FAL17 v Minister for Immigration
[2019] FCCA 2673
•1 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAL17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2673 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – protection visa – legal unreasonableness – procedural fairness – applicant failed to appear at hearing – reinstatement application – no error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 426A, 426B, 430, 430A, 441A, 441C |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 |
| Applicant: | FAL17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 465 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 29 August 2019 |
| Date of Last Submission: | 29 August 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 1 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondents: | Mr Chan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”
The application filed 16 November 2017 be dismissed.
The applicant pay the First Respondent’s costs filed in the sum of five thousand dollars only ($5,000).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 465 of 2017
| FAL17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the AAT”), made on 10 November 2017. The decision confirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection[1] not to grant the applicant a protection visa pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”).
[1] As the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was previously known
The application turns on the provisions of the Act dealing with applicants who fail to respond to an invitation, issued by the AAT, to give evidence in support of their claim for protection and further provisions, which authorise the Tribunal to dismiss applications for administrative review, in circumstances where the applicant concerned has applied for a reinstatement of the relevant application.
It is not the function of this court to determine the applicant’s claim for protection or assess any evidence relevant to that claim, given the dismissal of the claim. Rather, the task for the court is to examine whether the AAT correctly applied the legislative provisions applicable to the applicant’s non-appearance and properly exercised the jurisdiction conferred upon it to dismiss his application.
Background
The applicant is a citizen of Taiwan. He arrived in Australia, on 28 March 2015, pursuant to a Working Holiday (Subclass 417) visa and applied for a protection visa on 9 March 2017. In his application, he claimed that he had borrowed money from a friend of a friend who turned out to be a gang-affiliated loan shark. Specifically, he claimed that:
“When I was in Taiwan, I was working in an electronics company. I got addicted to gambling since my friends me abetted me. My friends even lent money to me and I got more and more addicted. My job income was far from enough to satisfy my needs for gambling. My friend introduced me to one of his friends who could lend money to money, but I didn’t expect that that person is a loan shark and is closely connected with gang members. Since I lost more money than I won, my debts grew higher and higher and was far beyond my capability to repay. Because of it, they sent someone to follow me, came to my home and forced me to pay money. They smashed my home furniture and beat me up. They threatened that if I didn’t pay money as soon as possible, my life would be in danger anytime. I was so scared and forced to leave Taiwan.”[2]
[2] See Courtbook at page 34
The applicant claims he sought help from the police but they did nothing to protect him, and that their response would be the same should he return to Taiwan.[3] In addition, the applicant claimed that if he returned to Taiwan, he would be pursued by “creditors” who would use every possible means to force him to pay back the money he owed, should he not immediately do so.
[3] Ibid at pages 34–35
On 6 July 2017, a delegate of the Minister for Immigration & Border Protection declined to grant the protection visa sought. The delegate summarised the applicant’s claims for protection in the following terms:
“The applicant fears he will be harmed by loan sharks to whom he is indebted.”
The delegate did not accept that the applicant would be targeted upon return to Taiwan for any of the reasons listed in section 5J(1)(a) of the Act, given that he only claimed that he feared harm due to unpaid debts. Therefore, the delegate found that the applicant was not a refugee as defined by section 5H(1) of the Act.[4]
[4] Ibid at page 46
Regarding the complementary protection criteria assessment, the delegate concluded that the authorities and judiciary in Taiwan were effective in combating organised crime and loan shark activity and that, therefore, the applicant could obtain protection such that he would not face a real risk of significant harm upon return to Taiwan.[5]
[5] Ibid at page 50
Therefore, the delegate concluded that the applicant was not a person in respect of whom Australia has protection obligations as outlined in section 36(2)(aa) of the Act.
The application for review to the AAT
On 18 July 2016, the applicant applied to the AAT for a review of this decision. On 19 July 2017, the Tribunal acknowledged receipt of the application, in writing, by means of a letter forwarded to the applicant via his email address, which had been supplied with the application.
In this letter, the applicant was reminded of the importance of informing the Tribunal, if he changed any of his contact details, including his mailing address, email address or any other electronic contact details.
Pursuant to section 425 of the Act, the Tribunal is obligated to invite any applicant seeking review of a protection visa decision to attend before it for the purpose of advancing arguments and presenting evidence in support of the application concerned.
As a consequence of this requirement, on 29 September 2017, the AAT invited the applicant to attend a hearing, which was scheduled for 24 October 2017. In the relevant invitation letter, it was envisaged that the applicant would be able to give evidence and present arguments relating to the issues arising in [his] case at this hearing.
The Tribunal record indicates that the applicant did not attend this hearing. On 24 October 2017, the Tribunal wrote to the applicant indicating that a decision had been made to dismiss his application because of his failure to attend the hearing. The decision in question was said to be based on the provision of section 426A(1A)(b) of the Migration Act and was entitled a non-appearance decision.
The non-appearance decision, which was provided to the applicant via his email address, provided a recital of what had occurred, in an administrative sense, up to that point.
It noted the invitation and that the applicant had not appeared in response to it and had not provided any explanation for so doing. The applicant has not formally put any of these conclusions into issue. The Tribunal said as follows:
“The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 24 October 2017 at 10 am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.”[6]
[6] Ibid at page 69
In the relevant letter, the applicant was also advised that he could apply, in writing, to have his application reinstated, if he did so no later than 8 November 2017. Accordingly, the dismissal was not in final terms, as the Tribunal indicated as follows:
“You may apply to us, in writing, for reinstatement of the application by 8 November 2017. 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.”[7]
[7] Ibid at page 68
The applicant did so via email on 29 October 2017, stating “I am sick. can you make anthoer appointment for me”.[8] On 30 October 2017, the Tribunal invited the applicant to provide medical evidence of his illness by 8 November 2017. The applicant responded on 6 November 2017 stating that “i can’t find medical evidence.i want go another hearing.”[9]
[8] Ibid at page 70
[9] Ibid at page 72
On 10 November 2017, the relevant Tribunal member handed down what was entitled the decision record in this matter, which was to confirm the decision to dismiss the application. In support of its decision, the Tribunal determined as follows:
“On 24 October 2017 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
On 29 October 2017 the applicant emailed the Tribunal and applied for reinstatement of the application. The applicant stated “I am sick. can you make another appointment for me.” For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.
On 30 October 2017 the Tribunal wrote to the applicant in response to his email seeking reinstatement. The Tribunal advised the applicant that without medical evidence addressing his non-attendance the Member would dismiss the application. The Tribunal invited the applicant to provide medical evidence.
On 6 November 2017 the applicant emailed the Tribunal and stated “i can’t find medical evidence. i want go another haring.”
The Tribunal has considered the applicant’s reasons for his non-appearance. If the applicant requests re-instatement, the Tribunal may either re-instate the application if it considers ‘appropriate to do so’ or confirm the dismissal. What is relevant to this determination depends upon the particular circumstances of the case, but may include having regard to reasons given by the applicant.
The Tribunal finds the applicant’s submission vague and lacking in detail. The applicant has not provided any information explaining the nature of his sickness and how this has prevented him from appearing at the hearing. The applicant has not provided any medical evidence as requested by the Tribunal explaining his non-appearance. The applicant has not provided any explanation why he is unable to find medical evidence in support of his submissions.
The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.”[10]
[10] Ibid at pages 76–77
The grounds of appeal
The applicant prepared his application with the help of a friend. He seeks a constitutional writ (certiorari) quashing the AAT decision. Thereafter he seeks a further constitutional writ (mandamus) directing the Tribunal to determine his application according to law.
He has provided three grounds in support of his application, which read as follows:
“1. The Tribunal failed to afford procedural fairness.
2. The Tribunal failed to provide the applicant’s opportunity for hearing.
3. The Tribunal failed to consider the applicant’s claim based on the existing material.”[11]
[11] Initiating application at page 3
The application is supported by an affidavit of the applicant, which simply annexes the relevant reasons for the decision of 10 November 2017, which have been detailed above but provides no further evidence or written submissions in support of the application.
The legislative framework
Division 4 of Part 7 of the Act provides the procedure to be followed by the Tribunal, in reviewing decisions arising under the Act. In particular, pursuant to section 425, the Tribunal is obliged to invite the relevant applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
In this case, the Tribunal contends that such an invitation was offered to the applicant and provided to him in writing, via his email address, well in advance of the scheduled hearing date. The applicant denies having received it. This was the invitation letter of 29 September 2017.
Section 425A of the Act sets out what information invitation notices must contain and the manner in which they are to be brought to the attention of the invitee concerned. The relevant invitation must contain details of the day, time and place at which the applicant is scheduled to appear to give evidence. In this case, there is no controversy that this information was contained in the relevant invitation letter.
Section 425A(2) prescribes the manner in which the invitation is to be conveyed to the relevant applicant concerned. It makes references to section 441A and indicates that the notice must be provided by one of the methods contained in that section.
Section 441A provides an exhaustive list of methods by which the Tribunal is taken to have given a document prescribed by the Act. Pursuant to section 441A(5), it includes a Tribunal member or officer transmitting the document in question by fax; email; or other electronic means.
The invitation letter was forwarded to the applicant at the email address provided by him in his application. He did not subsequently update this address, which is consistent with the email address endorsed in his current application before the court.
Regulation 4.35D(3) of the Migration Regulations 1994 prescribes a period of fourteen days for the provision of an invitation to appear before the Tribunal prior to the date scheduled for the relevant hearing. In this case, the relevant invitation letter was issued on 29 September 2017 and the hearing date was 24 October 2017. The notice provided was well in excess of 14 days.
In addition, the relevant invitation notice must contain a statement, setting out the Tribunal’s discretion to dismiss an application, without any further consideration, pursuant to the provisions of section 426A, if an applicant does not appear when scheduled to do so.
Accordingly, in my view, there is no apparent irregularity in the manner in which the applicant was invited to appear before the Tribunal. It therefore falls to determine whether there is any irregularity arising under section 426A of the Act and the other section which it references.
In the event an applicant fails to appear in response to an invitation to give evidence, the section authorises the Tribunal to either make a decision on the day in question or dismiss the application. Although both procedures will have the same consequence, the manner in which they are achieved is different, as the latter has a provisional quality, being subject to a possible right of reinstatement.
Section 426A provides as follows:
“Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
(b) confirm the decision to dismiss the application, by written statement under section 430.
Note 1: Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E) If the applicant fails to apply for reinstatement within the 14 day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.”
In summary, section 426A(1A) provides the Tribunal with a discretion as to how it is to proceed in the event an applicant fails to respond to an invitation letter, as is the case here. Pursuant to section 426A(1A)(a) & (b), it may do one of two things, namely:
· by written statement under section 430, make a decision on the review, without taking any further action to allow the applicant in question to appear before it – this results in a decision record;
· by written statement under section 426B dismissing the application without further consideration – this results in a non appearance decision, which is potentially subject to vitiation if a successful application for reinstatement is made.
Section 430 provides details of what a decision on a review must contain. It is a written statement setting out the decision of the Tribunal in question and the reasons in support of that decision, including any necessary findings of fact on material issues. Ultimately, whether the application is dismissed pursuant to subsection (a) or (b) such a record must be produced, which will have the effect of completing the jurisdiction of the Tribunal.
The discretion to dismiss, provided by section 426B, is not without curbs or restraints. Pursuant to section 426A(1B), a person whose application is dismissed, as a consequence of a non-appearance decision, may apply for reinstatement of his/her application within fourteen days of receiving notice of the decision.
Necessarily, as note 2 to section 426A(1A)(b) records, pursuant to section 426B, it is incumbent on the Tribunal to inform the applicant concerned of this right of reinstatement. Otherwise, for obvious reasons, such a right may be of little or no utility, so far as the applicant is concerned. The right of reinstatement only has currency for a period of fourteen days.
In theoretical terms, the subject of a non-appearance decision, although his/her review has been dismissed, he/she is still able to approach the Tribunal in question in order to provide an explanation for not responding to the invitation offered and if the explanation is accepted to provide evidence to the relevant decision maker.
Section 426A(1C) details the obligations of the Tribunal, in the event that a person who had failed to appear in response to an invitation letter, applies for reinstatement. It requires the Tribunal to provide written reasons, pursuant to section 430, if it declines to reinstate the application in question, which necessarily results in a completion of the jurisdiction conferred on the AAT.
On 10 November 2017, some seventeen days after the non-appearance decision, the Tribunal provided further reasons, which confirmed the fact of the applicant’s non-appearance in respect of the invitation letter and further confirmed that his application for reinstatement had failed due to a lack of detail.
Section 426B provides the mechanics of what is required to occur, following a non-appearance decision, made under section 426A(1A)(b), to complete the AAT’s jurisdiction, in the event that either no application to reinstate is made or there is a successful application to reinstate.
Pursuant to section 426B(2) the Tribunal is required to provide a written statement to the applicant setting out the decision made on the non-appearance and the reasons in support of it. It is not as extensive in nature as a decision made under section 430.
However, pursuant to section 426B(4) the Tribunal has no power to vary or revoke a non-appearance decision, once made other than, if it is subsequently nullified by a successful reinstatement application, the application in question is taken not to have been dismissed in the first place.
Accordingly, in the event that there is no successful application to reinstate, a non-appearance decision cannot be revoked. Pursuant to section 426B(5), if a non-appearance decision is made, it is necessary for the Tribunal to inform the non-appearing applicant concerned of his entitlement to apply for reinstatement and the conditions which apply to this right.
Such an application must be made within 14 days of the non-appearance decision being made. The section also provides that the notification of the reinstatement right must be provided by one of the mechanisms provided by section 441A, which as noted above, includes by electronic means.
Accordingly, the note provided to section 426A(1A) ties the provisions of sections 426A and 426B together and, in effect, if the conditions of the latter are adhered to, transforms a non-appearance decision into a decision record, if there is no successful application for reinstatement, fourteen days after the section 426B notice is provided. This decision is deemed to be final and cannot be thereafter revoked. Rather it is deemed to be affirmed pursuant to the provisions of section 426A(1F).
The evidence indicates that the applicant was informed of the non-appearance decision by email on 24 October 2017. Pursuant to the provisions of section 441C, when a notice is provided by electronic means, it is taken to have been served at the end of the day on which it is transmitted.
In these circumstances, the evidence indicates as follows:
· the applicant was sent an invitation letter on 29 September 2017;
· the hearing to which he was invited was scheduled for 24 October 2017;
· the applicant did not attend the hearing;
· on 24 October 2017 his application was dismissed on the basis that he did not attend pursuant to section 426A(1A)(b);
· on 24 October 2017, the applicant was advised in writing of his right to apply to have his application reinstated;
· on 29 October 2017, the applicant applied to have his application reinstated, claiming he was sick at the time of the hearing;
· on 30 October 2017, the Tribunal asked the applicant to provide medical evidence explaining how his illness prevented him from attending the hearing by 8 November 2017;
· the applicant failed to do so;
· two days after 8 November 2017, on 10 November 2017 the applicant was advised that the Tribunal had confirmed the decision to dismiss his application;
· all relevant correspondence was forward to the applicant electronically and is therefore deemed to have been received by him on the day it was transmitted to him;
· as a consequence of the operation of section 426A(1F) the decision to dismiss the application was affirmed on 10 November 2017.
In summary, the legislative framework applicable required the Tribunal to affirm its decision to dismiss the application in the absence of a successful application for reinstatement. The Tribunal was not conferred with any jurisdiction to do otherwise.
Discussion
The applicant has provided generic grounds of appeal, in which he has asserted that the decision was procedurally unfair because he was provided with no opportunity to present his case and the Tribunal did not consider the applicant’s claim on the basis of the material before it.
Regarding grounds one and two, the applicant alleges that the Tribunal failed to afford him procedural fairness in its decision. While it is not particularised in the applicant’s ground, it can be assumed that he is referencing both the Tribunal’s decision to dismiss the application and the decision not to reinstate his application.
In court, the applicant alleged that he did not recall receiving the notification of the hearing date and time. Even if that is so, that does not, in itself, render the Tribunal’s decision unreasonable. As long as the Tribunal has complied with its obligations to notify the applicant of the hearing pursuant to sections 425, 425A, and 441A, it may proceed to decide the matter under section 426A without conducting further inquiries.[12]
[12] SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 at [5] (Downes J); cited in MZZFI v Minister for Immigration and Border Protection [2013] FCA 1337 at [10] (Pagone J)
I am satisfied that the Tribunal complied with its obligations under the Act as it sent notification of the hearing to the applicant’s nominated email address, which is a prescribed means of notification under section 441A. Further, the applicant admitted to me in court that the email address to which the notification was sent was and remains his active email address, despite his claim that he did not receive the notification.
In my view, it cannot be said that there was no jurisdictional basis open to the Tribunal to make the decision which it did. The applicable legislation, which I have detailed above, did confer upon the Tribunal jurisdiction to dismiss an application in the event an applicant failed to respond to an invitation to give evidence.
Upon being notified of the applicant’s request to have his application reinstated pursuant to section 426A(1B), the Tribunal had to either reinstate the application if it considered it “appropriate to do so” or otherwise confirm the decision to dismiss the application.
The applicant claimed his absence was due to illness and the Tribunal requested that he provide medical evidence, giving him a period of 9 days to respond. The applicant replied, stating that he could not find any medical evidence and that he was seeking another hearing. The Tribunal did not consider this sufficient and, two days after the deadline, it confirmed the decision to dismiss the application pursuant to section 426A(1C)(b) of the Act.
I am satisfied that the Tribunal did not act in such a way as to deprive the applicant of procedural fairness. It is not sufficient for an applicant to claim illness for a non-appearance; evidence must be presented to the Tribunal that demonstrates the applicant was unable to attend the hearing.
The Tribunal gave the applicant an opportunity to provide medical evidence to explain his absence and have his application reinstated but he failed to do so. Although he claimed that he could not find medical evidence, he did not provide any further particulars as to what his illness was or how it prevented him from attending the hearing. Accordingly, I can see no merit in grounds one or two of the appeal.
Regarding ground three, the applicant further alleges that the Tribunal should have considered his application for review at the hearing on the material that was available to it. Pursuant to section 426A(1A) of the Act, the Tribunal had a discretion to either make a decision on the review or to dismiss the application before it without any further reference to the application or the information before it; it chose the latter.
Furthermore, while the factors required to be taken into account when reinstating an application are case specific and not outlined in the Act, the Tribunal acknowledged that they include the reasons given by the applicant (i.e. illness). However, as mentioned, the applicant failed to provide medical evidence or any particulars about his illness, most importantly how it prevented him from attending the hearing.
In my view, this course of action was open to the Tribunal and did not deprive the applicant of procedural fairness. Ground three is dismissed.
Although it is not the function of the court to make out any ground of appeal for the applicant before it or to search out any particular grounds which are not specifically articulated, the flavour of the applicant’s case is that it is in some way legally unreasonable that his application was dismissed without any formal evidence being taken from him.
In Minister for Immigration & Border Protection v Singh[13] the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
[13] [2014] FCAFC 11
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. Secondly, the outcome of the proceedings is coloured by caprice or arbitrariness. This second area is outcome focussed.
Accordingly, a failure to adjourn proceedings may be considered to be legally unreasonable, if the decision is considered to be capricious, particularly if limited or no reasons are given in support of it. In the circumstances, it may be open to a court conducting a judicial review to quash such a decision, given its supervisory role, if satisfied that it was not an appropriate exercise of the power conferred on the tribunal in question or if it is unable to glean from the record itself why a particular decision was made.
Whether this is so or not will depend upon the evidence available to the court concerned and the overall circumstances of the case. Essentially, whether a procedural decision is legally unreasonable will be “invariably fact dependent…”
In this particular case, the applicant in question had not attended to give evidence before the delegate or engage in any form of interview with the delegate. In addition, there is no suggestion that the electronic address provided by the applicant was deficient in any way such that he would not have received the notification email sent to him in anticipation of the hearing scheduled at the AAT.
In Kaur v Minister for Immigration & Border Protection[14] it was found to be legally unreasonable for a decision maker not to adjourn proceedings where an applicant had been readily able to be contacted and had otherwise responded to communications with the Department.
[14] [2013] FCA 1333
In these circumstances, it was found to be out of character for her not to have responded to a second invitation request, given her past behaviour and therefore unfair to dismiss her application, without some attempt being made to contact her further. Accordingly, it was found that the decision in question was vitiated by a denial of procedural fairness.
The applicant, in this case, has not asserted that there has been any specific breach of the provisions relating to non-appearance arising under that Act or that the manner, in which the AAT sent correspondence to him, via electronic channels, was procedurally unfair to him in some way.
As counsel for the Minister points out, the email address utilised by the AAT was the one nominated in the applicant’s application to the AAT and, as mentioned, the applicant admitted this was his active email address.
MZALO v Minister for Immigration & Border Protection[15] was also a case concerning an applicant who had failed to appear in response to an invitation letter and whose application has been subsequently dismissed. Mortimer J distinguished the circumstances prevailing in this case from Kaur, which incidentally was a judgment of Her Honour. She said as follows:
“I do not consider there was anything that could be characterised as legally unreasonable in the way the Tribunal exercised its discretion under s 426A, given the circumstances of this particular review, and the appellant’s lack of contact with the Tribunal. There was no basis in the material before the Tribunal for it to consider that, if it adjourned the review, the appellant would attend an adjourned hearing and avail herself of the opportunity to present evidence and arguments in support of her claims…”
[15] [2016] FCCA 1071
Similarly, in this matter, I do not think that there has been any procedural unfairness accorded to the applicant in all the circumstances prevailing in the case. He was given ample notice of the hearing before the AAT.
Most significantly, he was given an opportunity to apply to the Tribunal to have his application reinstated, which he took up but failed to provide medical evidence or any useful particulars concerning his illness. Accordingly, in my view, it was not legally unreasonable for the Tribunal to have confirmed the non-appearance decision, which in any event, it was obligated to do.
In these circumstances, I will dismiss the application for review and make an order for costs as sought by the Minister. The Minister seeks the sum of $5,000, which is less than the full sum allowed by the applicable scale of costs for a defended hearing. In my view, this is a reasonable concession by the Minister.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 1 November 2019
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