FEDERAL COURT OF AUSTRALIA

Giri v Minister for Immigration and Citizenship [2011] FCA 928

THE COURT ORDERS THAT:

1.    The Appeal is dismissed.

2.    The Appellant pay the costs of the First Respondent of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Magistrates Court of Australia (Cameron FM) delivered on 28 April 2011 dismissing the appellant’s application for review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 4 November 2010 and published on 5 November 2010. The Tribunal affirmed a decision of the Delegate of the first respondent to cancel the appellant’s Vocational Education and Training Sector Visa described as a Student (Temporary) (Class TU), subclass 572 (“the visa”) issued under the provisions of the Migration Act 1958 (Cth).

2    When the appeal was called for hearing at 2.15pm on Tuesday, 2 August 2011, there was no appearance for the appellant. Counsel for the first respondent advised the Court that her instructing solicitor had spoken with the appellant by telephone when it became apparent that there would be no appearance by the appellant. Counsel for the first respondent advised the Court that the appellant had said to the instructing solicitor that he was at home and was not feeling well; he had telephoned the Federal Court Registry in Sydney that morning to say that he would not be able to appear as he was feeling unwell; and, he had been told by an officer of the Registry that the appeal was listed for hearing that afternoon. The appeal was then adjourned for a short period to enable enquiries to be made of the Registry to determine whether any document had been delivered or sent by facsimile to the Registry or an email received from the appellant concerning the hearing of the appeal. Enquiries during the course of the brief adjournment within the Registry failed to identify any record of any document or any person who had spoken with the appellant. The hearing of the appeal resumed after an adjournment of approximately 20 minutes. The Court elected to hear the appeal on the merits.

3    The Delegate of the first respondent cancelled the appellant’s visa under s 116(1)(b) of the Migration Act on the ground that the appellant as visa holder had failed to comply with a condition of the visa that the appellant remain enrolled in a registered course of study.

4    Section 116(3) of the Migration Act provides that the first respondent must cancel a visa “… if there exist prescribed circumstances in which a visa must be cancelled”. Regulation 2.43(2) of the Migration Regulations 1994 (Cth) provides, relevantly, that for the purposes of s 116(3) of the Migration Act, the circumstances in which the Minister must cancel a visa include, in the case of a Student (Temporary) (Class TU) Visa, that the Minister is satisfied that the visa holder has not complied with condition 8202 and the non-compliance was not due to exceptional circumstances beyond the visa holder’s control. Condition 8202 is made a condition of a Student (Temporary) (Class TU) subclass 572 Visa by operation of Schedule 2, 572.611 of the Migration Regulations. Condition 8202 provides that the holder of the visa meets the requirements of Condition 8202(2) if the holder is “enrolled in a registered course”.

5    The background facts are these.

6    The appellant is a 23 year old citizen of Nepal who was granted the visa on 27 May 2008. The appellant arrived in Australia on 21 July 2008. Upon arrival, the appellant was enrolled at the Australian Institute of Commerce and Language (the “Institute”). The course undertaken by the appellant was directed to achieving an “Advanced Diploma of Information Technology”.

7    On 5 March 2010, the Institute cancelled the appellant’s enrolment due to non-payment of fees (AB 9, see Provider Registration and International Student Management System (PRISMS), Certificate). The cancellation of the appellant’s enrolment placed the appellant in contravention of Condition 8202(2)(a) as he was no longer enrolled in a registered course. As a result of the appellant’s failure to comply with Condition 8202(2)(a), a mandatory obligation fell upon the Minister to cancel the appellant’s visa unless the Minister was satisfied that the appellant’s non-compliance was “not due to exceptional circumstances beyond the visa holder’s control” (Regulation 2.43(2)(b)(ii)(B)).

8    On 27 July 2010, the appellant was notified that a Delegate of the Minister was considering cancelling the appellant’s visa on the basis that the appellant had not been enrolled in a registered course of study since 5 March 2010. The appellant was given, by that letter, an opportunity to respond. On 2 August 2010, the appellant provided a response. In that response the appellant asserted that he had stopped paying fees to the Institute and had ceased course attendance because he had failed to come to terms with his grief arising out of his Uncle’s death and the circumstances confronting his younger brother arising out of a drug habit.

9    On 10 August 2010, the appellant sent an email to the Delegate attaching a translated extract from the “Register of Death” concerning his Uncle’s death.

10    On 20 August 2010, the Delegate notified the appellant of the decision to cancel his visa (AB 18 - 27).

11    On 27 August 2010, the appellant by his solicitors, Simon Diab & Associates, lodged an application for review of the Delegate’s decision before the Tribunal.

12    On 21 September 2010, the Tribunal wrote to the appellant’s solicitor as the authorised recipient for correspondence on behalf of the appellant. That letter enclosed a letter dated 21 September 2010 from the Tribunal addressed to the appellant in which the Tribunal said this:

In conducting its review [of the cancellation decision], the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

…

The particulars of the information are:

Condition 8202(2)(a) requires that a visa holder be enrolled in a registered course. …

Enrolment is a continuing requirement and does not allow the visa holder to cease to be enrolled in a course. Whether an applicant satisfies this requirement is a question of fact for the decision maker.

●    Information on the Department file indicates that records from [PRISMS] show that you were not enrolled in a registered course of study since 5 March 2010, when your enrolment was cancelled by [the Institute].

This information is relevant to the Tribunal’s review as it may lead the Tribunal to conclude that you have breached condition 8202 of your visa, by not being enrolled in a registered course. This may lead the Tribunal to affirm the decision under review.

Your comments or response should be received at the Tribunal by 28 September 2010.

…

If you cannot provide your written comments or response by 28 September 2010, you may ask the Tribunal for an extension of time in which to provide the comments or response. If you make such a request, it must be received by the Tribunal before 28 September 2010 and you must state the reason why the extension of time is required.

…

If the Tribunal does not receive your comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you must otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

                                [original emphasis]

13    That letter inviting the applicant to comment or respond to the identified information was written pursuant to s 359A of the Migration Act.

14    On 23 September 2010, the Tribunal wrote to the appellant’s solicitors enclosing a further letter addressed to the appellant dated 23 September 2010 by which the Tribunal advised the appellant that it had considered the material before it but was unable to make a favourable decision on that information alone. The appellant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The appellant was told that the Tribunal had arranged a hearing for 10.00am, 14 October 2010 at the nominated address.

15    The appellant did not respond to the letter of 21 September 2010 by 28 September 2010.

16    On 29 September 2010, the Tribunal wrote to the appellant’s solicitors enclosing a letter dated 29 September 2010 addressed to the appellant. That letter was in these terms:

I am writing about the application for review made by you in relation to a decision to cancel your [visa].

On 21 September 2010 the Tribunal sent you an invitation to comment on or respond to information. As advised in that letter your comments should be received by 28 September 2010 and if the Tribunal does not receive your comments or response within the period allowed, or as extended, the Tribunal [may] make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might have otherwise have had under the Migration Act to appear before the Tribunal to give evidence or present arguments.

The Tribunal has received no response or comments or a request for an extension to provide information or comments within the period allowed. Therefore the Hearing scheduled for 14 October 2010 has been cancelled.

If you have any questions, please contact me on …

                                [emphasis added]

17    On 30 September 2010, the Tribunal sent by facsimile a letter to the appellant’s solicitors which enclosed a letter of that date addressed to the appellant. In the letter addressed to the appellant, the Tribunal said that by operation of particular provisions of the Migration Act (to be discussed shortly), the appellant had lost an entitlement to a hearing before the Tribunal. The Tribunal said that notwithstanding that position, the Tribunal member dealing with the appellant’s application would not make a decision until a date after 14 October 2010 and any information provided to the Tribunal member by the appellant would be “fully considered”.

18    On 11 October 2010, the solicitors for the appellant provided the Tribunal with further information which consisted of a statutory declaration made by the appellant on 11 October 2010 (AB 64 and 65) and an attachment to the declaration (AB 66 and 67) consisting of a statutory declaration made on 7 October 2010 by Ms Mary Sutton, a Clinical Counsellor and Consultant Psychotherapist. The attachment explained that Ms Sutton had been providing professional assistance to the appellant arising out of “acute depression as a result of the bereavement of a close family member in Nepal”. The declaration recites that the appellant consulted Ms Sutton on 24 September 2010 in relation to the matters about which Ms Sutton comments in her declaration.

19    On 4 November 2010, the Tribunal decided to affirm the decision to cancel the appellant’s visa and notified the appellant of the decision on 5 November 2010. The Tribunal did not accept that the appellant suffered from a depressive condition at a time prior to the cessation of the appellant’s enrolment in March 2010. At para 48 of the Tribunal’s reasons, the Tribunal deals with that matter. At para 53, the Tribunal addresses the question of the appellant’s contention that concerns about his brother’s drug use was a contributing factor to the failure to remain enrolled in the course of study. The Tribunal was not satisfied that the appellant’s non-compliance with Condition 8202 was due to exceptional circumstances beyond the appellant’s control.

20    The appellant sought the issue of the constitutional writs before the Federal Magistrates Court of Australia on the footing that the Tribunal had fallen into jurisdictional error by misconstruing the statutory obligation to hold a meeting and had proceeded to reach a decision without affording the appellant an opportunity to appear before it and give evidence and present arguments. The resolution of that challenge fell to be determined as a question of construction of the provisions of the Migration Act in the context of a decision of the Full Court of this Court in Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 constituted by Jacobson, Gilmour and Foster JJ; the affirmation by the Court in Hasran of the correctness of the decision of this Court in M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; (2006) 155 FCR 333 per Tracey J and whether any relevant point of distinction arises (so far as might be relevant to the facts of this case) concerning the application of those authorities, as suggested in the reasoning of a decision of the Federal Magistrates Court of Australia in Kumar v Minister for Immigration & Citizenship [2010] FMCA 614.

21    The Tribunal elected to cancel the hearing which was to be held on 14 October 2010 on the following reasoning.

22    Section 360(1) of the Migration Act casts an obligation upon the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. However, that obligation does not apply, by operation of s 360(2), if the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it (s 360(2)(a)); or the applicant consents to the Tribunal deciding the review without appearing before it (s 360(2)(b)); or s 359C(1) or (2) applies to the applicant.

23    Section 359C(2)(a) and (b) applied to the applicant as the Tribunal had invited the applicant under s 359A to comment on or respond to particular information and the applicant had failed to provide his comments or a response before the nominated date. In those circumstances, the Tribunal “may make a decision on the review without taking any further action to obtain the applicant’s views on the information”: s 359C(2).

24    Section 360(3) provides that if any of the paragraphs in s 360(2) (being the circumstances earlier described as (a), (b) and (c)) apply, “the applicant is not entitled to appear before the Tribunal” [emphasis added]. Transposing subparagraph (c) of s 360(2) into s 360(3), s 360(3) would then relevantly read in this way:

If the applicant:

(a)    is invited under section 359A to comment on or respond to information; and

(b)    does not give the comments or the response before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information and the applicant is not entitled to appear before the Tribunal.

25    In other words, s 360(3) operates according to such reasoning as a prohibition upon the applicant appearing before the Tribunal in circumstances where the applicant has failed to give comments or respond to a request for information within the time nominated by the invitation.

26    Section 363A provides that if a provision of Pt 5 of the Migration Act states that a person is not entitled to do something (and ss 359C, 360 and 363A all fall within Pt 5) then, unless a provision of the Migration Act expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing. The Tribunal reasoned that once the prohibition upon the appellant’s entitlement to appear before the Tribunal arose by operation of s 360(3), the Tribunal had no power, by operation of s 363A to permit the appellant to appear before the Tribunal. Therefore there was no point, as a matter of power, in the Tribunal holding a meeting at which the appellant was not entitled to attend and at which it had no power to permit the appellant to attend.

27    That construction of the operation of those provisions of the Migration Act was adopted by Tracey J in M v Minister for Immigration and Multicultural Affairs and was expressed, by his Honour, to be consistent with the purpose of the legislation. The approach to construction in M was affirmed by the Full Court in Hasran v Minister for Immigration and Citizenship. At [25] to [30], the Full Court in Hasran said this:

25.    In our view, the proper construction and application of s 363A of the Act and the related provisions of Pt 5 were correctly stated by the Full Court in [Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498] and explained by Tracey J in M.

26    As Tracey J observed in M … at [46], the language of s 363A is clear. It operates so as to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Pt 5 states that the person is not entitled to do it.

27.    Here, the appellant’s failure to respond to the Tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.

28.    This was because the appellant was invited by the Tribunal’s letter under s 359A to comment or respond to the information stated in the Tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the Tribunal.

29.    The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing.

30.    As Tracey J said in M … at [46], this approach to construction is consistent with the views of the Full Court in Sun, as well as the Explanatory Memorandum which accompanied the Migration Legislation Amendment Bill (No. 5) 1994 (Cth). The contrary view expressed by a Full Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1 (Uddin) is explained by the fact that the Full Court in Uddin was not referred to s 363A of the Act and by the fact that the case was not decided on a basis which involved any consideration of the s 363A.

28    In M the facts were these. The visa applicant challenged a cancellation decision of the Minister’s delegate before the Migration Review Tribunal. There were five alleged errors on the part of the Tribunal. However, the relevant matters for present purposes were these.

29    On 3 February 2005 the Tribunal wrote to M inviting him to attend a hearing on 25 February 2005 and M responded confirming that he wished to appear. Between 15 and 24 February 2005 the Tribunal vacated the hearing date. On 28 February 2005 the Tribunal wrote to M under s 359(2) seeking information about a submission M had lodged with the Tribunal on 25 January 2005. The letter of invitation requesting information required a response by 6 April 2005 although under the Migration Regulations 1994 (Cth) the letter ought to have requested a response by no later than 17 March 2005.

30    In any event, M submitted a response on 14 April 2005 well after the later date of 6 April 2005. A supplementary response was also given by M on 18 April 2005.

31    Because the response was received by the Tribunal after the 6 April 2005 date, the Tribunal advised M that by operation of s 359C(1) the Tribunal was entitled to make a decision on the review without taking any further action to obtain the additional information sought by the letter of 28 February 2005. Section 359C(1) operates in the same way in relation to a s 359 invitation as s 359C(2) operates concerning a s 359A invitation which was the case in the present proceeding.

32    The Tribunal did not accord M a hearing as the response to the s 359(2) letter of invitation was received eight days after the latest date. M contended that even if M ceased to have an entitlement to attend a hearing (by reason of the late response), the Tribunal retained a discretion to conduct a hearing and had failed to consider either the subsistence of such a discretion or whether it should exercise the discretion and hold a hearing at which M would attend. Tracey J concluded that s 363A is clear; it operated to remove any discretion to hold an oral hearing and allow M to appear once s 360(3) operated to remove M’s entitlement to appear before the Tribunal by reason of the s 359C(1) event. The Full Court in Hasran affirmed that view of the construction of the provisions.

33    In M an invitation to attend a hearing had issued on 3 February 2005 before the s 359C(1) event fell in by M’s failure to respond to the 28 February 2005 letter by the due date. The Minister contends that M’s case reflects the same factual matrix as the present proceeding, as an invitation to attend a hearing had also issued to the appellant before the event fell in which effected, in the Tribunal’s view, the foreclosure of the appellant’s entitlement to attend before the Tribunal by the appellant failing to respond to the 21 September 2010 letter by 28 September 2010. However, whilst it is true that the letter inviting M to attend a hearing had issued on 3 February 2005, the hearing was vacated before the s 359 letter of invitation issued to M on 28 February 2005 and before the event of default occurred by M’s failure to respond by 6 April 2005. Accordingly, there was no operative invitation before M when the s 359C(1) event fell in whereas in the present proceeding the invitation to attend a hearing had issued to the appellant and no decision had been taken to vacate the hearing and remove that opportunity prior to the s 359C(2) event falling in.

34    The only point of these references is to demonstrate that the factual matrix in M’s case is not precisely that which (relevantly at least) applies in the present proceeding.

35    Similarly, in Hasran, no letter of invitation had issued to Hasran before the s 359C(2) event fell in by reason of the failure on the part of the applicant to give comments or a response to the s 359A letter by the due date.

36    In Kumar v Minister for Immigration & Anor [2010] FMCA 614, Driver FM sought to distinguish M and Hasran having regard to the factual circumstances of those cases as compared with the facts before the Federal Magistrate. In the course of dealing with the point of distinction, Driver FM said this at [50]:

It is true that s 360(3) states that an applicant is not entitled to appear before the Tribunal if s 360(2) applies. However, .. s 360(2) bears on the obligation [on] the Tribunal to invite an applicant to a hearing, not on any power or obligation to conduct a hearing to which an applicant is invited. It is also true that s 363A provides that the Tribunal does not have the power to permit a person to do something that he or she is not entitled to do. It follows that if the Tribunal is not authorised to issue a hearing invitation, and an applicant is not entitled to attend the hearing, then the Tribunal has no discretion to issue an invitation or permit such attendance. It does not follow, however, in my view that an applicant is not entitled to attend a hearing to which he or she has been lawfully invited.

[emphasis added]

37    Federal Magistrate Driver concluded at [53] that ss 360(3), 359C and 363A read in combination represent a “punitive restriction on a fundamental element of the review process”. Driver FM concluded that, therefore, the sections must be interpreted strictly with the result that where an invitation has been issued to an applicant under s 360(1) to attend a hearing and subsequently the applicant fails to respond to an s 359A letter within the time limited by that letter, although the Tribunal would be prevented from issuing an invitation under s 360(1) after that event, an invitation already issued under s 360(1) remains a properly issued invitation and nothing in ss 359C(2), 360(3) or 363A requires the Tribunal to cancel a hearing to which an applicant has already been lawfully invited.

38    In Kumar, the Tribunal had invited the applicant to appear before it before an s 359C event fell in attracting the operation of s 360(3).

39    Those circumstances prevail in the present appeal.

40    Federal Magistrate Cameron disagreed with the construction adopted by Driver FM in Kumar and regarded the decisions in M and Hasran as establishing the proper approach to the construction of these sections. It is correct to say that the facts in Hasran did not involve the circumstance that a letter of invitation had issued to the applicant prior to the s 359C event, and in M, the hearing date had been vacated for reasons unrelated to any s 359C circumstance.

41    Having regard to the strong expression of opinion by Driver FM, it is important to say something about that approach to the construction of these sections.

42    The construction adopted by Driver FM adopts what might be called a “single subject matter” approach to s 360 in the sense that the section is simply concerned with casting an obligation on the Tribunal to issue a letter of invitation to an applicant to appear before the Tribunal subject to the displacement factors in s 360(2), and s 360(3) simply makes clear that in the absence of a letter of invitation in discharge of the s 360(1) obligation, an applicant is not otherwise entitled to appear before the Tribunal. On such a construction, the section makes clear that an applicant has no entitlement to appear other than by reason of an invitation issued by the Tribunal in discharge of an obligation properly enlivened by s 360(1). On that construction, s 360(3) does not address a second subject matter of extinguishing an applicant’s entitlement to appear before the Tribunal pursuant to a properly issued s 360(1) letter by reason of a supervening s 359C(1) or (2) event.

43    According to such a view, at the moment in time when the Tribunal issued its invitation on 23 September 2010 to the appellant to appear before the Tribunal on 14 October 2010, the Tribunal did so in discharge of a presently subsisting obligation undisplaced by any s 359C(2) event which later fell in by reason of the appellant’s failure to respond by 28 September 2010 to the letter of 21 September 2010. The appellant finds the source of the entitlement to appear before the Tribunal in the letter of 23 September 2010 which was, at the time of issue, properly issued. The Tribunal must have thought, one infers, when it issued the invitation to the appellant to appear to give evidence, that it was doing so in discharge of an obligation it perceived it had at that time. The appellant, upon such a construction of s 360, does not seek to assert an entitlement to appear before the Tribunal in circumstances where the Tribunal had no obligation to invite the appellant to appear before it on a nominated date, at the moment in time when the invitation issued in compliance with s 360(1) as no event within s 360(2) had, at that time occurred, and thus the obligation arising under s 360(1) had not been displaced.

44    Upon such a construction, s 363A has no relevant application because the appellant is not calling upon the Tribunal to exercise a power to permit the appellant to do something that such a person is not entitled to do. The appellant is not calling upon the Tribunal to allow the appellant to appear before it in circumstances where the appellant is prohibited by s 360(3) because s 360(3) is confined in its operation, on such a construction, to a circumstance where an applicant seeks to appear before the Tribunal notwithstanding that the Tribunal has no obligation to invite an applicant to appear.

45    As already mentioned, the appellant, on such a construction of s 360, enjoys an existing entitlement to appear before the Tribunal by reason of the invitation properly issued in discharge of the s 360(1) obligation which subsisted in the Tribunal at the moment in time when the invitation issued.

46    For my own part, there seems to be at least some force in this approach to ss 360, 363A and 359C. However, the construction of these sections has been definitively established by the Full Court of this Court in Hasran as a matter of principle both in terms of the approach to construction in Hasran itself and the affirmation by the Full Court in Hasran of the reasoning in M. Since that approach to construction has been adopted by a Full Court of this Court, the decision must be applied and followed.

47    It follows that the Federal Magistrates Court of Australia correctly determined the question before it by applying the declared construction of the relevant sections flowing from Hasran and M.

48    The third ground of appeal to this Court is that the Federal Magistrate erred by “failing to have regard to the nature of the information sought in the letter of 21 September 2010 prior to the invitation to appear given on 23 September 2010”. The letter of 21 September 2010 is set out at [12] of these reasons. The information about which the Tribunal sought the appellant’s comments was information on the departmental file suggesting that the appellant was not enrolled in a registered course of study from 5 March 2010 and that the appellant’s enrolment had been cancelled by the Institute. The notice of appeal does not provide any particulars of the contended error. The question or issue to be determined by Cameron FM was whether the Tribunal had misconstrued its obligation to hold a meeting so as to afford the appellant an opportunity to appear before the Tribunal. That question was examined expressly in the context of the appellant’s failure to provide a response to the letter of 21 September 2010 by the nominated date of 28 September 2010. In determining that question, Cameron FM examined the letter and the Tribunal’s request for information directed to the particular matters. The appellant has failed to demonstrate either that Cameron FM failed to have regard to the information sought by the letter of 21 September 2010 or the basis upon which it is contended that jurisdictional error arose on the contended footing.

49    It follows that the appeal to this Court must be dismissed with an Order that the appellant pay the costs of the first respondent of and incidental to the appeal.

Associate:

Dated:    16 August 2011