SINGH v Minister for Immigration
[2017] FCCA 3276
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3276 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – Student Temporary (Class TU) subclass 572 visa – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c) Migration Act 1958 (Cth), ss.116(1), 362B Migration Regulations 1994 (Cth), Schedule 2, cl. 573.611, 572.223(1)(a), criterion 8516 |
| Applicant: | AMANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 896 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 15 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor acting as Counsel for the First Respondent: | Ms Friedman |
| Solicitors for the First Respondent: | The Australian Government Solicitor |
ORDERS
The orders made 1 December 2017 are set aside.
The application filed 2 May 2016 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 896 of 2016
| AMANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application filed 2 May 2016 in which the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 19 April 2016 in which the Tribunal confirmed its earlier decision to dismiss the application for review, thereby affirming a decision of a delegate of the Minister for Immigration and Border Protection (‘the delegate’) to refuse the Applicant a Student Temporary (Class TU) subclass 572 visa (‘the visa’).
The grounds of application are as follows:-
“1. I am applying Judicial Review at Federal circuit court under the s.476 of the Migration Act 1958 related to federal circuit court regulations as I am not happy with Tribunal decision.
2. In the First decision Administrative Appeal Tribunal made a decision on the basis of s.360 of the Migration Act 1958. I wasn’t known any information about hearing at tribunal. They say there is no Satisfaction Reason found to give me extension which is little suspicious to me.
3. Delegate of the Minister for Immigration on 5 January 2015 has refused to grant my Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act). This is also I have found unfair because of Immigration has expected me to do only the bachelor’s study where I have found hard to study.
4. That is the reason I have applied for the Review through the lawyers and Tribunal say nonappearance and I say I have not known any information of Hearing.
5. Again I have applied for the review of a Non Appearance decision through the Agent at Administrative Appeals Tribunal. But AAT has taken decision to Dismiss I meant say that they have affirmed to not grant me student visa on the basis of Tribunal has provided information regarding the hearing date and so on.
6. But I might have had that information sent from Tribunal but I was being not known any about the hearing date because of my lack of knowledge. Second time when I have applied for review again to go-head with tribunal to submit the documents and do oral Tribunal wanted to affirm the decision on the basis I have been intimidated about the hearing is suspicious and seemed to me unfair.
7. What to do in this regarding? There is no solution left rather than taking the decision to Federal circuit court. That is the reason I am bringing both decisions to Justice for Natural Justice.
8. I hope tribunal decision has judicial Error and hopefully Tribunal has misused its Jurisdiction by taking simple decision on the basis of they have sent information to me in regard the hearing.
9. I don’t have study right because of case officer has cancelled the 573 visa and refused the 572 Visa application. So there is no room to me for studies. Lost the study rights and work rights as well.
10. Why am I here in Australia? I feel like I should have left the Australia. But as last attempt I wanted to take the decision to Federal circuit court that Honourable Member may have jurisdiction in this matter to take the positive decision where I may get the study rights back at least to study my Diploma course.”
(errors in original)
Filed with his application was an affidavit sworn by the Applicant on 2 May 2016. The Applicant relies upon this affidavit of evidence. Annexed to that affidavit is the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal of 19 April 2016 and the Decision Record of the Tribunal of 3 March 2016. The decision of 3 March 2016 was one to dismiss the application under s.362B(1A)(b) of the Migration Act 1958 (Cth) (‘the Act’), and the decision of 19 April 2016 was to affirm the decision under review.
The First Respondent filed a response dated 16 June 2016. The First Respondent seeks that the application be dismissed and the Applicant pay the costs of the First Respondent. There is before the Court the evidence that is contained in the Court Book filed on 12 October 2016 and the supplementary Court Book filed on 17 November 2016 together with the submissions relied upon by the First Respondent filed 22 November 2016.
By orders made by Registrar Buljan on 28 September 2016, the Court ordered, relevantly, that the Applicant file and serve any amended application with proper particulars of the grounds of the application, and written submissions, on or before 2 November 2016. The Applicant filed no amended application and no written submissions.
The matter was listed for hearing on 1 December 2017. On that day there was no appearance by the Applicant or on his behalf and the Court ordered pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the application be dismissed. The Court also made an order as to costs. The Court this day set aside the orders made on 1 December 2017 and proceeded to hear the Applicant’s substantive application. Whilst the Applicant had translated to him the First Respondent’s written submissions, he had filed no submissions of his own but was given an opportunity this day to make oral submissions. In essence, the Applicant made no oral submissions of any substance.
Background
The Applicant’s background is adopted from the First Respondent’s written submissions and is as follows.
The Applicant is a male citizen of India.
The Applicant originally applied offshore for a subclass 573 visa on 24 September 2013. The 573 visa was granted to the Applicant on 27 September 2013 to undertake a Diploma of Business and Commerce which was not completed, and a Bachelor of Business which the Applicant failed to commence. The Applicant also later enrolled in, but failed to complete, a Certificate IV in Business. He also enrolled in, but failed to commence, a Diploma of Management.
On 23 December 2014 the Applicant’s subclass 573 visa was cancelled under s.116(1) of the Act as the Applicant had cancelled his confirmation of enrolments for which his 573 visa had been granted, in breach of cl.573.611 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) and criterion 8516.
The Applicant also applied for a subclass 572 visa on 11 May 2014 but withdrew that application on 2 July 2014.
On 18 September 2014, the Applicant applied for a Student (Temporary) (Class TU) subclass 572 visa (‘the visa’) with the stated intent of completing a Diploma of Business and an Advanced Diploma of Business.
On 5 January 2015 the delegate refused to grant the visa, not being satisfied that the Applicant genuinely intended to stay in Australia temporarily as required by cl.572.223(1)(a). The Applicant was also considered against the other subclasses of student visa but was found not to satisfy the relevant criteria.
On 9 January 2015 the Applicant applied to the Tribunal for review of the delegate’s decision and appointed an authorised representative.
On 1 February 2016 the Applicant appointed a new authorised representative and authorised recipient, Mr Jensen Meagher. On 10 February 2016 the Tribunal emailed the authorised representative, Mr Meagher, inviting the Applicant to attend a hearing to give evidence and present arguments before it on 3 March 2016. The invitation advised the Applicant that if he did not attend the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable the Applicant to appear before it or may dismiss the application for review without any further consideration of the application or the information before the Tribunal. The Applicant was also requested to provide various documents and information to support his application and a written statement addressing whether he was a genuine temporary entrant by referring to Ministerial Direction Number 53. None of the requested materials were provided to the Tribunal.
On 3 March 2016, the Applicant failed to appear at the scheduled hearing. No explanation was provided to the Tribunal for the non‑appearance of the Applicant and no adjournment was requested by him. On the same day the Tribunal found that no satisfactory reason for the non-appearance had been given and decided to dismiss the application under s.362B(1A)(b) of the Act without further consideration of that application or the information before the Tribunal (‘the non-appearance decision’).
On 4 March 2016 the Tribunal provided written notice of its decision by email to the Applicant’s then authorised representative, Mr Meagher. The notification letter advised that the Applicant may apply for reinstatement of the application by 18 March 2016.
On 16 March 2016 the Applicant’s new authorised representative, Mr Vadlakonda, who was appointed by the Applicant on that day, applied for reinstatement of the application and attached a letter from the Applicant explaining the reasons for his non-appearance at the hearing.
On 19 April 2016 the Tribunal decided to confirm its decision of 4 March 2016 to dismiss the application (‘the reinstatement decision’) meaning the decision under review was taken to be affirmed pursuant to s.362B(1F) of the Act.
Tribunal Decision
In the Decision Record of 19 April 2016 the Tribunal said in paragraphs 4 and 5 therein the following:-
“4. The review Applicant applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, The Tribunal did not consider it appropriate to reinstate the application.
5. On 16 March 2016 the Tribunal received a submission including a statement from the Applicant in which he stated
“I have held hearing date at AAT on 3 March 2016, my agent has lodged the review in relation to a decision to refuse my 572 visa grant on shore, and application was made online on 9 January 2015. I don’t know till I have got the decision that Tribunal has made a decision on my review. I am not known the hearing date and also am not aware of I have come to hearing.
I have thought tribunal itself takes the decision without my attendance. When I call my previous agent he says “I have intimated you twice but you did not come in to sign and this is your wrong”, I didn’t notice agent mentioning.
Anyhow agent has sent me the refusal letter from Tribunal the tribunal has affirmed the decision not to grant my 572 visa. I have read the MRT decision and came to know that I can reinstate the application if there is any eligible reason to do so. I have got right reason and there was miscommunication happened in between my previous agent and me in regarding hearing invitation. So please kindly accept my request to reinstate the hearing if it is possible…”
The Tribunal was satisfied that the Applicant was correctly notified of the hearing and did not consider it appropriate to reinstate the matter. The Tribunal noted that the hearing invitation was correctly sent to the Applicant’s authorised recipient, Mr Meagher, the Applicant having provided an appointment of representative and authorised recipient form signed and dated on 18 January 2016, noting Mr Meagher as his authorised recipient. The Tribunal had further followed its standard procedure on 25 February 2016 and 2 March 2016 of sending SMS reminders of the upcoming hearing to the Applicant’s mobile phone.
As submitted by the First Respondent the application for review raises four bases upon which the Applicant argues that the Tribunal erred. The first is that the Applicant was unaware of the hearing date (paragraphs 2, 4 and 6), although the Applicant concedes that, “I might have had that information sent from the Tribunal.”
Secondly, the Applicant argues that the decision to confirm the non-appearance appeared “suspicious” (paragraphs 2 and 6). There is no particularisation of this ground. It is not a proper ground of review and there is no merit to it.
Thirdly, the Applicant argues that the decision to confirm the non-appearance decision is “unfair” (paragraph 6). Again, this is not a proper ground of review and is the seeking by the Applicant of merits review which on the facts of this case is not a function of the Court.
Fourthly, the Applicant argues that the Applicant is seeking natural justice which has been denied him. There was no denial of procedural fairness to the Applicant in the Tribunal’s processes or decision. No particularisation of the Tribunal failing to afford procedural fairness to the Applicant was made.
The Tribunal complied with its statutory obligations of natural justice and the findings made by the Tribunal were open to it on the evidence before it. The Tribunal, in fact, afforded procedural fairness to the Applicant. The Applicant was correctly notified of the scheduled hearing. The Tribunal did not consider it appropriate to reinstate the application on the basis that it was satisfied that the Applicant had been so correctly notified of the hearing.
That decision of the Tribunal not to reinstate the application was reasonably open to it on the evidence and the Tribunal applied the correct legal framework in reaching its determination that the notice of requirements of the Act and Regulations in respect of the hearing had been met by the Tribunal.
This application is without merit and shall be dismissed with costs following that event.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 21 December 2017
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