Kumar v Minister for Immigration & Anor [2014] FCCA 865 (6 March 2014)

Last Updated: 30 April 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 865

Catchwords: MIGRATION – Judicial Review – Migration Review Tribunal – no denial of natural justice found.

Legislation: Migration Act 1958 (Cth), ss.360, 360A, 476.

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

NAVEEN KUMAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 212 of 2013

Judgment of:

Judge Cassidy

Hearing date:

6 March 2014

Date of Last Submission:

6 March 2014

Delivered at:

Adelaide

Delivered on:

6 March 2014

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the First Respondent:

Mr Prince

Solicitors for the First Respondent:

Australian Government Solicitor

Solicitors for the Second Respondent:

No appearance

ORDERS

(1) The name of the first respondent be amended to read “Minister for Immigration and Border Protection”.
(2) The Application filed on 18 July 2013 be dismissed.
(3) The applicant to pay the first respondent’s costs of and incidental to these proceedings fixed in the sum of SIX THOUSAND SIX HUNDRED AND FORTY SIX DOLLARS ($6646.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE

ADG 212 of 2013

NAVEEN KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Introduction

1. In this matter, this is an application that was filed by Mr Kumar, the applicant, to seek under the Migration Act 1958 (Cth) (“the Act”) that a decision of the Migration Review Tribunal (“the Tribunal”) be quashed.
2. Mr Kumar sets out, in his application that was filed on 18 July 2013, the grounds for that application. He says:
   • “I am not satisfied with the decision made by Migration Tribunal Review. I was so sick and could not attend the date, even though I have all the documents to support my case.
   • I have medical certificates that I was so sick they made decision without me so I want to provide document for my case.”

Background Facts

3. The background to this matter is summarised in the first respondent’s outline of submissions filed 25 February 2014. The applicant is seeking judicial review of a decision of the Tribunal. The Tribunal affirmed a decision of a Delegate of the then Minister for Immigration and Citizenship, now known as the Immigration and Border Protection Minister, and that decision was not to grant the applicant a skilled provisional visa. The applicant is a citizen of India, and on 2 October 2011 he lodged an application for the visa with the then Department of Immigration and Citizenship.
4. On 23 July 2012, the Delegate of the Minister refused the application on the ground that the applicant did not satisfy the competent English requirement under the Commonwealth regulations. On 10 August 2012, the applicant applied for a review of the Delegate’s decision by the Tribunal.
5. On 16 May 2013, the Tribunal invited the applicant to appear before it and give evidence and present arguments relating to the issues arising in the applicant’s case. The hearing was scheduled to take place on 19 June 2013. The applicant did not attend the hearing, and, indeed, he did not contact the Tribunal to indicate that he had a reason for not attending the hearing.
6. The applicant now says he was sick on the day of the hearing. The Tribunal was not informed of the applicant’s reason for not attending, or, in fact, that he would not be present. The Tribunal proceeded on the review in the absence of the applicant and it affirmed the decision that was under review.
7. The Tribunal’s statement of reasons were brief. In summary, they indicated that the applicant applied for a visa. In his visa application, the applicant answered “no” to the question, “Have you undertaken an English test within the last 24 months?”. Upon answering no, the applicant created a situation where he did not establish that he had competent English. It is a requirement of the visa that the person have competent English.
8. There was no evidence that the applicant held a passport to a particular country that might have been an exception to the requirement for competent English. There was no evidence before the Tribunal that the applicant had passed the tests and achieved the scores the Minister has specified in the two language tests, being the international English Language TEST system, or the Occupational English Test. As a consequence of the failure to provide that evidence, the requirements for the visa had not been met, and the decision under review was affirmed.
9. The applicant now argues that he was not satisfied with the decision, he was sick, and he could not attend.

The Law

10. The first respondent submits that the applicant has to establish a jurisdictional error to qualify for the relief that he seeks. Section 476 of the Act confers jurisdiction on this Court. With respect to the principles relating to jurisdictional error, Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 is authority to assist with the understanding of the meaning of that:
    • “[83] Because, as this Court has held, the constitutional writs of prohibition and mandamus are available only for jurisdictional error and because s 474 of the Act does not protect decisions involving jurisdictional error, s 474 does not, in that regard conflict with s 75(v) of the Constitution and, thus, is valid in its application to the proceedings which the plaintiff would initiate. The plaintiff asserts jurisdictional error by reason of a denial to him of procedural fairness and thus s 474, whilst valid, does not upon its true construction protect the decision of which the plaintiff complains. A decision flawed for reasons of a failure to comply with the principles of natural justice is not a “privative clause decision” within s 474(2) of the Act.”

Conclusion

11. Pursuant to ss.360 and 360A of the Act, the Tribunal is required to invite the applicant to appear with a proper notice. These sections were complied with by a letter that was sent to the applicant on 16 May 2013. It was sent to an address at 2/52 Capper Street, Camden Park, South Australia 5038, and that is the same address that the applicant put on both his application, and his affidavit. That invitation is an important document because it sets out the time and the date and the place of the hearing, but more importantly it says:
    • “The tribunal will only change this hearing date for good reason. Please contact the tribunal immediately if you are unable to attend the hearing on this date. Please note that if you fail to attend the scheduled hearing, the tribunal may make a decision without taking any further action to allow or enable you to appear before it.”
12. It seems in the present case that the applicant did not provide any reason, good or otherwise, for failing to attend the hearing, and the invitation seems to satisfy the requirement that it was sent by registered post. It satisfies the requirement that there be a prescribed period of notice in relation to the hearing. The invitation was sent on 16 May 2013, and the hearing was set down on Wednesday, 19 June 2013. The Tribunal, in coming to the decision it did, chose not to exercise the discretion to reschedule the applicant’s appearance or delay the decision.
13. The applicant, it is submitted by the first respondent, did not notify the Tribunal that he was too unwell to attend the hearing. He simply did not attend and the Tribunal had no material before it to suggest otherwise. Therefore it is submitted that it was open and reasonable for the Tribunal to make the decision on review without taking any further action to allow or enable the applicant to appear.
14. Even if I am wrong about that, the application was doomed to fail because of the applicant’s failure to comply with the mandatory requirement for the visa, which was English competency. So that the only conclusion the Court can come to is that I should dismiss the application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Cassidy.

Date: 29 April 2014.