DQB22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 934
•22 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQB22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 934
File number(s): BRG 502 of 2022 Judgment of: JUDGE COULTHARD Date of judgment: 22 October 2024 Catchwords: MIGRATION – Protection (Class XA) (Subclass 866) visa –– Administrative Appeals Tribunal –– judicial review –– legal unreasonableness –– whether the Tribunal misconstrued its statutory task as to whether it was appropriate to re-instate the application –– confirmation decision quashed –– matter remitted to the Tribunal Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 476
Migration Regulations 1994 (Cth)
Cases cited: CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] 377 FLR 90
EKM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1142
Minister for Immigration and Border Protection vSZVFW [2018] 264 CLR 541
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332
Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459
SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of last submission/s: 18 September 2024 Date of hearing: 18 September 2024 Place: Brisbane Counsel for the Applicants: The Applicants appeared in person. Solicitor for the Respondents: Ms Helsdon - Sparke Helmore Lawyers ORDERS
BRG 502 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQB22
First Applicant
DQC22
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
22 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is allowed.
3.A writ of certiorari issue directed to the second respondent, quashing its decision dated 17 October 2022.
4.A writ of mandamus issue directed to the Administrative Review Tribunal, requiring it to determine the applicants’ application for reinstatement, according to law.
5.The parties are to confer as to costs.
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 COULTHARD
INTRODUCTION
Before the Court is an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) which refused an application to reinstate an application for review and affirmed a decision of a delegate of the Minister for Home Affairs (as the Minister was then called) (“the delegate”), refusing the grant of a Protection (Class XA) (Subclass 866) visa.
BACKGROUND
Protection Visa Application
The first applicant and his wife (“the second applicant”) are citizens of India. They arrived in Australia on 3 June 2009 as holders of Student visas.
On 17 June 2016, the first applicant applied for a Protection (Class XA) (Subclass 866) visa (“the visa”) (Court Book (“CB”) 1-37). The second applicant did not raise her own protection claim and was included in the application as a member of the first applicant’s family
(CB13-37).
On 24 January 2020, the delegate refused to grant the first applicant the visa because the delegate was not satisfied that the first applicant was a person to whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”)
(CB 66-74). The delegate refused to grant the second applicant the visa on the basis that she was not a member of a family unit of a person to whom Australia has protection obligations and holds a Protection visa.
Application for review to the Tribunal
On 13 February 2020, the applicants applied to the Tribunal for review of the delegate’s decision (CB 75-77). The applicants appointed a registered Migration Agent as their representative and authorised recipient (CB 76).
On 14 July 2022, the Tribunal invited the applicants to a hearing in person on 17 August 2022 (“the first hearing invitation”) to give evidence and present arguments relating to the issues arising in the case (CB 88 - 92).
On 11 August 2022, the applicants’ Migration Agent informed the Tribunal that he would no longer be representing the applicants (CB 93). A “Change of Contact Details” form submitted on 12 August 2022 by the applicants appointed the second applicant as the authorised recipient and provided a nominated email address and mobile number for further correspondence between the Tribunal and the applicants (CB 95-101).
On 12 August 2022, the second applicant sent an email to the Tribunal which said “Request for hearing on 17th August over the phone” (CB 101).
On 12 August 2022, the Tribunal confirmed by email receipt of the request for a telephone hearing. The Tribunal advised that it could only consider the request (for a telephone hearing) in certain circumstances, otherwise it required the applicants to attend the hearing in person to give evidence. The applicants were asked to provide a detailed explanation and any supporting evidence of the reason for the request to attend by telephone. The Tribunal advised that the request would be considered by the Senior Tribunal Member and that if the information was not received, the hearing would proceed as scheduled as an in person hearing (CB 104).
The applicants did not attend the hearing scheduled for 17 August 2022 (CB 105-108). The Tribunal dismissed the application without further consideration of the application or information before the Tribunal (“the first dismissal decision”) (CB 112-113). The Tribunal notified the applicants by email of the first dismissal decision and informed the applicants that they had until 31 August 2022 to seek reinstatement of their application (CB 111).
On 31 August 2022, the applicants applied for reinstatement of their application for review (CB 114 - 115). The applicants’ reasons in support of the application for reinstatement were that they had requested the hearing to be rescheduled or held by telephone because they had cold and flu symptoms and had understood in a telephone communication with the Tribunal that the Tribunal had agreed to hold the hearing by telephone. The applicants asked the Tribunal to understand their situation and to reschedule the hearing or hold it by telephone so that they could present their case to the Tribunal.
On 1 September 2022, the Tribunal invited the applicants to attend an in person hearing on 16 September 2022 (“the second hearing invitation”) (CB 116-120). The Tribunal advised the applicants that it could not grant the request for a telephone hearing and that the applicants were required to attend in person. The Tribunal also requested the applicants to provide a medical certificate for their non-attendance at the hearing on 17 August 2022.
On 13 September 2022, the Tribunal reinstated the application (“the reinstatement decision”) (CB 122).
On 13 September 2022, the Tribunal invited the applicants to attend an in person hearing on 30 September 2022 (“re-scheduled second hearing invitation”) (CB 127-129). The Tribunal stated that it noted the applicants’ prior request to attend a hearing by telephone but said that it could not grant the request and stated that it required the applicants to attend the hearing in person. The Tribunal further said that it required the applicants to provide as soon as possible a doctor’s certificate for non-attendance at the hearing scheduled on 17 August 2022.
On 27 September 2022, the Tribunal sent an email to the second applicant noting the hearing scheduled for 30 September 2022 and confirmed that the hearing was in person (CB 130).
On 27 September 2022, the second applicant sent an email to the Tribunal requesting “you take my interview over the phone because we both are still suffering from cold and flu thanks” (CB 131).
On 27 September 2022, the Tribunal sent the second applicant an email advising that it had considered the request to change the hearing to video, but that it had decided not to and confirmed that the hearing would proceed in person. The email further stated that for the Member to further consider the request, medical documentation would be required to be provided before the hearing (CB 132).
On 29 September 2022, the second applicant sent an email to the Tribunal requesting that the hearing be conducted by telephone. The email stated, “I request for my hearing over the phone you ask me for medical evidence I don’t have Medicare or any other insurance so I am not able to see doctor I can’t afford doctor at this moment if possible I request you to take my hearing over the phone thanks” (CB 133).
On 30 September 2022, shortly prior to the time scheduled for the hearing, the Tribunal sent an email to the second applicant advising that “the Member has carefully considered the request to change the hearing via telephone, but has decided that the hearing is to take place in-person at the time originally designated (30 September 2022 at 9.30 am”) (CB 134).
The applicants did not attend the hearing on 30 September 2022 (CB 135).
The Tribunal dismissed the application because the applicants failed to attend and without further consideration of the application or the information before the Tribunal (“the second dismissal decision”) (CB 142-143). The Tribunal informed the applicants that they had until 14 October 2022 to seek reinstatement of the application for review (CB 138-141,144-147).
On 13 October 2022, the applicants sent an email to the Tribunal stating that “As I was requested we had cold and flu symptoms and due to that, we requested are hearing over the phone we don’t have any health insurance so, we aren’t able to provide any medical certificate we requested are hearing should be taken over the phone thanks” (CB 148).
On 14 October 2022, the Tribunal emailed the second applicant acknowledging receipt of the applicants’ request for reinstatement of the application. The email stated that the Senior Member requested that the applicants provide a medical certificate with a diagnosis and stated that the applicants were able to attend a public hospital without health insurance to obtain this evidence (CB 149).
The applicants did not respond to that request.
On 17 October 2022, the Tribunal confirmed its decision of 30 September 2022 to dismiss the application and confirmed the decision under review (“the confirmation decision”). The Tribunal gave written reasons for its decision (CB 153-155).
APPLICATION TO THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 11 November 2022.
The application only seeks judicial review of the confirmation decision.
The grounds of review set out in the application are (without alteration):
Ground One
In paragraph 8 to 10 of decision Tribunal member stated " 8. On 27 September 2022, the Tribunal emailed the applicants noting the upcoming hearing on 30 September 2022 and advising that a pre-hearing submission had not been received and confirming that the hearing was in person. The applicants responded via email requesting the hearing to be conducted over the telephone as they were still suffering from cold and flu. On 27 September, the Tribunal advised the Member had considered the request but had decided that the hearing would proceed person, and for their request to be considered further, the applicants were required to provide medical documentation before the hearing that was current for the date of the hearing.
9. The applicants did not appear before the Tribunal on 30 September 2022 at 9.30 am. No satisfactory reason for the non-appearance was given and at the time of the decision, the applicants had not contacted the Tribunal about their nonappearance.
10. On 13 October 2022 at 21.34 ACST, the applicants emailed the Tribunal advising that they had cold and flu symptoms but were unable to provide the requested medical certificate as they did not have health insurance. On 14 October 2022, the Tribunal emailed the applicants advising that it had received the reinstatement request and the Member had considered it and required them to provide a medical certificate with a diagnosis. The example of attending a public hospital for free to obtain a medical certificate was given. At the time of this decision, the applicants have not responded."
Response:
I have applied for Protection Visa. I am not working and being supported by friends. I had Tribunal hearing and I was sick with cold and flu symtoms. It might have been Covid so We isolated and were trying to recover. I requested Tribunal member to take my hearing over the phone as I want to attend the hearing but not able to come in person because of my health. Tribunal member asked me to provide letter from Doctor regarding my sickness. I advised Tribunal member in writing that I donot have Medicare card and not enough money to go to doctor and pay for his appointment. Pubic hospitals ask for medicare or any health insurance and I have nighter of those.I requested member to consider my case and do telephonic hearing. Tribunal member didnot consider my request and dismissed my case.
The way Tribunal acted was wrong. I wanted to attend hearing and requested hearing to be done over phone. Tribunal could have done hearing over phone or video but they refused my request and dismissed my application thus not giving me fair chance to present my case. Tribunal made jurdictionaI error in decision by not giving me fair chance to present my case. Even after my request to do hearing by phone as I cant attend hearing due to sickness, Tribunal officer refused my application without listening to my side and made error in their decision. This is highly unfair of not giving person chance to present their case when I was ready still they didnot consider.
The applicants also filed an Affidavit of the first applicant, the contents of which repeat the grounds of review in the application.
Procedural orders were made permitting the applicants to file an amended application with proper particulars of any ground of review, written submissions and any additional evidence on which they sought to rely. Orders were also made requiring the first respondent to file any written submissions and any additional evidence on which it sought to rely. Orders were also made as to the filing and service of a Court Book.
The applicants did not file an Amended Application, any further evidence in support of their application or written submissions.
The first applicant appeared in person. He was unrepresented. At the request of the applicants, the Court had arranged an Interpreter in the Punjabi language. Shortly prior to the hearing, the Court was informed that the interpreter was not available. Attempts were made to arrange another Interpreter. Before coming onto the bench my Associate informed me that whilst attempts were being made to arrange another Interpreter the first applicant informed my Associate that he wanted to proceed without an Interpreter. When the hearing commenced, I asked the applicant if it was the case that he wished to proceed without an Interpreter. He confirmed that he did. During the hearing, my observation was that the parties understood each other and understood the Court.
However, after the hearing concluded, upon reflection, I considered that the first applicant should be given an opportunity to make his submissions in Punjabi and have them translated into English and an opportunity to have the first respondent’s oral submissions translated from English into Punjabi. Accordingly, my chambers that afternoon contacted the parties. The applicant accepted the opportunity to appear before the Court again with the benefit of an Interpreter in the Punjabi and English languages. A rescheduled hearing date was arranged.
At the rescheduled hearing, the first applicant appeared unrepresented. He had the assistance of an Interpreter in the Punjabi and English languages.
The material before the Court included the Application, the first applicant’s Affidavit, the Response of the first respondent, the Court Book (which was made an exhibit in the proceedings), the first respondent’s written submissions, and an Affidavit of Ms Xylie Tran filed on behalf of the first respondent which Affidavit annexed a copy of the applicant’s Form 866C – Application for a Protection visa dated 17 June 2016. That document had been omitted from the Court Book by administrative oversight on the part of the first respondent.
The applicant did not have with him in Court the application, his own Affidavit, or any of the material with which he had been served. Accordingly, the Court provided the applicant with a copy of the material. At the commencement of the hearing, the applicant confirmed to the Court that he understood the first respondent’s written submissions and that he had had an opportunity for paragraphs 34 onwards of those submissions to be translated to him by the Interpreter. The Court also provided the applicant with a pen and paper so that he could take notes during the hearing should he wish to do so.
CONSIDERATION
For the applicants to be successful they must satisfy the Court that the Tribunal’s decision is affected by material jurisdictional error.
As the first applicant was unrepresented, the Court explained that the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error and that accordingly, the Court cannot make a decision on the merits of the applicants’ visa application. It was explained that the Court’s task is instead to determine whether there was a legal or procedural error by the Tribunal in its decision-making. In the event of such an error, it was explained that the Court would set aside the decision of the Tribunal and send the matter back to the Tribunal for a decision to be made according to law.
The application contains a single ground of review set out under the heading ‘Response’ in the application. As the first applicant was unrepresented, the Court has taken the approach of interpreting the applicants’ grounds of review as broadly as possible. On that approach, it can be fairly understood that the applicants are asserting that it was appropriate for the Tribunal to reinstate their application in circumstances where the reason for their non-attendance at the hearing in person was because they were unwell but were unable to provide a supporting medical certificate because of their lack of medical insurance and financial circumstances and, that this had been explained to the Tribunal prior to the scheduled hearing.
The second dismissal decision
The applicants do not seek judicial review of the second dismissal decision.
Nevertheless, the first respondent made submissions as to why it said that the second dismissal decision was not affected by jurisdictional error (First Respondents Submissions (“FRS”) [36] - [39]). Although not articulated in this way by the first respondent, the Court considers that it necessary to consider the exercise of the discretion to dismiss under s 426A(1A)(b) of the Act before turning to consider whether the confirmation decision is affected by jurisdictional error. If the second dismissal decision is affected by jurisdictional error, then this would necessarily vitiate the validity of the confirmation decision (CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] 377 FLR 90 at [9] per Kendall J; EKM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1142 (“EKM18”) at [30] per Champion J)
Compliance with statutory requirements
The first respondent correctly submitted that the power in s 426A of the Act can only be exercised if the requirements set out in ss 426A(1) of the Act have been complied with (SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 at [5] (“SZIGQ”) per Downes J).
The application for review does not identify any failure by the Tribunal to comply with the statutory requirements. For the reasons set out in the first respondent’s submissions (FRS [37]), the Court agrees that the hearing invitation of 14 July 2022 complied with the requirements of s 425A of the Act and that, accordingly, the Tribunal was entitled to dismiss the proceedings when the applicants did not appear before it on the date and time and at the place they were scheduled to appear.
Whether decision legally unreasonable
The Tribunal was, of course, not bound to take the course available to it pursuant to s 426A(1A) of the Act. The statutory power given by s 426A of the Act is in the nature of a discretion and involves a decision by the Tribunal as to the course which it will take. It is a power that is subject to the presumption that the legislature intends the power to be exercised reasonably (Minister for Immigration and Border Protection vSZVFW [2018] 264 CLR 541 (“SZVFW”) at [4] per Kiefel CJ). Legal unreasonableness may arise where an identifiable error is made in the reasoning or decision making process or, where a conclusion reached lacks evident and intelligible justification, or falls outside the range of possible acceptable outcomes which are defensible in respect of the facts and the law (Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ, [88]-[94] per Gageler J; SZVFW at [4] per Kiefel CJ, [53] per Gageler J, [89] per Nettle and Gordon JJ, [131] per Edelman J).
The first respondent submitted that, having regard to the objectives in s 420 of the Act, the Tribunal had exercised its discretion to proceed under s 426A of the Act in a way which was legally reasonable (FRS [39]) taking into consideration all the circumstances preceding the Tribunal’s second dismissal decision on 30 September 2022 which circumstances demonstrated:
(1)the Tribunal made three requests for the applicant to provide medical evidence, and none was provided;
(2)no explanation was provided for why a telephone hearing was required until after the matter was initially dismissed despite the Tribunal requesting an explanation;
(3)the applicants claimed to be suffering from cold and flu symptoms for an extended period of time from 13 August 2022;
(4)the Tribunal made clear on several occasions that the hearing would proceed in person as scheduled and that it would not conduct the hearing by telephone;
(5)the matter had been previously dismissed and reinstated giving the applicants a second opportunity to present their case.
The first respondent also referred the Court to the applicants’ lengthy migration history which, it was submitted, showed that the applicants were not unfamiliar with the Tribunal’s process (CB 67).
The first respondent further submitted that whilst the Tribunal had a discretion pursuant to s 429A of the Act to conduct a hearing by telephone a consideration relevant to the exercise of that discretion was whether evidence should be tested in person. The first respondent referred to the delegate’s decision recording the delegate’s concerns about the vagueness of the applicants’ evidence (CB 70). The first respondent submitted that this would have been a relevant consideration for the Tribunal in deciding whether a hearing should proceed by telephone. In making that submission, the first respondent agreed with the Court’s observation that the Tribunal did not give that as a reason as to why it would not schedule the hearing by telephone.
In its reasons for the second dismissal decision, the Tribunal recited the exchanges between the applicants and the Tribunal regarding the applicants’ request on 26 September 2022 for the hearing to be held by telephone because they were still suffering from cold and flu and the exchange that followed:
(1)The Tribunal’s advice to the applicants on 27 September 2022 that the member had considered the request but decided the hearing would proceed in person and that for the request to be considered further the applicants were required to provide medical documentation prior to the hearing;
(2)The applicant’s further request at 22.23 ACST on 29 September 2022 again requesting that the hearing be held by telephone and explaining that they do not have Medicare or other insurance;
(3)The applicants being advised at 9.18 ACST on 30 September 2022 that the member had considered the request and had decided the hearing would proceed in person.
After finding that the statutory requirements as to invitation to a hearing had been met, the Tribunal went on to conclude that no satisfactory reason for the non-appearance had been given and the applicants had not contacted the Tribunal about their non-appearance.
In its reasons, the Tribunal did not recite all of the procedural history including the first dismissal decision and the reinstatement decision although the Court notes that the member who made those decisions was the member who made the second dismissal.
It would, of course, be an error for this Court to find that the Tribunal had acted in way which was legally unreasonable in not acceding to the applicants’ request for a telephone hearing on the basis that the Court might have exercised the discretion differently (Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1at [90] per Wigney J). To do so would involve the Court engaging in impermissible merits review.
Having regard to the history of the matter, as outlined above, there was ‘justification, transparency and intelligibility’ for the Tribunal’s decision to proceed with an in person hearing as scheduled and to dismiss the application pursuant to s 426A((1A)(b). It could not be said that no sensible Tribunal acting with due appreciation of its responsibilities could not have taken the course that the Tribunal took (SZVFW at [69] per Gageler J).
Accordingly, the Court finds that the second dismissal decision was not legally unreasonable.
It is necessary then to consider whether the confirmation decision is affected by jurisdictional error.
The confirmation decision
In the event of a dismissal of proceedings pursuant to s 426A(1A)(b) of the Act, the applicant may, within 14 days of receiving notice of the decision to dismiss, apply to the Tribunal for reinstatement of the application. In that event, the Tribunal has a power to reinstate an application as a matter of discretion under s 426A(1C) of the Act.
Section 426A(1C) of the Act provides that:
On application for reinstatement in accordance with subsection (1B), the Tribunal must:
if it considers it appropriate to do so – reinstate the application, and give such directions as it considers appropriate in the circumstance, by written statement under section 426B; or
confirm the decision to dismiss the application, by written statement under section 430.
[underlining and emphasis added]
The Tribunal’s power to reinstate is conditional on the formation of a view as to whether it was ‘appropriate’ to reinstate. In Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459 (“Singh”), which dealt with a materially identical procedure in Part 5 of the Act, the Full Court said (at [10]) that the Tribunal is required to consider whether it is ‘appropriate’ to reinstate the application. If the Tribunal is not of that view, then the binary nature of the provision is that the Tribunal is required to dismiss the application.
If the Tribunal decides to dismiss the application it is required to do so by written statement under s 430: ss 426A(1C)(b). The written statement must set out the reasons for the decision setting out any material questions of fact and refer to the evidence or any other material on which the findings of fact were based.
Where reasons for a decision concern whether the Tribunal had reached the required state of satisfaction to make a particular decision the inference to be drawn from a failure to refer to a matter is that the matter did not activate the Tribunal when it formed the requisite state of satisfaction as to whether it was appropriate to reinstate the application (Singh at [15] per Colvin J citing AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103 at [61] per Tracey and Mortimer JJ and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34] per Katzmann, Griffiths and Wigney JJ).
After identifying the nature of the visa the subject of the application for merits review, the dismissal of that application on 30 September 2022 when the applicants did not appear at the time and date of the scheduled hearing the Tribunal gave the following reasons:
4. The applicants applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.
5. On 14 July the applicants were invited to appear before the Tribunal on 17 August 2022 and to provide all documents that they intended to rely upon by 10 August 2022. On 11 August 2022, the Tribunal emailed the applicants to advise that it had not received pre-hearing information from them.
6. The secondary visa applicant telephoned the Tribunal on 12 August 2022, concerned that she had missed her hearing and stating that she did not have the hearing invitation. She was advised that the hearing was on 17 August 2022. Her email address was confirmed and a copy of the hearing invitation was emailed on 12 August 2022, She asked if she could postpone or reschedule the hearing over the telephone and was advised that such a request needed to be in writing stating the reason for the request and proving any relevant evidence. An email was sent on 12 August 2022 reiterating this and advising '[i]f we do not receive this information, the hearing will proceed as currently scheduled as an in-person hearing'. No written request was received. On 12 August 2022, the secondary applicant emailed through a form dated 11 August 2022 and signed by the primary applicant withdrawing his previous authorisation and nominating the secondary applicant to act as his representative. He also agreed to receive communication by email. As no written request was received the hearing proceeded as scheduled. The review applicants did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with s 441A(5), the invitation has not been returned to sender, and that an SMS reminder was also sent to the review applicant about the hearing. No satisfactory reason for the non appearance has been given. On 17 August 2022, the Tribunal dismissed the application under s 426A(1A)(b) of the Act.
7. On 31 August 2022, the first named applicant emailed the Tribunal claiming that he was confused and thought that the hearing had been changed from in-person to by telephone, that he had cold and flu symptoms that were like COVID and asking for the opportunity to present his case. The Tribunal reinstated the application and invited the applicants to a hearing on 16 September 2022. Due to the Member's unavailability, the hearing was rescheduled to 30 September 2022.
8. On 27 September 2022, the Tribunal emailed the applicants noting the upcoming hearing on 30 September 2022 and advising that a pre-hearing submission had not been received and confirming that the hearing was in person. The applicants responded via email requesting the hearing to be conducted over the telephone as they were still suffering from cold and flu. On 27 September, the Tribunal advised the Member had considered, the request but had decided that the hearing would proceed in person, and for their request to be considered further, the applicants were required to provide medical documentation before the hearing that was current for the date of the hearing.
9. The applicants did not appear before the Tribunal on 30 September 2022 at 9.30 am. No satisfactory reason for the non-appearance was given and at the time of the decision, the applicants had not contacted the Tribunal about their nonappearance.
10. On 13 October 2022 at 21.34 ACST, the applicants emailed the Tribunal advising that they had cold and flu symptoms but were unable to provide the requested medical certificate as they did not have health insurance. On 14 October 2022, the Tribunal emailed the applicants advising that it had received the reinstatement request and the Member had considered it and required them to provide a medical certificate with a diagnosis. The example of attending a public hospital for free to obtain a medical certificate was given. At the time of this decision, the applicants have not responded.
11. The applicants have reported cold and flu symptoms since August and have not provided any supporting evidence.
12. The decision to dismiss the application is confirmed. In these circumstances, the decisions under review are taken to be affirmed.
The Tribunal has a statutory obligation to form an opinion or make an assessment as to whether reinstatement is appropriate having regard to all of the reasons advanced by the applicant to support reinstatement (Singh at [17] per Colvin J). Whether something is ‘appropriate’ requires the striking of a balance between relevant considerations to provide an outcome which is fit and proper, that is, which is both suited to the particular circumstances as well as sensible, right and proper (Singh at [29] per Colvin J citing Mitchell v The Queen (1996) 184 CLR 333 at 346 per Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
On 13 October 2022, the applicants advanced reasons for the reinstatement application in an email to the Tribunal. The applicants stated that they had cold and flu symptoms, were not covered by health insurance and so were unable to provide the requested medical certificate and that they had requested the hearing to be conducted by telephone (CB 148). These were the reasons the applicants had advanced in their correspondence to the Tribunal on 27 September 2022 and 29 September 2022 in requesting that the hearing be held by telephone.
On 14 October 2022, the Tribunal responded stating that it had considered the request for reinstatement and required the applicants to provide a medical certificate with a diagnosis. The Tribunal stated that “you are able to attend a public hospital without health insurance to obtain this evidence” (CB 149). As noted, the applicants did not respond to that request and the Tribunal then proceeded to determine the reinstatement application on 17 October 2022.
In the application for judicial review and in submissions in reply, the first applicant stated that attending a public hospital also required payment which he said the applicants could not afford. This was not a factor which the applicant raised in the reinstatement application. The first applicant did not make any other oral submissions in support of the application for judicial review. Otherwise, the applicants relied upon what was set out in the application for judicial review.
The first respondent’s submissions were directed to the question of whether the discretion was exercised in a way which was legally reasonable. In that regard, the first respondent relied upon all the circumstances above as to the second dismissal decision together with the events which occurred thereafter to submit that the confirmation decision was legally reasonable. The first respondent did not otherwise make submissions as to whether the Tribunal had properly reached the required state of satisfaction in making its decision to confirm the second dismissal decision.
Whether an applicant has a satisfactory reason for non-attendance at the scheduled hearing is a relevant factor in determining whether reinstatement is appropriate. It is not, however, a precondition to the exercise of the discretion (EKM18 at [51] per Champion J). There may be other factors relevant to the assessment.
Although in its reasons the Tribunal referred to the history of the proceedings leading up to the earlier reinstatement of the proceedings as reasons as to why it did not consider it appropriate to reinstate the proceedings it does not state how those factors were considered in the exercise of its discretion. Accordingly, it is apparent that the operative reason for not reinstating the proceedings was the Tribunal’s conclusion ([9]) that the applicants did not have a satisfactory reason for not attending the hearing on 30 September 2022 and that they had not contacted the Tribunal about their non-attendance ([9]).
The Tribunal does not explain why it considered that ill health was not a satisfactory reason for non-attendance ([9]). It seems implicit in the Tribunal’s decision that it considered ill health would only have been regarded as a satisfactory reason for non-attendance if supported by a medical certificate providing a diagnosis and stating that the applicants were unfit to attend an in person hearing. This is suggested by the Tribunal’s reference to the applicants having reported cold and flu symptoms since August but not having provided any supporting evidence ([11]). The Tribunal does not make any express finding to this effect in its reasons.
Further, the Tribunal does not consider the applicants’ statement that they were without medical insurance or the financial means to pay for a medical certificate and whether that circumstance was relevant to a consideration of whether it was appropriate to reinstate the proceedings. The applicants told the Tribunal this in their email to the Tribunal of 29 September 2022. This correspondence is simply not referred to.
The Tribunal refers in its reasons to its email of 14 October 2022 to the applicants requesting a medical certificate and giving to the applicants the example of attending a public hospital for free ([10]). The Court observes that this request was made some two weeks after the scheduled hearing. It is not clear how a medical practitioner would have necessarily been able to give a diagnosis of the applicants’ fitness to attend an in person hearing some two weeks previously. Accordingly, it is not obvious how a failure to provide that medical certificate in response to the request on 14 October 2022 was a factor relevant to the assessment of whether it was appropriate to reinstate the proceedings. If it were, then the Tribunal needed to explain this and how it had balanced that factor in determining whether reinstatement was appropriate.
Further, the Tribunal’s conclusion that the applicants had not contacted the Tribunal about their non-attendance ([9]) was not supported by the evidence. In coming to that conclusion, the Tribunal does not refer to the applicants’ email to the Tribunal of 29 September 2022 in which the applicants reiterate their request for a telephone hearing and state that they cannot afford a doctor. The Tribunal’s response to that email confirming that the hearing would proceed as scheduled in person was sent to the applicants 12 minutes prior to the start of the scheduled hearing. This exchange is not referred to and therefore not considered in the Tribunal’s reasons for decision.
In focussing on whether the applicants had a satisfactory explanation for not attending the hearing and doing so without engaging with the applicants’ explanation as to why they were unable to provide a medical certificate and further, in not considering that the Tribunal’s reply was sent to the applicants only 12 minutes before the scheduled commencement of the hearing suggests that the Tribunal misconstrued its statutory task.
In so focussing, the Tribunal did not consider the statutory context that the evident purpose of the reinstatement provision is to enable an applicant to have a matter decided on the merits. The assessment takes place in the context of the evident statutory purpose to provide an avenue to an applicant who had failed to appear at the scheduled hearing to have an application ‘dealt with on the merits rather than dismissed procedurally’ (Singh at [27] per Colvin J; EKM18 at [50] citing Singh). The Tribunal does not refer in its reasons to the applicants’ evident desire to present their case to the Tribunal.
Further, apart from noting at the commencement of its reasons that the application for review was of a decision of the delegate not to grant the applicants a protection visa, the Tribunal did not advert in its reasons to this context and that the confirmation decision would have significant consequences for the applicants (EKM18 at [69] per Champion J; FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1025 at [44] per Logan J). This factor has not been balanced by the Tribunal in its consideration of whether reinstatement was appropriate.
Of course, these considerations do not mean that the Tribunal was required to make a decision to reinstate the application. The Tribunal was, however, required to balance the considerations in order to reach an outcome that was fit and proper. By apparently ignoring those considerations the Tribunal took too narrow an approach to its statutory discretion and thereby fell into jurisdictional error.
Having decided that the Tribunal misconstrued its statutory discretion, it may be possible conclude that this also amounts to unreasonableness. However, in view of the conclusion reached in relation to the Tribunal’s statutory task, is not necessary to separately consider this.
CONCLUSION
The application is allowed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 22 October 2024
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