Mushke v Minister for Immigration and Border Protection

2.1 The application for a student visa and the delegate's decision 4 On 24 June 2013, the appellant applied for a student visa. The appellant applied for eight subclasses of visa: Subclass 570 (Independent ELICOS Sector), 571 (Schools Sector), 572 (Vocational Education and Training Sector), 573 (Higher Education Sector), 574 (Higher Education Sector), 547 (Masters and Doctorate Sector), 575 (Non-award Foundation/Other Sector), 576 (AusAID or Defence Sector), and 580 (Student Guardian). A delegate of the Minister refused that application on 2 August 2013 on the basis that the appellant did not satisfy cl 572.223(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations); nor did the appellant satisfy the criteria for the other visa subclasses. However, a Tribunal subsequently remitted the application to the delegate for reconsideration on the basis that the appellant met the criteria in cl 572.223(2)(b). 5 On 14 October 2014, a second delegate (the delegate) rejected the appellant's application for the visa on the basis that the delegate was not satisfied that the appellant was a genuine applicant for entry and stay in Australia and therefore found that he did not meet the criteria in cl 572.223(1)(a) of Schedule 2 of the Regulations. In addition, the delegate also stated that: Furthermore, according to PRISMS, you were reported for non-payment and subsequently your enrolment in the Advanced Diploma of Hospitality course was cancelled on 23 May 2014. There is no evidence that you are currently enrolled in any registered course. While this information has not been put to you for comment and does not form the basis of this decision, it confirms that you are not a genuine application for entry and stay as a student.

2.2 The application for review before the Tribunal 6 On 28 October 2014, the appellant applied to the Tribunal for review of the delegate's decision. On his application form, the appellant nominated a registered migration agent. 7 The applicant led evidence (without objection) on the appeal of an email from his migration agent dated 7 November 2014 advising that his services had been terminated. The email read: Better go with some one else, good for both us, I cant work for so cheap.. sorry and Good luck on your application My services have been terminated for you effective from today. 8 While the email raises a concern as to the appropriateness of the migration agent's conduct, there was no evidence as to the circumstances in which the email was generated or in support of its authenticity. Nonetheless, for the purposes of determining the appeal, I have assumed that the migration agent ceased to act for the appellant, including as his authorised recipient, on 7 November 2014 as advised in the email. 9 On 7 May 2015, the Tribunal wrote a letter to the appellant's migration agent inviting the appellant to appear before the Tribunal, and requesting that he provide further documentation to establish that he met the criteria for a visa, including a current certificate of enrolment in an applicable course and a document confirming enrolment or an offer of enrolment. 10 It is not in issue that neither the migration agent nor the appellant advised the Tribunal that the migration agent had ceased to act and was not, therefore, the appellant's authorised recipient. 11 On 22 June 2015, the appellant appeared before the Tribunal to give evidence and present arguments. The appellant provided a copy of the delegate's decision to the Tribunal. The appellant's (former) registered migration agent did not attend the hearing although it is clear from the Tribunal's reasons that it was unaware of the fact that the appellant's migration agent had ceased to act for him. 12 On the same day, the Tribunal affirmed the delegate's decision not to grant the appellant the visa. The Tribunal did so on a different basis from the delegate, namely, that there was no evidence before the Tribunal that the appellant was enrolled, or had a current offer of enrolment, in any applicable course of study and the criteria for the grant of the visa were therefore not met. However, the reasons demonstrate that the Tribunal squarely put the issue on which it decided the case to the appellant and gave him an opportunity to comment. Specifically, the Tribunal found that at [8]-[9] of its reasons: The applicant stated that he had been enrolled in hospitality courses and completed them, most recently an Advanced Diploma of Hospitality. The applicant stated that he had completed these prior to coming to the Tribunal. The applicant stated that he was going to be seeking a different visa, likely a 457 visa. The Tribunal noted that an enrolment, or confirmation of a future enrolment was required to be granted a student visa. The applicant stated he understood this. The applicant confirmed he did not have a current enrolment or confirmation of enrolment. The Tribunal noted that in the circumstances it would have no choice but to refuse the application. The applicant stated he understood this. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

2.3 The application for judicial review in the Federal Circuit Court

2.3.1 The grounds of the application 13 In his application for judicial review in the Federal Circuit Court, the appellant alleged that he was not happy with the decision given by the Tribunal and the delegate, and attached a statement in support entitled 'Genuine temporary entrant'. This statement purports to explain the reasons why the appellant was undertaking an Advanced Diploma of Hospitality, his reasons for choosing to study in Australia, and his future career intentions. In addition, in an affidavit filed in support of his application the appellant stated: 1. That I am providing correct evidence in support of my judicial review application. 2. That I believe that my grounds for judicial review are genuine.

2.3.2 The proceedings before the Federal Circuit Court 14 The appellant appeared unrepresented in the Court below and did not file any written submissions. 15 In the appeal proceedings in this Court, evidence was given by the appellant and the Minister as to the conduct of proceedings in the Court below relevant to the second ground of appeal, namely, whether the appellant was accorded procedural fairness in the Federal Circuit Court. In this regard, the Minister accepted that the appellant did not receive the Minister's written submissions until the morning of the hearing. The Minister relied upon the evidence of Leith Ann Helsdon, the then instructing solicitor for the Minister, who had attended the hearing of the application for judicial review in the Court below. Ms Helsdon spoke with the appellant before the hearing below commenced and asked whether he had received a copy of the Minister's written submissions filed on 4 April 2016. The appellant stated that he had not received a copy and Ms Helsdon then gave him a copy. Ms Helsdon perused her file and saw that the submissions had been sent to the appellant in a letter dated 4 April 2016 by express post to the address he had provided in connection with his application for review. (She was subsequently advised that this letter was returned to sender.) Ms Helsdon spoke with the appellant who advised that he had moved address but had not filed a notice of change of address for service with the Federal Court Registry. However, he had provided an updated address for service to the Minister's solicitor at the directions hearing on 25 November 2015. Ms Helsdon checked the directions hearing record and noted that a new address had been provided as the appellant said. 16 Before the hearing commenced, Ms Helsdon advised the associate to the primary judge that the appellant had not received a copy of the Minister's submissions and sought additional time for the appellant to consider them. The associate indicated that the previous matter before her Honour was taking some time, and that the appellant had further time in which to consider the written submissions. Ms Helsdon deposed that "[a]fter a short period, the Applicant indicated to me that he had considered the written submissions and he was ready to go into the court." 17 The appellant's evidence did not contradict Ms Helsdon's evidence save in certain limited respects. The appellant was not cross-examined on his evidence. First, he gave evidence that when he had "a court day" (which I understand to be a reference to the directions hearing) he remembered filling out a form which he signed. I accept that the appellant believed that he had done what was required to change his address. However, I also find that he did not in fact file a change of address for service, there being no evidence that any such notice was filed and this being consistent with Ms Helsdon's account. Secondly, the appellant gave evidence that he was provided with the court book at the same time as the written submissions. This is consistent with his evidence as to the change of address and I accept that evidence. Thirdly, he gave evidence that: I didn't ask for the extra time as well because I didn't know where I can ask for the extra time as well so that we can - I can take those written submissions to the lawyer or barrister to, you know, go through all of their submissions and what other evidence I have to provide to the court to, you know, satisfy it, but I did tell those - after the hearing, I went to the refugee legal to take some legal advice. I accept based on this evidence that the appellant did not know that he could have sought an adjournment to consider the written submissions (and court book) and get legal advice. 18 The appellant cross-examined Ms Helsdon on her evidence and asked her why his address had not been changed before the hearing. She explained that it was her firm's general practice when going through the orders at a directions hearing to ask an applicant whether she or he remains at the same address as provided on their application for judicial review and, if there has been a change, to advise that a notice of address for service needs to be filed with the Registry. However, Ms Helsdon did not attend the directions hearing in question and had no personal knowledge of what had occurred. Her evidence as to her firm's general practice does not therefore establish that that practice was in fact followed at the directions hearing on 25 November 2015. Ms Helsdon also said (and I accept) that the reason why the submissions were sent to the appellant's old address was that the records at her firm only get updated when a new notice of address for service is filed.

2.3.3 Dismissal of the application for review by the Federal Circuit Court 19 On 11 April 2016, the Federal Circuit Court dismissed the application for judicial review of the Tribunal's decision. 20 First, the primary judge held that the application itself, in complaining that the appellant was not happy with the Tribunal's decision and seeking a different result, did not raise any jurisdictional error but rather sought to engage the Court in an impermissible review of the merits of the visa application (at [2]). 21 Secondly, the appellant complained that he did not receive the notice from the Tribunal inviting him to appear before it to give evidence and make submissions, and that he became aware of the Tribunal hearing date only a few days earlier when he received an SMS reminder. The primary judge rejected that ground on the basis that there was no evidence that there was any change of representative prior to the hearing and in those circumstances the appellant is taken to receive correspondence if it is sent to his nominated representative (reasons below at [9]-[10]). I note that the email from the migration agent terminating the provision of his services quoted at [7] above was not before the Federal Circuit Court. 22 Thirdly, the appellant submitted that if he had been asked to provide documents he would have done so. However the primary judge accepted the Minister's submission that the appellant was on notice from the delegate's decision that the delegate was not satisfied with his enrolment status and further that nothing in the Tribunal's reasons indicates that the appellant sought further time within which to supply documents. Indeed, the primary judge pointed to paragraph [8] of the Tribunal's reasons as contradicting that claim (reasons below at [11]). 23 Fourthly, after referring to the matters in paragraph [8] of the Tribunal's reasons, the primary judge held that in circumstances where the appellant had confirmed that he had no current enrolment or confirmation of enrolment, it was inevitable that the Tribunal would affirm the delegate's decision to refuse his application for a student visa. 24 Finally, the primary judge accepted the Minister's written submission that the Tribunal did not breach the requirements of the Act in failing to put the PRISM record information to the appellant for comment in circumstances where the appellant had conceded that he lacked any current offer of enrolment or confirmation of enrolment. The case was therefore one which fell under an exception in s 359A(4)(b) to the requirement in s 359A(1) of the Act requiring that a visa applicant be given particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review.

3.1 Ground One 25 The appellant raised the same argument as was raised the Federal Circuit Court, namely that he did not receive the invitation to appear from the Tribunal until receiving an SMS reminder a few days earlier. In this regard, the appellant relied on s 360(1) of the Act which provided, subject to an exception not applicable here, that "[t]he Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review" (emphasis added). The understandable assumption underlying the appellant's submissions was that the invitation should therefore have been given to him. As a consequence of the failure to give him the invitation, the appellant submitted that he was not prepared for his hearing before the Tribunal and, in particular, did not have time to obtain a current enrolment or offer of enrolment. 26 First, however, the appellant's submissions do not demonstrate any error in the primary judge's finding at [11]. Mr Mushke had been on notice of the difficulty with respect to his enrolment status since the delegate's decision. Nor did the evidence suggest that Mr Mushke had sought any further time before the Tribunal to remedy that difficulty. There was therefore no reason why the Tribunal should have delayed making its decision in circumstances where, as the Tribunal explained and Mr Mushke accepted at the Tribunal hearing, the decision to refuse was inevitable. 27 Secondly and in any event, I agree with the Minister's submission that it was sufficient under s 379G of the Act for the Tribunal to give the invitation to appear before the Tribunal to the applicant's authorised recipient because, even assuming that his services had been terminated, that had not been communicated to the Tribunal. Section 379G provided at the relevant time that: (1) If: (a) a person (the applicant) applies for review of an MRT-reviewable decision; and (b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review; the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. … (2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document. … 28 In this regard, s 379G(3) expressly provided that, subject to an exception not presently relevant, "the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1)(b) at any time…". As such, while it would ordinarily be reasonable to expect a migration agent terminating her or his services to advise the client of the need to withdraw the notice authorising her or him to receive documents, only Mr Mushke personally could withdraw that notice. 29 The Full Court held in Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181(Lee) that s 379G imposed a duty on the Tribunal to communicate with a visa applicant's authorised recipient unless and until the Tribunal received notice from the visa applicant that her or his authorisation was withdrawn: at 191[38]-[39] (Besanko J; Moore and Buchanan JJ agreeing). In other words, while s 379G does not preclude service also of a notice upon visa applicant, the Tribunal's duty is to serve the notice on, and only on, the authorised recipient. As such, the Court held in Lee that no valid notice from the Tribunal inviting the applicant in that case to a hearing had been given because the applicant's authorised recipient had not been given the invitation, even though the applicant had been given the invitation. 30 It was not in issue that, prior to the email on 7 November 2014 terminating his services, the migration agent was the appellant's authorised recipient for the purposes of receiving documents from the Tribunal. However, as noted earlier there was no evidence of any communication from Mr Mushke to the Tribunal withdrawing his authorisation of the migration agent to receive documents in connection with the review. In those circumstances, irrespective of whether or not the migration agent acted appropriately, the Tribunal did no more than it was required to do under the Act in giving the notice to Mr Mushke's migration agent and s 379G provided that the notice was taken as a consequence to have been served on the appellant for the purposes of s 360(1) of the Act. 31 It follows that ground one of the notice of appeal must be dismissed.

3.2 Ground Two 32 The appellant's second ground alleges that he was not served with the Minister's written submissions before the hearing, and he did not have enough time to consider them. 33 The Minister submitted that, at the hearing before the Federal Circuit Court, the appellant did not seek more time within which to consider the Minister's submissions, nor did he seek an adjournment. In all the circumstances therefore, the Minister submits that the appellant has not established he was denied a reasonable opportunity to present his case in the Court below. 34 The appellant's evidence that he thought that he had done what was necessary to change his address for service is understandable in the case of an unrepresented litigant not familiar with court processes. However, under the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), it is not sufficient simply to advise a party of a change in address without filing a notice of change of address for service. Rather, r 6.02 of the FCC Rules provides that "[i]f a party's address for service changes for any reason during a proceeding, the party must file a notice of address for service and serve the notice on each other party within 7 days of the change". 35 Nonetheless the circumstances were such as to raise a question as to whether the appellant was denied procedural fairness if, as the appellant has said, he was not advised that in the circumstances he could apply for an adjournment. In this regard I note that courts have a duty to ensure that an unrepresented litigant is aware of the Court's practice and procedure so far as is reasonably practicable to ensure a fair trial, and that the failure to comply with that duty may result in the decision being set aside on the ground of a breach of procedural fairness: SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at 452-454 [37] (Robertson J (with whose reasons Allsop CJ and Mortimer J agreed)) (approving Hamod v New South Wales [2011] NSWCA 375 at [309]-[316]); AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [38]-[42] (the Court); BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 at [35]. 36 Ultimately, however, it is not necessary for me to decide whether on the facts of this case any such denial of procedural fairness occurred. As the Minister submitted, any failure to accord procedural fairness in the Federal Circuit Court is in effect "cured" by the opportunity in this Court to respond to the Minister's submissions. In this regard, the appellant has now had ample opportunity to consider the Minister's submissions below, as well as the Federal Circuit Court's reasons and the Minister's submissions on the appeal, and to seek legal advice on them. However, despite having that opportunity, the appellant has not established any jurisdictional error in the Tribunal's decision. In these circumstances, no practical unfairness has resulted from any breach of procedural fairness in the Federal Circuit Court and there would be no utility in remitting the matter to the Federal Circuit Court.

4. CONCLUSION 37 For the reasons given above, the appeal must be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.