ANK15 v Minister for Immigration
[2017] FCCA 1269
•15 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANK15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1269 |
| Catchwords: MIGRATION – Protection (Class XA) visa – applicant repeatedly seeking to postpone Tribunal hearing – applicant attended Royal Melbourne Hospital four days before latest postponed hearing – non-appearance at hearing – whether s.426A of the Migration Act 1958 (Cth) permitted Tribunal to embark on the hearing in the absence of the applicant – whether Tribunal exhibited legal unreasonableness in conducting hearing – no legal unreasonableness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.362B, 426A |
| Cases cited: AKD16 v Minister for Immigration and Anor (2016) 315 FLR 228 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 Minister for Immigration and Citizenshipv SZMDS (2010) 240 CLR 611 |
| Applicant: | ANK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 841 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 6 June 2017 |
| Date of Last Submission: | 6 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 15 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Gilbert |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr L. Brown |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The amended application filed 16 May 2017 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 841 of 2015
| ANK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The issue in this application for judicial review was the propriety of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), proceeding to hear the applicant’s application for review of the delegate’s decision in circumstances where the applicant had been taken to Royal Melbourne Hospital (“RMH”) four days prior to the scheduled hearing before the Tribunal.
Mr Gilbert of counsel for the applicant contended that the Tribunal’s decision was affected by jurisdictional error in that the Tribunal engaged in legal unreasonableness by proceeding with the hearing in the applicant’s absence. On behalf of the Minister, Mr Brown of counsel contended that no legal unreasonableness was involved because s.426A of the Migration Act 1958 (Cth) (“the Act”) permitted the Tribunal to do precisely as it did.
The question in this case was whether the decision of the Tribunal should stand.
Synopsis
For the reasons that follow, in my view the decision of the Tribunal was not affected by jurisdictional error.
Relevant factual setting
The applicant was born in Lahore, Pakistan on 1 January 1963. He is a Sunni Muslim, married with three children. The applicant arrived in Australia on 13 March 2013 on a Business (Short Stay) (subclass 456) visa that ceased on 14 April 2013. On 29 May 2013 he applied for a Protection (Class XA) visa. The Minister’s delegate refused to grant the visa so the applicant sought a review of the delegate’s decision before the Tribunal. On 1 April 2015 the Tribunal affirmed the delegate’s decision not to grant the visa. On 21 April 2015
the applicant applied to this court for judicial review of the Tribunal’s decision.
Before addressing the details of the Tribunal’s conduct and before examining the grounds of review to this court, it is necessary to set out in some little detail the events leading up to the Tribunal hearing.
By fax dated 18 December 2014 the Tribunal sent a 10-page letter to the applicant’s solicitor inviting the applicant to appear before the Tribunal on 4 February 2015 at 1.00 p.m. On 5 January 2015 the applicant responded stating he would be attending the hearing on
4 February 2015. The applicant responded to the enquiry on the form about whether there was any issue that may have an affected his ability to take part in the hearing. He wrote in capital letters, the error in which was in the original, “heart and dipression”.[1]
[1] Court book filed 12 June 2015 at p.213.
On 29 January 2015 the applicant’s solicitor wrote to the Tribunal stating that he had been instructed to seek an adjournment on the basis of the applicant’s medical condition. With that letter the applicant’s solicitor enclosed a letter from Dr A. Mian dated 29 January 2015.
The letter from Dr Mian was short. It is desirable to record its details verbatim –
To Whom It May Concern
This letter is to verify that above named is a regular patient of this practice.
He is suffering from,
2-Depression/Anxiety/Panic Disorders
2-Asthma
3-Lower Backache
4-Diabetes-Diet Controlled
He gets Anxiety and panic Disorders and seeing a psychologist.
Under the circumstances due to his mental Health problems, he is unable to attend Refugee review Tribunal hearing for the next 4 Months[2]
[2] Court book filed 12 June 2015 at p.216.
Pausing in the narrative, several things must be said about that letter. First, in the opening line the author stated that the applicant was a regular patient of that medical clinic but the author did not say the applicant was the author’s patient. Next, the author of the letter said the applicant was, at the date of the letter, suffering from depression, anxiety and panic disorders for which the applicant was seeing a psychologist. The issue of asthma, lower backache and diabetes were not relied on as grounding the applicant’s alleged inability to attend the Tribunal hearing. Dr Mian asserted the “mental Health problems” of which he wrote rendered the applicant unable to attend the Tribunal for the next four months, meaning not before the end of May 2015.
Before me, Mr Gilbert frankly acknowledged that Dr Mian’s reference to four months was not a helpful reference. Mr Gilbert also said there did not appear to be any science in Dr Mian’s reference to four months.
By letter dated 30 January 2015 from the Tribunal to the applicant,
the Tribunal stated –
The Tribunal does not accept the medical certificate you have provided establishes that you would be unable to attend and participate in your hearing on 4 February 2015 and on the evidence currently before it is not prepared to grant an adjournment of your hearing. While the medical certificate lists the mental and physical health conditions you are currently suffering from, it does not indicate how any of these conditions would prevent or impact on your ability to give evidence and present arguments at a hearing before the tribunal.[3] (emphasis in the original)
[3] Court book filed 12 June 2015 at p.220.
The Tribunal requested the applicant to supply further evidence. Specifically, in that letter the Tribunal stated –
In particular, the Tribunal requests that you provide information about:
- The symptoms of your medical conditions and the impact of your medical conditions, including your mental health conditions, on your ability to participate in a hearing where you will be expected to give evidence and present argument on your claims to fear harm in Pakistan;
- the duration of your medical conditions; and
- any other reason why you would be unable to attend the hearing on 4 February 2015.[4]
[4] Court book filed 12 June 2015 at pp.220-221.
The Tribunal requested the applicant to provide that information by
2 February 2015. It stated that the hearing would go ahead on
4 February 2015.
On the same day, 30 January 2015, the applicant’s solicitor
provided documents to the Tribunal consisting of a letter from Khorshed Khisty, counselling psychologist, dated 27 January 2015. That letter specifically referred to the interview before the Tribunal at
4.00 p.m. on 4 February 2015, referrable to the protection visa for the applicant. In the letter, the psychologist spoke of the applicant encountering sleeping difficulties, anxiety, ongoing sadness and a feeling of hopelessness. Elsewhere in the letter the psychologist spoke of the applicant suffering nightmares, chest pains with psychosomatic origins and headaches.
With the solicitor’s letter of 30 January 2015 was included a four-page letter from Ms Khisty, it being dated 28 January 2014. The letter was a year old by that date. It included the psychologist’s response to the version of events given by the applicant, in the following terms –
For our Australian sensitivities, [the applicant’s] story seems
far-fetched.[5]
[5] Court book filed 12 June 2015 at p.228.
The solicitor’s letter dated 30 January 2015 also incorporated a letter
of support from Ms Khisty to Dr Mian dated 28 January 2014
and a two-page letter from Ms Khisty to Dr Mian dated
28 November 2014 referrable to an earlier Tribunal hearing.
The solicitor’s letter of 30 January 2015 also included a handwritten letter dated 11 November 2014 from a person who signed the letter “Anne Brigge (RN)”. The letter was on the letterhead of the
Asylum Seeker Resource Centre (“ASRC”). In that handwritten letter, which in turn referred to events on 11 November 2014, the author wrote to Dr Mian conveying the applicant’s blood pressure readings on that day.
On 3 February 2015 the Tribunal informed the applicant, through his solicitor, that the hearing postponement request was refused. The letter from the Tribunal was in the following terms –
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection (Class XA) visa.
The Presiding Member has received further documentation provided by you in relation to your request for a postponement of four months of your hearing for 4 February 2015. The Member has carefully considered the documentation provided but is not satisfied that evidence provided indicates that any medical conditions, including any mental health conditions, you are experiencing mean that you are unable to attend and participate in a hearing on 4 February 2015.
The hearing will therefore proceed at 1:00pm on
4 February 2015.[6]
[6] Court book filed 12 June 2015 at p.240.
According to paragraph 26 of the Tribunal’s reasons for decision,
on 4 February 2015 the applicant did not attend at the time and place of his scheduled hearing. A Tribunal officer contacted the applicant.
The Tribunal’s reasons revealed that the applicant told the Tribunal officer that he (the applicant) was unwell, that he would not be attending and that he had sent a medical certificate to his representative.
On 10 February 2015 the Tribunal wrote to the applicant as well as to the applicant’s solicitor concerning the applicant’s failure to appear on 4 February 2015. In that letter, the Tribunal traced the chronological sequence of events that commenced with its invitation given on
18 December 2014 for the applicant to attend the hearing on
4 February 2015. The Tribunal wrote the following –
The tribunal reminds you that the Federal Court of Australia has held that it is up to the applicant to establish the reason for
non-attendance at a hearing (SZLBE v MIAC [2008] FCA 1789 at [18]). Section 426A of the Migration Act states that, in the event where an applicant is invited to appear before the tribunal and does not do so, the tribunal may make a decision on the review without taking any further action to allow the applicant to appear before it.
Given that the tribunal has already advised you that the medical evidence you have previously provided did not satisfy it that you would be unable to attend and participate in your scheduled hearing, in order for it to decide under s426A of the Act whether to reschedule the hearing, the tribunal now invites you to provide any new information about why you were unable to attend your hearing on 4 February 2015.
This information should include:
- the nature and symptoms of the illness you claim you were suffering on or about 4 February 2015;
- its duration;
- its impact on your ability to attend and participate in the hearing on 4 February 2015; and
- any other reason why you were unable to attend the hearing on 4 February 2015.
Please provide this information, in writing, by 13 February 2015. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If no further information is received at the tribunal by
13 February 2015,the tribunal will decide what steps it should take under s426A of the Act based on the information currently before it.[7]
[7] Court book filed 12 June 2015 at p.246.
The Tribunal left matters on the basis that the applicant had to provide additional information to the Tribunal by 13 February 2015.
On 11 February 2015 a person whose name was Celeste Abell telephoned the Tribunal. According to a file note of that conversation, Ms Abell stated to the Tribunal officer that the applicant had then recently received the Tribunal’s fax dated 10 February 2015 requiring the provision of extra documentation by 13 February 2015. Ms Abell sought an extension of time to provide the information. The Tribunal officer told Ms Abell that any such request had to be in writing and the Tribunal officer gave Ms Abell the Tribunal’s email details.
On the same day, a little over half an hour later Ms Abell emailed the applicant’s written request for an extension of time. In that email,
Ms Abell stated that if the request for an extension of
time were granted, the applicant could supply the information by
20 February 2015. It was not said who prepared the written request for an extension of time. It was expressed in formal terms.
The Tribunal acceded to the applicant’s request and gave him until
20 February 2015 to provide the information requested in the Tribunal’s letter of 10 February 2015.
On 18 February 2015 Ms Khisty provided an email directly to the Tribunal relating to the applicant’s non-attendance at the hearing scheduled on 4 February 2015. It is a fair distillation that in that letter the psychologist –
a)diagnosed the applicant with anticipatory anxiety disorder and quoted from a web link about that condition;
b)concluded that on 4 February 2015 the applicant suffered from that condition;
c)stated the applicant had dental discomfort and congestion in his ears; and
d)stated that Ms Khisty had not seen documentation that addressed the applicant’s persecution claims.
On 19 February 2015 Ms Abell sent an email to the Tribunal with
Dr Mian’s letter dated 18 February 2015. That letter closely resembled a letter by the same author dated 29 January 2015. In the letter dated
18 February 2015, Dr Mian expanded the number of ailments from which he said the applicant suffered. It is as well to set out the content of the letter verbatim –
To Whom It May Concern
This letter is to verify that above named is a regular patient of this practice.
He is suffering from,
1-He presented with hearing loss in both ears
2-Depression/Anxiety/Panic Disorders
3-Asthma
4-Lower Backache
5-Diabetes-Diet Controlled
6-Hypertension
7-Depression/Anxiety
He is attending Psychologist and heart specialist.
The plan is to arrange hearing assessment.
Therefore it is very likely he was unable to attend Tribunal hearing on 04/02/2015
Under the circumstances due to his mental Health problems, and other medical he is unable to attend Refugee review Tribunal hearing for the next 4 Months[8]
[8] Court book filed 12 June 2015 at p.262.
On 20 February 2015 the Tribunal acceded to the applicant’s request for postponement of the hearing. It granted the applicant until
24 March 2015. The Tribunal’s letter to the applicant included the following passages –
The tribunal has received and considered your reasons as
to why you were unable to attend your hearing scheduled for
4 February 2015. The tribunal finds the evidence you have provided to be weak and unconvincing. In her letter to the tribunal, your psychologist states that on the day of your hearing, you were suffering from tooth pain that affected your hearing and that you sought help from a dentist. You have not provided any evidence from a dentist confirming that you were suffering
from tooth pain on the day of your hearing. Furthermore, while the further letter from your general practitioner dated
18 February 2015 refers to you as presenting on that date with hearing loss, it does not refer to you suffering from tooth pain and/or hearing loss on the date of your scheduled hearing.
Nevertheless given your psychologist’s diagnosis that you are suffering from anxiety, the tribunal is willing to give you a further opportunity to give evidence and present arguments in relation to the issues arriving in your case at a hearing at the time and place set out in this letter.
…
If you are not able to attend the hearing you should advise the Tribunal as soon as possible. Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment. If the Tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.[9]
[9] Court book filed 12 June 2015 at pp.266-267.
Ms Abell was superseded as the applicant’s caseworker by Sara Lane.
At 2.05 p.m. on 23 March 2015, the day before the further postponed Tribunal hearing, Ms Lane telephoned the Tribunal telling the Tribunal that the applicant had been admitted to the emergency department and was too unwell to appear before the Tribunal the following day.
The Tribunal officer recorded in a file note that Ms Lane would be sending a postponement request with supporting documents.
At 2.41 p.m. on 23 March 2015 Ms Lane sent an email to the Tribunal stating that the applicant had been taken to RMH on 20 March 2015 after collapsing at home with chest pain. Ms Lane stated that the applicant was too unwell to attend the hearing on 24 March 2015 and that the applicant had attempted to consult Dr Mian on that day
(23 March 2015) but that Dr Mian was not working. In the final paragraph of the email Ms Lane said that if the Tribunal required any further information about the applicant’s inability to attend the hearing on 24 March 2015, the Tribunal should let her know as Ms Lane was in a position to coordinate such request.
On that last matter (whether any further information was sought by the Tribunal) Mr Brown put to me that such a statement was curious as it fell to the applicant to make out his postponement request rather than it falling to the Tribunal to hunt for that information.
On behalf of the applicant the Tribunal was provided with two documents from RMH, although precisely who supplied them was not readily apparent from the material. The first was a copy of an outpatient appointment information form. The second document, more presently relevant, was headed “General Practitioner Letter”. In view of its significance in the Tribunal’s assessment of the applicant’s postponement request, it is necessary to set out the terms of the general practitioner letter verbatim –
Dear Doctor,
[The applicant]
presented to the Emergency Department on
20 Mar 2015 at 09:46.
Presenting problem:
52M NESB at rest, chest pain with diaphoresis; SOB, light headed pre syncope, sweaty++
Has had on and off for past few days. Has had 1 year ago as well.
OE: Obs stable afebrile
Chest clear HSDNM, no calf pain, no oedema.
ECG: NSR. U waves V2-3 No ischemia
Past Medical History:
Reflux
Chronic cholecystitis 2014
Current Medications:
pantoprazole
Allergies:
NKDA
Investigations:
Pathology:
Glucose, Full Blood Examination (FBE), D-Dimer, Urea and Electrolytes (UEC), Urea and Electrolytes (UEC)
Imaging (X-Ray):
Chest
Results/Outcome: CXR, fbe/uec/trop normal.
refer to cpeu for repea trop +/- provocative testing thanks david
Repeat trop 1500hrs: negative.
S/B cardiology with thanks; for OP stress testing next week then outpatient f/u cardiology in 6/52
Kind regards
Dr Kerry Lee[10]
[10] Court book filed 12 June 2015 at p.279.
On 23 March 2015 the Tribunal sent a fax to the applicant’s solicitor and a letter to the applicant. In it, the Tribunal stated that in its letter to the applicant dated 30 January and 10 February 2015 the Tribunal had recorded the type of information required to demonstrate that the applicant was unable to attend the hearing and the documents the applicant provided did not contain information of that sort.
The Tribunal stated it was not satisfied the applicant would be unable to attend and participate in the scheduled hearing on 24 March 2015. The Tribunal said the hearing would proceed.
The hearing did proceed.
The applicant did not attend.
Mr Brown’s written submissions advocated the concept that the Tribunal exercised its discretion to determine the matter under s.426A of the Act. On behalf of the applicant Mr Gilbert contended that the Tribunal’s decision to proceed, without giving the applicant an opportunity to appear, meant that the decision was legally unreasonable.
Let me now turn to the specific grounds of this application for judicial review.
Ground 1
In my view the Tribunal made no error in conducting the hearing on
24 March 2015 in the absence of the applicant. Let me explain why.
The starting point is s.426A of the Act. There was no contest before me that the Tribunal invited the applicant to appear before it. Similarly, there was no doubt the applicant, having been invited to appear, failed to do so. Did the Tribunal act unreasonably in refusing the postponement request and in making the decision on the review without taking any further action to allow or enable the applicant to appear before it?
The answer to both questions is in the negative.
The test for determining whether an administrative determination is unreasonable has been pronounced in a litany of decisions. But two decisions of the High Court of Australia provide the most authoritative guidance it seems to me, the first being Minister for Immigration and Citizenshipv SZMDS[11] (“SZMDS”) and the second being Minister for Immigration and Citizenship v Li and Anor[12] (“Li”). In the passages that follow I have addressed the key holdings in each of those decisions.
[11] (2010) 240 CLR 611.
[12] (2013) 249 CLR 332.
But chronologically – indeed logically – it is necessary to set in context the events when, on 24 March 2015 at 1.00 p.m., the applicant did not appear.
The applicant did not appear and he provided no evidence of his inability to attend the hearing when it was called on 24 March 2015.
It will be recalled that he said he attended RMH on Friday,
20 March 2015. He produced the two RMH documents to explain his medical circumstances that he said existed on 20 March 2015 when he attended RMH at 9.46 in the morning. On the hearing of this application for judicial review, no medical evidence was adduced to explain the medical entries on the general practitioner letter. That aside, having read and considered the two RMH letters, on 23 March 2015 the Tribunal was not satisfied the applicant would be unable to attend and participate in the scheduled hearing the following day.
The Tribunal told the applicant the information he needed to adduce and the Tribunal referred to the letters to him dated 30 January and
10 February 2015, each of which contained three bullet points which (although slightly differently expressed in each letter) were to the effect that the applicant needed to set out –
a)the nature and symptoms of the illness he was suffering at the date of the hearing;
b)the duration of his medical condition; and
c)why he would be unable to attend the hearing.
Rather than addressing those bullet points of information, the applicant simply did not appear on 24 March 2015.
Was it therefore reasonable for the Tribunal to decide on the review in those circumstances? In my view it was. It seemed to me that it was open to the Tribunal to engage in the process of reasoning in which it did engage in deciding to embark on the hearing after the applicant failed to appear.
In SZMDS Crennan and Bell JJ postulated the test in the following terms –
However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.[13]
[13] (2010) 240 CLR 611 at [133].
In his amended grounds of review, the applicant contended that it was unreasonable (and therefore the Tribunal fell into jurisdictional error) for the Tribunal to decide to embark upon the hearing having regard to the two letters from RMH.
I disagree.
Those letters did not address the events of 24 March 2015.
They addressed the events on 20 March 2015. They offered next to no explanation of a medical nature about the reason why the applicant collapsed and they said nothing at all about why the applicant could not attend the hearing on 24 March 2015.
In Li, the matter for the court was the reasonableness or otherwise of the Tribunal’s refusal to adjourn the hearing pending finalisation of a new skills assessment. In the reasons of Hayne, Kiefel and Bell JJ
the court observed that unreasonableness is a conclusion applied to a discretion which lacks an “evident and intelligible justification”.[14]
[14] (2013) 249 CLR 332 at [76].
In Minister for Immigration and Border Protection v Singh[15] (“Singh”), the Full Court of the Federal Court of Australia also considered an adjournment application and whether the Tribunal had provided intelligible consideration for its refusal. The decision of the High Court of Australia in Li was considered at length by the Full Court of the Federal Court which held that, on the facts, the refusal to grant an adjournment was unreasonable.
[15] [2014] FCAFC 1.
Here, the Tribunal did in fact give active intelligible consideration to the request by the applicant to postpone the hearing. The Tribunal stated it was not satisfied, based on the RMH documentation, that the applicant would be unable to participate in the hearing. But it said it had carefully considered the documentation provided. The fact that the decision, upon such careful consideration having been undertaken,
was adverse to the applicant did not mean that the Tribunal failed to discharge its task when it was required to exhibit “intelligible justification” for the decision it made.
Having carefully considered the RMH documentation, the Tribunal was left in a position where it could have either acceded to the postponement request or refused the postponement request. Minds may have differed on which approach was appropriate, as SZMDS instructs. But the fact that the decision went in one direction did not render the decision unreasonable. And, as was held in Li, assessing compliance with the standard of legal reasonableness does not involve the court substituting its view on how the discretion (here, to postpone) ought to have been exercised. I therefore say nothing on the point.
In making the observations I have in this case, I have paid close attention to the instruction given by the Full Court in Singh where the court held that it would be wrong to see Li as creating some sort of checklist to be followed and applied in determining whether there had been a legally unreasonable exercise of a discretionary power. With the very greatest respect to that particular Full Court (Allsop CJ, Robertson and Mortimer JJ) I accept that legal unreasonableness is invariably fact-dependent. I have carefully considered each of the authorities referred to by the Full Court (at [43]) as well as the others set out in my own decision in AKD16 v Minister for Immigration and Anor.[16]
[16] (2016) 315 FLR 228.
In Singh, the Full Court held (at [47]) that the “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power, at least, when a discretionary power is involved. On the facts of this case, in respect of the proposed hearing on 24 March 2015, the decision to hold a hearing and therefore
the decision not to postpone the hearing was based on the two RMH documents. The Tribunal considered those documents. It made no error in considering those two RMH documents. Then, in deciding to proceed based on those two RMH documents, the Tribunal did not act unreasonably. While true that the Tribunal could have chosen to grant the postponement request, its failure to do that in circumstances where minds may have differed on the outcome of the postponement request did not amount to legal unreasonableness.
The Minister called in aid the decision of Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs[17] (“NAKX”). There, Lindgren J considered the sufficiency of medical certificates that his Honour held did not address the critical question, namely why the applicant’s medical condition would have prevented the applicant from travelling to court and participating effectively in the hearing. By parity of reasoning, in this case the RMH documents were equally unhelpful in that they also said nothing about why the applicant was unable to attend the hearing scheduled on
24 March 2015.
[17] [2003] FCA 1559.
On behalf of the applicant Mr Gilbert relied on the decision of Mortimer J in Kaur v Minister for Immigration and Border Protection[18] (“Kaur”). The facts of that case were very different to those of this case. However, the decision is utile to the general concept of the proper approach a tribunal should exhibit when a postponement request is made. Her honour said the following –
None of this is to suggest that the Act requires a tribunal to postpone or refrain from making a decision on the review every time an applicant suggests she or he wishes to provide further information, or cannot meet a deadline, or fails to appear. Rather, it is to recognise the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course it has taken, the Tribunal’s approach throughout the review, the applicant’s situation and conduct throughout the review and the other surrounding circumstances. The terms of
s 362B(2) expressly recognise the need for flexibility in the context of a particular review. While it cannot be suggested these factors were at work in the present exercise of power by the Tribunal, it would be wrong to construe the discretionary nature of s 362B as a statutory licence to the Tribunal to bring its review to an end merely because it has “had enough“, or because it wishes to visit on an applicant a negative consequence for failing to appear at a hearing.[19][18] [2014] FCA 915.
[19] [2014] FCA 915 at [83].
Importantly, her Honour expressly recognised that it was competent for the Tribunal to take into account, among the many matters it could and should take into account, the “applicant’s conduct throughout the review”. In this case, on 24 March 2015 the Tribunal seemed to have not placed reliance for its decision on a matter on which it could have placed reliance, according to Mortimer J in Kaur, namely the conduct of the applicant during the process of review. Had the Tribunal actually placed reliance upon the applicant’s conduct during the review, a fair construction of events was that immediately prior to every scheduled hearing, the applicant applied to postpone the hearing, citing medical reasons. In Kaur, Mortimer J held that the discretionary nature of s.362B of the Act (not precisely the same as s.426A although largely similar) did not confer a statutory licence on the Tribunal to bring an end to the review because it “had enough”. Yet in this case,
the Tribunal’s decision on whether to embark upon the hearing on
24 March 2015 was not based on the applicant’s conduct during the review. The decision was based on the sufficiency of the information in the two RMH documents.
Lest it be said that the foregoing is not an adequate treatment of the particulars subjoined to ground one, let me now turn to each of them.
In particular (a) of ground 1, the applicant contended that the Tribunal erred in failing to find that the medical and psychological material provided met the description recorded in the Tribunal’s letters of
30 January and 10 February 2015. I do not agree. Those two letters asked for information about the applicant’s medical conditions that rendered the applicant unable to attend the hearing on 24 March 2015 so as to give evidence. Taking first information of a psychological nature, in none of the material from Ms Khisty did Ms Khisty say in terms that the applicant’s psychological condition rendered him unable to give evidence on 24 March 2015. A plain reading of the various letters from Ms Khisty revealed that the comments in them were general and unspecific. For example, the psychologist spoke of the applicant’s headaches, migraines, sadness and feelings of hopelessness. If any of those matters bore upon the applicant’s ability or inability to give evidence, the psychologist did not say nor did Ms Khisty
say as much in the specific context of the hearing scheduled for
24 March 2015.
The correspondence from Dr Mian was similarly general and unspecific. In no way did any item of correspondence from Dr Mian approximate the detail required in a medical certificate, as held by Lindgren J in NAKX. But more importantly Dr Mian did not state in his letter of 18 February 2015 why any of the seven conditions he identified prevented the applicant from giving evidence on
24 March 2015.
Equally, the RMH material recorded various observations plus a patient history as at 9.46 a.m. on 20 March 2015. Yet nowhere in that material did RMH mention why the applicant was unable to give evidence on 24 March 2015.
I reject the contentions advanced in paragraph 1(a) of the applicant’s ground of review.
In paragraph 1(b) of ground 1 the applicant contended that the Tribunal’s decision to proceed was unreasonable having regard to the fact that the Tribunal knew that the applicant collapsed, had been taken by ambulance to RMH, was unable to contact his general practitioner on 23 March 2015 but hoped to do so on 24 March 2015 and was due to return to hospital for further testing in a week. That was the substance of paragraph 1(b) of the applicant’s grounds of review.
None of those matters addressed the key point of why any of those factors indicated that the applicant was unable to attend the hearing on 24 March 2015. The reason for the applicant’s collapse was not given. The fact that he was taken to a hospital, even in an ambulance, did not tell of why he could not attend the hearing on 24 March 2015. He may have been unable to contact his general practitioner on 23 March or even on 24 March but he had been seen by one or more emergency doctors while in RMH and nowhere was it said by RMH that whatever condition affected the applicant warranting his attendance at RMH, such condition (whatever it was) rendered him unable to attend the hearing on 24 March 2015. And the fact that the applicant may have been scheduled for further testing said nothing of what his medical condition was nor how any such medical condition rendered him unable to attend the hearing.
I do not agree that the issues identified in paragraph 1(b) told of legal unreasonableness when the Tribunal decided to hold a hearing on
24 March 2015.
In paragraph 1(c) of ground 1, the applicant contended that the Tribunal fell into jurisdictional error in failing to conclude that the RMH correspondence was sufficient to warrant the grant of an adjournment. I have already canvassed that contention. In my view the RMH material was not sufficient to warrant the grant of an adjournment. The Tribunal did not fall into jurisdictional error on this ground.
Ground 2
Under ground 2 the applicant subjoined four particulars to the core assertion, namely that the Tribunal’s decision to proceed under s.426A of the Act was affected by jurisdictional error because the Tribunal failed to take into account the nature and extent of the opportunity that the applicant would lose by not attending the hearing.
In written submissions, Mr Gilbert said that in view of the “fundamental place which s. 425 has with in the scheme of the Migration Act … the Tribunal must, before deciding to proceed under s. 426A, consider the potential impact which the denial of the right to appear and present arguments could have”.[20] Before going to the particular factor Mr Gilbert said was importantly raised in this case,
it was significant that no authority was cited in support of the proposition that the Tribunal must consider the impact of a denial of the right to appear before deciding to proceed under s.426A of the Act. Having regard to the principles of statutory construction espoused in Project Blue Sky Inc v Australian Broadcasting Authority,[21] s.426A of the Act was not to be construed in the manner urged by the applicant. In other words, s.426A of the Act was not to be construed in such a way that called for the Tribunal to “consider the potential impact which the denial of the right to appear and present arguments could have”.
[20] Written submissions filed 16 May 2017 at [23].
[21] [1998] HCA 28.
The “particular factor” that the applicant said the Tribunal should have taken into account related to the Tribunal being required, had there been a hearing, to put to the applicant any possible conclusion to which it may have come that was different to the delegate’s conclusion about the applicant’s employment at his father’s veterinary clinic. One need no more than express the “particular factor” to be struck by its hypothetical nature. First, the applicant was not given a hearing.
That was by operation of s.426A of the Act. Next, the Tribunal reached its own conclusion about the applicant having worked at his father’s veterinary clinic. The Tribunal concluded that the applicant had omitted that information in Part C of the application. The Tribunal concluded that the applicant had not in fact worked in his father’s veterinary clinic. Mr Gilbert submitted that such a conclusion stood at odds with the delegate’s finding that the applicant had been working at the applicant’s father’s veterinary clinic. Mr Gilbert contended that the Tribunal’s denial of the applicant to have a hearing meant that it was not possible for the Tribunal to put to the applicant any concerns it may have entertained about (what Mr Gilbert said was a matter “central to [the applicant’s] claims, in that virtually everything flowed from it”)[22] the applicant working at the father’s veterinary practice.
[22] Written submissions filed 16 May 2017 at [28].
In his submissions before me, Mr Gilbert relied on the High Court’s decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[23] to support the contention that “if the applicant had attended, it would have been necessary to alert the applicant to the different way in which the tribunal might approach it”.[24] But that is the very point. The applicant did not attend the hearing. The Tribunal relied on s.426A of the Act when proceeding without his evidence.
By reason of the applicant not attending, the Tribunal did not need to alert the applicant to the way (different to the delegate’s way) of approaching the evidence about the applicant’s work at his father’s veterinary clinic. There was no jurisdictional error in that approach.
[23] (2006) 228 CLR 152.
[24] Transcript of proceeding, 6 June 2017 at p.16.
To my mind, ground 2 of the applicant’s grounds of review was hypothetical in that it was premised on a state of affairs that did not come to pass. The fact was the applicant did not attend the hearing. Whatever may have happened, if he had attended, did not eventuate. The argument was clever and resourceful. Yet it had no foundation in fact.
I dismiss ground 2.
Ground 3
Under the third ground of review the applicant asserted that the Tribunal used the applicant’s failure to attend the hearing as a matter adverse to his credit. In his written submissions, Mr Gilbert contended that such an approach revealed jurisdictional error. He cited the Tribunal’s comments in nine paragraphs of its reasons, namely 49, 50, 51, 52, 53, 55, 56, 57 and 58. The particulars subjoined to paragraph 3 were different to the matters alleged in the nine paragraphs of the Tribunal’s reasons for decision. The particulars numbered six, not nine, three of the six of which were referrable to the RMH material not explaining why the applicant was unable to attend the Tribunal hearing.
The Minister contended that when properly read, the Tribunal’s reasons for decision indicated no more nor less than the fact that the Tribunal was not satisfied of the applicant’s claims on the material before it which had not been improved by reason of the fact that the applicant did not attend the hearing. Mr Brown submitted that was a position countenanced by the Full Court of the Federal Court in Kasupene v Minister for Immigration and Citizenship.[25] There, Flick J held that the Tribunal is not under a general duty to itself secure evidence which has not been otherwise adduced nor is it under a general duty to pursue submissions not otherwise advanced.
[25] [2008] FCA 1609 at [20].
In my view, when undertaking the merits review that the Tribunal performed, it correctly examined the claims that the applicant advanced. It did so afresh, consistent with its obligations in such cases as NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2).[26] By reason of the applicant’s absence from the hearing the Tribunal considered written but non-verbal material on which the applicant relied. The Tribunal made no error in doing that. Based on its consideration of that written material the Tribunal reached various conclusions drawn largely from the sufficiency of the material before the Tribunal. Having assessed the sufficiency of that material,
the Tribunal concluded that it was not satisfied that the applicant had demonstrated his entitlement to the visa he sought. That was a proper course for the Tribunal to adopt.
[26] (2004) 144 FCR 1.
There was no merit in ground 3.
Conclusion
In my judgment the applicant failed in this application for judicial review of the decision of the Tribunal.
I dismiss this proceeding and order the applicant to pay the Minister’s costs.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 15 June 2017
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