Rattu v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

[2021] FCCA 533

FEDERAL CIRCUIT COURT OF AUSTRALIA

Rattu v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 533

File number:

PEG 75 of 2020

Judgment of:

JUDGE KENDALL

Date of judgment:

19 March 2021

Catchwords:

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether reasonable for Tribunal to proceed pursuant to s 362B(1A)(a) of the Migration Act 1958 (Cth) – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 13.03C

Migration Act 1958 (Cth), Pt 5, Div 5, ss 362B, 379G, 476

Migration Regulations 1994 (Cth), cl 500.214 of Schedule 2

Cases cited:

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

SZFDE v Minister for Immigration & Citizenship [2007] HCA 35

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Number of paragraphs:

82

Date of hearing:

17 March 2021

Place:

Perth

Applicant:

No appearance by or for the applicant

Counsel for the First Respondent:

Ms J Tran

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

PEG 75 of 2020

BETWEEN:

SOURAV RATTU

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	17 MARCH 2021

THE COURT ORDERS THAT:

1.The first respondent have leave to rely on the written submissions filed 8 March 2021.

2.The hearing proceed pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

3.The application be dismissed.

4.Formal written reasons for judgment be published by Chambers at a later date.

5.The applicant pay the first respondent’s costs in the sum of $ 5,000.

REASONS FOR JUDGMENT

JUDGE KENDALL

INTRODUCTION

1. On 17 March 2021, this matter was listed for final hearing. The first respondent attended at that hearing.  The applicant did not attend. The matter was called three times outside the Court room but there was no appearance by or for the applicant.

2. The Court was satisfied that the applicant was aware of the date, time and location of the hearing.  Having reviewed the materials in the Court Book and the Minister’s submissions in detail, the Court made the following orders:

   1. The first respondent have leave to rely on the written submissions filed 8 March 2021.

   2. The hearing proceed pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

   3. The application be dismissed.

   4. Formal written reasons for judgment be published by Chambers at a later date.

   5. The applicant pay the first respondent’s costs in the sum of $ 5,000.

3. These are the reasons referred to in order 4 above.  They explain why the Court proceeded in the absence of the applicant and ultimately dismissed the application.

   BACKGROUND

4. The applicant is a citizen of India. He arrived in Australia on a student visa in 2014 (Court Book (“CB”) 70).

5. On 15 March 2018, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 1-30).

6. On 12 May 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 43-45). The delegate determined that the applicant had not demonstrated that he had “genuine access to funds” as required by cl 500.214 of the Migration Regulations 1994 (Cth) (the “Regulations”).

7. On 31 May 2018, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 46-47).

8. The applicant was scheduled to appear before the Tribunal on 29 January 2020 at 9.30am.

9. The applicant did not attend the hearing on 29 January 2020.

10. After the scheduled hearing (at 3.11pm), the applicant (via his migration agent) requested an adjournment.  He indicated that he was in a “bad situation” (CB 77-79).

11. On 30 January 2020, the Tribunal wrote to the applicant as follows:

    The Presiding Member received your request to defer your hearing after the time set for that hearing, and is unwilling to list another hearing without further information about the ‘bad situation’ referred to in your correspondence with your Representative.

    Please provide a more detailed explanation of the circumstances which prevented you from attending your hearing on Wednesday 29 January 2020. Your response should be submitted no later than midday (12:00 pm) tomorrow, Friday 31 January 2020. If the Member has not received a response by this time, they will make their decision on the documents currently available to them.

12. No response was received from the applicant.

13. On 31 January 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 89-96).

14. On 3 February 2020, the applicant’s migration agent advised the Tribunal as follows:

    However, I do not agree with one detail mentioned on the Decision Record.

    We had two phone calls in the afternoon on 29 January 2020. In the first phone call, you told me that according to your understanding, the AAT will need a written statement from our client stating the reasons why he did not attend the Hearing and then the Member will make a decision on whether to rearrange a Hearing for him or not and you said you would immediately check with the Member; then after a few minutes, I got the second phone call from you and you told me that you have asked the Member and the Member told you that he/she decided to move forward to make a decision based on the documents he/she has in his/her hand and no Hearing would be re-arranged for our client.

    But today I found that in the Decision Record it states that “The Tribunal stated that it would not consider the request unless such supporting information was provided by 12.00 pm on 31 January 2020”.

    I do not think that I have been told this or been sent a written notification regarding this. Could you please kindly advise on this? Otherwise, when our client read the Decision Record, he may think that we missed something.

15. The Tribunal responded later that afternoon advising that an email had been sent to the nominated email address on 30 January 2020 requesting a response by 31 January 2020 (CB 99).

16. On 5 March 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”).

    TRIBUNAL’S DECISION

17. The Tribunal’s decision is 8 pages long and spans 24 paragraphs.

18. The Tribunal began by identifying the type of visa the applicant had applied for. It then summarised why the delegate had refused to grant the visa (at [1]-[4]).

19. The Tribunal noted that the issue before it was whether the applicant met cl 500.214 of the Regulations (at [6]).

20. The Tribunal then outlined the correspondence that had been exchanged between the applicant’s migration agent and the Tribunal prior to the scheduled hearing. The Tribunal noted that the applicant did not attend the hearing, that the Tribunal had tried to contact the applicant and his agent on the day and at the time of the hearing to no avail and that the Tribunal had been advised by the applicant’s migration agent well after the hearing time that the applicant could not attend (at [7]-[11]).

21. The Tribunal continued:

    12. Later that day, the Tribunal received a further email message from the applicant’s representative. As relevant, that message said:

    Our client Mr. Rattu suddenly informed us this morning that he is in a kind of bad situation and he cannot attend the Hearing today. He is wondering whether AAT can arrange a Hearing for him on another date.

    The Tribunal treated this communication as a request to adjourn the hearing made after the fact and to relist the matter for further hearing.

    13. The Tribunal responded by email on the following day, noting that the applicant’s request was not supported by any information as to the nature of his difficulties, or as to the reason for his failure to attend at hearing. The Tribunal stated that it would not consider the request unless such supporting information was provided by 12.00 pm on 31 January 2020. The applicant has not responded in any way.

    14. In the circumstances recited above, the Tribunal is satisfied that the applicant has had notice of the hearing of his review application, and that the applicant’s failure to appear before the Tribunal has pursuant to s.362B(1) enlivened the Tribunal’s power and discretion under s.362B(1A). Pursuant to that latter provision, the Tribunal has decided to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

22. The Tribunal then summarised what was required by cl 500.214 of the Regulations (at [15]-[16]). It noted that the requirements of cl 500.214(3) were set out in LIN 19/198 (at [17]).

23. The Tribunal explained that the applicant had not provided the Tribunal with any evidence of any kind and certainly no evidence upon which the Tribunal could decide that the applicant had met the requirement of cl 500.214(3) (at [18]).

24. The Tribunal continued:

    19. The Tribunal has read and considered the Department’s file in relation to the applicant’s visa application. The only evidence on that file that is relevant to the issues raised by cl.500.214(3) is:

    a. a copy of Confirmation of Enrolment (CoE) 988D6E27 in respect to the applicant’s enrolment in a Bachelor of Business programme at Stott’s College, the course to run from 18 March 2019 to 31 December 2020; and

    b. the applicant’s statement made in his visa application that he holds AUD30,000 on deposit with “Commonwealth” (presumably intended as a reference to the Commonwealth Bank of Australia).

    20. The CoE was, on its face, created on 14 March 2018. It may or may not be the applicant’s current CoE. It states that the total fee for the applicant’s course is AUD33,200, and that the applicant had at the date of the CoE paid AUD1000 of that total amount. That information may well be out of date. There is no documentary evidence on the Departments’ file verifying the applicant’s claim to hold the sum AUD30,000 on deposit. Even if there were, that evidence would be well out of date by the date of this decision, and require to be supplemented or updated. This evidence is a very long way from being sufficient to allow the Tribunal to be satisfied that the applicant meets cl.500.214(3). It is, in fact, almost entirely lacking in probative value.

    21. On the basis of the above, the Tribunal cannot be, and is not, satisfied that the applicant meets cl.500.214(3).

25. Overall, the Tribunal was not satisfied that the applicant met cl 500.214 of the Regulations and affirmed the delegate’s decision not to grant the visa (at [22]-[24]).

    PROCEEDINGS IN THIS COURT

26. In his application for judicial review dated 5 March 2020 the applicant provides three “grounds of review”, as follows:

    1. I, Sourav Rattu, Passport number [omitted] Date of Birth: [omitted] made an application for a Student Visa subclass 500 on 15 March 2018. I was the primary applicant. At the time of application I had provided all the necessary documents, relating to the Student visa application. Prior to the lodgement of subclass 500 visa my status in Australia was of also of a student visa subclass 573 holder. I wanted to continue to study in Australia and I did enrol for Diploma of Business and also Bachelor of Business. The reason behind this intention was that I worked in a retail store (IGA) for a long time and had an aspiring dream of opening a retail store of my own either in Australia or overseas. However, my lack of knowledge in management and marketing led me to pursue the said courses. I was very determined to study, learn and complete the courses I was enrolled into. However the officer did not give him a fair chance for providing further explanation or clarifications in relation to my circumstances or financial capability. Based on the information given by me, without any request for further documents or clarification, I received a notice of refusal of student visa application by Department of Home Affairs on 12 May 2018, which stated that I did not satisfy clause 500.214 of the Migration Regulations. The decision maker stated that I did not satisfy clause 500.214 and regulations do not support my claims and therefore they refused to grant me the Student Visa. According to me I believe that the rule that they applied at the time of making decision on my visa application, which is cl. 500.214 was clearly satisfied. With a lack of knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that I did not satisfy cl. 500.214 which describes the eligibility criteria for a genuine temporary entrant keeping factors in mind such as financial capability, intentions to study as a genuine student. I also further read the regulations and sections wherein I found that financial capacity documents can be provided when the case officer requests. Given a fair chance by the decision maker I was able to satisfy these clauses and I truly believed that there has been an error in the decision maker’s judgement for the student visa application. As I was not given a chance by the officer and the officer did not ask or request for any further documents relating to the genuineness to study, I think the decision maker has taken the advantage of his discretionary power to refuse the student visa. I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was repeatedly misguided by my friends and was not given a fair chance at the AAT for my visa application too. As stated above, I was enrolled for the said courses, and I am also currently working in customer service area in retail store. I was invited for a hearing at the AAT office in Perth. I was not provided guidance from agents and friends for hearing and I was not given a chance to speak or explain further and provide any explanation or make request for extension at the Tribunal to grant me permission to study business courses. I wasn’t provided the natural justice by the Tribunal member who made the final decision.

    2. After the department refused my visa, I applied for the review the application at the AAT with the expectation that they would understand and consider my scenario. I believe that the information I provided was not carefully acknowledged. The Tribunal member who made the decision on my AAT application at the time without contacting me via email or phone, did not give me a chance to explain the issue or clarify any matter that relates to my genuine intention to study. Therefore I truly think the immigration department and the AAT did not provide procedural fairness in making a decision on my appeal application.

    3.The main reason behind filing this appeal application at the Federal Circuit Court is that I believe that the tribunal member making the decision at the AAT has not been fair and have not given natural justice to my particular case. I have a strong view that AAT should have considered the fact that I was capable of providing financial evidences and had a fair chance of approval. I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was having some documents that were evidencing the genuine intention to study and evidences of finances, I still satisfy the clause 500.214. I request the Federal Circuit Court to please shed some light in my case and provide justice to me. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered as I have been a genuine applicant who has made genuine efforts to study and gain academic knowledge and recognition from an Australian institute. I genuinely hope you will consider my scenario and provide justice to my case. If there is anything else required to support my claims and application, please do contact me.

27. The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of submissions. No further materials were filed.

28. The materials before the Court thus include the judicial review application dated 5 March 2020, correspondence confirming the date, time and location of the hearing (marked as Exhibit 1), a Court Book numbering 100 pages (marked Exhibit 2) and an outline of written submissions filed by the Minister on 8 March 2021.

29. As noted above, the applicant did not appear at the hearing on 17 March 2021. The Minister tendered correspondence that had been sent to the applicant confirming the date and time of the hearing. Ms Tran for the Minister drew the Court’s attention to an email dated

    
    

    8 March 2021 at 11.46am. That email attached a cover letter which indicated that the matter would be heard “by web conference”. This was incorrect.  The matter was always listed to occur in person. That error was, however, rectified and brought to the applicant’s attention, as follows:

    (a)on 8 March 2021, an email was sent at 2.28pm which stated, in bold, that the hearing would take place “in person”. The attached cover letter reiterated that the hearing would take place “in person” and provided the Court’s address;

    (b)on 9 March 2021, the Minister’s written submissions and a cover letter (which clearly indicated the matter was listed on 17 March 2021 at 10.00am and would be heard in person) were delivered to the applicant by express post;

    (c)on 11 March 2021, Chambers emailed the applicant and the Minister.  That email stated that the matter would take place in Court and that attendance in person was expected; and

    (d)on 16 March 2021, an email was sent to the applicant.  That email again reiterated that the matter would be heard in person and provided the address of the Court.

30. The Court is satisfied that, despite an original erroneous reference to the matter proceeding by web conference, the applicant was clearly and properly notified that the matter would proceed in person on 17 March 2021. He was notified on four subsequent occasions by both the Minister’s representative and the Court that the matter was proceeding in person. Those notifications were sent via email to his nominated address and via post to his nominated address.

31. Having been satisfied that the applicant was properly notified of the hearing and noting that the applicant had showed no engagement with the matter since the filing of the application, the application had been on foot for over one year and the Minister had prepared detailed written submissions and was ready to proceed, the Court considered it both reasonable and appropriate for the hearing to proceed under r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) in the absence of the applicant.

32. The Court proceeded to hear the matter in the absence of the applicant. The Minister sought to rely on written submissions filed on 8 March 2021. Those written submissions were filed two business days late. This arose because the Court was required to relist the matter at short notice. The Court is satisfied that the applicant still had almost 10 full days to review and consider the Minister’s submissions.

1. While the applicant did not attend, the Court notes that it reviewed the materials in detail and that, as is now the standard approach in relation to self-represented parties, it remained astute and alert to the possibility of any error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.

2. The only issue before the Court in an application of this sort is whether the Tribunal fell into jurisdictional error. The possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, 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]; 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].

3. Further, this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. 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.

4. With these principles in mind, the Court turns to consider the application for judicial review.

   CONSIDERATION – GROUNDS OF REVIEW

   Ground 1

5. Ground 1 is lengthy. For ease of reference, the Court will consider the ground in discrete parts.

6. Ground 1 begins:

   I, Sourav Rattu, Passport number [omitted] Date of Birth: [omitted] made an application for a Student Visa subclass 500 on 15 March 2018. I was the primary applicant. At the time of application I had provided all the necessary documents, relating to the Student visa application. Prior to the lodgement of subclass 500 visa my status in Australia was of also of a student visa subclass 573 holder. I wanted to continue to study in Australia and I did enrol for Diploma of Business and also Bachelor of Business. The reason behind this intention was that I worked in a retail store (IGA) for a long time and had an aspiring dream of opening a retail store of my own either in Australia or overseas. However, my lack of knowledge in management and marketing led me to pursue the said courses. I was very determined to study, learn and complete the courses I was enrolled into. However the officer did not give him a fair chance for providing further explanation or clarifications in relation to my circumstances or financial capability. Based on the information given by me, without any request for further documents or clarification, I received a notice of refusal of student visa application by Department of Home Affairs on 12 May 2018, which stated that I did not satisfy clause 500.214 of the Migration Regulations. The decision maker stated that I did not satisfy clause 500.214 and regulations do not support my claims and therefore they refused to grant me the Student Visa. According to me I believe that the rule that they applied at the time of making decision on my visa application, which is cl. 500.214 was clearly satisfied. With a lack of knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that I did not satisfy cl. 500.214 which describes the eligibility criteria for a genuine temporary entrant keeping factors in mind such as financial capability, intentions to study as a genuine student. I also further read the regulations and sections wherein I found that financial capacity documents can be provided when the case officer requests. Given a fair chance by the decision maker I was able to satisfy these clauses and I truly believed that there has been an error in the decision maker’s judgement for the student visa application. As I was not given a chance by the officer and the officer did not ask or request for any further documents relating to the genuineness to study, I think the decision maker has taken the advantage of his discretionary power to refuse the student visa.

7. The “fatal flaw” with this ground is that it relates to the delegate’s decision. This Court has no jurisdiction to review the delegate’s decision: the Act, s 476(2) and (4). Further, any error in the delegate’s decision or processes (here, the applicant appears to be alleging a denial of procedural fairness) is “cured” by the Tribunal’s decision: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].

8. Accordingly, no jurisdictional error on the part of the Tribunal arises.

9. Ground 1 continues:

   I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was repeatedly misguided by my friends and was not given a fair chance at the AAT for my visa application too. As stated above, I was enrolled for the said courses, and I am also currently working in customer service area in retail store. I was invited for a hearing at the AAT office in Perth. I was not provided guidance from agents and friends for hearing and I was not given a chance to speak or explain further and provide any explanation or make request for extension at the Tribunal to grant me permission to study business courses. I wasn’t provided the natural justice by the Tribunal member who made the final decision.

10. In the second part of this ground the applicant largely appears to be alleging that the Tribunal denied him procedural fairness. However, the applicant also takes issue with the conduct of his migration agent (and, it appears, his friends).

11. In relation to the conduct of his migration agent or his friends, the Court does not consider that there is any fraud on the Tribunal in this matter as detailed in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.

12. Here, the materials show that the conduct of the migration agent was entirely competent and diligent. The agent contacted the Tribunal advising that she had difficulty contacting the applicant. Despite this, the agent continued to relay communications to the Tribunal from the applicant (for example, she advised the Tribunal that her client was in a “bad situation”). The agent advised the applicant of the hearing and made an effort to request an adjournment. There is no evidence that the agent “misguided” the applicant in any way.

13. The agent’s actions in no way purported to stultify the Tribunal’s decision-making processes. Rather, she attempted to assist the applicant as best she could.

14. In relation to the applicant’s “friends”, there is nothing in the materials before the Court to indicate that the applicant was advised by friends. Accordingly, no error can arise from allegedly bad advice of the applicant’s friends.

15. Turning to the applicant’s assertion that he was not provided natural justice, the Court notes that the applicant was at all times represented by a migration agent. On 31 May 2018, the applicant’s agent was advised that:

    If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.

16. No materials were provided to the Tribunal.

17. On 16 December 2019, the Tribunal invited the applicant to attend a hearing. The invitation requested the following information:

    Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator.

    In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

    1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

    2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.

    3. Either:

    •Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.

    OR

    •Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds.

18. The first communication with the Tribunal in over one year came from the applicant’s agent on 20 December 2019 when the agent advised that she had been unable to reach the applicant. On 21 December 2019, the agent advised that the applicant would attend the hearing. No reference is made to providing further documents.

19. On 29 January 2020, the applicant’s agent advised (after the fact) that the applicant could not attend the hearing and asked if it could be adjourned to another day. The Tribunal wrote to the applicant on 30 January 2020 asking that the applicant provide an explanation by

    
    

    31 January 2020 for his non-attendance. No explanation was forthcoming.

20. It is apparent from the above that the Tribunal gave the applicant ample opportunity to provide further documents in support of his application.

21. It is noted that the applicant makes reference in his grounds to making a request for an extension to allow him to study business courses. The applicant could have made such a request on multiple occasions – including by providing a confirmation of enrolment indicating study in such a course (as was requested in the invitation).

22. The applicant also makes reference to not being given a chance to “speak” and “explain further”. The applicant was given a chance to speak and explain further when the Tribunal invited the applicant to attend a hearing. The applicant did not attend and he provided, at best, a vague reason why that was the case. When asked to explain further, no response was provided.

23. It appears the applicant is also taking issue with the fact that the Tribunal did not grant him the adjournment and instead proceeded to decide the review under s 362B(1A)(a) of the Act.

24. The applicant was not denied procedural fairness. It was not unreasonable for the Tribunal to proceed as it did. The applicant was properly invited to attend the hearing. He did not attend. The power in s 362B(1A) was validly enlivened and the Tribunal had the discretion to dismiss the application, decide the application on the materials before it or adjourn the review. The Tribunal exercised the discretion to decide the application on the materials before it.

25. The Tribunal’s reasons for doing so are set out at [7]-[12]. In effect, the applicant had been properly invited to the hearing. He failed to provide an explanation for his non-appearance despite being given the opportunity to do so.

26. The objective of s 362B of the Act is to ensure a fair, just, economical, informal and quick review process. Here, it was entirely reasonable for the Tribunal to proceed without giving the applicant an opportunity to “speak” or “explain further”. Relevantly, the review had been on foot for over one year, the applicant had provided no supporting documents, the applicant was invited to a hearing before the Tribunal and his non-attendance was unexplained (despite the Tribunal giving him an opportunity to clarify).

27. The Tribunal otherwise complied with its statutory requirements under div 5 of pt 5 of the Act.

28. Ground 1 is dismissed.

    Ground 2

29. Ground 2 provides:

    After the department refused my visa, I applied for the review the application at the AAT with the expectation that they would understand and consider my scenario. I believe that the information I provided was not carefully acknowledged. The Tribunal member who made the decision on my AAT application at the time without contacting me via email or phone, did not give me a chance to explain the issue or clarify any matter that relates to my genuine intention to study. Therefore I truly think the immigration department and the AAT did not provide procedural fairness in making a decision on my appeal application.

30. The applicant makes reference to information he provided not being “carefully acknowledged”. The applicant provided no information to the Tribunal. In fact, he provided no information to the delegate save for his visa application. The materials that were on the Departmental file (materials which were provided by the applicant) were considered by the Tribunal at [19]-[20]. As the Tribunal noted, these materials were “out of date”. The Tribunal needed to be satisfied “at the time of decision” that cl 500.214 was satisfied. As the Tribunal correctly observed, it could not do so on the basis of the materials the applicant had provided to the delegate.

31. The applicant is incorrect when he states that the Tribunal did not contact him by telephone or via email. The Tribunal sent all correspondence to the applicant’s migration agent (and authorised recipient). That included the correspondence that detailed the need to provide further documents and attend a hearing. Importantly, the applicant was asked to “clarify” and “explain” his reasons for non-attendance.

32. While the email correspondence was not sent to the applicant personally, by virtue of s 379G of the Act the applicant is taken to have received the email himself when his agent received it. As such, the statement that the applicant was not contacted by email is incorrect.

33. The Tribunal’s case notes indicate that the applicant was sent two text messages confirming the date and time of the hearing. The Tribunal’s decision states that the Tribunal attempted to call the applicant by telephone at the time of the hearing. The evidence demonstrates that the Tribunal did attempt to contact the applicant by telephone (as well as email) to give him a chance to explain the issues on review or clarify anything that he wanted to clarify.

34. To the extent that the applicant makes reference to his “genuine intention to study”, notably this was never an issue in this case. The applicant’s genuine financial capacity was the issue. Why the applicant wished to clarify or explain his genuine intention to study is irrelevant and immaterial.

35. For the reasons explained above and in relation to ground 1, the Tribunal did provide the applicant with procedural fairness.

36. Ground 2 is dismissed.

    Ground 3

37. As with ground 1, the Court will break ground 3 into smaller components.

38. Ground 3 begins as follows:

    The main reason behind filing this appeal application at the Federal Circuit Court is that I believe that the tribunal member making the decision at the AAT has not been fair and have not given natural justice to my particular case.

39. For the reasons given in ground 1 and ground 2, the applicant was provided with procedural fairness.

40. Ground 3 continues:

    I have a strong view that AAT should have considered the fact that I was capable of providing financial evidences and had a fair chance of approval. I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was having some documents that were evidencing the genuine intention to study and evidences of finances, I still satisfy the clause 500.214.

41. It appears that the applicant is stating that he has the necessary documents to satisfy the criterion and the Tribunal should have known that he had “a chance of approval”.

42. The applicant had more than one chance to provide the necessary documents. He did not do so. Further, there was nothing to suggest that the applicant was “capable” of “providing financial evidences”. The applicant had been on notice since the delegate’s decision of what information was necessary. The applicant’s agent had also not indicated that evidence was forthcoming. Accordingly, it was open to the Tribunal to proceed on the basis that the applicant had had ample time to provide any documents and his not doing so meant that he was not capable of meeting the relevant criteria.

43. Again, the reference to “genuine intention to study” is irrelevant here.

44. Finally, the applicant had not provided any evidence of finances to satisfy cl 500.214 at the time of the Tribunal’s decision. Hence, he could not satisfy cl 500.214.

45. No jurisdictional error arises.

46. The applicant concludes:

    I request the Federal Circuit Court to please shed some light in my case and provide justice to me. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered as I have been a genuine applicant who has made genuine efforts to study and gain academic knowledge and recognition from an Australian institute. I genuinely hope you will consider my scenario and provide justice to my case. If there is anything else required to support my claims and application, please do contact me.

47. These statements are pleas for relief. They do not identify jurisdictional error.

48. Ground 3 is, accordingly, dismissed.

    CONCLUSION

49. The application for judicial review fails to identify any jurisdictional error. The Court is otherwise satisfied that no error arises. Accordingly, the Court has dismissed the application on 17 March 2021 for that reason.

50. The Minister sought costs fixed in the amount of $5,000. This is well below the current scale amount of $7,467. The Minister filed detailed written submissions in this matter and was prepared to proceed to final hearing. The sum sought is reasonable and appropriate and for that reason a further order was made for the applicant to pay the first respondent’s costs fixed in the sum of $5,000.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       19 March 2021