CZR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 199

Federal Circuit Court of Australia

CZR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 199

File number(s):	MLG 2257 of 2020
Judgment of:	JUDGE EGAN
Date of judgment:	11 February 2021
Catchwords:	MIGRATION – failure to grant an adjournment in circumstances where applicant was unable to secure legal representation during a period of COVID-19 lockdown – legal unreasonableness established – decision quashed
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 65, 501.
Cases cited:	Minister for Immigration and Border Protection v Pandey [2014] FCA 640. Minister for Immigration and Border Protection v SZVFW [2018] HCA 30. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. NADH of 2001 v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 214 ALR 264.
Number of paragraphs:	39
Date of last submission/s:	2 February 2021
Date of hearing:	28 October 2020, 2 February 2021
Place:	Brisbane
Counsel for the Applicant:	Ms Symons
Solicitor for the Applicant:	Victorian Legal Aid
Counsel for the First Respondent:	Mr Barrington
Solicitor for the First Respondent:	Sparke Helmore
Second Respondent	Submitting appearance save as to costs

ORDERS

MLG 2257 of 2020

BETWEEN:

CZR20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE EGAN
DATE OF ORDER:	11 February 2021

IT IS ORDERED THAT:

1.The Amended Application for Review filed on 12 October 2020 be granted.

2.The decision of the Administrative Appeals Tribunal made on 27 May 2020 be quashed.

3.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.

4.For the purpose of the Administrative Appeals Tribunal again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 27 May 2020.

5.The First Respondent pay the Applicant’s costs of and incidental to the Application for Review fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

Introduction

1. The applicant is a citizen of Vietnam who arrived in Australia in 1987 on a Humanitarian Visa. He was granted a Class BB Subclass (Five Year Resident Return) visa on 2 October 2000. On 20 April 2011, the applicant was granted a Class TA Subclass 773 visa. On 27 April 2012, the applicant was granted a Subclass 155 (Five Year Resident Return) visa after a delegate of the Minister decided not to exercise the discretion to refuse the visa despite the applicant failing the character test.

2. On 5 January 2016, the applicant’s resident return visa was mandatorily cancelled pursuant to the provisions of s. 501 of the Migration Act 1958 (Cth) (‘the Act’) whereupon he was placed in immigration detention.

3. On 28 February 2018, the applicant sought review of the decision to cancel his visa before the Administrative Appeals Tribunal (‘the Tribunal’). A judicial review application made to the Federal Court from such decision was unsuccessful, as was a subsequent appeal to the Full Court of the Federal Court.

4. On 18 October 2019, the applicant applied for a Protection Visa under s. 65 of the Act.

5. On 5 February 2020, a delegate of the Minister refused to grant the visa.

6. On 9 February 2020, the applicant applied for review of the delegate’s decision before the Tribunal.

7. On 2 March 2020, the Tribunal invited the applicant to give evidence and present arguments at a hearing on 25 March 2020.

8. On 10 March 2020, a friend of the applicants named Ms Nguyen emailed the Tribunal, saying that she and the applicant were seeking the assistance of a lawyer from Victorian Legal Aid to represent the applicant.

9. On 19 March 2020, the Tribunal wrote to the applicant stating that the hearing on 25 March 2020 would proceed via video conference because of the COVID-19 lockdown situation, the applicant being required to appear by video-link from the immigration detention centre where he was detained.

10. Also on 19 March 2020, Ms Nguyen wrote to the Tribunal stating that a lawyer had not been able to be obtained to represent the applicant, and asking for an adjournment of the Tribunal hearing. The email, purportedly authored by Ms Nguyen, provided as follows: [1]

    [1]           Court Book (CB) p. 762.

    “From:           Anna Luong

    Sent:              Thu, 19 March 2020 05:18:37 +0000

    To:                 National Registry Mailbox

    Subject:         Re: [File Number] – [CZR20] – VIC

    Dear Lawson

    I’ve tried my best and called around for a lawyer to act for [CZR20] but unfortunately, with the state of affairs with the virus at the moment, I’ve come up with nothing.

    [CZR20] has been attempting to get pro bono assistance, but in light of the current healthy situation, he has not been able to. [CZR20] hopping if the Tribunal to adjourn the matter as this situation is extremely disadvantageous to him, and it is critical that he had adequate representation and legal assistance, as this is his last avenue for merits review to have his claims and case heard.

    I hoping if you can AAT court can consider [CZR20] position and adjourn his matter because [CZR20] can not return to Vietnam any soon because of his position.

    Regards

    [Ms] Nguyen”

11. On 20 March 2020, the Tribunal wrote to the applicant refusing the request for an adjournment of the hearing made on his behalf by Ms Nguyen.

12. On 24 March 2020, Ms Nguyen again wrote to the Tribunal requesting a postponement of the hearing. [2] The letter was as follows:

    [2]           CB pp. 767 – 768.

    “From:           Anna Luong

    Sent:              Thu, 19 March 2020 05:18:37 +0000

    To:                 National Registry Mailbox

    Subject:         Re: [File Number] – [CZR20] – VIC

    Dear Lawson F,

    Case number: [Case number]

    REQUEST FOR HEARING POSTPONEMENT – [CZR20]

    I asking a request again for AAT Member for the upcoming hearing scheduled for 25 March 2020. at 11:00 am (VIC time) be conducted via video conference for the hearing to postpone – [CZR20] .

    I asking for an urgent decision of postpone for the hearing tomorrow because I was very confuse that the hearing was still continue by video conference when I received an email on the 20/03/2020.

    Today 24/3/2020, [CZR20] call me to inform that the hearing will still be on tomorrow at 11 am via a text message. Therefore, I have inform [CZR20] that the Hearing has been postpone and I was confuse on the email was send on the 20/3/20. I inform [CZR20] that I will call up AAT court and ask regarding this matter. However, I have call up the AAT court and has spoken to Registrar person and I have explain [CZR20] position.

    I asking the AAT member could consider compelling reason for postpone [CZR20] hearing tomorrow on the base that [CZR20]

    - doesn't have a legal aide lawyer to assistance [CZR20] on his matter

    - [CZR20] has left Vietnam on a boat when he was 17 years old and struggle with his life in Australia , [CZR20] cannot read or write in Vietnam or English and unable to write any submission to support his matter.

    - [CZR20] has a mental disorder of not remembering where his head was injury in a car accident previously in 1995.

    - [CZR20] wife [CZR20’s wife] is unable to financial [CZR20] for a private lawyer because he has 10 kids and his wife is unable to fun for a private lawyers to represent him in this matter because He family is struggling on a financial hardship at the moment with 10 kids and that he is in detention when current healthy situation of the coroavirus.

    -I am Ask for the Tribunal to adjourn the matter as this situation is extremely disadvantageous to him, and it is critical that he had adequate representation and legal assistance, as this is his last avenue for merits review to have his claims and case heard.

    - I have try contacting the following service to attempting to get pro bono assistance as follow:

    Victoria Legal Aid- Phone: [phone] or 9269 0234, Refugee Legal Phone: [phone], Asylum legal, Phone: [phone]. because of coronavirus temporary very hard to get an assistant at this time.

    However, Joanna Abraham Lawyer Victoria Legal Aid, Civil Justice Program, t: [phone] | f: [phone] | e: [email protected].

    Ms Joanna has also ask around for a pro bono assistance on [CZR20] matter but it was not successful.

    I hopping from this second email, [CZR20] is asking the AAT Member to consider he situation is extremely disadvantageous to him, and it is critical that he had adequate representation and legal assistance as this is his last avenue for merits review to have his claims and case heard.

    I will Waite for AAT respond

    Regards

    [Ms] Nguyen”

13. In response to the 24 March 2020 letter sent by Ms Nguyen, the Tribunal responded by letter also dated 24 March 2020 as follows: [3]

    [3]           CB pp. 771 – 772.

    “

    Migration and Refugee Division

    Case number: [Case number]

    24 March 2020

    Dear [CZR20]

    REQUEST FOR POSTPONEMENT – [CZR20]

    I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.

    The Tribunal received your authorised recipient Ms Nguyen’s further request for postponement of hearing scheduled for tomorrow, 25 March 2020.

    The Tribunal has carefully considered Ms Nguyen’s most recent request, on your behalf, for postponement of your hearing scheduled on 25 March 2020 at 11.00am via video conferencing facility. The postponement request on 24 March 2020 by email has been refused by the presiding Member.

    The Tribunal has taken steps to inform you and your authorised recipient that the postponement request made on 19 March 2020 had been refused.

    The issues around a lack of legal representation have already been addressed in the earlier correspondence by the Tribunal regarding the refused postponement request.

    There will be an opportunity at the beginning of the tomorrow’s hearing for you to request for an adjournment of the hearing. The Tribunal is interested in discussing directly from you about the mental health reasons for an adjournment. However it does not have any medical evidence from a medical professional as to the reasons that the scheduled hearing should not proceed.

    Please note that if you do not attend the hearing, it is open to the Tribunal to dismiss matter or affirm the delegate’s decision not to grant a protection visa based on his non-appearance.

    If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

    Yours sincerely

    Jacqui P

    For the Registrar

    Telephone: [Omitted]

    Attachments

    further copy of Tribunal’s 19 March 2020 letter ‘Hearing by Video Conference – [CZR20]”

    (Underlining added)

14. The hearing before the Tribunal took place on 25 March 2020. It was conceded by Counsel for the first respondent that as at the date of the Tribunal hearing on 25 March 2020, the State of Victoria was in a state of COVID-19 lockdown.

    Grounds for Review

15. Ground 1 of the Amended Application for Review filed on 12 October 2020 provided as follows:

    1.“The decision of the Tribunal not to exercise its statutory power under s. 427(1)(b) of the Migration Act 1948 (Cth) (the Act) was legally unreasonable.

    Particulars

    (a) On 25 March 2020, at the commencement of the Tribunal hearing, the Tribunal made a decision to refuse to grant the applicant’s request for an adjournment of the hearing so that he could obtain the assistance of a registered migration agent (adjournment decision).

    (b) The Tribunal gave reasons for the adjournment decision which appear at [43] of its written statement of reasons (adjournment reasons).

    (c) The adjournment reasons identify six matters that informed the Tribunal’s adjournment decision.

    (d) None of these six matters, whether operating singularly or in some combination, supply the necessary evident or intelligible justification so as to avoid the characterisation of the adjournment decision as unreasonable.”

16. Contrary to what the Tribunal said in its 24 March 2020 letter to the applicant about the Tribunal not then having any medical evidence from a medical professional as to the reasons why the scheduled hearing should be adjourned (see underlined portion of Tribunal 24 March 2020 letter above), the Tribunal did have before it all of the medical reports which had been considered by the delegate (as dot pointed on page 5 of the delegate’s decision dated 5 February 2020) [4] as follows:

    •  “A psychiatric report from consultant psychiatrist Dr Kevin Ong, dated 3 July 2014;

    •  A psychiatric report from consultant psychiatrist Lester A. Walton, dated 18 June 2014;

    •  A letter from psychiatry registrar ‘Dr Clayer’, dated 10 June 2014;

    •  Documents from Sunshine Adult Acute Psychiatric Unit, Sunshine Hospital, relating to the applicant being hospitalised in June 2013;”

    (Footnotes omitted)

    [4]           CB p. 704.

17. Had the Tribunal investigated the representations made by Ms Nguyen in her adjournment applications on behalf of the applicant to the effect that the applicant could not read or write in either the Vietnamese or English languages, and that he also suffered from a mental disorder affecting his memory arising out of a car accident in 1995, it would have appreciated that the applicant, at the time of the making of the adjournment applications, suffered from ‘very serious mental health conditions’ and ‘a very serious psychiatric condition’ which would have been likely to place him in a position of substantial disadvantage when called upon to make submissions in support of his claims during any tribunal hearing. The Tribunal made those very findings in its reasons handed down on 27 May 2020, some two (2) months after the holding of the Tribunal hearing. [5]

    [5] See [120] and [121] of Tribunal’s reasons.

18. In such circumstances, the Tribunal ought to have appreciated that the applicant’s lack of legal or migration agent representation at the hearing before it would have placed the applicant in such a position of substantial disadvantage so as to render the conduct of a hearing unfair. The Court finds that a Tribunal acting reasonably would have not only appreciated the difficulties then experienced by litigants due to COVID-19 restrictions, but it ought to have also appreciated that a person with severe psychiatric disabilities such as the applicant would have been even more adversely impacted than able-bodied litigants of sound mind. Mr Barrington of Counsel, appearing on behalf of the first respondent, very properly conceded that people who suffer from severe mental disabilities are to be treated differently when requesting an adjournment from others who do not suffer from such a disability.

19. An affidavit sworn by one Ms Saravanamuthu was filed on 20 November 2020. Ms Saravanamuthu was a solicitor employed on a full-time basis by the Asylum Seeker Resource Centre (ASRC). Her affidavit addressed the difficulties contemporaneously experienced by litigants generally due to COVID-19 lockdown restrictions. Ms Saravanamuthu’s affidavit relevantly provided as follows:

    “3. The ASRC is a human rights organisation providing support to people seeking asylum. The Human Rights Law Program (HRLP) is a community legal centre within the ASRC which provides free legal information, advice and representation to members of the public. To seek assistance from the HRLP, members of the public need to contact the HRLP's telephone advice service on 0478 700 605 between the hours of 10.30am to 12pm on Mondays and Thursdays. The HRLP also accepts internal referrals from other ASRC programs and external referrals from organisations through our email address - [email protected]. From 23 March 2020, the HRLP's office commenced working remotely due to COVID-19.

    4. From 23 March 2020, the HRLP commenced recording the number of telephone calls received to our phone advice line that were not answered. For the period 23 March to 3 April 2020, we recorded more than 260 missed telephone calls, plus over 150 additional missed calls received outside our usual phone advice hours. Currently, we are receiving around 40 missed calls per week during phone advice hours.

    5. It has been my experience that, beginning in March of this year, refugees and people seeking asylum have found it very difficult to access legal advice and assistance, including from the HRLP for the following reasons:

    a. Many people seeking asylum with language barriers and/or other vulnerabilities found it more difficult to access remote legal services by phone and email, especially at the start of COVID-19 when less online material was translated into different languages;

    b. As job losses increased as a consequence of COVID-19 restrictions and related factors, people who previously could afford private lawyers could no longer afford paid representation and instead sought free assistance from community legal centres such as the HRLP; and

    c. Increased job losses for people seeking asylum impacted their ability to follow up on their legal matters as they were forced to prioritise securing basic necessities for their families such as food and shelter, in addition to internet/phone costs to access remote legal services.

    6. On 18 September 2019, the HRLP was contacted by email by Joanna Abraham at Victoria Legal Aid who sought to refer the Applicant for assistance to apply for a protection visa. On 23 September 2019, the HRLP advised Ms Abraham that it did not have capacity to assist the Applicant at that time.”

20. Another affidavit also filed on 20 November 2020 was sworn by one Ms Abraham, a lawyer employed by Victoria Legal Aid (VLA). That affidavit relevantly provided as follows:

    “3. Between June 2018 and September 2019, I was the Applicant’s instructing solicitor for his Federal Court proceedings seeking judicial review of a decision of the First Respondent not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 (Five Year Resident Return) visa pursuant to s 501CA of the Migration Act 1958 (Cth).

    4. Victoria Legal Aid Handbook for Lawyers (VLA Handbook) prescribes the criteria that must be met in order for an individual to qualify for a grant of legal assistance. These criteria are referred to in the VLA Handbook as ‘guidelines’. VLA’s Commonwealth Civil Law Guidelines for migration cases do not expressly provide for a grant of aid to be made to assist an individual to lodge a protection visa application with the Department of Home Affairs (Department), or an application with the Administrative Appeals Tribunal (Migration and Refugee Division), the Second Respondent, for merits review of a decision by the First Respondent to refuse to grant a protection visa. Annexure JA-1 is a copy of that document.

    5. On 19 November 2020, I accessed the Federation of Community Legal Centres (VIC) ‘Find a Community Legal Centre’ on their website at Uniform Resource Locator (URL): I searched for community legal centres with the filter ‘asylum’ and made a copy of those search results. Annexure JA-2 is copy of that document.

    6. On 19 November 2020, I accessed the Refugee Council of Australia’s fact sheet on accessing legal or migration advice available on their website at Uniform Resource Locator (URL): On that webpage I accessed the table listing the community legal centres in each state and territory recorded as providing free services to people seeking asylum. Annexure JA-3 is copy of that document.

    7. On 18 September 2019, I assisted the Applicant, through Ms Thi Mai Huong Nguyen (also known as Anna Nguyen) (Ms Nguyen), to request legal assistance from the Asylum Seeker Resource Centre (ASRC) to prepare and lodge the Applicant’s protection visa application. On 23 September 2019, ASRC advised it did not have capacity to assist and recommended the Applicant contact Refugee Legal for assistance. Annexure JA-4 is copy of that document.

    8. On 18 September 2019, I assisted the Applicant, through Ms Nguyen, to request legal assistance from Refugee Legal to prepare and lodge the Applicant’s protection visa application. On 25 September 2019, Refugee Legal requested further documents from the client, and further material was provided that same day. On 9 October 2019, Refugee Legal advised it did not have any capacity to assist that week but the Applicant could try them again “in a week or two”. Annexure JA-5.

    9. On 15 October 2019, Refugee Legal advised me that it was unable to assist the Applicant to lodge a protection visa application. On 23 October 2019, Refugee Legal advised that, at that moment, it did not have capacity to assist further with the protection visa application. Annexure JA-6 is copy of that document.

    10. On 18 October 2019, Ms Nguyen assisted the Applicant to lodge an application for a protection visa. On 24 October 2019, the Department sent a letter to Ms Nguyen inviting the Applicant to attend a protection visa interview on 30 October 2019.

    11. On 24 October 2019, I assisted the Applicant, through Ms Nguyen, to request legal assistance from Refugee Legal for the protection visa interview. On 25 October 2019, Refugee Legal advised in writing by email that it did not have capacity at that time to assist the Applicant. Annexure JA-7 is copy of that document.

    12. On 4 November 2019, I wrote to Ms Nguyen by email reiterating previous advice that VLA is unable to provide the Applicant with legal assistance for his protection visa process as it falls outside VLA guidelines for assistance. Annexure JA-8 is copy of that document.

    13. On 5 February 2020, a delegate of the First Respondent made a decision refusing to grant the Applicant a protection visa.

    14. On 7 February 2020, Ms Nguyen assisted the Applicant to lodge an application for merits review of the delegate’s decision with the Second Respondent.

    15. On 2 March 2020, the Second Respondent wrote to Ms Nguyen by email inviting the Applicant to attend a hearing listed for 25 March 2020.

    16. On 3 March 2020, Ms Nguyen wrote to me by email advising of the hearing date, that she was “unable to act for him” and “please it urgent if you can request a legal lawyer to act for him”. Annexure JA-9 is copy of that document.

    17. On 4 March 2020, I assisted the Applicant, through Ms Nguyen, to request legal assistance from Refugee Legal for the Tribunal process, noting the listed date for the hearing. On 6 March 2020, Refugee Legal advised in writing by email it was unlikely it would be able to assist but asked that the delegate’s protection visa refusal decision be provided to it. Annexure JA-10 is copy of that document.

    18. On 18 March 2020, I wrote to Ms Nguyen by email to advise “I’ve tried my best and called around, but unfortunately, with the state of affairs with the virus at the moment, I’ve come up with nothing. […] All I can really do is suggest writing to the AAT to advise that Uncle Phat has been attempting to get pro bono assistance, but in light of the current healthy [sic] situation, he has not been able to. Ask for the Tribunal to adjourn the matter as this situation is extremely disadvantageous to him, and it is critical that he had adequate representation and legal assistance, as this is his last avenue for merits review to have his claims and case heard.” Annexure JA-11 is copy of that document.

    19. On 23 March 2020, Refugee Legal wrote to me by email to ask if the Tribunal hearing was still going ahead. That same day, I replied by email advising it was and a request for adjournment was unsuccessful. Annexure JA-12 is copy of that document.

    20. On 19 November 2020, I accessed the Organisation for Economic Co-operation and Development (OECD) website at Uniform Resource Locator (URL): I accessed the policy brief titled ‘Access to justice and the COVID-19 pandemic’ co-authored by the OECD and the Law & Justice Foundation of New South Wales, dated 25 September 2020. Annexure JA-13 is a copy of that document.

    21. On 19 November 2020, I accessed the Law Council of Australia’s ‘Access to Justice and COVID-19’ webpage at Uniform Resource Locator (URL): I accessed the Speech delivered by Pauline Wright, President of the Law Council of Australia at the LAWASIA Human Rights Webinar, on 2 June 2020. Annexure JA-14 is a copy of that document.

    22. On 19 November 2020, I accessed the Federation of Community Legal Centres (VIC) website at Uniform Resource Locator (URL): I accessed the report ‘Legal need and the COVID-19 crisis’ dated April 2020 and made a copy of that document. Annexure JA-15 is copy of that document.

    23. On 19 November 2020, I accessed the Federation of Community Legal Centres (VIC) website at Uniform Resource Locator (URL): I accessed the report ‘2019-20 Annual Report (pdf)’ and made a copy of that document. Annexure JA-16 is copy of that document.

    24. On 19 November 2020, I accessed Victoria Legal Aid’s ‘Service update and COVID-19 response’, published on 20 March 2020, available on their website at Uniform Resource Locator (URL): I made an offline copy of that webpage. Annexure JA-17 is copy of that document.”

1. The difficulties associated with litigants appearing in court, or before a tribunal, during the course of a COVID-19 lockdown would have well been appreciated by the Tribunal.

2. At [43] of the Tribunal’s reasons, the Tribunal set out its reasons for refusing the application to adjourn the hearing as follows:

   “[43] At the beginning of the hearing, the applicant informed the Tribunal that Ms Nguyen was not a registered migration agent and that he and his wife were still looking for one. The Tribunal said that he had used a lawyer during his cancellation appeals and that this application for review for a refused protection matter had been lodged with the Department since October 2019 and with the Tribunal since February 2020, and that this was ample time for both him and his wife to locate a migration agent to provide assistance and advice in relation to this protection visa application. The Tribunal also explained that the Tribunal could not delay indefinitely a matter involving an applicant who was detained under s.189 of the Act. The applicant’s wife was invited to comment on this matter in which she said that her husband was very afraid and she wanted him out of detention. The Tribunal said that it would be mindful of the applicant’s mental health condition in the way the hearing was conducted. The Tribunal accordingly proceeded with the hearing.”
   
   (underlining added)

3. It is curious that the Tribunal would have called in aid the proposition that matters involving applicants detained under s. 189 of the Act ought not to be delayed “indefinitely”, particularly having regard to the rapid progress of this matter from the time of the making of the Protection Visa application in October 2019 until the matter being listed for hearing before the Tribunal on 25 March 2020 – a mere period of some 6 months. It is this Court’s experience, and it was conceded by both Counsel, that such timeframe was comparatively short.

4. It is also curious that the Tribunal recorded that it would be mindful of the applicant’s mental health condition in the way the hearing was conducted, notwithstanding that the Tribunal had obviously not been aware of the serious psychiatric disabilities suffered by the applicant either at the time that it sent its letter refusing an adjournment on 24 March 2020, or at the commencement of the hearing as earlier referred to.

5. There is of course no hard and fast rule which is able to be applied when a Tribunal is asked to adjourn a matter. Each application for adjournment must be looked at in its own factual context. The applicant in this matter, however, had a complex history of drug abuse and criminal convictions overlayed by serious psychiatric conditions. Those were matters about which the applicant, by reason of such psychiatric conditions, was unable to adequately make representations in support of his Protection Visa claims. The applicant’s claims for protection were set out at [23] of the reasons of the Tribunal as follows:

   •  “The applicant was born in an area of South Vietnam that is now part of Bac Lieu province. His mother passed away when he was eight years old;

   •  His father was part of a communist group fighting against the government in Vietnam. As a fisherman, his father helped members of his communist group flee Vietnam;

   •  The Vietnamese Government became aware of his father’s activities, and attempted to hunt him down and kill him. Police shot and badly wounded his father, however, he recovered.

   •  His father decided his family needed to flee Vietnam for their safety. Some of his sisters fled Vietnam first. Later on he fled Vietnam with his father and one of his sisters, escaping by sea;

   •  He has been stateless since this time. Their boat was intercepted by the Malaysian Border Force. They did not have identity documents when detained and his father changed their dates of birth to protect them;

   •  In August 1987 they were taken to Pulau Bidong refugee camp in Malaysia;

   •  His elder sister, who was already in Australia, sponsored him, his father and his sister, to come to Australia as refugee migrants;

   •  On 8 September 1987 he travelled to Australia with his father and sister.

   •  The applicant also claimed to have mental health issues and has been diagnosed with schizophrenia and depression. He has been taking medication and has received counselling.

   •  In 1995 he was involved in a car accident that led to him having short-term memory problems.

   •  He has a history of drug addiction, including use of heroin, marijuana and amphetamines.

   •  Drugs are viewed very badly by the Vietnamese Government.

   •  If he returns to Vietnam he will likely end up being jailed indefinitely due to previously seeking asylum, his father’s political background, his criminal record, and his drug and mental health issues.

   •  He will be discriminated against and not have adequate legal help due to a lack of funds.

   •  He fears being harmed and poorly treated in jail in Vietnam.

   •  He will be arrested, tortured and killed by the authorities for fleeing Vietnam.

   •  He will be unable to find work to survive in Vietnam. He is functionally illiterate in English and Vietnamese, and left school when he was six years old.

   •  He would be unable to access government services as he could not afford to pay the requisite bribes. This would mean he would be unable to obtain identity documents and this would negatively affect his ability to apply for a job or attain basic living rights. The authorities may even try to extort money from his family.

   •  His friend, [Name omitted] ([DOB omitted]), who was deported from Australia to Vietnam in July 2019 was arrested upon return due to previously organising for others to flee abroad from Vietnam. He fears the same thing will happen to him.

   •  His family would not be safe if they visited him in Vietnam.

   •  He has previously returned to Vietnam on three occasions – once alone and two times with his wife and children.

   •  He only stayed in Vietnam for short durations as he still fears that the Vietnamese

   •  Government will find out his true identity and past.

   •  The authorities in Vietnam will not protect him as they are the ones who would want to jail him;

   •  He cannot relocate within Vietnam to avoid harm as he would be required to register with local police, and they would be aware that he had moved to a new area.”

6. He needed legal representation to enable him to have his claims for protection properly presented. The Tribunal ought to have appreciated that that was the case. The Court accepts the submission made on behalf of the applicant that the applicant’s past criminal convictions and past drug use constituted, in part, reasons why the applicant ought not to be returned to Vietnam. It was asserted that if he was returned to Vietnam he would be jailed indefinitely due to such matters.

7. The Court finds that the Tribunal’s failure to grant an adjournment to the applicant, in all of the circumstances, was arbitrary, capricious, without common sense and plainly unjust. This was the first occasion on which the matter had been listed for hearing before the Tribunal. It was not a case of an application for adjournment being refused on the basis of “enough is enough”. The Court respectfully adopts what was said in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 per Wigney J at [41] and [42] on the question of adjournments as follows:

   “[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh).  The relevant principles may be summarised as follows: 

   (a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably:  Li at [29], [63], [88]; Singh at [43].

   (b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process.  Or it can be a conclusion reached without necessarily identifying another jurisdictional error:  Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].

   (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].

   (d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

   (e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].

   (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].

   (g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].

   (h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case.  A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review:  Li at [100]-[102].

   (i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence.  It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].

   (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker:  Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].

   [42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable.  Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”

8. The Court further respectfully adopts what was said in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, per Kiefel CJ at [10] and [11] as follows:

   “[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.

   [11] Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”

9. The Court finds that the refusal of the adjournment application was both legally unreasonable and one lacking an evident and intelligible justification as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

10. The applicant has established that the Tribunal erred in failing to grant the adjournment application made on his behalf. The error was material, in that the granting of the application for the adjournment could have realistically resulted in a different decision being made after the Tribunal had received considered submissions. As was said in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:

    “[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

    [46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”

11. The Tribinal erred in failing to grant an adjournment of the hearing, and that error was jurisdictional in nature.

12. Ground 2 of the Amended Application for Review was a claim that the Tribunal’s decision was affected by apprehended bias. Such ground provided as follows:

    2. “The Tribunal’s decision is affected by apprehended bias

    Particulars

    (a) The particulars to ground 1 are repeated.

    (b) The Tribunal engaged in conduct, including through statements made in the course of the Tribunal hearing held on 25 March 2020, that suggested that the Tribunal, in making a decision on the applicant’s review application, might have been influenced by its view taken as to the nature of the applicant’s criminal offending and, relatedly, that because of the applicant’s offending, the applicant did not deserve further opportunities to remain in Australia, including because he posed a risk to his wife and children.

    (c) In circumstances where the views apparently held and communicated by the Tribunal had no bearing on the statutory questions that the Tribunal was required to consider, this created a situation where a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question the Tribunal was required to decide.”

13. It was submitted that the Tribunal was fixated upon the applicant’s past criminal history and that it therefore was biased in its approach to the applicant’s claims. It was submitted that because the matter before the Tribunal concerned an application for a protection visa, the Tribunal ought to have confined itself to a consideration as to whether the applicant satisfied the relevant criteria for the grant of a protection visa under either s. 36(2)(a) or s. 36(2)(aa) of the Act. Counsel for the applicant took the Court to parts of the transcript where it was submitted the Tribunal was biased because of its having focussed upon the applicant’s past criminal history. [6] The Court does not accept such submissions.

    [6]           See Transcript (T.) being Annexure “GJH-1” to the affidavit of Gregory Hanson filed on 12 October

    2020 at P 29.30–.40, P 44.25–.46 and P 54.28–.42.

14. Though the Tribunal did address the applicant’s past criminal history, it did so because the applicant had included such criminal history as part of its claim that the applicant would be imprisoned indefinitely if returned to Vietnam, the submission being that as he had been convicted of criminal offences in Australia, he would as a consequence be regarded as a criminal warranting indefinite incarceration in Vietnam. The Tribunal addressed that very matter at Transcript P 55.32–56.7 when it said as follows:

    “MEMBER: But I’m not - it’s not a character matter. You can be a terrible person and be found to be a refugee. I’m not making an assessment on your character. I’m making an assessment on your personal circumstances, your economic circumstances, your mental health circumstances. What will happen to you in Vietnam and whether you are a refugee or not, or whether you are owed complimentary protection or not. I’m not making an assessment on your character. It’s not relevant. It’s not relevant. So on the one hand you’ve committed a terrible crime and you’ve committed many crimes and you have tried to argue today that because of those crimes you will be persecuted in Vietnam.

    So in a sense part of your argument today is that you are not a person of good character, the Vietnamese government will think that you should be locked up because you committed crimes in Australia. That’s what you’ve argued today and that’s what I’ve got to consider. So actually the things that go against your character might actually lead me to think that you are a refugee or that you’re owed a protection visa. But this isn’t 1987 and Vietnam is a very different place to the one that you left as a young man. So I will give you an opportunity to provide anything that you think might help me make my decision. It might be a media report that’s 5 relevant about your experiences.”

15. The Court finds that the Tribunal was not biased in the manner in which it conducted the hearing. It was entitled to test the applicant’s propositions and claims in a robust and forthright manner. As was said in NADH of 2001 v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 214 ALR 264 per Allsop J at [19]:

    “[19] Third, the place of a decision-maker such as the tribunal here should be recognised as different from a judge in open court: Jia at CLR 563–4; ALR 465; Laws at 70–1; ALR 435–6; Ebner at CLR 343–4; ALR 646–7. The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.”

    Conclusion

1. The Court has found that the Tribunal erred in failing to grant an adjournment to the applicant in all of the circumstances.

2. The applicant has established jurisdictional error on the part of the Tribunal.

3. The order of the Court is that the decision of the Tribunal be quashed.

4. The Court will hear the parties as to costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       11 February 2021