Sandhu v Minister for Immigration
[2016] FCCA 425
•12 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDHU v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 425 |
| Catchwords: MIGRATION – Judicial review – show cause hearing – invitation to appear. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), ss.360, 360A |
| SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 |
| Applicant: | PARABJOT KAUR SANDHU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1145 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 12 February 2016 |
| Date of Last Submission: | 12 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 12 February 2016 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Ms Wong |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application filed on 21 May 2015 is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1145 of 2015
| PARABJOT KAUR SANDHU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter was listed today for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). Matters are listed for a show cause hearing when there is an issue raised that the applicant has failed to raise an arguable case for relief. The rule is clear that the Court may find that there is an arguable case for relief and, if that is the case, adjourn it for a final hearing. If the Court is satisfied that there is not an arguable case for relief, then the Court may dismiss the application. The applicant filed an application for judicial review on 19 May 2015 and set out the following complaints:
(1) MRT took account of irrelevant considerations;
(2) MRT erred at law; and
(3) MRT failed to take account of relevant considerations.
It is apparent from Ms Sandhu’s submissions today that the real complaint she has is that she did not receive the invitation to attend the Tribunal hearing and only found about it after the decision had been made. The applicant had applied for a temporary student visa under subclass 572.
The Migration Regulations 1994 (Cth) at clause 572.233 set out the requirements for a student to satisfy the visa conditions. The Court Book (CB) shows at pages 111 to 114 a covering email and letter inviting the applicant to appear before the Tribunal. The invitation sets out the information that the Tribunal required in order to determine her application. These included a current certificate of enrolment, documents showing enrolment in a course or an offer, documents with respect to past studies and any explanation for any gaps in enrolments and other documentary evidence.
CB 92 and 93 contain the application for review of the Delegate’s decision and includes details of the applicant’s registered migration agent being JK Legal. It provides the contact details for her representative and the email address which appears at CB 93 is the same email that appears at CB 110 and 111. I am satisfied that the invitation complies with the requirements that are set out in sections 360 and 360A of the Migration Act 1958 (Cth). The regulations set out the methods the tribunal is required to use when sending correspondence to an applicant.
If the applicant has nominated a representative as her point of contact, then the Tribunal is only obliged to send the information to that applicant’s agent and not additional copies to the applicant herself. There is no obligation on the Tribunal to ensure that the correspondence was in fact received by the applicant and that is the issue the applicant raises here. The applicant says that her agent did not send her a copy of the invitation and that she had called her agent and they said they had not received anything. She says this from the bar table and has not filed documents with respect to this.
The Tribunal also sent two text reminders to the applicant on her phone and the applicant says that she did receive those but she had lost her phone for three days and did not see the text messages until the decision date had passed. As Ms Wong for the first respondent points out, the Tribunal is not obliged to send text message reminders as an additional attempt by the tribunal to put the applicant on notice of the proceedings.
As I explained to the applicant during the course of the hearing, the legislative requirements are quite clear that the obligation is on the Tribunal to dispatch the notices in accordance with one of the methods set out in the legislation, which includes by email. However, that does not place an obligation on the Tribunal to ensure that the recipient has in fact received it. The invitation to attend the Tribunal hearing was dated and sent on 25 March 2015 to the applicant’s representative by email.
The hearing was listed for 27 April 2015 which was one month later. I am satisfied in those circumstances that the Tribunal has complied with the requirements under the Act with respect to inviting the applicant to attend the hearing and give evidence and I accept that whilst, from the applicant’s perspective, it no doubt seems unfair, it is clear that the legislative requirements have been complied with. The next issue would be to consider whether or not the Tribunal has acted unreasonably in proceeding to make the decision based on the material available to it without taking any other action.
It is apparent from the reasons that the Tribunal has given that it considered the documents it had before it and considered the information before the Delegate. The decision refers to concerns with respect to the applicant’s study record and gaps in her study and it is not apparent that, based on the information it had, that it unreasonably reached the decision to affirm the Delegate’s decision.
I also note that the Registrar made directions on 16 September 2015 which provided the applicant the opportunity to put on further material if she wished to do so and the submissions prepared by the first respondent, which the applicant acknowledged receiving, also identified the arguments that would be made today. Ms Wong referred to a decision of the Full Court of SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 which is a decision of Besanko J. In that decision Besanko J said that:
“It is not enough for an agent to act negligently or incorrectly. It must be that he or she acted fraudulently. To establish that someone has acted fraudulently is a much higher test than someone acting negligently.”
In the circumstances, I am not satisfied that the applicant has raised an arguable case and, I will therefore dismiss her application. The respondent is seeking costs in the sum of $3,416. That is in accordance with the Court scale for a show cause hearing. I am satisfied that it is appropriate to make the order in accordance with the scale. It is the usual flow of costs in matters such as this therefore I will order that the applicant pay the first respondent’s costs in the sum of $3,416.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 2 March 2016
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