Ekm18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1142
•5 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EKM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1142
File number: MLG 2566 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 5 December 2023 Catchwords: MIGRATION LAW – Protection Visa – Tribunal dismissed application due to Applicant’s non-appearance – Whether it was legally unreasonable for the Tribunal not to adjourn hearing or legally unreasonable to dismiss the application on the Applicant’s non-appearance – Where it was reasonable for the Tribunal not to adjourn the application and to dismiss the application on the Applicant’s non-appearance – Whether the Tribunal misconstrued its statutory task as to whether it was appropriate to reinstate the application – Where the Tribunal in error found that a pre-condition to reinstate was a satisfactory explanation for non-appearance and did not consider other matters advanced – Confirmation decision quashed – Matter remitted to the Tribunal Legislation: Migration Act 1958 (Cth) ss. 426A, 426B, 427, 477 Cases cited: FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1025
Kang v Minister for Immigration [2017] FCCA 2785
M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 1
Minister for Immigration and Citizenshipv Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Border Protection vStretton (2016) 237 FCR 1; [2016] FCFCA 11
Minister for Immigration v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Mitchell v The Queen (1996) 184 CLR 333; [1996] HCA 45
Singh v Minister for Immigration and Border Protection and Another (2018) 266 FCR 459; [2018] FCAFC 184
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of last submissions: 12 October 2023 Date of hearing: 12 October 2023 Place: Melbourne Counsel for the Applicant: Ms E Levine Solicitor for the Applicant: Victoria Legal Aid Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2566 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EKM18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
5 DECEMBER 2023
THE COURT ORDERS THAT:
1.The First Respondent’s name is changed to “Minister for Immigration, Citizenship and Multicultural Affairs.”
2.Further to the orders made on 14 September 2023, by consent the Applicant is granted an extension of time until 14 September 2023 to apply for judicial review of the decision (if any) of the Second Respondent on 28 June 2018 to refuse an adjournment pursuant to s. 427(1)(b) of the Migration Act 1958 (Cth) and the decision of the Second Respondent to dismiss the Applicant’s review application pursuant to s. 426A(1A)(b) of the Act.
3.A writ of certiorari is issued bringing the decision of the Second Respondent dated 24 July 2018 into this Court and quashing it.
4.Further to order 3, the Tribunal is ordered to renotify the Applicant of the dismissal decision made on 28 June 2018 pursuant to s. 426B of the Act.
5.A writ of mandamus is issued directing the Second Respondent to re-determine according to law any subsequent application of the Applicant to reinstate his application made under s. 426A(1B) of the Act.
6.The First Respondent pay the Applicant’s costs in a sum to be fixed if not agreed.
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 CHAMPION:
INTRODUCTION
On 28 June 2018 the Applicant did not attend a scheduled hearing as to his protection visa application before the Tribunal. He had telephoned the Tribunal a few minutes beforehand and said that he did not think he could attend as he lived in Springvale, too far from Melbourne where the hearing was to occur. In this court, the Applicant characterises his phone call as an adjournment application. The Tribunal did not adjourn the hearing pursuant to s. 427(1)(b) of the Migration Act 1958 (Cth) and on the Applicant’s non-appearance dismissed the application without any further consideration of the application or information before it pursuant to s. 426(1A)(b) of the Act.
The Applicant sought reinstatement of his application within 14 days pursuant to s. 426(1B) of the Act. The Tribunal did not consider it “appropriate” to reinstate the application and on 24 July 2018 confirmed this decision to dismiss the application: s. 426(1C).
The Applicant challenges the Tribunal’s decision not to adjourn the hearing on 28 June 2018 and its decision to dismiss the application on 28 June 2018 on the basis that both decisions were legally unreasonable. There was no identifiable error in the Tribunal’s reasoning in its exercise of its discretion to dismiss the application. Further, adopting an outcome focus, the non-adjournment and the dismissal decision were legally reasonable and within the range of possible, acceptable outcomes defensible in respect of the facts and the law. Ground 1 has not been made out.
In these reasons, I have next considered Ground 3. In my view, Ground 3 has been made out. The Tribunal adopted an unduly narrow approach in its consideration as to whether it was “appropriate” to reinstate the application. In error, it exercised its discretion on the basis that it ought only to reinstate the application if the Applicant met a pre-condition that he had a satisfactory reason for his non-appearance on 28 June 2018. There was no warrant in the statute to require a satisfactory explanation for non-appearance as a precondition to whether it was “appropriate” to reinstate the application. The discretion miscarried because the Tribunal did not take into account broader relevant considerations including: that the Applicant had given an explanation for his non-attendance (even if that explanation was not satisfactory); that the Applicant had a concerted engagement (4 contacts within 14 days) with the Tribunal after the dismissal of his application; that the Applicant said he had documents relevant to his merits review application; and that there was a broader context within which the Applicant sought a protection visa which meant that there were potentially significant ramifications for the Applicant if the Tribunal did not reinstate his application.
In circumstances in which it is possible to identify specific errors in the exercise of the Tribunal’s statutory power, Ground 2 has also been made out and the decision was legally unreasonable, by reason of those specific errors: see Minister for Immigration v SZVFW (2018) 264 CLR 541; [2018] HCA 30, [81].
Procedural and evidential issues
On 14 September 2023, some weeks before the final hearing, by consent the Court granted an extension of time under s. 477(2) of the Act for the Applicant to challenge the Tribunal’s decision on 28 June 2018 to dismiss the application under s.426(1A)(b).
For the avoidance of doubt, also by consent, at the hearing on 12 October 2023, I indicated that I would make a further order that the order for an extension of time also applies to any application for judicial review of the Tribunal’s decision (if any) made pursuant to s. 427(1)(b) not to adjourn the hearing on 28 June 2018.
I admitted into evidence documents the Tribunal held on its case management database as to various dealings between the Applicant and Tribunal staff: see, Affidavit of Mr Gregory Hanson, the Applicant’s lawyer, filed 14 September 2023.
BACKGROUND AND PROCEDURAL HISTORY
The Applicant is ethnically Bengali from Karen State in Myanmar. He is Muslim. He says he is stateless (CB13–14).
On 9 January 2013 the Applicant arrived in Australia as an unauthorised arrival (CB14).
On 7 March 2013 the Applicant made a statutory declaration that as a Bengali and as a Muslim he was persecuted in Myanmar (CB28). He also alleged that he would suffer serious harm if he returned to Myanmar (CB29).
On 4 April 2013 the Applicant applied for a Protection (Subclass 886) Visa (CB99). Following legislative amendments, the application was taken to be, and assessed as, an application for a Temporary Protection (Class XD) (Subclass 785) Visa (CB99).
On 15 October 2015, I note for completeness that the Applicant made a further statement which was before the Tribunal, and which included a statement that he believed “the Burmese government don’t wish to recognise us and at the same time they discriminate us in religion, ethnicity and other areas like education” (CB96; as written).
On 18 November 2015 the delegate refused to grant the Visa (CB99–120).
Tribunal Application
On 7 December 2015 the Applicant lodged a review application in the Tribunal (CB121–122).
On 11 May 2018 the Tribunal invited the Applicant to attend a hearing before the Tribunal on 28 June 2018 at 9.30 am (CB128–130). This invitation letter included a statement that “we have considered the material before us but we are unable to make a favourable decision on this information alone.” The invitation noted that a Burmese interpreter had been engaged for the Tribunal hearing. The invitation and accompanying information leaflet set out consequences of non-attendance at the scheduled hearing including that the Tribunal may dismiss the review application without any further consideration of the application or the information before it. The relevant parts of the invitation and accompanying invitation leaflet were subsequently reproduced in the Confirmation Decision (CB153-154, [5]-[6]).
On 29 May 2018 South East Community Link (SECL), an organisation which had provided informal assistance to the Applicant, sent a return email to the Tribunal (CB131) which attached a “Response to the hearing invitation” that the Applicant had signed (see: CB141, [2]). As a result, when the Tribunal considered whether to dismiss the Applicant’s application on his non-appearance on 28 June 2018, it knew that from late May 2018 (at the latest) the Applicant was aware of the scheduled hearing on 28 June 2018 because he had signed the response to the hearing invitation.
28 June 2018 – The Applicant’s communication about his non-attendance and the Dismissal Decision
On 28 June 2018, the date of the scheduled hearing, a note on the Tribunal’s case management database records as follows (Affidavit of Mr Hanson, GJH-1, p. 7):
The PRA, [name omitted] called the tribunal and asked what time his hearing is today at the tribunal. I confirmed his identity and told him that his hearing was scheduled for today at 9:30am, I noted that it was a few minutes before 9:30am.
The PRA said that he does not think he can attend as he lives in Springvale, which he said it is too far to come to the city. He said that he had spoken to his case manager about it. I asked him if the case manager was from the tribunal. He said that he wasn't but he could not explain which department he was from.
I told the PRA that he would have to provide the tribunal with the written reasons he could not attend the hearing, with supporting documentation like medical certificates. I told him that he would need to supply these as soon as possible for the member to consider.
The PRA said he understood and the call ended.
[Emphasis added]
On 28 June 2018, following the phone call, the Applicant did not attend the scheduled Tribunal hearing.
On 28 June 2018 (at 9.45 am) 15 minutes after the hearing was scheduled to commence the Tribunal declared that the Applicant was a “no show” (CB134–135).
On 28 June 2018 (at 3.03 pm) the Tribunal dismissed the Applicant’s application pursuant to s. 426A(1A)(b) because he had failed to attend the scheduled hearing (CB140–141). With apparent reference to the note on the Tribunal’s database of the Applicant’s contact with it a few minutes before the scheduled 9.30 am decision (above), the Tribunal’s Dismissal Decision included the following (CB141):
4. Tribunal records indicate that the applicant telephoned the Tribunal a few minutes before the scheduled commencement time of the hearing and asked what time his hearing is today at the Tribunal. He was informed that it was scheduled for today at 9:30 am and it was noted that it was a few minutes before 9:30 am. The applicant said that he does not think that he can attend as he lives in Springvale, which he said is too far to come to the city. He said that he had spoken to his case manager about it. He was informed that he would have to provide the Tribunal with written reasons why he could not attend the hearing, with supporting documentation like medical certificates, and that this should be provided as soon as possible. He indicated that he understood.
5. In this phone conversation the applicant did not indicate that he was unwell or provide any other reason why he had failed to attend the hearing.
6. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
On 28 June 2018 (at 3:19 pm), just 16 minutes after the Dismissal Decision[1], the Applicant sent his written reasons as to why he could not attend the hearing (CB137). It included an explanation that he had changed case managers from SECL to AMES and was unable to obtain his documents from either case manager. He wrote (among other matters):
[…]i couldn't get any documents to bring with me today so i failed to come to the hearing. I have been advised to bring all of my documents for the day of hearing previously.
my case manager have just recently changed from SECL to AMES Australia. I know it is a very vital and important but please accept my apology for not attending. It will be really appreciated if you can please reschedule the hearing which i can confirm that i will attend
[As written]
[1] Although the email’s timestamp [CB137] recorded that it was sent at 5.19 pm, it was common ground that the Tribunal received the email at 3:19 pm.
By a letter dated 28 June 2018, following the Dismissal Decision (and which letter did not refer to the Applicant’s communication at 3.19 pm), the Tribunal informed the Applicant that he must apply in writing before 23 July 2018 for reinstatement of his application (CB138):
You may apply to us, in writing, for reinstatement of the application by 23 July 2018. 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 each of 4 July 2018, 9 July 2018 and 11 July 2018, the Applicant engaged with the Tribunal with a view to reinstating his application. The details are below.
On 4 July 2018 the Tribunal’s document database recorded the following (GJH-1, p. 6):
RA telephoned saying that he recd a letter from the trib but that he already sent an email why he was not able to attend his June hearing.
[…]
He repeated that he sent an email to the trib why he could not attend his hearing. I told him that the trib sent him a letter which he needs to reply to ASAP as his reply is due by 23 July 2018 and when his reply is received, it would be referred to trib member for consideration. He said that he would write to the trib.
On 9 July 2018 the Applicant wrote to the Tribunal that: “I am in the process of obtaining legal advice. I request that a decision is not made on whether to reinstate my case at any time before the response deadline on 23 July 2018” (CB145).
The reinstatement application
On 11 July 2018 the Applicant emailed the Tribunal applying for reinstatement of the application. The Applicant’s email of 11 July 2018 is annexed in full at Annexure A to these reasons as it appears at CB146–147 (subject to names being redacted). The Applicant explained that he did not attend the scheduled hearing because he was unable to retrieve documents that he had left with a case worker from SECL. The Applicant wrote that he “was concerned that if I went to the hearing without these documents the hearing would not go well for me.” The Applicant detailed his version of the contact with the Tribunal on the morning of 28 June 2018 to “ask for an extension”. The Applicant detailed that he wrote a letter later that day after his case manager assisted him in setting up an email account and he sent the 3.19 pm email later that day (CB137, above). The Applicant further wrote that he was afraid to attend the hearing without his documents and feared that his lack of English fluency and understanding of the visa process would result in a bad outcome. The email of 11 July 2018 concludes with the Applicant requesting that the Tribunal “take this into account when considering whether to renew my matter…”.
24 July 2018 – Confirmation Decision
On 24 July 2018 the Tribunal made its Confirmation Decision (CB152–157, [1]–[17]). The details of its decision are set out in the discussion of Ground 3 below.
JUDICIAL REVIEW APPLICATION
In his amended application filed 14 September 2023, the Applicant set out three grounds of judicial review.
Ground 1: Was the Tribunal’s dismissal decision pursuant to s. 426A(1A)(b) and/or its failure to exercise the power in s. 427(1)(b) to adjourn the review on 28 June 2018 legally unreasonable?
It was common ground that the Applicant’s challenge to the Tribunal’s decision(s) on 28 June 2018 relied on the same set of facts. Further, without making any concession that there was an application for an adjournment, the First Respondent accepted that if the Tribunal’s decision not to grant an adjournment pursuant to s. 427(1)(b) was vitiated by legal unreasonableness, that legal unreasonableness necessarily cross-infected the Dismissal Decision on the same day (T63; L1).
Legal Principles
SZVFW happened to concern the particular statutory discretion in this case under s.426A(1). In SZVFW, Gageler J (as his Honour then was) held at [69]:
Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear,
[…]
Ordinarily, it could not later be said on judicial review that “no sensible [Tribunal] acting with due appreciation of its responsibilities” could have taken that course.
Legal unreasonableness may arise by way of “specific errors” in the exercise of a statutory power identifiable from the reasoning process. Alternatively, a conclusion of legal unreasonableness may be “outcome focused” where there is no evident and intelligible justification for the decision or the decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law: SZVFW, [81]-[82] (Nettle and Gordon JJ).
In Minister for Immigration and Border Protection v Stretton(2016) 237 FCR 1; [2016] FCAFC 11 at [90], Wigney J held that the critical point was that “the court’s role is strictly supervisory”. If there was an “evident, transparent and intelligible” justification for the decision or the decision was within the “area of decisional freedom […] it would be an error for the court to overturn the decision simply on the basis that it would have decided the matter differently”: Stretton, [92] (Wigney J).
Section 427(1)(b) – Adjournment
The Tribunal’s discretion under s. 427(1)(b) to “adjourn the review from time to time” was a statutory discretion conditioned by a requirement that it be exercised in a legally reasonable way: Minister for Immigration and Citizenshipv Li (2013) 249 CLR 332; [2013] HCA 18, [23]–[26] (French CJ); [63] (Hayne, Kiefel and Bell JJ); [88]–[92] (Gageler J).
In this case, there are no Tribunal reasons as to its non-adjournment of the application on 28 June 2018. Any conclusion of legal unreasonableness as to the non-adjournment must be outcome focused: SZVFW, [82].
The Applicant submitted that the contact between the Applicant and a Tribunal representative a few minutes before his scheduled hearing at 9:30 am on 28 June 2018 was “in substance […] a request for an adjournment” (Applicant’s submissions, [18]). I do not accept this submission. I accept the Tribunal’s contemporaneous note in its database as the most reliable account of the communication. Although the Applicant said he could not attend because he was in Springvale which was too far from the city, that was an explanation for his non-attendance which is different in substance from an adjournment request.
The Applicant nonetheless submitted that the Tribunal had a discretion to adjourn even in the absence of a request and not adjourning in those circumstances regardless of whether an adjournment request was made was legally unreasonable. Assuming that the Tribunal had a power to adjourn event in the absence of an application, it was reasonable for the Tribunal not to adjourn its scheduled hearing in the circumstances. Firstly, the Tribunal had invited the Applicant to attend the hearing in compliance with its statutory obligations. Secondly, the Applicant had known about the hearing for some weeks: he himself had signed the response to the hearing invitation on or about 29 May 2019, more than 3 weeks previously. Thirdly, the Applicant’s communication to the Tribunal about his non-attendance was unsatisfactory as to its timing and as to its substance. As to its timing, it was unsatisfactory that he said he could not attend just a few minutes before the scheduled Tribunal hearing. As to its content, his only proffered reason for not being able to attend the Tribunal was unsatisfactory in circumstances in which he lived in metropolitan Melbourne. Focusing on the non-adjournment outcome, it could not be said that no sensible Tribunal acting with due appreciation of its responsibilities could have taken that course: SZVFW, [69].
As the Tribunal expressly noted in its decision (CB141, [5]), the Applicant proffered no truly substantial reason that he could not attend. He did not indicate that he was unwell or provide any other reason for his non-attendance. The Applicant did not explain at that time that he had changed case managers.
In the exercise of its discretion as to adjourn, it was open to the Tribunal not to adjourn given the timing and content of the Applicant’s contact with a Tribunal representative on the morning of 28 June 2018 and previous communications from the Tribunal to the Applicant in compliance with the statute.
Section 426A(1A)(b) – The Dismissal Decision
The Tribunal’s statutory discretion to dismiss the application pursuant to s. 426A(1A)(b) was also conditioned by a requirement that it be exercised in a legally reasonable way.
The Applicant pointed out a factual distinction between this case and the facts in SZVFW. In SZVFW, the applicants “without explanation failed to appear.” In this case, the Applicant, in contrast, had telephoned the Tribunal a few minutes before the scheduled hearing with an explanation.
I have not identified any specific error in the Tribunal’s reasoning process as to its decision to dismiss the application pursuant to s. 426A(1A)(b). In its reasons, the Tribunal noted that it had properly invited the Applicant to the hearing in accordance with the statutory obligations (CB141, [2]). The Tribunal noted that the Applicant himself had signed the response to hearing invitation (CB141, [2]). The Tribunal observed that “the applicant did not indicate that he was unwell or provide any other reason why he had failed to attend the hearing” (CB141, [4]–[5]). The Tribunal referred to the telephone call shortly before the hearing was scheduled to commence in which the Applicant had relayed to a Tribunal representative that he could not attend because he lived in Springvale which was too far to come to the city. On a fair reading of the reasons, the Tribunal did not accept that this alone was a satisfactory reason for his non-attendance in circumstances in which the Applicant had been properly invited to the hearing and known about it for weeks.
SMS messages
The Applicant submitted that the Tribunal was wrong in its reasons in the Dismissal Decision at (CB141, [3]):
[…] Two separate SMS reminders were also sent to the review applicant’s nominated phone number on 21 and 27 June 2018, about the hearing. There is nothing on Tribunal systems to suggest that there was ‘delivery failure’ in relation to either of these messages
A record in the Tribunal database at 2:00 pm on 28 June 2018 (an hour before the Dismissal Decision) recorded that that a SMS reminder failed to deliver (GJH-1, p. 7). I find it is probable that this is a reference to one of the two separate SMS reminders sent before the hearing. To that extent, there was (contrary to the finding above) on the Tribunal systems something (not “nothing”) to suggest “delivery failure.” The Tribunal made a factual error.
As Driver FM noted in Kang v Minister for Immigration [2017] FCCA 2785 at [30], there was no statutory obligation on the Tribunal to send SMS reminders. The Applicant’s submission that the Tribunal’s decision was legally unreasonable because it failed (in part) in its attempt to do more than the statute required should not be accepted. Independently of this error there remained justification, transparency, and intelligibility as to the Tribunal’s Dismissal Decision. The error as to the SMS reminders was not a material error.
Adopting an outcome focus (SZVFW, [82]), there existed “justification, transparency and intelligibility” for the Tribunal’s reasons: Li, [105]; Stretton, [92]. It cannot be said that no sensible Tribunal acting with due appreciation of its responsibilities could have taken the course it did: SZVFW, [69]. It would be in error for the Court to overturn the decision because it may have exercised its discretion differently: Stretton, [90].
Ground 1 has not been made out either as to the non-adjournment of the scheduled hearing or as to its Dismissal Decision.
Ground 3: Did the Tribunal misconstrue or misapply the “appropriate” criterion in s. 426A(1C)(a) by failing to make an assessment as to whether reinstatement was “appropriate” having regard to all relevant circumstances?
Because I have found that Ground 3 has been made out, because of the specific errors I have identified below, I wish to deal with it now (before Ground 2) in my reasons.
The legislation
Section 426A(1C) prescribed the Tribunal’s statutory task as to whether to reinstate an application as follows:
(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.
[Emphasis added]
The Tribunal’s power to reinstate was conditional on formation of a view as to whether it was “appropriate” to reinstate. The Tribunal had a discretion as to whether it was appropriate to reinstate the application. Once it had formed a view as to whether it was appropriate to reinstate s. 426A(1C) there was no residual discretion and its available decisions under s. 426A(1C) were “binary [in] nature”: Singh v Minister for Immigration and Border Protection and Another (2018) 266 FCR 459; [2018] FCAFC 184, [10]. The Tribunal was then required to make one of two decisions: reinstate the application if it considered it appropriate to do so or confirm the decision to dismiss the application: Singh, [5]–[6]; [10].
The Tribunal’s exercise of its discretion miscarried because it adopted an unduly narrow approach as to whether it was “appropriate” to reinstate the application. Despite its statement near the commencement of its reasons that “For the following reasons the Tribunal did not consider it appropriate to reinstate the application” (CB153, [4]), with its ostensible reference to the correct appropriateness criterion for the exercise of its discretion, in substance in the operative part of its reasons (CB156, [13]–[16]), it imposed a substantive precondition that it was only “appropriate” to reinstate if the Applicant had a satisfactory explanation for his failure to attend the hearing scheduled on 28 June 2018. Although whether the Applicant had a satisfactory reason for not attending the scheduled hearing was a relevant factor as to whether it was “appropriate” to reinstate the application, a satisfactory explanation for non-attendance was not a precondition to it being “appropriate” to reinstate the application. In error, the Tribunal’s approach to the appropriateness criterion was unduly narrow. In addition, it did not take into account in the exercise of its discretion as to whether it was appropriate to reinstate the application other matters the Applicant advanced and the relevant statutory context.
Relevant authorities
In Singh, Colvin J (with whom Kenny and Bromberg JJ agreed) discussed the analogue provision in Part 5 of the Act as to the reinstatement of an application dismissed on the visa-applicant’s non-appearance. There is no relevant difference in the statutory text between s. 362B(1C) (Part 5) and s. 426A(1C) (Part 7).
The decision of Colvin J in Singh usefully frames the issues to be considered.
In Singh at [17], Colvin J noted that the Tribunal was required to consider the matters the Applicant advanced in support of his application to reinstate. Given the Applicant personally wrote his 11 July 2018 email (Annexure A) the Tribunal had to give attention “to the substance of what is being said without being unduly distracted by the manner in which it is expressed”: Singh, [18]. Further, the relevant context for the Tribunal’s discretion was 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, [27]. The Tribunal had to assess “all the circumstances advanced to support reinstatement”: Singh, [29]. In Singh, the Tribunal, in error, had focused solely on whether the Tribunal had met its statutory obligations to notify the applicant of the hearing but failed to address the applicant’s claim that there had been a miscommunication between him and his migration agent. Whether something is “appropriate” requires the striking of a balance between relevant considerations to provide an outcome which is fit and proper: Singh, [29] citing Mitchell v The Queen (1996) 184 CLR 333, 346. If an applicant raises other issues — in addition to whether he or she was properly notified of the hearing and/or had a satisfactory reason for non-attendance — as reasons that it is appropriate to reinstate the application the Tribunal needed to address those other matters advanced in its reasons: Singh, [30]; [36].
The First Respondent referred me to the decision in FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1025 which concerned a reinstatement application under s. 426(1B) of the Act. In FNV17, Nicholas J held at [36] that: “there is nothing in that provision or the statutory context in which it appears which requires the Tribunal to have regard to the merits of the substantive application”. Nicholas J continued at [37]:
That is not to say that in all circumstances no consideration of the merits is warranted. In an appropriate case the Tribunal may be required to give some consideration to the merits of the relevant application. At the very least this may involve looking at the material that has been filed in support of the application with a view to determining whether the appellants have taken genuine and reasonable efforts to further their application for review up until the time of their non-appearance.
In FNV17 at [44], Nicholas J also held: “the Tribunal’s reasons for dismissing the reinstatement application show that it was aware that the appellants were applying for protection visas and that the dismissal of the reinstatement application may have significant consequences for them.”
Analysis
Despite referring to the appropriateness criterion at para. [4] (CB153) the Tribunal did not again advert in its reasons to the discrimen which framed the relevant discretion: namely, whether it was “appropriate” (or not) to reinstate the application.
The Tribunal noted that on 11 May 2018 it had sent the Applicant the hearing invitation with the accompanying information that it may dismiss the application if the Applicant did not appear at the scheduled hearing (CB153–154, [6]–[7]). The Tribunal expressly referred to the Applicant’s email dated 11 July 2018 (CB154, [7]). With the exception of the 9 July 2018 email which requested no reinstatement decision be made before the response deadline to which it did not refer, it also noted each of the Applicant’s other earlier communications with the Tribunal. It noted that the Applicant had telephoned the Tribunal a few minutes before the scheduled hearing on 28 June 2018 (CB155, [10]). It noted that he had sent an email sent on 28 June 2018 (CB155, [11]). It noted that he made a telephone call on 4 July 2018 (CB155–156, [12]).
Although the Tribunal accurately traversed this chronology, it did not expressly say what consideration it gave to these matters in the exercise of its discretion to reinstate and, if it did consider these matters, it did not explain how it considered them. With the exception of the phone call a few minutes before the scheduled start of the Tribunal hearing, these were issues separate from the issue of whether the Applicant had a satisfactory explanation for his non-appearance on 28 June 2018.
The Tribunal’s reasons (which the Applicant accurately described as the operative reasons) at (CB156–157, [13]–[17]) were as follows:
13. The Tribunal does not consider that the applicant has provided a satisfactory reason for his failure to attend the scheduled hearing.
[…]
14. The Tribunal considers that the applicant had ample time (over a month) to prepare for the hearing. The applicant has not made clear what documents he was proposing to bring to the hearing, apart from the response to the hearing record, and why these documents were important. At no time apart from a few minutes before the scheduled commencement time of the hearing (that is, a few minutes before 9:30 am on Thursday 28 June 2018), did the applicant contact the Tribunal to indicate that he had any concerns for any reason about attending the hearing; or to seek that the hearing be postponed because he was unable to obtain copies of important documents; or to ask the Tribunal to provide him with copies of documents he had already submitted to the Tribunal; or to request that the Tribunal confirm the commencement time or any other details regarding the hearing.
[…]
15.Considering the above the Tribunal finds that the applicant has not provided a satisfactory explanation for his failure to attend the hearing scheduled for 9:30 am on Thursday 28 June 2018.
16. The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.
DECISION
17. The Tribunal confirms the decision to dismiss the application.
In my view, as a matter of substance, and in error, the Tribunal approached its statutory task by adopting too narrow a focus in the operative part of its reasons by assessing whether it was appropriate to reinstate the application as conditioned upon the Applicant providing a satisfactory explanation as to his failure to attend the hearing on 28 June 2018. In that sense, it misconstrued its statutory task. It imported a satisfactory explanation for non-appearance as a precondition to it being “appropriate” to reinstate the application. The statutory discretion as to whether it was appropriate to reinstate was not so fettered or confined and was not subject to any express (or implied) statutory precondition. Adapting a phrase from the majority of the High Court in Mitchell at 346, whether it was “appropriate” to reinstate depended on the striking of a balance between the relevant considerations to provide an outcome which was fit and proper.
In adopting such a narrow focus, the Tribunal did not consider the statutory context that the provisions had an evident purpose to enable an applicant to have an application decided on the merits rather than procedurally dismissed: Singh, [27].
The Tribunal did not consider that the Applicant had engaged with the Tribunal on the morning of his scheduled hearing even if his explanation for non-attendance fell short of a satisfactory explanation.
In FNV17 at [37], Nicholas J had held that the Tribunal may be required to look at whether the applicant had “taken genuine and reasonable efforts to further [his] review application up until the time of [his] non-appearance”. Although Nicholas J in FNV17 referred to “genuine and reasonable efforts” before the dismissal of the application, a reinstatement application under s. 426(1B) is necessarily made after the Applicant’s non-appearance. There was no reason that the Applicant’s genuine and reasonable efforts to further his review application after his non-appearance were not also relevant.
In this case, it appears to me that whether it was appropriate to reinstate the application included a requirement to consider the Applicant’s concerted efforts to further his review application after his non-appearance and his several contacts with the Tribunal before his formal reinstatement application on 11 July 2018.
Further, the Applicant had advanced an argument that he had documents relevant to his merits review which was a relevant factor as to whether to reinstate the application. Those documents were not in his possession because they were with his case manager and he was “concerned that if [he] went to the hearing without these documents the hearing would not go well for me” (CB146).
The Tribunal accurately observed that the Applicant had had “ample time (over a month) to prepare for the hearing. The applicant has not made clear what documents he was proposing to bring to the hearing…and why these documents [were] important” (CB156, [14]). Those findings were open to the Tribunal and relevant to whether it was “appropriate” to reinstate the application. As to the documents, the Tribunal only focussed on a narrow issue: namely, that it had not in its pre-trial directions directed that the Applicant bring any documents but had made only a more restricted direction as to documents: namely, that if the Applicant brought original documents he should also bring a copy and that any documents should be in English or translated by a qualified translator (CB156, [14]). It did not consider or explain why it was appropriate to refuse to reinstate the application and not review the documents the Applicant said that he had which were relevant to his merits review.
The Tribunal did not advert to the statutory context that a reinstatement application was an avenue available to an applicant to have the application dealt with on the merits rather than dismissed procedurally: Cf. Singh, [27]
Finally, although in and of itself this matter (in my opinion) would not have amounted to jurisdictional error, in contrast to the Tribunal in FNV17, the Tribunal did not advert to the context that the Applicant was applying for a protection visa and that the dismissal of his reinstatement application may have significant consequences for him: Cf. FNV17, [44].
None of these considerations necessarily dictated that it was appropriate to reinstate the application. It was for the decision-maker to sift the material, attributing whatever weight or persuasive quality it thought appropriate to the material and the weight to be afforded to the material is a matter for the decision-maker: see e.g., M1/2021 v. Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17, [24].
These considerations — an explanation for non-attendance even if it fell short of a satisfactory explanation, concerted engagement with the Tribunal, the possession of documents potentially relevant to the review although their content was unknown and the statutory context — were, however, considerations that the Tribunal had to take into account in addition to whether there was a satisfactory explanation for non-appearance.
In my view, the Tribunal’s narrow focus on the absence of a satisfactory explanation for nonappearance and its failure to consider these additional considerations that the Applicant had specifically advanced which were relevant to the reinstatement application constituted specific errors as to the exercise of the statutory discretion.
Although the underlying facts are different, this case is another example of the jurisdictional error identified in Singh at [36] (above), in which the Tribunal adopted “too narrow” an approach in considering whether it was “appropriate” to reinstate an application.
Ground 3 has been made out.
Ground 2: Was the Tribunal’s confirmation decision legally unreasonable?
By reference to the discussion above as to Ground 3 in this case it is possible to identify “specific errors” in the exercise of the statutory power. The decision-maker failed to take into account relevant considerations and misconstrued the breadth of the statutory discretion by adopting an unduly narrow approach. In that sense, the decision was legally unreasonable as explained in SZVFW, [81].
As a result, Ground 2 has also been made out.
I add that I would be disinclined to say that a legal unreasonableness error in this case can be identified by an “outcome focused approach”: see SZVFW, [82]. That is, “by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances” SZVFW, [83].
If the Tribunal had not, in error, so narrowly approached the criterion of whether it was appropriate to reinstate the application, this was not a case in which the striking of a balance between competing considerations could yield only one result if proper reasoning had been applied in the exercise of the statutory power.
CONCLUSION
I will order that the confirmation decision made on 24 July 2018 be quashed. It is appropriate to order ancillary or incidental relief as to how the Tribunal should deal with the matter on its remittal. By way of an incidental order, I have made an order that the Tribunal renotify the Applicant of the dismissal decision pursuant to s. 426B of the Act. My intention is that on being so re-notified the Applicant will then have 14 days to seek reinstatement of his application pursuant to s. 426(1B). The Tribunal would then reconsider any reinstatement application in accordance with s. 426(1C). I will order that the First Respondent pay the Applicant’s costs to be assessed in default of agreement.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 5 December 2023
Annexure A
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