Patel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 115 (14 February 2003)

Last Updated: 28 February 2003

FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 115

MIGRATION - review of decision of Migration Review Tribunal - refusal of Student (Temporary) visa - Tribunal decision made without conducting a hearing - whether the Tribunal under an obligation to invite the applicants to appear before it

Judiciary Act 1903 s 39B

Migration Act 1958 (Cth) s 65(1)(b), 353(2)(b), 359, 359(C)(1), 360(1), 360(2), 360(3), cl 560.230

Secretary of the Department of Social Services v Hodson (1992) 37 FCR 32 referred to

Haque v Minister for Immigration & Multicultural Affairs [2001] FCA 1077 applied

Lawendy v General Practice Recognition Appeal Committee [2000] FCA 946 applied

NITABEN PATEL & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1237 OF 2002

HELY J

14 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1237 OF 2002

BETWEEN:	NITABEN PATEL FIRST APPLICANT PRIYABEN PATEL SECOND APPLICANT SANTOK PATEL THIRD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
JUDGE:	HELY J
DATE OF ORDER:	14 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1237 OF 2002

BETWEEN:	NITABEN PATEL FIRST APPLICANT PRIYABEN PATEL SECOND APPLICANT SANTOK PATEL THIRD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

JUDGE:	HELY J
DATE:	14 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application under s 39B of the Judiciary Act 1903 in relation to three decisions of the Migration Review Tribunal ("the MRT") given on 28 October 2002. By those decisions the MRT affirmed the decision of the Minister's delegate not to grant a Student (Temporary) (Class TU) visa to each of the applicants.

2 Each applicant is a national of Kenya. The applicants are sisters. At the time of the MRT's decision their ages ranged from 14 down to 11. The applicants entered Australia on 14 January 2000 travelling on subclass 676 Short Stay (Visitor) (Class TR) visas. As the circumstances of each applicant, the three decisions, and the procedural history leading up to them are relevantly the same, it is convenient to focus on the position of the first applicant.

3 The first applicant applied for the visa on 28 June 2001. The delegate's decision was made on 25 February 2002. There are three subclasses for the Student (Temporary) (Class TU) visa, see schedule 1 to the regulations, item 1-22. The only subclass potentially applicable to the first applicant was subclass 560 (Student). The delegate concluded that the first applicant would only be entitled to a visa if she establishes "exceptional reasons" for the grant of a subclass 560 (Student) visa. There has been no challenge to the delegate's conclusion in this respect.

4 The delegate was not satisfied that the first applicant met the "exceptional reasons" criteria. The first applicant applied to the MRT for a review of the delegate's decision on 25 March 2002. No answer was given to the question in section 8 of the application form, "Why do you think the DIMA decision was incorrect?", other than "Submission will be sent in due course".

5 On 14 August 2002 the MRT wrote to the first applicant pursuant to s 359 of the Migration Act 1958 (Cth) ("the Act") seeking a statement of her "exceptional reasons" for the grant of the visa. The information was requested within 28 days of the date of notification, which was said to be seven business days after the date of the letter. Thus, the first applicant was given until about 20 September 2002 to provide the requested information.

6 The letter was sent to the first applicant's migration agent at the address notified in section 4 of the Application for Review, with a copy sent to the first applicant at the address nominated in section 7 of the application. Section 7 of the application includes a quote:

"If you have nominated a representative in section 4, all correspondence will be sent to that person and a copy of all correspondence will be sent to you."

7 The MRT records in its decision that a response was received by it to the letter of 14 August 2002 on 8 October 2002 after the prescribed period had expired, and after a decision had been drafted. Nevertheless, the MRT considered the response, which appears to have been faxed to the MRT on 6 October 2002. 7 October 2002 was a public holiday and the response was put on the file and seen by the MRT member on 8 October 2002. As a reply to the letter of 14 August 2002 was not received within the stipulated time, the MRT proceeded to make a decision without inviting any of the applicants to a hearing.

8 The MRT considered departmental policy on the term "exceptional reasons" and the MRT's practice, noting that the policy was not exhaustive and a guide only. The MRT went onto consider the claims made by the applicant as to why she established "exceptional reasons" for the grant of the visa. In short, those claims were that there was violence towards Indians, including the kidnapping of school children, in Kenya and that they wished to stay in Australia to be able to finish high school.

9 The MRT gave the first claim little weight as it was unable to find any evidence of such violence or kidnapping and was not satisfied that the second claim amounted to "exceptional reasons" for the grant of the visa. As a result, cl 560.230 was not satisfied so the visa had to be refused: see s 65(1)(b) of the Act.

10 It is apparent that the MRT's decision turns on an issue of fact, in particular whether it was satisfied that exceptional reasons existed for the grant of the visa. There is nothing to suggest that the MRT misunderstood the meaning of "exceptional reasons". Whether "exceptional reasons" exist is essentially a question of fact and degree for the MRT to determine. Its determination on that issue involved no question of law: see Secretary of the Department of Social Services v Hodson (1992) 37 FCR 32 at 42 in the context of the expression "special circumstances".

11 The affidavit filed in support of the application asserts that:

"The Tribunal failed to act on proper principles of fairness and natural justice."

And it alleges five grounds of review.

12 When the matter came on for hearing, Mr Burwood, who appeared for the applicants, made it clear that the only submission which was being put on behalf of the applicants was that notified in par 10 of his written outline of submissions, namely, that the failure of the MRT to hold a hearing or to invite the applicants to attend a hearing involved a denial of natural justice.

13 There is no substance in this submission. Section 359C(1) of the Act provides that if a person is invited under s 359 to give additional information and does not give the information before the time for giving it has passed, the MRT may make a decision on the review without taking any further action to obtain the additional information. Section 360(1) obliges the MRT to invite an applicant to attend a hearing. Section 360(2) relevantly provides that s 360(1), does not apply if subs 359(C)(1) applies to the applicant. Section 360(3) provides that in such circumstances the applicant is not entitled to appear before the MRT.

14 The failure to respond to the MRT's letter of 14 August 2002, within the stipulated time, had the consequence that the MRT was entitled to proceed to determine the matter as it did, without inviting the applicants to a hearing and the applicants were not entitled to appear before the MRT. The fact that the MRT took into account the response lodged after the stipulated time, does not lead to any different conclusion: see Haque v Minister for Immigration & Multicultural Affairs [2001] FCA 1077 per Branson J.

15 The facts in Haque (supra) are materially indistinguishable from the facts of the present case. Branson J held that the failure to conduct a hearing in those circumstances did not involve any denial of natural justice. I agree with her Honour's decision and would follow it. There cannot be a natural justice entitlement to an opportunity to attend a hearing in the face of express statutory provisions which deny to the applicant any such entitlement. No submission was put on behalf of the applicants that the s 359 invitation was not given in the manner required by s 359(3).

16 Mr Burwood has submitted that I should infer that the applicants' migration agent's failure to request an extension of time within which to respond to the letter was due to some default on his part, and that serious consequences were being visited on the applicants when they are not at fault. Reference was made to the decision of Heerey J in Lawendy v General Practice Recognition Appeal Committee [2000] FCA 946, and in particular to the observations of Heerey J at par 20 that:

"Blamelessness of a claimant and the responsibility of his solicitor are very material."

17 That observation was made in the context of an application for an extension of time in which one can readily accept that blamelessness on the part of an applicant is a material factor. Even if it be assumed that the situation in which the applicants currently find themselves is the fault of their migration agent, it seems to me that this leads nowhere. What the applicants have to establish to entitle them to the relief which they seek, is jurisdictional error on the part of the Tribunal, and no such error has been demonstrated.

18 Indeed, in the course of his submissions Mr Burwood complained that what the MRT did was to follow the letter of the law rather than to act in some more generous fashion. It seems to me that if a true complaint against the MRT is that they have followed the letter of the law, then that negatives jurisdictional error.

19 Reliance was also placed on s 353(2)(b) of the Act. In my view, s 353(2)(b) is not in the present context, a source of any rights in the applicant. The general terms of s 353(2)(b) cannot override the specific provisions of s 359C and s 360(3).

20 For these reasons, the application is dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely .

Associate:

Dated: 25 February 2003

Counsel for the Applicant:	Mr D Burwood
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 February 2003
Date of Judgment:	14 February 2003