Chen v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 413
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 413
File number(s): ADG 420 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 19 May 2023 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of China – application for Student Temporary (class TU) Student (subclass 500) visa – where failure to pursue review of decision by the Administrative Appeals Tribunal to dismiss application for non-appearance – whether failure to take into account certificate from pharmacist – where pharmacist’s certificate is a bare certificate – whether legal unreasonableness – whether jurisdictional error
PRACTICE AND PROCEDURE – Pharmacist’s certificate in support of postponement of hearing before the Administrative Appeals Tribunal – where bare certificate – observations on inadequacy of certificate provided
Legislation: Fair Work Act 2009 (Cth) ss 97(a), 107(3)(a)
Migration Act 1958 (Cth) ss 357A, 360, 360A, 362B, 362C, 368, 368A, 379A, 379C, 474, 476, 477
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815
AYT16 v Minister for Immigration & Anor [2016] FCCA 2733
AYT16 v Minister for Immigration and Border Protection [2017] FCA 252
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 109; (2019) 373 ALR 196
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 FLR 173
CEJ15 v Minister for Immigration & Anor [2019] FCCA 1038
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gill v Minister for Immigration and Border Protection & Anor [2018] HCATrans 199
Luck v Chief Executive Officer of Centrelink [2015] FCFAC 75
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 95 ALJR 54; (2020) 385 ALR 212
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1; (2018) 75 AAR 434
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALRJ 679; (2001) 178 ALR 421; (2001) 65 ALD 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425
Singh & Anor v Minister for Immigration & Anor [2016] FCCA 2888
Singh v Minister for Home Affairs [2018] FCA 1927
Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; (2020) 281 FCR 578
Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25
Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submission: 26 October 2022 Date of hearing: 26 October 2022 Place: Perth Applicants: First applicant in person via CISCO Webex with the assistance of an interpreter Counsel for the First Respondent: Ms C Calabrese Solicitor for the First Respondent: The Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 420 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHUYIN CHEN
First Applicant
YANG LI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
19 May 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed on 4 November 2019 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 LUCEV
INTRODUCTION
Before the Court is an application for judicial review (“Judicial Review Application”) filed on 4 November 2019 by the first applicant, Ms Shuyin Chen (“Ms Chen”), pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Confirmation Decision" and “Tribunal” respectively) made on 14 October 2019. The Tribunal Confirmation Decision confirmed an earlier decision by the Tribunal (“Tribunal Dismissal Decision”) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) not to grant Ms Chen a Student Temporary (class TU) Student (subclass 500) visa (“Student Visa”).
The other applicant in this Judicial Review Application is Ms Chen’s husband. For convenience the applicants will be referred to by reference to Ms Chen only, the grant of a visa to Ms Chen’s husband being dependent upon the grant or refusal of a Student Visa to Ms Chen.
The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Confirmation Decision appears at CB 130-131, the Tribunal Dismissal Decision appears at CB 125-126.
Ms Chen filed an affidavit (“Chen Affidavit”) together with the Judicial Review Application. An affidavit affirmed by Mr Cameron Retallick (“Retallick Affidavit”) was filed on behalf of the Minister on 24 May 2022.
BACKGROUND
The relevant background to the matter is as follows:
(a)Ms Chen is a citizen of China who first arrived in Australia on 15 February 2005 as the holder of a TU571 student visa, a visa granted on her enrolment in high school in Australia: CB 71;
(b)Ms Chen was subsequently granted a further TU571 visa to enable her to complete high school and Ms Chen thereafter held the following further student visas:
(i)TU573 granted on 19 April 2007;
(ii)TU572 granted on 27 May 2010;
(iii)TU572 granted on 12 April 2011;
(iv)TU573 granted on 6 October 2011;
(v)TU573 granted on 2 October 2013;
(vi)TU573 granted on 28 April 2014;
(vii)TU573 granted on 6 October 2015;
(viii)TU573 granted on 19 February 2016; and
(ix)TU500 granted on 9 September 2016: CB 71;
(c)as detailed in the Provider Registration and International Student Management System Ms Chen’s record demonstrates she has completed or attended the following courses of study:
(i)Secondary School, 2005-2006;
(ii)Diploma of International Business, 2009-2011;
(iii)Bachelor of Business, 2013; and
(iv)Master of Professional Accounting, 2015-2017: CB 71;
(d)on 13 March 2017 Ms Chen applied for the Student Visa to study a Diploma of Leadership and Management with a prospective visa grant until 23 March 2018: CB 71;
(e)on 8 June 2017 the Delegate’s Decision was to refuse to grant the Student Visa: CB 69-76, on the basis that Ms Chen did not meet the criteria in cl 500.212(a) of the Migration Regulations 1994 (Cth) in that the Delegate was not satisfied that Ms Chen intended genuinely to stay temporarily in Australia: CB 74;
(f)on 23 June 2017 Ms Chen applied to the Tribunal for review of the Delegate’s Decision: CB 77-78;
(g)on 14 August 2019 the Tribunal wrote to Ms Chen’s migration agent inviting Ms Chen to attend a hearing (“Tribunal Hearing” and “Tribunal Hearing Invitation” respectively) on 27 September 2019: CB 84-90;
(h)on 19 August 2019 Ms Chen’s migration agent returned the completed Tribunal Hearing Invitation response to the Tribunal stating that Ms Chen would attend the Tribunal Hearing with her husband, but not her migration agent: CB 91-95;
(i)on the morning of 27 September 2019:
(i)Ms Chen contacted the Tribunal at 9.42am to advise that she could not attend the Tribunal Hearing “as she was unwell and was going to the doctor”. Ms Chen was asked by a Tribunal staff member that she provide a written request for postponement of the Tribunal Hearing and “a doctor’s certificate” before the Tribunal Hearing at 10:30am which Ms Chen said she would do. Ms Chen was told that the Tribunal would be advised that she would not be attending: CB 115;
(ii)the Tribunal contacted Ms Chen’s migration agent who stated he did not know if Ms Chen was attending the Tribunal Hearing as he had not spoken to her, and he advised that he would try and contact Ms Chen and advise the Tribunal as soon as possible: CB 115;
(iii)Ms Chen then emailed the Tribunal with a “Certificate for Personal Leave” completed by a pharmacist (“Pharmacist’s Certificate”): CB 114, which was relevantly in the following terms:
CERTIFICATE FOR PERSONAL LEAVE
This certificate is to certify that on 27/09/19, Shuyin Chen 23/06/19 of [address omitted], adelaide SA 5000
presented at this pharmacy.
In my professional opinion, based on the information provided to me at the time, they will be unfit to attend work for the period commencing 27/09/19 until 27/09/19 inclusive.
This opinion was provided in my capacity as a pharmacist for the purpose of informing the employer of the named person that they are unfit for work due to illness/injury (cross one out)
This certificate was provided in accordance with the evidence requirements under section 107(3) of the Fair Work Act 2009 by:
Shao Shin Chan (PHA: [number omitted])
[pharmacy stamp]
Central Market Adelaide
Signed: [signature omitted] Date: 27/09/19
(iv)an email from the Tribunal was sent to Ms Chen’s migration agent by the Tribunal at 10.47am which noted that:
(A)Ms Chen had contacted the Tribunal that morning regarding the Tribunal Hearing at 10.30am and that she had advised that she was unwell and would not be able to attend;
(B)Ms Chen had stated that she was attending the doctor that morning and would provide a medical certificate before the commencement of the Tribunal Hearing to support her request for postponement;
(C)the Tribunal Hearing could proceed as a teleconference if Ms Chen was unable to attend in person;
(D)Ms Chen’s migration agent had advised the Tribunal staff member that he had not spoken to Ms Chen and that he would attempt to contact her;
(E)if the Tribunal was to consider a postponement due to illness the Tribunal advised that a detailed medical certificate which clearly states that Ms Chen was too sick to attend the Tribunal Hearing in person, and not just saying that Ms Chen was ill, was required; and
(F)as Ms Chen’s migration agent had been advised on the telephone, it should not be assumed that the Tribunal Hearing would be postponed and unless the Tribunal agreed to the postponement, the Tribunal Hearing would proceed as scheduled: CB 120, and
(v)the Tribunal Dismissal Decision dismissing Ms Chen’s review application was made on the basis that Ms Chen failed to attend the Tribunal Hearing: CB 125-126, and was sent to Ms Chen’s migration agent by email at 3.55pm: CB121-124;
(j)the Tribunal Dismissal Decision, made at 12.12pm on 27 September 2019: CB 126, noted that:
(i)Ms Chen was invited to appear at the Tribunal Hearing and that the Tribunal Hearing Invitation stated that if Ms Chen did not attend the Tribunal Hearing, the Tribunal may dismiss the review application without any further consideration of the application or the information before it: CB 125 at [1];
(ii)the Tribunal Hearing Invitation was sent to Ms Chen’s migration agent by email dated 14 August 2019: CB 125 at [2];
(iii)Ms Chen’s migration agent sent the Tribunal an email on 19 August 2019 attaching the Tribunal Hearing Invitation and advising that Ms Chen would require the assistance of a Mandarin interpreter and that both Ms Chen and her husband would attend: CB 125 at [3];
(iv)at about 9:40am on the morning of the Tribunal Hearing Ms Chen contacted the Tribunal to say she could not attend the hearing due to illness, and that she was asked to provide a written request to postpone the Tribunal Hearing and a medical certificate in support of her request prior to the start of the Tribunal Hearing at 10:30am, which Ms Chen said she would do: CB 125 at [4];
(v)a Tribunal staff member later attempted to contact Ms Chen by telephone to offer a telephone hearing but Ms Chen’s telephone did not accept incoming calls: CB 125 at [5];
(vi)the Tribunal then contacted Ms Chen’s migration agent by telephone and Ms Chen’s migration agent was told that Ms Chen should not assume that the review application would be postponed and Ms Chen’s migration agent was offered the option for the Tribunal Hearing to proceed by telephone. The Tribunal advised Ms Chen’s migration agent that a medical certificate simply stating that Ms Chen is unwell may not suffice to secure a postponement and that any medical certificate provided should be a detailed medical certificate that clearly states that Ms Chen is too sick to attend the Tribunal Hearing and not merely saying that she is ill: CB 125 at [6];
(vii)under cover of an email of 27 September 2019 at 10:23am the Tribunal received the Pharmacist’s Certificate “that was prepared for the stated purpose of “… informing the employer of the named person that they are unfit for work due to illness/injury (cross one out)””: CB 126 at [7] (and the Court notes that neither option was crossed out);
(viii)the Pharmacist’s Certificate does not indicate:
(A)whether Ms Chen was suffering from an illness or from an injury, and only says that Ms Chen would be unfit to attend work for one day being the day of the Tribunal Hearing: CB 126 at [8]; and
(B)what activities Ms Chen was incapable of performing, and whether she was capable of attending the Tribunal Hearing, and if not whether she was capable of attending the Tribunal Hearing by telephone: CB 126 at [9];
(ix)Ms Chen did not appear before the Tribunal on the day and at the scheduled time and place of the Tribunal Hearing, and that having reviewed the Tribunal file, the Tribunal was satisfied that Ms Chen was properly invited to the Tribunal Hearing in accordance with s 379A(5) of the Migration Act and that the Tribunal Hearing Invitation had not been returned to sender: CB 126 at [10];
(x)no satisfactory reason had been given for Ms Chen’s non-appearance: CB 126 at [11]; and
(xi)in the circumstances, the Tribunal decided to dismiss the review application without further consideration of that application or the information before the Tribunal: CB 126 at [12];
(k)following the Tribunal Dismissal Decision on 27 September 2019 at 3.55pm the Tribunal emailed Ms Chen’s migration agent attaching the Tribunal Dismissal Decision, and advising that Ms Chen may apply to the Tribunal, in writing, for reinstatement of the review application by 11 October 2019: CB 121-126, and specifically that (emphasis in original):
You may apply to us, in writing, for reinstatment of the application by 11 October 2019. 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.
(l)on 15 October 2019 Ms Chen’s migration agent was notified by the Tribunal of the Tribunal Confirmation Decision made on 14 October 2019: CB 128-131;
(m)in the Tribunal Confirmation Decision the Tribunal:
(i)set out the background to the Tribunal Confirmation Decision: CB 131 at [1];
(ii)set out the circumstances that saw the Tribunal make the Tribunal Dismissal Decision: CB 131 at [2];
(iii)set out the circumstances of the notification of the Tribunal Dismissal Decision: CB 131 at [3];
(iv)noted that Ms Chen had not applied for reinstatement of the review application within the 14 days from the date of the Tribunal Dismissal Decision and that as a consequence the Tribunal must “confirm” the Tribunal Dismissal Decision, and be taken to have affirmed the Delegate’s Decision: CB 131 at [4]-[5].
JUDICIAL REVIEW APPLICATION
Litigation History
The Judicial Review Application was filed in the Adelaide Registry of this Court (then the Federal Circuit Court) on 4 November 2019. Given that more than three years have passed since then it is appropriate to set out the litigation history of the matter, which is as follows:
(a)the matter was listed for a first court date on 20 December 2019 before a Registrar in the Adelaide Registry of the Court;
(b)on 19 December 2019 a Registrar made consent orders, including orders that the matter be “listed” for both a final hearing on a date to be advised and a directions hearing on a date to be advised;
(c)save for the filing by the Minister of a Court Book in January 2020, nothing further happened on the matter until May 2022 when it was allocated to the docket of the presiding Judge, in the Perth Registry of the Court;
(d)on 19 May 2022 the parties were notified of a directions hearing on 25 May 2022 before the presiding Judge;
(e)on 25 May 2022 the parties attended the directions hearing and orders (“May 2022 Orders”), including the following orders, were made:
(i)Ms Chen to file and serve any amended Judicial Review Application, further affidavits and an outline of submissions by 27 September 2022;
(ii)the Minister to file and serve any amended response, affidavits in reply, and an outline of submissions by 10 October 2022; and
(iii)for a final hearing by video link on 26 October 2022 at 9.00am AWST/11.30am ACDST before the presiding Judge;
(f)Ms Chen did not file any documents pursuant to the May 2022 Orders; and
(g)on 6 October 2022 the Minister filed written submissions pursuant to the May 2022 Orders.
Decision sought to be reviewed
The Judicial Review Application expressly sets out that it is the Tribunal Confirmation Decision that is sought to be reviewed, it being the decision made on “14-Oct-2019”: CB 3; Judicial Review Application, p 2. Further, Ms Chen would need an extension of time to review the Tribunal Dismissal Decision, and the Judicial Review Application expressly provides that no order for an extension of time is sought: CB 3; Judicial Review Application, p 2.
Grounds
The grounds of the Judicial Review Application are as follows (reproduced unaltered):
1.Pursuant to the Precedent cases of Li v Minister for Immigration & Anor [2017] FCCA 2326 (“Li”) and Lim v Minister for Immigration & Anor [2018] FCCA 496, I make this application the Federal Circuit Court, hoping the Court to consider the legal unreasonableness of the Tribunal’s decision under s 368B(1A)(b) ( the dismissal decision ) of the migration act 1958, and in turn, considering the decision made by the second respondent under s 362 B(1C) (b) is legally invalid.
I believe the Tribunal did not act in compliance with s357A(3) of the Migration act , 1958 by failing to provide me with clear instruction about what the medical evidence was to be deemed sufficient when it comes to the request for the adjournment of the hearing.
The second respondent’s violation of the relevant procedural fairness provision resulted me in being deprived of the opportunity to appear before the Tribunal to give evidence and present argument.
Particulars
2.I was invited to attend the hearing scheduled by the Tribunal on 27-Sep-2019; Due to stress or/and changeable weather, I developed a medical condition the night before. I phoned the Tribunal, informing the second respondent that I was not able to attend the Hearing because of illness on 27-Sep-2019 in the morning around 9.40.
Over the phone, I was advised by a member of the Tribunal Registry, that I had to provide it with a medical certificate plus a written request to rescheduling the hearing, which I did. My husband Yang Li sent through my medical certificate via email at 10: 22 am (A copy of the cover of the email with the medical certificate attached is enclosed in annexure 1(a) and 1(b))
It has to be pointed out that the Tribunal, at that stage, did not make me aware of what needed to be specified in the medical certificate nor did the Tribunal warn or remind me of the fact if the certificate to be provided were not accepted, the Presiding Member may refuse to postpone the hearing and proceed the hearing by dismissing my application.
Following the conservation with the officer of the Tribunal Registry, I went back to sleep as I was having sensations of light headedness and nausea caused by the illness.
Unexpectedly, two and half hours later, the Tribunal dismissed my application at 12: 12pm. (A copy of the Tribunal decision to dismiss my application is attached in annexure 2(a) and 2(b)).
I conceded, that the Tribunal, under s3 59(2) of the Migration Act, did make attempt to contact me about the insufficiency of the medical certificate tendered and was offering me a chance of participating in the hearing via telephone, shortly after the initial conversation. but unfortunately, by the time when I leant this, the Tribunal had already dismissed my application. (A copy of the cover of the email that I received from Hang Chen; my migration agent is enclosed in Annexure 3 (a) 3(b)).
I assert that the Tribunal should have given me clear direction about how a medical certificate would be regarded sufficient for postponement of a hearing at the point where I made initial contact with the Tribunal. Failing to have done so constitutes a judicial error, and as such, the dismissal decision under s 368B(1A) (b) is legally unreasonable and affirming decision under s362 B (1C) (b) invalid.
Retallick Affidavit
In the Retallick Affidavit Mr Retallick said that he had been informed by an officer of the Minister’s Department that:
(a)Ms Chen departed Australia on 16 October 2020 and has not returned to Australia since [at 2.1];
(b)the Bridging visa previously held Ms Chen ceased on 9 October 2021 [at 2.2];
(c)Ms Chen is recorded as being offshore (that is, not in Australia): at [2.3]; and
(d)Ms Chen had not been granted any further visa, and was not currently the holder of a visa which would allow her to return lawfully to Australia: [at 4].
Ms Chen’s submissions
Ms Chen did not file written submissions or other documents in support of her Judicial Review Application: see [6(f)] above, save for the Chen Affidavit which replicates the content of the Judicial Review Application.
Ms Chen made oral submissions at hearing: Transcript, pp 3-6, submitting that:
(a)on the morning of the Tribunal Hearing she felt a stomach ache, so she called the Tribunal at 9.40am and that during that telephone call a Tribunal staffer said “You need a medical certificate of your stomach ache”: Transcript, p 3;
(b)she submitted the Pharmacist’s Certificate “of her stomach ache at 10.22am on that day”: Transcript, p 3;
(c)the Tribunal staffer’s instructions were very brief during the telephone call and the Tribunal staff member did not ask for a detailed specific medical certificate to define the reasons why she could not attend the Tribunal Hearing: Transcript, p 3;
(d)after she submitted the Pharmacist’s Certificate at 10.22am she took some medicine and went to bed to rest. Her husband helped her to submit the Pharmacist’s Certificate and then around noon, she received two emails: Transcript, p 3;
(e)one of the emails was an email requesting a more detailed, specific medical certificate listing the reason why she could not attend the Tribunal Hearing, and that this email was sent after the Tribunal Hearing time at 10.30am: Transcript, p 3;
(f)she was no longer in pain after her rest, so she did not proceed to get another detailed, specific medical certificate to provide to the Tribunal: Transcript, p 3;
(g)on 29 September 2019 she received another email from the Tribunal requesting her to provide a specific medical certificate for non-attendance at the Tribunal Hearing, but she did not do that because it was two days later so she could not ask a medical practitioner to issue a medical certificate backdated for two days ago. This is why she did not proceed to request the more detailed medical certificate and did not provide it to the Tribunal: Transcript, pp 3-4;
(h)her concern is that on the originally scheduled hearing date of 27 September 2019 the Tribunal staff requested a medical certificate, but that no specific instruction was given over the telephone: Transcript, p 4;
(i)she did provide the Pharmacist’s Certificate which turned out not to meet the requirements of the Tribunal, but the further instruction was for her to have a specific medical certificate issued and then provide it to the Tribunal before the originally scheduled Tribunal Hearing at 10:30 which was “impossible”: Transcript, p 4;
(j)in the phone call with the Tribunal staff member she was not advised that there was an alternative option to appear before the Tribunal by telephone, and the Tribunal staff member did not mention in detail the specific requirements for a medical certificate, so she assumed that they just requested a medical certificate, submitted it to the Tribunal and then took the medicine and went to bed for rest: Transcript, p 5;
(k)on the day of the Tribunal Hearing she did not receive any further call from the Tribunal and she had not received any call from the migration agent either on that day. Her migration agent only contacted Ms Chen by email two days after the Tribunal Hearing and advised her that there is the choice of “14 days reinstatement”, but his email was very brief and he did not tell Ms Chen what she should do to have her application before the Tribunal reinstated: Transcript, p 5;
(l)she is not a professional in this field and she assumed that after two days “how can I organise another medical certificate … for the illness two days before” so she did not proceed to do that: Transcript, p 5;
(m)because she did not receive any specific instructions from her migration agent on the process to have her application reinstated within 14 days she did not do that either: Transcript, p 5; and
(n)she relied on the professional service of her migration agent to proceed further with this case but he did not provide further advice to her in this regard so she missed the timeframe to have the Tribunal Hearing reinstated within 14 days: Transcript, p 6.
It should be noted that:
(a)there is no evidence of the two emails allegedly received by Ms Chen around noon on 27 September 2019: see [11(d)] above, all of the emails at Annexure 3(a) of the Chen Affidavit being emails which post-date 27 September 2019 and there is no evidence that the Tribunal sent Ms Chen any emails directly; and
(b)there is no evidence that the Tribunal emailed Ms Chen on 29 September 2019 as asserted in [11(g)] above, but there is evidence that her migration agent emailed her on 29 September 2019: Chen Affidavit, Annexure 3(a).
Minister’s submissions
The Minister submitted that:
(a)the Tribunal exercised its discretion to dismiss the application under s 362C of the Migration Act in a manner which was reasonable. The Tribunal provided an evident and intelligible justification for the Tribunal Dismissal Decision: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [76] per Hayne, Kiefel and Bell JJ, noting that:
(i)the Tribunal had attempted to contact Ms Chen to offer a telephone hearing: CB 125 at [5];
(ii)Ms Chen’s representative was advised that any medical certificate sought to be relied upon should provide details and state that Ms Chen is too sick to attend the Tribunal Hearing: CB 125 at [6]; and
(iii)the Pharmacist’s Certificate did not indicate whether Ms Chen would be capable of attending the Tribunal Hearing, or a Tribunal Hearing by telephone: CB 126 at [8]-[9];
(b)the Tribunal Dismissal Decision was valid: the Tribunal complied with s 362B(1A)(b) of the Migration Act by providing Ms Chen with a written statement under s 362C of the Migration Act. The Tribunal’s notification of the Tribunal Dismissal Decision: CB 123-124, complied with the requirements of s 362C of the MigrationAct because it:
(i)provided Ms Chen with a copy of the written statement: Migration Act, s 362C(5);
(ii)was sent to Ms Chen within 14 days of the date of the Tribunal Dismissal Decision: Migration Act, s 362C(5)(a);
(iii)was sent to Ms Chen by one of the methods specified in s 379A of the Migration Act: Migration Act, s 362C(5)(b) - specifically, the notification of the Tribunal Dismissal Decision sent to Ms Chen by email to the last email address provided to the Tribunal in connection with the review: Migration Act, s 379A(5); and
(iv)explained the effect of s 362B(1B)-(1F) of the Migration Act: Migration Act, s 362C(6). Specifically, the Tribunal’s latter dated 27 September 2019 sent to Ms Chen’s migration agent explained that Ms Chen could apply for reinstatement of the Student Visa review application by 11 October 2019, being 14 days from the date on which Ms Chen was taken to receive notice of the Tribunal Dismissal Decision under s 379C(5) of the Migration Act. The information sheet accompanying that letter explained the operation of s 362(1B)-(1F) of the Migration Act, including what would occur if Ms Chen applied for reinstatement, and that if Ms Chen failed to apply for reinstatement the Tribunal Dismissal Decision would be confirmed, and what would happen if the Tribunal confirmed the Tribunal Dismissal Decision;
(c)although it was open to her to do so, Ms Chen made no application for the reinstatement of her review application within 14 days of being notified of the Tribunal Dismissal Decision. By operation of law, the Tribunal was therefore bound to confirm the Tribunal Dismissal Decision to dismiss the review application and affirm the Delegate’s Decision: Migration Act, s 362B(1E);
(d)the Tribunal complied with s 357A(3) of the Migration Act. Contrary to Ms Chen’s claim that the Tribunal failed to provide clear instruction about what medical evidence would be deemed sufficient to obtain an adjournment, the Tribunal Decision: CB 125 at [6], discloses that the Tribunal advised Ms Chen’s migration agent that a detailed medical certificate would be required; and
(e)the Tribunal did not deprive Ms Chen of the opportunity to appear: Ms Chen was given an opportunity to appear before the Tribunal, as evidenced by the Tribunal’s steps as outlined above.
CONSIDERATION
Material jurisdictional error required
This Court may set aside the Tribunal Confirmation Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Jurisdictional error may also be constituted by:
(a)in certain circumstances, a denial of procedural fairness: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”);
(b)bias, whether actual or apprehended: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALRJ 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [72] per Gleeson CJ and Gummow J; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ; and
(c)legal unreasonableness: Li.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon Ms Chen to establish jurisdictional error in the Tribunal Confirmation Decision: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 109; (2019) 373 ALR 196 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 FLR 173 at [47] per Griffiths, White and Bromwich JJ.
It is also important to observe that it is not within the jurisdiction of this Court to review the merits of Tribunal decisions: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Jurisdictional error in the Tribunal Confirmation Decision
The grounds of the Judicial Review Application do not address the decision of which the Judicial Review Application seeks review, that is, the Tribunal Confirmation Decision.
The Tribunal Confirmation Decision was made consistent with the statutory requirements under the Migration Act because:
(a)s 362B(1) of the Migration Act applies in circumstances where an applicant is invited to appear before the Tribunal pursuant to s 360 of the Migration Act and fails to appear;
(b)the Tribunal Hearing Invitation validly invited the applicant to the Tribunal Hearing;
(c)in accordance with s 379A(5) of the Migration Act the Tribunal Hearing Invitation was sent to Ms Chen’s migration agent’s email address, which was Ms Chen’s nominated address;
(d)the Tribunal Hearing Invitation complied with the requirements of s 360A of the Migration Act by including statements to the effect of s 362B of the Migration Act, setting out the day, time and place at which the Tribunal Hearing was to take place and providing a period of notice in excess of the prescribed period, and in light of Ms Chen’s migration agent’s response to the Tribunal Hearing Invitation there can be no question that it was validly transmitted to Ms Chen;
(e)in the above circumstances, when the Tribunal determined that Ms Chen had failed to appear at the Tribunal Hearing, it was entitled to dismiss the review application without further consideration of the review application or the information before the Tribunal: Migration Act, s 362B(1A)(b);
(f)the Tribunal complied with s 362C(2) of the Migration Act by making a written statement, the Tribunal Dismissal Decision, that set out the reasons for its decision to dismiss the review application for non-appearance;
(g)the Tribunal Dismissal Decision was then sent to Ms Chen’s migration agent’s email address on the same day it was made together with a statement describing the effect of s 362B(1B) and (1F) of the Migration Act in compliance with ss 379A(5) and 362C(5) and (6) of the Migration Act;
(h)when Ms Chen failed to apply for reinstatement of the review application within 14 days the Tribunal complied with ss 362B(1E) and 368A of the Migration Act by confirming its decision to dismiss the review application by written statement under s 368 of the Migration Act, that being the Tribunal Confirmation Decision; and
(i)the Tribunal Confirmation Decision was sent to Ms Chen’s migration agent’s email address on the same day as it was made, in compliance with ss 368A and 379A(5) of the Migration Act.
Apart from Ms Chen’s criticisms of the conduct of her migration agent, there is otherwise no suggestion from Ms Chen in the grounds of the Judicial Review Application that the Tribunal can, or ought to have, done more procedurally than it did to avail her of an opportunity to have her review application reinstated. Ms Chen having failed to apply to reinstate the review application following the Tribunal Dismissal Decision, there was nothing unreasonable in the Tribunal’s subsequent exercise of discretion to proceed to determine the review application under s 362B of the Migration Act by making the Tribunal Confirmation Decision. Pursuant to s 362B(1E) of the Migration Act, Ms Chen having failed to make an application for reinstatement of the review application within the specified 14 day period, the Tribunal Confirmation Decision made by the Tribunal was the necessary consequence of Ms Chen’s failure to seek reinstatement of the review application: AYT16 v Minister for Immigration & Anor [2016] FCCA 2733 at [28] per Judge Driver (an appeal from which was dismissed in AYT16 v Minister for Immigration and Border Protection [2017] FCA 252); Singh & Anor v Minister for Immigration & Anor [2016] FCCA 2888 at [22] and [35] per Judge Jones.
In Singh v Minister for Home Affairs [2018] FCA 1927 the appellant had failed to seek reinstatement of a review application when the matter was before the Tribunal, and then sought judicial review in the then Federal Circuit Court, but as the Federal Court observed at [11] per Perry J:
... since the Appellant had not sought to reinstate the application within 14 days of being notified of it, this was an argument which could not succeed. Once that fact was established, the Tribunal’s hands were tied and the dismissal had to be confirmed. The Federal Circuit Court so held. It was correct to do so.
A similar conclusion must follow in this case.
In her oral submissions at hearing in this Court Ms Chen said that:
(a)two days after the Tribunal Dismissal Decision was made her migration agent advised her of the 14 day period within which an application for reinstatement of the review application might be made;
(b)she did not receive any specific instructions from her migration agent as to the reinstatement process;
(c)she relied on the professional services of her migration agent, but he did not provide any further advice as to the reinstatement of the review application, and she consequently missed the deadline for reinstatement.
It is necessary to observe that Ms Chen was made aware of the 14 day deadline for reinstatement of the review application just two days after the Tribunal Dismissal Decision, but it is evident that she did nothing to proactively pursue the reinstatement issue with her migration agent. Ms Chen’s failure to pursue the issue does not give rise to jurisdictional error in the Tribunal Confirmation Decision.
The conduct of Ms Chen’s migration agent after he had given notice to Ms Chen of the 14 day reinstatement period might be characterised as inaction, inattention, inadvertence (as might Ms Chen’s conduct) and, at worst, possible negligence, but conduct of this type – “bad or negligent advice or some other mishap” that leads to detriment to an applicant – does not constitute jurisdictional error by the Tribunal: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 95 ALJR 54; (2020) 385 ALR 212 at [15] and [18] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ, as it does not effect a fraud on the Tribunal, and even more so here where Ms Chen was aware of the 14 day reinstatement period but herself did nothing to pursue that option.
It follows from [19]-[26] above that the Tribunal Confirmation Decision was not affected by jurisdictional error.
Tribunal Dismissal Decision
Although the conclusion at [27] above is sufficient to dispose of this matter, the Court notes that both parties argued the matter on the basis of the grounds of the Judicial Review Application as set out at [8] above. In deference to those arguments the Court will address those grounds, notwithstanding that they are out of time insofar as they seek judicial review of the Tribunal Dismissal Decision, and no application for an extension of time was made: Migration Act, s 477(1) and (2).
In essence the grounds assert that the Tribunal acted unreasonably by failing to postpone the Tribunal Hearing in circumstances where Ms Chen was ill and had provided the Pharmacist’s Certificate to the Tribunal, and where the Tribunal did not give her clear instructions as to the nature of the medical evidence required to be provided, and thereby failed to comply with what are asserted to be the procedural fairness requirements of s 357A(3) of the Migration Act.
Legal unreasonableness
In certain circumstances unreasonableness, and more correctly, legal unreasonableness, in an administrative decision may constitute jurisdictional error: Li at [63]-[76] per Hayne, Kiefel and Bell JJ.
Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ.
Legal unreasonableness is fact dependent and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [30]-[33] per Allsop CJ, Besanko and O’Callaghan JJ (and cases there cited).
The relevant principles in relation to legal unreasonableness were conveniently summarised by the Federal Court in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J and include the following:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or "plainly unjust": Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the "decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law": Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) …
(h) …
(i) …
(j)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: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
It is worth stressing the last point made in the above quote from Pandey at [41(j)] per Wigney J, citing Li at [113] per Gageler J, concerning the test for unreasonableness being stringent, as it is a point often lost in the gaggle and consequent grind of migration cases which come to this Court and then on appeal to the Federal Court. It is a point more recently reinforced in:
(a)Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1; (2018) 75 AAR 434 at [11] per Kiefel CJ, where it was said 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”; and
(b)Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; (2020) 281 FCR 578 at [65] per Rares, Anastassiou and Stewart JJ, where it was said that it “has been repeatedly emphasised that the test for unreasonableness is necessarily stringent”.
Section 357A
Section 357A of the Migration Act provides as follows:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
In Li at [58] per Hayne, Kiefel and Bell JJ it was said of s 357A(3) of the Migration Act that:
In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the tribunal in the conduct of the review … What is fair and just in relation to the particular act may be discerned , to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.
Consideration – Tribunal Dismissal Decision
It is pertinent to observe that the Pharmacist’s Certificate was not what was requested by the Tribunal from Ms Chen, which was “a written request for postponement of the hearing and a doctor’s certificate”: CB 115. Neither a written request nor a doctor’s certificate was provided to the Tribunal by Ms Chen.
In the Tribunal’s view, as expressed in the Tribunal Dismissal Decision, the Pharmacist’s Certificate gave insufficient indication of Ms Chen’s capacity to attend the Tribunal Hearing, whether in person or by telephone, with the Tribunal observing that:
(a)the Pharmacist’s Certificate indicated “that [it] was prepared for the stated purpose of “… informing the employer of the named person that they are unfit for work due to illness/injury (cross one out)””: CB 126 at [7], but that neither option was crossed out;
(b)the Pharmacist’s Certificate did not indicate:
(i)whether Ms Chen was suffering from an illness or from an injury, and only said that she would be unfit to attend work for one day being the day of the Tribunal Hearing: CB 126 at [8]; and
(ii)what activities Ms Chen was incapable of performing, and whether she was capable of attending the Tribunal Hearing, and if not whether she was capable of attending the Tribunal Hearing by telephone: CB 126 at [9].
The Court observes that the Pharmacist’s Certificate was not actually properly completed by the pharmacist insofar as it did not indicate whether Ms Chen was ill or injured.
The Pharmacist’s Certificate purported to be a “Certificate For Personal Leave” and to be “provided in accordance with the evidence requirements under s 107(3) of the Fair Work Act 2009”. Section 107(3)(a) of the Fair Work Act 2009 (Cth) (“FW Act”) refers to the giving to an “employer”, not a Commonwealth statutory tribunal, “evidence that would satisfy a reasonable person” that paid personal/carer’s leave is being taken for a reason specified in relevantly s 97(a) of the FW Act, namely that an “employee is not fit for work because of personal illness, or personal injury”. The Pharmacist’s Certificate, in addition to not actually being properly completed by the pharmacist, was a certificate designed for use in an employment setting in relation to fitness for work, and was not appropriate to the particular purpose for which Ms Chen sought to use it, that is to excuse her from attendance at the Tribunal Hearing. And whilst it is difficult to apprehend on the basis of such an incomplete and bare certificate how a “reasonable person” might be satisfied that the person (here Ms Chen) is not fit for work on the basis of personal illness or personal injury it is unnecessary to pursue that matter further in light of the authorities that the Court is about to cite concerning the efficacy, for the purposes of excusing attendance at a hearing before a federal court or the Tribunal, of certificates prepared by medical practitioners, but in a form similar to the Pharmacist’s Certificate.
In dealing with an application to set another hearing date from that scheduled due to a medical condition the High Court in Gill v Minister for Immigration and Border Protection & Anor [2018] HCATrans 199 at lines 58-64 per Nettle J observed that:
The certificate is of a type which these days one sees all too often in applications of this kind. By means of its Delphic drafting, it purports to cloak an application for adjournment with the mantle of medical respectability while preventing any examination or objective assessment of the illness claimed to warrant special consideration and indulgence. For that reason, quite apart from the fact that it is not on oath, I give it no weight.
The Pharmacist’s Certificate was a bare certificate of the type referred to in NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559; Luck v Chief Executive Officer of Centrelink [2015] FCFAC 75 and Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905 (“Zubair”). In Zubair at [7] per Judge Lucev this Court (then the Federal Circuit Court) found that:
In relation to the medical certificate, there are judgments of the Federal Court and this Court that establish that a person alleging a medical condition and seeking to rely upon that medical condition for the grant of an indulgence, such as an adjournment, needs to provide sworn evidence to the Court concerning the medical condition: see NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]- [10] per Lindgren J (“NAKX”); Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]- [49] per Collier, Griffiths and Mortimer JJ; BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 at [35] per Perry J; Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No.2) [2017] FCCA 190 at [35] per Judge Lucev; and the authority handed up today by counsel for the Minister, Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2] per Pagone J, citing liberally from NAKX. Those authorities also make the point that any medical certificate ought to say that the person, the subject of the medical certificate, is unfit and why they are unfit and, in particular, why they are unfit to attend any required Court attendance.
More recently, referring to AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815 (“AAL17”), this Court noted, in Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25 at [86] per Judge Lucev, as follows:
86 In AAL17 the Federal Court had before it a request, made the afternoon before the listing date, to adjourn the hearing of an appeal, on the basis of a medical certificate which, in practical terms, is the same as the 9 August 2021 medical certificate, save that it was for a three day period of incapacity: AAL17 at [10] per Lee J. As to the medical certificate the Federal Court at AAL17 at [19] per Lee J observed as follows:
19I have set out above the adjournment request. In my view the medical certificate provided was wholly deficient in apprising the Court of the circumstances which would lead the Court to conclude that the appellant has an acceptable explanation for not appearing this morning. As I explained in a similar context in SZWBK v Minister for Immigration and Border Protection [2017] FCA 1020 (at [15]), a case where the appellant sought an adjournment due to back pains:
The medical certificates do not purport to address the critical question of whether, and if so why, the relevant “medical condition” would prevent the first appellant from travelling to Court and participating effectively in the hearing. Like the position in NAKX and Singh, I do not accept, on the basis of the material provided, that the Delphically described “medical condition” would have prevented the first appellant from travelling to Court and participating effectively in the hearing. Even if I was wrong about this, there is no explanation as to why the first appellant could not have made the necessary arrangements to attend the hearing by telephone … I agree, with respect, with what Pagone J said in Singh (at [2]), namely that:
… what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing
At [37]-[40] above the Court has referred to certain deficiencies and difficulties with the Pharmacist’s Certificate, and having regard to those deficiencies and difficulties, and its bare nature (and the effect thereof as described in the various authorities set out at [41]-[43] above), the Tribunal was entitled to disregard the Pharmacist’s Certificate as evidence that Ms Chen was not able to attend the Tribunal Hearing.
Upon receipt of the Pharmacist’s Certificate the Tribunal contacted Ms Chen’s migration agent (who was not attending the Tribunal Hearing), and he advised that he would try to contact Ms Chen and advise the Tribunal as to whether she might be able to attend the Tribunal Hearing.
The Tribunal then sent Ms Chen’s migration agent an email at 10.47am which noted that:
(a)in the conversation with the Tribunal staff member earlier that morning: see [5(j)(vi)] above, Ms Chen’s migration agent had been advised that the Tribunal had “offered that the hearing could proceed as a teleconference if the applicant was unable to attend in person”: CB 120;
(b)Ms Chen’s migration agent had advised the Tribunal staff member that he had not spoken to Ms Chen and that he would attempt to contact her;
(c)Ms Chen’s migration agent had been advised by the Tribunal staff member that if the Tribunal was to consider a postponement due to illness the Tribunal required a detailed medical certificate clearly stating that Ms Chen was too sick to attend the Tribunal Hearing in person, and not just saying that Ms Chen was ill; and
(d)as Ms Chen’s migration agent was advised on the telephone by the Tribunal staff member it should not be assumed that the Tribunal Hearing would be postponed, and unless the Tribunal agreed to the postponement, the Tribunal Hearing would proceed as scheduled: CB 120.
There is no evidence that any contact was subsequently made with the Tribunal by Ms Chen’s migration agent, or Ms Chen, prior to the Tribunal Dismissal Decision:
(a)being made at 12.12pm; and
(b)being sent to Ms Chen’s migration agent at 3.55pm,
on 27 September 2019.
Ms Chen seemingly accepts that efforts were made to contact her concerning the insufficiency of the Pharmacist’s Certificate and to offer her a hearing by telephone, but says (in the Particulars to the grounds of review) that by the time she learnt this the Tribunal had, at 12.12pm on 27 September 2019, dismissed her review application. The Tribunal did so, however, in circumstances where on 27 September 2019:
(a)it had asked Ms Chen for a written request for postponement of the Tribunal Hearing and a doctor’s certificate, but she had provided neither;
(b)it had contacted Ms Chen’s migration agent by telephone, and then at 10.47am by email, indicating that a telephone hearing was available, but received no response to that offer;
(c)it had requested a detailed medical certificate indicating the nature of Ms Chen’s illness, but did not receive such a medical certificate, and where it is evident that Ms Chen chose, when she was able to later that day, to not see a doctor in an effort to obtain a detailed medical certificate;
(d)it waited for about an hour and a half after sending the 10.47am email to Ms Chen’s migration agent, to which it had received no response, before making the Tribunal Dismissal Decision; and
(e)it waited for more than five hours after sending the 10.47am email to Ms Chen’s migration agent, to which it had still not received a response, before sending the Tribunal Dismissal Decision to Ms Chen’s migration agent at 3.55pm.
It is pertinent to observe that the emails sent to Ms Chen’s migration agent by the Tribunal were sent to the email address for service specified in the review application (that email address being the migration agent’s personal email address): CB 78, that being a method of service prescribed by s 379A(5) of the Migration Act. Further, for essentially the same reasons as are set out at [26] above, the migration agent’s conduct could not constitute, or give rise to, jurisdictional error by the Tribunal in the Tribunal Dismissal Decision.
The Tribunal had the power to dismiss the review application for non-appearance as it did in the Tribunal Dismissal Decision: Migration Act, s 362B(1A)(b). In so doing the Tribunal exercised a discretion available to it. The Tribunal Dismissal Decision was not arbitrary or capricious, it being made only after attempts had been made to engage both Ms Chen and her migration agent in providing a detailed doctor’s certificate and a written request for postponement of the Tribunal Hearing, neither of which was ever provided.
The Tribunal Dismissal Decision cannot be said to be unreasonable because it is plainly unjust, or unfair and unjust and therefore contrary to the intent of s 357A(3) of the Migration Act. The Tribunal attempted to obtain a detailed doctor’s certificate from Ms Chen, following provision of the wholly inadequate Pharmacist’s Certificate, but neither Ms Chen nor her migration agent responded. Moreover, even when Ms Chen seemingly knew that the Pharmacist’s Certificate was inadequate, and that a detailed doctor’s certificate was required (and before she or the migration agent knew of the Tribunal Dismissal Decision) she opted not to see or contact a doctor to obtain, or even endeavour to obtain, such a certificate. Thus, following the telephone call and the subsequent 10.47am email to the migration agent on the day of the Tribunal Hearing, there was simply no response, of any kind, to the Tribunal from the migration agent or Ms Chen, the latter having seemingly been informed of, at least, the need for a detailed doctor’s certificate well prior to becoming aware of the Tribunal Dismissal Decision. Further, there was never any response to the Tribunal’s offer, made to the migration agent, for a telephone hearing. The opportunities that the Tribunal provided to deal with the matter were simply not availed of by Ms Chen or her migration agent on her behalf. It was not for the Tribunal to ensure that Ms Chen, or the migration agent, made the best of the opportunities afforded by the Tribunal: Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383; ALR at 343 per Deane J; CEJ15 v Minister for Immigration & Anor [2019] FCCA 1038 at [18(b)] per Judge Lucev.
In the circumstances set out above, the Tribunal Dismissal Decision was a decision which was open to be made by the Tribunal as a matter of law, and a decision which was consistent with the facts (and particularly the fact of non-appearance in any form), as they appeared on the day of the Tribunal Hearing. It was a decision which had an evident, transparent and intelligible justification, having regard to the failure of Ms Chen to appear and to provide adequate explanation for her non-appearance. Bearing in mind the stringency of the test for unreasonableness the Court does not consider, were there actually an application before it with respect to the Tribunal Dismissal Decision, that Ms Chen has made out a case which would warrant the Court interfering with the Tribunal Dismissal Decision, which was, in the Court’s view, neither an unreasonable exercise of the Tribunal’s discretion, nor unfair or unjust generally, nor contrary to the terms of s 357A(3) of the Migration Act.
It follows that the Court would not have found jurisdictional error in the Tribunal Dismissal Decision on the grounds set out in the Judicial Review Application were there actually an application before it with respect to the Tribunal Dismissal Decision.
Jurisdictional error otherwise
The Court is cognisant that Ms Chen was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev.
In the Court’s view, there is nothing otherwise in the materials before it, apart from what has already been considered, which indicates that the Tribunal made a jurisdictional error in either the Tribunal Confirmation Decision or the Tribunal Dismissal Decision.
CONCLUSION AND ORDERS
The Court has concluded no jurisdictional error as alleged in the grounds of the Judicial Review Application, or otherwise, has been made out by Ms Chen. It follows that there will be an order dismissing the Judicial Review Application filed on 4 November 2019.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 19 May 2023
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