Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

[2021] FCCA 273

FEDERAL CIRCUIT COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 273

File number(s):

PEG 298 of 2020

Judgment of:

JUDGE KENDALL

Date of judgment:

18 February 2021

Catchwords:

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where applicant failed to attend Tribunal hearing – whether reasonable to dismiss for non-appearance – no jurisdictional error – application dismissed  

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 13.03C

Migration Act 1958 (Cth), ss 360, 360A, 362B, 362C, 379A, 426A, 476

Migration Regulations 1994 (Cth), cll 500.211, 500.214

Cases cited:

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Border Protection v SZVFW [2018] HCA 30

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Number of paragraphs:

55

Date of hearing:

16 February 2021

Place:

Perth

Applicant:

No appearance

Counsel for the First Respondent:

Mr A Gerrard

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

PEG 298 of 2020

BETWEEN:

PARAMVEER SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	16 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The hearing proceed by telephone pursuant to Division 5 of Part 6 of the Federal Circuit Court of Australia Act 1999 (Cth).

2.The first respondent have leave to rely on the affidavit of Jonathon Papalia affirmed 25 January 2021.

3.The first respondent have leave to rely on the affidavit of Marie Therese Azar affirmed 25 January 2021.

4.The hearing proceed pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

5.The application be dismissed.

6.Written reasons for judgment be published from Chambers at a later date.

7.The applicant pay the first respondent’s costs fixed in the sum of $6,000.

REASONS FOR JUDGMENT

JUDGE KENDALL

INTRODUCTION

1. This matter was listed before the Court for final hearing on 16 February 2021. When the matter was called, there was no appearance by or for the applicant. The Court was satisfied that the applicant had been properly notified of the hearing date and time (and the details of how to participate).  In the circumstances, the Court made the following orders:

   1. The hearing proceed by telephone pursuant to Division 5 of Part 6 of the Federal Circuit Court of Australia Act 1999 (Cth).

   2. The first respondent have leave to rely on the affidavit of Jonathon Papalia affirmed 25 January 2021.

   3. The first respondent have leave to rely on the affidavit of Marie Therese Azar affirmed 25 January 2021.

   4. The hearing proceed pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

   5. The application be dismissed.

   6. Written reasons for judgment be published from Chambers at a later date.

   7. The applicant pay the first respondent’s costs fixed in the sum of $6,000.

2. These reasons for judgment are those referred to in order 6. They explain why the Court proceeded to hear the application in the absence of the applicant and dismiss the application on the merits.

   BACKGROUND

3. The applicant is a citizen of India. He arrived in Australia in 2006 and has held various visas since that time.

4. On 29 August 2018, the applicant applied for a Student (subclass 500) visa (the “visa”) (Court Book (“CB”) 11-43). This would have been the applicant’s sixth student visa if it had been granted. The applicant’s wife was included as a member of the family unit. She is not a party to the proceedings in this Court.

5. On 21 November 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 79-89). The delegate found that the applicant was not enrolled in a course of study. Accordingly, he did not meet cl 500.211 of the Migration Regulations 1994 (Cth) (the “Regulations”) and could not be granted the visa.

6. The applicant sought review of the delegate’s decision in the Administrative Appeals Tribunal (the “Tribunal”) on 7 December 2018 (CB 90-92).

7. On 11 January 2019, the Tribunal remitted the matter to the delegate with the direction that the applicant met cl 500.211 of the Regulations (CB 96-97).

8. On 17 January 2019, the Minister’s Department wrote to the applicant requesting further information (CB 98-114). On 18 February 2019, the applicant provided some of the information requested (CB 118-121).

9. On 18 February 2019, a different delegate refused to grant the applicant the visa (CB 135-145). The delegate was not satisfied that the applicant met the relevant financial capacity criterion (as per cl 500.214 of the Regulations).

10. On 8 March 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 146-148).

11. On 17 August 2020, the applicant was sent an invitation to attend a hearing before the Tribunal scheduled for 9 September 2020 (CB 158-161). The hearing was to take place by telephone.

12. Neither the applicant nor his wife attended the hearing on 9 September 2020 (despite multiple attempts being made to contact them)(CB 165-168). The Tribunal made a decision pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) to dismiss the application for non-appearance (the “Non-Appearance Decision”).

13. The applicant was then advised of the Non-Appearance Decision. The letter advising him of that decision stated that he could apply for reinstatement by 23 September 2020 (CB 170-172).

14. No application for reinstatement was received.

15. On 24 September 2020, the Tribunal confirmed the Non-Appearance Decision (the “Confirmation Decision”) (CB 175-176).

16. On 12 October 2020, the applicant applied to this Court for judicial review of the Tribunal’s decisions. The application is brought pursuant to s 476 of the Act. To obtain assistance, the applicant must show that the Tribunal has fallen into jurisdictional error.

    TRIBUNAL’S DECISIONS

    Non-Appearance Decision

17. In full, the Non-Appearance Decision states:

    1. The review applicants were invited under s.360 of the Migration Act 1958 to appear by telephone before the Tribunal on 9 September 2020 at 9:30 am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

    2. None of the review applicants appeared before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with s.379A(5),that the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the first-named review applicant (the applicant) about the hearing, one 5 business days before the scheduled hearing and the other one business day before the scheduled hearing. Further, the file shows that a Tribunal officer spoke with applicant by telephone on 8 September 2020 regarding the hearing, and informed him that as his case was one of a number matters to be heard on 9 September 2020, he should expect to be called at any time between 9:30 am and 12:00 pm. The Tribunal notes that one of its officers also called the applicant on the morning of hearing and told him that his application would be heard at 11:30am.

    3. No satisfactory reason for the non-appearance has been given. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.

    Confirmation Decision

18. In full, the Confirmation Decision states:

    1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 18 February 2019 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

    2. On 9 September 2020 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

    3. The review applicants were notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicants were advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

    4. As the review applicants did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decisions under review are taken to be affirmed.

    DECISION

    5. The Tribunal confirms the decision to dismiss the application.

    PROCEEDINGS IN THIS COURT

19. The application for judicial review filed 12 October 2020 provides six “grounds of review”, as follows:

    1. On 29 August 2018, I applied for the student visa (subclass 500) (Class TU) application to study Diploma of Business and Advance Diploma of Business course.

    2. The Diploma of Business (CoE: 9EF22653) was cancelled by the education provider due to non-commencement of studies for which I appealed with the education provider at a time.

    3. On 18 February 2019, the Department of Home Affairs refused my student visa application (subclass 500) for not meeting the criteria for the grant of Student visa. In assessing my circumstances, the Delegate considered that I did not satisfy the genuine temporary entrant criteria of subclass 500.

    4. Due to the medical reasons, I could not attend the hearing at Administrative Appeals Tribunal (AAT) which was scheduled for 09 Sep 2020.

    5. The Administrative Appeals Tribunal (AAT) dismissed my application for a review on 09 September 2020 on the basis of non- appearance for not attending the hearing at AAT. I believe that the Administrative Appeals Tribunal did not consider my reason and fell into jurisdictional error by acting unreasonably while considering my application for a review.

    6. I am not satisfied with the decision of the Administrative Appeals Tribunal. I want the Honourable Federal Circuit Court to consider my application for the review of the decision.

20. The applicant’s affidavit affirmed 12 October 2020 repeats these grounds of review.

21. The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of submissions. No further materials were provided.

22. The materials before the Court thus include the materials referenced above, correspondence confirming the date and time of the hearing (marked as Exhibit 1), a Court Book numbering 183 pages (marked as Exhibit 2), an affidavit of Marie Therese Azar affirmed 25 January 2021, an affidavit of Jonathon Papalia affirmed 25 January 2021 and an outline of written submissions filed by the Minister on 25 January 2021.

23. Mr Papalia’s affidavit annexed materials indicating that the applicant is currently offshore and has no right to re-enter Australia. That is, the applicant is no longer in Australia and has no visa which would allow to him to return.

24. The applicant did not appear at the hearing before the Court on 16 February 2021 either in person or via telephone. There was no appearance entered by any person on his behalf. The Minister sought that the matter be dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court 2001 (Cth) (the “Rules”).

25. Exhibit 1 satisfies the Court that the applicant was advised of the date and time of the hearing. The Court is also satisfied that the applicant could have participated at the hearing if he wished to do so. While the Court accepts that it can dismiss an application for non-appearance pursuant to r 13.03C(1)(c) of the Rules, the Court also has the power to proceed with the application in the absence of the applicant pursuant to r 13.03C(1)(e) of the Rules. The Court chooses to do so here.

26. A hearing date was scheduled and an interpreter was booked to assist the applicant in this matter. The Minister prepared detailed submissions and was prepared to proceed. The applicant left Australia on 27 December 2020 but made no effort prior to his departure or after to discontinue his application or withdraw the application (despite the Minister inviting and explaining to him how to do so). He has, in effect, abandoned the proceedings. The result is that public resources have been expended and the Court’s already limited resources have been wasted. A dismissal under r 13.03C(1)(c) would enable the applicant to apply for reinstatement (which would involve more of the Court’s time). In circumstances where the applicant can be seen to have abandoned the proceedings, the Court does not consider it appropriate for that option to be made available.

27. In light of the above, the Court considers that the hearing should proceed pursuant to r 13.03C(1)(e) of the Rules in the absence of the applicant.

28. While there was no appearance by or for the applicant, the Court has remained astute and alert to the possibility of any error in the Tribunal’s decisions: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.

    CONSIDERATION

29. The only issue before the Court is whether the Tribunal here has fallen into jurisdictional error.

30. The possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

    (a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;

    (b)where the decision-maker ignores relevant material: Craig at 198;

    (c)where the decision-maker relies on irrelevant material: Craig at 198;

    (d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];

    (e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

    (f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

31. Further, this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

32. Here, for the reasons that follow, the Court is satisfied that no error arises in the Tribunal’s decisions.

    Grounds 1-3 and 6

33. Grounds 1-3 are factual matters. They are not in contention. They do not identify any jurisdictional error.

34. Ground 6 is a plea for relief. It does not identify any jurisdictional error.

35. Grounds 1-3 and 6 are, accordingly, dismissed.

    Grounds 4 and 5

36. Grounds 4 and 5 relate to the Tribunal’s Non-Appearance Decision. The applicant appears to suggest that it was unreasonable for the Tribunal to have dismissed his application. In its duty to self-represented litigants, the Court will consider both the Non-Appearance Decision and the Confirmation Decision.

    Non-Appearance Decision

37. The power to dismiss an application for non-appearance is found in s 362B(1A)(b) of the Act. The statutory preconditions to the exercise of that power are found in s 362B(1) which states:

    …if the applicant:

    (a) is invited under section 360 to appear before the Tribunal; but

    (b) 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.

    the Tribunal may make a decision on the review or dismiss proceedings

38. Here, the applicant was invited to the hearing by an invitation sent to his nominated email address on 17 August 2020. That email advised of the date, time and place of the hearing. It was sent via a method specified in s 379A of the Act and was provided more than 14 days prior to the hearing (14 days being the minimum prescribed period). Finally, the invitation contained a statement explaining the effect of s 362B. The invitation complied with s 360A of the Act. The applicant was thus invited to appear before the Tribunal pursuant to s 360 of the Act. The Tribunal afforded the applicant procedural fairness as required by the Act.

39. There is no dispute that the applicant did not appear. The Tribunal’s hearing record makes that clear.

40. The statutory preconditions to the exercise of the power in s 362B(1A)(b) were met.

41. The power under s 362B(1A)(b) is discretionary. Accordingly, the Tribunal must act reasonably in exercising this power. Ground 5 appears to suggest that the Tribunal’s exercise of the discretionary power was unreasonable.

42. In Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 (“SZVFW”), the High Court considered the reasonableness of the exercise of the power in s 426A(1A)(b). Relevantly, s 426A(1A)(b) is in the same terms as s 362B(1A)(b). Accordingly, the principles in SZVFW are equally applicable to the current circumstances. In SZVFW, the Chief Justice stated that “clearly enough, s 426A is directed to the aims of efficiency contained within” the statutory “objective of providing a mechanism of review that is fair, just, economical, informal and quick”. Justice Gageler continued:

    68. The Tribunal is exhorted to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”, to “act according to substantial justice and the merits of the case”, and in applying Div 4 of Pt 7, within which ss 425 and 426A are located, to “act in a way that is fair and just”. Because Div 4 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”, the Tribunal acting fairly and justly is entitled to regard an applicant to whom it is satisfied that an invitation complying with s 425 has been sent as having had adequate notice of his or her opportunity to appear before the Tribunal when considering exercising the discretion under s 426A(1) in the event of non-appearance.

    69. Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that “no sensible [Tribunal] acting with due appreciation of its responsibilities” could have taken that course.

    70. Nothing before the Tribunal took the respondents’ application for review into the realm of the extraordinary. To the contrary, the respondents’ failure to respond to the earlier invitation from the Minister’s Department and their failure to provide the Tribunal with any further documentation in support of their claims for protection, both of which considerations were expressly taken into account by the Tribunal, suggested that a further attempt by the Tribunal to make contact with them would be unlikely to elicit a response.

1. In relation to this matter, the Court does not consider the Tribunal’s decision to dismiss the application pursuant to s 362B(1A)(b) to have been unreasonable. Here:

   (a)the applicant was properly invited to attend the hearing. An information brochure was included with the invitation which explained in some detail what would happen if the applicant did not attend the hearing (Ms Azar’s Affidavit);

   (b)the applicant was also sent two SMS reminder texts (five days and one day prior to the hearing respectively). The Tribunal also called the applicant on the number he had provided the day prior to the hearing.  The case note records:

   Called applicant regarding hearing tomorrow. Clarified that this matter is part of several being heard in that period and that he may not receive the call at 9:30, but potentially any time between 9:30 and 12:00. Applicant initially advised that they might not attend as they are planning to depart when the pandemic travel restrictions are loosened. I advised that I could make a note of this but that he should be aware that non-attendance may result in the application being dismissed. Applicant then advised he would plan to attend and understood that hearing start time may be later than indicated on the hearing invitation;

   (c)the Tribunal phoned the applicant on the same number that it had contacted him on the day prior on five different occasions over a period of 35 minutes. On each occasion, the call was unsuccessful;

   (d)since lodging the application on 8 March 2019, the applicant had not demonstrated any engagement with the Tribunal. Indeed, the first contact the applicant had had with the Tribunal was when the Tribunal called him on the day prior to the hearing; and

   (e)the applicant did not request an adjournment.  Nor did he contact the Tribunal advising that he was unable to attend. Given that the applicant had indicated on the previous day that he “might not attend”, it cannot be said that the non-appearance was “out of the ordinary”.

2. The Court is satisfied that it was entirely reasonable for the Tribunal to proceed as it did. Here, the applicant’s disengagement with the Tribunal process, the numerous attempts that the Tribunal made to contact the applicant and the fact that the applicant acknowledged on the day prior that he was aware that the hearing would proceed any time between 9.30am and 12.00pm demonstrate that the Tribunal acted within its area of decisional freedom.

3. The Court notes that by ground 4, the applicant states that he was “unwell” on the day of the hearing. There is no evidence of ill health before the Court. Further, there is no evidence that the applicant attempted to communicate this concern to the Tribunal prior to the hearing or in the 14 days after the hearing.

4. No error arises from the Non-Appearance Decision.

   Confirmation Decision

5. In relation to the Confirmation Decision, the Tribunal was required to properly notify the applicant of the Non-Appearance Decision: the Act, s 362C. The Tribunal did so by:

   (a)providing a written statement (the Non-Appearance Decision) which satisfied all of the requirements in s 362C(2);

   (b)sending the Non-Appearance Decision to the applicant via email (a method specified in s 379A) on the same day that the decision was made (i.e., within 14 days of the Non-Appearance Decision) – thus satisfying s 362C(5); and

   (c)stating on the cover letter that the applicant could apply for reinstatement in writing by 23 September 2020 and providing an information brochure which explained how the applicant could apply for reinstatement (Ms Azar’s Affidavit) thus satisfying s 362C(6).

6. Having properly notified the applicant, in the absence of any request for reinstatement the Tribunal was required to confirm the Non-Appearance Decision: the Act, s 362B(1E). There is no discretion to do otherwise.

7. Given that the Tribunal came to the only decision open to it in the circumstances of this case, the Confirmation Decision cannot be considered unreasonable.

8. Grounds 4 and 5 are, accordingly, dismissed.

   COSTS

9. At the hearing, the Minister sought costs fixed in the sum of $6,000.

10. This amount is below the amount set for matters of this sort. Here, the Minister filed detailed written submissions addressing the grounds of review. Two further affidavits were also prepared.

11. In light of the time and effort the Minister has expended on this matter, the Court is satisfied that $6,000 is an appropriate amount.

    CONCLUSION

12. For the reasons outlined above, the Court proceeded to hear and determine the judicial review application on the merits despite the applicant’s failure to attend at the hearing. The Court was not satisfied that the judicial review application identified any jurisdictional error. Nor was it satisfied that any error otherwise arises.

13. The application was, accordingly, dismissed.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       18 February 2021