FEDERAL COURT OF AUSTRALIA

Ponugoti v Minister for Immigration and Border Protection [2015] FCA 67

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant to pay the costs of the first respondent to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

1    The appellant is a male citizen of India, who applied for a student (class TU, subclass 572) visa on 15 March 2012.

2    In response to a request for information regarding the appellant’s studies from December 2009 to December 2010 from the Department of Immigration and Citizenship, the appellant claimed he was enrolled in a college and scheduled to complete a Certificate III course by December (presumably 2010 – the year was not referred to in the appellant’s letter). He claimed that in May (presumably 2010), he was the primary witness to an incident which led to one of his roommates going into a coma for two months, and as a result took a break of two months from study. He claimed he then returned to college to complete his course, then was on official holidays from December (presumably 2010) to February (presumably 2011) before continuing with his course.

3    The Department corresponded with the appellant on 29 May 2012 with regard to unfavourable information obtained in the process of departmental checks to confirm his financial documentation. The Australian High Commission in New Delhi (AHC) found that the appellant’s loan from the United Bank of India had been fully availed and funds were no longer available to support his studies in Australia. The AHC concluded the loan was created to demonstrate inflated financial capacity to meet student visa criteria.

4    In a response dated 6 June 2012, the appellant claimed the funds had been unavailable because his father had travelled for work reasons some distance from the bank, and needed to travel to the bank to make a bank transfer. He said his father had been waiting for the exchange rate to stabilise. The appellant claimed his father had since made a deposit and attached documentation confirming the balance of the account on 5 June 2012 was equivalent to 21, 823 Australian dollars.

5    The department referred this information to the AHC, who contacted the appellant’s father on 11 July 2012 to inquire about the source of funds deposited into the account used to obtain the loan. The appellant’s father stated the funds were given to him by his brother in law and came from the sale of land belonging to his brother in law.

6    On 23 July 2012, a delegate of the Minister for Immigration and Border Protection refused to grant the appellant a student visa.

7    The appellant sought review of this decision before the Migration Review Tribunal. The appellant did not attend the hearing before the Tribunal held on 16 October 2013. The Tribunal affirmed the decision of the delegate on 17 October 2013.

8    The Federal Circuit Court gave judgment on 28 August 2014, dismissing the appellant’s application for judicial review of the Tribunal’s decision. See Ponugoti v Minister for Immigration and Border Protection & Anor [2014] FCCA 2135.

9    The appellant now appeals to this Court from the Federal Circuit Court’s decision.

the delegate’s decision

10    The delegate refused the application for a grant of the visa.

11    The delegate found that the appellant was required to meet the legal requirements specified in the Migration Act 1958 (Cth) (Act) and Migration Regulations 1994 (Cth) (Regulations). The delegate found the appellant did not meet the legal requirement in cl 572.223 of Sch 2 to the Regulations, in relation to the financial capacity of the appellant under cl 572.223(2)(b) of Sch 2.

12    The delegate found the funds used to obtain the fixed deposit came from an unacceptable source pursuant to cl 5A405(1) of Sch 5 to the Regulations. The delegate noted an uncle is not listed as an “acceptable individual” in cl 5A405(2) of Sch 5, unless they are an Australian citizen, permanent resident, eligible New Zealand citizen, or usually resident in Australia, and there was no evidence to this effect. Further, the delegate stated the appellant’s uncle could not be considered an accepted financial institution pursuant to cl 5A405(2) of Sch 5 to the Regulations.

The Tribunal’s decision

13    The appellant then sought review of the delegate’s decision in the Tribunal on 9 August 2012.

14    As the Tribunal’s decision record discloses, by letter dated 9 August 2012, the Tribunal acknowledged receipt of the review application and invited the appellant to provide any material or written submissions he wished the Tribunal to consider, but the Tribunal did not receive any response to that letter.

15    By letter dated 10 September 2013, the Tribunal informed the appellant that it had considered the material before it but was unable to make a favourable decision on the basis of that material alone. The appellant was invited to attend a hearing on 16 October 2013 to give evidence and present arguments in relation to the issues arising in the review. The appellant was also invited to provide evidence of current enrolment or current offer of enrolment and evidence to demonstrate sufficient funds from an acceptable source for the purposes of the Regulations.

16    However, the letter was returned to the Tribunal marked “not at address” on 12 September 2013.

17    On 20 September 2013, a Tribunal officer sent an email to the appellant at an email address that he had provided with his initial application for a visa. Evidence before the Court below and this Court shows that the delivery of that email to that email address of the appellant was successful. The text of the email was as follows:

Good Morning Mr Ponugoti,

Please see attached courtesy copy of your invitation to appear before the Migration Review Tribunal for hearing sent to you on 10 September 2013.

Your hearing is scheduled for Wednesday 16 October 2013 at 10:00am.

This letter was sent to your nominated address, … but was returned to the MRT unclaimed. Attempts have also been made to contact you on your nominated landline, … which is disconnected, and your nominated mobile, …, which rang out and had no message service.

Please advise the MRT ASAP of your new contact details. It is very important that you advise the MRT and the Department of Immigration ASAP if you change any of your contact details.

Please carefully read the attached invitation and return the response to hearing invitation ASAP if you intend to appear.

If you have any questions, please do not hesitate to contact the Migration Review Tribunal on the details below.

Thank you,

Regards

18    The email was sent after the Tribunal officer had unsuccessfully tried to ring the appellant, first on a landline, which was found to be disconnected, and then on a mobile phone, which rang out and which had no message facility.

19    Not long after the email was sent, on 20 September 2013, the evidence before the Court shows that the appellant telephoned the Tribunal officer and advised that he had changed his address, and provided that new address.

20    The Tribunal officer requested that he advise the Tribunal and the Department of his new address in writing as soon as possible.

21    She also advised the appellant that she had emailed him a copy of his hearing invitation, and confirmed the email address with him. She advised him to carefully read and respond and if he had any questions to contact the Tribunal as soon as possible. He said he would do so and speak to his agent. He thanked her and the call ended.

22    Subsequently on 11 October 2013, the appellant, from the same email address to which the Tribunal officer had sent the earlier email, wrote to the Tribunal advising of the change of address.

23    In these circumstances, there is, and indeed cannot be, any doubt that at all material times the appellant actually knew that a hearing was scheduled in the Tribunal for 16 October 2013 at 10:00am.

24    On the day and time of the scheduled hearing, on 16 October 2013, however, the appellant did not appear. The Tribunal kept the arrangements for the hearing open for 30 minutes past the scheduled time but the appellant did not appear or contact the Tribunal.

25    The Tribunal was satisfied that the letter of 10 September 2013 was correctly sent to the address the appellant had provided for receiving correspondence. The Tribunal found it had taken all steps available to it to offer the appellant the opportunity to appear before it and to provide evidence in relation to the review, but the appellant had not taken up the opportunity, and so it would proceed to make a decision under s 362B of the Act.

26    The Tribunal then said, that for the reasons that followed, it had concluded that the decision under review should be affirmed. The Tribunal then added that the issue before the delegate was whether the appellant met the criterion in the Regulations, however, the issue before it, at that point, was whether the appellant had met the enrolment requirements for a student visa.

27    The Tribunal said that with limited exceptions not relevant in the case before it, the Regulations require that at the time of decision an appellant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under reg 1.40A of the Regulations for the subclass at the time of application.

28    The Tribunal found it had no evidence before it that the appellant was enrolled in or had a current offer of enrolment in any applicable course of study. Therefore cll 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Sch 2 to the Regulations were found not to be met.

29    Further, the Tribunal found there was no evidence that the appellant met the criteria for other student visas, namely subclass 576 (AusAID or defence sector) or subclass 580 (student guardian).

judicial review in the federal circuit court

30    The appellant then brought an application for judicial review in the Federal Circuit Court. His application asserted three particularised grounds of review:

(1)    the Tribunal failed to accord him procedural fairness and natural justice;

(2)    the Tribunal failed to comply with s 362B(2) of the Act in that it failed to reschedule the appellant’s appearance before it to enable the appellant to appear and present his case; and

(3)    the Tribunal failed to comply with s 348 of the Act in that it failed to conduct a review of the application.

Obviously these three grounds tended to overlap.

31    In respect of the first ground of review, the primary judge dealt with each particular (a) to (h) and found no evidence that the appellant had applied for an extension of time to appear at the hearing or an adjournment of the hearing before the Tribunal, and that the appellant confirmed this before the Federal Circuit Court. His Honour, having been made aware that the appellant had received an invitation to attend, and that he failed to attend the hearing, found it was not an unreasonable exercise of power for the Tribunal to proceed to decision. The primary judge distinguished the appellant’s case from that of Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, in that the appellant had not applied for an adjournment. Therefore, his Honour found the failure to adjourn was not an unreasonable exercise of discretion by the Tribunal, which had the power to make its decision in the absence of the appellant under s 362B(1) of the Act. Further, the primary judge did not find any breach of Div 5 of Pt 5 of the Act, an exhaustive statement of the natural justice hearing rule in relation to matters dealt with in that division.

32    In respect of the second ground of review, particular (a) his Honour again found that the Tribunal considered the circumstances of the appellant being invited to attend the hearing and failing to attend, and reasonably exercised its discretion under s 362B(1) to proceed to a decision. His Honour found no factors indicating the Tribunal ought to have adjourned the hearing.

33    His Honour also dealt with particulars (b) to (e) of ground 2 and dismissed each. As to particular (b), his Honour noted that it alleged that the Tribunal erred by not having regard to the fact that the appellant was never requested in writing to submit evidence going to the financial requirements required under the Act prior to the delegate’s decision. But his Honour noted that the Court was not reviewing the decision of the delegate, where that may have been an issue. The invitation to attend the Tribunal hearing specifically requested the provision of that material, as well as enrolment evidence, and the latter was the issue for the Tribunal at the time of the decision.

34    Particular (c) was dismissed for the same reasons.

35    Particular (d) alleged the Tribunal did not give the appellant an opportunity to provide evidence. His Honour dismissed that particular for the same reasons as he dismissed particular (d) of the first ground of review, namely it was not unreasonable for the Tribunal to proceed to make a decision and there was no proof of breach of Div 5 of Pt 5 of the Act.

36    Further, the primary judge did not find there to be any evidence that the Tribunal did not consider an integer of the appellant’s claims, as claimed in particular (e). His Honour found the Tribunal considered the issue of whether the appellant met the enrolment requirements for a student visa and the appellant did not provide evidence of enrolment to the Tribunal.

37    In respect of the third ground of review, his Honour considered each of particulars (a) to (e). His Honour noted the appellant alleged there was no available information before the Tribunal to make a decision. He found that the relevant facts of the individual case have to be supplied by an applicant, in as much detail as is necessary to enable the decision-maker to establish the relevant facts. His Honour noted that a decision-maker is not required to make an applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170; Luu & Anor v Renevier (1989) 19 ALD 521 at 523. Further, his Honour stated the Tribunal is not required to accept uncritically any and all allegations made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451. The primary judge applied the decision in SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328, in that an applicant’s failure to provide sufficient information about his claims to satisfy the Tribunal may be a valid reason for the application to be rejected.

APPEAL TO THIS COURT

38    The appellant now appeals from the decision of the Federal Circuit Court. Rather than state particular grounds of appeal, as indeed was done on the judicial review application in the Court below, the appellant has chosen to provide a narrative that includes a number of grievances. The last two paragraphs of this narrative appear under what appears to be a paragraph numbered “2”. It may be assumed therefore that the preceding four paragraphs of the narrative are meant to fall under a paragraph “1”.

39    The appellant, among other things, complains that he “provided enough explanation” which was not considered by the Tribunal and that he “wasn’t given [a] chance” to make his case.

40    The appellant also claims that the Department and the Tribunal have refused his application, and applications for review, without providing an adequate time frame to provide further documents, evidence and submissions. Further, the appellant claims he was not afforded an adequate opportunity to make his case before the Federal Circuit Court. The appellant did not file written submissions. He also appears to suggest that there are new materials or new argument, which he should be able to ventilate “as explanation has been submitted by Migration Agent but not by applicant”. By implication, he requires the Court to “re-open the original appeal pursuant to either a common law power or pursuant to statute”.

41    All of that appears under “ground 1”. Ground 2 would appear to repeat the reopening proposition.

42    The Minister submits that, while accepting that it is appropriate to read documents filed by appellants in circumstances such as the present widely and benevolently, it is difficult to discern the error or argument on which the appellant seeks to base his appeal. The Minister submits that, at its highest, the appellant’s notice of appeal and supporting affidavit contain “no more than a narration of the appellant’s difficulties, and tendentious statements as to his entitlement to various orders”. Therefore, in the Minister’s submission, the Court must impute in those documents the contention that the Federal Circuit Court was wrong to conclude as it did on the arguments before that Court.

43    The Minister submits, in any case, the position is without substantive merit. In the Minister’s submission, the Tribunal’s exercise of its power under s 362B of the Act was legally reasonable. The Minister submits legal principles as to the unreasonableness of the Tribunal’s decision are not engaged and the Federal Circuit Court was correct to so conclude.

44    The Minister submits the Tribunal’s decision to proceed in the appellant’s absence had an intelligible justification, as the Tribunal had taken all steps available to it to offer the appellant an opportunity to appear and provide evidence. The Minister notes the Tribunal sent a letter of invitation, re-sent the letter to a verified email address and kept the hearing arrangements open for half an hour after the scheduled time when the appellant failed to appear.

45    In the Minister’s submissions this case may be distinguished from the decisions of Li, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 139 ALD 50 and Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 141 ALD 619, in which an adjournment or similar accommodation was sought. The appellant, the Minister submits, simply failed to appear and did not contact the Tribunal at all. The Minister notes the primary judge recorded that the appellant accepted before him that he had not applied for an adjournment, and that no explanation of his absence on the hearing day has been advanced.

46    The Minister submits this was not a case in which some outstanding fact needed to be finalised, or in which the appellant actively engaged with the Tribunal so his failure to appear needed to be followed up any further than it was. The Minister notes the appellant had been informed by letter of the matters on which he needed to make submissions or submit evidence to the Tribunal and was in touch with the Tribunal as recently as five days before the hearing, yet did not avail himself of the opportunity to be heard.

47    In those circumstances, the Minister submits, it was both reasonable and proportionate for the Tribunal to proceed as it did under s 362B. The Minister submits the Tribunal’s course reflected fairness and justice in the particular circumstances, and was consistent with the substantive merits of the appellant’s case.

48    Generally, for the reasons advanced on behalf of the Minister, the grounds of appeal that might be drawn from the narrative complaint of the appellant should be dismissed.

49    The decision of the High Court in Li emphasised that, depending on the factual situation in any case, a failure to reschedule or grant an adjournment may fail to meet the statutory hearing requirements under the Act or may be considered unreasonable. In Li, at [76], the plurality said that unreasonableness is a conclusion which may be applied to a decision “which lacks an evident and intelligible justification”. There is nothing about the steps taken by the Tribunal concerning the hearing of the review application in the absence of the appellant, or in the decision made in his absence, that lacks an evident or intelligible justification.

50    The facts have been set out above. After the Tribunal received advice that the Tribunal’s letter of 10 September 2013 to the appellant was returned and marked “not at address”, it took steps to communicate with the appellant by email, by sending a scanned copy of the letter to him in that form on 20 September 2013. On that same day, the appellant telephoned the Tribunal and advised that he had changed his address. It may properly be inferred that he did so as a result of receiving the email. Then some time later, on 11 October 2013, the appellant informed the Tribunal in writing of his new address. But the hearing date, 16 October 2013, was plainly notified at all times and obviously the appellant was both informed and aware of it. Under the Act, the address used for the notification of the hearing date was effective (see s 379A of the Act). The Tribunal was entitled in all of the circumstances to accept that the appellant had not only been formally advised of the hearing details, but also, as a result of the email exchange and telephone exchange with the Tribunal and the appellant’s communications with the Tribunal thereafter, that he was, in a practical sense, aware of the hearing date and time. Finally, as the primary judge in the Court below notes, at the hearing before the Federal Circuit Court, the appellant accepted that he did not request an adjournment. At no time was it suggested he did not know about the hearing date.

51    In those circumstances no jurisdictional error is identified and it cannot be said that the primary judge erred in finding as he did in relation to the various natural justice and hearing grounds of appeal.

52    In this regard, the factual circumstances in which the Tribunal proceeded to make a decision in the absence of the appellant were different from the factual circumstances that were present in Kaur where the appellant attended a first hearing before the Tribunal, but failed to attend a second hearing, having been invited to do so, in order to give further evidence about essential documentary evidence that she had submitted went to the satisfaction of the relevant visa criterion. The second invitation letter was returned to the Tribunal marked “returned to sender”. Over a course of about eight months, including at about the time when the invitation to attend the second hearing was sent, there had been proactive contact by both the appellant and the Tribunal in contacting each other in response to various telephone, letter and email communications. When the appellant failed to attend the second hearing, the Tribunal did not contact the appellant to ascertain why she did not attend the hearing.

53    It was in those circumstances that the Court considered, in Kaur, that on an objective consideration of the course of conduct between the Tribunal and the appellant, including the nature of her communications with the Tribunal and her evident determination to provide sufficient information, the Tribunal ought to have realised the failure to respond to the hearing invitation and her non-appearance were out of character and a departure from her pattern of conduct. Had she been contacted by the Tribunal, the appellant would have properly responded to the second hearing invitation. In those circumstances, the decision of the Tribunal to proceed to make a decision in the absence of the appellant was unreasonable and lacked legal efficacy.

54    The circumstances in this case are quite different from those in Kaur. The Tribunal initially, on the return of the hearing invitation letter, contacted the appellant. It made sure he knew the hearing was to be held. There were no other communications, the nature of which suggested that the Tribunal should have attempted to contact the appellant once again, before proceeding to decide the review application in his absence. The appellant, on the evidence before the Court, simply did nothing.

55    Put shortly, the Tribunal was entitled to consider, in the circumstances, that the appellant would attend and then, when he did not, to proceed to make a decision in his absence.

56    What this decision by this Court and the Court below emphasise, is that applicants before the Tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.

57    Finally, the decision actually made, in light of the information before the Tribunal, was reasonably made. Nothing in the reasons for decision of the Court below in that respect discloses error. The “integers” of the decision under review were fully considered by the Tribunal. The principle question was whether there was evidence that met the enrolment requirements of the Regulations. There was none. The appellant had been put on full notice about the need to provide such information. His failure to do so, combined with his failure to attend the hearing, doomed his review application.

58    In these circumstances, the appeal must be dismissed.

conclusion and orders

59    For the reasons given above, the appropriate orders are:

(1)    The appeal be dismissed.

(2)    The appellant to pay the costs of the first respondent to be taxed, if not agreed.

Associate:

Dated:    11 February 2015