Farook v Minister for Immigration
[2011] FMCA 940
•30 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAROOK v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 940 |
| MIGRATION – Migration Review Tribunal - Skilled (Provisional) (Class VC) – competent English – application for adjournment – whether jurisdictional error in Tribunal’s approach to a number of adjournment requests. |
| Migration Act 1958 ss.360, 362B, 363 |
| Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14; [2009] HCA 27 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117; [2002] HCA 11 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982, (2001) 179 ALR 425, [2001] HCA 28 SBLF vMinister for Immigration and Citizenship (2008) 103 ALD 566; [2008] FCA 1219 Tran v Minister for Immigration and Citizenship [2011] FMCA 329 |
| Applicant: | ANWAR ALI MOHAMED FAROOK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1051 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 11 November 2011 |
| Date of last submission: | 17 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 30 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Guy Gilbert |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the First Respondent: | Richard Knowles |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed on 28 July 2011 and amended on 14 October 2011 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1051 of 2011
| ANWAR ALI MOHAMED FAROOK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Migration Review Tribunal. The applicant applied for a Skilled (Provisional) (Class VC) visa on 15 October 2009. A delegate of the first respondent refused the application on 21 December 2010.
The visa was refused by the delegate on the basis that the applicant did not have “competent English” as defined, because he had not produced evidence that he satisfied the English language test specified in the applicable regulations. They required the applicant to have achieved a score of at least five for each of the four components of the test. He had not produced such evidence at the time of the delegate’s decision, and, it seems, he has still not done so.
The applicant applied to the Tribunal on 24 December 2010 for review of the delegate’s decision. The Tribunal invited the applicant to a hearing. The applicant asked for the hearing to be postponed. The Tribunal agreed to postpone the hearing on certain conditions. The applicant did not satisfy those conditions. Pursuant to s.362B of the Migration Act 1958, the Tribunal proceeded to determine the matter without giving the applicant a further opportunity to appear.
The Tribunal noted that the applicant had not provided evidence that he satisfied an essential matter, namely, that he had competent English, as defined. The Tribunal affirmed the delegate’s decision by a decision dated 30 June 2011.
Application to this court
On 28 July 2011, the applicant applied to this court for review of the Tribunal’s decision. The grounds of review challenge in various ways the Tribunal’s response to the applicant’s requests for an adjournment of the hearing before the Tribunal.
The applicant filed in this proceeding an affidavit sworn on 13 October 2011. However, the parties disavowed reliance on that affidavit.
Adjournment requests made to the Tribunal
By letter dated 24 May 2011, the Tribunal invited the applicant to a hearing on 16 June 2011: CB128. In that letter, the Tribunal said, and underlined, the following:
If, before the date of the hearing, you obtain evidence that you meet the definition of ‘competent English’, please provide that evidence to the Tribunal so that the Tribunal Member can consider cancelling the hearing. The definition of ‘competent English’ is enclosed for your information.
The applicant did not provide evidence that he met the definition of competent English before the hearing or at all.
The Tribunal’s letter dated 24 May 2011 also said:
The Tribunal will only change this hearing date for good reason. Please contact the Tribunal immediately if you are unable to attend the hearing on this date. Please note that if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it. (emphasis added)
At 4.46pm on 13 June 2011, three days before the scheduled hearing, the applicant’s agent sent an email to the Tribunal in the following terms:
I write to you regarding Mr Anwar Farook and the scheduled MRT hearing for 16 June 2011.
I wish to inform the Tribunal that I have been contacted by my client’s family over the week end.
I have been informed that Mr Farook was to have returned from India for the scheduled hearing however he is unwell and is under medical treatment. He is unable to travel.
I have been informed that a medical certificate/statement from the treating Doctor in India will be provided. I will forward this to the Tribunal as soon as I receive it.
I request that the Tribunal delay the scheduled hearing until Mr Farook’s return. I do not have the exact date of his return at present but will provide this to the Tribunal as soon as I have this information. However I believe that Mr Farook will be unable to travel for a period of at least three weeks.
I thank the Tribunal for its time and trust that the Tribunal will acceded (sic) to my request to re-schedule this hearing to another time.
A Tribunal case note indicates that at 10.46am on 14 June 2011, a Tribunal officer recorded the following:
As per Member instruction, I called the AR and stated that we have received his submission explaining the RA is currently overseas and unfit to travel. I explained that the Tribunal acknowledges this and is prepared to proceed with the scheduled hearing via telephone. The rep stated he is unsure whether the RA has capacity to attend a telephone hearing, and is currently waiting on medical reports from India to provide further light on this issue. I stated the MRT understands this, however, we request the AR contact the RA about the proposed phone hearing and provide a response to the Tribunal asap. The AR stated he would do so.
At 2.21pm on 15 June 2011, the applicant’s agent replied in the following terms:
Please find attached medical certificate received form (sic) Mr Farook.
I spoke to my clients (sic) family and they inform me that Mr Farook is unwell and not able to take a conference call. I have asked for further medical information about this.
I will forward this to the Tribunal as soon as I have it.
I trust the Member can re-schedule the MRT hearing for another date after 9 of July (sic) given that Mr Farook has been ordered to rest for 4 weeks.
The enclosed medical certificate read as follows:
This is to certify that Mr. ANWAR ALI MOHAMED FAROOK, born on 07-03-1976 at Thirukkalacherry, Tamilnadu, India, holder of Indian Passport No.E…, residing at … Victoria, Australia and residing at present at … Tamilnadu State, India, India (sic), is suffering from VIRAL HEPATITIS, from 09.06.2011. He is under my regular treatment and complete rest.
I consider that a period of 4 weeks of treatment and rest from 09.06.2011 is absolutely necessary for the complete restoration of health. Hence, he is not able to travel until he gets full recovery.
A Tribunal case note indicates that at 2.54pm the same day, a Tribunal officer recorded the following:
As per Member instruction, I called the AR and advised him we have received the medical cert forwarded to the Tribunal today. I explained to the AR that the Member has noted his advice that the RA will not be fit to attend a teleconference hearing, and his statement that he will be be (sic) forwarding a medical report in this regard shortly. I thanked the AR for his efforts and advised him the Member will require a medical report specifically stating the RA is unfit to attend a teleconference hearing tomorrow. Furthermore, the Member requests the provision of this report before he grants a postponement.
The AR stated he understands the importance of this process, however, given his client is overseas it is very difficult to communicate with him promptly. The AR assured me he has emphasised the importance of providing a detailed medical report to his client and believes this will be submitted asap.
I assured the rep I would note his comments and bring them to the Member’s attention, however, in the interim he should endeavour to obtain the requested medical report before the scheduled hearing and update the Tribunal accordingly. The rep stated he would do so and thanked me for my call.
A Tribunal case note indicates that at 12.18pm on 16 June 2011, about three hours before the scheduled hearing, a Tribunal officer recorded the following:
The Rep Mr Vassiliou called to convey to the member that the review applicant is unable to participate in the teleconference hearing today. Mr Vassiliou received a call last night from a family member of the review applicant by the name of Ramesh, and told him that the RA is not fit whatsoever to take part in a teleconference hearing. Mr Vassiliou is waiting for medical evidence but presumes that he will not receive this prior to the hearing, considering the length of time it took to receive the previous medical certificate. Mr Vassiliou sincerely apologises to the member as he was hoping to receive the medical report prior to the hearing.
A Tribunal case note indicates that at 3.02pm the same day, a Tribunal officer recorded the following:
I telephoned the AR and advised that I was calling to advise that the Presiding member has agreed to adjourn this afternoon’s hearing to a date to be fixed, but on certain conditions. I advised that these conditions are set out in a letter that I would be sending out to him today. I also advised that I would like to send a copy via email and he confirmed the correct address was [email protected]
The Tribunal sent the applicant’s agent a letter by registered post and email on 16 June 2011, which included the following:
Neither you nor your agent notified the Tribunal that you intended to travel outside Australia after you had lodged your application for review with the Tribunal on 24 December 2010.
The Tribunal has told your agent that it does not require you to return to Australia for the hearing, and that it is happy for you to participate in the hearing by telephone from India. Family members have told your agent that you are not well enough to participate in the hearing by telephone. Your agent has told the Tribunal that he has asked your family members for a medical report confirming that you are not well enough to participate in the hearing by telephone, but he is unlikely to obtain the medical report before the scheduled hearing at 3.30 pm today (Melbourne time).
In the circumstances, the Presiding Member has agreed to postpone the hearing to a date to be fixed, on condition that by 4.00 pm on Wednesday 29 June 2011 the Tribunal receives:
1. A medical report from your doctor stating that you were not well enough to participate in the hearing today (16 June 2011) by telephone, and stating by which date you will be well enough to participate in a hearing by telephone from India; and
2. Advice in writing of a landline telephone number in India on which the Tribunal may telephone you on the new hearing date.
If you comply with these conditions, we will write to you again as soon as a new hearing date is available.
If you do not comply with these conditions, the Tribunal will proceed to a decision pursuant to s.362B of the Act on the basis that you did not appear before the Tribunal on the day and at the time and place at which you were scheduled to appear on 16 June 2011.
On 21 June 2011 at 1.41am, the Tribunal received an email in the following terms:
I am the family member of Anwar Farook that i (sic) would like to give information regarding medical condition For (sic) Anwar Farook.
I was (sic) submitted Medical Certificate through Migration Agent MR.George Vassiliou, 16 Theodore Street, Surrey Hills 3127, Victoria.Mobile number 0417 ….
However, I have attached Medical Certificate, Prescription dated on 09/06/2011 and 15/06/2011 for your Reference…
According to our DR. ZIAWDDIN M.B.B.S advised that Anwar farook (sic) is unwell and he is unable to travel for (sic) long distance for certain period of 4 weeks.So, he will be able to travel from July first week.
So, Please consider my cousin medical situation (sic) and I Kindly request you to given another date for Hearing in July 2011.
I thank the Tribunal for its time and trust that the Tribunal will acceded (sic) to my request to Re-Schedule this hearing to another time.
The email did not appear to have a medical certificate attached to it, but it did have attached two documents dated 9 and 15 June 2011 that appeared to be prescriptions for Mr Anwar Ali.
A Tribunal officer sent an email to the applicant’s agent at 11.10am on 22 June 2011 in the following terms:
Please find attached supporting documents the Tribunal has received direct from a family member of the review applicant.
The Presiding Member considers that the documents do not comply with condition 1 of the postponement of the hearing as set out in the Tribunal’s letter dated 16 June 2011.
Please provide the medical report requested in the Tribunal’s letter, and otherwise comply with the conditions of the postponement, by the date specified in the Tribunal’s letter.
Do not hesitate to contact me directly if you have any queries.
There was, apparently, no further communication by or on behalf of the applicant before the Tribunal made its decision on 30 June 2011.
After the Tribunal had completed its decision, the applicant’s agent sent the Tribunal an email, at 9.55am on 30 June 2011, stating:
I refer to the attachment and note that members of Mr Farook’s family have made representations on my client’s behalf.
My client contacted me late yesterday to indicate that he is intending to comply with the request of the Tribunal.
However to date I have not received the required Doctor’s statement other than the medical certificate provided.
In addition to the above I provide you with Mr Farook’s mobile contact number for the files of the Tribunal. My understanding is that he is returning to Melbourne and should be arriving in Australia by the weekend. I understand there will be a short stop in Malaysia. The number of his mobile is… .
Following his arrival in Australia he can be contacted on: 0413… .
A Tribunal officer replied saying that the decision had been finalised before receipt of the email dated 30 June 2011. The timing was not disputed.
Preliminary matters
At the hearing before this court, counsel for the applicant acknowledged that the applicant did not have evidence that he had competent English, as defined. Consequently, counsel for the applicant said that the only benefit that the applicant could have obtained from being able to attend a hearing was that he would have been able to ask in person for more time to provide such evidence.
In his written submissions, the applicant said that Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117; [2002] HCA 11 might apply to this case, depending on when the Tribunal’s decision was finalised. However, the applicant resiled from any such argument during oral submissions.
The court raised with the parties an unusual feature of this case, namely, that the Tribunal appeared to have granted a provisional adjournment. However, the parties were unable to refer to any authority on the effect of such an adjournment, or make any submissions on the effect of such an adjournment.
The first respondent submitted, and the applicant accepted, that the decisions of the Tribunal regarding adjournment requests could only be set aside if they contained jurisdictional error. However, the applicant submitted that the Tribunal would have fallen into jurisdictional error if the discretion to adjourn miscarried in some way.
The applicant relied on a decision of Lindsay FM in Tran v Minister for Immigration and Citizenship [2011] FMCA 329. His Honour said, at [47] to [51]:
47.The power given to adjourn must be one which is exercised reasonably (see Kruger v Commonwealth (1997) 190 CLR 1 Brennan CJ at p 36).
48.Notwithstanding my misgivings as to the way in which the application to adjourn was cast (lacking particularity as to the length of the adjournment) I consider that it cannot be said that the Tribunal has exercised its power to adjourn in a reasonable way in the circumstances I have outlined.
49.In NBMB v Minister for Immigration and Citizenship (2008) 100 ALD 118 Flick J said of the power to adjourn that is given to the Tribunal (in that case the Refugee Review Tribunal) at [14]:
Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision-makers. Relevant to the exercise of that discretion by the tribunal in the present context is the legislative direction that it must conduct its review in a manner which “is fair, just, economical, informal and quick”. Procedural decisions of tribunals such as the Refugee Review Tribunal should not be lightly disturbed.
50.I have set out the Tribunal’s Reasons for refusing the adjournment at [21] above. The Tribunal cites the dates which detail how long the application has been before the Tribunal but fails to identify that the overwhelming reason for the effusion of time since the institution of the application to the Tribunal has been a function of decisions the Tribunal has made itself. It was unreasonable for the Tribunal not to have regard to the relatively short delay which the adjournment sought by the applicant would have required, against the background of the significant delays that had already arisen from the way in which the Tribunal elected to conduct the review to that point.
51.In those circumstances, I am satisfied that the Tribunal fell into jurisdictional error in refusing the adjournment application and I will order accordingly.
An appeal against the decision in Tran was brought by the first respondent. The appeal was heard on 24 November 2011. The decision in the appeal is currently reserved.
Suffice to say that the facts of Tran were quite different to those in the present case. If the applicant in Tran had been afforded a hearing, he could have done a good deal more than make a personal plea for a further adjournment.
The applicant also relied on a decision of Gray J in SBLF vMinister for Immigration and Citizenship (2008) 103 ALD 566; [2008] FCA 1219. His Honour said at [29], [30] and [33]:
29.It is now well-established that the invitation that the Tribunal is required by s 425(1) of the Migration Act to give to an applicant is not a matter of form. The duty to give the invitation will not be performed if what the Tribunal then affords to an invited applicant is not a hearing that conforms with the requirements of s 425(1). This was made clear in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [33]–[39]. Section 425(1) requires that the invitation be to a hearing at which the applicant is “to give evidence and present arguments relating to the issues arising in relation to the decision under review.” As SCAR itself makes clear, even if the Tribunal is unaware of the inability of the applicant to give evidence and present arguments about those issues, the hearing will have fallen short of the requirements of s 425(1), so that the duty to invite the applicant to a hearing of the required kind will not have been fulfilled. In that case, the Tribunal was unaware that the applicant was undergoing medical treatment as a result of being affected badly by news of his father’s recent death. In [39] of its reasons for judgment in SCAR, the Full Court relied on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, in which it was held that the Tribunal had denied the applicant procedural fairness through inadvertence, because it was unaware of a letter seeking an adjournment of the hearing.
30.The question in the present case, therefore, is not whether the Tribunal’s decision to refuse to adjourn the hearing was correct. If that were the question, there would be little doubt that the Tribunal’s discretion miscarried, because it failed to take into account relevant material before it, namely the substance of the reason why the adjournment was sought. The question in the present case is whether the decision had the effect of denying to the appellant the sort of hearing that the Tribunal was required to invite him to, namely a hearing in which he could both give evidence and present arguments in relation to the issues. Because he had relied on a migration agent who had not done all that a conscientious migration agent would do, the appellant was not in a position to give evidence or present arguments about those issues. This was not a case of a failure by the appellant to give due attention to his application for a protection visa, or his application for review of a decision refusing him such a visa. He had done what could reasonably be expected of him, namely to engage a migration agent. The realisation that his migration agent may not have done all that a competent migration agent ought to have done apparently led the appellant to seek other advice. As a consequence of this chain of events, and as the Tribunal well knew, he was not in a position to present his case fully.
…
33.For these reasons, I am of the view that the Tribunal failed to perform its statutory duty under s 425(1) of the Migration Act. Because the duty under s 425(1) is an essential prerequisite to the making of a valid decision by the Tribunal, the failure to perform that duty amounts to jurisdictional error. The federal magistrate was in error in failing to find that the Tribunal’s decision was the result of jurisdictional error. The federal magistrate did not discuss the question whether there had been a failure to comply with s 425, but treated the issue as being one of denial of procedural fairness in a general sense, and seems to have thought that s 422B of the Migration Act was an obstacle to accepting that argument. It is unnecessary for me to consider whether s 422B would have operated to exclude the ordinary implied obligation of the Tribunal to afford procedural fairness to the appellant, because I take the view that there was a failure to comply with the duty imposed on the Tribunal by s 425(1) in any event. For the reasons that I have given, the federal magistrate was also in error in holding that the subsequent opportunities the appellant had to provide information were capable of curing the error. As I have said, a failure to perform the Tribunal’s statutory duty under s 425(1) cannot be cured by the subsequent provision of information in writing.
Clearly, the Tribunal’s invitation under s.360 of the Act cannot be an empty shell or hollow gesture. The invitation must genuinely give the applicant an opportunity “to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
The present case is quite different from SBLF. In the present case, there was only one issue, namely, whether the applicant had the requisite test results. If he had, the Tribunal said in its hearing invitation that it would have considered cancelling the hearing. Presumably, in that event, the Tribunal would have proceeded to set aside the delegate’s decision and the applicant would have been granted a visa. If the applicant did not have the requisite test results, the Tribunal was bound to affirm the decision under review, or further adjourn the hearing to give the applicant a further opportunity to try to obtain the appropriate test results.
It is in this context that the applicant’s arguments must be considered.
Ground 1
The first ground of review in the amended application filed on
14 October 2011 is:
The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal acted in breach of s. 360 of the Migration Act 1958.
Particulars
(a)The Tribunal set unreasonable conditions when it agreed to postpone the hearing listed for 16 June 2011, thereby denying the Applicant the opportunity to attend another hearing to give evidence and present arguments relating to the issues arsing in relation to the decision under review;
(b)The Tribunal erred in not treating the email from the Applicant’s cousin dated 21 June 2011 and/or that from the migration agent dated 30 June 2011 as an application for further time in which to comply with the conditions set by the Tribunal.
The applicant submitted that the applicant was lawfully overseas and the Tribunal could have accessed the applicant’s movement records and known he was overseas. I do not accept that it was in any way incumbent upon the Tribunal to check whether the applicant was in Australia before listing the matter for hearing. The hearing invitation was sent on 24 May 2011. It said:
Please contact the Tribunal immediately if you are unable to attend the hearing on this date.
The applicant’s agent did not respond until 4.46pm on 13 June 2011, three days before the scheduled hearing, saying that:
I have been informed that Mr Farook was to have returned from India for the scheduled hearing however he is unwell and is under medical treatment. He is unable to travel.
That is, there was no suggestion at that stage that the Tribunal should not have listed the hearing when the applicant was overseas. On the contrary, the applicant indicated that he had intended to return to Australia for the hearing. The only reason put forward for not returning was an illness that prevented the applicant from travelling.
The applicant also submitted that the time between lodging the application for review and the hearing was short, by the standards of the Tribunal. The application to the Tribunal was lodged on
24 December 2010. The hearing was listed for 16 June 2011. That is a little over five months. No evidence was presented to the court about the usual time between filing and hearing in the Tribunal. It is by no means obvious that five months between filing and hearing is unduly hasty.
The applicant submitted that he was given only 21 days notice of the hearing. That does not strike me as being unreasonable, especially as the Tribunal intimated in the hearing invitation that an adjournment may be granted for a good reason.
The applicant submitted that his adjournment request was the first he had made. It was implicit in this submission that an applicant is entitled to one adjournment, simply by asking for it. However, there is no such rule. Any adjournment application must be considered on its merits, in all the circumstances of the case.
The applicant further submitted that the application for an adjournment was, on its face, bona fide, and supported by medical evidence. However, the Tribunal, in effect, accepted the initial application. The applicant said that he was not able to travel. The Tribunal said that he did not need to travel, because the Tribunal would conduct the hearing by telephone.
At that point, the applicant claimed that he could not attend by telephone either. Not unreasonably, the Tribunal responded by requesting medical evidence that the applicant could not attend by telephone.
The applicant’s agent then said, the day before the scheduled hearing, that he might not be able to get the medical evidence before the hearing. The Tribunal accepted that contention. The Tribunal gave the applicant 14 days to provide medical evidence and a landline telephone number in India. The applicant did not do so.
The applicant now says that 14 days was not enough. In the circumstances of this case, I do not consider that the 14 day time limit was unreasonable.
The applicant further submitted that the Tribunal assumed that it would be simple for the applicant to provide a more precise medical report. The Tribunal was not seeking a “more precise medical report”. The Tribunal was seeking a medical report about what the applicant said he could not do, namely, attend a hearing by telephone. To that point, the medical evidence had only said the applicant could not travel.
There is nothing untoward or unreasonable about the Tribunal seeking medical evidence substantiating a claim that an applicant cannot attend a hearing in a particular way for medical reasons.
I do not accept that the Tribunal assumed that it would be simple for the applicant to get the required medical evidence. The Tribunal gave 14 days for that purpose. That seems to be a more than adequate period of time, especially in the absence of evidence about why it would not have been adequate.
The applicant submitted that the Tribunal had assumed that the applicant had a landline available to him. That was not an unreasonable assumption to make. In any event, the applicant at no stage told the Tribunal that he did not have a landline available to him.
The requirement for a landline was raised in the Tribunal’s letter of
16 June 2011. There was no response to that letter until 21 June 2011, when a family member sent the Tribunal an email. That email said nothing about a landline, and reiterated the claim that the applicant was unable to travel.
The Tribunal forwarded the family member’s email to the applicant’s agent on 22 June 2011 with a request that the agent provide the information previously requested, including the landline number. The agent did not respond until after the Tribunal had made its decision on 30 June 2011.
In the circumstances, the Tribunal had no reason to believe that the requirement that the applicant provide a landline number would be an obstacle to his attendance at the hearing.
The applicant further submitted that the period of the adjournment sought was brief, because the applicant was expected to be able to travel from the first week of July 2011. However, the time when the applicant was able to travel was irrelevant, because the Tribunal was prepared to conduct the hearing by telephone. The applicant provided no evidence about why a telephone hearing was not a viable option.
The applicant submitted that the Tribunal did not address the application made by the applicant’s relative by email dated 21 June 2011. However, the relative was not the applicant’s authorised representative. The Tribunal responded correctly to that email, by forwarding it to the applicant’s agent, with a reminder that the conditions for an adjournment had not been complied with. It was then up to the applicant’s agent to make whatever application or response was thought necessary. The Tribunal was under no obligation to deal with an adjournment request from a person who was not the applicant and who was not the applicant’s authorised agent.
Moreover, the request from the applicant’s family member did not contain any new information, apart from two documents that appeared to be untranslated and unexplained prescriptions. The Tribunal, in such circumstances, was under no obligation to revisit its earlier decision.
The applicant submitted that there could have been no prejudice in granting the adjournment. However, as the High Court made clear in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14; [2009] HCA 27, there is a public interest in the orderly resolution of the business of courts. By analogy, that principle extends to the Tribunal as well.
I do not consider that the conditions set by the Tribunal were unreasonable in all of the circumstances of this case.
Ground 2
The second ground of review in the amended application filed on
14 October 2011 is:
In the exercise of the power to adjourn from time to time, found in s. 363(1)(b) of the Migration Act 1958, the Tribunal failed to take into account relevant considerations and/or took into account irrelevant consideration when it granted an adjournment of the hearing scheduled for 16 June 2011 and/or failed to reconsider the exercise of power.
Particulars
(a) The Applicant refers to and repeats the particulars set out in Ground 1(a) and (b) above;
(b) The Tribunal failed to take into account that
(i) the hearing date of 16 June 2001 was the first scheduled;
(ii) the Applicant was out of the country at the time;
(iii)the Applicant’s advisor was having difficulties communicating with the Applicant in India;
(iv)only 14 days had been given for compliance with the Tribunal’s conditions;
(v)some medical information was conveyed to the Tribunal;
(vi)a family member in India made contact with the Tribunal, seeking a postpone (sic) of the hearing until July 2011;
(vii)on Thursday 30 June 2011 the Applicant’s advisor advised the Tribunal that the Applicant intended to comply with the Tribunal’s request, provided two mobile telephone numbers to the Tribunal, and said that the Applicant due (sic) to return to Melbourne from India within days of 30 June 2011
Except for the last point, these matters have been addressed above.
As to the last point, the communication referred to was received by the Tribunal after its decision was made. It was therefore irrelevant to the reasonableness or otherwise of the Tribunal’s decision.
Ground 3
The third ground of review in the amended application filed on
14 October 2011 is:
In the exercise of the power to adjourn from time to time, found in s. 363(1)(b) of the Migration Act 1958, the decision of the Tribunal was affected by jurisdictional error in that there is a reasonable apprehension that the Tribunal was predisposed against the Applicant’ (sic) cause.
Particulars
(a)The Applicant refers to and repeats the particulars set out in Ground 1(a) and (b) and Ground 2(b) above.
The test for apprehended bias is set out in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982, (2001) 179 ALR 425, [2001] HCA 28 as follows:
27.The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test of “a fair-minded lay observer” when, as is the case with the Tribunal, proceedings are held in private. (citation omitted).
28.Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
I am not persuaded that the circumstances of this case give rise to a reasonable apprehension of bias. On the contrary, the Tribunal provided the applicant with a reasonable opportunity to participate in a hearing, but the applicant did not do so, and did not provide any evidence about why he could not do so.
Ground 4
At the hearing before this court on 11 November 2011, the applicant was given leave to further amend his application to include a ground that:
The Tribunal erred in failing to reopen its decision and consider the email dated 30 June 2011 and sent at 9.55am.
The parties were given leave to file and serve post-hearing written submissions in relation to that ground. However, the applicant subsequently indicated by letter dated 17 November 2011 to the court that he did not wish to pursue this ground. I take it no further.
Conclusion
I am not persuaded, in the circumstances of this case, that any of the applicant’s grounds has been made out. The application must be dismissed with costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 30 November 2011
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