Sun v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 901
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901
File number: SYG 1357 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 1 November 2022 Catchwords: MIGRATION – Cancellation of a Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to take into account information in relation to why the applicant was unable to attend the Tribunal hearing – whether the Tribunal failed to afford the applicant procedural fairness or denied him natural justice – whether the Tribunal was required to telephone the applicant prior to dismissing the applicant’s case for non-appearance – whether the applicant attempted to contact the Tribunal by telephone and was unable to do so – whether the Tribunal could have varied its decision once made – whether the conduct of the applicant’s migration agent amounted to fraud on the Tribunal – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 116, 125, 357A, 360, 360A, 362B, 362C, 368, 379A, 379C, 379G, 425A, 476 and Division 5 of Part 5
Migration Regulations 1994 (Cth), reg 4.21(4) and Condition 8202 in Schedule 8
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 374
Lee v Minister for Immigration and Citizenship [2007] FCAFC 62
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of hearing: 26 October 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms K Pieri Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 1357 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WEI SUN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
1 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application (as amended on 26 October 2022) be 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 KENDALL:
Background
The applicant is a citizen of the People’s Republic of China (Court Book (“CB”) 34 & 41). He was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (the “visa”) on 14 January 2015 (CB 32-37). The visa was due to expire on 15 March 2017 (CB 34).
On 16 August 2016, the then Department of Immigration and Border Protection (the “Department”) sent the applicant a notice of intention to consider cancellation (the “NOICC”) letter under s 116 of the Migration Act 1958 (Cth) (the “Act”) (CB 7-11).
The NOICC letter was sent to the applicant by email and by registered post (CB 5-7). It explained that the applicant had not complied with paragraph 8202(2)(a) of Condition 8202 in Schedule 8 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, based on the evidence before the Department, the applicant had not been enrolled in a registered course of study since 20 March 2015 (CB 8). The applicant was also advised that this might be a ground for cancelling his visa pursuant to s 116(1)(b) of the Act and was invited to respond to the NOICC letter within five working days (CB 8-9).
The applicant did not respond to the NOICC letter (CB 22).
On 19 September 2016, a delegate of the first respondent (the “Minister”) cancelled the applicant’s visa (the “cancellation decision”) (CB 22-27). The applicant was notified of the cancellation by email and by registered post (CB 13-15).
On 21 September 2016, a representative from Easy Study Net (the applicant’s representative) contacted the Department by email and forwarded copies of a completed Form 956 (dated 21 September 2016) and a letter from the Department (which provided the applicant with a visa grant notice) (CB 28-37). That email stated (without alteration) (CB 28):
Dear Case Officer
When I checked my status of visa throught the VEVO today, I found that there was no any result on it, however ,which was displayed on the VEVO system on 12/09/2016. I have not received any notice regarding to my cancellation of student visa by Email or delivered letter, and I do not know what my visa status is now, and the actual visa expired date is 15/03/2017.
I have attached my 956 form and student visa grant letter, please check.
if my visa has been cancelled, could I have the notice of cancellation or cancellation letter?
Much appreciated for your help.
Kind regards
Wei SUN
On 22 September 2016, the Department replied to the applicant’s representative by email, attaching copies of the cancellation decision, notification letter and an information sheet (CB 38-40).
On 26 September 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the cancellation decision (CB 41-42). In that application, details of the applicant’s representative were provided to the Tribunal (CB 42), together with a completed appointment of representative form (CB 43).
On 8 December 2017, the applicant was invited (through his representative) to attend a hearing before the Tribunal scheduled for 18 January 2018 (CB 54-57). The letter included an information sheet that explained what would happen if the applicant did not attend the Tribunal hearing (CB 58-61).
Relevantly, the invitation letter and accompanying information sheet explained that if:
(a)the applicant was unable to attend the hearing, he should advise the Tribunal of this as soon as possible and, if he intended to request an adjournment, he needed to provide a “very good reason” for the adjournment;
(b)an adjournment was sought on medical grounds, a medical certificate stating why the applicant would be unable to attend a hearing should be provided; and
(c)the applicant failed to attend the hearing, the Tribunal might dismiss the application.
On 11 January 2018, the applicant was sent an SMS hearing reminder by the Tribunal to his personal mobile phone number (which he had provided with his review application). The Tribunal’s case notes details that correspondence as follows (CB 65):
SMS HEARING REMINDER
SMS hearing reminder sent to the PRA’s mobile number ([omitted]) on 11/01/2018 11:00:19 AM.
The message sent was:
Reminder - Your AAT hearing is on 18/01/18. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
On 17 January 2018, the applicant was sent a further SMS hearing reminder by the Tribunal, again to his personal mobile phone number. The Tribunal’s case notes details that correspondence as follows (CB 65):
SMS HEARING REMINDER
SMS hearing reminder sent to the PRA’s mobile number ([omitted]) on 17/01/2018 11:00:21 AM.
The message sent was:
Reminder - Your AAT hearing is on 18/01/18. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
The applicant did not appear at the Tribunal hearing on 18 January 2018 (CB 66-68).
On 10 April 2018, the Tribunal dismissed the application for review for non-appearance at the hearing pursuant to s 362B(1A)(b) of the Act (CB 74) (the “Non-Appearance Decision”). The Tribunal found that “no satisfactory reason” had been given by the applicant for his failure to appear at the hearing scheduled on 18 January 2018 (CB 74).
The Non-Appearance Decision was sent to the applicant’s representative by email on 11 April 2018 (CB 69). It was sent with a covering letter which relevantly provided (CB 71):
You may apply to us, in writing, for reinstatement of the application by 26 April 2018. 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.
The applicant was also provided with an information sheet (CB 72-73) which explained as follows (CB 72):
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 application.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
The applicant did not seek reinstatement.
On 30 April 2018, the Tribunal confirmed the decision to dismiss the application for review filed by the applicant (the “Confirmation Decision”) (CB 80-81). The applicant was provided with a copy of the Confirmation Decision (through his representative) via email on 30 April 2018 (CB 75-79).
On 14 May 2018, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
The Tribunal’s decisions
Non-Appearance Decision
In full, the Tribunal’s reasons in relation to the Non-Appearance Decision dated 10 April 2018 provide (CB 74):
1.The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 18 January 2018 at 9.30am. 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. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2.The review applicant did not appear 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 applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant’s representative about the hearing. No satisfactory reason for the nonappearance has been given.
3.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
In full, the Tribunal’s reasons in relation to the Confirmation Decision dated 30 April 2018 provide (CB 80-81):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 September 2016 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).
2.On 10 April 2018, the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The review applicant was 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 applicant was 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 applicant 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 decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
Application to this Court
The application for judicial review filed by the applicant on 14 May 2018 contains three “grounds of review”, as follows (without alteration):
1. I WAS UNABLE TO ATTEND AAT HEARING.
I AM IN VERY POOR HEALTH. DURING THAT SEVERAL DAYS, I STAYED IN HOSPITAL. I WAS SO AFRAID THAT I MIGHT DIE, MY FRIENDS ALSO WERE FRIGHTENED. THEY CAME TO HOSPITAL TO SEE ME. THEY STAYED WITH ME, AND THEY FEARED TO LEAVE TO ALONE. UNDER SUCH A SITUATION, I COULD NOT INFORM AAT THAT I WAS ILL AND UNABLE TO ATTEND THE HEARING, AND MY FRIEND DID NOT HAVE TIME TO HELP ME TO INFORM OF AAT AS WELL.
2. AAT SHOULD MAKE A PHONE CALL TO ASK ME ABOUT MY CASE.
AAT REJECTED MY CASE SO QUICK AND IMMEDIATELY WITHOUT ASKING ME ANYTHING. AAT SHOULD CHECK MY REAL SITUATION. BECAUSE OF THEIR WORKING ATTITUDE I SHOULD HAVE RIGHT TO COMMENT ON ANY ADVERSE VIEW. IT BREACHED THE LAW. I WAS DENIED SUCH RIGHTS. I WAS NOT GIVEN OPPORTUNITY TO EXPLAIN ALL ASPECTS OF MY CASE. SO, THE TRIBUNAL’S DECISION BREACHED MY RIGHT TO NATURAL JUSTICE.
3. AAT’S WORKING ATTITUDE IS IRRESPONSIBLE.
AFTER THIS ISSUE, I TRIED TO CONTACT AAT BUT THEIR NUMBER ALWAYS NOT AVAILABLE. HOW BAD THEY ARE WORKING. I AM NOT SATISFIED WITH THEIR WORKING ATTITUDE. IN ADDITION, I BELIEVE AUSTRALIA IS A COUNTRY THAT WILL PROTECT THE INTERESTS OF OUR DISADVANTAGED GROUPS, SO I FLED TO AUSTRALIA TO SEEK HELP. HOWEVER, I DID NOT THINK THAT AAT IS NOT FAIR TO ME. AAT DID NOT CONSIDER MY PRACTUAL SITUATION AND TOOK IT FOR GRANTED THAT I COULD ATTEND THE HEARING LIKE OTHERS, WHICH IS REALLY NOT HUMANE. PLEASE CONSIDER MY REAL SITUATION.
On 7 June 2018, procedural orders were made by Registrar Morgan of this Court giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. On 16 March 2022, Registrar van der Westhuizen of this Court also made procedural orders giving the applicant a further opportunity to file any written submissions. Unfortunately, no additional materials were provided by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 14 May 2018, a Court Book numbering 81 pages (marked as Exhibit 1) and written submissions filed by the Minister on 11 October 2022.
The applicant appeared before this Court on 26 October 2022 without legal representation. The applicant was assisted at that hearing by an interpreter in the Mandarin and English languages. The Court confirmed with him that he had received copies of the Court Book and the Minister’s written submissions.
The Court also addressed what appeared to be an “oversight” in the application for judicial review filed by the applicant. In that regard, the Court notes that the application does not seek review of the Tribunal’s Non-Appearance Decision. The Court explained to the applicant that his judicial review application only related to the Tribunal’s Confirmation Decision. With the agreement of the applicant, the Court made an order granting the applicant leave to orally amend his application for judicial review to include review of both the Non-Appearance Decision and the Confirmation Decision.
This judgment thus considers whether the Tribunal fell into jurisdictional error in relation to both the Non-Appearance Decision and the Confirmation Decision.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, 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 ignores relevant 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: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that his migration agent did not thoroughly explain the requirements to him and, because of that, he was left without a visa. The applicant also explained that “back then”, he “did not understand what was required of him” but now hoped he could “get another student visa and continue his studies”. The applicant also explained that, in relation to his failure to attend the Tribunal, all the emails and phone numbers registered were that of his migration agent that and he was unable to contact that migration agent. The applicant also claimed that he thought the migration agent had “scammed him”.
The issues raised by the applicant in relation to the conduct of his migration agent will be considered by the Court below.
Consideration
Grounds of review
Ground 1
Ground 1 states:
1. I WAS UNABLE TO ATTEND AAT HEARING.
I AM IN VERY POOR HEALTH. DURING THAT SEVERAL DAYS, I STAYED IN HOSPITAL. I WAS SO AFRAID THAT I MIGHT DIE, MY FRIENDS ALSO WERE FRIGHTENED. THEY CAME TO HOSPITAL TO SEE ME. THEY STAYED WITH ME, AND THEY FEARED TO LEAVE TO ALONE. UNDER SUCH A SITUATION, I COULD NOT INFORM AAT THAT I WAS ILL AND UNABLE TO ATTEND THE HEARING, AND MY FRIEND DID NOT HAVE TIME TO HELP ME TO INFORM OF AAT AS WELL.
By ground 1, the applicant claims that he was unable to attend the Tribunal hearing because he was unwell. He says that he was in the hospital and was so unwell that he and his friends were fearful that he “might die”.
As outlined above, the information sheet sent to the applicant (with the hearing invitation letter) provided information about what the applicant should do if he was unable to attend the scheduled hearing or if he was unwell (CB 58-61). Relevantly, the information sheet stated (CB 60):
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.
There is no evidence before this Court to suggest that the applicant contacted the Tribunal at any point to advise that he had not attended the Tribunal hearing because he was unwell or because he was in the hospital. He did not do so either prior to the Tribunal hearing or in the time between the Tribunal hearing and the Tribunal making either the Non-Appearance or Confirmation Decisions. In this regard, the Court notes that the Tribunal hearing was scheduled to take place on 18 January 2018 (CB 56). The Tribunal then made its Non-Appearance Decision on 10 April 2018 (CB 74) and its Confirmation Decision on 30 April 2018 (CB 80-81). The applicant thus had more than three months within which to contact the Tribunal to provide any evidence in support of his reasons for failing to appear at the Tribunal.
The applicant did not do so.
The applicant also failed to seek reinstatement following the Tribunal making and notifying him of the Non-Appearance Decision. As outlined above, the applicant was notified of the Non-Appearance Decision (through his representative) on 11 April 2018. In the notification letter, the applicant was told that (CB 71):
You may apply to us, in writing, for reinstatement of the application by 26 April 2018. 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.
The information sheet provided with the Non-Appearance Decision also provided the applicant with additional information in this regard (CB 72-73). Relevantly, it stated (CB 72):
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 application.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
In circumstances where the applicant did not provide any information to the Tribunal about his reasons for failing to appear at the Tribunal hearing, the Tribunal could not have taken this information into account. Further, in circumstances where the applicant did not seek to have his application reinstated, the Tribunal was required to confirm the decision to dismiss the application: s 362B(1E) of the Act.
No error arises in relation to ground 1.
Ground 2
Ground 2 provides:
2. AAT SHOULD MAKE A PHONE CALL TO ASK ME ABOUT MY CASE.
AAT REJECTED MY CASE SO QUICK AND IMMEDIATELY WITHOUT ASKING ME ANYTHING. AAT SHOULD CHECK MY REAL SITUATION. BECAUSE OF THEIR WORKING ATTITUDE I SHOULD HAVE RIGHT TO COMMENT ON ANY ADVERSE VIEW. IT BREACHED THE LAW. I WAS DENIED SUCH RIGHTS. I WAS NOT GIVEN OPPORTUNITY TO EXPLAIN ALL ASPECTS OF MY CASE. SO, THE TRIBUNAL’S DECISION BREACHED MY RIGHT TO NATURAL JUSTICE.
Ground 2 arguably raises two issues:
(a)whether the Tribunal failed to afford the applicant procedural fairness or denied him natural justice; and
(b)whether the Tribunal was required to phone the applicant prior to dismissing the applicant’s case for non-appearance.
These issues will be considered below.
Whether the Tribunal failed to afford the applicant procedural fairness or denied him natural justice
Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act
As outlined by this Court in the decision of Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 374, the Tribunal’s power to dismiss an application for non-appearance is found in s 362B(1A)(b) of the Act. Section 362B(1A)(b) of the Act provides:
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
…
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
The preconditions to the exercise of the power in s 362B(1A)(b) of the Act are found in s 362B(1) of the Act which provides:
362B Failure of applicant to appear before Tribunal
(1) This section applies 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.
Here, the Court notes that:
(a)the applicant was invited to attend the hearing scheduled for 18 January 2018 by the letter dated 8 December 2017 which was sent to the email address nominated by the applicant (being the email address of the applicant’s representative): s 360 of the Act (CB 54-64);
(b)this letter advised the applicant (through his representative) of the date, time and place of the hearing: s 360A of the Act (CB 56);
(c)the invitation letter was sent via a method specified in s 379A of the Act (i.e. by email) (CB 54);
(d)the letter was sent to the applicant’s representative on 8 December 2017, more than 14 days before the date of the hearing (14 days being the minimum prescribed period): reg 4.21(4) of the Regulations; and
(e)
the letter contained a statement explaining the effect of s 362B of the Act
(CB 56-57). The relevant paragraphs in the letter advised that:
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
The Court also notes that, pursuant to s 379G(1) of the Act, if an applicant gives the Tribunal written notice of an authorised recipient, for the purposes of s 379A, then the Tribunal must provide documents to that authorised recipient (instead of the applicant): Lee v Minister for Immigration and Citizenship [2007] FCAFC 62. The Tribunal was thus required to provide all documents (including the hearing invitation letter) to the applicant’s representative (instead of directly to the applicant) and did so here.
There is no dispute that the applicant did not appear at the hearing.
The statutory preconditions to the exercise of the power in s 362B(1A)(b) were met in this matter. However, the power under s 362B(1A)(b) is discretionary. Accordingly, the Tribunal must act “reasonably” in exercising this power: Li at [63] (per Justices Hayne, Kiefel and Bell).
In this matter, the Court does not consider the Tribunal’s decision to dismiss the application pursuant to s 362(1A)(b) to have been unreasonable. Relevantly:
(a)the applicant was invited to attend the hearing scheduled for 18 January 2018 at 9.30 am (NSW time) and the location was provided as the Tribunal’s address in Sydney: ss 360 and 360A (CB 56);
(b)an information leaflet was also included in the email to the applicant’s representative attaching the invitation letter. That leaflet explained in detail what would happen if the applicant did not attend the hearing (CB 58-61). The relevant part of the leaflet advised the applicant as follows (CB 60-61):
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.
What happens if an application is dismissed?
If we dismiss your application, a written statement of the dismissal decision will be given to you. Within 14 days after receiving notice of the dismissal decision you may apply for reinstatement of the application.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so. 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.
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 application. 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.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
(c)the applicant had not engaged with the Tribunal in any substantive way since the filing of the review application. The applicant did not respond to the hearing invitation and had not provided any further materials to the Tribunal since lodging his application;
(d)the applicant did not appear at the hearing; and
(e)the applicant did not ask the Tribunal for an adjournment, nor did he contact the Tribunal advising that he was unable to attend the scheduled hearing.
No error arises in this regard.
Section 362B(1E) of the Act provides:
If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.
In relation to any procedural fairness concerns the applicant might have regarding the Confirmation Decision, it is noted that when the applicant was advised that his application had been dismissed, he was advised that he could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (CB 71). This complied with s 362C(6) of the Act.
The applicant did not apply for reinstatement.
In circumstances where no application for reinstatement was made, the Tribunal was required to confirm the decision to dismiss the application and did so. The Tribunal provided a written statement to that effect, in the form of the Confirmation Decision, on 30 April 2018 (CB 80-81).
No error arises in relation to the Tribunal’s procedural fairness obligations in this regard.
Whether the Tribunal was required to phone the applicant prior to dismissing the applicant’s case for non-appearance
To the extent that the applicant suggests that the Tribunal should have phoned him to “ask [him] about [his] case”, the Court disagrees.
As this Court recently explained in Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268, where an invitation to attend a hearing has been sent and complies with the requirements set out in s 360A of the Act, there is no obligation on the Tribunal to consider other ways in which the applicant can be notified of the scheduled hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 (“SZFHC”) at [39] (in relation to analogous provisions at ss 125 and 425A of the Act). This is further reinforced by amendments to the wording of s 360 of the Act which previously required that the Tribunal provide an applicant with an “opportunity” to appear. The current provision only requires that the Tribunal “invite” the applicant to appear: SZFHC at [41].
While the Tribunal was not required to contact the applicant by phone, the Tribunal did so here – sending two reminder SMS messages to the applicant directly (that is, to the applicant’s own mobile number). Those reminder messages were sent on 11 January 2018 and 17 January 2018 (CB 65).
Despite the additional reminder messages being sent to the applicant, the applicant still did not attend the Tribunal hearing on 18 January 2018 (CB 66-68).
The Court is satisfied that the applicant was validly invited to attend a hearing. The Tribunal was thus not required to consider other ways to contact the applicant, including by telephone.
No error arises in this regard.
Ground 2 is, accordingly, dismissed.
Ground 3
Ground 3 states:
3. AAT’S WORKING ATTITUDE IS IRRESPONSIBLE.
AFTER THIS ISSUE, I TRIED TO CONTACT AAT BUT THEIR NUMBER ALWAYS NOT AVAILABLE. HOW BAD THEY ARE WORKING. I AM NOT SATISFIED WITH THEIR WORKING ATTITUDE. IN ADDITION, I BELIEVE AUSTRALIA IS A COUNTRY THAT WILL PROTECT THE INTERESTS OF OUR DISADVANTAGED GROUPS, SO I FLED TO AUSTRALIA TO SEEK HELP. HOWEVER, I DID NOT THINK THAT AAT IS NOT FAIR TO ME. AAT DID NOT CONSIDER MY PRACTUAL SITUATION AND TOOK IT FOR GRANTED THAT I COULD ATTEND THE HEARING LIKE OTHERS, WHICH IS REALLY NOT HUMANE. PLEASE CONSIDER MY REAL SITUATION.
It is unclear from this ground whether the applicant is claiming to have attempted to telephone the Tribunal after it made its Non-Appearance Decision or after it had made its Confirmation Decision.
There is no evidence before the Court to suggest that the applicant attempted to contact the Tribunal at any time (either after the Non-Appearance Decision or after the Confirmation Decision).
The applicant also suggests that the telephone number provided by the Tribunal was “unavailable”. There is no evidence before the Court to suggest that was the case. In any event, the letters from the Tribunal to the applicant’s representative provided the applicant with multiple telephone numbers (the national enquiry line, the number for the Sydney registry and direct numbers for the individual Tribunal staff members who sent each letter) as well as an email address through which the applicant could have contacted the Tribunal.
There is no evidence before the Court to suggest that the applicant or his migration agent phoned or emailed the Tribunal at any time throughout the review process or after the process had been finalised.
In the event that the applicant is suggesting he contacted the Tribunal after the making of the Confirmation Decision, the Tribunal could not have varied its decision for the reasons that follow.
Section 368 of the Act sets out when a written decision is taken to have been made by the Tribunal. At the time of the Tribunal’s Confirmation Decision, s 368 of the Act provided as follows:
368 Tribunal’s decision and written statement
Written statement of decision
…
How and when written decisions are taken to be made
(2)A decision on a review (other than an oral decision) is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
Note: For oral decisions, see section 368D.
(2A)The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
As outlined in s 368(2A) of the Act, once a decision has been made by the Tribunal and the written statement produced, the Tribunal had no power to vary or revoke its decision.
No error arises in relation to ground 3.
Otherwise
As outlined above, the applicant stated, in oral submissions before this Court, that his migration agent had not explained to him his visa requirements and, as a result, the applicant was left without a visa.
The applicant also stated that the contact details he had provided to the Tribunal (including the phone numbers and email addresses) were that of his migration agent and that he was unaware of the Tribunal hearing for this reason. The applicant claims that he was later unable to reach the migration agent using the contact details that he had and that he may have been scammed by the agent.
Insofar as the applicant has expressed concerns about the failure of his migration agent to properly explain his visa requirements or otherwise adequately represent him, this Court is sympathetic. Unfortunately, there is no evidence before the Court to suggest that the agent’s conduct amounted to fraud on the Tribunal: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35. At its highest, what is alleged to have occurred might amount to negligence or, perhaps, incompetence: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
The Court makes no determination about the agent’s conduct in circumstances where there is insufficient evidence to do so. However, if the applicant does have concerns in relation to the conduct of his migration agent, the Court refers him to the services offered by the Office of the Migration Agent Registration Authority. This agency is better placed to deal with the issues that the applicant raises here.
In relation to concerns the applicant raises about being unaware of what was happening in his matter, the Court notes as follows.
As outlined above, in circumstances where the applicant had given the Tribunal written notice of his appointed migration agent, the Tribunal was required to provide all documents in the matter to that authorised recipient (instead of the applicant) and did so here: Lee v Minister for Immigration and Citizenship [2007] FCAFC 62.
To the extent that the applicant claims that he was not notified of the hearing by his agent, by virtue of s 379C(5) of the Act, the applicant was deemed to have received the notification letter on the date it was sent to the email address he provided to the Tribunal (being the email address of her representative) – that is, at the end of the day on 8 December 2017. This is so even if the applicant’s representative did not forward a copy of that hearing invitation to the applicant. Further, by sending the documents by one of the methods set out in s 379A of the Act (in this case, to the valid nominated email address of the applicant’s representative), the applicant is taken to have received those documents at the time specified in that section of the Act, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36] per Barker J.
No error arises in relation to the conduct of the applicant’s migration agent.
Conclusion
The application for judicial review filed by the applicant on 14 May 2018 (and amended on 26 October 2022) fails to identify any jurisdictional error. The Court has also been unable to identify any error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 1 November 2022
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