Shrestha v MIBP

Case [2014] FCCA 34

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 34
Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – alleged failure of the Tribunal to fulfil its obligations under s.360 – whether a letter “invited” the applicant “to give information” pursuant to s.359 – Jurisdictional error found – relief granted.

Legislation:

Migration Act 1958 (Cth), ss.354, 359, 359A, 359B, 359C, 357A, 360, 363A, 476.

Migration Regulations1994 (Cth), Sch 2.
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Immigration and Citizenship v Li [2012] FCAFC 74
SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) ALR 162
VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Applicant: SURESH KUMAR SHRESTHA
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 506 of 2013
Judgment of: Judge Nicholls
Hearing date: 28 November 2013
Date of Last Submission: 28 November 2013
Delivered at: Sydney
Delivered on: 17 January 2014

REPRESENTATION

Counsel for the Applicant: Mr J R Young
Solicitors for the Applicant: Shamsa Thapa & Associates
Counsel for the Respondents: Mr J Smith
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The title of the first respondent be amended to read “Minister for Immigration and Border Protection”.

  2. A writ in the nature of certiorari issue quashing the decision of the second respondent, dated 21 February 2013, to affirm the decision of the delegate of the first respondent to refuse to grant a Student (Temporary) visa to the applicant

  3. A writ in the nature of mandamus requiring the second respondent to determine according to law the application for a review made by the applicant.

  4. The first respondent pay the applicant’s costs set in the amount of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 506 of 2013

SURESH KUMAR SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 14 March 2013 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 21 February 2013, which affirmed the decision of the Minister’s delegate not to grant a Student (Temporary) visa (“the visa”) to the applicant.

Background

  1. The applicant applied for the visa on 3 November 2010. (CB 1 to CB 10 with annexures). He was assisted by a registered migration agent. The delegate refused to grant the visa because the applicant did not satisfy the relevant requirements of cl.572.223 of Schedule 2 of the Migration Regulations1994 (Cth) (“the Regulations”) (CB 14 to CB 17).

  2. The applicant applied to the Tribunal for review of…

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AGLC
SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 34
Case
[2014] FCCA 34
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Shrestha against a decision of the Migration Review Tribunal (MRT). The MRT had affirmed the decision of the Minister for Immigration and Border Protection to refuse Mr Shrestha's application for a Skilled — Independent (Class SA) visa. The dispute centred on Mr Shrestha's failure to provide requested information to the MRT within the prescribed timeframe.

The primary legal issue before the Federal Circuit Court was whether the MRT had erred in law by proceeding to make a decision on the review without further inquiry, despite receiving some, but not all, of the requested information after the deadline. Specifically, the court was asked to consider the application of sections 359C, 360(3), and 363A of the *Migration Act 1958* (Cth) in circumstances where the applicant failed to provide all required documentation by the specified date and did not seek an extension of time.

Judge Nicholls found that the MRT had correctly applied the relevant legislative provisions. The court noted that the MRT had provided Mr Shrestha with a clear deadline of 20 February 2013 to provide evidence addressing specific requirements, including those related to financial capacity and other matters. The MRT had also explicitly warned that failure to provide the information or seek an extension by that date would result in the Tribunal making a decision based on available information and the loss of entitlement to appear. As no extension was sought and the full information was not provided by the deadline, the MRT was entitled to proceed under section 359C and, consequently, Mr Shrestha was not entitled to a hearing under section 360(3). The court affirmed that, in accordance with section 363A, if an applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear.

The court therefore dismissed Mr Shrestha's appeal, upholding the MRT's decision to determine the review on the information available without further steps to obtain additional information from the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal’s decision record states at [18] (at CB 68) to [20] (at CB 69) that:“[18] The Tribunal wrote to the applicant to his appointed representative on 4 January 2013 by registered post advising of the above Schedule 5A to the Regulations requirements for Assessment Level 4 for Subclass 572 and requesting he provide evidence of meeting those requirements. He was invited to provide evidence of the requirements and respond and this was to be received by 20 February 2013. The letter further provided that he may ask the Tribunal for an extension of time however, if making such a request it must be received by the Tribunal before 20 February 2013 and must state the reason why the extension of time is required. The letter detailed that: If the Tribunal does not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.[19] No response was received to that request within the prescribed time, and no request for an extension of time was made. The registered post letter is noted on Australia Post tracking as having been delivered on 30 January 2013.[20] The Tribunal received a faxed letter from the applicant dated 21 February 2013 and received at 11.31am on 21 February 2013. In that submissions he provides evidence of an IELTS score of 5.0 dated 25 February 2012, and claims he has now transferred his course to TAFE. He notes he has completed an Advanced Diploma of Business Management and then commenced at Central College to undertake a Bachelor of Business Management, though then changed his mind and decided to continue with a Certificate III in Hospitality – Patisserie. The provider, Carrick Institute of Education, then decided not to continue with this course, and he then made no arrangements with TAFE to complete the Certificate III. He provided no confirmation of this from TAFE. He made no submissions and provided no information in relation to clause 5A405 relating to Financial capacity, and no information in relation to Clause 5A406 Other requirements.”[Emphasis in Original.] The Tribunal noted at [21] and [22] (at CB 69) that: “[21] The applicant has not provided the information within the prescribed period (by 20 February 2013) and no extension has been sought or granted. In these circumstances s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The applicant has provided information that responds in part to the Tribunal letter of 4 January 2013 though has not provided any information relating to Financial capacity or Other requirements.[22] In such circumstances the Tribunal has determined to determine the matter on the information available and without taking further steps to obtain any additional information from the applicant.”[Emphasis Added.]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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