FGV18 v Minister for Immigration
[2020] FCCA 733
•9 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FGV18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 733 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – non appearance decision and confirmation decision – whether either decision was unreasonable considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.426A, 427, 477 |
| Cases cited: BXD17 v Minister for Immigration [2018] FCA 765 |
| Applicant: | FGV18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2859 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 31 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2020 |
REPRESENTATION
| The Applicant appeared in person by telephone |
| Counsel for the Respondents: | Mr G Johnson by telephone |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application filed on 9 October 2018 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule.44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2859 of 2018
| FGV18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of two decisions of the Administrative Appeals Tribunal (Tribunal). The first decision was a non appearance decision made on 23 August 2018 in which the Tribunal dismissed the review application before it on account of the applicant’s non attendance. The second decision was a confirmation decision made on 11 September 2018.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 10 May 2019.
The applicant is a citizen of Malaysia, who arrived in Australia on 21 August 2016 on an Electronic Travel Authority (class UD) (subclass 601) visa.[1] On 28 October 2016 he lodged an application for a protection visa.[2] On 21 March 2017, a delegate of the Minister (delegate) refused to grant the applicant a protection visa.[3]
[1] Court Book (CB) 63
[2] CB 1
[3] CB 63
On 15 April 2017, the applicant sought review of the delegate's decision before the Tribunal.[4] In that application, the applicant stated that he resided in Perth.[5]
[4] CB 82
[5] CB 83
On 6 March 2018, the Tribunal invited the applicant to appear at a hearing at the Perth registry of the Tribunal on 17 April 2018.[6]
[6] CB 93
On 9 April 2018, the applicant contacted the Tribunal by email and requested that the hearing be relocated to Sydney.[7] The Tribunal responded on 10 April 2018, advising that the hearing had been relocated to the Sydney registry for a hearing on 17 April 2018.[8] The applicant attended that hearing.[9] On 26 April 2018, the applicant emailed the Tribunal attaching a number of documents.[10]
[7] CB 102
[8] CB 106
[9] CB 120
[10] CB 123
On 1 May 2018, the Tribunal invited the applicant to appear at a resumed hearing at the Perth registry on 23 August 2018 (the resumed hearing).[11]
[11] CB 181
On 22 August 2018, the day before the resumed hearing, the applicant emailed the Tribunal, seeking an adjournment on the basis that he was unwell.[12] The Tribunal responded to the applicant that same day and advised that a medical certificate would be required for an adjournment to be granted on medical grounds.[13] In that response, the Tribunal explicitly stated that any certificate must set out:[14]
the basis for the applicant being unfit to attend a hearing of a few hours to answer questions, what treatment he is receiving and the prognosis for his recovery. A Medical Certificate that states that the applicant is "unfit for work/study" is not sufficient for these purposes.
[12] CB 185
[13] CB 186
[14] CB 186
On the morning of 23 August 2018, the applicant emailed the Tribunal, attaching a medical certificate of the same date, stating that he was “unfit for work” on that day (the first email).[15] The Tribunal responded to the applicant, advising him that the adjournment would not be granted as he had provided a medical certificate that was inadequate.[16] The applicant provided a different medical certificate, via email, in response that stated he “will be unfit for his Tribunal hearing today” (the second email).[17] The Tribunal emailed the applicant to advise that the hearing would go ahead as scheduled.[18] The applicant then telephoned the Tribunal to advise that he would not be attending the hearing.[19]
[15] CB 187
[16] CB 189
[17] CB 190
[18] CB 192
[19] CB 210
The applicant did not appear at the Tribunal hearing, and subsequently the Tribunal dismissed the application pursuant to s.426A(1A)(b) of the Migration Act 1958 (Cth) (Migration Act) on the basis that the applicant had not attended the hearing (the dismissal decision).[20] The applicant was notified of this decision on 23 August 2018.[21]
[20] CB 201
[21] CB 198
On 6 September 2018, the applicant sent an email to the Tribunal, applying for reinstatement (the reinstatement application). In support of that application, the applicant provided a medical certificate dated 24 August 2018 that stated he could not attend his hearing because he had “cold and flu”.[22]
[22] CB 205
On 11 September 2018, the Tribunal confirmed the decision to dismiss the application under review (the confirmation decision).[23]
[23] CB 221
Tribunal decision
In its dismissal decision, the Tribunal had regard to:
a)the applicant's request on 10 April 2018 for the Tribunal hearing schedule for 17 April 2018 to be relocated to Sydney;[24]
b)the fact that the applicant's invitation to attend the hearing, dated 1 May 2018, contained information that the Tribunal may dismiss the application for review if the applicant did not attend;[25]
c)the applicant's phone call and email to the Tribunal on 22 August 2018, requesting an adjournment due to sickness;[26]
d)the Tribunal's email to the applicant sent on 22 August 2018, stating that, in order for the adjournment to be granted, the applicant must provide a medical certificate containing “evidence from a qualified medical practitioner setting out the medical basis for the applicant being unfit to attend a hearing of a few hours to answer questions, what treatment he is receiving and the prognosis for his recovery”;[27]
e)the applicant's medical certificate of 23 August 2018 that did not comply with the Tribunal's requirements for medical certificates, as previously explained to the applicant;[28]
f)the Tribunal's email to the applicant of 23 August 2018 confirming the decision to refuse to grant an adjournment due to the applicant's failure to provide adequate documentation;[29]
g)the applicant's second email to the Tribunal on 23 August 2018 that attached another inadequate medical certificate;[30]
h)the Tribunal's second email to the applicant on 23 August 2018 that confirmed the decision to proceed with the hearing;[31] and
i)the applicant's failure to appear at the hearing.[32]
[24] CB 202 at [2]
[25] CB 202 at [4]
[26] CB 202–203 at [5]
[27] CB 203 at [6]
[28] CB 203 at [8]
[29] CB 203 at [9]
[30] CB 204 at [11]
[31] CB 204 at [12]
[32] CB 204 at [14]
In its confirmation decision, the Tribunal had regard to:
a)the applicant having applied for reinstatement on 6 September 2018;[33]
b)the applicant's explanation that he could not attend the hearing due to a medical condition;[34]
c)the medical certificate provided by the applicant with the reinstatement application;[35] and
d)the circumstances surrounding the applicant's failure to attend the hearing contained in the dismissal decision.[36]
[33] CB 214 at [4]
[34] CB 214 at [5]
[35] CB 214 at [6]
[36] CB 214 at [7]
The Tribunal considered that the only further information provided in the medical certificate of 24 August 2018 that was not otherwise known to the Tribunal previously was that the applicant's medical condition was “cold and flu” and that this weighed in favour of granting a reinstatement.[37]
[37] CB 214 at [7]
The Tribunal also considered that the applicant did not bring the additional diagnostic material to the attention of the Tribunal earlier and that this weighed against granting a reinstatement.[38]
[38] CB 215 at [8]
The Tribunal further considered the available information relating to the applicant's non-appearance at the hearing, with the additional information provided with the reinstatement application, and found that a reinstatement should not be granted;[39] and that the dismissal decision should be confirmed.[40]
[39] CB 215 at [9]
[40] CB 215 at [10]
The current proceedings
These proceedings began with a show cause application filed on 9 October 2018. There are three grounds in it:
1. The tribunal made an error of law because they failed to consider all of my claims.
2. The tribunal made an error of law because they failed to consider all my evidence.
3. The tribunal made an error of law because they failed to afford the procedural fairness because they did not accept my doctor’s certificate when I was sick and missed my second AAT hearing.
The application was supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 5 December 2018.
This matter came before me for a show cause hearing on 17 March 2019. Although the application as filed only sought review of the confirmation decision, the applicant made clear that he wished to challenge the dismissal decision made on 23 August 2018 as well as the confirmation decision made on 11 September 2018. I granted him an extension of time under s.477(2) of the Migration Act for that purpose. I also ordered, under rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) that the Minister show cause why relief should not be granted having regard to the arguable unreasonableness of both the dismissal decision and the confirmation decision in view of the level of information available to the Tribunal.
I listed the matter for a final hearing on 7 November 2019 but that was subsequently adjourned to 31 March 2020.
Only the Minister filed written submissions for the purposes of the final hearing. I invited oral submissions from the applicant. Those submissions focussed on his assessment of procedural unfairness. The applicant considers that he did all he could in order to justify his absence from the Tribunal hearing. He explained to me the difficulties in seeing a doctor and obtaining a certificate. The applicant argued that he had attempted to do the right thing and the certificates he furnished should have been accepted at face value.
Consideration
There is no substance to the grounds of review advanced in the application. The arguable issue is not one of procedural unfairness but one of legal unreasonableness. The applicant had the opportunity to seek the reinstatement of his application, which he accepted. The Tribunal was not, however, persuaded by his arguments in support of reinstatement. The process the Tribunal followed was, however, in conformity with its statutory obligations. The applicant is correct in his assertion that the Tribunal did not consider all of his claims and evidence in support of his protection visa application but that was the necessary consequence of the procedure followed by the Tribunal.
I found at the show cause hearing that the only arguable issue was one of legal unreasonableness. That is addressed in the Minister’s supplementary submissions. Having heard argument from the parties, I agree with the Minister’s submissions.
The principles concerning the identification of legal unreasonableness in the exercise of a statutory power are well-known. In Singh v Minister for Home Affairs[41] the Full Federal Court at [61] (Reeves, O’Callaghan and Thawley JJ) stated:
The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at [54]- [60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J). Such a conclusion might be drawn, for example, if it:
(1) is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ);
(2) “lacks an evident and intelligible justification”: Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);
(3) is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ).
[41] [2019] FCAFC 3
As the starting point for the assessment of legal unreasonableness must be the statutory power and its purpose, it is necessary to address the respective Tribunal decisions separately.
In relation to the dismissal decision, the Tribunal set out the history of correspondence and telephone calls between it and the applicant regarding his attendance at the scheduled hearing.[42] It was in response to the Tribunal’s expressed concerns regarding the applicant’s first obtained medical certificate that the applicant approached a second doctor to obtain the second certificate.[43] The Tribunal set out verbatim at [8] and [11] the terms of both the first and second medical certificates obtained by the applicant. The Tribunal set out its reasons for not exercising its discretion to adjourn the review at [15]-[18].[44] To that end, there was an evident and intelligible justification for the decision not to adjourn.[45] The question is not whether there were other reasonable options open to the Tribunal.
[42] CB 203-204 at [5]-[13]
[43] CB 203-204 at [9]-[11]
[44] CB 204-205
[45] Minister for Immigration v Li (2013) 249 CLR 332 at [76]
Relevantly, the central concerns of the Tribunal in respect of the applicant’s request to adjourn the review were twofold: first, the Tribunal had already adjourned the review once due to the applicant’s request to have the hearing held in Sydney, where he was working, rather than in Perth, where he had advised the Tribunal he lived.[46] The Tribunal accommodated the request.[47] Secondly, the Tribunal was concerned that despite having produced two medical certificates, neither contained any diagnostic information about the applicant’s illness beyond the opinion (of the doctor who gave the second certificate) that the applicant would be unable to participate in a Tribunal hearing.
[46] CB 83
[47] CB 106
It is relevant to note that notwithstanding the provision by a medical practitioner of an opinion about the health, or capacity, of an applicant, the assessment of the applicant’s capacity to participate in a hearing, and the decision as to whether to adjourn a review, are for the Tribunal. Whilst the Tribunal would need good reasons not to adjourn a review if it had before it medical evidence describing in adequate detail the medical reason the applicant could not participate in a hearing, ultimately it is a matter for the Tribunal to assess the evidence before it, and all of the circumstances, in deciding whether to adjourn the review. This was the approach taken by the Federal Court in MZAHI v Minister for Immigration.[48] In MZAHI the Federal Court stated in respect of a medical certificate that was given to the Tribunal by the applicant in support of an adjournment application for his hearing:
The medical certificate was plainly inadequate to justify any further adjournment of the Tribunal hearing. The medical certificate merely stated that the appellant was unfit for work and provided no meaningful detail about the nature of the appellant’s illness, or any meaningful content which would enable the Tribunal to conclude that the appellant could not participate at the Tribunal hearing. Given the absence of any meaningful content in the medical certificate it was open to the Tribunal to reject that certificate as sufficient proof that the appellant was unable to participate in a Tribunal hearing on that day.
[48] [2016] FCA 129
The Federal Court’s decision in MZAHI was focussed principally upon the Tribunal’s consideration of the content of the produced medical certificate. Whilst it might be said that the second medical certificate obtained by the applicant in the present case contained more detail than the certificate the subject of consideration in MZAHI (in that the certificate in this case expressed an opinion of a doctor that the applicant was “unfit for his Tribunal hearing today”), critically, the applicant’s medical certificate was still bereft of any “meaningful detail” either of the nature of the alleged illness, or the basis upon which the doctor had expressed the opinion that the applicant was unable to participate in the hearing. What, for instance, did the doctor who gave the certificate know of the nature of the Tribunal hearing, or the burden such a hearing would place on the applicant? It is impossible to know.
A similar outcome was reached in earlier judgments of the Federal Court, cited by Davies J in MZAHI in the context of adjournments sought of court proceedings. For instance, in NAKX v Minister for Immigration[49] Lindgren J rejected as unsatisfactory two certificates for respective applicants that contained both a diagnosis by a medical practitioner concerning the health of the applicants, and a stated opinion that the applicants were ‘unable to attend court’ on specified dates. His Honour found at [6] and [8] that the certificates “do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing” and that “if the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect”.
[49] (2003) FCA 1559
Justice Davies in MZAHI also cited, at [9], the judgments of the Federal Court in MZZGY v Minister for Immigration[50] and Singh v Minister for Immigration.[51] In a similar vein in the context of applications for adjournments of court proceedings.[52] Ultimately, it was a matter for the Tribunal to assess whether to adjourn the review having regard to the evidence before it, including any medical evidence. It was not incumbent on the Tribunal to adjourn the hearing simply because a doctor had expressed a pithy opinion that the applicant was unfit for his Tribunal hearing. Put another way, on the evidence before the Tribunal, it is not the case that the only option available to the Tribunal in considering the exercise of its discretion under s.427(1)(b) was to accede to the applicant’s request to adjourn. The Tribunal’s decision was within the range of possible acceptable outcomes available to the Tribunal.[53] The Tribunal cannot be criticised for failing to give reasons for not adjourning the review. It did give reasons which were cogent.
[50] [2014] FCA 488
[51] [2014] FCA 538
[52] see BXD17 v Minister for Immigration [2018] FCA 765 at [35]
[53] Li at [105]
Once the Tribunal had determined not to adjourn the review, it was open to the Tribunal then to proceed to dismiss the application pursuant to s.426A(1A)(b). The Tribunal explained in its reasons that the applicant had been properly invited to the hearing, and that reminders had been sent. Plainly the applicant was aware of the hearing, but he chose not to attend.[54] In light of the Tribunal’s reasons given for not adjourning the review, the Tribunal found that no satisfactory reason for the non-appearance had been given. I accept that there was nothing unreasonable in this decision.[55]
[54] [13]; CB 204
[55] see MZAHI at [10]
Turning then to the confirmation decision made by the Tribunal on 11 September 2018, the Tribunal’s power under s.426A(1C) to reinstate a review application is discretionary (and therefore subject to the implied condition that it be exercised reasonably).[56]
[56] cf cases where an applicant fails to apply for reinstatement and s.426A(1E) applies
In considering whether to exercise its discretion, the Tribunal noted the applicant had applied for reinstatement within the statutory timeframe.[57] It had regard to the additional medical certificate provided by the applicant, which gave the doctor’s opinion that the applicant was suffering from “Cold & Flu”.[58] It gave this additional information some weight at [7], although also took into account that the applicant “did not act promptly to bring this additional diagnostic material to the attention of the Tribunal”.[59] The Tribunal took into account all the relevant circumstances in deciding to confirm the dismissal of the application.[60] These circumstances include the circumstances surrounding the applicant’s failure to attend the hearing on 23 August 2018 as contained in the dismissal decision.[61] It is to be recalled that the Tribunal had communicated in clear terms to the applicant the nature of the evidence he would need to provide in order to satisfactorily justify his absence from the hearing.[62] The Tribunal took these matters into account in deciding whether to exercise its discretion to reinstate the application.
[57] CB 214 at [4]
[58] CB 214 at[6]
[59] CB 215 at[8]
[60] CB 215 at[9]
[61] CB 214 at[7]
[62] [6] and [9] of the dismissal decision: CB 203
It is also apparent that the Tribunal remained concerned with the state of the medical evidence before it. It may be observed of the medical evidence before the Tribunal that, even at this stage it still lacked any meaningful explanation from a doctor why the applicant was unable to attend his hearing, or the basis of the doctor’s opinion that the applicant would be unable to participate in the hearing. It was, for these reasons, open to the Tribunal to refuse to exercise its discretion to reinstate the review. The decision it made, for the reasons set out in the decision, was at least a decision that was available to a reasonable decision-maker. This is so despite the fact that a different reasonable decision-maker might have made a different decision.
The ultimate decision made by the Tribunal was not necessarily one that I would have made, nor was it necessarily one that another Tribunal member would have made. It was a decision about which reasonable minds might differ. That places the decision within the realm of the Tribunal’s decisional freedom and, accordingly, a finding of legal unreasonableness is not available.
In the circumstances, no legal unreasonableness in relation to the Tribunal’s non-exercise of power under s.426A(1C) is established.
Conclusion
The applicant has failed to demonstrate that the decisions of the Tribunal are affected by any jurisdictional error. The decisions are therefore privative clause decisions and the application must be dismissed.
The Minister sought scale costs in the event that the application was dismissed. I will so order.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 9 April 2020
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