Ponugoti v Minister for Immigration - [2014] FCCA 2135

FEDERAL CIRCUIT COURT OF AUSTRALIA

PONUGOTI v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2135

Catchwords:
MIGRATION – Judicial review – failure to provide evidence requested – failure to appear – Tribunal empowered to proceed to decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 360, 362B, 363(1)(b), Pt.5 Div.5

Migration Regulations 1994, Sch.2 cl.572.223, Sch.5A cl.5A405

Federal Circuit Court Rules 2001, r.44.11(c)

Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73
NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328
SZOZO v Minister for Immigration and Citizenship [2011] FCA 944
Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

Applicant:

PRADEEP KUMAR PONUGOTI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1913 of 2013

Judgment of:

Judge F. Turner

Hearing date:

28 August 2014

Date of Last Submission:

28 August 2014

Delivered at:

Melbourne

Delivered on:

28 August 2014

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application for judicial review filed 12 November 2013 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $3,000.00.
All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1913 of 2013

PRADEEP KUMAR PONUGOTI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 17 October 2013. That decision affirmed the decision of a delegate to the Minister on

23 July 2012 not to grant the applicant a Student (Temporary) (Class TU) Vocational Education and Training Sector visa (Court Book “CB” p.77).
The applicant applied for a visa on 15 March 2012 (CB p.9).
The delegate refused to grant a visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”), because the applicant did not meet the financial requirements for his assessment level as set out in cl.5A405 of Schedule 5A to the Regulations.
The applicant then applied to the Tribunal to review the decision of the delegate (CB p.84). The Tribunal stated CB p.132 [6] as follows:
By letter dated 10 September 2013, the Tribunal informed the applicant that it had considered the material before it but was unable to make a favourable decision on the basis of that material alone. The applicant was invited to attend a hearing on 16 October 2013 to give evidence and present arguments in relation to the issues arising in the review. The applicant was also invited to provide evidence of current enrolment or current offer of enrolment for the purposes of cl.572.222 or cl.572.231; and current evidence for the purposes of cl. 573.223.
A copy of the letter in those terms is not found in the Court Book. The Court does not find any statement in the letter of 10 September 2013 (CB p.103) that the Tribunal informed the applicant that it considered the material before it, but was unable to make a favourable decision on the basis of that material alone. Even though the letter to that effect, does not appear in the CB, the Court accepts that such a letter was sent to the applicant, as it is not denied.
The Tribunal sent the applicant an invitation on 10 September 2013 to attend the hearing on 16 October 2013, to give evidence and present arguments (CB p.113). The letter requested that the applicant provide specified information, including documents that demonstrate that he had sufficient funds to pay his course fees, living costs, school and travel costs (CB p.114.3).
An officer of the Department sent the applicant an email at 11.14am on 20 September 2013 to the email address the applicant notified to the Department (CB p.7.10). The email sent by the Department is set out at CB p.121. The email attached a copy of the invitation to attend the hearing on 16 October 2013, and noted that the invitation to attend sent on 10 September 2013, had been returned “unclaimed”. The email then stated that attempts had been made by the Department to contact the applicant by telephone, but had been unsuccessful. The applicant was then requested to provide new contact details as soon as possible.
A Case Note notes that the applicant called the Department at 11.36am on 20 September 2013 and gave details of his new address (CB p.124). The case note is evidence that the applicant received the email and invitation to attend sent to him on 20 September 2013 and responded with details of his change of address. The Tribunal therefore complied with its obligations under s.360 of the Migration Act 1958 (the “Act”).
The Tribunal hearing record shows that the applicant failed to attend the hearing (CB p.126).
When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: see SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 at [4] (citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 at [5]).
It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: see SZIGQ (supra) per Downes J at [5].
By proceeding to a decision without hearing from the applicant, the Tribunal acted in accordance with the statutory scheme: see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48]. Further, there is no obligation on the Tribunal to make inquiry as to the failure on the part of an applicant to appear: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]
In SZOZO v Minister for Immigration and Citizenship [2011] FCA 944, Reeves J at [21] to [22] stated:
“The appellant’s fundamental problem in this appeal is that he passed up his opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims. As the Full Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (at [8]), once he did that: “the inevitable consequence was the rejection of his application.”
Further at [22], his Honour stated:
“…the election to proceed to a decision on the review in the absence of the appellant cannot, by itself, be treated as the expression of an unreasonable exercise of the power.”
The Tribunal decided that the issue before it, was whether at the time of decision of the applicant meets the enrolment requirements for a student visa (CB p.133.3) The Tribunal then decided (at CB p.133) as follows:
With limited exceptions not relevant to this case, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application.
In submissions today, the applicant has admitted that it was his mistake because he did not provide evidence of such an enrolment.
The Tribunal continued at CB p.133:
There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.
Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Class TU visa. The applicant is neither supported by the AusAID or Defence Minister as required by cl.576.229, nor has he made the visa application on the basis of being a Student guardian.
For these reasons the decision under review must be affirmed.
DECSION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
By s.65 of the Act, if the Minister is not satisfied that the criteria for a visa have been satisfied, the visa is to be refused.
The applicant’s grounds for judicial review are set out at CB pp.3-4 as follows:
(1)The Tribunal failed to accord to the Applicant procedural fairness and natural justice.
Particulars
(a)On 9 August 2012 the Applicant applied to the MRT for review of the delegate’s decision.
(b)MRT invited the applicant to attend the hearing on 16 October 2013.
(c)The applicant requested for an extension of time to appear before the Tribunal and also informed the Tribunal of his new address.
(d)The Tribunals decision to proceed was unreasonable in the circumstances.
(e)The decision maker has failed to give opportunity to the applicants to be heard and to address the issues and grounds upon which the visa was cancelled.
(f)The Tribunal’s exercise of the decision under s363 (1)(b) of the Migration Act 1958 (the Act) was unreasonable applying the case of MIAC v Xijuan Li and Anor [2013] HCA 18.
(g)The Tribunal made a decision in the absence of the applicant.
(h)The Tribunal failed to accord the applicant procedural fairness.
(2)The Tribunal failed to comply with section 362B (2) of the Act in that it failed to reschedule the applicant’s appearance before it to enable the applicant to appear and present the case.
Particulars
(a)The Applicant refers to and repeats the particulars in paragraph 1 above.
(b)The Tribunal erred in not having regard to the fact that the applicant was never requested in writing to submit the financial requirements under the Act.
(c)The Tribunal erred in not considering that no request whatsoever was made from the applicant for the financial requirements.
(d)The Tribunal erred in not giving the applicant an opportunity to provide evidence and information and present arguments before making a decision.
(e)The decision make has failed to identify and consider elements of the case.
(3)The Tribunal failed to comply with section 348 of the Migration Act 1958 (the Act) in that it failed to conduct a review of the Applicant’s application.
Particulars
(a)The Applicant refers to and repeats the particulars in paragraph 1 above.
(b)There was no ‘available information’ before the Tribunal to make a decision.
(c)The Tribunal could not have reviewed the application on the available information.
(d)The Tribunal failed to consider the applicant’s circumstances and proceeded to decide in the absence of the applicant.
(e)The Tribunal did not conduct a hearing of the matter as contemplated under the Act.
By orders made on 22 January 2014, a hearing under r.44.11(c) of the Federal Circuit Court Rules 2001 (the “Rules”) was dispensed with. The matter was set down for final hearing which has occurred today.
By the same orders, the applicant was ordered to file and serve written submissions by 14 March 2014 – none were filed.
At the hearing before the Court the applicant is self-represented and the first respondent is represented by Mr McDermott.
The Court invited the applicant to put submissions in support of his application, but nothing of substance was put.
The applicant confirmed that he did not apply to the Tribunal to adjourn its hearing.
He also stated that it was his mistake not to put evidence before the Tribunal that he was enrolled in, or had an offer of enrolment in a relevant course of training.
The first respondent filed Contentions of Fact and Law on 3 June 2014.
Apart from those submissions, Mr McDermott submitted that the Tribunal was justified in not adjourning the hearing. It had a discretion to proceed and it was reasonable for it to affirm the delegate’s decision. As stated, the applicant has told the Court today that he did not apply for an adjournment of the Tribunal’s hearing.
As to the grounds for judicial review, ground 1 generally complains that the Tribunal failed to accord to the applicant procedural fairness and natural justice.
Particular 1(a) of Ground 1 is that on 9 August 2012, the applicant applied to the Tribunal for review of the delegate’s decision. That particular does not raise any ground for judicial review and is dismissed.
Particular 1(b) acknowledged that the applicant was invited to attend the hearing on 16 October 2013. Indeed today, the applicant acknowledges that he had been sent an invitation to attend that hearing. That particular raises no issue for judicial review and is dismissed.
Particular 1(c) states that the applicant applied for an extension of time to appear. The Court finds no evidence of an application for an extension of time or an adjournment. The applicant stated today that he did not apply to the Tribunal for an adjournment. After being made aware that the applicant had received an invitation to attend, and that he failed to attend the hearing, the Court finds that it was not an unreasonable exercise of power for the Tribunal to proceed to decision. The Court refers to the decision in SZOZO (supra). That particular is dismissed.
Particular 1(d) states that the Tribunal’s decision to proceed was unreasonable. The Court finds that on 20 September 2013, the applicant received the invitation to appear at the hearing on 16 October 2013. The Tribunal delayed the hearing by 30 minutes (CB p.132.8) and stated at [8]:
“The Tribunal kept the arrangements for the hearing open for 30 minutes past the scheduled time, but the applicant did not appear and did not contact the Tribunal.”
The Court finds that it was not unreasonable for the Tribunal to proceed to make a decision. Division 5 of Part 5 of the Act is an exhaustive statement of the natural justice hearing rule in relation to matters it deals with. There is no proof of a breach of that Division. Particular 1(d) is dismissed.
Particular 1(e) alleges that the decision maker failed to give an opportunity to the applicant to be heard and address the issues. That is factually incorrect. The applicant was invited to attend and failed to do so. Particular 1(e) is dismissed.
Particular 1(f) alleges that the Tribunal’s exercise of power under s.363(1)(b) of the Act was unreasonable given the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18. Section 363(1)(b) gives the Tribunal the discretion to adjourn. There is no evidence of an application to adjourn. The applicant stated today that he did not apply to the Tribunal for an adjournment. The Tribunal decided at CB p.132.10:
“The Tribunal considered whether it could take further action before proceeding to make a decision on the review. The Tribunal has taken all steps available to it to offer the applicant the opportunity to appear before it and to provide evidence in relation to the review. The applicant has not taken up the opportunity. The Tribunal will, therefore, proceed to make a decision in accordance with s.362B of the Act.”
The Court finds that the Tribunal had the discretion to proceed to a decision under s.362B of the Act. The Court invited the applicant to put submissions to it as to the relevance of the decision of the High Court in Li (supra) and after some discussion with the applicant it appears that the applicant is relying solely on the statement in [124] of that decision.
In Li (supra), the High Court considered the Tribunal’s power to adjourn its review where the visa applicant requested an adjournment so that a skills assessment could be completed. The High Court found at [124] that:
“No reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment.”
That case is distinguishable from the present. Here, the applicant did not apply for an adjournment. If he had applied for an adjournment, it would have been to enable him to appear in circumstances that he had known since 10 September 2013 that the hearing was on 16 October 2013. The Court would not find a failure to adjourn to be an unreasonable exercise of discretion by the Tribunal. Particular 1(f) is dismissed.
Particular 1(g) complains that the Tribunal made the decision in the absence of the applicant. The Court finds that the Tribunal had that power under s.362B(1) of the Act. The Court refers to the decisions in SZIGQ, SZFDE, SZFHC and SZOZO (supra). Particular 1(g) is dismissed.
Particular 1(h) alleges the failure to accord procedural fairness to the applicant. The Court refers again to Division 5 of Part 5 of the Act. That division sets out the exhaustive statement as to the rules of natural justice in relation to matters under that division. A denial of procedural fairness has not been established. Particular 1(h) is dismissed.
Ground 2 alleges the failure to comply with s.362B(2) of the Act in that the Tribunal failed to reschedule the hearing to enable the applicant to appear and present his case. The Tribunal considered the circumstances of the applicant being invited to attend the hearing and failing to attend (CB p.132.10), and decided to proceed to make a decision. The Tribunal had that discretion under s.362B(1). The case law, as referred to (supra), confirms that to proceed to a decision is not in itself an unreasonable exercise of power. There are no factors here to indicate that a Tribunal should have adjourned the hearing. Particular 2(a) is dismissed.
Particular 2(b) alleges that the Tribunal erred by not having regard to the fact that the applicant was never requested in writing to submit the financial requirements required under the Act. The Court is not reviewing the decision of the delegate. The invitation to attend the Tribunal hearing requested the provision of that material (CB p.114.3). The issue for the Tribunal was whether at the time of decision the applicant meets the enrolment requirements for a student visa (CB p.133.3). Particular 2(b) is dismissed.
Particular 2(c) is dismissed for the same reasons.
Particular 2(d) alleges that the Tribunal did not give the applicant an opportunity to provide evidence. That particular is dismissed for the reasons that particular 1(d) has been dismissed.
Particular 2(e) submits that the Tribunal failed to consider the elements of the case. There is no evidence that the Tribunal failed to consider an integer of the applicant’s claims. Indeed, here the Tribunal was required to consider whether the applicant met the enrolment requirements for a student visa. The Tribunal considered that issue and found that the applicant provided no evidence that he was enrolled in, or had a current offer of enrolment, in any applicable course of study (CB p.133.5). The applicant admitted today that it was his mistake not to have provided such material to the Tribunal. Particular 2(e) is dismissed.

Particular 3(a) says the applicant refers to and repeats the particulars at paragraph 1 above. Particular 3(a), therefore, relies on ground 1 which has been dismissed. Particular 3(a) is dismissed.
Particular 3(b) alleges that there was no available information before the Tribunal to make a decision. The Tribunal’s decision is based on the lack of evidence by the applicant that he was enrolled in, or had a current offer of enrolment in, any applicable course of study.
Although “… the concept of onus of proof is not appropriate to administrative inquiries and decision-making…” (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts.
The Court refers to the following decisions:
·Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596:
“… the mere fact that a person claims fear of persecution… (for a particular reason) does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for… (the reason claimed). It remains… for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”
·A decision-maker is not required to make the applicant’s case for him or her: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45.
·Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at p.451.
The Court applies the decision SZIGQ (supra) where the reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208, NAVX (supra) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 confirm that this is a valid reason for the application (in SZIGQ (supra)) to be rejected. Particular 3(b) is dismissed.
Particular 3(c) is dismissed for the same reasons.
Particular 3(d) alleges that the Tribunal failed to consider the applicant’s circumstances, and proceeded to decide in the absence of the applicant. The Court finds that the applicant was invited to attend the hearing and failed to do so. The Tribunal then decided the matter on the material before it, as empowered by the Act. Particular 3(d) is dismissed.
Particular 3(e) submits that the Tribunal did not conduct a hearing of the matter as contemplated by the Act. The Court finds that a breach of Division 5 of Part 5 of the Act has not been established. The applicant was invited to attend the hearing and failed to do so. He was invited to provide material in support of his application, but failed to do so. The Tribunal then proceeded to decision as authorised by the Act. Particular 3(e) is dismissed.
All grounds for judicial review are dismissed

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date: 12 September 2014