SINGH v Minister for Immigration
[2015] FCCA 359
•27 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 359 |
| Catchwords: MIGRATION – Judicial review – Migration Review Tribunal – student visa – cancellation – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Part 5 Division 5, ss.65, 116, 140, 360, 362B, 474, 476 Migration Regulations 1994 (Cth), Sch.8, cl.8202 |
| Dranichnikov vMinister for Immigration& Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Kaur v Minister for Immigration & Anor [2014] FCCA 1282 Kaur v Minister for Immigration & Border Protection [2014] FCA 1251 Lodhawala v Minister for Immigration & Anor [2015] FCCA 238 Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 MZXLW v Minister for Immigration & Citizenship [2007] FCA 912 MZZQC v Minister for Immigration & Anor [2015] FCCA 233 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 SZFDE & Ors v Minister for Immigration & Citizenship & Anor (2007) 232 CLR 189; [2007] HCA 35 |
| Applicant: | SANJAY SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 314 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 19 February 2015 |
| Date of Last Submission: | 19 February 2015 |
| Delivered at: | Perth |
| Delivered on: | 27 February 2015 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the Respondents: | Mr P R Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
Formal Reasons for Judgment will be published from Chambers at a later date.
The applicant pay the first respondent’s costs in the sum of $6825 by 6 March 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 314 of 2014
| SANJAY SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Judicial review application – introduction
By application dated 7 October 2014 the applicant seeks judicial review[1] under s.476 of the Migration Act 1958 (Cth)[2] of a decision of the second respondent, the Migration Review Tribunal.[3] The Tribunal affirmed a decision of a delegate[4] of the first respondent, the Minister for Immigration & Border Protection,[5] to cancel a Student (Temporary) (Class TU) Higher Education Sector Subclass 573 visa[6] issued to the applicant.
[1] “Judicial Review Application”.
[2] “Migration Act”.
[3] “Tribunal” and “Tribunal Decision”. The Tribunal Decision is at Court Book (“CB”) 86-91.
[4] “Delegate” and “Delegate’s Decision”. The Delegate’s Decision is at CB 34-39.
[5] “Minister”.
[6] “Student Visa”.
No appearance at hearing – orders made
When the matter was called at hearing on 19 February 2015 there was no appearance by the applicant. The matter was called outside the Court and there was still no appearance for the applicant. In the circumstances, and the Court having read all of the relevant documents, the Court, at the request of the Minister’s Counsel determined the matter on the merits and made the following orders:
1. The application be dismissed.
2. Formal Reasons for Judgment will be published from Chambers at a later date.
3. The applicant pay the first respondent’s costs in the sum of $6825 by 6 March 2015.
What follows are the Court’s Reasons for Judgment referred to in order 2 of the Court’s orders of 19 February 2015.
Background to the Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicant:
i)is a citizen of India who arrived in Australia on 20 April 2012 on the Student Visa;[7]
[7] CB 14.
ii)was enrolled in an English language course and a Master of Accounting at Curtin University, Perth;[8]
[8] CB 14.
iii)remained enrolled at Curtin University until November 2012, and then enrolled for semester 1 in a Bachelor of Business course with the Australian School of Management which began in February 2013;[9]
[9] CB 14.
iv)completed the first semester of his Bachelor of Business course, and then enrolled in a Diploma of Management course at Stanley College, but cancelled that enrolment after one month;[10] and
[10] CB 14 and 30.
v)subsequently applied for admission to courses at various education providers, including an application to study for a Diploma of Business at the Technology College of Western Australia;[11]
[11] CB 14-15.
b)on 13 January 2014 an officer of the Department of Immigration and Border Protection[12] issued the applicant a “Notice of intention to consider cancellation of … [Student Visa]” under s.116 of the Migration Act,[13] and advised the applicant of an intention to consider cancelling the Student Visa under s.116 of the Migration Act;
[12] “Department”.
[13] CB 4-7 (“Cancellation Notice”).
c)the basis for consideration of the cancellation of the Student Visa was the applicant’s alleged failure to comply with cl.8202 of Schedule 8 to the Migration Regulations on the basis of:
i)available evidence appearing to show that the applicant had not been enrolled in a registered course of study since 17 September 2013; and
ii)the applicant’s failure to meet the requirements of cl.8202(2)(a) of Schedule 8 to the Migration Regulations if he had not been so enrolled;[14]
[14] CB 4-5.
d)the applicant made submissions dated 3 February 2014 to the Department as to why the Student Visa should not be cancelled;[15]
[15] CB 14-32 (“Applicant’s 3 February 2014 Submissions”).
e)the Applicant’s 3 February 2014 Submissions:
i)set out the basic chronology and enrolment and study history in sub-paragraph (a) of this paragraph above;
ii)say that the applicant contacted the Technical College of Western Australia many times and tried to explain to them that he needed to be enrolled and study the Diploma of Business but that after several attempts they did not consider his request for enrolment;[16]
[16] CB 14.
iii)say that the applicant received news that made him “extremely depressed” which was that his mother in India was suffering from a “very critical illness” and was “unable to eat or drink” and had been admitted to hospital, and he therefore decided to visit his mother and departed Australia on 24 November 2013;[17]
[17] CB 15.
iv)attaches a Doctor’s certificate from Malhotra Hospital in India, which was provided to the Delegate, indicating that the applicant’s mother was admitted on 22 November 2013 suffering from septicaemia and was in the intensive care unit and discharged on 9 December 2013;[18]
[18] CB 26.
v)say that the applicant returned home with his mother and was with her for a few more days before he made travel arrangements to return to Australia, which he did on 23 December 2013;[19] and
[19] CB 15.
vi)say that on the applicant’s return to Australia he contacted many education providers to get enrolment in a Diploma of Business, but the colleges were mostly closed because of Christmas, but he was subsequently offered a place in the Diploma of Business at the Technical College of Western Australia starting on 17 February 2014;[20]
[20] CB 15 and 17.
f)on 13 February 2014 the Student Visa was cancelled by the Delegate, and the applicant was notified of the Delegate’s Decision by a letter from the Department dated 13 February 2014;[21]
[21] CB 40-44. The Delegate’s Decision is at CB 34-39.
g)on 21 February 2014 the applicant lodged an application with the Tribunal seeking review of the Delegate’s Decision, and listed his representative as migration agent Mr Karan Joshi of Aussizz Group, Suite 22, Level 6, 231 Adelaide Terrace, Perth WA 6000;[22]
[22] CB 55-57.
h)by letter dated 25 February 2014 enclosed with a letter addressed to the applicant's representative, Mr Joshi, at Suite 22, Level 6, 231 Adelaide Terrace, Perth WA 6000, the applicant was advised that the Tribunal had received his application for review of the Delegate’s Decision;[23]
[23] CB 62-64.
i)by letter dated 11 August 2014[24] enclosed with a letter addressed to the applicant’s representative, Mr Joshi, at Suite 22, Level 6, 231 Adelaide Terrace, Perth WA 6000, the applicant was:
i)invited to appear before the Tribunal at a hearing on 4 September 2014 at 10.00am to give evidence and present arguments relating to the issues arising in his case;
ii)asked to complete an enclosed ‘Response to hearing invitation’ form and return it to the Tribunal within 7 days after receiving the Tribunal’s 11 August 2014 Letter; and
iii)advised that if he was unable to attend the Tribunal hearing he should advise the Tribunal as soon as possible, and that the Tribunal would change the hearing date if satisfied that there was a good reason to grant an adjournment, and was further advised that if he did not attend the Tribunal hearing that the Tribunal may make a decision without taking any further action to enable him to appear before the Tribunal;[25]
j)the Tribunal did not receive any response to the 11 August 2014 Letter, and there was no appearance by either the applicant or his representative at the 4 September 2014 hearing;[26]
k)under s.362B of the Migration Act the Tribunal decided to make the Tribunal Decision without taking any further action to enable the applicant to appear before the Tribunal;[27]
l)on 4 September 2014 the Tribunal made the Tribunal Decision;[28] and
m)by letter dated 4 September 2014 enclosed with a letter addressed to the applicant’s representative, Mr Joshi, at Suite 22, Level 6, 231 Adelaide Terrace, Perth WA 6000, the Tribunal advised the applicant of the Tribunal Decision.[29]
[24] “11 August 2014 Letter”.
[25] CB 72-79.
[26] CB 87 at para.4.
[27] CB 87 at para.4.
[28] CB 86.
[29] CB 84-85.
Tribunal Decision
The Tribunal noted the content of the 11 August 2014 Letter, and in particular that the applicant had been advised that if he was unable to attend the Tribunal hearing he should advise the Tribunal as soon as possible, and that the Tribunal might for good reason grant an adjournment, but that if he did not attend the Tribunal hearing that the Tribunal “may make a decision without taking any further action to enable him to appear before it.”[30] As indicated above, the applicant did not appear at the Tribunal hearing and the Tribunal proceeded, pursuant to s.362B of the Migration Act, to make the Tribunal Decision without taking any further action to enable the applicant to appear before the Tribunal.[31]
[30] CB 87 at para.3. See also para.4(i)(iii) above.
[31] See para.4(j) and (k) above.
The Tribunal correctly identified the issue at the outset, namely whether the applicant had breached cl.8202 of Schedule 8 to the Migration Regulations, and that there was a discretion under s.116(1) of the Migration Act to cancel the Student Visa if there had been such a breach.[32]
[32] CB 87 at para.6.
The Tribunal addressed the issue of whether the applicant complied with cl.8202 of Schedule 8 to the Migration Regulations which, in its application to the applicant, required that he be enrolled in a registered course.[33] The Tribunal noted the Cancellation Notice indicating an intention to cancel the Student Visa on the basis that the applicant had not been enrolled in a registered course since 17 September 2013.[34] The Tribunal noted the applicant’s response to the Cancellation Notice, namely, that made to the Delegate in the Applicant’s 3 February 2014 Submissions.[35] The Tribunal also noted the Delegate’s Decision to cancel the Student Visa on the basis that the applicant had not been enrolled in a registered course since 17 September 2013 and therefore did not meet cl.8202(2)(a) of the Student Visa.[36] The Tribunal concluded that it was, on the evidence, satisfied that the applicant was not enrolled in a registered course and had not complied with cl.8202(2) of Schedule 8 to the Migration Regulations.[37]
[33] CB 87-88 at paras.7-13.
[34] CB 88 at para.9.
[35] CB 88 at para.10, and see para.4(e) above.
[36] CB 88 at para.11.
[37] CB 88 at para.13.
The Tribunal then turned to consider whether the Tribunal ought to exercise its discretion to cancel the Student Visa.[38]
[38] CB 88 at para.14.
The Tribunal noted that there were no matters specified in the Migration Act or Migration Regulations which the Tribunal was required to consider in relation to the exercise of its discretion.[39] The Tribunal observed that it had had regard to the Applicant’s 3 February 2014 Submissions as to why the Student Visa ought not to be cancelled, and the relevant government policy guidelines contained in the Department’s Procedures Advice Manual.[40]
[39] CB 88 at para.15.
[40] CB 88 at para.15 (“PAM 3 Guidelines”).
The Tribunal noted that the relevant matters in the PAM 3 Guidelines included the following:
a)the purpose of the visa holder’s travel to and stay in Australia;
b)if cancellation is being considered because of a breach of visa condition – the reason for, and extent of, the breach;
c)the degree of hardship that may be caused to the visa holder and any family members;
d)the circumstances in which the ground for cancellation arose;
e)the visa holder’s past and present behaviour towards the Department;
f)whether there are persons in Australia whose visa would, or may, be cancelled under s.140 of the Migration Act (that is, any consequential cancellation);
g)whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation;
h)whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and
i)the impact of cancellation on any victims of family violence, if family violence is a factor.[41]
[41] CB 89 at para.16.
The Tribunal observed that the purpose of the Student Visa is to enable the pursuit of study in Australia, and in that regard observed that since being granted the Student Visa in April 2012, and apart from completing an English language bridging course in June 2012, the applicant had not completed any other courses, and the Tribunal therefore found that the applicant had not, since June 2012, been fulfilling the purpose of his Student Visa.[42] The Tribunal then considered whether it should exercise its discretion under s.116(1)(b) of the Migration Act to cancel the Student Visa. In exercising this discretion, the Tribunal had regard to:
a)the matters raised by the applicant as to why the Student Visa should not be cancelled; and
b)the PAM 3 Guidelines.[43]
[42] CB 89 at para.17.
[43] CB 88-89 at paras.15-23.
In relation to the matters raised by the applicant as to why the Student Visa should not be cancelled the Tribunal observed as follows:
18. With respect to the reasons for, and extent of the breach, and the circumstances of the breach, PRISMS indicates that the applicant had not been enrolled in a registered course since 17 September 2013. The Tribunal has considered the reasons given by the applicant for his failure to maintain his enrolment. The applicant has claimed that he has commenced and ceased studies in a Masters of Accountancy, a Bachelor of Business and a Diploma of Management and as noted in the delegate’s decision this is confirmed by PRISMS and the Tribunal so finds. He has provided various reasons for this. He claims that he ceased enrolment at the Bachelor level as he had already achieved this level in his home country. The Tribunal does not accept this and as noted in the delegate’s decision the applicant’s visa required him to be enrolled in a Bachelor level or above. His explanation is not consistent with his decision to later enrol in a Diploma level course. He claims he ceased his Masters and Diploma courses as they were both too difficult. The Tribunal does not accept his explanations for his repeated ceased enrolments, particularly in circumstances where he has not completed any courses since June 2012.
19. The applicant has further claimed that his mother was ill and that he returned to India to see her, and provided corroborating evidence. Whilst the Tribunal accepts this claim it does not consider that his short stay in India precluded him from maintaining his enrolment in a course, over an extended period.[44]
[44] CB 89 at paras.18 and 19.
In relation to the PAM 3 Guidelines the Tribunal found that:
a)there was no evidence that any hardship would be caused to the applicant or that any persons would have their visas cancelled under s.140 of the Migration Act;
b)nothing adverse was known about the visa holder’s past or present behaviour toward the Department; and
c)there was nothing to suggest that Australia’s non-refoulement obligations or obligations under any international agreements would or may be breached as a result of cancelation of the Student Visa.[45]
[45] CB 89 at paras.20-23.
The Tribunal:
a)concluded that it had considered the totality of the applicant's circumstances, and found that as he had failed to enrol in a registered course since 17 September 2013 he had breached cl.8202(2) of Schedule 8 to the Migration Regulations, which it found to be a significant breach, “as maintaining enrolment is an integral part of a … [Student Visa]”;[46] and
b)having considering the circumstances as a whole, found that the applicant’s Student Visa should be cancelled, and affirmed the Delegate’s Decision to cancel the applicant’s Student Visa.[47]
[46] CB 90 at para.24.
[47] CB 90 at para.26.
Judicial Review Application – the application made to the Court
The grounds of the Judicial Review Application are that there was jurisdictional error on the part of the Tribunal in:
a)Not giving weight to relevant material
i. The Migration Review Tribunal failed to give appropriate weight to exceptional circumstances which were beyond my control in the review process. I was not able to give appropriate attention to my studies due to the fact that my mother became suddenly severely sick and being so far away from her, it was really hard to cope with the emotional distress. I was not able to financially afford to go and see her until my family finally arranged for some money and it was so until late November. The whole incident really affected me mentally and emotionally and I was unable to focus on anything else because of my deep bond with my mother.
Moreover, I tried to get enrolled in Technical College of Western Australia but the college took a long time to respond to my application, always outlining enrolment dates issues. In the mean time I travelled to India. Even after coming back, I tried to get in touch with them so as to get enrolled in my desired course and after chasing them a few times, I finally got an offer letter and got enrolled in January. I never had an intention not to study and I wish to highlight that there were indeed extreme circumstances beyond my control that unfortunately did not allow me to study and having regards to these circumstances, I submit that I was not in breach of my visa conditions.
b)There was a denial of procedural fairness.
i. The Migration Review Tribunal was not fair and reasonable in reaching a decision due to non-consideration and ignorance of issues that was central to the decision. This support the issues mentioned above.[48]
[48] Transcribed without amendment from the grounds of application in the Judicial Review Application.
On 26 November 2014 a Registrar of the Court ordered that the applicant file and serve, on or before 30 January 2015:
a)any amended application giving particulars of the grounds of review, and any affidavits upon which he intended to rely at the final hearing of the matter on 19 February 2015; and
b)an outline of submissions not less than 14 days before the hearing.
The applicant did not file or serve any amended application, affidavits or outline of submissions.
Consideration
This Court will only have jurisdiction in relation to the Tribunal Decision if the Tribunal Decision is affected by jurisdictional error.[49]
[49] Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
Ground 1(a) – not giving weight to relevant material
In particulars to this ground of review the applicant claims that the Tribunal failed to give “appropriate weight” to exceptional circumstances which were beyond his control.
The evaluation of the evidence, including the attribution of weight in respect of the evidence, and the making of findings in relation to the applicant’s evidence was a matter for the Tribunal:[50] to “engage in fact-finding about the merits of the … case is no part of the function of the Court”.[51] The weight to be given to the various matters taken into account by the Tribunal in exercising its discretion under s.116(1)(b) of the Migration Act is a matter for the Tribunal. The applicant’s claim that “appropriate weight” was not accorded to the issue of exceptional circumstances does not establish jurisdictional error.
[50] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.10 per Gray, Tamberlin and Lander JJ (“NAHI”).
[51] NAHI at para.10 per Gray, Tamberlin and Lander JJ.
In further particulars to this ground of review the applicant claims that:
a)he was not able to give appropriate attention to his studies due to his mother suddenly becoming critically ill and being admitted to hospital;
b)that it was really hard to cope with the emotional distress;
c)he was not financially able to go and see his mother until late November 2013;
d)his mother’s illness affected him mentally and emotionally and he was unable to focus on anything else because of his deep bond with his mother;
e)he attempted to get enrolled at the Technical College of Western Australia;
f)the College took a long time to respond to his application;
g)after returning to Australia he tried to get in touch with the College and that after chasing them up a few times he finally got an offer letter and became enrolled in January 2014;
h)he never had an intention not to study; and
i)there were extreme circumstances beyond his control that did not allow him to study,
and having regard to those circumstances he was not in breach of his Student Visa conditions;
The above particulars simply replead factual matters and go to the merits of the Tribunal Decision.
The Tribunal:
a)properly took into account:
i)Departmental policy guidelines; and
ii)the statements and information provided by the applicant, including the applicant’s circumstances and consequences for the applicant of the Tribunal Decision, but did not accept that the applicant’s version of events explained why the applicant had not enrolled in a registered course at the date of the Student Visa cancellation;[52] and
b)made findings which were open to it on the evidence, and its reasons for decision were not unreasonable, illogical or irrational in that the same decision was open to be made on the materials before the Tribunal by a Tribunal differently constituted.[53]
[52] CB 136 at para.40.
[53] Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611 at 649-650 per Crennan and Bell JJ; [2010] HCA 16 at para.135 per Crennan and Bell JJ.
Ground 1(a) does no more than seek to have the Court impermissibly engage in a review of the merits of the Tribunal Decision.[54] The applicant simply disagrees with the decision made by the Tribunal in the exercise of the Tribunal’s discretion. But where, as here, the findings made by the Tribunal as to fact and the consequent conclusion were open to be made, it is not for the Court exercising a power of judicial review to interfere with the Tribunal’s fact-finding and exercise of discretion properly based on those facts as reflected in the Tribunal Decision. To do so would be to conduct a merits review, not a judicial review, and would be contrary to well-established principles, regularly applied.[55] Ground 1(a) does not establish jurisdictional error by the Tribunal.
[54] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
[55] Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ recently applied by this Court in, for example, MZZQC v Minister for Immigration & Anor [2015] FCCA 233 at para.39 per Judge Nicholls; Lodhawala v Minister for Immigration & Anor [2015] FCCA 238 at para.34 per Judge Nicholls; Kaur v Minister for Immigration & Anor [2014] FCCA 1282 at para.32 per Judge Lucev (from which an appeal by the applicant was dismissed: see Kaur v Minister for Immigration & Border Protection [2014] FCA 1251); and see also NAHI at para.10 per Gray, Tamberlin and Lander JJ.
Ground 1(b) – denial of procedural fairness
Ground 1(b) asserts a denial of procedural fairness by reason of non-consideration and ignorance of issues in the Tribunal Decision. The Tribunal did, however, give consideration to the issues raised by the applicant, which formed the basis for the Tribunal Decision, the reasons for which are set out above.[56]
[56] See paras.12-14 above.
Whilst there can be no doubt that the Tribunal was required to, and did in this case, consider the integers of the applicant’s claim,[57] it was not necessary for the Tribunal to consider every alleged matter of fact raised by the applicant. The Tribunal’s task is to “give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence”.[58]
[57] Dranichnikov vMinister for Immigration& Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26.
[58] Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J.
It was for the Tribunal to be satisfied as to the applicant’s claims to meet the Student Visa criteria.[59] It was for the applicant to put forward such claims as he saw fit to the Tribunal. The applicant put no written submissions to the Tribunal, and did not appear before the Tribunal. In those circumstances even if, as asserted by the applicant, the Tribunal was ignorant of an issue (which in the Court’s view it was not) any such ignorance arose from the failure by the applicant to make submissions to and appear before the Tribunal, and thereby foregoing the opportunity to endeavour to satisfy the Tribunal that he met the Student Visa criteria.
[59] Migration Act, s.65.
The Tribunal Decision demonstrates that:
a)the Tribunal gave consideration to the reasons the applicant gave for ceasing to be enrolled in a registered course, and therefore being in breach of cl.8202(2) of Schedule 8 to the Migration Regulations; and
b)the Tribunal did not fail to comply with its obligation under s.360 of the Migration Act to invite the applicant to a hearing. The Tribunal invited the applicant to a hearing by sending him a letter enclosed with a letter addressed to his nominated representative, Mr Joshi, at the address provided by the applicant.
The Tribunal fulfilled its statutory obligations to the applicant under Division 5 of Part 5 of the Migration Act in the conduct of the review. It gave more than reasonable opportunity to the applicant to appear before the Tribunal to give evidence and present arguments. It was open to the Tribunal to exercise its power under s.362B(1) of the Migration Act to make the Tribunal Decision after the applicant failed to appear in response to the hearing invitation under s.360 of the Migration Act.[60]
[60] SZFDE & Ors v Minister for Immigration & Citizenship & Anor (2007) 232 CLR 189 at 202 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; [2007] HCA 35 at para.35 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ: non-appearance “… is a jurisdictional fact upon which depends the occasion for the exercise of the decision-making power of the Tribunal given by the balance of the sub-section.” See also MZXLW v Minister for Immigration & Citizenship [2007] FCA 912 at para.20 per Middleton J.
There is therefore no substance to ground 1(b), and it does not establish a denial of procedural fairness by the Tribunal, and therefore, does not establish jurisdictional error by the Tribunal.
Conclusion and order
The Court has concluded that the applicant has failed to establish jurisdictional error in the Tribunal Decision.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 27 February 2015
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