Awt17 v Minister for Immigration
[2018] FCCA 2055
•25 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWT17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2055 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – oral application to transfer the matter to the Brisbane registry – application refused – oral application for an adjournment – adjournment refused – application for extension of time of one day – granted by consent – whether the Tribunal made a jurisdictional error when it refused to adjourn the proceeding on the basis of a medical certificate saying the applicant was unfit for work – whether the Tribunal was empowered to determine the matter under s.426A without giving the applicant a hearing. |
| Legislation: Migration Act 1958, ss.425, 426A |
| Cases cited: BZADA v Minister for Immigration and Citizenship [2013] FCA 1062 |
| Applicant: | AWT17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 421 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 25 July 2018 |
| Date of last submission: | 25 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 25 July 2018 |
REPRESENTATION
| Advocate for the applicant: | In person by telephone |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Justin Lipinsky |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Clayton Utz Lawyers |
ORDER BY CONSENT
The time for the applicant to file his application for review be extended to 2 March 2017.
ORDERS BY THE COURT
The applicant’s oral application for transfer of the proceeding to Brisbane be refused.
The applicant’s oral application for an adjournment of the proceeding be refused.
The application filed on 2 March 2017 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 421 of 2017
| AWT17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
(revised from the transcript)[1]
The applicant’s oral application for a transfer to Brisbane
[1] Reasons for judgment were given orally on 25 July 2018. The applicant requested the reasons for judgment on 25 July 2018. Chambers ordered a transcript of the reasons for judgment on 25 July 2018. Auscript provided the transcript of the reasons for judgment on 26 July 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 27 July 2018.
The applicant in this migration matter indicated in an email to chambers yesterday, 24 July 2018, that he wanted this matter to be transferred to the Brisbane registry of this court.
The substantive application is for review of a decision of the Administrative Appeals Tribunal. The substantive application was filed on 2 March 2017. It was filed by the applicant in person without any indication that there was a lawyer or migration agent assisting him.
The applicant gave his address in the substantive application as an address in Queensland. The applicant, between the date of filing on 2 March 2017 and yesterday, did not indicate at any time that he wanted the matter to be transferred to Brisbane. When asked in court this morning why he had filed in Melbourne when he was living in Brisbane, the applicant said he was unable to find an agent in Queensland who would assist him. He said that he was able to find an agent in Melbourne who would assist him. When it was pointed out that the application does not indicate that a migration agent was acting, the applicant told the court that one of his friends helped him.
When asked why he did not file in Queensland, the applicant said he did not have time to get to Queensland, because the deadline was almost up. The reality is that the applicant, according to his own application, was living in Queensland at the time he filed his application. Moreover, people now customarily file electronically and can do so from anywhere.
When the court asked the applicant what difference it would make if the matter were transferred to Brisbane, the applicant said that a doctor had advised him that he was not permitted to travel because of his high blood pressure. The applicant also said it would be easier for him to manage the matter in Brisbane.
That does not explain why the applicant filed in Melbourne in the first place, and it does not deal with the fact that the court is able to conduct the hearing by telephone. Indeed, the hearing this morning has occurred with the applicant appearing by telephone.
The applicant then said that he was not mentally in a state to continue the conversation today. However, he has provided no medical evidence to that effect. The applicant told the court in an email sent last night, 24 July 2018, that he had been admitted to hospital. When asked this morning to say exactly where he is, he said he was in the car park outside the Emergency section of the Mater Hospital in Brisbane. Being in the car park outside a hospital is obviously not the same as being admitted to hospital.
The only evidence before the court as to the applicant’s health is some medical certificates saying that he has a respiratory tract infection and he is unfit for work. I do not consider that this means that the applicant is unfit to participate in a hearing by telephone today.
I do not consider that the applicant has advanced a sufficient reason for the matter to be transferred to the Brisbane registry.
The applicant’s oral application for an adjournment
The applicant then made an oral application for an adjournment of the application to review the decision of the Tribunal. The applicant said that he wanted an adjournment to enable him to obtain legal assistance.
The application was filed on 2 March 2017. When asked why the applicant had not obtained legal assistance earlier, the applicant said he assumed the matter would be transferred to Brisbane. An application to that effect has already been dismissed. When asked whether he had enough money to get a lawyer, the applicant said that he would get some money from his parents in Sri Lanka.
The first respondent opposed the application for an adjournment. The first respondent said that his solicitors sent to the applicant a letter dated 16 March 2017 (exhibit 1). That was about two weeks after the application was filed. The letter said, on the first page, under a heading Legal representation, that proceedings such as this involve very complex legal issues. The letter said the Minister’s solicitors strongly suggested that the applicant seek legal assistance as soon as possible. The letter then gave the contact details for a number of services that provide legal assistance in matters such as this in Victoria, even though the letter was addressed to the applicant at his address stated on his application, being an address in Queensland.
The Minister also said that the application has no merit and it should not be adjourned for that reason. However, as we know, with the assistance of a lawyer, apparently hopeless cases can be found to have an arguable point.
Nevertheless, it seems to me that the applicant has had an ample opportunity to obtain legal assistance in this case. The application was filed on 2 March 2017, which is about 16 months ago. The applicant said that he can get sufficient money to pay a lawyer from his parents in Sri Lanka. The applicant’s explanation for not having obtained a lawyer previously, being that he assumed the matter would be transferred to Brisbane, is inadequate, particularly as the applicant chose to file in Melbourne in the first place.
I do not consider that it is an appropriate to grant an adjournment in this case.
The application for review
The substantive application is to review a decision of the Tribunal. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant applied for the visa on 5 November 2014. The Minister’s delegate refused the visa on 2 June 2015. The applicant applied to the Tribunal for review of the delegate’s decision on 2 July 2015. The Tribunal, by a letter dated 13 December 2016, invited the applicant to a hearing on 19 January 2017.
The applicant asked for an adjournment of the Tribunal hearing by email on 18 January 2017. The Tribunal replied by email and telephone message to the effect that the adjournment request would be refused in the absence of a medical certificate stating that the applicant was unfit to attend the hearing. On 19 January 2017, the applicant gave to the Tribunal a medical certificate saying that he was unfit for work on 19 January 2017.
Later on that same day, the Tribunal advised the applicant that it would postpone the hearing to 25 January 2017 at 11am Queensland time. The Tribunal’s letter specifically said, in bold:
Any future postponement requests will need to be supported by a medical certificate that specifically states that you are unfit to attend a Tribunal hearing. A medical certificate which states that you are unfit for work will not be sufficient.
On 24 January 2017, the applicant again requested an adjournment of the Tribunal hearing. The applicant provided no medical evidence in support of that application. The Tribunal notified the applicant by email on 24 January 2017 that the application for an adjournment had been refused and that the matter remained listed on 25 January 2017 at 11am.
The applicant did not attend the hearing on 25 January 2017 at 11am. However, at 12:45 pm on 25 January 2017, the applicant faxed a medical certificate to the Tribunal. It stated that he had a medical condition and would be unfit for work on 25 January 2017.
The Tribunal proceeded to make its decision, which is dated 25 January 2017 at 2:12 pm. The Tribunal’s reasons set out the applicant’s various requests for adjournments. The Tribunal decided to make its decision on the review without giving the applicant a further opportunity to appear before it.
The Tribunal noted the decision of the Federal Court in BZADA v Minister for Immigration and Citizenship [2013] FCA 1062, where Rangiah J held at paragraph 21 as follows:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
In light of that decision, the Tribunal said it was unable to be satisfied that:
a)the applicant had received death threats in Sri Lanka in 2014;
b)the applicant was detained, imprisoned and harmed by the Sri Lankan police in 1989 and 2008;
c)the applicant held any particular opinion about the war against the current Sri Lankan government (and noted that the civil war ended in 2009);
d)the applicant would be detained if he returned to Sri Lanka;
e)the applicant was at risk of harm in the reasonably foreseeable future from the Sri Lankan government, the police, a Sinhala fundamentalist group or anyone else in Sri Lanka; or
f)the applicant faced a real chance of significant harm if he were to return to Sri Lanka.
Consequently, the Tribunal affirmed the delegate’s decision.
The applicant was one day late in filing his application in this court. However, the Minister consented to an extension of time.
The applicant was not formally represented by a lawyer in the proceedings before this court. However, the grounds in his application have the flavour of having been drafted by a lawyer.
The first ground in the application filed one 2 March 2017 (“the application”) is:
The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it did not allow the request for postponement on the medical condition of the applicant.
The Tribunal gave one adjournment from 19 January 2017 to 25 January 2017 on the basis of a medical certificate saying that the applicant was unfit for work. The Tribunal refused to grant another adjournment on the basis that a further medical certificate said that the applicant was unfit for work, in circumstances where the Tribunal had spelt out that such a certificate would be insufficient and that any further requests for an adjournment should be supported by medical evidence showing that the applicant was unable to attend a Tribunal hearing.
In the circumstance of the applicant failing to appear at a hearing, the Tribunal was entitled to proceed under s.426A of the Migration Act 1958 (“the Act”). The Tribunal could have either decided the case on the merits in the absence of the applicant or dismissed the application for non-appearance. In the present case, the Tribunal decided to determine the review on the merits in the absence of the applicant. It seems to me that the Tribunal’s actions in this regard were reasonable in a legal sense, in circumstances where the Tribunal had spelt out to the applicant that no further postponement would be granted in the absence of medical evidence indicating that the applicant was unfit to attend a Tribunal hearing. Ground 1 is not made out.
Ground 2 in the application is:
The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to recognize and accept the words in the medical certificate “unfit to work” as then the Applicant was unfit to attend the tribunal which should have been a good reason for being granted an adjournment.
There is ample Federal Court authority that a medical certificate saying that a person is unfit to attend work is not an adequate explanation for a person not attending a hearing. Those authorities include NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 and NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17. Ground 2 is not made out.
Ground 3 in the application is:
That the Administrative Appeals Tribunal fell into jurisdictional error when it breached section 425(1) of the Migration Act 1958 when it failed to allow the Applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review, in particular the death threats the applicant received in Sri Lanka, his imprisonment and harmed by Sri Lankan police and the applicant's political opinion about the “war against the current Sri Lankan government”.
The Tribunal was entitled to proceed under s.426A of the Act. It follows that there is no substance to ground 3 of the application.
Ground 4 in the application is:
The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it did not take into account relevant matters and/or information and/or evidence as required by law;
The applicant did not give any particulars of anything that the Tribunal failed to take into account. The Tribunal, in fact, took into account what the applicant had said in his visa application. However, the applicant did not attend the Tribunal hearing to elaborate on those matters. In those circumstances, the Tribunal was not persuaded by the applicant’s claims. I have been unable to identify anything that the Tribunal should have taken into account but which it failed to take into account. Ground 4 is not made out.
Ground 5 in the application is:
The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it misapplied the facts, law, regulations, policy and guidelines in deciding that the Applicants application.
The applicant did not provide any particulars of this ground. I have been unable to discern any misapplication of any facts, law, regulations, policy or guidelines in this matter. Consequently, this ground is not made out.
Ground 6 is:
Such further and/or other and/or additional grounds as the Applicant may submit in due course upon receiving full and proper legal advice and opinion in the matter;
The applicant did not make any additional submissions orally to the court today or in the form of written submissions. Ground 6, as it stands, is not a proper ground of review.
As none of the applicant’s grounds of review has been made out, and as I have been unable to discern any jurisdictional error in the Tribunal’s reasons for decision or decision-making process, the application filed on 2 March 2017 will be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 27 July 2018
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