Ako17 v Minister for Immigration
[2018] FCCA 2022
•25 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKO17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2022 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in dismissing the applicant’s application under s.426A(1A)(b) of the Migration Act 1958 (Cth) – whether applicants were correctly notified of the Administrative Appeals Tribunal hearing – whether applicants were correctly notified of the Administrative Appeals Tribunal’s non-appearance decision – whether Administrative Appeals Tribunal’s decision to reinstate was affected by legal unreasonableness – jurisdictional error found – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.31, 36, 65, 411, 422B, 424A, 424AA, 425, 425A, 426A, 426B, 430, 441A, 441C, 474, 476 Migration Regulations 1994 (Cth), regs.2.01, 4.35D, sch.1. Treaties: Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967). |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 |
| First Applicant: | AKO17 |
| Second Applicant: | AKP17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3392 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 25 July 2018 |
| Date of Last Submission: | 25 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2018 |
REPRESENTATION
| The Applicant appeared in person with the assistance of an interpreter. | ||
| Solicitors for the Respondents: | Mr Julian Pinder (Minter Ellison) | |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3392 of 2016
| AKO17 |
First Applicant
AKP17
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
(As Corrected)
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 8 November 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 9 April 2015 refusing the applicants Protection (Class XA) visas (“Protection Visa”). The first named applicant (“the Applicant”) is the primary visa applicant and the second named applicant is her husband.
Legislative Framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) 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.
425 Tribunal must invite Applicant to appear
(1) The 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.”
Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Section 426A of the Act is as follows:
“Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so--reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
(b) confirm the decision to dismiss the application, by written statement under section 430.
Note 1: Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E) If the applicant fails to apply for reinstatement within the 14 - day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.”
Section 426B is as follows:
“Failure to appear--Tribunal's decisions, written statements and notifying the applicant
Decisions to which this section applies
(1) This section applies in relation to the following decisions (each of which is a non-appearance decision ):
(a) a decision to dismiss an application under paragraph 426A(1A)(b);
(b) a decision to reinstate an application under paragraph 426A(1C)(a) and to give directions (if any) under that paragraph.
Note: For similar provisions applying to a decision to confirm the dismissal of an application under section 426A, see sections 430 and 430A.
Written statement of decision
(2) If the Tribunal makes a non-appearance decision, the Tribunal must make a written statement that:
(a) sets out the decision; and
(b) sets out the reasons for the decision; and
(c) in the case of a decision to reinstate an application:
(i) sets out the findings on any material questions of fact; and
(ii) refers to the evidence or any other material on which the findings of fact were based; and
(d) records the day and time the statement is made.
(3) A non-appearance decision is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(4) The Tribunal has no power to vary or revoke a non-appearance decision after the day and time the written statement is made.
Note: However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 426A(1D)).
Notice to applicant
(5) The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(6) In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
[…]”
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The proceeding before this Court
The Applicant was unrepresented before the Court, although had the assistance of an interpreter.
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
The Applicant confirmed that she had not filed any further documents other than her initiating application and supporting affidavit in support of her application and that she continued to rely on the grounds of her application, which are as follows:
“Jurisdictional error has been made.
1. The Tribunal does not treat my case fairly and my claims are ignored.
2. Tribunal does not consider discrimination ethnic Chinese face in Malaysia.
3. The Tribunal does not consider I would be harmed if I return to Malaysia.
4. There exists procedural error to dismiss my application.”
Each of the grounds was interpreted for the Applicant and she was invited to say whatever she wished in support of those grounds. The Applicant declined to make any comment in respect of any of the grounds of her application.
The factual background and the Tribunal’s decision are accurately summarised in the submissions of the first respondent as follows:
“B FACTUAL BACKGROUND
4. On 17 October 2014 the applicants lodged an application for Protection (Class XA) visas (protection visas) (CB1–37).
5. On 9 April 2015 a delegate of the first respondent (the delegate) refused to grant the applicants protection visas (CB57–82; esp. CB69–82).
6. On 29 April 2015 the applicants sought review of the delegate's decision before the Tribunal (CB93–94). In the application form, under the heading 'Correspondence details', the applicants provided an email address: [email protected] (the email address) (CB94).
7. On 21 December 2015 the applicants lodged a Change of Contact Details—MR Division form with the Tribunal form with the Tribunal (CB104–105). In that form the applicants provided new contact details. However, they provided the same email address as in their application form—being the email address (CB104).
8. On 5 February 2016 the applicant lodged two Form 929—Change of address and/or passport details forms (the Form 929s) by email with the first respondent's department (the department) (CB83–87). In those Form 929s (each in respect of one of the two applicants), in answer to Question 9, the applicants agreed to the department communicating with them by fax, email or other electronic means, and provided an email address—being the email address (CB84, CB86).
9. On 16 February 2016 the applicants lodged further documents with the department by email (CB88–92), including two further copies of the Form 929s (cf. Court Book index at pp 2–3 at item 8).
10. On 16 September 2016 the Tribunal invited the applicants to attend a hearing on 14 October 2016 (CB109–118). That invitation was sent by email to the email address (CB109).
11. The applicants did not attend the hearing on 14 October 2016 (CB119).
12. On 17 October 2016, the Tribunal dismissed the application under paragraph 426A(1A)(b) of the Act as the applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing (the non appearance decision) (CB120).
13. On 18 October 2016, the Tribunal sent the applicants a copy of the non appearance decision by email to the email address (CB121–124). The cover letter enclosing the non appearance decision stated that the applicants may apply to the Tribunal in writing for reinstatement of the application by 1 November 2016 (CB122).
14. On 30 October 2016 the applicants applied for reinstatement of the application by setting out reasons for non-attendance in an email sent from the email address (the reinstatement application) (CB125). The applicants' explanation was that the first applicant was sick on the morning of the hearing and her husband took her to the doctor. She did not have time to call the Tribunal, because the hearing was listed for 9.30am.
15. On 31 October 2016 a case officer of the Tribunal called the first applicant (through an interpreter) and requested that she provide a medical certificate that demonstrated that she was unable to attend the hearing, and that the explanation for non attendance in the reinstatement application, without adequate evidence, was insufficient (CB126).
16. On 8 November 2016 the Tribunal confirmed the decision to dismiss the application under subsection 426A(1C) of the Act (the confirmation decision) (CB131–132).
17. On 9 November 2016 the Tribunal sent a copy of the confirmation decision by email to the email address (CB127–132).
C TRIBUNAL DECISION
18. The Tribunal affirmed the decision to dismiss the application because the applicant failed to provide a reasonable explanation for her non-attendance at the Tribunal hearing. The Tribunal found that the applicant's explanation was not reasonable for the following reasons (CB132 at [6]):
(a) the applicant would have obtained a medical certificate if she were too sick to attend;
(b) the applicants should have contacted the Tribunal on the day of the hearing or in the days following the hearing to provide an explanation; and
(c) in absence of medical evidence and any contemporaneous contact, the Tribunal did not accept that the applicant was sick or attended the doctor as claimed.
19. As such the Tribunal was not satisfied that the applicants had provided a reasonable explanation for their non appearance, and the Tribunal did not consider it appropriate to reinstate the application (CB132 at [6]).”
Grounds 1, 2 and 3 of the application misunderstand the effect of the Tribunal’s decision. The Applicant failed to attend the scheduled hearing before the Tribunal and, in the circumstances, the Tribunal determined to dismiss the application before it under s.426A(1A)(b) of the Act.
In dismissing the application under s.426A(1A)(b) of the Act for non‑appearance, the Tribunal was not required to review the application on the merits.
Section 426A(1A)(b) of the Act is in the following terms:
“Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so--reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
(b) confirm the decision to dismiss the application, by written statement under section 430.
Note 1: Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E) If the applicant fails to apply for reinstatement within the 14 - day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.”
A written statement under s.426B of the Act was sent to the Applicant on 18 October 2016. That written statement informed the Applicant that she could apply for reinstatement of the application by 1 November 2016 and that in her reinstatement application, she should set out why she failed to appear at the hearing and to provide any other information she wished the Tribunal to take into consideration when deciding whether her reinstatement application should be granted.
Ground 4 of the application asserts that there was a procedural error in dismissing her application. That assertion is not supported by particulars, evidence, oral or written submissions.
In relation to the notification to the applicants of the hearing and whether they were correctly notified of the non-appearance decision, I accept, in their entirety, the submissions of the first respondent as follows:
“Were the applicants correctly notified of the hearing?
25. The first respondent submits that the applicants were correctly notified of the Tribunal hearing, in accordance with the requirements of section 425A of the Act.
26. That is because, the hearing invitation letter:
(a) gave the applicants notice of the time, date and place on which they were scheduled to appear (subsection 425A(1)) (CB110); and
(b) was sent by a method specified in section 441A of the Act—by email to the last email address provided to the Tribunal, which was the email address (paragraph 441A(5)(b)) (CB109; see also CB110).
27. To the extent that they applicants may allege that the Tribunal should have posted the hearing invitation rather than sending it by email, the first respondent submits that it is beyond doubt that the Tribunal was entitled to send the hearing invitation by email and not by post, given that the applicants had provided an email address for the purposes of receiving correspondence: Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424; [2009] FCA 1284 at [34] per Jagot J; Haque v Minister for Immigration and Citizenship (2010) 114 ALD 547; [2010] FCA 346 at [64] per Gilmour J; Minister for Immigration and Border Protection v Kim (2014); 220 FCR 494; [2014] FCA 390 at [42] per Buchanan J; Radzi v Minister for Immigration and Border Protection (2014) 143 ALD 124; [2014] FCA 626 at [35] per Rangiah J; Pathania v Minister for Immigration and Border Protection (2015) 240 FCR 254; [2015] FCA 1262 at [18] per Gilmour J; Rahman v Minister for Immigration and Border Protection [2016] FCA 662 at [21] per Robertson J.
28. With respect to the other requirements of section 425A:
(a) the Tribunal provided more than prescribed period of notice, the prescribed period being 14 days from receipt of the invitation (subsection 425A(3); cf. subsection 441C(5) and subregulation 4.35D(3) of the Migration Regulations 1994 (Cth) (the Regulations)) (CB110); and
(b) the hearing invitation letter and the Form MR18—Information about hearings form that accompanied it, included a statement about the effect of subsection 426A (subsection 425A(4)) (CB110–115).
Were the applicants correctly notified of the non appearance decision?
29. The first respondent submits that the applicants were correctly notified of the non appearance decision, in accordance with the requirements of section 426B of the Act.
30. That is because:
(a) the non appearance decision set out the decision, the reasons for the decision, and the day and time the statement was made (paragraphs 426B(2)(a), (b) and (d)) (CB120);
(b) the Tribunal gave the applicant a copy of the written statement within 14 days of the day on which the decision was made (paragraph 426B(5)(a)) (cf. CB120 and CB121–124);1
(c) the written statement was sent by a method specified in section 441A of the Act—by email to the last email address provided to the Tribunal, which was the email address (paragraph 441A(5)(b)) (CB121).
(d) the written statement was accompanied by a booklet describing the effect of subsections 426A(1B) to (1F) (subsection 426B(6)) (CB123–124).”
Section 426A(1B) of the Act states that if the Tribunal dismisses an application for non-appearance, the applicant may, within 14 days after receiving notice of the decision under s.426B, apply to the Tribunal for reinstatement of the application.
Section 426A(1C) of the Act provides that if an applicant applies for reinstatement, the Tribunal must, if it considers it appropriate to do so, reinstate the application and give proper directions by written statement under s.426B or confirm the decision to dismiss the application by written statement under s.430 of the Act.
The Tribunal’s discretion whether to reinstate the application is conditioned by the requirement of legal reasonableness. I refer to the authorities referred to by the first respondent in their the written submissions, as follows:
“32. The Act does not provide any further guidance on what the Tribunal should take into account in considering whether it is appropriate to reinstate an application. However, the first respondent accepts that the Tribunal's discretion whether to reinstate the application is conditioned by the requirement of legal reasonableness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ, and [88] per Gageler J. See also: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Singh); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 (Stretton); Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28.
33. Each case needs to be considered on its own facts in the context of the broader principles dealing with legal unreasonableness: Singh at [42] per Allsop CJ, Robertson and Mortimer JJ; Stretton at [10] per Allsop CJ, [61] per Griffiths J; Minister for Immigration and Border Protection v SZVFW (2017) 248 FCR 1; [2017] FCAFC 33 at [38] per Griffiths, Kerr and Farrell JJ.”
The first respondent made the following submissions in support of the contention that the Tribunal exercised its discretion reasonably:
a)The applicants failed to appear at the scheduled hearing without any prior warning.
b)The applicants did not contact the Tribunal on the day of the hearing at any time to explain their failure to appear.
c)The Tribunal made its decision on 17 October 2016, deciding to dismiss the application without further consideration of the application or the information before the Tribunal.
d)A copy of that decision was sent to the applicants by email on 18 October 2016.
e)The accompanying notification letter dated 18 October 2016 informed the applicants that they should apply for reinstatement by 1 November 2016 and to provide any further information they wished the Tribunal to consider.
f)It was not until 30 October 2016 that the Applicant emailed the first respondent as follows:
“Dear Sirs, thank you for your email. I was sick in the morning of 14 October, 2016. My husband took me to see a doctor. The time for hearing was 9:30 am. I did not have time to call you. I'm a serious applicant. I attended interview in immigration office. I plead you to give me a chance for hearing. Thank you. Regards [applicant’s name]”
g)The following day an officer from the Tribunal had a telephone conversation with the Applicant, in which the Applicant was told to provide a medical certificate in support of her assertion that she was at a doctor’s appointment on the morning of the hearing.
h)The Applicant provided no further documents or information or material to the Tribunal in support of her reinstatement application by 9 November 2016, on which date the Tribunal wrote to the Applicant informing her that her application had been dismissed.
i)The letter from the Tribunal informing the applicant that her application had been dismissed noted that on 30 October 2016 the Tribunal received an application for reinstatement for review, that the application for reinstatement had been considered, and that the decision to dismiss her application for review was confirmed.
j)The Tribunal, in its decision record, noted that the Applicant had stated she was sick on the morning of the hearing on 14 October 2016, that she provided an email to the Tribunal on 30 October 2016 to that effect and that her husband had taken her to see a doctor and that she did not have time to call the Tribunal because the hearing was at 9:30am. The Tribunal then stated that:
“At the Tribunal’s request an officer of the Tribunal contacted the applicant on 31 October 2016 and requested her to provide evidence by way of a medical certificate to support her explanation for not attending the hearing. The officer asked that the medical certificate provide sufficient detail to explain why she was unable to participate at the hearing that day. The applicant was told that, of itself, the information provided in the email was not sufficient for her case to be reinstated and that evidence to support her visit to the doctor was required. To date no further evidence or information has been provided to the Tribunal.”
k)The Tribunal then proceeded to find that, despite a specific request for evidence to support the Applicant’s claimed explanation of visiting a doctor, no medical certificate had been provided. The Tribunal observed that if the Applicant was too sick to attend the hearing on 14 October, the Tribunal would consider it reasonable that she would have obtained a certificate to explain her inability to attend the hearing on that day. The Tribunal observed that it would also consider it reasonable that the Applicant would contact the Tribunal that afternoon, or at least within the next day or few days, to explain her inability to attend, but that the Applicant had not done so.
l)The Tribunal then found that, in the absence of a medical certificate or any more contemporaneous contact about her reasons for non‑attendance, it did not accept that the Applicant was sick or went to the doctor as claimed. Accordingly, the Tribunal was not satisfied that the Applicant had provided a reasonable explanation for her non‑appearance.
m)In those circumstances, the Tribunal did not consider it appropriate to reinstate the application and confirmed the decision to dismiss the application.
For the following reasons, I do not agree with the first respondent’s submissions and I find that the decision of the Tribunal, in all the relevant circumstances which I shall now recount, does not lead me to be satisfied that the Tribunal exercised its discretion reasonably in the legal sense of that word.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (“Li”) at [28] per French CJ), or where a decision has been made that lacks an “evident and intelligible justification” (see Li at [76]; Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234]). The test for unreasonableness is “stringent” and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker (see Li at [30], [113]).
Recently, the High Court of Australia has considered legal unreasonableness in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (see Gageler J at [51]-[60]). Keifel CJ stated at [12] – [14] as follows:
“12 In Minister for Immigration and Citizenship v Li [(2013) 249 CLR 332 at 363-364, 367] reference was made to what had been said in Klein v Domus Pty Ltd [(1963) 109 CLR 467 at 473]regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts.
13 The Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. In reviewing a decision the Tribunal is required to act according to substantial justice and the merits of the case. Clearly enough s 426A is directed to the aims of efficiency contained within these objectives, although it is not to be exercised in a way which would be contrary to the others. Consistently with what has earlier been discussed, it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case.
14 In Minister for Immigration and Citizenship v Li, it was accepted that the Migration Review Tribunal is to act in an efficient manner. This did not explain why that Tribunal decided abruptly to conclude the review when the applicant had requested time to allow the outcome of a relevant assessment, one which might favour the review of her application, to be known. It was not obvious how the Tribunal had reached its decision not to exercise its discretionary power to adjourn the hearing, but it was to be inferred that some error in reasoning had led to what was plainly an unjustifiable and unreasonable decision. In this case the basis for the Tribunal's decision is apparent. The decision is plainly justified by reference to it.”
(Footnotes omitted)
True it is that the applicants did not attend the Tribunal hearing on 17 October 2016 and did not notify the Tribunal at any time during that day of the reason for the failure to appear.
The Tribunal made its decision on 17 October 2016 to dismiss the application without further consideration of the application on the information before the Tribunal. That decision was emailed to the applicant at 11:09am on 18 October 2016. The notification letter accompanying that decision informed the Applicant that she had until 1 November 2016 to apply for reinstatement and, indeed, that she should provide any further information she wished the Tribunal to consider and that she should set out why she failed to appear at the hearing.
In circumstances where that email was sent at 11:09am the following morning, I do not accept as reasonable, the first respondent’s criticism of the Applicant that she took no step to notify the Tribunal of the reasons for her failure to attend at that time.
The Tribunal’s notification letter made clear to the Applicant that she had until 1 November 2016 to apply for reinstatement. The Applicant sent an email on 30 October 2016 at 8:23am informing the Tribunal that she had been sick on the morning of 14 October and had been taken to the doctor by her husband, and that the hearing was at 9:30am and she did not have time to call.
The full text of the Tribunal case note on 31 October 2016, recorded at 3:06pm, to my mind is the gravamen of the unreasonableness of the Tribunal’s conduct. That case note is as follows:
“At the case officer's request, I called and spoke to the applicant in Mandarin re RA's request for reinstatement. I told her that Member has requested she provide evidence by way of a medical certificate that demonstrates why she was unable to participate in a hearing for her case that day (ie. the medical certificate should contain sufficient detail to explain why she was unable to participate at the hearing that day). I told her that of itself her explanation contained in the email was not enough to have her case reinstated, without adequate evidence. I reminded her that the deadline for providing this is tomorrow.
She then asked what would be the next step for her to take if we affirm the Department's .decision. I asked her to seek independent legal advice from a lawyer about appealing our decision at Federal Courts.
During the call, she did not indicate whether she would provide us with a medical certificate or not. She just said it might be hard to get a doctor to back-date a medical certificate.”
(Emphasis added)
The statement “I reminded her that the deadline for providing this is tomorrow” is either a misunderstanding by that case officer that the Applicant had, in fact, applied for reinstatement the day before by email on 30 October 2016; or, is a statement that is entirely wrong and would be sufficient to cause an unrepresented applicant, who requires the assistance of an interpreter, to understand that that was not in fact the case and that the “deadline” for providing medical evidence in support of her reinstatement application was not the next day, being 1 November 2016.
The Applicant was provided by that case officer the option of seeking advice from a lawyer about appealing the Tribunal’s decision, essentially, or, providing medical evidence in circumstances where she was told that the “deadline” for doing so was the next day. The officer noted that the Applicant said that it might be hard to get a doctor to backdate a medical certificate. That case note is recorded at 3:06pm. Assuming it was a contemporaneous case note, the Applicant had only that afternoon, on the advice given to her by that case officer, to obtain the medical evidence that she needed to support her reinstatement application.
Certainly, the Applicant must send her evidence as soon as practicable. However, she must be given a reasonable opportunity to do so. The next day was not reasonable. The officer had told the Applicant for the first time that her explanation was not sufficient and that she only had until the next day to provide medical evidence in support. In my view that is a totally unreasonable length of time to give to the Applicant to provide medical evidence in support of her application and to tell her that was the “deadline”. Use of that word in context suggests there is no possibility for a longer period available to her.
Further, I do not accept the first respondent’s submission that the Applicant acted unreasonably in not obtaining a certificate on the morning of 14 October 2016 from the doctor at the time she saw the doctor and I do not accept that the Applicant’s failure to provide any further evidence was because she may not, in fact, have visited the doctor on that day.
The Applicant had been told clearly by the case officer that the deadline for her providing that evidence was the following day. The Tribunal showed no appreciation whatsoever of what the Applicant was told by the case officer in its decision record.
Whilst the Tribunal identifies with great particularity what the case officer told the Applicant on 31 October 2016, it omits entirely to say that the Applicant was told that the deadline for providing the medical evidence was the next day.
To my mind, that was a significant fact that the Tribunal should have considered in the exercise of its discretion and before it made findings that the Applicant was not sick or never went to the doctor. The Tribunal should have taken reasonable steps to bring to the Applicant’s attention a proper opportunity for her to provide that medical evidence. To be told the afternoon before, that the “deadline” for providing that evidence was the next day, is an entirely unreasonable basis on which the Tribunal proceeded to confirm its decision.
The Tribunal did not carefully evaluate the evidence before it in making its decision and its decision, in all the circumstances, was unreasonable.
I acknowledge that the Applicant has not in fact herself provided evidence of her understanding of the effect of what she was told by the Tribunal case officer. However, the Applicant has been unrepresented throughout this proceeding and has had only the assistance of an interpreter at Court appearances.
However, even in the absence of any evidence from the Applicant, the Tribunal did not appreciate the significance of what the Applicant was told on 31 October 2016 by the Tribunal case officer.
It is apparent, as stated above, that either that case officer thought the Applicant had not made an application for reinstatement, in which case that matter should have been corrected by the Tribunal and the Applicant properly invited to send medical evidence within a reasonable time frame; or the case officer took it upon themselves simply to tell the Applicant something that was totally incorrect, that being that the “deadline” for her to provide medical evidence was the next day.
The failure of the Tribunal to have any regard to the seriousness of the consequences for the Applicant by that incorrect information being given to her at such a critical time, makes the Tribunal’s decision to confirm its dismissal of the application legally unreasonable.
In the circumstances, I am satisfied that the decision of the Tribunal is affected by jurisdictional error. Accordingly, the decision of the Tribunal should be set aside and the matter remitted for determination according to law.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 16 August 2018
CORRECTIONS (10 December 2018):
Reasons for Judgment: Page 15, Paragraph 29(f) seventh line delete applicant’s name and insert “[applicant’s name]”
Reasons for Judgment: Page 17, Paragraph 32 third line delete “Gaegler” and insert “Gageler”.
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