Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 481
•6 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 481
File number: MLG 1081 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 6 June 2024 Catchwords: MIGRATION – application for judicial review of decisions of the Administrative Appeals Tribunal to dismiss the applicant’s review application under s 362B(1A)(b) of the Migration Act 1958 (Cth) and to confirm that decision – whether the Tribunal failed to consider the applicant’s circumstances – whether the Tribunal failed to afford procedural fairness to the applicant – whether the Tribunal exercised its discretion reasonably – no jurisdictional error – application dismissed. Legislation: Constitution s 75
Migration Act 1958 (Cth) ss 66, 116, 189, 360, 360A, 362B, 362C, 379A, 379C, 476, 477
Migration Regulations 1994 (Cth) reg 4.21, Sch 2, cl 573.211
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submissions: 3 June 2024 Date of hearing: 26 April 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Ms S Liddy Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1081 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASKIRAT SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant came to Australia in 2007 as the holder of a student visa. He applied to change his education provider and on 30 May 2007 a delegate of the Minister refused to grant the applicant a Class TU Change of Provider Student (Temporary) visa. The Minister’s Department purported to notify the applicant of that decision on 30 May 2007 but the notification was defective. The applicant was properly notified of the 30 May 2007 decision on 4 July 2017 and then sought merits review by the Administrative Appeals Tribunal (Tribunal) of the 30 May 2007 decision. The applicant failed to appear at the hearing before the Tribunal and the Tribunal dismissed his application under s 362B(1A)(b) of the Migration Act 1958 (Cth) (Migration Act). When the applicant did not seek reinstatement of his application within 14 days of notification of the decision to dismiss his application, the Tribunal confirmed its decision.
The applicant seeks judicial review of the Tribunal decision and asserts that the Tribunal failed to consider his circumstances and that the decision was procedurally unfair.
The applicant has not established that the Tribunal decision is affected by jurisdictional error and his application to this Court is therefore dismissed.
PROCEDURAL BACKGROUND AND RELEVANT DECISIONS
The applicant was granted a student (Subclass 573) visa (student visa) on 18 January 2007. Following the grant of that student visa, the applicant commenced studying a Diploma of Horticulture, to be followed by an Associate Degree in Horticulture, at Northern Melbourne Institute of TAFE.
On 16 May 2007 the applicant made an application for permission to change his education provider. The attachments provided with that application indicated that the applicant wished to change his course to a Diploma of Hospitality Management (Commercial Cookery) course at the Victorian Institute of Culinary Arts and Technology.
On 30 May 2007 a delegate of the Minister refused to grant to the applicant a Class TU Change of Provider Student (Temporary) visa. The delegate observed that the applicant’s student visa was subject to condition 8206, which affected the ability of the applicant to enrol in courses offered by other education providers, and the delegate refused to grant the visa because the delegate was not satisfied that there were exceptional circumstances to justify the change in enrolment, as required by cl 573.211(5)(d) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The applicant was notified of the delegate’s decision by way of a cover letter dated 30 May 2007 which incorrectly advised the applicant that the decision was not subject to merits review.
The applicant was granted a further student visa on 2 November 2007. That visa was cancelled by a delegate of the Minister on 28 May 2010 pursuant to s 116(2)(b) of the Migration Act. The delegate found that the applicant failed to comply with condition 8202(3)(a) because he had not made satisfactory course progress.
No information is available to the Court about the applicant’s visa status between May 2010 and June 2017.
On 27 June 2017 the applicant was detained under s 189 of the Migration Act. The applicant was then released on 29 June 2017 because he had been incorrectly notified of the delegate’s decision of 30 May 2007. The notification made on 30 May 2007 did not comply with s 66(2)(d) of the Migration Act because it failed to notify the applicant that he had a right of merits review. The applicant was re-notified of the delegate’s decision made on 30 May 2007 on 4 July 2017.
On 17 July 2017 the applicant applied to the Tribunal for merits review of the delegate’s decision made on 30 May 2007.
On 9 February 2018 the Tribunal sent to the applicant an invitation to attend a hearing on 9 March 2018. The invitation was sent to the applicant by email to the email address recorded in his application for review, which was the most recent email address he had provided to the Tribunal.
On 2 March 2018 and 8 March 2018 the Tribunal sent to the applicant SMS hearing reminders to the mobile phone number recorded in his application.
The applicant failed to attend the hearing on 9 March 2018. The Tribunal dismissed the application under s 362B(1A)(b) of the Migration Act (dismissal decision) and notified the applicant of that decision on 9 March 2018. The notification was sent to the applicant by email to the email address recorded in his review application and advised the applicant that he may apply to the Tribunal in writing for reinstatement of the application by 23 March 2018.
On 25 March 2018 the applicant sent two emails to the Tribunal. The first of these read in part:
yesterday I recive ur text.my hearing was on 9/03/18.i can not come on that day because iPhone customer care has locked my phone on 18 feb to 24march.yesterday it’s start working. so plz can u send me email what happen on 9/03/18.plz help me now what I have to do for next step.when can I come to ur office in Melbourne to discuss my matter.
The second email read:
The two factor authentication additional layer of security to prevent unauthorised access to my account to protect mails other data with apple.thats y they locked my phone for 1 month .i can not use my SIM card with other phone. Plz give me 1 chance send me reply back I want to stay in Australia.now my phone is working.its not my fault it’s apple customer care mistake. Thanks let me know now what can I do plz
On 27 March 2018 the Tribunal confirmed the dismissal decision (confirmation decision). The Tribunal noted that the applicant did not apply for reinstatement of the application within 14 days after receiving notice of the dismissal decision. The Tribunal referred to the request for reinstatement made 17 days after the applicant received notification of the dismissal decision but considered that the emails from the applicant did not comprise a relevant response and presented no grounds for reinstatement of the application. The Tribunal noted that it was the applicant’s responsibility to ensure his devices were working correctly. The Tribunal was satisfied that it had discharged its notification obligations and responsibilities.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 24 April 2018 and was therefore made within 35 days of the Tribunal’s decision, in this case the confirmation decision, as required by s 477(1) of the Migration Act.
The applicant raises the following ground of application:
Procedural Fairness – In relation to AAT’s decision to dismiss reinstatement of review application.
I failed to appear to my hearing and also missed the 14 days time frame to reinstate the review. The reason was I did not have access to my phone as it was damaged and was being repaired. By the time I had access to my phone I had missed my hearing & the timeframe to review application request.
AAT did not consider my circumstances and deemed my explanation as “response not relevant”
AAT’s decision was Procedurally Unfair.
I have attached a cover letter outlining my circumstances.
While the application refers to an attached cover letter, there was no additional page attached to the application and I am unable to locate any cover letter on the Court’s file. I informed the applicant at the hearing that there was no cover letter attached to his application and gave him an opportunity in his oral submissions to say anything he wished to say about why he believed the Tribunal made a jurisdictional error, including anything that may have been said in a cover letter.
The only relief sought by the applicant in the application was an order that the decision of the Tribunal be quashed. This on its own is not sufficient to invoke the jurisdiction of the Court under s 476 of the Migration Act, which is the same as the jurisdiction of the High Court under s 75(v) of the Constitution in relation to migration proceedings. This requires that the applicant seek a writ of mandamus, a writ of prohibition or an injunction against an officer of the Commonwealth. At the hearing I allowed the applicant to orally amend his application to seek a writ of mandamus and I am satisfied that the Court now has jurisdiction to hear this matter.
On 15 May 2019 a Registrar of this Court made orders to progress the matter to hearing. One order required the applicant to file and serve at least 28 days before the final hearing any amended application, any affidavits any supplementary court book and written submissions. The applicant did not file any documents in accordance with this order. The Minister filed an outline of submissions in accordance with an order made by the Registrar.
The evidence before the Court at the time of the hearing comprised:
(a)an affidavit of the applicant filed on 24 April 2018 annexing a copy of the dismissal decision and confirmation decision, along with the Tribunal’s cover letters enclosing these decisions;
(b)the court book filed on behalf of the Minister on 29 May 2019;
(c)a supplementary court book filed on behalf of the Minister on 11 October 2022;
(d)an affidavit of service of Kristina Petrovski filed on 15 April 2024, confirming that the applicant was served with a copy of the court book, the supplementary court book and the Minister’s submissions.
When the matter came before the Court for hearing, the applicant claimed that he had not received the supplementary court book filed by the Minister, or that he did not know whether he had received it. The supplementary court book contains documents pertaining to the factual background of this matter, including two letters from the Department to the applicant dated 28 May 2010 notifying the applicant of the decision to cancel his student visa under s 116 of the Migration Act, details about the applicant’s period of immigration detention for two days in 2017 and details in relation to the two student visas that the applicant was granted in 2007. I am satisfied from the affidavit of Ms Petrovski that the Minister served a copy of the supplementary court book on the applicant by email on 12 October 2022. In circumstances where the applicant could not be certain whether or not he had received a copy of the supplementary court book, I explained to the applicant at the hearing the documents in the supplementary court book, I requested that the Minister’s lawyer email him a further copy of the supplementary court book, which the Minister’s lawyer did during the hearing, and I made an order granting the applicant leave to file written submissions addressing the documents in the supplementary court book within seven days.
The applicant sent an email to my Chambers on 3 May 2024. The text of the email purported to be a submission to the Court and the email attached a number of documents which might be seen as further evidence that the applicant wished to adduce. Neither the email nor the attachments related to the documents in the supplementary court book, which was the only issue the subject of the grant of leave to the applicant.
The applicant was advised in response to this email that Chambers does not accept documents for filing. An officer from the Registry of the Court attempted to provide assistance to the applicant with the filing of documents and following this assistance, the applicant attempted to file a reply. The reply repeated some of the submissions that the applicant had made orally to the Court at the hearing on 26 April 2024, and also suggested that the applicant believed that the email he sent to my Chambers on 3 May 2024 had been accepted by the Court for filing.
I called the matter back before the Court for a mention on 14 May 2024 to try to progress the matter in circumstances where the applicant had attempted to file documents after the hearing that he did not have leave to file, where the applicant appeared to incorrectly believe those documents had been accepted for filing, and where it appeared to me that there may be some confusion arising from email exchanges between the applicant and Court staff. At the mention, I extended the time for the applicant to file written submissions addressing the documents in the supplementary court book and I also extended the time for the Minister to file submissions in response.
The matter was then listed for delivery of judgment on 31 May 2024. At the time the matter was listed, I understood that the applicant had not filed any documents pursuant to the order that I made at the mention. Less than two hours before judgment was delivered, my Chambers staff were advised by Registry staff that the applicant had sent a reply and an application in a proceeding to the Registry by post for filing. Upon further inquiry, my Chambers staff were advised that the documents had been received by the Registry on 21 May 2024, some 10 days before they were brought to my attention. A copy of the reply and the application in a proceeding were emailed to the parties, and the parties were advised in that email that the documents would be discussed at the listing for judgment delivery.
When the matter was called for judgment delivery, I advised the parties that the Court Registry had received the documents on 21 May 2024 and that I had formed the view that in circumstances where the documents had come to my attention so close to the judgment delivery, it would be preferable not to proceed to deliver judgment on that day. I advised the parties that I proposed to treat the reply and the application in a proceeding as submissions, rather than a reply and an application in a proceeding, and have regard to them as submissions, notwithstanding the content of those documents did not address the documents in the supplementary court book and the applicant had not been granted leave to file submissions about any other issues. I also advised the Minister’s lawyer that I did not need to hear from the Minister in relation to the documents and did not make any order granting the Minister a further opportunity to file written submissions in response. The applicant advised at the judgment delivery that the application in a proceeding and the reply that my Chambers staff had emailed to the parties were not the only documents that he submitted for filing. I advised the parties I would look into the matter further.
Upon further inquiry, I was provided with a copy of additional documents provided with the applicant’s application in a proceeding and reply. These include:
(a)a single page from the supplementary court book relating to the applicant’s detention;
(b)an email chain containing various emails regarding complaints made by the applicant about the assistance he received in preparing his judicial review application, with the most recent email correspondence sent in August 2022;
(c)email correspondence between the applicant and the Victorian Institute of Technology in 2008 regarding the applicant’s failure to pay course fees and the possibility of his enrolment being cancelled;
(d)further email correspondence from the Victorian Institute of Technology in late 2008 regarding a notice of intention to report the applicant to the Department for the non-payment of fees, and the applicant’s response to that email; and
(e)email correspondence between the applicant and an officer of the Minister’s Department in 2009 regarding the progress of his case before the Department; and
(f)a handwritten submission that appears to address the delegate’s decision or the merits of whether the applicant’s visa should be cancelled.
A copy of these documents was provided by email to both parties and I again indicated that I did not need to hear from the Minister, but invited the Minister to advise if he wished an opportunity to provide submissions. The Minister has not indicated that he wishes to provide submissions.
The application in a proceeding and reply have now been accepted for filing as a submission, with the other documents attached. I have had regard to these documents, notwithstanding they address matters outside of the scope of the matters regarding which the applicant was granted leave to file submissions after the Court hearing. However, for the reasons explained later in this judgment, most of the documents provided by the applicant do not relate to the key issue in this proceeding, namely, whether the Tribunal made a jurisdictional error in making its decision.
CONSIDERATION OF APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was recently explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Consideration of the applicant’s ground
The ground raised by the applicant asserts that the Tribunal failed to consider his circumstances in making the confirmation decision and that the decision is procedurally unfair.
The applicant made lengthy oral submissions at the hearing but many of his submissions did not address the ground in his application and are considered under a separate heading below. To the extent that the applicant made oral submissions directed to the ground in his application, his oral submissions largely repeated the information in the ground and information which was provided to the Tribunal. In considering this ground of application, I have had regard to the applicant’s oral submissions insofar as they are relevant, as well as to the information in his application and in the evidence before the Court. I have also had regard to the Minister’s written and oral submissions.
The information before the Tribunal in relation to the applicant’s late request for reinstatement of his application comprised the two emails he sent to the Tribunal on 25 March 2018. I accept the Minister’s submission that the Tribunal considered these emails in making the confirmation decision. The two emails were both referred to in the Tribunal’s reasons and it was open to the Tribunal to make the findings it did, namely:
(a)that the request for reinstatement was not made within 14 days after the applicant received notification of the decision; and
(b)that the response from the applicant was not relevant because it presented no grounds for reinstatement of the application.
I am satisfied that the Tribunal considered the relevant circumstances of the applicant in making the confirmation decision. It appears that the applicant disagrees with the confirmation decision. However, disagreement with a decision of the Tribunal, even emphatic disagreement, is not of itself sufficient to give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
The Tribunal’s procedural fairness obligations are set out in Division 5 of Part 5 of the Migration Act.
I am satisfied that the Tribunal has complied with its relevant procedural fairness obligations in the circumstances of this case for the following reasons:
(a)The Tribunal was required in this case to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 360 of the Migration Act. The Tribunal did this by way of the invitation to attend a hearing sent to the applicant on 9 February 2018. I accept the Minister’s submission that the notice of the invitation to attend a hearing complied with the requirements of s 360A of the Migration Act because it:
(i)gave notice of the day on which, and the time and place at which, the applicant was scheduled to appear, as required by s 360A(1) of the Migration Act;
(ii)was given to the applicant by email sent to the email address recorded in his application for review, which was the last email provided to the Tribunal by the applicant in connection with the review, and was therefore given to the applicant by one of the methods specified in s 379A of the Migration Act, specifically s 379A(5), as required by s 360A(2);
(iii)gave him more than 14 days’ notice of the hearing and therefore gave him more than the period of notice prescribed in reg 4.21 of the Regulations, as required by s 360A(4) of the Migration Act; and
(iv)contained a statement to the effect of s 362B of the Migration Act, which sets out what may happen if the applicant fails to appear at the hearing, as required by s 360A(5) of the Migration Act.
(b)In circumstances where the applicant failed to appear at the Tribunal hearing, one of the options open to the Tribunal was to dismiss the application without any further consideration of the application or the information before the Tribunal, by making a written statement under s 362C of the Migration Act: see s 362B(1A)(b) of the Migration Act. This is a discretionary decision and is therefore subject to the implied condition that it must be exercised reasonably: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [4] (Kiefel CJ), [80], [89] (Nettle and Gordon JJ), [131] (Edelman J); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ). The discretion in s 362B(1A) of the Migration Act is enlivened when two preconditions are met: the applicant is invited under s 360 to appear before the Tribunal and the applicant does not appear before the Tribunal on the day on which or at the time and place at which the applicant is scheduled to appear: s 362B(1) of the Migration Act. The Tribunal in its reasons recorded that the applicant had been invited to attend a hearing and that he did not appear before the Tribunal at the scheduled time and place. The Tribunal was accordingly satisfied that the two preconditions were met. In exercising its discretion, the Tribunal took into account that the invitation to attend a hearing had not been returned to sender, that two separate SMS reminders were sent to the applicant and that no satisfactory reason for the non-appearance had been given. I accept the Minister’s submission that the Tribunal’s decision to proceed in the manner it did had a reasonable justification and was within the range of decisions a reasonable Tribunal might have made on the facts known to it at the time.
(c)The dismissal decision was made by way of a written statement that set out the decision, set out the reasons for the decision and recorded the date and time the statement was made, as required by s 362C(2) of the Migration Act.
(d)The applicant was notified of the dismissal decision by email sent to the email address recorded in his application for review, which was the last email address he provided to the Tribunal, and it was sent on the same day the decision was made. The Tribunal therefore complied with s 362C(5) of the Migration Act which requires that a copy of the written statement must be given to the applicant within 14 days after the day on which the dismissal decision was taken to have been made and by one of the methods for giving documents to the applicant specified in s 379A of the Migration Act.
(e)The Tribunal was required, by s 362C(6) of the Migration Act, to give the applicant a copy of the written statement of the dismissal decision together with a statement describing the effect of sub-s 362B(1B)-(1F). Those subsections effectively provide that:
(i)the applicant may, within 14 days after receiving notice of the dismissal decision, apply to the Tribunal for reinstatement of the application;
(ii)if an application for reinstatement is received within 14 days, the Tribunal must, if it considers it appropriate to do so, reinstate the application, or otherwise confirm the decision to dismiss the application;
(iii)if the Tribunal reinstates the application, the application is taken never to have been dismissed and the Tribunal must continue to conduct the review accordingly;
(iv)if the applicant fails to apply for reinstatement within the 14 day period, the Tribunal must confirm the dismissal decision; and
(v)if the Tribunal confirms the dismissal decision, the decision under review is taken to be affirmed.
The notification of the dismissal decision sent to the applicant clearly advised him that he may apply in writing for reinstatement by 23 March 2018. The applicant is taken to have received the notification at the end of the day on which it was sent to him: s 379C(5) of the Migration Act. This applies whether or not the applicant in fact received the notification on that day. Therefore, the applicant is deemed to have received notification of the dismissal decision at the end of 9 March 2018, being the day that it was sent by email, and the statement that he may apply for reinstatement by 23 March 2018 therefore accurately identifies the 14 day period within which the applicant had the opportunity to seek reinstatement of his application. The cover letter enclosing the dismissal decision clearly referred to an attached information sheet about dismissal of applications. That information sheet contained the following information:
What happens if an application is dismissed?
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the reinstatement application.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
What happens if we reinstate the application for review?
If we reinstate the application, the application is taken never to have been dismissed and we will conduct (or continue to conduct) the review accordingly.
What happens if we confirm the dismissal?
If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department’s decision remains in force. …
I am satisfied that this amounts to a statement of the effect of sub-s 362B(1B)-(1F) of the Migration Act. I am therefore satisfied that the applicant was properly notified of the dismissal decision and his right to seek reinstatement within 14 days.
The applicant has therefore not established that the Tribunal failed to comply with its procedural fairness obligations.
I further note that, in circumstances where the dismissal decision was one that was open to the Tribunal, the applicant was properly notified of the dismissal decision and the applicant did not seek reinstatement within 14 days of the day on which he was deemed to have been notified of the dismissal decision, pursuant to s 362B(1E) of the Migration Act, the only option open to the Tribunal was to make the confirmation decision.
The ground in the application does not establish jurisdictional error.
Other matters raised by the applicant in his oral submissions
The applicant raised the following further issues, which do not relate to the ground in his application, in his oral submissions to the Court:
(a)he believes he has been the victim of fraud by a lawyer because the lawyer charged him $2,500 to assist with the application and then made mistakes filing the application and did not provide the cover letter;
(b)after he was detained by immigration officers, they suddenly released him;
(c)Ashley from the Department requested that he go to the Tribunal;
(d)he was not given his passport so he made multiple complaints to the Department;
(e)in 2007 he did not know he had been issued a bridging visa and he is now on a bridging visa;
(f)he has lost too much in this country, which has been his home for 18 years and he is a taxpayer;
(g)his financial position is very poor because lawyers took money from him but did not agree to assist him;
(h)he did not understand why he was released and when he asked immigration officials, they told him that he was released because of a mistake;
(i)he does not understand what the error was and when he goes to the Department they simply say it was their mistake;
(j)now sometimes his family says to come back but half of his life has already gone and his studies are not continuing;
(k)he does not know which way to go or what to do, and he cannot go anywhere now;
(l)he has stayed here for so many years that a lawyer said he should apply for permanent residency;
(m)questions 24 and 25 are too different and the visa that enabled him to study ceased 13 years ago;
(n)he does not know when his bridging visa started and was told that he had a bridging visa when he was released from immigration detention;
(o)he does not know which student visa he was given earlier, why he was in detention, why he was released and he does not know anything;
(p)he has been in Australia for 18 years, he is a taxpayer and he requests that the Court find some solution for him; and
(q)if he goes back after 18 years his family will cry and the people will laugh because he was in Australia for 18 years but came back.
I address these submissions thematically.
Complaint about a lawyer
In responding to the applicant’s complaint about the conduct of a lawyer, Counsel for the Minister addressed the complaint as an allegation of fraud on the Tribunal and submitted that there was no evidence that the applicant was represented by a lawyer before the Tribunal and there was no evidence to support a finding of fraud on the Tribunal. I had not understood the applicant to be complaining about the conduct of any lawyer who may or may not have assisted him before the Tribunal, but rather understood the applicant’s complaint to be about a lawyer who assisted him with his application to the Court. I clarified this with the applicant and he confirmed that the complaint was in relation to a lawyer who assisted him with his application to this Court. I am therefore satisfied that the applicant has not raised any allegation of fraud on the Tribunal.
The issue for the Court’s consideration in this judicial review proceeding is whether the Tribunal made a jurisdictional error in reaching its decision. Any complaint that the applicant may have about the conduct of a lawyer who may have assisted him, without being on the Court record, in his application to the Court does not assert or establish jurisdictional error in the Tribunal decision. One of the documents that the applicant provided to the Court with his submissions after the hearing is an email chain which refers to the applicant’s complaints about a person who assisted him for a fee in filing his application, but who would not represent him at the Court hearing. Nothing on the face of the email chain expressly or impliedly asserts jurisdictional error in the Tribunal decision or complains about any event that occurred while the matter was before the Tribunal.
There were two specific issues in the judicial review application in relation to which the applicant made a submission that the lawyer or agent who assisted him was at fault. The first was that the applicant had not sought a writ of mandamus. However, with the oral amendment made to the application at the hearing, the application is now within the Court’s jurisdiction and there is no disadvantage to the applicant as a result of any failure to seek a writ of mandamus in the written application as filed. The second issue is that the ground of application referred to circumstances addressed in a cover letter and no cover letter was provided to the Court. The applicant said that he did not know what was meant to go in a cover letter and that his lawyer was meant to do that. I provided the applicant an opportunity at the hearing to tell me anything that he wanted to about why he believes the Tribunal made a jurisdictional error and I ensured that he was on notice that there was no cover letter on the Court file. The applicant had the opportunity to address any issue that might have been included in a cover letter and I have taken into account what he has said.
If the applicant wishes to make a complaint in relation to the services he has received from any lawyer who may have assisted him with his application to the Court, it is open to him to make a complaint to the relevant legal practice board. If the applicant was assisted by a migration agent, it is open to him to complain to the Migration Agents Registration Authority. It is not a matter that is appropriate for the Court to address in this judgment.
The applicant’s complaint about the conduct of a lawyer does not establish jurisdictional error in the Tribunal decision.
Lack of understanding about visa history and past decisions
The applicant’s comments that express a lack of understanding of the various visa decisions and actions taken by the Department over the course of his time in Australia do not assert or establish jurisdictional error in the Tribunal decision.
The factual background set out above may assist the applicant to understand the history of some of his interactions with the Department. In short, and to address some of the concerns raised by the applicant in his submissions, I note that:
(a)The applicant was granted two student visas in 2007. The first was granted to him on 18 January 2007 and ceased on 2 November 2007. The second was granted to him on 2 November 2007 and was cancelled on 28 May 2010.
(b)Although not explicit, it can be inferred from the document in the supplementary court book confirming that the applicant was detained pursuant to s 189(1) of the Migration Act that he was detained on 27 June 2017 because an officer of the Department knew or reasonably suspected that he was an unlawful non-citizen. He was released from immigration detention two days later because the Department realised that the applicant had not been properly notified of the decision made on 30 May 2007.
(c)The ‘mistake’ of the Department that has been referred to appears to be that the Department did not properly notify the applicant of the decision made on 30 May 2007, because the cover letter did not inform him that he had a right to seek merits review of the decision. The applicant was re-notified of the decision on 4 July 2017 and was advised that he could apply to the Tribunal for merits review of the decision.
(d)There is no information before the Court that expressly identifies when the applicant was granted a bridging visa. That information does not need to be identified to the Court because it is beyond the scope of the judicial review application. Likewise, there is no evidence before the Court of what any person named ‘Ashley’ may have told the applicant and there is no evidence before the Court as to any dealings with the applicant’s passport or complaints that the applicant may have made about this. Again, as these matters are beyond the scope of the judicial review application, there is no requirement for evidence of these matters to be placed before the Court.
The applicant’s oral submissions, insofar as they raise questions about his past visas and interactions with the Department, do not establish jurisdictional error in the Tribunal decision.
Desire to remain in Australia
The other matters raised by the applicant in his oral submissions relate to the length of time he has lived in Australia, his desire to remain in Australia, that he is a taxpayer and the potential impact on him and his family if he is required to leave Australia. The applicant is essentially requesting that the Court provide advice about his options. The Court cannot do this. As I explained to the applicant at the hearing, the role of the Court is to review the Tribunal decision to see whether the Tribunal made a jurisdictional error in reaching its decision. The Court does not conduct merits review of the Tribunal decision and the Court has no power to grant the applicant any visa. The Court is not considering in this application whether there are any compassionate or other reasons why the applicant should be allowed to remain in Australia. Further, the Court cannot provide legal advice to the applicant. It is open to the applicant to seek advice from a lawyer or a migration agent if he wishes to receive advice in relation to any future options he may have to apply for a visa in Australia.
The matters raised by the applicant about his desire to remain in Australia and the reasons why he believes he should be able to remain in Australia do not assert or establish jurisdictional error in the Tribunal decision.
Issues raised by the applicant’s written submission
In the part of the submission that is on the form for an application in a proceeding, the applicant said (reproduced without alteration):
1.Another Parties says that I filled documents by my self. But sending who billed documents for me the details.
2.Request to my College. Please dont cancel my COE. Two emails sent from my side.
3.Again email sent from my side.
4.Some emails sent to Immigration not to cancel visa. Let me continued studies.
5.I have read court book everything is comming back about my visa.
6.Request to correct defective notification. Please let me stay in country.
In the part of the submission that is on the form for a reply, the applicant said (reproduced without alteration):
1.Seeking orders Honourable Respected Judge, through the medium of court, I Request the AAT to Restore my study visa that was cancelled so I may complete the Remaining Part of my studies as I Paid my fees But the education Provider did not allow me to continue my studies and complained to department.
2.I was detained on 27 June 2017 and Released 29 June 2017. I did not know Reason of my release on 26 April I came to know that it was due to Process of Incorrect and Defective notification issued by the Immigration Authourites. My Release time immigration authorities asked me to enjoy all rights [indecipherable] of immigrant and contribute to Beautiful country and Tax Payer from 18 years. Request not to through me out from ths country.
3.I made writen summission on 3rd may by emails [indecipherable] court accept
4.Seeking orders Court can order to let me stay in Australia Because from 18 years I am away from my old Parents, so Request Migration Review through Honoueble Judge To provide Student Visa or and other visa
In a separate hand-written document, the applicant said (reproduced without alteration):
DECISION-Record (2) (Page 8)
1.Yes at that time I have issues for finding accommodation. I was so depressed. Because at that time Main issue was money Problem To Pay Rent Food College fee, And where at that time I was living I have face lot of Problems
2.Because of lack of Money I was unable to see the Physiological doctor because Docotor’s fee’s is so much.
3.I have many times Request to VIC uni that dont cancel my CEO. and explaened all my situttians.
4.I dont know why they havent explain to department. And diportment all of them cancel my visa.
The (uni) havent given any oppertunity to Response.
None of these submissions, nor the attachments to the submissions, give rise to any jurisdictional error in the Tribunal decision. Some of the submissions have already been addressed in the consideration of the applicant’s oral submissions. I further note that:
(a)As discussed above, issues relating to who completed the applicant’s judicial review application do not assert or establish jurisdictional error in the Tribunal’s decision.
(b)Any information about matters such as the applicant’s requests for his visa not to be cancelled, the progress of his case with the Department, requests that his enrolment in a course of study not be cancelled and his desire to complete his studies relate to the merits of whether his student visa should be cancelled. The Court has no jurisdiction to consider these matters or to conduct any form of merits review. The matters raised by the applicant do not assert any error in the decision made by the Tribunal to dismiss the applicant’s review application when he failed to appear at a hearing, and then confirm that decision. Further, the review application before the Tribunal was not for review of the decision to cancel the applicant’s visa, but was rather for review of the decision to refuse to grant the applicant a student visa that would enable him to change his course provider.
(c)The ‘defective notification’ that the applicant requests be corrected has already been corrected, with the notice sent to the applicant on 4 July 2017 correctly notifying him of his review rights of the decision of the delegate made on 30 May 2007, not to grant the applicant a student visa that would permit him to change his course provider. While the notification of the delegate’s decision was relevant to the exercise of the applicant’s review rights, the defective notice does not have the effect of invalidating the delegate’s decision made on 30 May 2007. That was the subject of the review application to the Tribunal.
The applicant’s written submission and attachments, provided after the Court hearing, do not establish jurisdictional error in the Tribunal decision.
CONCLUSION
In circumstances where the applicant has not established that the Tribunal made a jurisdictional error in making its decision, the application for judicial review must be dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 6 June 2024
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