Aneja v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 On 30 March 2011, Mr Vikram Aneja (Mr Aneja), applied to the Minister for Immigration and Citizenship, as the holder of that office was then known, for a student (temporary) TU visa under s 65 of the Migration Act 1958 (Cth) (the Act). On 19 July 2011, a delegate of the Minister decided to refuse that visa application. The following month, on 9 August 2011, Mr Aneja applied to the Migration Review Tribunal (Tribunal) for the review of the decision to refuse his visa application. 2 Having regard to the criteria in the Migration Regulations 1994 (Cth) for a student temporary class TU visa and also the role under the Act of the Tribunal, the issue before the Tribunal was materially and, as the Tribunal correctly apprehended, whether at the time of the decision by the Tribunal, Mr Aneja was enrolled in or subject to a current offer of enrolment in a course of study which met the requirements of the regulations. 3 Upon looking at Mr Aneja's application to the Tribunal, the Tribunal considered that the case was not one that it should decide in his favour on the basis of the material then before it. Because the Tribunal had reached that conclusion the Tribunal was obliged by s 360(1) of the Act to invite Mr Aneja to give evidence and present arguments relating to the issues arising in relation to the review of the decision to refuse him a student visa. 4 In turn, s 360A(1) of the Act obliged the Tribunal in respect of such an invitation to give Mr Aneja notice of the day on which, and the time and place at which, he was scheduled to appear. Such a notice had to be given in one or the other of two ways, which are specified in s 360A(2) of the Act. There are other requirements specified in s 360A(4) and s 360A(5) in respect of such a notice, but it is not necessary in the circumstances of this case to refer to them. 5 One of the methods specified in s 360A(2) is by one of the methods specified in s 379A of the Act. One of the methods specified in s 379A is dispatch by prepaid post - see s 379A(4). If this method is used, the document, which comprises in this instance the notice, must be dispatched within three working days in the place of dispatch of the date of the document. It must also, materially, be sent by prepaid post to the last address for service provided to the Tribunal by the recipient in connection with the review. 6 Section 379C(4) of the Act provides that, if the method specified in s 379A(4) is used, the person is taken to have received the document, materially, seven working days in the place of the address in Australia after the date of the document. The word "taken" is, by s 5(23) of the Act, and to "avoid doubt", to have the same force and effect as "is deemed." 7 On his application for review, Mr Aneja specified an address at Gatton in Queensland as his residential address. He also chose that same address as the address for all correspondence connected with his application to be sent to him by the Tribunal. 8 The Tribunal, by a letter of 10 August 2011 sent to that Gatton address, acknowledged the receipt of Mr Aneja's review application. There was no evidence before the Tribunal that this acknowledgment letter had ever been returned unclaimed. 9 By a letter, dated 24 April 2013, which the Tribunal found had been dispatched by prepaid registered post within three days of that date to the Gatton address, the Tribunal gave notice, at least purportedly, of a hearing to occur in Brisbane on 3 June 2013. That letter and its covering envelope were returned by Australia Post to the Tribunal at some stage prior to 3 June 2013. On its return to the Tribunal by Australia Post, the covering envelope was marked "Return to sender" and "Unknown". 10 Mr Aneja did not appear before the Tribunal on 3 June 2013. The Tribunal nonetheless proceeded to determine his review application. The Tribunal decided to affirm the decision of the Minister's delegate not to grant him a student temporary class TU visa. The Tribunal found that there was no evidence before it that Mr Aneja was currently enrolled in, or the subject of a current offer of enrolment, in any course of study. The Tribunal also found that Mr Aneja did not otherwise meet any of the criteria, either for that type of student visa or other types of student visa. 11 The Tribunal's reasons, at paragraph 9, disclose that the Tribunal expressly considered whether notice of the hearing had been given to Mr Aneja. The Tribunal expressly found that the letter of 24 April 2013, containing the notice of hearing, had been despatched within three working days of that date and by prepaid post. 12 The Tribunal did not expressly refer to the return of the letter of 24 April 2013 by Australia Post. It was though common ground that the Tribunal, in proceeding to decide Mr Aneja's review application, was aware of the return of the letter to the Tribunal by Australia Post. 13 Mr Aneja then challenged the Tribunal's decision in judicial review proceedings in the Federal Circuit Court. As specified in his judicial review application, his ground of challenge was that: The Tribunal decision was fundamentally influenced by not receiving evidence from the hearing. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act. [sic] 14 The Federal Circuit Court treated this ground of review as one which raised a question as to whether the Tribunal had failed to comply with a requirement of the Act in respect of the giving of notice prior to deciding the review application. Out of an abundance of caution, the Federal Circuit Court also considered whether, in the particular circumstances of the case, it was unreasonable for the Tribunal to have proceeded in Mr Aneja's absence. In so doing the Federal Circuit Court referred to Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618 (Li's case). 15 The Federal Circuit Court concluded that the Tribunal had complied with the requirements of the Act in relation to the giving of notice and that it was not unreasonable in the circumstances for the Tribunal to have proceeded to decide the case. 16 Mr Aneja now appeals to this Court against the judgment of the Federal Circuit Court. His ground of appeal is tersely stated but none the worse for that. It is: The honourable judge failed to consider that the Tribunal had denied the applicant procedural fairness, reaching conclusions without taking evidence from applicant. [sic] 17 As developed in Mr Aneja's succinct but very focused submissions, it became apparent that the bases of his appeal were that the Federal Circuit Court should have concluded that he had not been given notice of the hearing as required by the Act and that this was a denial of procedural fairness or unreasonable or both. The Minister in turn joined issue with each of these propositions. 18 It is helpful to commence consideration of the merits of the ground of appeal by recalling the terms of s 362B of the Act. 19 Putting for one moment to one side any question as to reasonableness, the Tribunal will only have been authorised by s 362B of the Act to proceed in the absence of Mr Aneja if, truly, notice of the hearing had been given to him in accordance with the requirements of the Act. A decision given by a tribunal in violation of a requirement of the Act is no decision at all: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. 20 The regime found in s 379A and s 379C of the Act and like regimes elsewhere found in the Act are not free from prior judicial consideration. 21 In Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550 at [69] (Murphy's case), Spender J commented: In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only "until the contrary is proved". That comment has twice been approved by Full Courts of the Federal Court: see Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [14] (Xie), and Swee Yen Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 at [17] to [19] (Tay). 22 Spender J's comment in Murphy's case and the subsequent approval of it by the Full Court were in respect of a provision which is not materially different from s 379C(4) of the Act. In Tay, the Full Court upheld an observation earlier made in Xie that there was nothing to suggest that the equivalent of s 379C(4) merely created a rebuttable presumption. In my view, I am obliged by Xie and Tay to hold that Mr Aneja was given notice of the hearing in accordance with the requirements of the Act. I am not at liberty to depart from the deliberate endorsement, twice by Full Courts, of Spender J's comment in Murphy's case. 23 There remains, though, a question as to whether proceeding in the absence of Mr Aneja was nonetheless unreasonable in the circumstances. Section 362B of the Act permits but does not oblige the Tribunal to proceed in the absence of a person who has been given notice of a hearing but does not attend. 24 It must now be accepted that in singular circumstances it can be unreasonable for a Tribunal to proceed in the absence of an applicant. So much would seem necessarily to follow from Li's case, which concerned the analogous situation of what was found to be an unreasonable refusal of an adjournment by a Tribunal. 25 In this case, the Tribunal knew that a notice which complied with the requirements of the Act had been sent, also in accordance with those requirements, to the address given to the Tribunal by Mr Aneja for the service of notices. The Tribunal also had information that, although the letter of 24 April had come back "return to sender", Mr Aneja, the addressee, was apparently "unknown" at that address. The Tribunal was also entitled by virtue of its acknowledgement letter, never having come back to it to conclude that Mr Aneja had been made aware, expressly, of the need to keep current his address for communications from the Tribunal. The Tribunal was entitled to make inquiries on its own initiative if it chose. It was not obliged by the Act to make some roving inquiry to the end of trying to locate Mr Aneja or to ascertain an address other than that which he had given where communications might reach him. The stark information "unknown" given by Australia Post did not in any way create a situation where the Tribunal might readily and with minimal expense have ascertained Mr Aneja's whereabouts or an alternative address. In the circumstances, it was not, in my view, unreasonable, in the sense discussed in Li's case, for the Tribunal to decide to proceed to determine the review application. 26 I mean no disrespect at all to Mr Aneja in observing that he was truly the author of his own misfortune in not keeping the Tribunal up to date with a current address for communications. I am quite sure, having heard his submissions today, that he deeply regrets that. Nonetheless, in the events which transpired, there was no error on the part of the Federal Circuit Court in concluding that it was not unreasonable for the Tribunal to have proceeded to determine the application in his absence. It follows that the appeal must be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.