Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 555
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 555
File number: MLG 2597 of 2017 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 29 June 2023 Catchwords: MIGRATION LAW – application for review of Administrative Appeals Tribunal – refusal of Student (Temporary) (class TU) Vocational Education and Training sector (subclass 572) visa – Tribunal dismissed application on the basis of Applicant’s non-appearance at Tribunal hearing – whether Tribunal validly invited the Applicant to appear – whether Tribunal exercised its discretion reasonably and fairly – whether Tribunal failed to consider evidence – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 360, 360A, 362B(1A)(b), 362C(5), 379A(5), 379(5), 379G, 476 and 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 1, pt 2, div 1, item 3
Migration Regulations 1994 (Cth) sch 2, cl 572.223(1)(a)
Cases cited: AYH19 v Minister for Home Affairs & Anor [2019] FCCA 585
Sharma v Minister for Immigration & Anor [2018] FCCA 2152
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submissions: 16 December 2021 Date of hearing: 16 December 2021 Place: Melbourne (by videoconference) The Applicant: Appeared in person Solicitor for the First Respondent: Mills Oakley The Second Respondent: Submitting an appearance, save as for costs ORDERS
MLG 2597 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIKRAMJIT SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
29 JUNE 2023
THE COURT ORDERS THAT:
1.The Application filed on 29 November 2017 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
Before the Court is an application filed on 29 November 2017 (Application) brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). The Applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (Tribunal), dated 20 November 2017 (Tribunal’s Decision).
The Tribunal dismissed the Applicant’s application for review of a decision of a delegate (Delegate) of the First Respondent (Minister) for non-appearance at the Tribunal’s hearing, pursuant to s 362B(1A)(b) of the Migration Act.
In order to obtain relief, the Applicant must show that the Tribunal has fallen into jurisdictional error.
This matter was heard on 16 December 2021 and proceeded by way of videoconference on Microsoft Teams as a result of the health protocols adopted by the Federal Circuit and Family Court at the time in Victoria (Final Hearing). The Applicant appeared before the Court without legal representation and was assisted by a Punjabi interpreter. The Court is satisfied that the Final Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
For the reasons set out below, I find there is no jurisdictional error in the Tribunal’s Decision. It follows that the Application must be dismissed.
BACKGROUND
The Court has before it a Court Book numbering 87 paginated pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s submissions, filed on 1 December 2021 (Minister’s Submissions) accurately summarise the background to this matter at [3] to [12]. The Court adopts those submissions as its own with some amendments as follows.
The Applicant is a citizen of the Republic of India.
The Applicant arrived in Australia on 19 September 2005 as the holder of a Student (Subclass 572) visa. The Applicant was subsequently granted a Graduate (Subclass 485) visa and a further Student (Subclass 572) visa.
On 1 April 2016, the Applicant applied for a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (Visa) on the basis of his enrolment in a Certificate IV in Automotive Mechanical Diagnosis, Diploma of Automotive Technology and Certificate III in Light Vehicle Mechanical Technology.
The Visa application (Visa Application) contained copies of pages from the Applicant’s passports, the Applicant’s confirmation of enrolments, the Applicant’s previous academic qualifications and results and evidence of overseas student health cover.[1]
[1] Court Book (CB) 1-26.
The Applicant appointed a registered migration agent as his authorised representative (Representative) and provided an email address for correspondence purposes. [2]
[2] CB 2-3.
On 8 June 2016, the Delegate refused to grant the Applicant the Visa (Delegate’s Decision). The Delegate was not satisfied that the Applicant met the criteria for the grant of the Visa pursuant to cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[3]
[3] CB 30-37.
On 24 June 2016, the Applicant applied for review of the Delegate’s Decision at the Tribunal (Review Application).[4]
[4] CB 38-42.
In his Review Application, the Applicant listed his mobile, appointed the Representative and provided an email address for correspondence purposes (Nominated Email Address).[5]
[5] CB 39.
On 24 October 2017, the Applicant was invited (Hearing Invitation) through his Representative to attend a hearing scheduled for 20 November 2017 at 9:30 am (Tribunal Hearing). The Hearing Invitation was sent by email to the Nominated Email Address. The Hearing Invitation expressly informed the Applicant that if he did not attend the Tribunal Hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it and may dismiss the Review Application without any further consideration.[6]
[6] CB 60-67.
Hearing reminders were sent by SMS to the Applicant’s nominated mobile number on 13 November 2017 and 17 November 2017.[7]
[7] CB 73.
The Applicant did not respond to the Hearing Invitation and failed to attend the Tribunal Hearing.[8]
[8] CB 74-76.
On 20 November 2017, the Tribunal dismissed the Applicant’s application because the Applicant failed to appear at the Tribunal Hearing scheduled for 20 November 2017.[9]
[9] CB 78-82.
On 7 December 2017, following the expiration of the 14-day reinstatement period, the Tribunal confirmed its decision to dismiss the Applicant’s application.[10]
[10] CB 85-87.
TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 78 to 82 of the Court Book. The Minister’s Submissions, at [10] to [11], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own.
At 10:50 am on 20 November 2017, the Tribunal made the decision to dismiss the application without further consideration under s 362B(1A)(b) of the Migration Act. The Tribunal decided this without further consideration of the Review Application or the information before the Tribunal as the Tribunal found that:
(a)The Applicant had been invited to attend a hearing in accordance with s 360 of the Migration Act;
(b)The Hearing Invitation stated that the Tribunal may dismiss the Review Application if the Applicant failed to appear; and
(c)Two (2) SMS hearing reminders had been sent to the Applicant’s nominated mobile number prior to the Tribunal Hearing.
Further, the Tribunal was satisfied that the Applicant had been properly invited to the Tribunal Hearing in accordance with s 379A(5) of the Migration Act, the Hearing Invitation and SMS reminders had been sent to the nominated addresses and not returned to sender, no request for adjournment had been made, and there were no satisfactory reasons for the non-appearance provided by the Applicant or otherwise.
The Applicant was notified of the Tribunal’s Decision by an email sent to his Representative on 20 November 2017 (Notification Email). The Notification Email had attached:
(a)A letter addressed to the Applicant that informed him that he could apply for reinstatement of the application by 4 December 2017;
(b)The Tribunal’s Decision record; and
(c)A Form MR20 – Information about dismissal of applications factsheet which informed the Applicant that if he failed to apply for reinstatement within the 14-day period, the Tribunal must confirm the decision to dismiss the Review Application.[11]
[11] CB 78-82.
The Applicant did not apply for reinstatement or otherwise contact the Tribunal by 4 December 2017. Accordingly, on 4 December 2017 the Tribunal confirmed its decision to dismiss the Review Application (Confirmation Decision). The Tribunal was satisfied that:
(a)The Applicant was notified of the Tribunal’s Decision and was provided a written statement setting out the decision and reasons for the decision, in accordance with s 362C(5) of the Migration Act;
(b)The Applicant had been advised that reinstatement of the Review Application could be sought within 14 days of receiving the Notification Email and that a failure to apply for reinstatement would result in confirmation of the Tribunal’s Decision; and
(c)The Applicant had not applied for reinstatement within 14 days of receiving the Notification Email, and therefore the Tribunal was required to confirm its decision and affirm the Delegate’s Decision.[12]
[12] CB 84-47.
The Tribunal notified the Applicant of the Confirmation Decision by email on 8 December 2017.
PROCEEDINGS BEFORE THE COURT
The Application for judicial review was filed on 29 November 2017. This was within 35 days of the date of the Tribunal’s Decision, as required by s 477(1) of the Migration Act.
The Application sought that this Court make an order that the Tribunal’s Decision be quashed but did not seek a writ of mandamus.[13] The Application does not seek judicial review of the Confirmation Decision.
[13] Application – Migration Act, filed 29 November 2017 (Application), 3.
Pursuant to Orders of Registrar Allaway dated 22 August 2018, the Applicant was given the opportunity to file and serve any amended application with proper particulars of the grounds of the Application. The Applicant has not complied with this Order and no further material has been submitted by the Applicant. The Court has before it the grounds of the Application as filed on 29 November 2017.
The Application contains the following three (3) grounds of review:
1. AAT decision is not acceptable. AAT member dismissed my case without hearing. Hearing invitation was not sent to me on my address or on email.
2. AAT decision was not taken in fairly manner. AAT should give a chance of hearing to me again.
3. I am not happy with the decision of AAT and DIBP. In decision DIBP/AAT didn’t consider the evidence of consultants overseas trip and medical condition.
(Without alteration)
Further, the Applicant claimed the following in his affidavit sworn and filed 29 November 2017 (Applicant’s Affidavit):
1. Decision was not taken in fairly manner. AAT sent my email to my consultant who didn’t have my contact to inform me. I was not using my consultant’s service. They didn’t send me request on my email or tried to contact me.
2. That MRT didn’t bother to contact me or send me request by post for my hearing.
3. MRT should have given me another opportunity to attend hearing.[14]
(Without alteration)
[14] Affidavit of Vikramjit Singh, sworn and filed 29 November 2019, [1]-[3].
The Court invited the Applicant to make any oral submissions at the Final Hearing. The Court explained to the Applicant its role in judicial review and invited the Applicant to detail any additional concerns he had with the Tribunal’s Decision.
At the Final Hearing, the Applicant said that he wanted another chance “so he [could] consult with his lawyer […] and do the application process”.[15] The Applicant went on to underscore that he wanted to undertake studies and wanted a second chance on the basis of mercy.[16] He stated that he has no work here in Australia and wanted to consult with his lawyer to re-lodge a student visa and study further.[17] These are not matters relevant to the Court’s task of judicial review of the matter before it.
[15] Transcript P5:L32-33.
[16] Transcript P5:L45-P6:L2.
[17] Transcript P5:L45-P6:L3.
At the Final Hearing the Applicant claimed that he had not received the Minister’s Submissions.[18] The Court confirmed with the Minister’s solicitors that an email was sent by them on 1 December 2021 to the Applicant’s nominated email address with the Minister’s Submissions attached.[19] The Court is satisfied that the Applicant has been served with the Minister’s Submissions.
[18] Transcript P6:L30.
[19] Transcript P7-P8.
The Court has before it the Court Book, the Application, the Applicant’s Affidavit, the Minister’s Submissions and a list of authorities filed by Minister on 9 December 2021. The Court has also considered the oral submissions made at the Final Hearing.
The Court’s jurisdiction under s 476 of the Migration Act
As described at [27], the Application contains technical deficiencies. The Minister submitted that the Applicant has failed to properly invoke the Court’s jurisdiction under s 476(1) of the Migration Act, as the Application does not seek a writ of mandamus or prohibition or injunction against an officer of the Commonwealth. [20] At the Final Hearing the Applicant provided no submissions and the Minister made no further submissions regarding the jurisdiction of this Court.
[20] Minister’s Submissions, filed 1 December 2021 (Minister’s Submissions), [17].
The Minister noted that it would be open to the Court to amend the Application at the Final Hearing with the Applicant’s consent: AYH19 v Minister for Home Affairs & Anor [2019] FCCA 585 at [20]; Sharma v Minister for Immigration & Anor [2018] FCCA 2152 at [13].[21] The Court adopts this approach and amends the technical deficiency in the Application to also seek a writ of mandamus.
[21] Minister’s Submissions, [16].
The Court will now consider each ground for review.
CONSIDERATION
Ground 1
Ground 1 claims that the Tribunal’s Decision was “not acceptable” and that the Hearing Invitation was not sent to and received by the Applicant. The Applicant submitted that he was not informed of the Tribunal Hearing and that the Tribunal failed to contact him. The Applicant further submitted that his Representative did not contact him.
The Minister submitted that Ground 1 had no basis as the Tribunal validly invited the Applicant to appear before it at the Tribunal Hearing. The Minister further submitted that even if the Applicant asserted that he did not receive the Hearing Invitation, the Applicant was taken to have received the document at the end of the day on which it was transmitted (24 October 2017), according to s 379C(5) of the Migration Act.
Ground 1 cannot be factually sustained. As outlined at [21] and [22], I am satisfied that the Tribunal validly invited the Applicant to appear before it in accordance with ss 379G(1) and 379G(2) of the Migration Act. The Applicant’s claim that the Tribunal did not contact him is plainly wrong. The Tribunal used the Representative’s provided phone number and Nominated Email Address to inform the Applicant of the Tribunal Hearing. The Tribunal is not responsible for the actions of the Representative, and nevertheless also contacted the Applicant directly by sending the SMS hearing reminders. The Tribunal has no obligation to contact the Applicant by means of post. The Applicant failed to appear and it was open to the Tribunal to exercise its discretion under s 362B(1A)(b) of the Migration Act to dismiss the Review Application without any further consideration. The Applicant’s mere dissatisfaction with the Tribunal’s Decision does not identify or amount to jurisdictional error. Ground 1 must therefore be dismissed.
Ground 2
Ground 2 claims that the Tribunal’s Decision was not “taken in a fairly manner” and the Tribunal committed an error by failing to provide the Applicant with another hearing. The Applicant submitted that he should have been given another opportunity to appear before the Tribunal.
Firstly, the Minister submitted that this ground is “devoid of particulars and is liable for dismissal on that basis alone”.[22] Secondly, the Minister acknowledged that the exercise of the discretion in s 362B(1A)(b) of the Migration Act must be exercised reasonably and submitted that no unreasonableness is demonstrated as the Tribunal considered that the Applicant was invited to appear at the Tribunal Hearing and no satisfactory reason was given for his non-appearance.
[22] Minister’s Submissions, [22].
The Minister also noted that the Tribunal was obliged to dismiss the Review Application as the Applicant had been validly notified of the Tribunal’s Decision and the reinstatement period had expired.
Ground 2 cannot be sustained. As submitted by the Minister, this ground lacks particulars and does not identify any jurisdictional error. The Tribunal was under no obligation to provide the Applicant with a further hearing and reasonably exercised its discretion to proceed under s 362B(1A)(b) of the Migration Act. The Tribunal had validly invited the Applicant to the Final Hearing and informed him of the consequences of not attending the Final Hearing pursuant to s 379A(5) of the Migration Act. The Applicant failed to appear before the Tribunal with no explanation. Further, without a valid application for reinstatement, the Tribunal had to confirm the Tribunal’s Decision and could not invite the Applicant to another hearing. Ground 2 must be dismissed.
Ground 3
Ground 3 claims that the Tribunal failed to consider evidence of the Applicant’s medical condition and the Representative’s overseas trip. The Applicant submitted that he is unhappy with the Tribunal’s Decision and Delegate’s Decision. The Applicant’s Affidavit alleged that the Tribunal notified his Representative who could not contact the Applicant and did not bother to contact him.
The Court accepts the Minister’s submissions that to the extent this ground concerns the Applicant’s “unhappiness” with the Delegate’s Decision this Court has no jurisdiction as it is a primary decision under s 476(2)(a) of the Migration Act.
The Minister submitted that the Applicant’s complaints do not amount to error in the Tribunal’s Decision for the following reasons:
(a)The Applicant appointed the Representative and did not withdraw that appointment;
(b)The Tribunal directed all documents to the Representative, per s 379G(1)(b) of the Migration Act. The Tribunal is therefore taken to have given such documents to the Applicant, per s 379G(2) of the Migration Act;
(c)The Representative failing to notify the Applicant is not the Tribunal’s responsibility and does not establish jurisdictional error;
(d)The Tribunal can decide the method in which it sends a hearing invitation and had discharged its obligation to validly invite the Applicant to a hearing pursuant to s 360A by a method prescribed by s 379A of the Migration Act; and
(e)The Tribunal contacted the Applicant by sending hearing reminders.
There is no evidence before the Court that there were any previous claims that the Applicant’s ability to attend the Tribunal Hearing was impacted by an overseas trip of the Representative or the Applicant’s medical condition. The Tribunal contacted and informed the Representative and Applicant and satisfied its obligations under the Migration Act. The Applicant did not provide any reasons and evidence for his non-appearance at the Final Hearing, nor did he raise any reasons with the Tribunal to put them on notice that holding the Tribunal Hearing would be unfair or an improper exercise of its power.
As described in [47], the Tribunal fulfilled its obligations and exercised its discretion reasonably on the evidence and in the circumstances before it. The Applicant cannot appeal the Tribunal’s Decision based on his unhappiness with its decision and to the extent the Applicant disagrees with the Tribunal’s assessment the Court cannot undertake impermissible merits review.
Ground 3 must be dismissed.
CONCLUSION
The Application has not identified any jurisdictional error in the Tribunal’s Decision.
Accordingly, the Application must be dismissed.
The Minister sought costs fixed in the sum of $5,400. This amount is below the allowable amount in Pt 2, Div 1, Item 3 of Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) applicable at the time of the Final Hearing. Accordingly, an Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $5,400.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 29 June 2023
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