Sajuela v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 739
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sajuela v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 739
File number: MLG 71 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 7 September 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal to dismiss review application pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) due to applicants’ failure to appear at hearing –
whether Tribunal properly notified applicants of invitation to attend a hearing – whether Tribunal denied applicants procedural fairness by failing to give them a hearing – no jurisdictional error – application dismissedLegislation: Constitution s 75
Migration Act 1958 (Cth) ss 360, 360A, 361, 362B, 362C, 368, 379A, 379C, 379G, 476, 477
Migration Regulations 1994 (Cth) reg 4.21, cll 500.211, 500.311
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73
NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184
SZLBE v Minister for Immigration and Citizenship [2008] FCA 1789
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 2 September 2022 Place: Perth The Applicants: In person Counsel for the First Respondent: Ms M Harradine Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 71 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOAN PADA SAJUELA
First Applicant
SANDY LOUIS PANULDE SAJUELA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
7 September 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 pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The applicants applied to the Tribunal for review of an earlier decision made by a delegate of the Minister not to grant them Student (Temporary) (Class TU) Subclass 500 visas (student visas). On 12 December 2017 the applicants 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). On 9 February 2018 the Tribunal confirmed the dismissal decision in circumstances where the applicants did not apply for reinstatement within the 14 day period (confirmation decision). By the application to this Court filed on 11 January 2018, the applicants seek judicial review of the dismissal decision.
For the reasons explained below, I have found that there is no jurisdictional error in the Tribunal decision and I dismiss the application to this Court.
Background
The applicants are non-citizens who applied for student visas on 30 August 2016. The first applicant was the primary visa applicant and the second applicant, who is the spouse of the first applicant, was included in the application as a member of the same family unit.
On 21 March 2017 a delegate of the Minister made a decision not to grant the applicants student visas. The delegate was not satisfied that the first applicant was enrolled in a course of study as required by cl 500.211(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied that the second applicant was a member of the same family unit of a person who holds a student visa as required by cl 500.311.
On 24 March 2017 the applicants lodged an application for review of the delegate’s decision. They recorded in their application that they were represented by a registered migration agent and provided contact details for that migration agent, in addition to their own contact details.
On 16 November 2017 the Tribunal sent to the applicants an invitation to attend a hearing on 12 December 2017. The notice of the invitation to attend a hearing was sent to the applicants by way of email sent to their migration agent at the email address provided in the application. Amongst other things, the notice of the invitation to attend a hearing 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 taken to be affirmed.
On 21 November 2017 the applicants’ migration agent sent an email to the Tribunal indicating that the applicants wanted to cancel their representation and act on their own behalf. The email attached a Change of Contact Details form signed by the first applicant which indicated that the applicants withdrew their previous authorisation of a person to receive correspondence on their behalf and to act as their representative.
On 5 December 2017 and 11 December 2017 the Tribunal sent SMS messages to the applicants at a mobile phone number provided in their application as the mobile phone number of the first applicant. The SMS message sent on each occasion read:
Reminder – Your AAT hearing is on 12/12/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
The applicants failed to appear at the Tribunal hearing on 12 December 2017 and the Tribunal made the dismissal decision. The Tribunal notified the applicants of the dismissal decision on 13 December 2017. The notification was sent to the applicants by email and advised them that:
You may apply to us, in writing, for reinstatement of the application by 27 December 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 applicants did not apply to the Tribunal for reinstatement of their application within the 14 day period.
Case notes made by Tribunal officers record that the first applicant presented at the Tribunal front counter on 5 January 2018 with a copy of the letter sent on 13 December 2017 notifying the applicants of the dismissal decision and asked about her options. The case notes record that the first applicant was advised that the date by which she could seek reinstatement had passed, but a decision had not yet been made. The case notes also record that the first applicant presented at the Tribunal front counter again on 11 January 2018 to request an update as to whether a decision had been made, and was advised that a decision had not yet been made.
The applicant then filed the application for judicial review on 11 January 2018.
On 9 February 2018 the Tribunal made the confirmation decision.
TRIBUNAL DECISIONS
Dismissal decision
The Tribunal’s reasons comprise only three paragraphs, set out here in full (reproduced without alteration):
1.The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 12 December 2017 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.
1.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, 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.
1.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
The Tribunal was satisfied that the applicants had been notified of the dismissal decision and given a copy of a written statement setting out the decision and its reasons pursuant to s 362C(5) of the Migration Act. The Tribunal was also satisfied that the applicants were advised that reinstatement of the application could be sought within 14 days of receiving the dismissal decision and that failure to apply for reinstatement within this period would result in confirmation of the dismissal decision.
The Tribunal found that the applicants did not apply for reinstatement of the application within the 14 day period and therefore confirmed the decision to dismiss the application.
Proceedings before this court
The application for judicial review of the dismissal decision was filed within 35 days of that decision, within the timeframe prescribed by s 477(1) of the Migration Act.
The applicants raise three grounds of application (reproduced without alteration):
1.I was not advised of the hearing date and time properly and feel that I was not provided procedural fairness as I was not confirmed about my hearing and thus not afforded the opportunity of a hearing to explain my circumstances.
2.I also feel that Natural justice was not given to me as no application should be decided without allowing the applicant proper opportunity to comment on their application.
3.I also feel that the law was incorrectly applied as the AAT did not attempt to contact me personally even though I had provided my telephone and home address. It was such an important application for me and I feel that a direct refusal of my review is very harsh punishment for missing one hearing for which I was not properly notified anyway.
The only relief sought by the applicants in their written application was a writ of certiorari for the Tribunal’s decision to be quashed. As the Minister identified in written submissions filed on 17 August 2022, the Court’s jurisdiction under s 476 of the Migration Act is the same as the High Court’s jurisdiction under s 75(v) of the Constitution, which does not extend to matters where only a writ of certiorari is sought. At the hearing, I made an order to allow the applicants to orally amend their application to seek a writ of mandamus. The Minister did not object to this, and I thank the Minister for raising this issue in written submissions.
The application was accompanied by an affidavit affirmed by the first applicant, in which the first applicant relevantly deposed that:
(a)the Tribunal hearing was scheduled on 12 December 2017 but she expected the Tribunal to set a new hearing date after her migration agent had stopped representing her;
(b)the Tribunal should have sent her another email confirming that the hearing scheduled on 12 December 2017 would still proceed even if she was representing herself; and
(c)she never received any letter, email or phone call from the Tribunal to let her know that she would not get another hearing date.
A Registrar of this Court made an Order on 17 October 2018. The Order required, amongst other things, that the applicants file any amended application, any supplementary court book and written submissions 28 days before the hearing. The applicants did not file any documents in accordance with the Order. Both applicants attended the hearing and the first applicant made oral submissions on behalf of the applicants. The Minister filed written submissions in accordance with the Order and Ms Harradine appeared at the hearing on behalf of the Minister and made oral submissions. I have considered the submissions of both parties in addressing the grounds.
cONSIDERATION
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief, the applicant must establish that the Tribunal decision is affected by jurisdictional error.
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 (SZMTA), 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.” (emphasis added)
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the possibility of a successful outcome: SZMTA at [45].
Ground 1
Ground 1 raises two separate, but related, issues, namely:
(a)whether the applicants were properly notified of the hearing before the Tribunal; and
(b)whether the applicants were denied procedural fairness by not being afforded an opportunity to attend a hearing.
The Tribunal’s obligations to invite an applicant to a hearing are set out in the Migration Act. The Tribunal was required by s 360 of the Migration Act to invite the applicants to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. It did so in this case and arranged a hearing to be held on 12 December 2017.
The Tribunal was required to give the applicants notice of that invitation to appear in accordance with s 360A of the Migration Act. Section 361 of the Migration Act further required that the notice under s 360A include certain information about the invitation to give evidence and present arguments. I accept the Minister’s submission that the notice of the invitation to attend a hearing that was sent to the applicants on 16 November 2017 was valid. In particular, I find that the notice complied with the requirements in ss 360A and 361 and I make the following observations about the manner in which the notice complied with those requirements and the applicants’ receipt of the notice:
(a)Section 360A(1) required that the Tribunal give the applicants notice of the day on which, and the time and place at which, the applicants were scheduled to appear. The notice sent on 16 November 2017 clearly set out the date, time and place of the scheduled hearing on the first page.
(b)Section 360A(2)(a) required that the notice must be given to the applicants by one of the methods specified in s 379A of the Migration Act. Section 379A(5) allowed the Tribunal to give the notice to the applicants by transmitting the notice by email to the last email address provided to the Tribunal by the applicants in connection with the review. The notice dated 16 November 2017 was given to the applicants by email sent to their migration agent. At the time the notice was sent, the migration agent was the authorised recipient for the applicants and his email address was the last email address provided to the Tribunal for communicating with the applicants in connection with the review.
(c)The applicants were deemed to have received the notice of the invitation to attend a hearing at the end of 16 November 2017. This is the effect of s 379C(5) of the Migration Act, which provides that if the Tribunal gives a document to a person by email, the person is deemed to have received the email at the end of the day on which it was transmitted, and s 379G(2) which provides that if the Tribunal gives a document to an authorised recipient, it is taken to have given the document to the applicant.
(d)Section 360A(4), read in conjunction with reg 4.21(4) of the Regulations, required that the period of notice given to the applicants must be at least 14 days from the day on which the applicants received the notice of the invitation to appear. As discussed above, the hearing was scheduled to be held on 12 December 2017 and the applicants were taken to have received the notice at the end of 16 November 2017. The applicants in the present case were therefore given 26 days’ notice of the hearing, which exceeds the 14 day period prescribed by reg 4.21(4).
(e)Section 360A(5) required that the notice contain a statement of the effect of s 362B of the Migration Act. Section 362B sets out the options available to the Tribunal in the event that an applicant fails to appear at the scheduled hearing. A statement of the effect of s 362B was set out in the notice itself (see [6] above) and in the information sheet that accompanied the notice.
(f)Section 361 required that, in the notice under s 360A, the Tribunal:
(i)notify the applicants that they are invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and
(ii)give information to the effect that the applicants may, within seven days of the notification, give the Tribunal written notice that they want the Tribunal to obtain oral or written evidence from a person named in the notice or other written material relating to the issues arising in relation to the decision under review.
The notice sent on 16 November 2017 clearly indicated that the applicants were invited to appear before the Tribunal to give evidence and present arguments relating to the issues in that case. The information sheet that accompanied the notice clearly advised the applicants that they may, within seven days after being notified that they were invited to attend a hearing, give the Tribunal written notice that they wanted the Tribunal to take oral or written evidence from a person or persons named in the notice or to obtain other written material.
In circumstances where the notice of the invitation to attend a hearing complied with all relevant statutory requirements, I do not accept the applicants’ assertion that they were not ‘properly’ notified of the Tribunal’s invitation to attend a hearing. As the Tribunal sent to the applicants, by a method specified in s 379A of the Migration Act, a notice of invitation which complied with the requirements of s 360A, the applicants are deemed to have received the Tribunal’s notice of invitation to a hearing, irrespective of whether they in fact did not see the notice: see, for example, NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16].
In any event, the applicants have not suggested that they were not aware of the hearing. Rather, the first applicant deposed in her affidavit:
My hearing was earlier scheduled at 12 December 2017. However, after withdrawing my Migration Agent, I had thought that I would be contacted by the AAT by email to set a new hearing date and I was constantly checking my emails in relation to same.
The first applicant acknowledged in her oral submissions to the Court that it was the applicants’ mistake that they thought a new hearing would be listed.
There is nothing in the notice of the invitation to attend a hearing or the information sheet that accompanied it that suggested that the hearing may not proceed if the applicants’ migration agent was no longer to represent them. Further, the Tribunal’s two SMS messages (referred to at [8] above) were sent to the first applicant’s mobile number and clearly confirmed that the hearing was scheduled to take place on 12 December 2017.
Any error by the applicants in thinking that the hearing would not proceed given that their migration agent was no longer representing them is not attributable to the Tribunal and does not vitiate the Tribunal decision.
For these reasons, I do not accept the applicants’ assertion that they were not afforded the opportunity of a hearing to explain their circumstances. A more accurate explanation of what happened is that the Tribunal afforded the applicants an opportunity to attend a hearing, but they did not avail themselves of that opportunity.
Ground 1 is not established.
Ground 2
The issue for determination in relation to ground 2 is whether the applicants were denied natural justice because they were denied a proper opportunity to comment on their application.
In many ways, ground 2 overlaps with ground 1 and, for the same reasons I do not accept that the applicants were denied an opportunity to attend a hearing, or that they were denied an opportunity to comment on their application.
Further, in making the dismissal decision, the Tribunal has proceeded in a manner which was open to it.
Pursuant to s 362B(1A), where an applicant is invited under s 360 to appear at a hearing, and does not appear before the Tribunal on the day on which, and at the time and place at which, the hearing is scheduled, the Tribunal may:
(a)by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under s 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
The Tribunal also has the option of rescheduling the hearing if it considers it appropriate to do so: s 362B(2) of the Migration Act.
In the present case, for the reasons I have set out in relation to ground 1, the applicants were properly invited to a hearing under s 360 of the Migration Act. Upon their failure to appear at the scheduled hearing on 12 December 2017, the Tribunal’s powers under s 362B(1A) of the Migration Act were enlivened. The Tribunal was not required, as a matter of procedural fairness or natural justice, to invite the applicants to comment on whether it should proceed in one of the ways set out in s 362B(1A) before it exercised its power to dismiss the application: see SZLBE v Minister for Immigration and Citizenship [2008] FCA 1789 at [35].
I also note for completeness that, after the dismissal decision was made, the applicants had an opportunity, within 14 days of the date they received the Tribunal decision, to apply in writing for their application to be reinstated. They were advised of this opportunity in the notice of the dismissal decision (see [9] above), and in the information sheet that accompanied that notice. However, the applicants did not make any application for reinstatement. In circumstances where the applicants failed to apply for reinstatement within 14 days of being notified of the dismissal decision, the Tribunal was required to confirm the dismissal decision: s 362B(1E) of the Migration Act.
Ground 2 does not establish jurisdictional error in the Tribunal decision.
Ground 3
By ground 3, the applicants assert that:
(a)the Tribunal erred by not attempting to contact the applicants personally even though they had provided a telephone number and home address; and
(b)the making of the dismissal decision is a ‘harsh punishment’ for missing one hearing.
There was no obligation on the Tribunal to contact the applicants personally to advise them of the hearing after they withdrew the authority for the migration agent to represent them. The Tribunal, having invited the applicants to attend a hearing in accordance with s 360 of the Migration Act and notified them of that invitation in accordance with s 360A, was under no further obligation to take additional steps to ensure that the applicants were aware of the hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 at [39].
In any event, even though it was not required to do so, the Tribunal did take additional steps to ensure the applicants were aware of the hearing by sending the two SMS hearing reminders, referred to at [8] above, to the first applicant’s mobile number. Those SMS messages were sent one week and one day before the hearing respectively, and clearly confirmed that the applicants’ application was still listed for hearing on 12 December 2017. Contrary to the applicants’ assertion in ground 3, the Tribunal did contact them personally using the mobile number that they provided.
The applicants’ suggestion that the dismissal decision was harsh, which they repeated in their oral submissions to the Court, might, on a very generous reading of the ground, be interpreted as an assertion that the Tribunal acted unreasonably in making the dismissal decision.
The power of the Tribunal to make the dismissal decision pursuant to s 362B(1A)(b) of the Migration Act is a discretionary power, and is subject to the presumption that it be exercised reasonably: see, for example, Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [4], [89], [134].
The applicants have not established that the Tribunal acted unreasonably in dismissing their application. The Tribunal was satisfied that the applicants had been properly notified of the hearing, that they had been advised that the application for review might be dismissed if they did not attend the hearing, and that they had been sent the SMS hearing reminders. The Tribunal further noted that the notice of the invitation to attend a hearing had not been returned to sender and the applicants had not given any satisfactory explanation for their non-appearance. The reasons given by the Tribunal disclose a rational basis for the dismissal decision.
Contrary to the applicants’ assertion, the dismissal decision should not be viewed as a ‘harsh punishment’. The dismissal decision is not a punishment, but rather the exercise of a discretionary power available to the Tribunal to progress a review application in circumstances where the applicants, properly notified of the hearing, failed to appear at that hearing. Further, as noted above, if they considered the dismissal decision to be harsh, they could have applied for reinstatement of their application but did not do so.
Ground 3 is not established.
Further issue raised in oral submissions
In her oral submissions to the Court, the first applicant also submitted that her confirmation of enrolment had not been cancelled. This does not assert or establish any jurisdictional error in the Tribunal decision, and the Court does not consider for itself whether the applicants are entitled to student visas.
Conclusion
I have found that jurisdictional error has not been established in the Tribunal decision. It follows that the application to this Court is dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 7 September 2022
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