Ali v Minister for Home Affairs
[2019] FCCA 3438
•10 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALI v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3438 |
| Catchwords: ADMINISTRATIVE LAW – Applicant’s repeated failure to attend AAT hearing – hearing adjourned twice – Applicant failed (without explanation) also to apply to have his Application before the AAT reinstated – at hearing before this Court the Applicant failed to articulate or explain his grounds of review – Application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.65, 353, 357A(3), 360, 362B(1), (1A) & (1B), 363B(1)(b) Migration Regulations 1994 (Cth), r.500.212 |
| Cases cited: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v SZHSQ (2006) 155 FCR 159 |
| Applicant: | MUHAMMAD FARZAL ALI |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 67 of 2018 |
| Judgment of: | Judge Neville |
| Hearing date: | 9 October 2019 |
| Date of Last Submission: | 9 October 2019 |
| Delivered at: | Canberra |
| Delivered on: | 10 October 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondents: | Clayton Utz Canberra |
ORDERS
The Applicant’s Application filed on 17 September 2018 be dismissed.
The Applicant is to pay the Respondent’s costs of these proceedings in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 67 of 2018
| MUHAMMAD FARZAL ALI |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a Pakistani citizen. According to records that were before the Delegate of the Minister for Immigration and Border Protection (“the Delegate”), he holds a Bachelor of Arts in Business Administration (with Third Class Honours) from the University of Portsmouth in the United Kingdom. He had applied for a Student (Temporary) (class TU) Student (subclass 500) visa.
The Applicant proposed undertaking a Bachelor of Business course from 23rd February 2017 until 25th October 2019 at the Asia Pacific International College, Sydney Campus, albeit that his residential address is in Canberra. The Delegate noted that since arriving in Australia on 1st November 2014, the Applicant had not successfully completed any relevant or recognised course or qualification.
On 29th March 2017, the Delegate determined that the Applicant did not meet the criteria set out in clause 500.212 of the Migration Regulations 1994. The Delegate determined that the Applicant did not genuinely intend to stay temporarily in Australia.[1]
[1] See Court Book (“CB”) 36 – 40.
On 21st August 2018, the Administrative Appeals Tribunal (“the AAT” or “the Tribunal”) determined that (a) the Applicant was duly notified and invited under s.360 of the Migration Act 1958 (“the Act”) to appear before the Tribunal by telephone on 21st August, 2018, (b) the Applicant was sent a reminder by SMS approximately 5 days prior to this appointment, and (c) the Applicant did not attend the designated hearing. Accordingly, the Tribunal dismissed the Application.[2]
[2] The brief reasons of the Tribunal of 21st August 2018 are at CB114. The reasons of the Court provided here have been revised from the transcript.
On 10th September 2018, the Tribunal noted that (a) it had notified the Applicant of its earlier [August] decision and provided details regarding the process to reinstate an Application, (b) part of the information regarding reinstatement specified that such an Application must be made within 14 days of the date of receiving the decision, (c) the Applicant was also notified that if no reinstatement Application was filed within the specified time, the original decision to dismiss the Application would be confirmed, and (d) no Application for reinstatement was received. Accordingly, the Tribunal confirmed its original decision to dismiss the Application.[3]
[3] The Tribunal’s further, brief reasons, are at CB 120.
The AAT’s decision
I have already recorded the Tribunal’s decision to dismiss the Application based upon the Applicant’s (a) failure to attend the hearing, and (b) his further failure to seek to have his Application reinstated.
Grounds of Review
The Applicant’s Grounds of Review, outlined in his Originating Application, filed 17th September 2018, were as follows:
Grounds of Application
1. The Tribunal misinterpreted and misapplied s.362B of the Act.
Particulars
i. Section 362B of the Migration Act 1958 is a discretionary provision giving it options of making a decision on the review or dismiss proceedings. The Tribunal proceeded to dismiss the proceedings without considering the making of decision on the merits of the review application.
2. The Tribunal failed to operate according to law.
Particulars
i. Section 353(b) of the Act required the Tribunal to act according to substantial justice and the merits of the case.
ii. Section 363 (1) (b) confers power on the Tribunal to adjourn the review from time to time.
iii. Section 357A (3) of the Act requires the Tribunal to act in a way that is fair and just.
Curiously and most unfortunately, when asked in Court about his Grounds of Review, the Applicant did not elaborate, clarify and or elucidate on his Grounds of Review, despite being given multiple opportunities by the Bench to do so. Despite repeated attempts to engage the Applicant in conversation/discussion about his Application, he simply did not, and for no discernible reason, reply, comment or otherwise engage.
Statutory Provisions
The only parts of s.362B that are relevant to the matter before me are sub-sections (1), (1A) and (1B), thus:
Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 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 368, 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 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 362C, 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 362C, apply to the Tribunal for reinstatement of the application.
Submissions by the Applicant
The Applicant’s submissions, filed 27th March 2019, were as follows:
Applicant’s Outline of Submissions
Legislation:
The Migration Act 1958 (Cwlth), s 65, s 362B, s 353, s 357A, s 363.
Tribunal Decision
1. On 18/04/2017, the applicant lodged an application in the Tribunal to review the decision of the delegate of the first respondent.
2. On 21 August 2018, the tribunal dismissed the review application under s.362B(1A) (b) of the Migration Act 1958 (first decision).
3. On 10 September 2018, the Tribunal affirmed its first decision on the basis that the applicant did not apply for reinstatement of the application within the 14 days period.
4. The applicant submits that the decision of the Tribunal suffers from jurisdictional error for the reason that it failed to act according to law as provided in sections 353, 357 A, and 363 of the Migration Act 1958
First Ground of application
5. The Tribunal misinterpreted and misapplied s.362B of the Act. Section 362B of the Migration Act 1958 is a discretionary provision giving it options of deciding on the review or dismiss proceedings. The Tribunal proceeded to dismiss the proceedings without considering the making of decision on the merits of the review application.
Second Ground of application
6. The Tribunal failed to operate according to law. Section 353(b) of the Act required the Tribunal to act according to substantial justice and the merits of the case.
7. On 21 August 2018, the Tribunal dismissed the application on the basis that the Tribunal was satisfied that the review applicant was properly invited to a hearing in accordance with s. 379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the nonappearance has been given. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
8. The Tribunal failed to consider that it had the obligation to act in a way that is fair and just and to decide the review application on its merits.
9. The tribunal also failed to consider section 363 (1) (b) of the Act, which empowers the Tribunal to adjourn the review from time to time.
10. On 01 August 2018, the applicant's migration agent wrote the following to the Tribunal:
"I am an appointed migration agent by our client Muhammad Farzal Ali to act on his beha( before tribunal. I note that the matter was adjourned till 06 August 2018 due to medical reasons.
As this is a new case for me and I have just taken over this matter, I need time to prepare .frJr hearing. Hence, I request the honourable member to grant me some additional time for preparation.
I shall be ready to proceed any time after 20 august 2018.”
11. The Tribunal adjourned the hearing to 21 August 2018.
12. The applicant had every intention to pursue his review application before the Tribunal.
13. However, on 20 August 2019, the applicant's migration agent sent the following email to the Tribunal:
"Dear Registrar
I am writing in relation to the matter of Muhammad Farzal Ah I am appointed migration agent by the applicant.
Due to personal circumstances, I am not able to attend the hearing listed tomorrow on 21 Aug 2018/or Afr .lvfuhammad Farzal Ali.
Thank you. ''
14. The Tribunal failed to take this into account that the applicant did not have time to have another migration agent and as such the Tribunal should have adjourned the hearing enabling the applicant to have another migration agent to represent him.
15. The non-appearance of the applicant before the Tribunal was not intentional.
16. On 21 August 2018, the Tribunal dismissed the review application for non-appearance. However, the Tribunal wrote the following to the applicant:
"You may apply to us, in writing, for reinstatement of the application by 4 September 2018. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted."
17. On 10 September 2018, the Tribunal confirmed the decision to dismiss the application for review, as the review applicant did not apply for reinstatement of the application within the 14 days period. 5
18. It is pertinent to mention that on both occasions the Tribunal proceeded to dismiss the review application on the basis of technicalities and failed to exercise its jurisdiction to decide the application on merits.
Conclusion
19. The applicant seeks the following orders:
i. An order that the decision of the tribunal be quashed.
ii. A writ of mandamus directed to the tribunal requiring it to determine the applicant's application according to law.
iii. An order that respondent pay the applicant' costs of these proceedings.
Submissions by the First Respondent
The First Respondent’s submissions, filed 3rd April 2019, were as follows:
First Respondent’s Outline of Submissions
1. The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 10 September 2018 (CB 119 to 120), by which it dismissed the Applicant's application for review of a decision by a delegate of the First Respondent (Delegate) to refuse to grant the primary applicant a Student (Temporary) (Class TU) Subclass 500 visa (Student visa) under s 65 of the Migration Act 1958 (Cth) (Act) (CB 36 to 41).
2. These submissions are filed in accordance with the Orders made by this Court on 26 November 2018, and varied on 29 March 2019. These Orders also required that the Applicant file and serve an outline of submissions by 22 March 2019. The Applicant filed submissions on 27 March 2019 and accordingly, these submissions respond to the Applicant's submissions and to the application filed in this Court on 30 July 2018 (Application).
3. The Minister submits that the Application does not establish jurisdictional error and for the reasons that follow, the Application ought to be dismissed with costs.
Background
4. The Applicant is a citizen of Pakistan who entered Australia on 1 November 2014 as the holder of a Higher Education (Class TU) (Subclass 573) visa (CB 38).
5. On 21 December 2016, the Applicant applied for a Student visa (CB 5 to 31). On 29 March 2017, a Delegate refused the visa application on the basis that the Applicant did not satisfy the genuine temporary entrant criteria pursuant to clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
6. The Applicant applied to the Tribunal for review and attached a copy of the Delegate's decision, a police report dated 13 September 2015 and various medical certificates (CB 42 to 59). The application did not list the appointment of an Authorised Representative.
7. On 20 June 2018, the Tribunal sent an email to the Applicant inviting him to attend a hearing by telephone on 26 July 2018 (Hearing Invitation) (CB 68 to 83).
8. On 25 July 2018 at 8:14pm, the Applicant sent an email to the Tribunal stating that he was "suffering a medical condition due to which I will not be able to attend hearing tomorrow". The Applicant attached a medical certificate dated 25 July 2017 [sic: “2018”] and requested an adjournment of the hearing for 3 weeks (Adjournment Request) (CB 87 to 88).
9. The Applicant did not appear before the Tribunal. The Migration Hearing Record indicates that the Tribunal attempted to telephone the Applicant at 9:15am, 9:30am and 10:50am (CB 89).
10. On 26 July 2018 at 11:43am, the Tribunal sent an email to the Applicant advising that the Member had agreed to the Adjournment Request and the Tribunal had rescheduled the hearing by telephone to 6 August 2018 (Second Hearing Invitation) (CB 94 to96).
11. On 1 August 2018, the Tribunal received an email from Mr Muzamil Hafeez from Aptitude Migration, attaching an Appointment of Authorised Representative, by which, the Applicant appointed Mr Hafeez as his Authorised Representative (CB 97 to 100).
12. The email from Mr Hafeez to the Tribunal requested "additional time for preparation" and stated that "I shall be ready to proceed anytime after 20 August 2018" (Second Adjournment Request).
13. On 1 August 2018, the Tribunal sent an email to Mr Hafeez advising that the Member had agreed to the Second Adjournment Request and the Tribunal had rescheduled the hearing by telephone to 21 August 2018 (Third Hearing Invitation) (CB 101 to 105).
14. On 20 August 2018, Mr Hafeez sent an email to the Tribunal advising "due to personal circumstances, I am not able to attend the hearing listed tomorrow on 21 Aug 2018 for Mr Muhammad Farzal Ali" (CB 106 to 107).
15. The Applicant and Mr Hafeez did not appear before the Tribunal (CB 108).
16. On 21 August 2018, the Tribunal sent an email to Mr Hafeez advising that the application had been dismissed because the Applicant failed to attend the scheduled hearing. The email attached a Notification of Decision to Dismiss the Application (Notification of Decision), a Non-Appearance Decision (Non-Appearance Decision) and a document "Information about dismissal of applications" (Information sheet) (CB 112 to 116).
17. The Non-Appearance Decision dismissed the application under section 362B(1A)(b) of the Migration Act 1958 (the Act).
18. The Notification of Decision and Information sheet advised the Applicant that he could apply for reinstatement of the application within 14 days, being 4 September 2019.
19. On 10 September 2018, the Tribunal sent an email to Mr Hafeez attaching a Decision Record confirming the Non-Appearance Decision on the basis that the Applicant did not apply for reinstatement of the application within 14 days and advising that in circumstances, the decision under review was affirmed (CB 117 to 120).
Grounds of Review
20. The Applicant's grounds of review in the application are as follows:
1. The Tribunal misinterpreted and misapplied s.362B of the Act.
2. The Tribunal failed to operate according to law.
Consideration
Ground 1
21. The Applicant asserts that the Tribunal fell into jurisdictional error by misinterpreting and misapplying section 362B of the Act.
22. Section 362B confers a discretion on the Tribunal to make a decision on the review, or dismiss the application without any further consideration, if an Applicant is invited under section 360 of the Act to appear before the Tribunal and the Applicant fails to appear.
23. Section 360(1) of the Act provides that the Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to issues arising in relation to the decision under review.
24. The Applicant was invited to attend a hearing by telephone, in accordance with section 360 of the Act, on three occasions.
25. The Third Hearing Invitation advised the Applicant (at CB 105):
"If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss the application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed".
26. A Case Note from the Tribunal indicates that on 20 August 2018 at 9:34am, Mr Hafeez telephoned the Tribunal to ask if there was a way to withdraw himself as the Authorised Representative because the Applicant had not submitted documents for the hearing or paid Mr Hafeez for his services; Mr Hafeez ultimately confirmed that he understood that only the Applicant could submit a change of details form (CB 122).
27. On 20 August 2018 at 9:42am , Mr Hafeez sent a further email to the Tribunal advising "due to personal circumstances, I am not able to attend the hearing listed tomorrow on 21 Aug 2018 for Mr Muhammad Farzal Ali" (CB 106 to 107).
28. On the same day, at 11:01, the Tribunal sent the Applicant a text message, "Reminder - Your AAT hearing is on 21/08/18" (CB 122).
29. The Tribunal issued a Non-appearance decision because both the Applicant and Mr Hafeez failed to appear at the hearing on 21 August 2018. The Non-appearance decision relevantly stated that the Applicant could apply for reinstatement of the application within 14 days.
30. Neither the Applicant nor Mr Hafeez sought reinstatement of the application within the 14 day period. On 10 September 2018, the Tribunal confirmed the dismissal of the application.
31. In the Affidavit of Muhammad Farzal Ali, affirmed on 17 September 2018, the Applicant states that he was suffering from back pain and was unable to attend the hearing. The Applicant annexed to his Affidavit a medical certificate dated 22 August 2018 that stated that the Applicant "came for review of exacerbation of back pain which has got worse in last few days. Mr Ali tried to book appointment with me on 21/8/2018 but no appointment was available despite staying on waiting list".
32. The First Respondent submits that there is no evidence to suggest that the medical certificate was ever before the Tribunal. The First Respondent further submits that there is nothing to suggest that the Applicant ever contacted the Tribunal about his condition or that the Applicant ever requested an adjournment of the 21 August 2018 hearing because he was unwell or unavailable. Further, it was open to the Applicant to provide this medical evidence to the Tribunal within 14 days of the Tribunal's non-appearance decision and request that his application be reinstated. The Applicant did not apply for reinstatement, or contact the Tribunal, and therefore the Tribunal was required to confirm the decision in accordance with section 362B(1E) of the Act.
33. To the extent that the Applicant submits that "the Tribunal proceeded to dismiss the proceedings without considering the making of a decision on the merits of the review application", the First Respondent submits that it was open to the Tribunal to proceed in the way that it did: see section 362B(1A)(b). In particular, in exercising the discretion in accordance with section 362B of the Act, the Tribunal considered that (CB 114 at [1] - [2]):
a. the Applicant was invited to a hearing in accordance with section 360 of the Act;
b. the invitation was given to the Applicant in accordance with section 379A of the Act;
c. the invitation was not returned to the Tribunal undelivered;
d. the invitation stated that if he did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or the information before it;
e. the Tribunal had sent the Applicant SMS reminders about the hearing 5 business days and on business day prior to the scheduled hearing; and
f. having reviewed the Tribunal file, there was no satisfactory reason given for the non-appearance.
34. To the extent that the Applicant's non-appearance was due to the failure of Mr Hafeez to appear at the hearing on behalf of the Applicant, the First Respondent submits that Mr Hafeez was aware of the time and date of the hearing, as evidenced by his correspondence with the Tribunal, and at no time in this correspondence did Mr Hafeez request that the Tribunal adjourn the proceedings again.
35. The First Respondent submits that ground one cannot be made out.
Ground 2
36. The Applicant asserts that the Tribunal failed to operate according to law. The Applicant submits that the Tribunal:
a. failed to act according to substantial justice and the merits of the case in contravention of section 353(b) of the Act;
b. failed to consider that it had an obligation to act in a way that is fair and just and to decide the review application on its merits;
c. failed to consider section 363(1)(b) which enables the Tribunal to adjourn the review; and
d. failed to take into account the fact that the applicant did not have time to obtain another migration agent represent him (and should have adjourned to allow this to occur).
37. The First Respondent submits that this ground reveals no error and in fact simply seeks to disagree with the Tribunals lawful exercise of its discretion to dismiss the application. In effect, it is an impermissible challenge to the merits of that decision.
38. Section 353(b) of the Act, provides that the Tribunal shall act according to substantial justice and the merits of the case. Section 363(1)(b) of the Act, provides the Tribunal with a discretion to adjourn the review "from time to time".
39. Despite an indication in the Case Notes that Mr Hafeez would withdraw his appointment as the Applicant's Authorised Representative, there is no material in the Court Book to indicate that the he did so. Similarly, there is no material to indicate that Mr Hafeez or the Applicant requested an adjournment of the hearing schedule to occur on 21 August 2019.
40. The Applicant and Mr Hafeez requested an adjournment of the hearing on three previous occasions which demonstrates that both the Applicant and Mr Hafeez are aware of the process for requesting an adjournment. However, prior to the 21 August 2018 hearing, Mr Hafeez simply told the Tribunal that he would not be available to attend (but no request for an adjournment was made). The Tribunal cannot consider an adjournment if no such request was actually made.
41. The Applicant was entitled to apply for reinstatement of the application within 14 days of the Non-appearance Decision, was notified of his entitlement to do so and failed to do so.
42. The First Respondent submits that the Tribunal's decision is a lawful and reasoned exercise of the discretion to dismiss which is free from jurisdictional error.
Conclusion
43. The Application does not identify any jurisdictional error, and should therefore be dismissed with an order that the Applicant pay the First Respondent's costs in the amount of $7,467 pursuant to rule 44.15(1) and Item 3 of Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001 (Cth), or such amount as may be fixed by the Court.
Consideration and disposition
On 10th September 2018, the Tribunal made a decision in which it affirmed an earlier decision of a Delegate of the Minister, who refused to grant the Applicant a Student (Temporary) (Class TU) Subclass 500 visa, pursuant to s.65 of the Migration Act 1958 (“the Act”).
By Application filed 17th September 2018 the Applicant seeks relief in this Court in relation to the Tribunal’s decision. He raised two grounds for that review: (a) the Tribunal misinterpreted and misapplied s.362B of the Act; and (b) the Tribunal failed to operate according to law. Under this second ground, the Applicant referred in particular to the provisions of ss.353(b), 357A(3) and 363(1)(b).
The Applicant and the First Respondent Minister both filed written submissions.
I accept and adopt as part of these reasons the summary provided by the Minister of the background of the Applicant and the procedural history of the matter. I do not understand any of these factual, background matters, or the procedural history, to be contentious. Such matters are supported by the documents on the Court file, and those that are in the Court Book.
At the brief hearing, the Applicant was asked, on multiple occasions and in slightly different ways, to explain his grounds of review. He could not, or would not, and did not, do so. Moreover, he had no response to the basic question regarding how the Tribunal could be said to have erred in not granting an adjournment when it did not know that the Applicant was seeking another adjournment, especially where there had been two earlier applications for an adjournment, both of which were granted.
There is no dispute that at the third appointed hearing, neither the Applicant nor any agent on his behalf appeared. Nor was there any dispute that when notified of the Tribunal’s decision, the Applicant did not apply (and has never applied) to the Tribunal for his Application to be reinstated. The Tribunal notified the Applicant of his entitlement to seek to have his Application reinstated within 14 days of the date of the Tribunal’s decision.
In the High Court decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the plurality judgment of Hayne, Kiefel and Bell JJ outlined a range of principles that apply to administrative decision-makers, including questions of “reasonableness”. However, for current purposes, it is sufficient to note their Honours’ comments, firstly at [60] and [61] (internal citations omitted):
[60] The duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example. Section 360(1) and its purpose are central to Div 5 and the conduct of the review for which the Division provides. The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal's duty therefore extends further than merely issuing an invitation to an applicant to appear.
[61] Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal's knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.
Then at [82], the plurality said:
It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that "enough is enough", but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.
In the current matter, in my view, the Applicant has plainly had a number of opportunities to put his case to the Tribunal. For various reasons he has not done so. In the words of the High Court in Li’s case, “enough is enough.”[4]
[4] Regarding the exercise of discretion and an Applicant’s failure to attend, see generally the comments by the Full Court (Spender, French and Cowdroy JJ) in Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; SZJQP v Minister for Immigration and Citizenship (2007) 98 ALD 575 (Gilmour J); Minister for Immigration and Multicultural Affairs v SZHSQ (2006) 155 FCR 159 (Rares J). In SZFHC, the Full Court held (at [39], that having complied with the methods of communication prescribed under the Act, the Tribunal was under no obligation to take further steps to communicate with the Applicant in that case.
Further, as already noted, even during the hearing before this Court, the Applicant was unable to explain at all in what way the Tribunal had acted erroneously in circumstances where neither he, nor any agent on his behalf, (a) turned up at any of the well-notified hearings (the notifications were both in writing and by SMS), or (b) ever made an Application for reinstatement of his Application. In my view it is this latter failure not to seek reinstatement that is the most perplexing and troubling. The Tribunal made it abundantly clear that reinstatement was a possibility provided an Application was made. Unfortunately, this never occurred.
In these circumstances, and in addition to the reasons set out above, I accept the Minister’s submissions.
The Application filed on 17th September 2018 must be dismissed with costs according to the relevant scale. The Court so orders.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 27 November 2019
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