COW17 v Minister for Immigration and Anor
[2020] FCCA 2873
•28 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COW17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2873 |
| Catchwords: MIGRATION – Ostensible bias – whether the Administrative Appeals Tribunal failed to afford the applicant procedural fairness by requesting documents from the Department of Immigration and Border Protection without notice to the applicant – whether the correspondence also ought to have been copied to the applicant – application dismissed. |
| Legislation: Freedom of Information Act 1982 (Cth). Migration Act 1958 (Cth), ss.418, 425, 425A, 426A, 441A, 441C. |
| Cases cited: ALD16 v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1286 AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 CGF16 v Minister for Immigration [2019] FCCA 802 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural and Indigenous Affairs v Maltson [2005] FCAFC 118 Re JRL; ex parte CJL (1986) 161 CLR 342 XA v Minister for Home Affairs [2019] FCAFC 166 |
| Applicant: | COW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1245 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 16 April 2020 |
| Date of Last Submission: | 16 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 28 October 2020 |
REPRESENTATION
| Counsel for the applicant: | Mr Fuller |
| Solicitors for the applicant: | Asylum Seeker Resource Centre |
| Counsel for the respondents: | Mr Wood |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The applicant be granted leave to rely upon the further amended application filed on 2 December 2019.
The applicant’s application filed on 13 June 2017 and as amended on 25 March 2019 and 2 December 2019 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1245 of 2017
| COW17 |
Applicant
and
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (“the tribunal”) on 9 May 2017 which affirmed a decision the delegate of the first respondent (“the delegate”) made on 3 December 2014 refusing to grant the applicant a protection (class XA) visa (“the visa”).
Background
The applicant was born in Iran but identified as being stateless.[1] He stated that he departed Iran on a fake passport which was taken from him by a ‘smuggler’ in Indonesia.[2] He arrived in Australia as an unauthorised arrival by boat on 26 April 2013.[3] He spent some time in detention upon arrival before being issued with a bridging visa on 23 July 2013.[4]
[1] Court book page 13.
[2] Court book page 18.
[3] Court book page 14.
[4] Court book page 14.
The applicant filed an application for a protection (class XA) visa on 5 August 2013 with the assistance of a migration agent.[5] The delegate wrote to the applicant, via their representative, on 12 September 2014, inviting the applicant to attend an interview to discuss their application.[6]
[5] Court book pages 1 to 61.
[6] Court book pages 62 to 65.
The applicant attended an interview with the delegate with the assistance of an interpreter and their representative on 13 October 2014.[7] Following the interview, the applicant’s representative provided further written submissions to the delegate by email on 28 October 2014.[8]
[7] Court book pages 66 to 87.
[8] Court book pages 88 to 104.
A decision was subsequently made by the delegate to refuse that application and the applicant was notified in writing of that decision via their representative on 3 December 2014.[9] A copy of the delegate’s decision record was enclosed with that correspondence.[10]
[9] Court book pages 105 to 135.
[10] Court book pages 111 to 135.
The applicant filed an application for review with the Refugee Review Tribunal on 16 December 2014 (as it was then known).[11] In that application, the applicant provided his home address for correspondence (“initial home address”) and his mobile phone number.[12] The applicant also stated in his application that he did not agree to receive correspondence by email and did not wish to appoint a representative to act on his behalf.[13]
[11] Court book pages 136 to 142.
[12] Court book pages 137 and 139.
[13] Court book pages 138 and 139.
Correspondence confirming receipt of the application for review was sent by the tribunal to the applicant’s initial home address on 18 December 2014.[14] In that correspondence, the following text appears:
[14] Court book pages 143 to 144.
Is it important that you:
●tell the Tribunal immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;
… (emphasis added)[15]
[15] Court book page 143.
Telephone and email contact information for the tribunal was also included in that correspondence.[16]
[16] Court book page 143.
The applicant filed an affidavit which was sworn on 7 October 2019.[17] In that affidavit, he stated that he moved from his initial home address in or about April 2015. He stated that shortly after moving, he contacted the Department of Immigration and Border Protection (“the Department”) to advise them of his new address.[18] The applicant did not state that he contacted the tribunal to advise it of his new address.
[17] Applicant’s affidavit sworn 7 October 2019 and filed 10 October 2019.
[18] Applicant’s affidavit sworn 7 October 2019 and filed 10 October 2019 at paragraph 7.
The applicant further stated that some two years later, he again moved home and again contacted the Department to advise of his further move.[19] Again, he does not attest to advising the Tribunal that he had moved home again.
[19] Applicant’s affidavit sworn 7 October 2019 and filed 10 October 2019 at paragraph 9.
The applicant further stated that he knew that he had to keep the Department informed of his current contact details but had not realised that he also had to advise the tribunal, or that the tribunal would not be informed by the Department of any changes to his contact details.[20]
[20] Applicant’s affidavit sworn 7 October 2019 and filed 10 October 2019 at paragraph 14.
The applicant also sought to rely upon an affidavit affirmed by his solicitor, Ms Louisa Wong, on 8 October 2019.[21] That affidavit annexed a number of documents obtained under a request made pursuant to the Freedom of Information Act 1982 (Cth) (“FOI Request”).
[21] Affidavit of Louisa Wong affirmed 9 October 2019 and filed 16 October 2019.
The documents confirm that the applicant advised the Department of his change of address on or about 7 April 2015 and again on 8 May 2017.[22] The documents annexed to Ms Wong’s affidavit do not disclose any notification by the applicant to the tribunal of his changes of address. Indeed they support the tribunal’s assertion that its records indicated that the applicant’s initial home address remained on their file as his address.
[22] Affidavit of Louisa Wong affirmed 9 October 2019 and filed 16 October 2019 at annexure LW-1.
I accept that these affidavits are relevant to the issues in dispute in this matter and therefore admissible in these proceedings. Whilst they are not relevant to the question of what information was before the tribunal, they do confirm that the applicant did not notify the tribunal of his change of address as required.
Some twenty-seven months later on 22 March 2017, the tribunal wrote to the applicant inviting him to appear before it on 8 May 2017 to ‘give evidence and present arguments’ in support of his application.[23] This correspondence was sent to the initial home address.
[23] Court book pages 145 to 146.
On 1 May 2017, a text message was sent to the applicant’s mobile phone number as listed in his application, stating:
Reminder – Your AAT hearing is on 08/05/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.[24]
[24] Court book page 148.
The same text message was also sent to the applicant’s mobile number on 5 May 2017.[25]
[25] Court book page 148.
The applicant did not attend the hearing before the tribunal on 8 May 2017.[26] Pursuant to section 426A(1A) of the Migration Act 1958 (Cth) (“the Act”), the tribunal made its decision without the applicant appearing before it.[27]
[26] Court book pages 150 to 152.
[27] Court book page 155 at paragraph 4.
A letter advising the applicant of the tribunal’s decision to affirm the delegate’s decision was sent to the address listed in the applicant’s application on 9 May 2017.[28] This letter also requested payment of a $1,604 fee and enclosed the tribunal’s decision record.[29]
[28] Court book page 153.
[29] Court book pages 153 to 162.
On 24 May 2017, the tribunal’s case notes indicate that the applicant contacted the tribunal by telephone.[30] In that telephone discussion, the case notes state:
a)the applicant was not aware the tribunal had made a decision on his application;
b)the officer stated that the tribunal had notified the applicant of the hearing before the tribunal by letter to the application address;
c)the applicant said he had advised the Department of a new address (“new address”);
d)the applicant said he was not aware that he also had to notify the tribunal of any change of address;
e)the officer confirmed that his mobile number was the same as listed on the application and advised that two text messages were sent to that number prior to the hearing;
f)the applicant stated he did not receive any reminder text messages from the tribunal; and
g)the officer stated that she would mail a copy of the tribunal’s decision to the new address.[31]
[30] Court book page 149.
[31] Court book page 149.
On 30 May 2017 the tribunal’s case notes indicate that the applicant contacted the tribunal by telephone to enquire about the fee referred to on the notification of decision.[32]
[32] Court book page 149.
On 13 June 2017 the applicant filed an application with this court to review the tribunal’s decision.[33]
[33] Applicant’s application filed 13 June 2017.
Tribunal decision
The tribunal decision record sets out:[34]
a)the background to the application at [1] and [2];
b)the legal principles and the issues arising in the review application at [3];
c)the correspondence sent to the applicant inviting him to the hearing at [4];
d)a consideration of the applicant’s claims at [5] – [25]; and
e)decided to affirm the delegate’s decision.
[34] Court book pages 161 to 169.
Given the relevance of the tribunal’s decision to proceed to determine the applicant’s claims in his absence it is appropriate to set the tribunal’s reasoning in this regard. The tribunal said at [4]:
On 22 March 2017 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 8 May 2017. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. An SMS hearing reminder with the day and time of the scheduled hearing was also sent to the review applicant 5 business days prior to the scheduled hearing date and a second reminder was sent one business day prior. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Nor has he contacted the Tribunal subsequently to explain his non-appearance. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(4), the invitation has not been returned to sender, and that two separate SMS reminders were also sent advising the review applicant of the hearing details. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. (emphasis added)
Ground one
Ground one of the applicant’s application was stated as follows:
The Second Respondent’s decision to proceed under s.426A(1A)(a) of the Migration Act 1958 (Cth) to make a decision under s.430 of the Act in respect of the Applicant’s application without taking any further action to allow or enable the applicant to appear before it was legally unreasonable and so void and of no effect.
PARTICULARS
ANo hearing of the Applicant’s application had previously been adjourned by reason of the Applicant’s non-appearance.
BThe Applicant notified the Department on 8 May 2017 of his change of address, to an address different to that to which a s.425 notice in the proceeding had previously been addressed.
CAs of 9 May 2017, the First Respondent was aware that the Applicant did not reside at the address to which a s.425 notice in the proceeding had previously been addressed.[35]
[35] Applicant’s amended initiating application filed 2 December 2019 page 4.
Section 425 of the Act provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 426A(1) of the Act provides:
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.
Section 426A(1A) of the Act goes on to provide:
The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Section 425A of the Act continues:
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2)The notice must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4)The notice must contain a statement of the effect of section 426A.
Section 441A of the Act further outlines the methods in which the tribunal may provide documents to a person. Subsection 441A(4) relevantly provides:
(4)Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or
(iii) if the recipient is a minor--the last address for a carer of the minor that is known by the member or officer.
The applicant accepted that the pre-conditions of section 426A(1A)(a) of the Act were satisfied.[36]
[36] Applicant’s outline of submissions filed 10 October 2019 at paragraph 8.
However, the applicant argued that the tribunal’s decision to proceed to make the decision under section 426A(1A)(a) of the Act was legally unreasonable in that it:
… was disproportionate, accompanied by failure to consider the alternative available to the decision maker (being to dismiss the application under s.426A(1A)(b) which would have left open the possibility of reinstatement), and supported only by a finding that the Applicant had been notified, not responded to the notification and reminders had been sent.[37]
[37] Applicant’s outline of submissions filed 10 October 2019 at paragraph 8.
The applicant submitted that the decision to proceed to deal with the matter in the absence of the applicant was legally unreasonable in the sense identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) and as summarised in Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] per Charlesworth J.[38]
[38] Applicant’s outline of submissions filed 10 October 2019 at paragraph 6.
The applicant also conceded there was no obligation on the tribunal to give reasons for its decision to proceed under section 426A of the Act, however in this case, the tribunal did give reasons and the applicant argues that those reasons ground an argument of legal unreasonableness.[39]
[39] Applicant’s outline of submissions filed 10 October 2019 at paragraph 9.
The first respondent submitted that the tribunal did not err in proceeding to make its decision under section 426A(1A) of the Act.[40]
[40] Respondents’ outline of submissions filed 4 February 2019 at paragraph 3.
It was argued by the first respondent that the tribunal afforded the applicant the opportunity to appear before it in accordance with sections 425, 425A and 441A(4)(c) of the Act. Moreover, it was submitted that section 441C has the effect that a person is deemed to have received a document given by one of the methods specified in section 441A of the Act.[41]
[41] Respondents’ outline of submissions filed 4 February 2019 at paragraph 20.
It was further submitted that in this case:
a)there was nothing before the tribunal to suggest that the applicant had not received the notification of the hearing;[42]
b)the applicant was on notice of the need to, and had declared that he would, notify the tribunal if he changed his address;[43]
c)the hearing invitation had not been returned to sender and in these circumstances, it was reasonable for the tribunal to infer that he was still accessing mail at the address he provided for that purpose;[44]
d)in all of these circumstances, it was reasonably open to the tribunal to conclude that the applicant had adequate notice of the opportunity to appear before it;[45]
e)in addition, the tribunal had sent two text message reminders to the applicant’s mobile phone, again a number provided by the applicant for that purpose;[46] and
f)in circumstances where the tribunal had used the only means provided by the applicant for contacting him, namely his residential address and his mobile phone number, ‘[t]here was nothing else that the Tribunal could reasonably have done to ensure that the applicant was aware of the upcoming hearing’.[47]
[42] See also Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713.
[43] Respondents’ outline of submissions filed 4 February 2019 at paragraph 21.
[44] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [141].
[45] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [68].
[46] Respondents’ outline of submissions filed 4 February 2019 at paragraph 23.
[47] Respondents’ outline of submissions filed 4 February 2019 at paragraph 23.
It is common ground that a discretionary power, such as that set out in section 426A of the Act, must be exercised reasonably. As noted in Li,[48] a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks and evident and intelligible justification.
[48] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
In Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 (“SZVFW”), Kiefel CJ noted at [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.
The applicant sought to rely upon the affidavits he filed which he said establish ‘the jurisdictional fact that the applicant was not genuinely aware of the hearing.’[49]Whilst the affidavit material may establish that the applicant had moved from the address initially included in his application, for the reasons set out above, that is not determinative of whether the Tribunal’s decision to proceed without the applicant means that its decision is affected by jurisdictional error.
[49] Transcript page 4 at lines 11 and 12.
In determining whether the tribunal exercised its power in a legally unreasonable manner, the court is required to:
… assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.[50]
[50] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [70].
In considering the purpose and intent of section 426A of the Act, Kiefel CJ went on to note:
The Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. In reviewing a decision the Tribunal is required to act according to substantial justice and the merits of the case. Clearly enough s 426A is directed to the aims of efficiency contained within these objectives, although it is not to be exercised in a way which would be contrary to the others. … it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case.[51]
[51] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [13].
As correctly submitted for the first respondent, the test for legal unreasonableness must be assessed by reference to the material before the tribunal at the time it made its decision.[52] Therefore, the affidavit filed by the applicant[53] is not relevant to that determination. The same applies to paragraphs 4 to 6 of the affidavit affirmed by the applicant’s solicitor.[54]
[52] Respondents’ outline of submissions filed 6 November 2019 at paragraphs 5 and 6.
[53] Applicant’s affidavit sworn 7 October 2019 and filed 10 October 2019.
[54] Affidavit of Louise Wong affirmed 8 October 2019 and filed 10 October 2019.
Ultimately, there was an obligation on the applicant to keep the tribunal informed of his current address and contact details. Advice to the Department, if given, does not satisfy this obligation. Having regard to the comments by Kiefel CJ extracted above[55] in relation to the purpose of section 426A of the Act, it was open to the tribunal to proceed without the applicant in the circumstances in this case. Such action, in my view, cannot be said to be legally unreasonable.
[55] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [13].
The first respondent further submitted that the court ought to reject the applicant’s submission that the tribunal’s decision was disproportionate and did not consider alternatives such as dismissal of the application which would have left open the possibility of reinstatement or adjourning the hearing.[56]
[56] Respondents’ outline of submissions filed 6 November 2019 at paragraphs 7 and 8.
As was conceded by the applicant, there was no obligation on the tribunal to provide reasons for its decision to exercise its discretion under section 426A of the Act. The first respondent submitted there is no proper basis on which to assume that the matters set out in its reasons were the only matters to which the tribunal had regard.[57]
[57] See Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 1173 at [25] and [36]; and XA v Minister for Home Affairs [2019] FCAFC 166 at [148], [174] to [177], [197] and [198].
Whilst there is no obligation on the tribunal to provide reasons for its decision to exercise its discretion under section 426A of the Act, where reasons are provided, on review the court can have regard to those reasons to identify any factors which may be said to make the decision legally unreasonable.[58]
[58] Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [45].
Moreover, it was submitted for the first respondent that there is no proper basis on which to say that the tribunal’s approach was disproportionate such that it falls within the concept of ‘legal unreasonableness’.[59] It was submitted that the facts in this case are very different to those in Li[60] which led the court in that case to find that the tribunal had acted in a legally unreasonable manner. There is some merit to this submission.
[59] Respondents’ outline of submissions filed 6 November 2019 at paragraph 11.
[60] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Respondents’ outline of submissions filed 6 November 2019 at paragraphs 11 to 13.
In this case, from the tribunal’s perspective, it had provided the applicant with notice of its intention to conduct a hearing. It had notified the applicant of that hearing through the methods provided by the applicant, in circumstances where the applicant was under an obligation to keep the tribunal informed of his change of address. In those circumstances, it was reasonable for the tribunal to infer that the applicant had received the invitation to the hearing and to proceed accordingly.
The mere fact that it was open to the tribunal to adjourn or to dismiss the application does not make the tribunal’s decision to deal with the substantive review unreasonable. A similar argument was raised in SZVFW[61] and was rejected. Kiefel J noted:
The crux of the primary judge’s reasoning concerning the exercise of power given by s 426A appears to be that the Tribunal should have exercised it in the respondents’ favour because, in a practical sense, it could have done so. This analysis fails to identify an unreasonable decision in the sense explained above. The requirement to be implied in a provision such as s 426A, that a decision-maker act reasonably, does not require the decision to be one which is advantageous to the person who is the subject of it.[62]
[61] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713.
[62] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [15].
The applicant sought to distinguish the facts in this case from those in SZVFW.[63] In particular, the applicant pointed to the fact that in this case there is evidence before this court that the applicant had changed his residential address and had in fact not received the correspondence from the tribunal about the hearing. Moreover, there was no history in this case, as there had been in SZVFW[64] and other decisions[65] of the applicant failing to participate in previous proceedings.
[63] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713.
[64] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713.
[65] CJZ16 v Minister for Immigration [2019] FCCA 29; ALD16 v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1286.
The applicant also referred to a series of decisions considering section 426A of the Act, which the applicant argued were all distinguishable on various grounds.[66] Those decisions are of limited assistance in determining the issues before me today.
[66] Including CGF16 v Minister for Immigration [2019] FCCA 802; EIU17 v Minister for Immigration [2019] FCCA 1218.
The applicant also sought to rely upon a decision of Mortimer J in MZALO v Minister for Immigration [2016] FCA 1339 (“MZALO”) where the applicant admitted having received the invitation letter but argued that she had a reasonable excuse for not having attended.[67] The applicant relies upon the following comments made by Mortimer J:
This is not a case where the appellant’s previous behaviour in relation to her review suggested a close and vital interest in its conduct, and suggested that failure to attend a Tribunal hearing was not a result of a conscious decision and was not the result of a conscious decision and was, instead, out of character.[68]
[67] Transcript page 12 at lines 1 to 23.
[68] MZALO v Minister for Immigration [2016] FCA 1339 at [24].
I note that, although not referred to by counsel for the applicant, Mortimer J went on to say:
As the Full Court in Minister for Immigration and Border Protection v Singh … observed (at [42]), the Court’s evaluation of asserted legal unreasonableness in the exercise of a discretionary power is likely to be fact dependant, and to require careful attention to the evidence in each case. The evidence, such as it is on this appeal, suggests the appellant had not taken any active part in her review before the Tribunal up to the date of the hearing. I accept that her personal circumstances as she described them to the Federal Circuit Court and this Court are likely to explain why that was so, but the details of these circumstances were not known to the Tribunal because, according to the Tribunal’s reasons, she did not put any material before it, or otherwise put it on notice, about those matters prior to the scheduled date for the hearing. She did not explain to the Tribunal why she could not attend the hearing. Nor did she explain to the Tribunal how her circumstances as a victim of domestic violence affected her capacity to participate effectively in the review. She simply did not communicate with the Tribunal. While, at one level, this may be understandable behaviour for a woman in her position, the consequence was that the Tribunal was given no basis to consider that there may have been justifiable reasons why she did not attend the Tribunal hearing.[69]
[69] MZALO v Minister for Immigration [2016] FCA 1339 at [25].
Similarly in this case, from the tribunal’s perspective, at the time it made its decision to deal with the application without the applicant, it had no reason to believe that the applicant’s contact details were not current. It had notified the applicant of the hearing using the contact details provided and no reason was provided to the tribunal to explain the applicant’s absence.
Finally, the applicant relies upon the decision in AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 (“AZAFB”). The facts in AZAFB[70] are similar in that the applicant moved home address after filing his application for review with the tribunal. The applicant in that case, as in this, filed an affidavit stating that he had moved home, had advised the Department of the move, and had not advised the tribunal on the basis that his case worker had told him he only needed to advise the Department. In AZAFB,[71] however, unlike in this case, the applicant had also filed a lengthy submission with the tribunal in support of his application for review.
[70] AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383.
[71] AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383.
In considering whether the tribunal’s decision to proceed to determine the matter in the absence of the applicant, North ACJ noted that the Hearing Record had been included with the applicant’s name and mobile phone number. North ACJ went on to say:
The obvious purpose of recording the mobile phone number was to provide a method which would allow the Tribunal to contact the appellant. Elementary common sense demanded that the Tribunal at least attempt to phone the appellant on the mobile phone number which it had in its records. To fail to do so was legally unreasonable. The Tribunal fell into jurisdictional error by not seeking to contact the appellant on the phone number which he had given the Tribunal.[72]
[72] AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 at [26].
Having regard to each of these cases, it was submitted that there is no evidence to suggest that the applicant in this case had not participated fully in the proceedings before the delegate and that he would have equally done so before the tribunal.[73] It was submitted for the applicant that in circumstances where the applicant had updated the Department of his change of address, and where the consequences to him of being returned to Iran would be serious, the tribunal ought to have exercised its discretion differently.[74]
[73] Transcript page 13 at lines 15 to 24.
[74] Transcript page 13 at lines 31 to 35.
Moreover, it was submitted that the tribunal’s reasons do not explain why it decided to proceed to hear his claim, as opposed for example, to adjourn or to dismiss the claim.[75]
[75] Transcript page 14 at lines 10 to 13.
I accept that in AZAFB,[76] the failure by the tribunal to attempt to reach the applicant was found to have been legally unreasonable. However, I do not understand North ACJ to have made a finding that it will always be legally unreasonable to proceed to determine the matter in the absence of the applicant by not attempting to contact them by telephone before doing so. Ultimately, the tribunal must have regard to all of the relevant factors before it.
[76] AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383.
Additionally, whilst some of the other cases relied upon by the applicant point to the previous level of participation by the applicant in the proceedings, this is but one factor among many which might be relevant to the determination of whether or not to proceed to decide an application for review in the absence of the applicant.
In this case, the applicant does not refer to the tribunal’s letter to him dated 18 December 2014, which was dated well before he moved house. That letter makes it clear that he is to keep the tribunal, as opposed to the Department, updated with his contact details.[77]
[77] Court book pages 150 and 151.
In addition, it is clear from the affidavit material filed by the applicant and his solicitor that the applicant in this case did not notify the tribunal he had moved house. Whilst the evidence is that he notified the Department of his move, this was not before the tribunal at the time that the tribunal had to consider whether to exercise its discretion under section 426A of the Act. At that time, the tribunal was aware that the applicant:
a)had been invited to attend;
b)was deemed to have received the letter of invitation; and
c)had been provided with two SMS reminders.
As submitted by the first respondent, the facts as they were known to the tribunal at the point at which it made its decision were that, after having filed his application for review some two and a half years before the scheduled meeting, the applicant had taken no further action to advance his claims.[78] He was not required to, however, he could have and indeed was invited to provide any further information that he wished to put before the tribunal. No such information was forthcoming.
[78] Transcript page 19 at lines 35 to 43.
Having regard to all of these factors, at the point at which it made its decision under section 426A of the Act to determine the review when the applicant failed to appear, the tribunal did not act in legally unreasonable manner. On the contrary, it was reasonably open to it and the submission that in doing so, the tribunal acted unreasonably in the sense identified in Li,[79] must be rejected.
[79] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
It may well have been possible for the tribunal to do more. It could have attempted to contact the applicant by telephone. It could have made inquiries of the Department to determine whether they were aware of any changes to the applicant’s contact details. However, there is an onus on an applicant to prosecute their application, and moreover, the mere fact that there was more that the tribunal could have done, does not lead to the conclusion that it acted unreasonably in not taking this action.
Ground one is therefore not made out.
Ground two
The applicant does not press ground two.[80]
[80] Applicant’s outline of submissions filed 10 October 2019 at paragraph 10.
Ground three
Ground three of the applicant’s application was as follows:
In conducting its review, the Second Respondent:
(a) sought and obtained information from the First Respondent on an ex parte basis;
(b) took into account information provided by the First Respondent on an ex parte basis;
and, thereby, a fair-minded lay observer might reasonably apprehend that the Second Respondent might not being an impartial mind to conduct of the review.
PARTICULARS
A.The series of emails dated 3 May 2017 and 4 May 2017, set out in Annexure LW-2 to the affidavit of Louisa Wong affirmed 8 October 2019 and filed in these proceeding.
BParagraph [11], [12] and [17] of the Second Respondent’s Statement of Decision and Reasons (appearing in the Court Book at CB158-159).[81]
[81] Applicant’s amended initiating application filed 2 December 2019 page 5.
Ground two relates to correspondence between the tribunal and the Department dated 4 May 2017 by which the tribunal requested certain documents from the Department about the applicant (“information request”).[82] In essence, ground two alleges that the tribunal failed to accord procedural fairness to the applicant by these communications.[83] It was asserted that the nature of these communications was akin to ex parte communications between a judicial officer and one of the parties to a dispute before that judicial officer.[84]
[82] Supplementary court book pages 6 to 10.
[83] Applicant’s outline of submissions filed 10 October 2019 at paragraphs 11 and 12.
[84] Applicant’s outline of submissions filed 10 October 2019 at paragraph 15.
It was conceded by the applicant that in proceedings before the tribunal there are not ‘parties’ in the same sense as parties who are involved in proceedings before a judicial officer and that the tribunal member is not a judicial officer per se.[85] However, it was submitted that the same principles apply. It was submitted that what is apparent from the information request is that there was a receipt of evidence by the tribunal without the applicant being made aware of that.[86]
[85] Transcript page 15 at lines 44 and 45.
[86] Transcript page 15 at lines 46 and 47.
It was submitted that the fact that the first respondent was not a party per se in the proceedings before the tribunal is not relevant.[87]
[87] Transcript page 16 at lines 1 to 6.
The test for ostensible bias is whether a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the dispute before him or her.[88]
[88] Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6], [33] and [37].
The applicant relies upon the comments by Gibbs CJ in Re JRL; ex parte CJL (1986) 161 CLR 342, where he said that:
It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other...[89]
[89] Re JRL; ex parte CJL (1986) 161 CLR 342 at 346.
The applicant submits that in this case, the communication between the tribunal and the first respondent was itself enough to establish apparent bias, other than where the communication was within accepted categories of uncontroversial communications.[90] It is submitted that in this case, the request of the first respondent ought to have been directed to both parties.[91]
[90] Applicant’s outline of submissions filed 10 October 2019 at paragraphs 16 and 17.
[91] Applicant’s outline of submissions filed 10 October 2019 at paragraph 18.
In response, it was submitted that it is a very novel approach to argue that in exercising statutory powers to obtain information, the tribunal engages in conduct which exposes it to a claim of bias.[92]
[92] Transcript page 24 at lines 14 to 28.
There is much force to this submission. The Secretary of the Department (“the secretary”) is required to provide material that they or their delegate considers relevant to the review of the delegate’s decision under section 418(3) of the Act. Section 418 of the Act does not require the applicant to be involved in the communications between the tribunal and the secretary. Nor is there a requirement for the tribunal or the secretary to notify the applicant of the documents which have been provided.
The first respondent sets out the background to the request which was made for the applicant’s identity documents in this matter at [21] – [28] of their written submissions.[93]
[93] Respondent’s outline of submissions filed 6 November 2019.
Having regard to the process for the tribunal to obtain information from the secretary under section 418(3) of the Act, the situation where the tribunal sought further information from the Department in this instance cannot in my view properly be equated to ex parte communications between a judicial officer and a party to a dispute being adjudicated by that judicial officer.
The Act clearly contemplates that the decision maker, whose decision is being reviewed, may have information relevant to the review process. It requires that information to be provided to allow the review to be undertaken appropriately, particularly in circumstances where the review is a hearing de novo. Information provided in that way or a request for further information as part of that process could not be equated to ex parte communications as alleged.
In addition, the review process is inquisitorial not adversarial.[94] The process before the tribunal cannot be equated to a court proceeding. Whilst there may be circumstances which might support a finding of apparent bias in tribunal proceedings, the tribunal’s request for information relevant to the review before it in this case, is not one such circumstance.
[94] Minister for Immigration and Multicultural and Indigenous Affairs v Maltson [2005] FCAFC 118 at [36].
For these reasons, ground three is not made out.
Decision
As neither ground one nor ground three is made out, the applicant’s application is to be dismissed.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 28 October 2020
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