Prajapati v Minister for Immigration
[2020] FCCA 2899
•27 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRAJAPATI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2899 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where the applicants did not attend the hearing before the Tribunal – where the applicants did not apply for reinstatement – where applicants claim migration agent provided incorrect advice – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360, 360A, 362B, 362C, 379A, 379G, 476 Migration Regulations 1994 (Cth), reg.4.21, cl.500.212 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | KALPESH RAMANLAL PRAJAPATI |
| Applicant: | VAISHALI KALPESH PRAJAPATI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 113 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 23 October 2020 |
| Date of Last Submission: | 23 October 2020 |
| Delivered at: | Perth |
| Delivered on: | 27 October 2020 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 113 of 2020
| KALPESH RAMANLAL PRAJAPATI |
First Applicant
| VAISHALI KALPESH PRAJAPATI |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of India. They are husband and wife respectively.
The first applicant arrived in Australia on a student visa in 2008 (Court Book (“CB”) 31). He returned to India in 2011. In 2014, the applicants arrived in Australia on a student visa. The second applicant was the primary applicant and the first applicant was a member of the family unit (CB 31). The applicants were subsequently granted a graduate visa (CB 32).
On 7 December 2018, the first applicant applied for a Student (subclass 500) visa (CB 1-48). The first applicant was the primary applicant and the second applicant was a member of the family unit. The first applicant was enrolled to study a Diploma of Business and an Advanced Diploma of Business.
On 25 February 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 69-79). The delegate was not satisfied that the first applicant met cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”). That is, the delegate was not satisfied that the first applicant was a genuine temporary entrant. As the first applicant did not meet the primary criterion, the second applicant could not be granted the visa.
On 13 March 2019, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 80-82).
On 25 September 2019, the Tribunal invited the applicants to provide information relating to the enrolment and genuine temporary entrant criterions (CB 88-96). On 8 October 2019, the applicants responded to the invitation (CB 97-111).
The applicants were invited to attend a hearing on 8 November 2019 (CB 115-117). That hearing was postponed at the request of the applicants’ migration agent (CB 118-121).
The applicants were then invited to a rescheduled hearing on 10 December 2019 (CB 125-127). That hearing was again postponed as the applicants were overseas (CB 128-131).
The applicants were then invited to attend a hearing on 26 February 2020 (CB 135-137).
The applicants did not attend the hearing on 26 February 2020 (CB 138-141) and the Tribunal dismissed the application for non-appearance (the “Non-Appearance Decision”) (CB 146). On 12 March 2020, the Tribunal confirmed the Non-Appearance Decision (the “Confirmation Decision”) (CB 152-153).
On 9 April 2020, the applicants applied to this Court for judicial review of the Tribunal’s decisions pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance, the applicants must show jurisdictional error on the part of the Tribunal.
Tribunal’s Decisions
Non-Appearance Decision
In full, the Non-Appearance Decision provides:
1. The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 26 February 2020 at 1:30pm. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
Confirmation Decision
In full, the Confirmation Decision provides:
1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 25 February 2019 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).
2. On 26 February 2020 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.
Proceedings in this Court
The applicants’ application for judicial review dated 9 April 2020 contains one ground of review, as follows:
The assessment was unfair because according to me I was on student visa refusal and having refusal it is not compulsory to do study that’s why I don’t have any strong study documents to present in AAT hearing and because of that reason I didn’t attend hearing and I was afraid so this is the only reason from my side.
The applicants were given an opportunity to file an amended application, supporting affidavits and an outline of written submissions. No materials were filed.
The materials before the Court thus include the judicial review application dated 9 April 2020, a Court Book numbering 153 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 29 September 2020.
The applicants appeared before the Court without legal representation. Both applicants made oral submissions to the Court. The Court confirmed that the applicants had received a copy of the Court Book and the Minister’s submissions. The applicants had both documents with them in Court.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concerns they had with the Tribunal’s decision. This is the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicants, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicants explained that their migration agent had “misguided” them by advising the first applicant to “stop studying” – advice that was, according to the first applicant “bad advice”. He was, he stressed, “scared” to attend as he “had not been studying”.
These oral submissions will be addressed below.
Consideration
Judicial Review Application
The sole ground of review does not identify jurisdictional error. Rather, it explains why the applicants did not attend the Tribunal’s hearing (i.e., because the first applicant had not been studying since the delegate’s decision and he was afraid to go to the Tribunal without evidence that he had been studying).
Even accepting the applicants’ explanation, this is of no assistance on judicial review. No error on the part of the Tribunal is identified.
Accordingly, the sole ground of review as articulated is dismissed.
Oral Submissions
As noted above, at the hearing the applicants explained that their agent gave the first applicant incorrect advice. It was explained that the first applicant was told that he was required to stop studying.
The first applicant also stated that he did not attend the hearing because he was “afraid” to appear without evidence of further study.
Incorrect advice from a migration agent does not amount to jurisdictional error by the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
In SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 (“SZFDE”), the High Court found that the Tribunal’s decision was affected by jurisdictional error as the advice given by the migration agent (i.e., that the applicant should not attend a hearing) was deemed to be fraudulent and, as such, conduct that vitiated the Tribunal’s decision.
Here, while the Court is sympathetic, the circumstances of this case are distinguishable from those seen in SZFDE. While the advice from the agent in this matter may have been incorrect, it did not inhibit or prevent the Tribunal from conducting a review as required by Division 5 of Part 5. The applicants were aware of the hearing date and time. Their migration agent did not advise them to avoid the hearing. Rather, as the first applicant stated, he did not attend because “he was scared”.
Here, on two occasions the migration agent requested adjournments to enable the applicants to appear. Initially, the agent was unavailable. In relation to the second hearing, the applicants were overseas. On the evidence before the Court, the migration agent appears to have endeavoured to do what could be done to ensure that the applicants attended a hearing. While the first applicant may have felt apprehensive given the consequences of what he says was incorrect advice from his agent about the need to study, this does not evidence fraud on the part of the agent. The applicants were able to attend the hearing and were not discouraged from doing so.
No error of the kind in SZFDE is established here.
At its highest the agent’s conduct here might amount to negligence. If the applicants have concerns about their agent’s conduct in this regard, they should raise their concerns with the Office of Migration Agents Registration Authority.
The first applicant’s oral submissions fail to identify any jurisdictional error.
Otherwise
As part of its duty to assist unrepresented applicants, the Court has considered for itself whether there is any jurisdictional error in the Tribunal’s decisions: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Two matters require consideration in relation to the Non-Appearance Decision:
a)whether the applicants were afforded procedural fairness; and
b)whether the Tribunal’s exercise of the discretion to dismiss pursuant to s.362B(1A)(b) was reasonable.
In relation to procedural fairness, if the applicants were properly invited to attend the hearing and they failed to attend that hearing, the Tribunal’s discretion is enlivened. In order to enliven the discretion under s.362B(1A)(b) the applicants must be validly notified (pursuant to s.360A) and then fail to attend.
Here:
a)the invitation to attend the hearing clearly detailed (on the first page) the date (26 February 2020), time (1.30pm) and location (the Tribunal address in Perth) of the hearing: the Act, 360A(1);
b)the invitation was sent via email to the applicants’ authorised recipient. Section 379A(5) specifies that email is a valid method of communication with applicants. Section 379G(1)-(2) of the Act states that the Tribunal must give the invitation to the authorised recipient and is not required to give the invitation to the application: the Act, s.360A(2);
c)notwithstanding that the invitation related to a “rescheduled hearing” and the Tribunal was thus not required to comply with the minimum notice period (see, Minister for Immigration & Multicultural & Indigenous Affairs v SZFML [2006] FCAFC 152), the Tribunal still gave the applicants notice in excess of the 14 day minimum period prescribed in reg.4.21(4) of the Regulations. Here, the Tribunal gave the applicants 19 days’ notice: the Act, s.360A(4); and
d)the invitation stated that if the applicants failed to attend, the Tribunal may make a decision without taking any further action. In those circumstances, the applicants would be able to apply for reinstatement within 14 days: the Act, s.360A(5);
e)the applicants did not attend the hearing. The application for judicial review concedes that this is the case.
Here, the Tribunal complied with all of the necessary procedural fairness obligations prior to making its decision to proceed under s.362B(1A)(b).
The Court will now consider whether it was reasonable for the Tribunal to proceed to dismiss the application under s.362B(1A)(b) of the Act.
When considering the analogous provisions in pt.7 of the Act, the High Court stated in Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 at [69]-[70] (“SZVFW”) that the power to dismiss an application for non-appearance must be considered within the context of the Tribunal operating as a fair, just, economical, informal and quick mechanism of review. This must be considered in light of the particular facts and circumstances of this case.
In the circumstances of this case, the Court does not consider it to have been unreasonable for the Tribunal to have dismissed the application for non-appearance as:
a)the applicants were validly and properly invited to attend the hearing and there was no explanation for their non-appearance. The Tribunal, being mindful of its objectives to act fairly and quickly, would ordinarily act entirely reasonably in dismissing the application under s.362B(1A)(b): SZVFW at [69];
b)the applicants were also sent two text message reminders of the date and time of the hearing;
c)the applicants had already been granted two adjournments at the request of the applicants; and
d)the applicants were represented by a migration agent who gave no indication that the applicants would be unable to attend the hearing on 26 February 2020 (in circumstances where he had previously advised the Tribunal that the applicants would not attend two previously scheduled hearings).
Being mindful of the purpose of s.362B(1A)(b) (whose objective has been described as ensuring “efficiency”) and the fact that the applicants had had the hearing rescheduled on two previous occasions, were validly notified of the hearing and the consequences of non-attendance and had not indicated to the Tribunal why they would not attend, it was open to the Tribunal to exercise the discretion under s.362B(1A)(b).
No jurisdictional error arises in relation to the Non-Appearance Decision.
In circumstances where the applicants did not apply for reinstatement, the only consideration for the Court in relation to the Confirmation Decision is whether the applicants were afforded procedural fairness as set out in s.362C of the Act.
Here, the Tribunal made a “written statement” setting out each of the requirements in s.362C(2) of the Act. This was the “Non-Appearance Decision”. The Tribunal emailed the applicants (a method specified in s.379A(5) of the Act) on 26 February 2020 and gave them the Non-Appearance Decision: the Act, s.362C(5). In that correspondence, it was explained that the applicants could apply for reinstatement by 11 March 2020. An information sheet in relation to dismissals was included with that correspondence – thus complying with s.362C(6) of the Act.
In these circumstances, once the applicants failed to apply for reinstatement, the Tribunal was required to confirm the decision under s.362B(1E) of the Act.
The Confirmation Decision does not contain any error.
The Court is satisfied that no other error otherwise arises in the Tribunal’s decision.
Conclusion
The judicial review application fails to identify any jurisdictional error. The Court is otherwise satisfied that no jurisdictional error arises.
The application is, accordingly, dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 27 October 2020
0
14
3