Buv17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 361
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BUV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 361
File number(s): MLG 853 of 2017 Judgment of: JUDGE EGAN Date of judgment: 13 May 2022 Catchwords: MIGRATION – whether Tribunal had unreasonably dismissed an application for review by reason of the non-appearance of the applicants – whether the Tribunal ought to have reinstated the matter – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss. 425 and 426. Cases cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408.
NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121.
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 11 May 2022 Date of hearing: 11 May 2022 Place: Brisbane Counsel for the Applicants: Mr H Lewis Solicitor for the Applicants: Russell Kennedy Lawyers Counsel for the First Respondent: Mr C Hibbard Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
MLG 853 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BUV17
First Applicant
BUW17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
13 MAY 2022
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The time for the bringing of the application for review be extended to 27 April 2017.
3.The Further Amended Application for Review filed on 8 October 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The first named applicant and the second named applicant are citizens of Sri Lanka who applied for Protection Visas on 18 August 2010. The first named applicant had first travelled to Australia on a tourist visa on 14 October 2009 for the purpose of visiting a son who was then living in Australia. The first named applicant returned to Sri Lanka on 1 January 2010. Both applicants subsequently arrived in Australia on 26 May 2010 as the holders of tourist visas.
The past visa application history of the applicants was set out in the decision of the delegate as follows: [1]
·On 18 August 2010, the applicant lodged an application for a Protection visa, listing his wife as his dependant. On 31 May 2011, the Protection visa application was refused.
·The applicant and his wife lodged an appeal with the Refugee Review Tribunal and the department decision was affirmed on 7 September 2011.
·The applicant and his wife lodged an appeal with the Federal Magistrates Court of Australia and the appeal was dismissed on 9 May 2012.
·The applicant and his wife lodged an appeal with the Federal Court of Australia and the appeal was dismissed on 6 September 2012.
·On 11 February 2014, the applicant lodged an application for a Protection visa (under s. 48A of the Migration Act 1958 (Cth) (the Act)), listing his wife as his dependant.
[1] Exhibit 1 – Court Book (CB) – p. 496.
On 5 May 2015, a delegate of the Minister refused the visa applications. [2]
[2] CB - p. 509.
An application for review of the decision of the delegate was received by the Administrative Appeals Tribunal (the Tribunal) on 1 June 2015.
On 13 January 2017, the Tribunal invited the applicants to attend the review hearing on 23 March 2017.
On 23 March 2017, the applicants did not attend the review hearing.
On 24 March 2017, the Tribunal dismissed the application for review and affirmed the decision of the delegate. That decision has been referred to in argument as the “dismissal decision”. It was made pursuant to the provisions of s. 426A(1) and (1A)(b) of the Act, which relevantly provided as follows:
“s. 426A Failure of applicant to appear before Tribunal
(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.
(1A) The Tribunal may:
…
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.”
On 6 April 2017, the first applicant’s representative sent an application for reinstatement of the review hearing, enclosing a number of medical reports with such application.
The Tribunal refused the application for reinstatement on 10 April 2017. That decision has been referred to in argument as the “confirmation decision”.
Grounds of Review
On 27 April 2017, the applicants filed an Originating Application for Review of each of the dismissal decision and the confirmation decision. At the time of the hearing before the Court, the applicants relied upon a Further Amended Application for Review filed on 8 October 2021, the grounds of which were as follows:
“1.The Tribunal’s decision to dismiss the application on 24 March 2017 constituted an unreasonable exercise of administrative discretion or a failure to consider relevant information and was thereby affected by jurisdictional error.
Particulars
Legal unreasonableness
1.1.The decision to dismiss the application on 24 March 2017 was legally unreasonable because:
a. The first applicant had a serious history of medical issues at the time that the Tribunal exercised its discretion to dismiss the protection visa application.
b. The Tribunal was aware that the first applicant had a history of serious medical issues due to the following facts:
i. The first applicant’s medical issues were referred to and acknowledged in the decision made by a delegate for the Minister dated 5 May 2015.
ii. The first applicant’s application for a protection visa had been conducted on the papers due to his medical issues.
iii. The Tribunal had been communicating with representatives for the first applicant about his medical issues prior to the hearing.
iv. There was a considerable amount of material in the Department file about the first applicant’s medical issues.
c. The applicant had been engaged with the Department and the Tribunal in his previous dealings with them so his failure to appear without making contact was unexpected, having regard to his history.
d. The Tribunal had the applicant’s legal representative’s contact details.
e. The Tribunal made no attempt to contact the applicant or his legal representatives before it proceeded to dismiss the application.
1.2.The Tribunal’s decision demonstrates that it gave excessive weight to the fact that the first applicant had been invited to present his case under s 425(1) of the Act.
1.3. As such, the decision to exercise the discretion to dismiss the application under s 426A(1A)(b) of the Act was legally unreasonable as it constituted a disproportionate exercise of administrative discretion.
Failure to consider relevant matters
1.4. Alternatively, the Tribunal failed to consider relevant matters when exercising its discretion under s 462A of the Migration Act, those matters being:
a. the contents of the delegate’s decision which related to the applicant’s medical issues;
b. the evidence of the extensive medical issues from which the first applicant had been suffering;
c. the effects those medical issues could have had on his capacity to attend his hearing; and
d. the first applicant’s previous process of engaging with the Department in writing due to those medical issues.
1.5. These matters were relevant to the decision to exercise its discretion.
1.6. In failing to consider those relevant matters, the Tribunal exceeded its authority or power and thereby committed jurisdictional error, in the way described by the High Court in Minister for Immigration v Yusuf [2001] HCA 30; 206 CLR 323 and Craig v South Australia [1995] HCA 58; 184 CLR 163.
2. The decision not to reinstate the application on 10 April 2017 constituted an unreasonable exercise of an administrative discretion or a failure to consider relevant information and was thereby affected by jurisdictional error.
Particulars
Legal unreasonableness
2.1.The Tribunal’s decision under s 426A(1C)(b) of the Act to confirm the decision to dismiss the application was legally unreasonable.
2.2. The Tribunal found that and there had been no contemporaneous or later evidence submitted to indicate that the first applicant was unfit to attend the scheduled hearing.
2.3. This finding was made despite the letter from the applicant’s psychologist having been written less than five months prior to the date of the Tribunal’s decision.
2.4.The other material provided also indicated that the applicant’s health conditions were serious and ongoing.
2.5. There was no material before the Tribunal to indicate that the first applicant’s health conditions had resolved or changed in any way.
2.6. The decision to dismiss the application constituted a disproportionate exercise of administrative discretion as described by the High Court in Minister for Immigration & Citizenship v Li [2013] HCA 18; 87 ALJR 61.
Failure to consider relevant matters
2.4.Alternatively, in exercising its discretion under s 426A(1C)(b), the Tribunal failed to consider the medical circumstances of the first applicant.
2.5.The Tribunal failed to consider those circumstances by failing to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of the application to reinstate the application as emphasised by the Full Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589.
2.6.In failing to consider the representations, the Tribunal exceeded its authority or power and thereby committed jurisdictional error.”
An application for the extension of time for the filing of the Originating Application for Review was not opposed by the lawyers for the first respondent.
Ground 1 was a claim that the Tribunal’s decision to dismiss the application constituted an unreasonable exercise of administrative discretion or a failure to consider relevant information, and was thereby affected by jurisdictional error.
When considering what constituted legal unreasonableness, Kiefel CJ in Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [10] – [11] said as follows:
“[10]In the joint judgment in Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11]Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”
At the time of the Tribunal hearing on 23 March 2017, the Tribunal was unaware as to why the applicants had not appeared at the specified time and place. The applicants had been given notice of the hearing by a s. 425 email sent on 13 January 2017, which was well in advance of the hearing. Further, no assertion had been made to the Tribunal that either of the applicants was unable to appear due to illness or infirmity, nor had any request been made for an adjournment of the hearing.
In circumstances where no reason had been given for the non-appearance of the applicants at the Tribunal hearing, the Tribunal clearly had power to dismiss the application for review pursuant to the provisions of s. 426A of the Act.
It was submitted on behalf of the applicants that because the first applicant’s alleged medical issues had been “referred to and acknowledged in the decision made by a delegate for the Minister dated 5 May 2015”, and because there had been some communication between the Tribunal and the applicants’ representatives before the hearing concerning some of the medical issues said to be suffered by the male applicant, [3] the Tribunal had notice of such medical claims, and ought to have attempted to contact the applicant or his representatives before dismissing the application.
[3] CB – p. 619 – reference to the male applicant having a “heart condition” on 23 November 2016.
First, the medical reports/opinions which were included in the material provided to the delegate predated the Tribunal hearing, and were general and non-specific on the question as to whether or not the male applicant was medically fit enough to appear at the scheduled Tribunal hearing. Second, the fact that a support person for the applicant had advised a member of the Tribunal on 23 November 2016 that the male applicant had a heart condition did not establish that the male applicant did in fact have a heart condition which prevented him some five months later from appearing before the Tribunal. No other medical report relied upon by the applicants addressed the relevant question as to whether the male applicant was or was not fit enough to attend the Tribunal hearing. The fact that the male applicant might have had a serious medical condition some years before the date of the Tribunal hearing was not determinative on the question as to the male applicant’s fitness to attend at the nominated time.
In NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [30] – [32], the Court (Ryan, French and Nicholson JJ), when considering the obligations of the Tribunal under s. 425 of the Act, said as follows:
“[30]The obligation of the Tribunal under s 425 of the Migration Act is to issue an invitation to the applicant for review to attend a hearing. That invitation must be real and meaningful and not just an empty gesture — Minister for Immigration and Multicultural and Indigenous Affairs v SCAR(2003) 198 ALR 293 at [33]; Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR at 188 [31]. In Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 at [44] the Full Court expressly rejected a submission that changes made to s 425 had diminished the applicant’s right to appear before the Tribunal to ‘a merely formal right to be invited … ’. Importantly also s 425 did not, at the time of the present appellant’s application to the Tribunal, exhaust the requirements of procedural fairness so far as they relate to the right to be heard. Put in that context the effect of the subsequent enactment of s 422B does not fall for consideration in this case.
[31] The Full Court in SCAR characterised the requirements of s 425 as ‘objective’. Their Honours said (at [37]):
The statutory obligation upon the tribunal to provide a “real and meaningful” invitation exists whether or not the tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill heath: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 140.
[32]In his judgment in NAHF Hely J found for the appellants on the basis of a want of procedural fairness rather than a breach of the obligation imposed by s 425. As to the latter, he followed the views expressed by Branson J in Minister for Immigration and Multicultural Affairs v Mohammad (2000) 101 FCR 434 and approved by Wilcox J in Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 and by Beaumont J in Sreeram v Minister for Immigration and Multicultural Affairs (2001) 106 FCR 578. In Mohammad, Branson J said of s 425 and the change in its language (at [43]):
This change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement.
In Mohammad the Tribunal’s invitation had been returned unclaimed. In Xiao the applicant’s request for an adjournment was not received by the Tribunal. Wilcox J in a passage in his judgment in Xiao, which was quoted with evident approval by Hely J, said (at [37]):
The Tribunal] issued an invitation that complied with the requirements of s 425A. That invitation remained open. Notwithstanding my finding that [the migration agent] sent the fax requesting a postponement, it cannot be said that the Tribunal] was wrong in finding that [the applicant] did not appear at the hearing. If, as I believe, s 425 imposes on the Tribunal only an obligation to issue an invitation, without any continuing obligation in relation to a reasonable opportunity to appear, that is the end of the matter; at least so far as this Court is concerned.”
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66]This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The Tribunal did not err when it made the dismissal decision. Ground 1 of the application is without merit and is dismissed.
Ground 2 of the Further Amended Application for Review was a claim that the confirmation decision was legally unreasonable, and that the matter ought to have been reinstated, because the decision was an unreasonable exercise of administrative discretion or a failure to consider relevant information.
At [4] – [9] inclusive of its reasons, the Tribunal’s basis for not reinstating the matter was set out as follows:
“[4]The applicants applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.
[5]On 7 April 2017, the applicants' agent made a written submission stating that the first named applicant (the applicant) was unable of his own accord to appear at the hearing. It stated that he was aged 68 and currently suffers both physical and mental issues. It is stated that the applicant suffered his first heart attack in 2012 and had operations in the past and had been admitted to hospital on numerous occasions throughout 2013-2015 regarding his heart condition. It is stated that he currently takes medicine for his condition and due to his age he is emotionally and physically frail. It is stated that he suffers from recurrent chest pain, a background of IHD, migraines, nausea, vomiting vertigo, heart problems, stress, anxiety and depression. It was stated that the applicant attending an interview in regards to his fear of persecution would undoubtedly result in a recurrence of these symptoms and would result in negative health consequences and that therefore the applicant could not attend on the date of his hearing.
[6]The agent has submitted that the applicant was willing to prepare for and attend the hearing and he attended an appointment at the agent's offices on 4 January 2017. It is stated they could visibly see the distress it was causing him and that he had trouble breathing and was distressed even after they chose to cease preparing for the interview. It is stated that the visit to his office proved that he is no shape to attend the interview and give oral evidence for his claims. It was submitted that they would like the opportunity to provide written submissions outlining arguments for him. The agent submitted a number of documents relating to the applicants health. These are:
•A discharge summary from Monash Heart Southern Health, dated 13 October 2012;
•A letter from the applicant’s cardiologist, dated 16 October 20212;
•A radiology report from the Royal Melbourne Hospital, dated 31 August 2013;
•A General Practitioner letter from the Royal Melbourne Hospital in relation to his presentation at the Emergency Department on 31 August 2013;
•A letter from the Royal Melbourne hospital to the applicant confirming his appointment at the Neurology clinic, dated 1 June 2015;
•A discharge summary from the Royal Melbourne Hospital, dated 27 October 2015;
•A Clinical Information Request/Response Sheet Fax Cover Sheet from the Royal Melbourne Hospital, dated 6 November 2015;
•Photographs of the applicant whilst in hospital (undated);
•A letter from the applicant’s doctor at the Brunswick Community Medical Centre re the applicant’s mental and physical health problems, date 17 November 2015;
•A letter from the applicant’s psychologist re the applicant’s mental health, dated 21 December 2016.
[7]I have considered carefully all of the medical evidence submitted and I accept that the applicant has in the past had health issues (particularly relating to his heart and mental state). However, all of this evidence significantly predates the date of the hearing and there has been no contemporaneous or later evidence submitted to indicate that the applicant was unfit to attend the scheduled hearing on 23 March 2017. The most recent evidence from the applicant's psychologist states that he urges that the applicant's emotional and medical health be taken into account with respect to the stress that a bid for residency process might further exacerbate; however it does not opine that he is or would be unfit to attend a Tribunal hearing.
[8]I have taken into account that the applicants were invited to the hearing by email on 13 January 2017 well in advance of the date of the hearing and that they were represented and yet no evidence of the applicant's unfitness to attend a hearing was submitted or requests for postponement were made to the Tribunal despite the applicant being apparently unable to be interviewed by his agents on 4 January 2017. On the evidence before me I do not accept that the applicant was unfit (mentally and/or physically) to attend the hearing as has been claimed. Further, there is nothing before me to indicate that the second named applicant was unable or unfit to attend the hearing.
[9]The decision to dismiss the application is confirmed. In these circumstances, the decisions under review are taken to be affirmed.”
On 7 April 2017, the applicant’s representative wrote to the Tribunal within time and sought reinstatement of the matter. Though the representative in such letter stated that evidence would be provided which demonstrated that the applicant was unable of his own accord to appear at the hearing, no such evidence was ever provided. Rather, reliance was placed upon the general and non-specific medical reports earlier referred to which did not go to the question as to whether or not the male applicant could have appeared before the Tribunal at the time of the Tribunal hearing.
The Court accepts the submissions made on behalf of the first respondent that it was open to the Tribunal to make the confirmation decision in circumstances where no good reason had been advanced as to why the male applicant had not been able to appear before the Tribunal at the hearing. It could not be said that no other rational, logical and reasonable decision maker could not have arrived at the same decision as did the Tribunal. There is no merit to Ground 2.
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Further Amended Application for Review is without merit and it dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 13 May 2022
0
14
0