Shrestha v Minister for Immigration

[2014] FCCA 840

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 840

Catchwords:
MIGRATION – Application for judicial review – lodged 118 days out of time – application to extend time – whether acceptable explanation for the delay – whether merits warrant extension – whether prejudice to the respondent – invitation to appear returned to sender – decision returned to sender – whether applicant taken to have received the documents.

Legislation:

Federal Circuit Court Rules2001, r.44.05(2)(c)

Migration Act 1958 (Cth), ss.65(1)(b), 357, 360, 362, 363, 379, 425, 426, 477

Migration Regulations 1994, reg.1.04A

Aneja v Minister for Immigration & Anor [2014] FCCA 413
Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] 297 ALR 225
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73
Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191
NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 1045
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457
SZFLD v Minister for Immigration and Multicultural Affairs [2006] FMCA 878
SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328
VNAA v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC
Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

Applicant: JATEEN BAHADUR SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1202 of 2013

Judgment of: Judge F. Turner

Hearing date: 21 March 2014

Date of Last Submission: 21 March 2014

Delivered at: Melbourne

Delivered on: 5 May 2014

REPRESENTATION

The Applicant appeared In Person

Solicitors for the Respondents: Sparke Helmore

ORDERS

(1)The application for an extension of time pursuant to s.477 of the Migration Act 1958 is dismissed.

(2)The application for judicial review filed 31 July 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1202 of 2013

JATEEN BAHADUR SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1.This is an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 28 February 2013 (Court Book “CB” p.125). That decision affirmed the decision of a delegate to the Minister for Immigration & Border Protection not to grant the applicant a Student (Temporary) (Class TU) visa.

2.The grounds for judicial review are set out in a document attached to the application filed on 31 July 2013 (a copy of which is attached and marked Annexure ‘A’).

3.On 16 October 2013 Registrar Caporale ordered the applicant to file and serve written submissions 14 days before the hearing – that was not done.

4.At the hearing on 21 March 2014, the applicant was self-represented and the first respondent was represented by Mr Priest.

5.The Court invited the applicant to put submissions in support of his application. He agreed that both the invitation to attend the hearing and a copy of the decision were sent to his correct address. The Court finds that the documents were sent to the correct address (CB pp. 111, 117, 124).

6.The applicant submits that he did not receive the documents. Both letters were returned to sender. The Migration Act 1958 (the “Act”) provides that once the Tribunal has served a document by a method prescribed in the Act, the person is taken to have received the document [s.379C(4)].

7.After the hearing before the Court, the Court reserved its decision.

8.The applicant applies for an extension of time to lodge his application for judicial review. The decision of the Tribunal is dated 28 February 2013. The applicant filed his application for judicial review on 31 July 2013. It was therefore 118 days outside the 35 day limit prescribed by s.477.

9.The first test for an extension of time is “whether the applicant has specified in writing why the applicant considers that it is necessary in the interests of the administration of justice to make an order?” That has been done in the application as follows:

(1)Didn’t receive letters from Tribunal.

(2)Missed out on the court hearing because of the failure in communication with the Tribunal.

(3)Refer to attached document.

10.The next test for an extension of time is “whether the merits of the substantive application warrant an extension of time?” The Court accepts the written submissions filed 14 March 2014 by the first respondent as follows:

(15)To fall within the period of 35 days prescribed by s 477(1) of the Act, the judicial review application had to be lodged on or before 4 April 2013. It is 118 days late and is incompetent by virtue of
s 477(1), unless the Court grants an extension of time pursuant to
s 477(2). The period of delay is substantial.

(16)The factors to be considered by the Court in determining whether to grant an extension of time are that the applicant must show an acceptable explanation of the delay; any prejudice to the respondent in defending the proceedings; and the merits of the substantive application. However, this is not an exhaustive list and the Court should have regard to all the circumstances[1].

(17)While there is no prejudice to the respondent from the delay in commencing the application, the Applicant has not adequately explained the reason for the delay nor is there substantial merit in his substantive application….

[1] Li v Minister for Immigration and Anor [2011] 12 at [35]; SZMFJ v Minister for Immigration and Anor [2009] FMCA 771 at [44]; SZNZU v Minister for Immigration and Anor [2009] FMCA 366 at [55]

Explanation for the delay

(18)The Applicant has not filed any affidavit evidence to explain the delay or why an extension should be granted as required by
r 44.05(2)(c) of the Federal Circuit Court Rules 2001. Rather, the Applicant simply asserts in his application that he did not receive correspondence from the Tribunal. However the Tribunal emailed its decision to the Applicant on 1 March 2013 to the address provided on his application form: (CB 128.) As a result of the operation of ss. 379A and 379C of the Act, the Applicant was deemed to have received this email at the end of the day on which the document was transmitted.

The Court notes that a copy of the decision was also sent to the applicant by registered post on 1 March 2013 (CB p.124).

11.At the hearing before the Court, the applicant stated that he did not receive the decision.

12.The first respondent continues:

Merits of substantive application

Enrolment

(19)In his application, the applicant asserts he was continuing his bachelor of accounting studies at the Australian Technical and Management College at the time he lodged his application for review with the Tribunal. He provided no evidence of this enrolment to the Tribunal and as a result the Tribunal correctly determined there was no evidence before it which suggested the applicant satisfied the requirement of relevant visa subclasses.

Service

(20)The applicant in his application states that he did not receive the hearing invitation from the Tribunal.

(21)As noted above at point 7, the Tribunal sent a letter (the invitation to appear) by registered post on 9 January 2013 to the applicant to the address provided on his application form (CB p.111) inviting him to attend a hearing. There is no evidence that the applicant had ever provided a different address. As a result, by virtue of the operation of ss 379A and 379C, the Applicant is deemed to have received this letter 7 working days after it was sent: 18 January 2013.

(The Court notes that the invitation to attend is at CB p.117.)

Return to Sender cases

(22)Although not raised by the Applicant in his grounds of application, to the extent it might be argued that the Tribunal should have had regard to the fact that the hearing invitation was returned to it in the exercise of its discretion under s.362B of the Act, the first respondent makes the following points.

(23)There is no obligation falling upon the Tribunal to ‘search and discover’ a method of communication with an applicant in circumstances where correspondence has been returned to sender[2]. The Tribunal is expressly empowered to proceed under s.362B of the Act to make a decision without taking any further action to enable the applicant to appear. Although the power conferred by s 362B must be exercised reasonably and cannot be exercised capriciously, the election to make a decision on the review is not, by itself, the expression of an unreasonable exercise of the power[3]….

[2] NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 1045 at [22].

[3] NBBL at [20]-[21]; Kaur v Minister for Immigration & Anor [2010] FMCA 822.

(24)In the case of NBBL v Minister for Immigration and Multicultural and Indigenous Affairs[4], Greenwood J held that in circumstances where there has been compliance with ss425 and 425A (the equivalents here are ss 360 and 360A) and the applicant fails to attend, having expressed an intention to attend, the Tribunal is entitled to proceed to make a decision on the review pursuant to s 426A (the equivalent of s 362B). The fact that the applicant was unaware of the hearing and that the Tribunal was aware of this because of the hearing invitation ‘returned to sender’ is of no legal relevance. The Tribunal was not required to take into account the fact that the invitation to hearing was returned to sender (Aneja v Minister for Immigration & Anor [2014] FCCA 413 at [11], [33] and [34]). The case relied upon by Greenwood J was Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439. Although the facts were slightly different, comments made by the Full Federal Court are of general application. In particular, the court noted at [39] of its decision that “…the Tribunal, having complied with one of the methods prescribed in s 425A … was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communication with the applicant.”

[4] Ibid.

(The Court finds that the same rationale applies here under s.379A).

(25)Justice Bennett in SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs further stated[5]:

[5] SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 at [30]

“[I]n NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184, the Full Court considered the failure on the part of a migration agent to notify an appellant of the Tribunal hearing and concluded at [16] that ‘the asserted fact that the applicant was unaware of the Tribunal's hearing was of no legal relevance’. In VNAA at [15-16] Sundberg and Hely JJ said that the Tribunal was not required in each case to be affirmatively satisfied that the invitation under s 425 had actually come to the notice of the applicant. Further, their Honours observed that the Tribunal is authorised to proceed to decide the review in the applicant’s absence notwithstanding that the applicant’s absence involved no fault on his or her part. VNAA was followed in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73.

If the Tribunal has complied with its statutory obligations and is entitled to proceed with the hearing in the absence of the applicant (VNAA; VSAF), is the Tribunal obliged to consider the reason for the non-attendance? In WAEE V Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [47] the Court found that it was unnecessary for the Tribunal specifically to advert to the return of the notification to the appellant as it was subsumed in the consideration that the Tribunal gave to the fact that the appellant had not appeared.

It is the case that the Tribunal has (sic ‘a’) discretion to defer the hearing but it is only if the Tribunal is obliged to do so that there is jurisdictional error. ‘The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject-matter, scope and purpose of the Act’ (citing Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40; in Minister for Immigration & Multicultural & Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 211 ALR 126 at [71] per Kiefel and Bennett JJ). As was found in NADK and is apparent from the statutory scheme, the fact that the appellant was unaware of the hearing and that the Tribunal may have had notice of this, was of no legal relevance. The Tribunal was not required to take into account the fact that the invitation to hearing sent to the appellant’s home address had been "returned to sender".”

(The Court finds those decisions to be of direct relevance to this matter).

(26)The authority of SZBCS was confirmed by the decision of SZFLD v Minister for Immigration and Multicultural Affairs [2006] FMCA 878 in which Driver FM held that he was bound by Bennet J’s reasons in SZBCS. Further, in the recent decision of Aneja v Minister for Immigration & Anor [2014] FCCA 413, Judge Denmack accepted at [23]-[25] the authority of NBBL and SZFHC that, having complied with one of the methods prescribed by s 360 of the Act, the Tribunal was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant. Her Honour also considered the recent decision of the High Court in Minister for Immigration v Li[6] but noted at [32] the warning of Gageler J about Li’s case being used improperly as it was a ‘rare case’ which would demonstrate unreasonableness. Her Honour noted at [34] that in this matter the Tribunal had done what was required of it and made a decision properly open to it.

(27)Sundberg and Hely JJ in VNAA v Minister for Immigration & Multicultural & Indigenous Affairs[7] further stated that the statutory scheme ‘expressly contemplates that in, particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant’. Notwithstanding that, the Tribunal is expressly authorised to proceed to decide the review in the applicant’s absence. As a result, the Tribunal was under no obligation to make further enquiries to locate the applicant.

[6] Minister for Immigration and Citizenship v Li [2013] 297 ALR 225.

[7] VNAA v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16].

Unreasonable exercise of discretion by Tribunal under s.362B

(28)Although not raised by the Applicant in his grounds, to the extent it might be argued that the Tribunal unreasonably exercised its discretion to hear the application in his absence, the following deals with that issue.

(29)In Minister for Immigration v Li, the High Court held the exercise of a discretionary power will be found to be “unreasonable” where there is a lack of an “evident and intelligible justification” for the decision to exercise that discretion.[8] However, applying a standard of legal reasonableness “does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker”.[9] Unreasonableness may be shown where “no sensible authority acting with due appreciation of its responsibilities” would have so decided.[10] Their Honours were careful to confirm that there is an area of “free discretion”, which “resides within the boundaries of legal reasonableness”.[11] The standard of legal reasonableness is that indicated by the “true construction of the statue”[12] As a result, it is necessary to have regard to the power exercised, within its statutory context.

[8] Li at [76] per Hayne, Kiefel and Bell JJ

[9] Li at 639 [66].

[10] Li at 639 [71], citing with approval Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064.

[11] Li at 637 [66].

[12] Li at [67].

(30)In the context of this matter, the construction of s 362B is informed by s 353, which provides that the Tribunal shall pursue the objective of providing a mechanism of review that is “fair, just, economical, informal and quick”; the requirement of s.357A(3) that in conducting a review the Tribunal must act in a way that is “fair and just”; the purpose of s 360 which requires the Tribunal to give an applicant a meaningful opportunity – a “real chance” – to appear and present evidence and argument[13] However, unlike the power to adjourn a hearing pursuant to s.363(1)(b) – which was considered in Li – the Tribunal is also expressly empowered to proceed under s. 362B of the Act to make “a decision on the review without taking any further action to allow or enable to applicant to appear before it” (emphasis added). This is a relevant consideration for the reason stated in Greenwood J in NBBL[14]:

[13] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [14].

[14] NBBL at [24].

“In conferring a power upon the Tribunal in terms of
s 426A, the Parliament necessarily had regard to the character of the review process undertaken by the Tribunal. Whilst that process might be described as inquisitorial, the power to elect to make a decision on the review in the circumstances of the conjunction of events contained within s 426A(1)(a) and (b) was expressly conferred in the context of the scope and role of the Tribunal under the Act.”

(31)In having regard to the statutory context of s. 362B it is also important to have regard to the deeming provisions of ss. 379A and 379C which expressly operate to provide when an Applicant has received a document from the Tribunal. The decisions cited in relation to “return to sender” cases make clear that these provisions operate such that the Tribunal does not have to make further enquiries.

(32)However the recent decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh makes clear where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look; the “intelligible justification” must lie within those reasons given by the decision maker[15]. The court noted[16]:

“In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]- [28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”.”

(33)In this matter, unlike Li and Singh, the Tribunal gave no reasons for exercising its discretion to proceed without taking further steps to allow the applicant to appear before it. Rather, all that it did was to recount the circumstances which enabled it to do so: CB 126 at [9] and [10]. However, for the reasons already outlined it was open to the Tribunal to act on the basis that it had notified the applicant of the hearing time and date in accordance with the Act and, in particular by sending the notice to the applicant’s nominated address for correspondence. Further, it is important to note Li and Singh concerned the power to adjourn a review under s.363(1), not the express power to hear a matter in the absence of an applicant under s 362B. As stated by Bennett in SZBCS, it is unnecessary for the Tribunal when exercising the power under s. 362B to specifically advert to the return of the notification[17]. Further, in these proceedings, there was no other information for the Tribunal to consider beyond the Applicant’s non-attendance that would warrant more detailed reasons for the exercise of 362B. In contrast with the Li decision, this was not an exceptional case where material was brought to the Tribunal’s attention which was relevant to the exercise of s discretion and which the “rules of reason” required the Tribunal to take into account.

(34)For these reasons, there was no error in the Tribunal’s exercise of its discretion to proceed to decide the review.

[15] Singh at [47].

[16] Singh at [44].

[17] SZBCS at [30] (sic “[31]”)

13.The Court has quoted large parts of the first respondent’s submissions because it finds them to be correct, directly relevant to, and persuasive in this matter. The Court applies the chain of reasoning that appears from them.

The merits of the substantive application

14.Nothing has been put by the applicant that establishes an error of law by the Tribunal. In the “letter” attached to the application (Annexure ‘A’), the applicant refers to “errors made by my university” – the Court finds that they are not errors of law by the Tribunal.

15.The applicant complains about not receiving a copy of the Tribunal’s decision. That issue has been addressed (supra).

16.The applicant then states that after completing his education he intends to return to Nepal – that raises no error of law by the Tribunal.

17.Nothing has been raised by the applicant that indicates an error of law by the Tribunal.

The decision of the Tribunal

18.The issue before the Tribunal was whether the applicant at the time of the decision, was enrolled in, or was the recipient of a current offer of enrolment in, a course of study that meets the requirements of the Migration Regulations 1994 (the “Regulations”) (CB p.126 [6]) (that is a principle course as specified in reg.1.40A of the Regulations for the subclass at the time of application).

19.Although “… the concept of onus of proof is not appropriate to administrative inquiries and decision-making…” (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts.

20.The Court refers to the following decisions:

·Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596:

“… the mere fact that a person claims fear of persecution… (for a particular reason) does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for… (the reason claimed). It remains… for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”

·A decision-maker is not required to make the applicant’s case for him or her: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45.

·Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at p.451.

21.The Court applies the decision SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 where the reasons that the applicant failed to establish this matter, include that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208, NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 confirm that this is a valid reason for the application (in SZIGQ (supra)) to be rejected.

22.The Tribunal found that there was no evidence before it “that the applicant is currently enrolled in or the subject of a current offer of enrolment in any course of study” (CB p.127 [11]). That finding of fact was open to the Tribunal on the material before it and is not amenable to review.

23.In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:

“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

24.The Tribunal found that the applicant did not satisfy the relevant clauses of the Regulations. That was not an error of law.

25.The Tribunal found at CB p.127:

13. As the Tribunal has found the applicant does not meet an essential requirement of Schedule 2 for visa subclasses 570, 571, 572, 573, 574 and 575, and as no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for the remaining Student (Temporary) (Class TU) visa subclasses, the decision under review must be affirmed.

14. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

26.If the first respondent is not satisfied that the criteria specified by the Act or Regulations have been met, the visa must be refused (s.65(1)(b) of the Act).

27.An error of law has not been established.

28.The Court finds that the substantive application is without merit.

29.The application for judicial review is without merit.

30.The application for an extension of time is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date:  5 May 2014

ANNEXURE ‘A’

To whom it may concern,

dear sir/madam,

I am writing in relation to the application for review attached to this document in respect of a refused decision by the migration review tribunal on 1st of March 2013.

I had applied to the department of immigration and citizenship for extension of my student visa on 30 september2010 but the delegate decided to refuse to grant the visas on 13thjuly 2011. I then applied to the tribunal on 3rd of august 2011 for the review of the delegate's decision. I strongly believe my case wasn't even suppose to go to the MRT office as there were too many errors made by the university, my migration agent of that time while  communicating with the immigration . I have emails and other documents which can prove my statement. One single error done by my university in my transcripts where they did not show a whole semester's transcripts led to refusal of my visa (assuming I had not been attending university during that  period time)  .it's taken more than 2 years for  me to be able to organize a face to face interview with someone who can help me with the issue.  Basically I had no chance to present the real situation and the causes of the miscommunication yet.

However I was continuing my bachelor of accounting studies in Australian technical and management college (ATMC) after lodging for the review at the tribunal and department of immigration was aware of the fact that I was enrolled in a bachelor degree programmed

I was checking on my case every few months. I had last contacted the department to check on the case somewhere during the end of January 2013 .I was advised that the tribunal will contact me as soon as they decide to open my case .Meanwhile I was trying to finish up my studies because it had already been over two years since the department first refused my visa . so, I went to a migration agent who advised me to apply to enroll for the last year of my remaining course Which is why I contacted the tribunal on 21st of July 2013 to request if they could look into my case any sooner .I was on that day told that they had already sent in an application to my home address which asked me to appear before the tribunal on 27th of Feb to give evidence and present arguments.

I did not receive any letter from migration review tribunal office or anything in my post whatsoever and i was also told that because I had failed to do so tribunal refuse to grant the student visa and sent across my decision record on the same address which I did not receive either.

I live with my girlfriend on the same address and she did not receive one of the letters from tribunal which led refusal of hearing her case at the tribunal and has appealed with federal court with similar issues and has her hearing date on 20th of august 2013.

the past couple of years has been very stressful for both of us as we initially came to Australia with no other reasons but to gain education which we can someday take back home and use to help the down falling society of Nepal which is why we never focused on studying courses which offer permanent residency or citizenship to stay in Australia. i with no doubt can say that we could have done some 12 months course which offers permanent  residency but we had a very clear intentions of gaining a proper education only. After years of being in state of war schools are only open for mere 5 months in Nepal excluding numerous public holidays for festivals, riots, student strikes, teachers strikes, "peace strikes" and many more.

We were and still are very driven individuals who are now struggling to find path to have a life we dreamt of and we both come from an average middle class family. Past couple of days has been very much stressful mentally/financially. I have debts that have to be cleared, rent and other liabilities as well which is why I am unable to pay the court fees at this moment of time.  lawyer costs are too high so we ha e been researching the issues over the internet and come this far .

I am aware that the court also offers deferral in respect to the court fees. If there is a way I could pay up for the court fees in installment I am very much happy to do so.

I hope this document puts some light on my situation and I will be able to sort all errors and confusions related to my case if I am given a chance to explain the issue and finish my studies .

Thanking you

yours sincerely

jateen bahadur shrestha.