Burnett v Minister for Immigration & Anor [2010] FMCA 61 (17 February 2010)

Last Updated: 26 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURNETT v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 61

MIGRATION – Administrative Review – Migration Review Tribunal – Review of Migration Review Tribunals decision – Skilled Australian sponsorship visa – jurisdictional error – procedural fairness – failure to consider relevant considerations.

Migration Act 1958 (Cth)

NBMB v Minister for Immigration and Citizenship [2008] FCA 149; (2008) 100 ALD 118 SJVYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZJQP v Minister for Immigration and Citizenship [2007] FCA 1613

Applicant:

NILDA BURNETT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 133 of 2009

Judgment of:

Burnett FM

Hearing date:

10 June 2009

Date of Last Submission:

10 June 2009

Delivered at:

Brisbane

Delivered on:

17 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr Nguyen

Solicitors for the Applicant:

Counsel for the Respondent:

Ms Wheatley

Solicitors for the Respondent:

Clayton Utz

ORDERS

(1) That the time for bringing the application be enlarged.
(2) That the application is dismissed.
(3) That, subject to any application by any party made within fourteen (14) days of the date of this order, the applicant pay the respondent’s costs fixed in the sum of $5,200.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 133 of 2009

NILDA BURNETT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This application for review of the Migration Review Tribunal’s decision dated 11 April 2008 is made by the sponsor of Lucita Empleo Malou, an applicant for a Skilled Australian Sponsorship (Migration) Class BQ Visa. The review applicant had sought review of the Department’s decision not to grant a Skilled Australian Sponsorship (Migration) Class BQ Visa to the visa applicant.

Background facts

2. The review applicant, Nilda Burnett was the sponsor of the visa applicants, Lucita Empleo, Rogue Empleo, John Bernard Empleo and Francis Lloyd Empleo.
3. At the time the visa application was lodged the class of visa sought included in its primary criterion to be met at the time of decision, clause 139.226, a requirement that the visa applicant have “vocational English” (a defined term) or have English proficiency of at least the standard required as specified in Schedule 6.
4. At the time the delegate made his decision to refuse the visa application the requirements of clause 139.226 were not met. The delegate did make requests of the visa applicant for evidence of the results of IELTS test as evidence of having either vocational or functional English language ability as defined in clause 139.226. The review applicant’s response was to have her agent write advising the visa applicant had sat for an IELTS test on 16 June 2007 but this did not comply with the requirements under the regulations and she requested the application be held in abeyance pending the submission of a suitable IELTS test result.
5. In the meantime on 7 January 2008 the review applicant lodged the application seeking review of the delegate’s decision. On 17 March 2008 the review applicant (by her agent) wrote to the Tribunal advising that the visa applicant had decided to apply for a Student Visa to study English and improve her language skills and that the evidence of a suitable IELTS result had been held in abeyance pending the completion of the visa applicant’s English study.
6. On 20 March 2008 the Tribunal wrote to the visa applicant inviting her to attend a Tribunal hearing scheduled for 7 April 2008. By letter received by the Tribunal on 30 March 2008 the review applicant advised that she would be unable to attend the scheduled hearing. She requested a six month adjournment of the hearing. Further material was forwarded by the review applicant’s agent to the Tribunal which received it on 3 April 2008. It advised the Tribunal that the Student visa application was to be lodged on 4 April 2008 and enclosed a copy of the June 2007 IELTS tests undertaken by the visa applicant.
7. Notwithstanding those matters the Tribunal member decided to proceed to hear the application.
8. The letter dated 30 March 2008 advising that the review applicant would be unable to attend the hearing was followed by an oral communication initiated by the Tribunal on 31 March 2008 when an officer from the Tribunal telephoned the review applicant and advised “the member has seen her response (to the hearing invitation) advising that she cannot attend the hearing” and in particular that the member had seen her request to “delay the hearing” but had refused that request. The review applicant said that she would seek advice from her representative and advise whether she would attend the hearing. Matters had not changed when an officer from the Tribunal contacted the review applicant on 2 April. The review applicant’s letter of 3 April followed. It advised that the visa applicant was to apply for a student visa on 4 April (the following day) and also enclosed her latest IELTS results and continued:
   • “I ask you to please consider this before making a decision. If you have any other questions please do not hesitate to contact me. Thank you for your time and consideration. I hope to hear from you soon.”
9. It was apparent from the terms of the letter of 3 April that the review applicant was addressing the substantive application and not the earlier application pursued for an adjournment.
10. Significantly the letter of 3 April did not appear to cavil with the Tribunal’s advice that the hearing would not be adjourned and would proceed as scheduled. In fact its terms were reconciled with the fact that the hearing would proceed in the review applicant’s absence. So much was consistent with the prayer, “I ask you to please consider this before making a decision”.

The hearing

11. On 7 April the hearing proceeded as scheduled. The review applicant did not appear and the Tribunal proceeded to determine the application on the material before it, including material exchanged and relevant to the question of the review applicant’s request for an adjournment.
12. In the result the application for review was dismissed because it was plain upon the material that the visa applicant failed to satisfy the requirements of clause 139.226 of Schedule 2 of the Regulations and therefore is not eligible for the grant of a Sub Class 139 Visa. As the primary visa applicant’s application failed, so too did the dependent visa applications of her husband and children.

Extension of time

13. The application for judicial review was filed out of time. The review applicant applied for an extension of time within which to bring her application pursuant to section 477 Migration Act. The respondents do not oppose any order for an extension of time and I so order.

Grounds for review

14. Two grounds for review were advanced on behalf of the review applicant:
    1. The Tribunal fell into jurisdictional error in that it denied procedural fairness to the applicant as well as acting in breach of its obligations under the law (in breach of section 359A of the Migration Act) in that the Tribunal failed to adequately and properly inform the applicant whether the extension to the review hearing would be granted without exhausting all possible contacts.
    2. The Migration Review Tribunal fell into jurisdictional error in that it failed to take a relevant consideration into account in the exercise of its power in that the review applicant had informed the Tribunal of the request to extend the review hearing and provided a reasonable excuse for the request but that the Tribunal refused the request without a valid cause.

Ground 1 – Jurisdictional error in that the Tribunal denied procedural fairness to the applicant and acted in breach of section 359A Migration Act 1958 (Cth).

15. The review applicant contends the decision is vitiated by jurisdictional error on 2 bases:
    1. First a failure by the Tribunal to take into account a relevant consideration; and
    2. The decision is unfair and unjust.

Failure to take into account a relevant consideration

16. The review applicant contends that the letter of 30 March 2008 informed the Tribunal she was unable to attend the Tribunal because of work commitments. It was accompanied by a request for an adjournment until the visa applicant could produce a satisfactory IELTS result. It was contended the Tribunal decided to refuse the review applicant’s request for an extension of time and failed to notify the review applicant of that decision. It subsequently proceeded to determine the application in the review applicant’s absence and furthermore, by inference, the adjournment would have been worthwhile because in “December 2009” (sic) the visa applicant obtained satisfactory IELTS results.
17. The review applicant particularly relied upon the invitation requirements provided for under section 359A of the Migration Act. That section relevantly provides:
    • “(1) Subject to subsections (2) and (3), the Tribunal must:
      • (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
      • (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
      • (c) invite the applicant to comment on or respond to it.
    • (2) The information and invitation must be given to the applicant:
      • (a) except where paragraph (b) applies – by one of the methods specified in section 379A.”
18. The essence of the review applicant’s argument was that the Tribunal erred in failing to give notice of its decision refusing the adjournment application. It was submitted for her that the Tribunal failed to provide the review applicant with a written decision in respect of her application for an adjournment. In doing so it failed to address the requirements of section 359A and in turn the notice requirements of section 379A Migration Act.
19. At the outset it is correct to state that the Tribunal did not provide any written decision in response to the adjournment application. It follows that no notice of any such written decision was purportedly given in accordance with section 379A.
20. However the respondents submit the application for an adjournment is not the kind of application to which an invitation would be expected to arise pursuant to section 359A and thus, in turn, enliven a consideration of the form of notice due pursuant to section 379A.
21. The review applicant relied upon the decision of the Full Court in SZJQP v Minister for Immigration and Citizenship [2007] FCA 1613; (2007) 98 ALD 575 as being a broad support for her contentions.
22. However the facts in SZJQP are not on all fours with those in this case and it follows the remarks of Gilmore J whilst generally helpful do not necessarily serve to conclude this application in the review applicant’s favour.
23. Significantly in SZJQP the applicant had been given proper notice of the hearing date (as here) and failed to make submissions or appear (as here) but subsequent to the hearing and before the Tribunal had made its decision the Tribunal was provided with a medical certificate certifying to the applicant’s inability to attend the hearing.[1]
24. At the hearing itself the Full Court in SZJQP found the Tribunal had misdirected itself in taking account of an irrelevant consideration, that is, the Tribunal “could make a decision on his case with no further notice if he did not reply”. The Court held[2] this observation was “erroneous both as to the content of the notice and indeed the terms of the statutory discretion under [section 362B]”.
25. In this case the Tribunal made no such observation. Unlike SZJQP no basis arises in this case for any assertion that the Tribunal relied upon an irrelevant consideration.
26. Perhaps most significantly in SZJQP the Full Court considered the effect of the medical certificate. It considered that it was to the same effect as an appearance by the appellant before the Tribunal. Thereby his appearance demonstrating his poor health on the day enlivened the right to an adjournment.[3]
27. In this case the review applicant positively indicated that the Tribunal sought to ameliorate her refusing to appear because of her employment in Bowen by offering the provision of a video link. This invitation was refused.
28. Finally the Full Court’s analysis did not appear to provide any direct focus upon the timing of the decision. However, in that case the Tribunal’s decision was made a number of days after the hearing and during the intervening period the Tribunal received the medical information concerning the appellant. Here all relevant events preceded the hearing date. At best the review applicant had no formal notice of the Tribunal’s decision not to grant the adjournment. She appreciated this matter as was apparent from the words of her letter of 3 April requesting the Tribunal “consider (her letter addressing the merits of the application) before making a decision”. The letter was sent after the calls to her requesting confirmation of her appearance.
29. The Tribunal proceeded to hear, consider and determine the matter on the one day, that is, on the day the matter was set down for hearing being 7 April 2008. This was in contrast to the chronology in SZJQP.
30. It follows the Full Court’s decision in SZJQP does not bind me in the approach I ought take in the circumstances of this case.
31. However the Full Court did affirm the well settled principle that “...the Tribunal is not required, where there is compliance with [section 360] and [section 360A] of the Act, to make further enquiries, if the applicant fails to attend the review hearing”.[4] Nor is it required to give reasons for its exercise of discretion under [section 362B].[5] At [33] His Honour proceeded:
    • “[33]...the authorities are clear that the reason for nonattendance at a hearing does not matter. If there is compliance with [section 360] and [section 360A] the Tribunal may proceed under [section 362B] to consider and decide the material without conducting any further enquiries. I do not take his Honour to be saying that where the Tribunal is in fact appraised of the reason for nonattendance at a scheduled hearing by an applicant for review that due consideration should not be given to this.
    • [34] None the less, where, as in this case, the discretion is unconfined, the Tribunal may have regard to a range of factors in the exercise of its discretion. That range too is unconfined except in so far as the subject matter, scope and purpose of the statute by implication limit those factors to which the decision maker may legitimately have regard. ...”
32. As was submitted for the respondent the effect of the statutory scheme is to provide that where the applicant fails to appear before the Tribunal at the time and place nominated and where the applicant has been correctly invited, the Tribunal may proceed to make a decision on the review without further action.
33. It follows, as the respondent submitted, this review application is not one which properly relates to section 359A and 379A. The requirements relevant to those provisions had been addressed. As matters stood, notice of the hearing had been given and an invitation to appear had been extended. The review applicant’s later approaches did not serve to undo that which had already been done. The Tribunal was within its rights to do nothing in response to the review applicant’s request and by doing nothing did not disturb the rights and obligations that followed from its extension of the invitation pursuant to section 359A. This is particularly so given the Tribunal’s powers in respect of these matters provided for in section 363(1)(b) and the clear inferences to be drawn that the applicant would simply not be appearing on the due date but merely requesting the Tribunal consider her submissions.
34. In any event it is not contended by the review applicant that the oral decision communicated to her was other than that the application for an adjournment had been denied. Her complaint goes only to form and if she was entitled to a written decision preceding the hearing of the review application; then, at best, the position was that in the absence of such written decision there was no decision and the application ought to have proceeded in any event.
35. For the reasons addressed above I do not think the decision in SZJQP assists the review applicant generally or more specifically on this point. I do not consider the Tribunal failed to notify the review applicant of its decision to refuse the adjournment. Prior to the date of hearing there was no formal decision notice although the review applicant had oral notice that no adjournment would be granted. I accept the respondent’s submissions that the terms of Division 6 Part 5 dealing with decisions applied to “decisions on a review” the decision on an adjournment application such as that made by the review applicant was not a decision on review but one as to an ancillary procedural matter pursuant to section 363. As the respondent submitted, section 359A has a more limited scope and the matters complained of by the review applicant did not refer back to the primary application itself; SJVYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at 615 at paragraph [16].
36. In my view there was no failure by the Tribunal to take into account any relevant considerations.

Unjust and Unfair

37. The review applicant submits that the Tribunal’s failure to properly inform her of its refusal of her application for an adjournment has caused her and the visa applicant great hardship. This is particularly because they were not given adequate opportunity to attend the hearing to explain and justify their situation.
38. However as the respondent submitted the Tribunal was within its rights to exercise its discretionary powers under section 363(1)(b) in refusing an adjournment. As Flick J said concerning that power in NBMB v Minister for Immigration and Citizenship[6]:
    • “The Tribunal unquestionably has a discretionary power to adjourn proceedings; section 427(1)(b) [363(1)(b)] of the Migration Act. Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision makers. Relevant to the exercise of that discretion by the Tribunal in the present context is the legislative direction that it must conduct its review in a manner which “is fair, just, economical, informal and quick”. Procedural decisions of Tribunals such as the [Migration Review Tribunal] should not be lightly disturbed.”
39. His Honour went on to say at [22]:
    • “The opportunity was extended to the appellants to “give evidence and present arguments relating to the issues arising in relation to the decision under review” within the meaning of section [360(1)]. That section confers upon an applicant an opportunity to “appear before the Tribunal to give evidence and present arguments”; the section does not confer upon an applicant a unilateral right to secure an adjournment of proceedings so that some particular evidence or witness is in fact available. So long as an applicant has been given a meaningful opportunity to “give evidence and present arguments”, even if it is not the particular evidence which an applicant may prefer, there has been no breach of [section 360].”
40. As the Tribunal decision notes the Tribunal was aware of the reason for which the adjournment was sought.[7] In any event the material demonstrates the review applicant was afforded a reasonable opportunity to attend and explain and justify her situation. That would have been by video link at the worst. The invitation was refused by the review applicant. In the circumstances the Tribunal’s exercise of its discretion against the review applicant could not be said to have been unjust or unfair.

Inadequate and Improper notification of Tribunal decision

41. In his written submissions the review applicant contended that she had never received the Tribunal’s decision. It was submitted there that the Tribunal failed to adequately and properly inform the review applicant of its decision regarding her request for postponement of the review hearing and did not exhaust all the possible notification methods listed under section 441A of the Act. For reasons I have earlier addressed I do not accept this submission. The decision complained of was the Tribunal’s decision not to grant an adjournment. The power to adjourn was vested in the Tribunal by section 363(1)(b). However an adjournment decision was not a “decision on a review” and accordingly not subject to Division 6 Part 5 of the Act.
42. The Tribunal considered all material placed before it upon the review applicant’s application for an adjournment.

Conclusion

43. The review applicant alleges jurisdictional error founded principally upon the Tribunal’s process in addressing her application for an adjournment. In particular she complains she was not given notice of the decision concerning the adjournment in a manner required by the Migration Act. In addition she complains the decision is unjust and was based upon a failure to take account of a relevant consideration.
44. The procedure adopted by the Tribunal was lawful. The Tribunal took account of all relevant matters and its decision was open to it on the material before it. It was not unjust or unfair.

Orders

45. The application is dismissed.
46. Subject to any application by any party made within fourteen (14) days of the date of this order, I order that the applicant pay the respondent’s costs fixed in the sum of $5,200.00.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: B Schmidt

Date: 16 February 2010

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[1] At 582 line 45.
[2] Page 584 at [41]
[3] Page 587 at [54]
[4] Page 581 at [32]
[5] Page 582
[6] [2008] FCA 149; (2008) 100 ALD 118 at [14]
[7] Decision page 3 of 4 paragraph 14