Pinchu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 210
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pinchu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 210
File number(s): MLG 2672 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 28 March 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – decision to confirm earlier decision to dismiss application for non-appearance at scheduled Tribunal hearing – whether Tribunal afforded applicant procedural fairness – whether Tribunal decision unreasonable - whether Tribunal misapplied or misinterpreted relevant law – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 65, 348, 360, 360A, 362B, 362C, 379A, 414, 476, 477
Migration Regulations 1994 (Cth), reg 4.21(4), Schedule 2 cl 572.223
Cases cited: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459; [2018] FCAFC 184
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 24 March 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms A Zinn Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2672 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PINCHU PINCHU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
28 MARCH 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
Before the Court is an application filed on 7 December 2017, by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). The Tribunal actually made two decisions in relation to the applicant’s application for review of a decision of a delegate of the Minister not to grant him a Temporary Student (subclass 572) visa (visa). On 3 November 2017 the applicant failed to appear at a hearing listed before the Tribunal and the Tribunal exercised its discretion in s 362B(1A)(b) of the Migration Act to dismiss the application for review without any further consideration of the application or the information before the Tribunal (dismissal decision). The applicant then sought reinstatement of the application and on 17 November 2017 the Tribunal confirmed the dismissal decision pursuant to s 362B(1C)(b) of the Migration Act (confirmation decision). It is the confirmation decision that is the subject of the judicial review application to the Court.
For the reasons outlined below, I have found that there is no jurisdictional error in the confirmation decision. Accordingly, the application to this Court is dismissed.
BACKGROUND
The applicant is a non-citizen who arrived in Australia in September 2008 as the holder of a student visa.
The applicant applied for the visa relevant to this application on 7 August 2015 and provided confirmation that he was enrolled in a Diploma of Building and Construction and a Certificate III in Painting and Decorating.
On 27 November 2015 a delegate of the Minister made a decision not to grant the applicant the visa as the delegate was not satisfied that the applicant was a genuine temporary entrant to Australia as required by cl 572.223(1)(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 11 December 2015 the applicant applied to the Tribunal for review of the delegate’s decision.
On 18 October 2017 the Tribunal sent to the applicant an invitation to attend a hearing on
3 November 2017. The Tribunal provided the invitation to the applicant by email. The invitation included the following information:
If you are not able to attend the hearing, you need to advise me as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
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 take to be affirmed.
The invitation was accompanied by an information sheet that contained the following information:
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. 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.
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.
What happens if an application is dismissed?
If we dismiss your application, a written statement of the dismissal decision will be given to you. Within 14 days after receiving notice of the dismissal decision you may apply for reinstatement of the application.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so. If we reinstate the application, the application is taken never to have been dismissed and we will conduct (or continue to conduct) the review accordingly.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application. If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department’s decision remains in force.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
On 27 October 2017 and 2 November 2017 the Tribunal sent SMS reminders to the applicant at the mobile phone number recorded in his application to the Tribunal to remind him of the hearing.
The applicant did not attend the scheduled Tribunal hearing on 3 November 2017 and the Tribunal made the dismissal decision. On the same day the Tribunal notified the applicant of the dismissal decision. That notification advised the applicant that:
You may apply to us, in writing, for reinstatement of the application by 17 November 2017. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
The notification also enclosed an information sheet about dismissal of applications, which included the following information:
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
On 15 November 2017 the applicant emailed the Tribunal seeking reinstatement of the application for review. In the email, the applicant said:
I am writing a reinstatement application as to why I failed to appear at the hearing on 3rd November 2017. I apologise for any inconvenience, I wasn’t able to attend the hearing as I injured my left shoulder. I had to attend an urgent doctors appointment the same day as it kept getting worse, but I am still due for an ultrasound in the coming week. I request the Tribunal for reinstating my application.
A medical certificate was attached to the email. The medical certificate was signed by a general practitioner and stated:
THIS IS TO CERTIFY THAT ON 3/11/2017
I EXAMINED Mr Pinchu Atwai
WHO IN MY OPINION IS SUFFERING FROM A MEDICAL ILLNESS AND WILL BE UNFIT FOR WORK
FROM 3/11/2017 TO 3/11/2017 INCLUSIVE
On 17 November 2017 the Tribunal confirmed its decision to dismiss the application.
TRIBUNAL DECISIONS
Dismissal decision
The Tribunal noted that the applicant did not appear before the Tribunal at the scheduled time and place. The Tribunal referred to the invitation to attend a hearing sent to the applicant pursuant to s 360 of the Migration Act and was satisfied that the applicant was properly invited to a hearing in accordance with s 379A(5) of the Migration Act. The Tribunal was satisfied that the invitation had not been returned to sender, and a two separate SMS reminders had been sent to the applicant about the hearing.
The Tribunal found that no satisfactory reason for the non-appearance had been given and dismissed the application without further consideration of the application or the information before the Tribunal.
Confirmation decision
The Tribunal acknowledged that the applicant made a request for reinstatement within 14 days of being notified of the dismissal decision. The Tribunal referred to the reasons for seeking reinstatement advanced by the applicant in his email of 15 November 2017 and the accompanying medical certificate.
The Tribunal was not persuaded by the applicant’s medical certificate, which ‘in vague terms’ described the applicant to be suffering from a ‘medical illness’ which rendered him unfit for work for one day. The Tribunal found that the generalised wording in the medical certificate was inconsistent with the applicant’s evidence of a specific injury to his left shoulder.
The Tribunal was not satisfied that the applicant was suffering from a shoulder injury such that he was unable to attend or participate in his scheduled hearing on 3 November 2017 or contact the Tribunal at any time or in any form prior to his hearing to request a postponement. The Tribunal was also not satisfied that the applicant was not able to attend his hearing by telephone which would have been possible to arrange had he contacted the Tribunal before the commencement of the hearing.
The Tribunal found that the applicant was validly notified of the hearing and that his reinstatement request indicates that he was aware of the time and date of the hearing. The Tribunal found that the invitation clearly stated that the Tribunal may dismiss the application if the applicant did not attend the scheduled hearing.
The Tribunal did not consider that it was appropriate to reinstate the application and confirmed the dismissal decision.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the confirmation decision, as required by s 477(1) of the Migration Act. In his written application, the applicant only sought judicial review of the confirmation decision and not the dismissal decision, and he confirmed this in his oral submissions to the Court.
In his application, the applicant raised the following three grounds, reproduced without alteration:
1.The second respondent (Tribunal) denied the applicant procedural fairness and this constituted a jurisdictional error, of the kind found in MIAC v Xijuan Li & Anor [2013] HCA 18.
Particulars
(a)The Applicant’s request to reinstate the review application was refused.
(b)The Tribunal’s decision to proceed and dismiss the review application without considering the applicant’s merits of the review and without according any further opportunity to the applicant to appear before it was unreasonable or contrary to law.
(c)The second respondent failed to accord the applicant procedural fairness.
(d) The second respondent failed to review the decision under section 414 of the Act.
2.The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied clause 527.223 (1) (a) Migration Regulations 1994 (Regulations)
a.Applying Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 the Tribunal failed to have regard to all the mandatory criteria when applying and considering cl 572.223 Regulations.
b.The Tribunal erred in not considering and applying clause 573.223(2)(b)(ii) any other relevant matter when clearly the applicant’s circumstances and facts demands that the said clause be invoked in his favour.
c.The applicant have completed several courses of study which was not considered by the second respondent.
d.The delegate misconstrued clause 572.223 (1) (a) in finding that the appellant was not a genuine temporary entrant (GTE).
e.The Tribunal erred in not applying the facts when considering cl 572.223 (1) (a).
f.The Tribunal made jurisdictional error in failing to consider that the delegate made a decision on the basis of no evidence applying the case QAAA of 2004 v Minister for Immigration and Multicultural & Indigenous Affairs [2007] FCA 1918
3.In the alternative to ground 1 & 2 above the second respondent erred by not considering the delegate considered information from “our records” and “our systems” which was not put to the applicant.
Particulars
(a)In the decision record the delegate referred to “our records” and “our systems” and made several findings without according the applicant an opportunity to comment on the findings.
(b)The information from “our records” and “our systems” was not put to the applicant for his comments
(c)The information from “our records” and “our systems” was considered by the delegate when refusing the applicant’s application for a visa
A Registrar of the Court made an Order on 22 August 2018. Pursuant to the Order, the applicant was required to file and serve any amended application, supplementary court book and written submissions 28 days before the hearing. The applicant has not filed any documents in compliance with this Order. The Minister filed a written outline of submissions in compliance with the Order.
The matter came before me for hearing on 24 March 2022. The applicant was self-represented and the Minister was represented by Ms Zinn.
CONSIDERATION
In order to be entitled to relief before this Court, the applicant must show that there is jurisdictional error in the Tribunal’s decision.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Ground 1
By ground 1 the applicant asserts that the Tribunal denied him procedural fairness and acted unreasonably by:
(a)refusing to reinstate his application;
(b)dismissing his review application without considering the merits of the review and without giving the applicant any further opportunity to appear; and
(c)failing to review the decision under s 414 of the Migration Act.
In his oral submissions at the hearing, the applicant submitted that he was not well on the day of the Tribunal hearing due to an underlying shoulder problem that sometimes flares up. On the day of the Tribunal hearing, his shoulder problem appeared suddenly and he was in so much pain that he had to go to the doctor. The applicant provided medical evidence to the Tribunal to show this.
The applicant submitted that he was not aware that he could ask to attend the Tribunal hearing by telephone and that he did not understand what type of medical certificate he was required to provide to the Tribunal, or what information should be included in the medical certificate. He submitted that the time he provided the medical certificate to the Tribunal was the earliest possible time he could do so.
I do not accept that the Tribunal acted unreasonably or denied the applicant procedural fairness in refusing to reinstate his application and making the confirmation decision.
The Tribunal complied with its relevant procedural fairness obligations under Division 5 of Part 5 of the Migration Act in conducting the review. The Tribunal invited the applicant to attend a hearing in accordance with s 360 of the Migration Act. That invitation was valid and complied with the requirements of s 360A in that it:
(a)set out the day on which and the time and place at which the applicant was scheduled to appear;
(b)was given to him by email at the last email address provided to the Tribunal for the purposes of the review, as allowed by s 379A(5) of the Migration Act;
(c)provided a period of notice of the hearing that exceeded the 14 day period in reg 4.21(4) of the Regulations; and
(d)contained a statement to the effect of s 362B of the Migration Act, as can be seen from the extract of the invitation set out at [7] and [8] above.
In circumstances where the applicant had been invited to a hearing in accordance with s 360 and failed to appear at that hearing, the Tribunal’s discretion to dismiss in the application in accordance with s 362B(1A)(b) was enlivened: s 362B(1) of the Migration Act.
The dismissal decision was made by a written statement of decision under s 362C of the Migration Act. The Tribunal notified the applicant of the dismissal decision by sending it to the applicant by email, to the last email address he provided for the purpose of the review, on 3 November 2017, the same day the decision was made. In so doing, the Tribunal complied with s 362C(5) of the Migration Act, which required the Tribunal to notify the applicant of the dismissal decision within 14 days after the day on which the decision was made by one of the methods specified in s 379A. The notification contained the information set out at [10] and [11] which comprises a statement about the effect of ss 362B(1B) to (1F) of the Migration Act, as required by s 362C(6).
In considering the application for reinstatement, the Tribunal had regard to the reasons and explanations advanced by the applicant.
The applicant submitted at the hearing that he did not know that he could ask to appear at the Tribunal hearing by telephone and did not know how much information was required in the medical certificate. The Tribunal had clearly put the applicant on notice in the invitation to attend a hearing that he should contact the Tribunal as soon as possible if he was unable to attend the hearing, and that his application could be dismissed if he did not appear at the hearing. Further, that information set out that if there was a medical reason the applicant could not attend the hearing, any medical certificate would need to state that the applicant was not able to attend the scheduled hearing. The two SMS hearing reminders sent to the applicant contained a phone number that he could use to contact the Tribunal. The Tribunal was not required, pursuant to the provisions in Division 5 of Part 5 of the Migration Act, or the common law rules of procedural fairness to the extent that they applied, to specifically advise the applicant that he could request to attend the hearing by telephone, or to give more detailed information about what content was required in a medical certificate in order for his application to be reinstated. The applicant’s assertion that the Tribunal denied him procedural fairness in refusing to reinstate his application cannot succeed.
In conducting the review the Tribunal was required to act reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.
In considering the reinstatement application, the Tribunal was required to reinstate the review application if it considered it ‘appropriate’ to do so, and to confirm the dismissal decision if it did not consider it appropriate to reinstate the review application: s 362B(1C) of the Migration Act; Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459; [2018] FCAFC 184 (Singh) at [5]-[6]. The Tribunal was required to consider and make an assessment of the particular matters advanced by the applicant in his reinstatement application in deciding whether it was appropriate to reinstate the review application: Singh at [30], [36].
In the present matter, in finding that it was not appropriate to reinstate the review application, the Tribunal carefully considered the applicant’s explanation as to why he did not attend the hearing, and the medical evidence he provided. These were the only matters advanced by him in the reinstatement application. The Tribunal gave clear and cogent reasons for the weight it gave to the medical evidence provided and as to why the medical evidence and the applicant’s explanation did not persuade the Tribunal that it was appropriate to reinstate the application. The Tribunal has given an intelligible justification for its decision. While it is possible that a different Tribunal member may have reached a different view, that does not mean that the decision made by the Tribunal was unreasonable. It was a matter about which reasonable minds may differ, and the decision made by the Tribunal was within the area of its decisional freedom.
The second complaint made by the applicant in ground 1 is that the Tribunal acted unreasonably in failing to consider the merits of his application or to give him a further opportunity to appear. As mentioned above, the applicant confirmed at the hearing that this error is alleged in relation to the confirmation decision, not the dismissal decision.
The sole issue for the Tribunal’s consideration in relation to the confirmation decision was whether it was appropriate to reinstate the application. The Tribunal was required to consider the issues raised by the applicant in his reinstatement application, but it was not required to consider the merits of the application for a visa, nor invite the applicant to a hearing in relation to his reinstatement application. Upon finding that it was not appropriate to reinstate the application, the Tribunal was required under s 362B(1C)(b) of the Migration Act to confirm the dismissal decision. There was no residual discretion to consider the merits of the review application or to invite the applicant to a further hearing.
The third complaint of the applicant raised in ground 1 is that the Tribunal did not conduct the review as required by s 414 of the Migration Act. Section 414 appears in Part 7 of the Migration Act, which relates to reviews of protection visa decisions. It has no application in the present matter. However, s 348 in Part 5 of the Migration Act, is in similar terms to s 414 and relevantly provides that ‘if an application is properly made under section 347 for review of a Part 5- reviewable decision, the Tribunal must review the decision.’
Section 348 applied in relation to the applicant’s review before the Tribunal. However, the Tribunal did not breach that provision. The Tribunal conducted the review and made the dismissal decision and the confirmation decision. The effect of the confirmation decision was that the delegate’s decision was taken to be affirmed: s 362B(1F) of the Migration Act.
Ground 1 does not establish jurisdictional error.
Ground 2
By ground 2, the applicant asserts that the Tribunal decision is affected by jurisdictional error because the Tribunal misconstrued or misapplied cl 572.223 of the Regulations.
The applicant did not make any submissions in relation to this ground.
This ground of review cannot succeed. The Tribunal was not required to, and did not, consider the merits of the applicant’s visa application in making the dismissal decision and the confirmation decision. The Tribunal did not consider or apply cl 572.223 in its decision, nor was it required to do so.
The delegate considered whether the applicant met the criteria in cl 572.223 in the decision made under s 65 of the Migration Act. It is therefore possible that in raising this ground, the applicant was intending to assert error in the delegate’s decision. The Court does not have any jurisdiction to review the delegate’s decision. That is because the delegate’s decision is a ‘primary’ decision within the meaning of s 476(4)(a) of the Migration Act. The Court does not have jurisdiction to review primary decisions: s 476(2)(a) of the Migration Act.
Ground 2 is dismissed.
Ground 3
By ground 3, the applicant asserts that the Tribunal erred by failing to consider that the delegate took into account information from ‘our records’ and ‘our systems’, which was not put to the applicant for comment.
As with ground 2, the applicant did not make any submissions in relation to this ground.
In making the dismissal decision and the confirmation decision, the Tribunal had no occasion to consider what information the delegate took into account, or whether there was any information that was required to be put to the applicant for comment. This ground does not appear to relate to the decision made by the Tribunal in this matter.
To the extent that this ground might be asserting error in the delegate’s decision, it is beyond the Court’s jurisdiction, because, as mentioned above, the delegate’s decision is a primary decision and the Court’s jurisdiction does not extend to primary decisions.
Ground 3 is dismissed.
CONCLUSION
I have found that there is no jurisdictional error in the confirmation decision. It follows that the application to this Court is dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 28 March 2022
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