-211.

4. The discretion to dismiss the application pursuant to s.362B(1A)(b) was enlivened and the Tribunal was permitted to dismiss the application without taking any further action. While the power was enlivened, as it is discretionary, the Court must nevertheless be satisfied it was exercised reasonably. That is, the Court must be satisfied that it was reasonable for the Tribunal to make the Dismissal Decision in all of the circumstances.

5. The Minister spent considerable time at the hearing taking the Court through the High Court’s decision in Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 (SZVFW). SZVFW considered the reasonableness of a Tribunal exercising the analogous provision to s.362B in pt.7 of the Act. It was stated:

   That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.[28]

   […]

   Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence.  That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases [...][29]

   [28] SZVFW at [79].

   [29] SZVFW at [84].

1. The circumstances in this case are not entirely orthodox. It appears that at the end of the hearing on 20 August 2015, the Applicants were of the view that a decision would be made. There was nothing to suggest a further hearing was necessary. It is also the case that the Applicant’s migration agent called on two occasions after the August 2015 hearing requesting an update about a decision. There was nothing to indicate a further hearing was necessary or would be convened. The delay between the hearings is not insignificant and it is not entirely apparent why a second hearing was necessary.

2. Nonetheless, balancing these matters against the scope, purpose and objects of provisions such as s.362B and the high threshold of legal unreasonableness, the Court is satisfied that it was reasonable for the Tribunal to exercise the power in s.362B(1A)(b) and make the Dismissal Decision in circumstances where:

   a)The Applicants were validly notified of the date and time of the hearing and there was nothing to suggest to the Tribunal that that communication had not been effective. Even if the invitation was not passed on to the Applicants (for which there is no evidence this was the case) s.379C would deem otherwise.

   b)There was nothing to suggest that the Applicants intended to attend the hearing. For example, the Applicants did not provide a response to hearing invitation or any further documentation as requested.

   c)The Tribunal had sent an SMS reminder to the First Applicant’s personal telephone number the day prior to the hearing advising that the Applicants had a hearing.

   d)The Applicants had not sought an update from the Tribunal for nearly six months. While the Applicants’ migration agent had engaged with the Tribunal for updates for a period after the first hearing in August 2015, the Applicants appeared to have lost engagement with the status of their review. There was nothing to suggest that the Applicants continued to have an interest in the application such that the Tribunal should adjourn the matter to another day.

   e)The Applicants would have a chance to apply for reinstatement of their application if the Tribunal exercised the power. It was not the case that the application was finalised. There was a further opportunity for the Applicants to pursue their application if they were intent to do so.

3. It cannot be said that, bearing in mind that the context and purpose of s.362B and that the circumstances that enlivened its operation were present in this matter, that no reasonable decision-maker could not have come to the same conclusion. It was reasonable for the Tribunal to make the Dismissal Decision.

4. No error arises from the Dismissal Decision.

The Confirmation Decision

1. Procedural fairness required that the Tribunal notify the Applicants of the Dismissal Decision in accordance with s.362C.

2. As already indicated at [26] above, the Tribunal complied with s.362C(2) of the Act in producing the Dismissal Decision. Section 362C(5) requires that the Dismissal Decision be given to the Applicants in accordance with the sub-provisions. Here, the Dismissal Decision was given to the Applicants’ migration agent (and, by virtue of s.379G(2), the Applicants) by email (a method prescribed by s.379A)[30] on 27 July 2016 (within 14 days of the Dismissal Decision being made)[31]. With the Dismissal Decision, a statement of the effect of ss.362B(1B-1F) must be provided[32]. The Tribunal provided a brochure titled “Information about dismissal of application – MR Division” which provided this information.

   [30] Act, s.362C(5)(b).

   [31] Act, s.362C(5)(a).

   [32] Act, s.362C(6).

3. Having notified the Applicants of the Confirmation Decision appropriately and there being no evidence that the Applicants had applied for re-instatement, the Tribunal was required pursuant to s.362B(1E) of the Act to make the Confirmation Decision.

4. Section 362B(1E) states:

   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.

5. The “must” makes this provision mandatory. Therefore, in the circumstances the only decision open to the Tribunal was to make the Confirmation Decision[33].

   [33] AYT16 v Minister for Immigration & Border Protection [2017] FCA 252 at [10] and [32].

6. Accordingly, there is no error in the Confirmation Decision.

Conclusion

1. There is no error identified in the Applicants’ grounds of review. The matters referred to in the First Applicant’s affidavit also fail to identify any error in the Tribunal’s decision. They relate to a hearing that was of no relevance to the Tribunal’s disposition of the matter.

2. The application for judicial review is dismissed.

3. The Minister sought the sum of $7,328 for costs. This is in accordance with the costs allowed in Part 3, Division 1 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth), applicable at the time of the hearing. Accordingly, an Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $7,328.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC.

Associate:

Date: 13 May 2020