CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 352
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 352
File number: PEG 163 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 12 May 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was legally permitted to dismiss the applicant’s review application pursuant to section 426A of the Migration Act 1958 (Cth) in circumstances where the applicant had actively engaged with the Tribunal and had attended one scheduled hearing before the Tribunal but failed to attend a second adjourned/resumed hearing before the Tribunal – jurisdictional error established – writs issued. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 12.01
Migration Act 1958 (Cth), ss 36, 411, 425, 425A, 426A, 427, 441A and Part 7
Migration Amendment (Protection and Other Measures) Act 2015 (Cth)
Cases cited: BVE16 v Minister for Immigration and Border Protection [2018] FCA 922
EWU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2261
Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152
Minister for Immigration and Border Protection v EFX17 [2021] HCA 9
Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 473
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZLPN v Minister for Immigration and Citizenship [2008] FMCA 1434
SZVXH v Minister for Immigration and Border Protection [2017] FCCA 458
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
Division: Division 2 General Federal Law Number of paragraphs: 103 Date of hearing: 1 February 2023 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: William Gerard Legal Pty Ltd Counsel for the First Respondent: Mr T Reilly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 163 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CRE21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
12 MAY 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decisions of the second respondent dated 23 April 2021 and 5 July 2021.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.
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 KENDALL:
BACKGROUND
The applicant is a citizen of Afghanistan (Court Book (“CB”) CB 12-13). He first arrived in Australia in August 2009 as a dependent applicant on his mother’s Refugee and Humanitarian (Class XB) (Subclass 204) (Woman At Risk) visa (the “humanitarian visa”) (CB 96). The applicant was listed as a single male as part of that humanitarian visa application.
In March 2011, the applicant’s wife lodged a Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa application (the “partner visa application”). As part of that partner visa application, the applicant’s wife provided a marriage certificate indicating that she and the applicant had married in August 2008 in Afghanistan (CB 33).
On 21 January 2014, the applicant’s humanitarian visa was cancelled on the basis that he was married when he came to Australia and, as such, did not satisfy the definition of “a member of his mother’s family unit” (CB 265-266).
On 7 November 2014, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-27). In that visa application, the applicant claimed to fear harm from his father-in-law who he described as being “very angry” with him for leaving his pregnant daughter in Afghanistan (now the applicant’s wife) when the applicant left to come to Australia with his family. The applicant also claimed that his father-in-law would “kill [him] for what [he] has done to [his daughter]” and that his father-in-law told him that he would need to get his wife and child to Australia “as soon as possible” (CB 18-19). In addition, the applicant claimed that, because he had been living in Australia, he would no longer be accepted as an Afghan person and would be “attacked and asked to give money” (CB 20).
With his visa application, the applicant provided a letter from a doctor which advised that the applicant was “suffering with depression and anxiety”, had “poor memory and concentration” and was “aggravated in stressful situations”. That correspondence also provided a list of medications that the applicant was taking (CB 28-29).
The partner visa application made by the applicant’s wife was refused in February 2015 (CB 266).
On 22 June 2015, the applicant was invited to attend an interview with a delegate of the first respondent (the “Minister”) scheduled for 7 July 2015 at the offices of the then Department of Immigration and Border Protection (the “Department”) (CB 46-48).
On 1 April 2016, the applicant appointed a representative to act on his behalf in relation to his visa application (the “first representative”) (CB 49-51).
On 13 May 2016, the applicant was invited (through his first representative) to attend an interview with a delegate of the Minister scheduled for 8 June 2016 at the offices of the Department (CB 52-56).
On 8 June 2016, the applicant attended a protection visa interview (CB 98).
On 22 June 2016, the applicant’s first representative provided post-interview submissions and supporting documents to the Department via email (CB 57-89).
On 29 September 2016, a delegate of the Minister issued a Certificate regarding the disclosure of certain information under s 438 of the Migration Act 1958 (Cth) (the “Act”) (CB 90).
Later that day (on 29 September 2016), the delegate refused to grant the applicant the visa on the basis that he did not satisfy the requirements set out in ss 36(2)(a) or 36(2)(aa) of the Act (CB 96-106).
On 1 November 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 107-109). In that application, details of the applicant’s first representative were provided to the Tribunal (CB 108), together with supporting documents comprising letters of support from the applicant’s mother and sister, medical reports and other medical information (related to the applicant’s treatment for anxiety and depression) and a completed “Appointment of Representative” form (CB 110-126).
On 16 February 2017 and 5 April 2017, the applicant’s first representative provided updated contact details to the Tribunal via email (CB 131-132).
On 15 September 2017, additional medical documents were provided to the Tribunal in relation to the applicant’s anxiety and depression and the need for the applicant to have orthopaedic surgery (CB 134-135).
On 29 April 2019, the applicant’s first representative sought an update on the applicant’s review application from the Tribunal (CB 138).
On 4 December 2019, the applicant’s first representative notified the Tribunal that he was no longer representing the applicant and requested that the Tribunal contact the applicant directly in relation to his review application (CB 139-143).
On 22 April 2020, a new representative (the “applicant’s second representative”) contacted the Tribunal to advise that they would now act for the applicant. They also provided a completed “Appointment of Representative” form (CB 144-146).
On 2 December 2020, the applicant was invited (through his second representative) to attend a hearing before the Tribunal on 21 December 2020 (CB 147-153).
On 18 December 2020, the applicant’s second representative contacted the Tribunal (via email) and sought a postponement of the hearing on medical grounds, explaining that the applicant appeared to be suffering from “serious mental health issues” and noting that they had been unable to obtain instructions from the applicant (CB 156-157).
Later that day (also on 18 December 2020), the Tribunal advised the applicant (through his second representative) that the request for postponement had been refused and confirmed that the hearing would take place on 21 December 2020 as scheduled (CB 158-161).
On 21 December 2020, the applicant’s second representative provided the Tribunal with a “bundle of documents” containing the applicant’s pre-hearing submissions and supporting information and documentation (CB 162-193).
Later that day (also on 21 December 2020), the applicant appeared at the Tribunal hearing. He was assisted by his second representative and an interpreter (CB 194-196). After taking some evidence from the applicant regarding his background and personal circumstances, the Tribunal adjourned the hearing to a date “not before February or March 2021”.
On 6 April 2021, the applicant was notified (through his second representative) that the resumption of the adjourned hearing would take place on 21 April 2021 (CB 197-201).
On 14 April 2021, the applicant’s second representative contacted the Tribunal to advise of delays with finalising the applicant’s witness statement (again due to the applicant’s “mental health issues”) and to provide a completed response to hearing invitation form (CB 204-208).
On 21 April 2021, the applicant failed to appear at the adjourned/resumed Tribunal hearing. The applicant’s second representative did attend, as did an interpreter in the Dari and English languages (CB 211-212). In discussions between the applicant’s second representative and the Tribunal member, the applicant’s second representative provided the Tribunal with a report from a consultant psychiatrist (dated 15 March 2021) regarding a deterioration in the applicant’s mental state (CB 209-210).
On 23 April 2021, the Tribunal proceeded to dismiss the applicant’s review application for non-appearance at the adjourned/resumed hearing (without further consideration) pursuant to s 426A(1A)(b) of the Act (discussed further below) (the “Non-Appearance Decision”) (CB 216-219). The Tribunal accepted that the applicant was “suffering from depression” and that he had been “assessed by a psychiatrist for this condition” and had been “prescribed medication to improve his mental state”. The Tribunal noted, however, that the information before it did not indicate that the applicant was unable to engage with the Tribunal proceedings or attend the adjourned/resumed Tribunal hearing. The Tribunal ultimately determined that “no satisfactory explanation” had been given by the applicant for his failure to appear at the adjourned/resumed hearing on 21 April 2021 (CB 219).
The Non-Appearance Decision was sent to the applicant’s second representative by email on 23 April 2021 (CB 213). It was sent with a covering letter addressed to the applicant which, relevantly, provided (CB 215):
You may apply to us, in writing, for reinstatement of the application by 7 May 2021. 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.
On 7 May 2021, the applicant’s second representative sought reinstatement of the applicant’s matter on his behalf and provided the Tribunal with written submissions and documentation in support of that request (CB 222-258).
On 5 July 2021, the Tribunal confirmed the decision to dismiss the applicant’s review application (the “Confirmation Decision”) (CB 262-275). The applicant was provided with a copy of the Confirmation Decision (through his second representative) via email on 5 July 2021 (CB 259-261).
On 9 August 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
APPLICATION TO THIS COURT
As outlined above, the applicant in this matter filed an application for judicial review (and a supporting affidavit) in the then Federal Circuit Court of Australia (the “FCC”) on 9 August 2021. He was self-represented at the time of that application.
On 9 September 2021, procedural orders were made by Registrar Carney of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no additional materials were filed by or on behalf of the applicant.
Having reviewed the matter and the legal issues raised, the Court considered it appropriate, and in the interests of the administration of justice, to refer the applicant for pro bono legal assistance pursuant to r 12.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). A referral certificate was issued in that regard on 23 February 2022.
At the time of the first scheduled hearing in this matter (on 7 April 2022), pro bono assistance had not been obtained and the applicant appeared at that hearing without legal representation. His sister attended with him to provide support and spoke briefly on the applicant’s behalf. The applicant was also assisted by an interpreter in the Farsi and English languages. Mr Tim Reilly of counsel appeared on behalf of the Minister. All parties appeared via video link.
The materials before the Court (at the time of the first Court hearing) included the application for judicial review and supporting affidavit filed by the applicant on 9 August 2021, a Court Book numbering 279 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 24 March 2022.
Following the hearing, the Court identified an issue which was not addressed by the parties and wrote to the parties the following day (on 8 April 2022) seeking comment on the following two questions:
1.Noting the comments made by Smith FM in SZLPN v Minister for Immigration & Anor [2008] FMCA 1434 (at [30]-[31]) and the decision in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152, was the “dismissal power” in this matter enlivened (pursuant to s 426A(1) of the Migration Act 1958 (Cth)) when the applicant failed to appear at a resumed hearing; and
2.If the power to dismiss the application for non-appearance was not enlivened (and the dismissal decision was/is thus invalid for jurisdictional error), does the invalid dismissal decision invalidate the subsequent decision by the Tribunal in this matter not to reinstate the application?
The Court requested further written submissions from the Minister addressing the two questions and made orders in that regard. Noting the legal complexity of the questions asked, the Court asked that those submissions be filed and served by 20 May 2022. The applicant was also granted leave to file any reply submissions by 1 July 2022.
On 21 April 2022, Mr Hamish Glenister of William Gerard Legal Pty Ltd accepted the Court’s pro bono referral. The Court thanks Mr Glenister for agreeing to assist in relation to this matter.
In the circumstances, the Court asked Mr Glenister to provide written submissions addressing the two questions asked by the Court (as outlined above) and to attend at any further hearing (should the Court determine that a further hearing was required).
On 19 May 2022, supplementary written submissions were filed on behalf of the Minister.
On 12 August 2022, the Court made orders (by consent) extending the time within which the applicant could file reply submissions.
On 22 August 2022, written submissions in reply were filed on behalf of the applicant.
On 2 September 2022, Mr Glenister contacted the Court requesting that the matter be listed for a directions hearing. He advised that the applicant was intending to seek leave to “reopen his case” and, if leave was granted, further orders for amending the application, filing any affidavits and further submissions and a re-listing of the matter for a further final hearing.
The parties ultimately agreed to the matter being reopened. The Court then made the following orders (by consent):
1.The name of the first respondent is changed to “Minister for Immigration, Citizenship and Multicultural Affairs.”
2. The applicant have leave to reopen their case.
3. By 4:00pm on 23 September 2022, the applicant shall file and serve:
3.1any amended application upon which the applicant intends to rely, giving complete particulars of each ground of review; and
3.2 any further written submissions.
4.By 4:00pm on 7 October 2022, the first respondent shall file and serve any further written submissions.
5.The application be listed for further hearing before a judge on 1 February 2023 at 1.00pm in the Federal Circuit and Family Court of Australia sitting at Perth.
6.The first respondent has leave to appear by video link at the further hearing pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
On 23 September 2023, an amended application was filed on behalf of the applicant. That amended application struck out the applicant’s original ground of review and added the following amended and particularised grounds of review:
1.The Tribunal decision not reinstate my application was unreasonable, especially because I was unwell at the time of the hearing.2.The Second Respondent (Tribunal) made a jurisdictional error by exercising its power to refuse to reinstate the Applicant’s application under s 426A(1C) of the Migration Act 1958 (Cth) (Act) in circumstances where that power did not arise due to the absence of a jurisdiction fact, namely a legally valid decision under s 426A(1A)(b) of the Act.
Particulars
a.The antecedent decision under s 426A(1A)(b) of the Act is vitiated by jurisdictional error due to the absence of an objective jurisdictional fact, namely a legally valid invitation issued to the Applicant under s 425 for the hearing on 21 April 2021, due to:
i.The purported invitation failing to contain a statement of the effect of section 426A of the Act as required by s 425A(4) of the Act; and/or
ii.The Tribunal failing to invite the Applicant under s 425 of the Act to the hearing; and/or
iii.The Tribunal having no power to re-issue an invitation under s 425 of the Act.
b.A legally valid decision under s 426A(1A)(b) of the Act is an objective jurisdictional fact which must exist in order for the Tribunal to exercise its power to refuse to reinstate an application under s 426A(1C) of the Act.
3.In the alternative, the Tribunal made a jurisdictional error by exercising its power to refuse to reinstate the Applicant’s application under s 426A(1C) of the Migration Act 1958 (Cth) (Act) on an incorrect understanding of the law, namely that a legally valid decision under s 426A(1A)(b) of the Act had been made.
Particulars
a.The antecedent decision under s 426A(1A)(b) of the Act is vitiated by jurisdictional error due to the absence of an objective jurisdictional fact, namely a legally valid invitation issued to the Applicant under s 425 for the hearing on 21 April 2021, due to:
i.The purported invitation failing to contain a statement of the effect of section 426A of the Act as required by s 425A(4) of the Act; and/or
ii.The Tribunal failing to invite the Applicant under s 425 of the Act to the hearing; and/or
iii.The Tribunal having no power to re-issue an invitation under s 425 of the Act.
b.An implied condition of the Tribunal’s power to refuse to reinstate an application under s 426A(1C) of the Act is that it be exercised on a correct understanding of the law.
c.The decision of the Tribunal to refuse to reinstate the Applicant’s application under s 426A(1C) of the Act on the incorrect understanding that there had been a legally valid decision under s 426A(1A)(b) of the Act was a breach of that implied condition and had the character of being legally unreasonable.
On 7 October 2022, further supplementary written submissions were filed on behalf of the Minister.
On 29 November 2022, an affidavit sworn by the applicant’s sister on 12 November 2022 was filed on behalf of the applicant.
The matter proceeded to a further final hearing on 1 February 2023.
The applicant was represented at that hearing by Mr Glenister. The Minister was represented by Mr Reilly (who again appeared via video link).
The Court thanks Mr Glenister and Mr Reilly for the clarity of their submissions (both oral and written) and the considerable assistance they provided the Court in this matter.
The additional materials before the Court thus include supplementary written submissions filed on behalf of the Minister on 19 May 2022, an outline of submissions filed on behalf of the applicant on 22 August 2022, an amended application for judicial review filed on behalf of the applicant on 23 September 2022, further supplementary written submissions filed on behalf of the Minister on 7 October 2022 and an affidavit sworn by the applicant’s sister on 12 November 2022 (filed on 29 November 2022 and taken as read and in evidence at the hearing on 1 February 2023).
CONSIDERATION
Legislative provisions
As agreed by the parties, the core issue in this matter is whether the Tribunal was legally permitted to dismiss the applicant’s review application without any consideration of his protection claims in circumstances where the applicant and his representatives had actively engaged with the Tribunal and had attended one scheduled hearing before the Tribunal but failed to attend a second adjourned/resumed hearing before the Tribunal.
Before considering that core issue, it is useful to first set out the relevant legislative provisions in non-appearance matters before the Tribunal.
Section 411 of the Act outlines the classes of visa decisions which are reviewable by the Tribunal under Part 7 of the Act and, relevantly, includes “a decision to refuse to grant a protection visa”: s 411(1)(c) of the Act. Further, when a valid application for review is made to the Tribunal, the Tribunal must review the decision: s 414(1) of the Act.
On review, the Tribunal may (ultimately) affirm or vary a decision, remit the matter for reconsideration, set aside and substitute a new decision or, if an applicant fails to appear, “exercise a power under s 426A” of the Act.
Section 425 of the Act requires that the Tribunal invite an applicant to attend a hearing before it. In particular, s 425 of the Act provides:
425 Tribunal must invite applicant to appear
(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 425A of the Act sets out the necessary requirements of such an invitation and, relevantly, provides:
425A Notice of invitation to appear
(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.
As outlined above, any notice given to an applicant must (in circumstances where an applicant is not in immigration detention) be given to an applicant by one of the methods specified in s 441A of the Act: s 425A(2)(a) of the Act.
Section 441A of the Act provides:
441A Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a)require or permit the Tribunal to give a document to a person (the recipient); and
(b)state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
…
Giving by hand
…
Handing to a person at last residential or business address
…
Dispatch by prepaid post or by other prepaid means
…
Transmission by fax, email or other electronic means
(5)Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e)if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.
Documents given to a carer
…
Further, as outlined above, any such notice must also include a statement detailing the effect of s 426A of the Act, which relevantly provides:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) 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.
Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B)If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
Note:Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C)On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a)if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
(b)confirm the decision to dismiss the application, by written statement under section 430.
Note 1:Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2:Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b)the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E)If the applicant fails to apply for reinstatement within the 14‑day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
Note:Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F)If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G)To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
Where an applicant is invited (under s 425 of the Act) to appear before the Tribunal, but fails to do so, the Tribunal may make a decision on the materials available at that time (without taking any further action to allow an applicant to appear before it) or (as happened in this matter) dismiss the application without any further consideration: ss 426(1A)(a) and (b) of the Act. The Tribunal can also adjourn the review to a later date: s 426A(2) and s 427(1)(b) of the Act.
Parties’ submissions
Minister’s further supplementary written submissions
The Minister’s submissions (filed on behalf of the Minister on 19 May 2022) relevantly provide:
(a)the power in s 426A(1)(b) of the Act was enlivened in the circumstances of this case. As explained by the Tribunal (at CB 217, [7]), after the first hearing on 21 December 2020 the applicant was invited, on 6 April 2021, to a resumed hearing on 21 April 2021 (CB 199-201). He accepted the invitation (CB 206-207) but did not attend the hearing;
(b)the comments in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152 (“SZFML”) at [79] seem to have been understood as suggesting that the Tribunal has no power to dismiss under s 426A of the Act at an adjourned hearing by Smith FM in SZLPN v Minister for Immigration and Citizenship [2008] FMCA 1434 (“SZLPN”) at [30]. However, that is incorrect. SZFML (at [79]) does not state that the power to dismiss under s 426A of the Act does not exist at an adjourned hearing. Rather, it relevantly states that “notification of a rescheduled hearing does not involve a fresh invitation for the purposes of s 425(1)” of the Act;
(c)SZFML (at [79]) should not be regarded as denying the availability of s 426A of the Act at an adjourned hearing. Section 426A(1) of the Act requires that an applicant has been invited under s 425 of the Act and does not appear on the day on which the applicant is scheduled to appear. There is no linguistic reason to read the latter requirement as being limited to the day scheduled in the original s 425 invitation, as opposed to a later invitation to a resumed hearing. Nor is there any apparent justification for limiting the availability of the s 426A power to the first hearing only, and not any subsequent hearings;
(d)ss 425 and 425A of the Act are to be read together: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [14] per Sundberg and Hely JJ. The former requires the Tribunal to invite an applicant to appear before it but contains no mechanism by which that invitation is to be extended. That is done in s 425A of the Act. If the Tribunal invites an applicant, under s 425 of the Act, it must do so in accordance with the requirements of s 425A of the Act. The Tribunal complied with those provisions when it issued the first hearing invitation on 2 December 2020 (CB 147-153). Therefore, the s 426A power was properly enlivened and could be exercised by the Tribunal at any subsequent hearing if the applicant failed to appear;
(e)the discretion conferred on the Tribunal by s 426A(1A) of the Act is, like all statutory discretions, one that must be exercised reasonably. However, it is a provision that expressly authorises the making of a decision without taking any further action to allow a review applicant to appear: Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439 at 445 [32] per Spender, French and Cowdroy JJ;
(f)in both SZVXH v Minister for Immigration and Border Protection [2017] FCCA 458 (“SZVXH”) at [73], [76] and EWU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2261 (“EWU17”) at [17] the Court referred to SZFML at [79] but accepted the s 426A power was available at an adjourned hearing;
(g)it may be noted that all of these cases concern a previous form of s 426A of the Act to that applicable in this case; and
(h)accordingly, the Tribunal did have power to dismiss the application at an adjourned hearing under s 426A of the Act.
Applicant’s submissions
The applicant’s submissions (filed on behalf of the applicant on 22 August 2022) relevantly provide:
(a)Invalid invitation. There is no mention of s 426A of the Act or its effect in the purported invitation (CB 199-201). It can hardly be supposed that Parliament intended, by enacting s 425A(4) of the Act, to make it optional for the Tribunal to inform an applicant about the strict consequences of failing to appear in accordance with an invitation issued under s 425(1) of the Act: Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 at [41]. The language of s 425A of the Act imposes mandatory obligations on the Tribunal in the relation to issuing invitations under s 425(1) of the Act, non-compliance with these obligations deprive it of the power to take the extraordinary step of dismissing an applicant’s application without consideration;
(b)the effect of the invalidity of the invitation is that one of the jurisdictional facts required for the powers under s 426A(1A) of the Act to be enlivened was not present: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [35]. The Tribunal had no power to dismiss the Applicant’s review application under s 426A(1A)(b) of the Act;
(c)further, or in the alternative, the Tribunal denied the Applicant procedural fairness by failing to include in the invitation a statement of the effect of section 426A of the Act. In order to demonstrate the materiality of this issue, it not necessary to articulate a specific course of action which could realistically have changed the result: Nathanson v Minister for Home Affairs [2022] HCA 26 at [2];
(d)No power to issue second invitation after appearance by Applicant on 21 December 2020. As discussed above, the statutory context establishes a clear distinction between the Tribunal’s power to adjourn and its power to schedule a hearing. There are markedly different consequences for non-appearance at an adjourned hearing and a hearing that has been scheduled;
(e)in SZFML, the Full Court at [79] construed the relevant provisions as follows (emphasis added):
Section 426A(2), under which the Tribunal may reschedule a hearing, is not apposite. That subsection is concerned with the case in which an applicant does not appear before the Tribunal on the appointed date and time. Section 426A(1) authorises the Tribunal to proceed to decision without further ado in the case of such non-appearance. What s 426A(2) makes clear is that the Tribunal is not bound to proceed to a decision then. It can reschedule the hearing. If express power to do that is necessary it is to be found, as an application of the general power to adjourn the review for which s 427 provides. Significantly, notification of a rescheduled hearing does not involve a fresh invitation for the purposes of s 425(1).
(f)what follows from SZFML is that there is only ever one invitation issued under s 425(1) of the Act and only one scheduled hearing. As such, the jurisdictional fact in s 426A(1)(b) can never be enlivened at a rescheduled or adjourned hearing and, therefore, the powers under s 426A(1A) can never arise. The legislative policy behind this is obvious and reflective of the statutory context, a failure to give information does not lead to outright dismissal but a failure to engage at all in the substance of the review process does;
(g)insofar as they stand for the proposition that the powers under s 426A(1A) of the Act can be enlivened at an adjourned or rescheduled hearing, the FCC cases referred to at [7] of the Minister’s supplementary submissions are plainly wrong and contrary to SZFML;
(h)Essential precondition. A decision that is vitiated by jurisdictional error is “regarded, in law, as no decision at all”: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 473 at 506 [76]. The question is whether the Parliament intended that the power to dismiss the application under s 426A(1A)(b) of the Act to be imperative or subject to inviolable limitations (being that it could only be performed if the objective factual preconditions prescribed in each of ss 426A(1)(a) and (b) of the Act actually existed): XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 (“XJLR”) at [43] (Rares J, Yates J agreeing);
(i)the dismissal without consideration of an application for review of a Part 7-reviewable decision (a protection visa decision) has the consequence that the review applicant in question, who may meet the criteria for the grant of the visa and who may be owed protection obligations under international law, will lose any further right to seek protection in Australia. Unless they can apply for another visa, which they often cannot, they will be liable to detention and removal from Australia: ss 189, 198 of the Act. This supports the construction that s 426A(1A)(b) of the Act is imperative or subject to inviolable limitations: XJLR at [45]-[46] (Rares J, Yates J agreeing);
(j)further, the Act draws a clear distinction between non-compliance which leads to dismissal without consideration and non-compliance which leads to no further action, but still requires consideration of the available materials. There is only one circumstance in which dismissal without consideration is permitted. The Parliament cannot be taken to have intended that this power could be exercised when that circumstance never existed. This further supports the construction that s 426A(1A)(b) of the Act is imperative or subject to inviolable limitations and, accordingly, that the decision to confirm the dismissal of the Applicant’s application was vitiated by jurisdictional error.
Minister’s reply submissions
The Minister’s submissions in reply (filed on behalf of the Minister on 7 October 2022) relevantly provide:
(a)the amended application contains two grounds;
(b)the first ground (ground two) claims there was not a legally valid invitation to the hearing on 21 April 2021. The ground claims the Tribunal’s invitation did not comply with s 425A(4) of the Act as it did not contain “a statement of the effect of s 426A” of the Act;
(c)the initial hearing invitation (dated 2 December 2020) (CB 150-153) plainly complies with s 425A(4) of the Act as it states (at CB 152.6):
If you do not participate in the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
(d)the applicant’s submissions rely on there being no equivalent statement in the invitation of 6 April 2021 to the adjourned hearing (CB 199-201). However, as held in SZFML (at [79]), “notification of a rescheduled hearing does not involve a fresh invitation for the purposes of s 425” of the Act. The s 425 invitation in this case was that of 2 December 2020, which, as previously explained, complied with s 425A(4) of the Act;
(e)the invitation of 6 April 2021 was not an invitation pursuant to s 425 of the Act but an invitation to an adjourned hearing which, following SZFML (at [77-83]), did not need to comply with s 425A(4) of the Act: see BVE16 v Minister for Immigration and Border Protection [2018] FCA 922 (“BVE16”) at [67]-[73]. The invitation of 6 April 2021 was therefore not invalid for the reasons relied upon by the applicant (or otherwise). Accordingly the first ground fails;
(f)the second ground (ground three) claims that the Tribunal’s reinstatement decision was predicated on there being a valid invitation to the rescheduled hearing on 21 April 2021. The ground fails for the same reasons as the first ground, namely that the invitation of 6 April 2021 was not an invitation under s 425 of the Act and so was not invalid for the reasons relied upon by the applicant (or otherwise); and
(g)to the extent that the first or second grounds claim that the Tribunal did not otherwise have power to dismiss the application pursuant to s 426A of the Act on 23 April 2021, they fail for the reasons given in the Minister’s Supplementary Submissions filed on 19 May 2022.
Applicant’s oral submissions
In oral submissions before this Court, Mr Glenister submitted as follows:
(a)there are three bases upon which the applicant says that the Tribunal’s Non-Appearance decision is affected by jurisdictional error, as follows:
(i)firstly, the purported invitation (dated 6 April 2021) to attend the second Tribunal hearing (scheduled on 21 April 2021) did not contain a warning to the effect of s 426A of the Act as required and was thus invalid (resulting in the Tribunal having no discretion to dismiss the application without consideration);
(ii)secondly, the document sent by the Tribunal to the applicant (through his second representative) on 6 April 2021 was not an invitation in any event, it merely gave the applicant notice of when the resumed or adjourned hearing would take place. That is, it was not a formal invitation for the purposes of s 425A of the Act and, again, the Tribunal had no discretion to dismiss the applicant’s application without further consideration; and
(iii)thirdly, once there is a scheduled hearing and an invitation is issued for the purpose of s 425 of the Act, no second invitation can be issued following the case in SZFML where the Full Court held that the Tribunal adjourning or rescheduling a hearing does not involve the issuing of a fresh invitation for the purposes of s 425A of the Act; and
(b)in relation to the third point, there is only ever one invitation to a hearing which is scheduled on a particular date and at a particular time. If an applicant fails to appear at that hearing, the Tribunal may dismiss the matter without any further consideration. However, this does not hold true for any subsequent or adjourned hearings. There was “only one specific set of circumstances in which the Parliament has allowed the Tribunal to dismiss a person’s application without consideration”. Further, there are other powers held by the Tribunal which allow for the Tribunal to dispense with a hearing or an application. However, they all involve considering the material that the Tribunal has before it (rather than simply dismissing the matter without consideration). Given the ramifications of dismissing a matter without consideration (particularly in a protection visa context), the power to dismiss without consideration should be narrowly confined to the specific set of circumstances contemplated by the legislation (being a failure to appear at a first hearing).
Minister’s oral submissions
In oral submissions before this Court, Mr Reilly (for the Minister) submitted as follows:
(a)the first point made by Mr Glenister in relation to the failure of the purported second “invitation” to include a statement to the effect of s 426A of the Act was incorrect on the basis of the cases of BVE16 (at [67]-[73]) and SZFML (at [77]-[83]) which clearly establish that if there has been an invitation that complies with s 425A of the Act, any subsequent invitation need not comply with the prescribed notice period requirement set out in s 425A(3) of the Act. It is “logical and necessary” that there is also no need to comply with the requirement in s 425A(4) of the Act in relation to the statement to the effect of s 426A of the Act;
(b)if the Court accepts that the initial hearing invitation (sent on 2 December 2020) contained a statement to the effect of s 426A of the Act (and thus complied with s 425A(4) of the Act), then that was all that the Tribunal was required to do because any subsequent invitation to an adjourned or resumed hearing are not invitations under s 425 of the Act;
(c)the remaining two arguments raised by the applicant must fail because s 426A(1) has two requirements – the first being that the applicant is invited under s 425 of the Act. This was done in the initial hearing invitation and, following SZFML, that only occurs once. The second is that the applicant does not appear before the Tribunal on the day or at the time or place they are scheduled to appear. It does not follow from SZFML (or the relevant legislation) that this is limited only to the day and time of the original invitation;
(d)it is a question of context and a purposive interpretation is required (rather than a literal one). Further, there is no obvious reason why the power to dismiss for non-appearance would only be granted in respect of non-appearance at a first hearing and not to any subsequent adjournments; and
(e)the decision of Smith FM in SZLPN was simply incorrect and contained a “clearly erroneous construction” which was not in accordance with the “majority of the FCC decisions and not one which Parliament can be taken to have intended given the consequences of depriving the Tribunal of power to dismiss for non-appearance at any hearing other than the very first notified hearing.
Court’s consideration
As noted above, the core issue before the Court is whether s 426A should be read such that Parliament can, in effect, be taken to have intended that the Tribunal can, contextually, only dismiss for non-appearance at a first notified hearing – not at an adjourned/resumed hearing at which an applicant does not appear in circumstances where the applicant did appear at the first hearing.
In this matter, the applicant was first invited (through his second representative) to attend a hearing on 2 December 2020. That hearing was scheduled to take place on 21 December 2020 (CB 147-153).
On 18 December 2020, the applicant’s second representative sought a postponement of that hearing on medical grounds (CB 156-157).
The Tribunal (also on 18 December 2020) refused the request for a postponement and confirmed that the hearing would take place on 21 December 2020 as scheduled (CB 158-161).
On 21 December 2020, the applicant appeared at the Tribunal hearing. He was assisted by his second representative and an interpreter in the Dari and English languages (CB 194-196).
At that (first) hearing, the Tribunal “took evidence from the applicant regarding his background and personal circumstances”. However, as the applicant’s second representative had indicated to the Tribunal that they had been unable to fully discuss their written submissions with the applicant, the Tribunal agreed to “leave discussion of [the applicant’s protection] claims until another date”. On that basis, the hearing was adjourned, with the Tribunal indicating that the hearing would continue on a later date (but not before February or March 2021).
On 6 April 2021, the applicant was notified (through his second representative) that the resumption of the adjourned hearing would take place on 21 April 2021 (CB 197-201).
On 21 April 2021, the applicant failed to appear at the adjourned/resumed Tribunal hearing. The applicant’s second representative was, however, in attendance, together with an interpreter (CB 211-212).
On 23 April 2021, the Tribunal dismissed the application for review for non-appearance at the adjourned/resumed hearing pursuant to s 426A(1A)(b) of the Act (CB 216-219).
This situation is contemplated by comments made by Smith FM in SZLPN as follows:
29.In its statement of reasons, the Tribunal noted that the applicant “did not appear before the Tribunal for the resumed hearing on the day and at the time and place at which he was scheduled to appear. 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”.
30.Section 426A(1) authorises the Tribunal to proceed in this manner if an applicant “(a) is invited under section 425 to appear before the Tribunal; and (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”. In SZFML (above), the Full Court held that this provision did not govern the powers of the Tribunal in a situation such as the present, where an applicant did appear at a hearing in response to an invitation, but did not appear at an adjourned or rescheduled hearing. Their Honours thereby settled some differences of opinion in this Court as to the situation where a rescheduled hearing was not notified in accordance with s 425A, as also occurred in the present case (see SZFIH v Minister for Immigration & Anor [2005] FMCA 1847; (2005) 196 FLR 126).
31.The Tribunal’s opinion that it was authorised by s 426A(1) not to take any steps to afford the applicant a further opportunity to appear at a hearing was therefore incorrect, regardless of the adequacy of the interpreting services provided at the hearing held on 31 July 2007. However, as I have noted above, it was common ground between counsel that, on the interpretation of the Act taken in SZFML, the Tribunal was bound to hold any rescheduled hearing at such time, and with such notice, as was reasonable in all the circumstances. The parties were at issue in the present case, whether the appointment of 1 August 2007 was reasonably made and notified to the applicant in the circumstances I have narrated above.
Arguably, Smith FM was of the view that, where an applicant had appeared at an initial hearing and then failed to appear at any subsequent hearing, the Tribunal could not proceed to determine a matter without taking any further action to have that applicant appear before it.
Unfortunately, the facts in SZLPN and the central issue for determination by the Court in that matter differ to those in the present matter. As a result, the decision in SZLPN does not adequately set out what the Tribunal could or should do in such circumstances. A similar concern arises in relation to the decisions in SZVXH and EWU17 relied upon by Mr Reilly. Those decisions are fact specific – as is this matter.
The Full Court of the Federal Court SZFML relevantly discussed the notification requirements for a rescheduled hearing as follows (emphasis added):
79.In dealing with an application for review the Tribunal has power, under s 427 of the Act, to ‘adjourn the review from time to time’. The review is a larger process than the oral hearing. The hearing is but a component of the review. Section 426A(2), under which the Tribunal may reschedule a hearing, is not apposite. That subsection is concerned with the case in which an applicant does not appear before the Tribunal on the appointed date and time. Section 426A(1) authorises the Tribunal to proceed to decision without further ado in the case of such non-appearance. What s 426A(2) makes clear is that the Tribunal is not bound to proceed to a decision then. It can reschedule the hearing. If express power to do that is necessary it is to be found, as an application of the general power to adjourn the review for which s 427 provides. Significantly, notification of a rescheduled hearing does not involve a fresh invitation for the purposes of s 425(1). But where the hearing is rescheduled, then it is implicit in the obligation imposed on the Tribunal under s 425A(1) that the Tribunal must give the applicant notice of the amended day on which, and time and place at which, the applicant is scheduled to appear.
The Full Court in SZFML also discussed the meaning of the word “adjourn” (citing SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [12]) as follows:
81.SZDQO was a case in which the rescheduling of the hearings was done at the instigation of the applicant for review. SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 was a case in which the Tribunal notified a hearing date then rescheduled because of telecommunications difficulties. When the applicant in that case was informed of the new hearing date he had not been given 14 days notice. Nicholls FM at first instance held that the hearing had been adjourned and that there was no prescribed time limit in relation to an adjourned hearing. Bennett J on appeal, was not satisfied that Nicholls FM was in error in holding that the Tribunal had adjourned the hearing. She said (at [12]):
‘Adjourn’ can mean to defer or put off or suspend in respect of something that has already commenced (see Shorter Oxford English Dictionary (fifth edition) and Macquarie Dictionary (revised third edition)). It can also mean to defer or postpone to a future meeting of the same body (Macquarie Dictionary).
Again, the decision in SZFML is not directly applicable to the circumstances of the present matter. While it is clear from SZFML that notification of a rescheduled hearing does not involve a fresh invitation for the purposes of s 425(1) of the Act, the issue in SZFML centred around whether the prescribed time from notice to hearing was applicable in relation to the rescheduled hearing. That being the case, SZFML also falls short of providing guidance in relation to what the Tribunal should or could do in matters of the sort currently before this Court.
The Court notes that, at the time of the decisions in SZFML and SZLPN, s 426A of the Act stated:
426A Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(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;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
Historically, and at the time of the decision in SZFML and SZLPN, the Tribunal was thus not able to dismiss an application for non-appearance. If an applicant did not appear at a hearing, the Tribunal had the discretion to either reschedule the hearing or make a decision on the review without allowing the applicant any further opportunity to appear before it.
On 18 April 2015, the Migration Amendment (Protection and Other Measures Act 2015 (Cth) repealed that version of s 426A of the Act and inserted the current provisions which, as outlined above, provide:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) 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.
Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
…
According to the Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth), the reason for this amendment was as follows (emphasis added):
356.The purpose of this amendment is to clarify that if the applicant fails to appear before the RRT in response to an invitation under section 425 of the Migration Act, the RRT has the option of dismissing the application or making a decision on the review, as is the case under current subsection 426A(1).
Unaided by authority directly addressing the issues arising in this matter, and noting the jurisprudence outlined above (in particular, the Full Court’s comments in SZFML that the notification of a rescheduled or resumed hearing does not involve a fresh invitation for the purposes of s 425(1) of the Act), the Court considers that the notification letter sent to the applicant in this matter on 6 April 2021 (notifying him of the resumed hearing on 21 April 2021) was not “an invitation” under s 425 of the Act.
On this basis, the Court determines that applicant in this matter did not “fail to appear” before the Tribunal at the second hearing in response to an invitation under s 425 of the Act.
In circumstances where the applicant was not “invited” (pursuant to s 425 of the Act) to appear at the second hearing on 21 April 2021, the requisite jurisdictional fact under s 426A(1)(b) of the Act did not arise and the Tribunal’s power to dismiss the application (for failure to appear) under s 426(1A)(b) of the Act was not enlivened.
As a consequence of the above, the Tribunal had no jurisdiction to simply confirm the now invalid Non-Appearance Decision.
In the alternative, should the Court’s analysis above be incorrect, the Court considers that the applicant’s appearance at an initial Tribunal hearing meant that it cannot be said that the applicant was “invited” (pursuant to s 425 of the Act) but did “not appear” when the applicant was “scheduled to appear”.
In this regard, the Court again notes the definitions of the word “adjourn” discussed by the Full Court in SZFML:
81.SZDQO was a case in which the rescheduling of the hearings was done at the instigation of the applicant for review. SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 was a case in which the Tribunal notified a hearing date then rescheduled because of telecommunications difficulties. When the applicant in that case was informed of the new hearing date he had not been given 14 days notice. Nicholls FM at first instance held that the hearing had been adjourned and that there was no prescribed time limit in relation to an adjourned hearing. Bennett J on appeal, was not satisfied that Nicholls FM was in error in holding that the Tribunal had adjourned the hearing. She said (at [12]):
‘Adjourn’ can mean to defer or put off or suspend in respect of something that has already commenced (see Shorter Oxford English Dictionary (fifth edition) and Macquarie Dictionary (revised third edition)). It can also mean to defer or postpone to a future meeting of the same body (Macquarie Dictionary).
Here, the applicant was validly invited to an initial Tribunal hearing by way of invitation dated 2 December 2020. That invitation was an invitation pursuant to s 425 of the Act and the applicant attended that initial hearing on 21 December 2020.
If the meaning of “adjourn” is taken to mean to “defer”, “put off” or “suspend” something that has already commenced (being the Tribunal hearing), and the applicant appeared at the first Tribunal hearing (which was then “already commenced” and, part way through, was “suspended” or “deferred”), it would seem to this Court that the applicant’s attendance at that hearing was also “suspended”. However, it cannot be said the he did not appear, at least in the first part of what was essentially a two-part hearing (which was commenced and then suspended), to present evidence in relation to his review application before the Tribunal.
In this regard, the Court also agrees with the submission made on behalf of the applicant that the legislative policy behind this is obvious and reflective of the statutory context – that is, a failure to give information does not lead to the outright dismissal of an applicant’s matter. However, a failure to engage at all in the substance of the review process does.
Context matters. The applicant in this matter applied for and was refused a protection visa by a delegate of the Minister. He sought review of that decision by the Tribunal. As a part of that review process, the applicant was invited to attend an initial hearing and he appeared at that hearing (on 21 December 2020). Additional materials were also provided to the Tribunal on that date. At the (first) hearing, assisted by his second representative, the applicant gave evidence regarding his background and personal circumstances. That (first) hearing was adjourned to a later date with the Tribunal indicating that the resumed hearing would not be before February or March 2021. The applicant was notified of the adjourned/resumed hearing (on 6 April 2021) but, unfortunately, did not appear at that hearing (on 21 April 2021).
The underlying difficulty, as recognised in SZFML, is that the Act envisages a review with one hearing that can be adjourned from time to time. It must follow from the text and the context that, once a review applicant has actually appeared at a hearing under s 425 of the Act to give evidence and present arguments, it cannot later be said that the applicant “failed to appear” at the s 425 hearing in the way contemplated by s 426A of the Act. If the s 425 hearing is adjourned and the applicant is absent when the hearing resumes, as was the case here, it cannot be said that the applicant has not appeared at the s 425 hearing “at all”.
Here, the applicant did appear at a s 425 hearing and did engage with the review. In the circumstances, the Tribunal was required to either adjourn the matter again or make a substantive decision on the materials available to it.
On the basis of the above, the Court considers it necessary that both the Tribunal’s Non-Appearance and Confirmation Decisions be set aside.
CONCLUSION
Within the specific context of this matter, the Court agrees with Mr Glenister for the applicant (in oral submissions before the Court – as detailed above at [67(b)]) that, within the context of s 425 of the Act, there is only ever one invitation to a hearing which is scheduled on a particular date and at a particular time. If an applicant fails to appear at that hearing, the Tribunal may dismiss the matter without consideration. However, this does not hold true for any subsequent or adjourned hearings. Further, given the ramifications of dismissing a matter without consideration, the power to dismiss without consideration should be narrowly confined to the specific set of circumstances contemplated by the relevant legislation (being a failure to appear at a first hearing). The Tribunal has a higher obligation in the context of matters like the one before this Court because the consequences for a protection visa applicant are (potentially) extreme.
For the reasons outlined above, the applicant’s amended judicial review application has identified jurisdictional error.
The Tribunal’s Non-Appearance and Confirmation Decisions will both be set aside and the matter will be remitted to the Tribunal for reconsideration.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 12 May 2023
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