SINGH v Minister for Immigration

[2015] FCCA 2490

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2490

Catchwords:
MIGRATION – Application for judicial review – refusal of a temporary student class visa – Tribunal acted reasonably in exercising power – application dismissed.

Minister for Immigration and Citizenship v Li [2013] HCA 18

Kaur v Minister for Immigration and Border Protection [2014] FCA 915

Applicant: RAJWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1096 of 2014

Judgment of: Judge Jones

Hearing date: 17 August 2015

Date of Last Submission: 17 August 2015

Delivered at: Melbourne

Delivered on: 17 August 2015

REPRESENTATION

Solicitors for the Applicant: Self Represented

Counsel for the Respondent: Mr McDermott

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal;

2. The application for judicial review dated 5 June 2014 is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $3900.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1096 of 2014

RAJWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. This decision is in relation to an application for judicial review of a decision of the then Migration Review Tribunal (“Tribunal”) dated 8 May 2014, affirming a decision of the delegate of the Minister for Immigration and Border Protection (the Minister) to refuse the applicant a Student Temporary (class TU) visa, (“the visa”).

2. The applicant applied for the visa on 17 October 2011, (CB1). He is an Indian citizen.  He indicated in his application that he had previously been granted a student visa on 5 June 2009; that he had to leave Australia on 9 December after completing a Diploma of Management. 

3. He also provided an overseas student confirmation of enrolment dated 12 October 2011 in support of his visa application (CB 30). The confirmation of enrolment related to a Diploma of Management which began on 10 October 2011 and finished on 9 October 2012.

4. As I have indicated, the application for the visa was refused by a delegate of the Minister on 2 February 2012.  On 20 February 2012, the applicant applied to the Tribunal for review of the delegate's decision (CB65).  In part F of the review application form, the applicant nominated Time Migration Services as his representative.

5. Relevantly, for the purposes of this decision, in Part G,  he stated that any correspondence should be sent to his authorised representative, Damanjot Kaur.  A postal address was given as Time Migration Services Proprietary Limited, PO Box 280, Rundle Mall, South Australia, and also an email address, [email protected] (CB72).

6. There is no dispute that by letter dated 25 February 2014, the Tribunal invited the applicant to a hearing scheduled for 2 April 2014, (CB79). The date of the hearing was identified specifically in a box on the first page of the letter.  The Tribunal informed the applicant that it wanted him to provide, as quickly as possible, various information including under point number 2 (CB 80):

   “Documents that show you are currently enrolled in a course, or have an offer of enrolment in a registered course as required for the grant of a student visa.”

7. Relevantly, at the bottom of that second page of the letter, under Other Things to Note, the Tribunal said (CB 80):

   “If you are not able to participate in this hearing, you need to advise me as soon as possible.  Please note that the tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment.  If the tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.  If you do not participate in the scheduled hearing, the tribunal may make a decision without taking any further action to allow or enable you to appear before it.”

8. The applicant subsequently requested that the scheduled hearing be postponed.  I am satisfied that the reason for that – and there is no dispute about this – was that his grandmother was seriously ill, and he expected that she would pass away, and he wanted to be with her in India.

9. It is apparent from the documents in the Court Book in relation to communication from the applicant that he understood that the initial hearing was scheduled for 2 April 2014 (CB 93).  In the event, the hearing was rescheduled.  I should say that the applicant did indicate that he could be contacted via his email address, and he gave his email address which was [email protected].

10. By correspondence on 25 March 2014, the Tribunal informed the applicant's migration agent, who was the authorised recipient, that the request for the postponement of the hearing had been granted (CB95-98).  It is apparent that this correspondence was sent by email to the authorised recipient's address that was provided in the application

    
    

    (CB 72), and to the applicant.

11. The applicant claims that he did not receive this email, but as will be evident later, this is not relevant for the decision that the Court needs to find.  The correspondence on 25 March 2014 specified the date of the Tribunal hearing, 7 May 2014, the time – 1.30 pm, and the location.  It was clearly expressed in a box on the first page.  Otherwise the correspondence was in identical form to the correspondence sent on 25 February 2014.  In other words, it requested the applicant to provide, amongst other things, documents of current enrolment in a course, and spelt out in clear terms the consequences of him not attending the rescheduled hearing. 

12. It is apparent from a case note written by an employee of the Tribunal on behalf of the member dated 8 May 2014 – that there were some four attempts to contact the applicant. These were at 1.22 pm close to the time of the hearing; 1.44 pm, some 15 minutes into the schedule hearing date; 2.31 pm, an hour after schedule hearing time;  and 2.34 pm.   The Minister has pointed out that the date was incorrect but that in context the attempts at communication occurred on the day of the hearing (7 May 2014). I agree with this. These attempts were unsuccessful (CB 102). 

13. There were then attempts to contact the applicant's agent who indicated that she had just returned from overseas, but would attempt to contact the applicant.  The applicant's agent was telephoned shortly later and she advised the Tribunal that she had been unsuccessful, and she believed from a friend of his that the applicant may well not be in Australia.

14. Now, the relevance of the Tribunal attempting to contact the applicant by telephone is that in his correspondence to the Tribunal (CB82), where he indicated he would be overseas - he gave a telephone number that he said he was contactable on.

Tribunal Decision

1. The Tribunal decided not to reschedule the hearing, and to proceed to deal with the application for review without rescheduling the hearing.  In doing so, it referred to the circumstances to which I have just referred.  It set out in its decision record the circumstances (CB 106 to 107 [4] to [11]) and stated at paragraph 12 the following:

   “Section 362B of the Act provides that if an applicant has been invited under section 360 to attend a hearing, and does not appear on the day on which, or at the time and place at which she or he is scheduled to appear, the tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.  Having considered the overall circumstances of this matter, as outlined above, the tribunal determined that it was appropriate to proceed to a decision without taking any further action to allow or enable the applicant to appear before it.”

2. Before I turn to the Tribunal's consideration of the applicant's substantive claim, it is appropriate to set out the relevant legislative framework which is, in brief, that at the time of the visa application, clause 572.231 which was a time of decision criteria, provided that applicant needed to satisfy in order to be granted a visa, provided that:

   “The applicant is enrolled in, or is the subject of a current offer of enrolment in, of study that is (a) a principal course, and (b) of a type that was specified for subclass 572 visas in a gazette notice (i) made under regulation 1.4A, and (ii) in force at the time the application was made.”

3. There were at the time substantially similar enrolment requirements for other subclasses of the student visa, subclass 572.  The Tribunal requested the applicant, in its two letters inviting the applicant to appear at a hearing on 25 February 2014 and 25 March 2014, to provide evidence of current enrolment.  That evidence was clearly critical to the decision the Tribunal had to make.  As I have already noted, the applicant did not provide that evidence to the Tribunal. 

4. The gist of the Tribunal's decision, which is set out in paragraphs 14 to 16 of its decision record, was that the applicant had to meet this required criteria and he did not provide any evidence of doing so.  Consequently, the Tribunal found it was not satisfied that the applicant met this criteria and, therefore, the Tribunal determined that the refusal to grant the application should be affirmed.

Judicial Review

1. Turning to the judicial review, the applicant's application made on 5 June 2014 specifies as the grounds of review the following:

   “I applied for my student visa extension and applied was refused by DBIP (sic), and then I later applied to the MRT to seek more favourable outcome.  Unfortunately they affirmed DIBP's decision.  Now I have only hope to seek justice is Federal Court.  Please accept my case and being a genuine applicant, grant my student visa.”

2. It was apparent to the Court that, on the basis of this ground, the applicant may well have seen the Court's function in judicial review as a merits review function.  As the applicant was self‑represented, I attempted to explain to him the nature of judicial review; that the Court was not empowered to engage in merits review, but to decide on the basis of the Tribunal's decision and materials before it, whether there was, as I put it, a serious legal mistake.

3. I asked the applicant to explain his grounds for review.  He said that he did not have a lawyer representing him when he went to the Tribunal.  He said that he could not provide the documents because his grandmother was sick on her death bed, and he had to see her; he was overseas.  He came to this Court because he wanted to fix the problem, by which I assume he means he wanted to provide the relevant documents to another constituted Tribunal.

4. It is appropriate to set out various provisions of the Act which relate to notice requirements obligations on the Tribunal, which give to the Tribunal a power to proceed to have a hearing without rescheduling a hearing.  This is because I agree with the Minister in his opening submission by his Counsel that the first two issues the Court must decide are first, whether it was legally reasonable for the Tribunal to exercise its power to determine an application for review without the applicant appearing at a further hearing;  and the second question which really precedes the exercise of this power, is whether it was open to the Tribunal to use that power.

5. A third question follows if the Court finds that the answer to both of the first two questions is “yes”.  The third question is whether the conclusion of the Tribunal on the substantive claim was open to it.  I should say that the Minister's legal representative provided a helpful overview of the operation of the provisions of the Migration Act1958, as was relevant to the circumstances of this case which, was interpreted for the applicant by a qualified interpreter in the Punjabi and English languages.

6. The provisions of the Act commence with section 360 under which the Tribunal is obliged to invite an applicant to appear - subject to some exceptions which do not apply here - before the Tribunal and give evidence and present arguments. Section 360A sets out the requirements that must be met in the written invitation made by a Tribunal to an applicant. 

7. The first under subsection (1) is that the applicant must be given notice of the day, time and place of the scheduled hearing.  It will be apparent from my recitation earlier on of the correspondence sent to the applicant's authorised recipient on 25 February 2014, and the correspondence sent by email to the authorised recipient on 25 March 2014, that the date, time and location of the first scheduled hearing and the rescheduled hearing were clearly set out in the correspondence.

8. The next requirement is that the notice – that is, the notice of the invitation – must be given to the applicant by a method that is specified in section 379A.  Section 379A sets out the methods by which a Tribunal can give documents to a person.  Relevantly subsection (4) sets out the method by post, and it provides that it should be done by prepaid post, and referring to subsection (c)(i), to the last residential or business address provided to the Tribunal by the recipient.

9. Section 379A(5) provides for another method which is by email to the last email address of the recipient.  It should be noted that there is a relevant section, s.379G which is entitled Authorised Recipient, which simply provides that if the applicant gives the Tribunal written notice of the name of another person – in this case, it was his migration agent, as well as that person's address – who is authorised to do things and receive documents in connection with a review, then the Tribunal is obliged to send any documents to the authorised recipient.

10. In this case, by way of the application made to the Tribunal for review, the authorised recipient was nominated by the applicant. There was a postal address and an email address given (CB 72).  The Tribunal was, therefore, obliged to send the notice of the first hearing on 25 February 2014 and the notice of the second hearing on 25 March 2014, to the authorised recipient by way of either prepaid post or email. 

11. I am satisfied, having regard to the factual circumstances I have referred to earlier, that the first invitation was sent to the authorised recipient by post, and the second invitation on 25 March 2014 to the authorised recipient by email.

12. The question then becomes, of course, was that notice received, and for that purpose, I will refer to section 379C which are the deeming provisions, which it provide, in summary, that if the Tribunal gives a document to a person by one of the methods specified in section 379A, then the documents are deemed to have been received.  Section 379C(4) provides that if the Tribunal sends a document by prepaid post from a place in Australia to an address in Australia, then the authorised recipient is deemed to have received the document seven working days from the date of the correspondence.  Now, when I say "the authorised recipient" that means the applicant is also deemed to have received notice. 

13. Section 379C(5) provides that if a document is sent by electronic means, including email, to the address given, then the person is taken to have received the document at the end of the day.  As the applicant nominated his authorised recipient in his application as Time Migration Services and a postal address and an email address was provided, and the correspondence inviting the applicant to appear on 25 February 2014 was sent by prepaid post to the authorised recipient, then the authorised recipient is deemed to have received that correspondence seven working days after 25 February 2014.

14. Likewise, the correspondence dated 25 March 2015 which was sent to the authorised recipient's email address, was deemed to have been received at the end of that day.  In other words, returning back to the notice to appear at both the first scheduled hearing and the adjourned hearing, I am satisfied that the notice was given to the applicant in accordance with s.360(2).

15. The next question then is whether the notice of the hearing and the adjourned hearing was given in accordance with the period of time that is required pursuant to s.360(4).  The prescribed time for the first scheduled hearing is 14 days.  Given that by the deeming provisions, the applicant was deemed to have received the invitation seven working days after 25 February 2014, and the scheduled hearing was 2 April 2014, then it follows that the applicant was given the prescribed period of notice, namely 14 days.

16. There is no prescribed period for an adjourned hearing.  Consequently, under s.360(4), the applicant was required to have been given a reasonable period of notice of the adjourned hearing.  He received notice on 25 March 2014, and the adjourned hearing date was 7 May 2014; that is, no doubt, a reasonable period of time.  I should say also that this is particularly so when the applicant, in his correspondence with the Tribunal about going overseas, indicated that he would be away from 30 March 2014 to 25 April 2014. 

17. The last requirement under section 360 is that each notice of an invitation to appear at a hearing must contain a statement of the effect of section 362B.  It is manifestly clear that the correspondence on 25 February 2014, and the correspondence on 25 March 2014 both included, under a heading Other Things to Note, information that if the applicant does not participate in a scheduled hearing, then the Tribunal may deal with the applicant's case without holding another hearing.

18. Section 362B in its terms provides that if the applicant is invited under section 360, and does not appear before the Tribunal on the day or time and place at which the applicant is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.  I am satisfied that the Tribunal met the requirements of section 360A which it was required to do in inviting the applicant to appear under section 360.  The Tribunal, therefore, was empowered to exercise its discretion under section 362B, given there is no dispute that the applicant did not appear at the rescheduled hearing on 7 May 2014.

19. The question then, having decided that it was open to the Tribunal to exercise its discretion under section 362B, was whether it was legally reasonable for the Tribunal to do so.  I concur with the Minister's submission that there was on the face of the decision record an evident and intelligible justification for the Tribunal to exercise its power pursuant to section 362B and make a decision on the review without taking any further action to allow or enable the applicant to appear before it for the following reasons.

20. First, there is no doubt that the applicant had notice of what he had to provide.  A key criteria the applicant was required to satisfy at the time of the Tribunal decision under clause 572.231 was that he was enrolled in or the subject of a current offer of enrolment in a course of study.  There is no doubt that the applicant had provided an enrolment of a Diploma of Management with his visa application (CB30). However, this was not a current enrolment or a current offer of enrolment by the time the Tribunal was making its decision, which was 8 May 2014.

21. The applicant had not provided that information; the applicant knew about the hearing; he certainly knew about the first hearing, and by reason of the provisions of the Act which I have earlier dealt with, he was deemed to have knowledge of the rescheduled hearing on 25 March 2014.  The applicant says that he was not able to provide the information because he was overseas for family reasons.  I do not accept this because he well knew, as early as 25 February 2014, that he was required to provide this information.  In any event, he made no attempt to contact the Tribunal and advise the Tribunal that he was taking steps to obtain those documents that he was required to provide.  There was simply silence from the applicant's side.

1. It was reasonable for the Tribunal to assume that the applicant either did not have the documents or did not intend to provide the documents.  Moreover, even though the applicant had provided a contact telephone number for the tribunal, he was not available at the time.  I am satisfied that the Tribunal made genuine efforts to contact the applicant on his mobile number.  It attempted to contact his representative and when it was able to contact his authorised representative, the advice it received was he was not contactable and may well be overseas.

2. In those circumstances, I am satisfied that it was legally reasonable for the Tribunal to exercise its power under section 362B in the way that it did.  In the terms used by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 there was intelligible and evident justification for its decision. I am satisfied that the circumstances in this case are distinguishable from the circumstances in Li and from the circumstances underlying the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 made by Mortimer J.

3. Consequently the answer to the two questions I have identified as needing to be addressed in this judicial review are that yes, the Tribunal acted legally reasonably in exercising its power to determine the applicant's application for review without a further hearing.  Secondly, it was open to the Tribunal in the first place to exercise its power under section 362B.

4. Turning to the substantive part of the applicant's application for review, I am satisfied that the Tribunal decision was correct.  It was most certainly open to it.  The applicant was required to satisfy the Tribunal that he was enrolled in a course of study or that there was a current offer of enrolment in a course of study.  In the absence of any evidence before the tribunal, the only conclusion it could make is that at the time of its decision, the applicant did not satisfy a criteria for the grant of a subclass 572 student visa.

5. Consequently my decision is that I will dismiss the applicant's application for review with costs. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date: 10 September 2015