FKK18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 174
•29 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FKK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 174
File number(s): SYG 2901 of 2018 Judgment of: JUDGE GOODCHILD Date of judgment: 29 February 2024 Catchwords: MIGRATION – Protection visa – Administrative Appeals Tribunal – whether the Tribunal failed to provide the applicant objectively meaningful invitation to attend – unreasonable refusal of adjournment request – writ of certiorari issued – writ of mandamus issued Legislation: Migration Act 1958 (Cth): ss 5AAA, 353, 420, 422B, 424C, 425, 426A, 427, 429A, 441A, 476 Cases cited: BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660
BIM16 & Ors v Minister for Immigration & Anor [2020] FCCA 3066
Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] 128 FCR 553
NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56
SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1
SZMSF v Minister for Immigration and Citizenship [2010] FCA 585
Division: Division 2 General Federal Law Number of paragraphs: 104 Date of hearing: 19 September 2023 Place: Sydney Counsel for the Applicant: Ms Okereke-Fisher Solicitor for the Applicant: ABU Legal Counsel for the Respondents: Mr Rielly Solicitor for the Respondents: Mills Oakley ORDERS
SYG 2901 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FKK18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
29 FEBRUARY 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 11 September 2018.
2.A writ of mandamus issue requiring the Second Respondent to re-hear the application for review according to law.
3.The First Respondent pay the Applicant’s costs in this matter.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GOODCHILD:
INTRODUCTION & BACKGROUND
Pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”), the applicant, who is a citizen of Malaysia, seeks judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 11 September 2018.
By that decision, the Tribunal affirmed the decision of a delegate of the first respondent, dated 7 February 2017, refusing the applicant’s application for a permanent protection (subclass XA-866) visa.
The applicant first arrived in Australia on 13 July 2016 on an Electronic Travel Authority visa. On 7 October 2016 she applied for a protection visa, making various protection claims which can be summarised as follows:
·That her ex-husband had misused her name to borrow money from a loan shark;
·That the loan shark had attended her home, workplace and everywhere she went to threaten her to settle the debt which she could not afford to pay;
·That she had lost her job as a result of always being disturbed by the loan shark at her workplace;
·That even when she ran away to another place the loan shark continued to hunt and threaten to kill her;
·That the issue was ongoing for one year and she was sure that they would continue to hunt her until the debt is settled;
·That she lived in fear every day which led her to leave Malaysia;
·That if she returned to Malaysia she might be killed;
·That while she did not experience harm in Malysia she is mentally tortured from the incident and is traumatised from the violence the loan shark used towards her; and
·That she does not believe the authorities will protect her because, although she had lodged a report, she did not receive protection.
The delegate of the first respondent who considered the applicant’s protection visa application was not satisfied that the applicant was a person in respect of whom Australia has protection obligations. In summary, the delegate concluded that nothing in the evidence before the delegate, particularly in country information, suggested that the Malaysian government would fail to provide the applicant “state protection” if she were to return to Malaysia. The delegate otherwise found that there was no risk to the applicant of “significant harm”.
On 1 March 2017, the applicant lodged an application with the Tribunal seeking review of the delegate’s decision.
On 11 July 2018, the Tribunal emailed the applicant inviting her to attend a hearing on 11 September 2018 at the Tribunal’s Sydney Registry. At the time of receiving this email from the Tribunal, the applicant resided in the State of Victoria.
The adjournment application
On 4 September 2018, the applicant telephoned the Tribunal and requested that the hearing be postponed. According to Tribunal records, the applicant told Tribunal staff that she had just given birth and that she needed more time before she was ready to attend the hearing. In reply, the Tribunal advised the applicant to make her request in writing and to specify the reasons for the adjournment.
That same day (4 September 2018) the applicant sent an email to the Tribunal in which she stated that she was unable to attend the scheduled hearing as she was still “in recovery”, having given birth on 13 August 2018 (about three weeks prior). The applicant also stated in her email that her emotional and mental health was “unstable to hold question and answer session”. She added that her newborn baby was still under special observation and attached to her email a copy of her Maternity Discharge Summary dated 14 August 2018. She ended the email with “3. I hope my application is being addressed and given an answer. Thank you for cooperation”.
The Tribunal wrote back to the applicant the next day and requested that she provide a medical certificate in support of her application to postpone the hearing. Tribunal records show that the applicant was also telephoned that afternoon and told by Tribunal staff that the Tribunal member “require[d] a medical certificate in order to postpone the hearing within 48 hours”.
On 6 September 2018, the applicant provided the Tribunal with a medical certificate of same date in which the following was written:
This is to certify that [the applicant’s name] has delivered a baby girl on 13/8/2018. In my opinion due to her health and the baby’s health, they will not be able to fly to Sydney for approximately 12 weeks.
If I can be of further assistance, please do not hesitate to contact me.
(As per original)
There is no evidence that the applicant received a response from the Tribunal in relation to the medical certificate.
On 10 September 2018, the applicant telephoned the Tribunal to query whether her request to postpone the hearing had been granted. According to Tribunal records, the applicant was advised that a Tribunal member had been “notified” of her adjournment request and that she “will be contacted”. The applicant was not telephoned back by the Tribunal but received an automated SMS at her nominated mobile number that same day reminding her that the hearing was scheduled for the next day, 11 September 2018.
At 10.03am on the morning of the scheduled hearing date (11 September 2018), the applicant telephoned the Tribunal to enquire if her request for a postponement due to medical reasons had been accepted. It appears from Tribunal records that in a separate telephone conversation between the Tribunal and the applicant that occurred about 31 minutes later (at 10.34am), the applicant was informed that the hearing “will go ahead at the appointed time by telephone”. The Tribunal records show: “The applicant agreed to be available and present for the hearing by telephone”.
The Tribunal Hearing
The Tribunal hearing commenced after midday on 11 September 2018 via telephone. The applicant was not legally represented at the hearing. A Malay interpreter was available.
The applicant deposes in an affidavit she relies upon in these proceedings that she attended the Tribunal hearing “lying in my bed holding my baby in arms and was on prescribed medication”.[1]
[1] Applicant’s affidavit filed 11 September 2023, [13].
The applicant relies on the transcript of the Tribunal hearing.[2] It was submitted by the applicant that the Tribunal hearing was scheduled to last 1 hour and 30 minutes. The records show it lasted 26 minutes. Within those 26 minutes, the Tribunal member made an oral decision to affirm the Delegate’s decision, a decision which was reduced to writing in a “Decision Record” that the Tribunal later provided to the applicant at her request.
[2] Annexure A to an Affidavit of the applicant’s solicitor, Abu Siddque, filed 11 September 2023 (“Transcript of the Tribunal hearing”).
The Tribunal’s oral decision
The transcript of the Tribunal hearing provided by the applicant and upon which she relies is a total of six pages, excluding its coversheet.
That transcript, which also includes the Tribunal’s oral decision, is reproduced here in its entirety, with references to the applicant’s name redacted where relevant:
Page 1
IN THE ADMINISTRATIVE APPEALS TRIBUNAL
MIGRATION AND REFUGEE DIVISION
[Tribunal member’s name]
TUESDAY 11 SEPTEMBER 2018
[Case number] – APPLICATION OF [APPLICANT’S NAME]
---
TELEPHONE LINK COMMENCED
HEARING OFFICER: The member has entered the hearing room and the Tribunal is now in session. This is a hearing of an application by [the applicant’s name], [the case file number] held on 11 September 2018. The Tribunal is constituted by [the Tribunal member’s name] and the hearing commences at 12.34pm.
APPLICANT: Okay.
MEMBER: I think we might swear the interpreter in, thank you so much.
<INTERPRETER, SWORN
MEMBER: Thank you, ma’am. And now the applicant, thanks.
<APPLICANT, AFFIRMED
MEMBER: Thank you so much.
Q. Good afternoon [Ms applicant]. How are you?
A. WITNESS: Yeah, good.
Q. It sounds like you do have a fairly good knowledge of English. Would you like us – the interpreter will be here during the whole course of the hearing but do you want to see if we can deal with it in English initially and then if you need some help, she can come in at any stage? How would that—
A. INTERPRETER: I’m not very clear if you speak too fast.
Q. No, that’s fine. I just thought I’d ask the question. It’s not a problem. Okay, so I’ll just ask you some unremarkable and non-controversial questions. You applied for this protection visa on 5 October 2016?
A. WITNESS: Yeah.
A. INTERPRETER: Yes.
Q. Okay. Your case was refused by the delegate of the Department of Immigration on the basis that, in his words, there was no risk to you of “significant harm” as outlined in the various sections of section 36 of the Migration Act?
Page 2
A. WITNESS: Okay.
Q. You’ve got to say yes or no. We’ve got this being taped.
A. INTEPRETER: Yes.
A. WITNESS: Yeah.
Q. Thank you so much. [Ms applicant], why is it that you’re seeking protection in Australia?
A. INTERPRETER: Because I have problem, I have problem in Malaysia.
Q. Would you like to describe and detail the problem which you have in Malaysia?
A. WITNESS: Okay.
A. INTERPRETER: My ex-husband had a loan with a loan shark, and then that loan shark was looking for me.
Q. [Ms applicant], I’ve looked in both the files and I can’t see any details at all about any ex-husband or indeed any loan or anything about any loan sharks. Can you tell me why that’s omitted from the supporting documentation?
A. INTERPRETER: I did write that down, I didn’t say anything else.
Q. So you have no details regarding any loan contract with your husband. You have no idea of the identification of such loan shark and you have no idea about anything else regarding the loan. Is that correct?
A. INTERPRETER: Well, I know that he borrowed. He just using, he just using my name, so all I did was just signing.
Q. [Ms applicant], it is not for the Tribunal to make out your case for you. You must provide all the information and I remind you of the hearing invitation which was dated 11 July 2018 where it very clearly said:
“After the hearing, the Member may hand down an oral decision. Consequently, it’s important that all information, submissions including translations by an accredited translator of any non-English documents, are submitted a full seven days before the hearing date”.
So, you know, just to make the assertion, an unsupported and undocumented statement isn’t helpful to your case and so it brings into question the genuineness of your application. Do you understand?
A. INTERPRETER: Well, I didn’t know in the email. All I knew the date for the hearing.
Q. [Ms applicant], I’m not accepting the veracity of that answer. Everything was laid out in the hearing invitation to you and there was no question about it. You knew about this hearing today and the only way you knew about it was that you received all the documentation that we’re required to give you under the law.
A. WITNESS: Yes.
A. INTERPRETER: Well, and also because I’m in a late stage of pregnancy
Page 3
now
Q. No, you’re not. You gave birth last month.
A. INTERPRETER: Yes. Yes, I know.
Q. That’s not what you said, is it?
A. INTERPRETER: Yeah. When I received that letter, I was in the latest stage of pregnancy in the month of seven, and then the month of eight I gave birth, so that’s why I didn’t have enough time to prepare.
Q. I don’t accept that, but I’ll put that down as your answer. I think it’s a very poor and a very shallow answer and if this is of such great importance to you, you would have put more currency and more emphasis on the significance of your opportunity now before the Tribunal.
A. INTERPRETER: Yes, I understand but if I had enough time, I would prepare much better.
Q. You’ve had more than enough time. You’ve had since 11 July 2018 and for the record, being pregnant doesn’t mean that you lose your intelligence.
A. INTERPRETER: Yeah, because I didn’t really take notice of that email and then my thinking is not well.
Q. Well, the medical certificate you gave us says absolutely nothing about your mental health. It just simply says that you can’t come to Sydney, so I’ll just take that without giving it much weight. Is there anything else you’d like to say about your case? Because I’ll be handing down an oral decision now.
A. WITNESS: Nothing.
A. INTERPRETER: I don’t have. I hope that you will consider again.
Q. Thank you, [Ms applicant]. [Ms applicant], this decision will be handed down. We won’t be translating it because it goes into detail which you wouldn’t appreciate and indeed no translator or interpreter would be able to accurately disseminate the translation anyway, because some of it is in legalese which would be difficult for anybody even a lawyer so I will be giving an oral decision now.
<THE WITNESS WITHDREW
MEMBER: I am adopting the template decision which is on or after 16 September 2014, the Tribunal adopts all paragraphs relevant to an affirmed decision save for variables which I will itemise in a moment and they are: the applicant is a citizen of Malaysia and she has confirmed that she filed this application for protection on 5 October 2016. She also agreed that the delegate of the Minister refused to grant the visa on the basis that she would not face any harm on return to Malaysia pursuant to the various subsections of section 36 of the Migration Act.
There are a number of paragraphs that, together with the paragraphs I have already adopted, are also included in this template decision and they are as follows. The first main heading is “Statement of Decision and Reasons” with a subheading of “Application for Review”. Then there is another major heading
Page 4
“Criteria for protection” and, as I have said previously, all of those paragraphs are adopted.
As regards the “Mandatory Considerations” heading, the Tribunal finds that nothing has been raised in relation to mandatory considerations and it is not taken into account in this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal asked the applicant a number of questions about the nature of her claim and she said that her ex-husband had taken out a loan with a loan shark and that she had been chased in Malaysia for repayment of that loan.
The Tribunal indicated that it had nothing on either the departmental file or indeed the Tribunal file relating to any details in relation to her version of events regarding either an ex-husband or indeed a loan of any sort or a loan shark. The Tribunal also continued that it noted that there was no contract of a loan and indeed no supporting information or details in relation to any alleged loan.
In answer, the applicant said, “I did not know much about the loan. My husband took it out. I knew it was a short loan but I didn’t have any details about the loan.”
The applicant also was referred to the hearing invitation and the significance of one particular paragraph and that was:
“After the hearing, the Member may hand down an oral decision. Consequently, it’s important that all information, submissions including translations by an accredited translator of any non-English documents, are submitted a full seven days before the hearing date”.
The applicant claimed she did not have enough time to prepare her case and in any event, she ignored the email, she did not think it was important. She did not indicate any reason for this apart from saying that she was pregnant at the time.
The Tribunal said it would accept this as her answer but it had grave doubts that being pregnant would in any shape or form affect the level of her intelligence and that this would in any way diminish the significance of the application for protection that she had put in.
She also made a statement that she was in the late stages of pregnancy now. She explained that mistake by saying yes, she made a mistake. It is not that she is pregnant now, she had the baby well over a month ago now, nevertheless, she was still suffering certain after-effects which of course the Tribunal has no doubt that she may well be doing that.
The Tribunal referred to the medical certificate which the applicant submitted last week to indicate why it was that she could not travel to Sydney to
Page 5
undertake the hearing. The Tribunal has accepted that this may well be the case and has of course no issue with that. However, it makes no mention of any ancillary or secondary problems that the applicant is suffering, and to the extent that the applicant is making some case that somehow being pregnant or suffering the after-effects of pregnancy have somehow diminished the significance of a visa application for protection is not accepted by the Tribunal.
The Tribunal expressed its grave concerns about the genuineness of her application, and that for somebody who has already admitted that she did not take much notice of the hearing invitation, it is just one further factor, not the only factor but one further factor that this is not a genuine application for protection.
The Tribunal therefore has given little weight to the statement and the lack of detail that it has been given today that in fact the applicant is in fear of returning to Malaysia because of some alleged aspect regarding a loan taken out by her husband.
The Tribunal adopts the optional paragraph, being the evidentiary responsibilities of the applicant, which is in the insert there for the optional paragraph. It refers to evidentiary responsibilities of the applicant. The Tribunal inserts the section regarding section 5AAA of the Act which makes it clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist the applicant in specifying any particulars of her claims, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
Of course following from that, the Tribunal finds that the applicant has made no claim out in relation to Australia’s responsibility as to protection of the applicant with the amount or lack of amount of detail that is presented to the Tribunal today.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).
It also inserts the next paragraph. Having concluded the applicant does not meet the refugee criteria in section 36(2)(a) the Tribunal has considered the alternative criteria in section 36(2)(aa). The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).
There is no suggestion the applicant satisfies section 36(2)(c) on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) and who holds a protection visa. Accordingly, the applicant does not satisfied the criteria in section 36(2).
DECISION
Page 6
The Tribunal affirms the decision not to grant the applicant a protection visa.
MEMBER: Okay. That’s the outcome of the decision. Madam interpreter, would you please ensure that the applicant is aware that I have handed down an oral decision today and that it is an affirmed decision, and that if she needs to have any explanation about what an affirmed decision is, the Tribunal and I suggest that she discuss that with the Tribunal to find out what that means. But essentially, it means that the Tribunal has agreed with the outcome of the Minister’s decision.
If there is anything else you need to know about that, it simply means that as far as your appeal to the Administrative Appeals Tribunal is concerned, you have been unsuccessful. Thank you very much for your time, [Ms applicant]. The hearing is now concluded and you may hang up.
APPLICANT: Okay, thank you.
MEMBER: Thank you very much, [Ms applicant].
TELEPHONE LINK CONCLUDED
ADJOURNED
On 12 September 2018, the Tribunal wrote to the applicant confirming the outcome of the review. In that email, the Tribunal also advised the applicant that she could request a written statement of the decision and the reasons for the decision.
The applicant requested a written statement of the Tribunal’s decision which the Tribunal provided to her on 11 October 2018.
The Tribunal’s written Decision Record
The Tribunal’s Decision Record begins with an overview of the applicant’s application for review. It records that the applicant had applied for a review of the delegate’s decision to refuse to grant her a protection visa, and that the application proceeded to hearing on 11 September 2018 and was determined by a Tribunal member who made an oral decision and gave an oral statement of reasons.
The Decision Record then enumerates in five paragraphs the relevant criteria for a protection visa. Here, reference is made to various sections of the Migration Act, as well as applicable regulations found in the Migration Regulations 1994 (Cth) (“the Regulations”).
Curiously, in its oral statement of reasons the Tribunal found that “nothing has been raised in relation to mandatory considerations and it is not taken into account in this decision”.[3] However in the Tribunal’s written decision at [6] under the heading “Mandatory considerations”, the Tribunal states that it had taken account of:
…policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
(As per original)
[3] Transcript of the Tribunal hearing, pg 4 at line 4 to 6.
The Tribunal sets out at [8] to [24] consideration of the applicant’s claims and evidence, summarising in this discussion the exchanges that took place at the Tribunal hearing on 11 September 2018.
At [9], the Tribunal first mentions the applicant’s adjournment application leading up to the Tribunal hearing and how that request was refused by the Tribunal on the basis that the medical certificate the applicant provided “only stated that she could not travel to Sydney for several weeks and so the hearing went ahead but was conducted by phone”.
The Tribunal decision states that:
[10] In conversation with the applicant, via telephonic link-up, the Tribunal referred her to her review application dated 01/03/18 and her original protection visa application and raised with her its concern that neither gave any supporting, independent or corroborative details as to a claim for protection either as to the existence of the loan or that that she had sought protection of authorities and that this had been ignored, refused or otherwise not dealt with by the relevant authorities. It continued that in such circumstances and together with the lack of any detail at all to assist her claim the Tribunal was having considerable difficulty in accepting the genuineness of her claim.
The transcript of the hearing reveals the following:
Q. Ms Ismail, I've looked in both the files and I can't see any details at all about any ex-husband or indeed any loan or anything about any loan sharks. Can you tell me why that's omitted from the supporting documentation?
A. INTERPRETER: I did write that down, I didn't say anything else.
The Tribunal further recorded that in those circumstances, together with the lack of any detail “at all” to assist the applicant’s claim, the Tribunal had considerable difficulty in accepting the genuineness of the applicant’s claim.
At [11] of the Decision Record, the Tribunal records that at the Tribunal hearing the applicant indicated she had no knowledge of the loan or any details of it, including why her husband took it out in the first place. It is recorded that in response the Tribunal told the applicant that this “would seem to be lacking profound credibility and an extraordinary situation in that a wife did not have knowledge of these type of transactions as it would usually come out in the usual husband and wife familial conversations”. It is further recorded at [12] that when asked by the Tribunal if she had any other information which might give her claim some credence in seeking protection, the applicant replied that she did not.
At [13] to [16] of the Decision Record, the Tribunal elaborated on the lack of responses provided by the applicant in respect of aspects of her application the Tribunal member took her to. For example, the Tribunal recounted referring the applicant to the Departmental decision dated 7 February 2018, which the Tribunal says, “clearly indicated what was at issue in [the applicant]’s case being the lack of details and supporting information as mere assertions unfounded by any existence of information or, indeed, any credible information or documentation at all”. The Tribunal records that the applicant paused, but gave no further information.
The Tribunal records that there were long pauses from the applicant when she was taken to the Tribunal hearing invitation dated 11 July 2018, and particularly the declaration regarding the significance of providing all relevant information to the Tribunal seven days prior to the Tribunal hearing and related documentation attached to the invitation that outlined how the applicant should prepare for the hearing.
The Tribunal records at [17] of the Decision Record that the applicant told the Tribunal that she “ignored” the Tribunal’s email containing the relevant hearing invitation and indicated to the Tribunal that she did not think it was important. The Decision Record states that, in response, the Tribunal told the applicant that her response “appeared to be a cavalier approach for a protection claim”. The Decision Records notes the following observations and conclusions (at [18] to [21]):
After the delay [the applicant] referred to her recent pregnancy in Australia and that she had given birth on 13/08/18. She continued that the pregnancy made her unable to reply to the hearing invitation. The Tribunal replied by referring the applicant to her own medical certificate dated 06/09/18 which made no mention of such forgetfulness or, indeed, of any other medical problems such as anxiety and that it clearly only mentioned a restriction of her travelling to Sydney. She made no further comment on this issue.
The Tribunal does not accept that the applicant, after the birth, suffered any significant ancillary or secondary medical condition personal to her which would otherwise prevent her from properly responding to the hearing invitation and regards this explanation for not presenting any supporting or independent details of her claim as a version of events lacking any cogent or logical credibility. The Tribunal further finds that that (sic) the applicant’s claim that she and her husband would not have discussed an issue such as loans from loan sharks to be similarly flawed.
The applicant formally chose to ignore the hearing invitation and its attached detailed information outlining the significance of properly preparing her case before the Tribunal. Her explanation as to the pregnancy would have accounted for a delay of a week or so but provided no believable explanation for totally ignoring the hearing invitation in circumstances where she has claimed persecution under a protection visa application. Her attitude was remarkably offhand and not consistent with a genuine claim of persecution.
On the information presently before the Tribunal, it finds that the applicant’s claims of persecution are totally devoid of any semblance of reality. The Tribunal finds that the applicant’s claims are not supported by any independent, corroborative or supportive evidence and it further finds, from the profound paucity of any supportive information at all, that she has manufactured her claims for permanent protection in Australia for reasons other than those relating to any type of genuine fear of persecution.
Prior to its concluding remarks, the Decision Record (at [23]) made reference to s 5AAA of the Act and stated that such a provision makes clear the applicant’s responsibility to “specify all particulars of a claim to be a person in respect of whom Australia has protection obligations” and “to provide sufficient evidence to establish the claim”. The Tribunal added that it did not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims, nor any responsibility or obligation to establish, or assisting in establishing, the applicant’s claim.
The Decision Record concluded at [24] that, on the evidence before it, it was not satisfied that the applicant had a well-founded fear of persecution on any basis, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm.
In the foregoing circumstances, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
THE PRESENT JUDICIAL REVIEW APPLICATION
By her Amended Application for Judicial Review filed 11 September 2023, the applicant seeks orders for writs of certiorari and mandamus to issue, to quash the Tribunal’s decision of 11 September 2018 and to require the Tribunal to determine the applicant’s review application according to law.
In support of her judicial review application, the applicant relies on the following grounds of review (as appears in her Amended Application):
Ground One:
The Tribunal breached the statutory obligation to give the Applicant a meaningful opportunity to give evidence and present arguments relating to the decision under review by reason of s.425(1) of the Act, in that the invitation was not meaningful.
Particulars
The Tribunal failed to afford the Applicant an invitation to a real and meaningful hearing for the purposes of s425 of the Act by reason of the following:
a) The Applicant was unable to participate in the hearing by reason of mental/emotional unfitness.
b) The Applicant was around 7-8 months pregnant at the time she received the Invitation Letter.
c)The Applicant approached the Tribunal (7) seven days before the scheduled hearing to request an adjournment because of her mental and emotional health.
d) The Applicant provided documentary evidence to support her request for an adjournment
e) The Tribunal misled the Applicant into believing the Tribunal would postpone the hearing.
f) The Tribunal did not advise the Applicant of the refusal of the Adjournment Application until 10:34am on the hearing day.
g) The Applicant in her affidavit states “On 11 September 2018, I attended the hearing lying in my bed holding my baby in arms and was on prescribed medication. If I have known that my hearing is proceeding, I would have made proper arrangement for my newborn and prepare for the hearing”
h) The Transcript shows that the Applicant was not fit to participate in the hearing and the Tribunal’s conduct leading to the hearing undermined the Applicant’s participation
i)The Tribunal heard the application and delivered an oral decision in the matter within 26 minutes (CB 115).
Ground Two:
The Applicant was invited under section 425 to appear before the Tribunal and was issued a s425A notice of invitation but pursuant to s426A(1)(b), the Applicant did not appear before the Tribunal at the place at which, the applicant was scheduled to appear (CB99). Consequently, the operation s424A (1) was enlivened.
The Tribunal erred in (a) proceeding as if the application of s426A (1) was not enlivened; and/or (ii) failing to deal with the Applicant’s matter as statutorily required pursuant to s426A(1A) thereby denying the Applicant the opportunity of possibly reinstating a dismissed application pursuant to 426A(1B) having his appearance rescheduled: 426A (2).
Particulars:
a) The s425A notice of invitation to appear was sent to the Applicant on 11 July 2018 (Invitation Letter) (CB 99).
b)The location stated on the Invitation Letter is Administrative Appeals Tribunal Level 6, 83 Clarence Street, SYDNEY NSW 2000 (Place).
c) The Applicant did not appear before the Tribunal at the Place and consequently, there was a failure of the Applicant to appear before the tribunal, enlivening the operation of s426A.
d) The Tribunal failed to deal with the Applicant’s matter in accordance with s426A(1A).
Ground Three: Jurisdictional Error-
The Tribunal failed to exercise the discretionary powers conferred on it pursuant to s 427(1)(b) within the bounds of reasonableness. The Tribunal’s failure to exercise the discretion in s427(1)(b) so as to reschedule the hearing in the given circumstances was unreasonable leading to a Tribunal decision that was plainly unjust and lacking an evident and intelligent justification.
Particulars
a)The Applicant had just had a baby and had indicated that she was still in recovery and was emotionally and mentally unfit to participate in the hearing;
b)The Maternity discharge document showed that the Applicant had suffered birth trauma by way of bruising;
c)the Tribunal had advised that the hearing would be postponed if the Applicant provided a medical certificate within 48 hours;
d)The medical certificate stated that the Applicant and her baby could not fly for 12 weeks because of their health conditions;
e)The Applicant made an adjournment application 7 days before the scheduled hearing;
f)The Tribunal did not give the Applicant notice of refusal of the adjournment application Applicant until 10:34am on the morning of the hearing;
g)The Applicant’s application is a protection visa application and non-determination of her case would lead to her return to a country where she fears harm of persecution.
As noted earlier, the applicant relies on her affidavit filed in these proceedings on 12 September 2023. By that affidavit, the applicant deposes to the circumstances leading up to, and relating to, her adjournment application, and other information regarding the scheduled Tribunal hearing. A written outline of submissions was also filed on the applicant’s behalf on 7 September 2023.
The first respondent relied upon written submissions filed on 12 September 202. The first respondent’s contends that the applicant’s application be dismissed with costs.
On 19 September 2023, the matter came before me for a final hearing and on that day, each party was represented by counsel.
RELEVANT STATUTORY FRAMEWORK AND LEGAL PRINCIPLES
“Meaningful” invitation
The Tribunal’s obligation to properly invite an applicant to attend a hearing before it is contained in s 425 of the Act. That section provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The necessary requirements for a Notice of invitation to appear is set out in s 425A of the Act, which relevantly provides:
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
With respect to the construction of s 425 I was referred to the case of Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] 128 FCR 553 (“SCAR”), where the Full Court of the Federal Court construed s 425 of the Act as requiring a “real and meaningful” invitation to attend an oral hearing for the purposes of giving evidence and presenting arguments. According to SCAR, such an invitation “must not be a hollow shell” or an “empty gesture”,[4] and the obligation to provide a meaningful invitation existed whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation.[5]
[4] SCAR at [33] citing Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395.
[5] SCAR at [37].
It has been held that the objective requirement that s 425 imposes on the Tribunal, is emphasised by the natural justice hearing rule as contained in s 422B of the Act. As was discussed by Gray J at [5] to [6] in SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1:
5. Section 425, like other provisions found in Div 4 of Pt VII, represents Parliament’s expression, in terms appropriate for the task of reviewing decisions refusing to grant protection visas, of an aspect of the requirements of procedural fairness. If this proposition were ever doubted, it is now confirmed by the presence of s 422B, enacted subsequently to most of the other provisions in Div 4. Like the rules of procedural fairness in other contexts, the rights given to an applicant by Div 4 are rights relating to the process by which decisions are made, rather than to the substantive content of those decisions. To say this, however, is not to diminish the importance of those rights. It has long been recognised that a statutory power, the exercise of which may affect adversely a person’s interests, is impliedly subject to a requirement that the decision-maker afford procedural fairness to that person. The fact that, in the context of the Tribunal’s task of reviewing decisions to refuse protection visas, Parliament has chosen to make the exercise of the Tribunal’s substantive powers depend expressly upon the process rights contained in Div 4, and to spell out for that purpose what constitutes procedural fairness, does not diminish the importance of those process rights. Thus, it is recognised that the requirement of an invitation to a hearing, found in s 425(1), will not be met if what is actually afforded to the applicant is not a hearing at which the applicant is able to give evidence and present arguments relating to the issues arising in relation to the decision under review. See, for instance, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [37].
6. Section 425(1) has two particular features that are important in the determination of the larger issue in the present cases. The first is that the hearing to which an applicant must be invited is for two purposes, for him or her to give evidence and for him or her to present arguments. Although the word “evidence” in relation to the material placed before an administrative decision-maker may not be entirely appropriate, the obvious intent of s 425(1) is that the applicant should have an opportunity to provide information particularly within his or her personal knowledge to the person who will make the decision. This is an important right. No less important is the opportunity to present arguments. It is this opportunity that gives an applicant the chance to persuade the decision-maker to accept the accuracy of the information provided by the applicant, to reach the conclusion that that information should be regarded as more reliable, or as having more weight, than conflicting information that the Tribunal may have, or that apparent conflict between information supplied by the applicant and that gathered by the Tribunal is not real or substantial. It is clear from the express inclusion of the right to present arguments that Parliament regarded the right to attend a hearing for this purpose, as well as for the purpose of providing information, as of great importance to an applicant.
See also Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575 at 582 per Keane CJ and 588 per Emmett J.
One circumstance which may prevent the opportunity being meaningful may arise where a visa claimant is suffering from a physical or mental condition which effectively denies them the opportunity to either present the evidence they wish to rely upon or to present argument:
SZMSF v Minister for Immigration and Citizenship [2010] FCA 585 at [11]. The onus in this regard, of establishing an unfitness to participate in a hearing following the giving of an invitation, falls upon the claimant (NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 at 71 (“NAMJ”)), though, there is no exhaustive test relating to “fitness” to partake in a Tribunal hearing. As noted by Branson J in NAMJ:…It seems likely that no single standard of fitness will be appropriate for all cases. Fitness in the relevant sense will, in my view, require to be assessed having regard to the particular circumstances of each case including the intended purpose of the hearing before the tribunal and the support and assistance available to the applicant.
Adjourning Tribunal proceedings
The Tribunal’s power to adjourn its review of a decision is conferred by s 427(1)(b) of the Act which provides:
427 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
…
(b) adjourn the review from time to time…
The language of s 427 makes clear that the power to adjourn is discretionary, and, accordingly, must be exercised by the Tribunal in a legally reasonable way: Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18 (“Li”) at [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ, and at [88] per Gageler J.
The question of whether an exercise of power is legally unreasonable is invariably fact dependant and thus requires careful evaluation of the evidence before the Court, including any inferences which may be drawn from that evidence: Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50 (“Singh”) at [42]. A conclusion of legal unreasonableness can be reached after the identification of an underlying jurisdictional error in the decision-making process, or, after evaluating an outcome of an exercise power and determining that that exercise of power lacked an evident and intelligible justification: Li [27]-[28], [72] and [105].
Importantly, the Full Court in Singh (at [48]) has cautioned that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised by the decision-maker. The Court must not take an approach that involves the substitution of its own judgment for that of the decision-maker. As such, I have considered very closely the factual circumstances in this case.
REVIEW GROUNDS
Ground 1
The applicant’s submissions
By this ground of review the applicant complains that, for the purposes of s 425 of the Act, the Tribunal erred in failing to provide the applicant a meaningful invitation to a hearing before it.
In the applicant’s written submissions, focus is given to the applicant not being afforded a meaningful opportunity to give evidence and present her arguments at the hearing as a result of the Tribunal refusing the applicant’s application to adjourn the hearing. This ground of review is interrelated to Ground 3.
The circumstances of this refusal, it is submitted, involved misleading and otherwise untoward conduct by the Tribunal which undermined the applicant’s participation in the hearing. The applicant argues in particular:
·that the applicant was around seven to eight months pregnant at the time she received the hearing invitation;
·that the applicant approached the Tribunal seven days before the scheduled hearing to make the adjournment request due to her mental and emotional health;
·that the applicant provided documentary evidence (in the form of a Maternity Discharge Summary and later a medical certificate) to support her request;
·that the Tribunal misled the applicant into believing that within 48 hours of receiving a medical certificate the Tribunal would postpone the hearing; and
·that the Tribunal only advised the applicant of its refusal of her adjournment request on the morning of the scheduled hearing.
It is also the applicant’s case that she was not fit to participate in the hearing, either mentally or emotionally, and provided affidavit evidence that she attended the hearing “lying in my bed holding my baby in arms and was on prescribed medication”.
By way of oral submissions, counsel for the applicant elaborated that the invitation to appear before the Tribunal was not meaningful in the sense that it did not provide the applicant with a “real chance to present her case”. The applicant’s counsel took the Court to copies in the Court Book of correspondence dated 4 September 2018 in which the applicant made her request to adjourn the Tribunal hearing. That email read:[6]
[6] Court Book, pg 101.
APPLICATION FOR REQUEST TO POSTPONE A HEARING
1.My name as above can not be present at the hearing session on the date and the place set out above as thing are inevitable as:
-I am still in recovery after delivery on 13.8.2018
-My emotional and mental unstable to hold question and answer session
-The condition of the baby is still in special observation
2.I also include the document from the hospital for your reference
3.I hope my application is being addressed and given an answer. Thank you for cooperation
(As per original)
Counsel for the applicant recounted events leadings up to the Tribunal hearing, as previously summarised at [6] to [13] of these Reasons. Ultimately, it was submitted on the applicant’s behalf that the applicant was not notified of the outcome of her adjournment application until the morning of the hearing, and that short notice was given that the hearing would proceed on the day by telephone. The applicant deposes in her affidavit that, had she had known that the hearing was proceeding on the day, she would have made “proper arrangements” for her newborn baby and would have “prepared for the hearing”.
Applicant’s counsel urged the Court to have close regard to discrepancies between the Tribunal’s Decision Record and the transcript of the Tribunal hearing. The applicant submitted that the Decision Record did not accurately record the applicant’s circumstances as is revealed by the transcript of exchanges between the Tribunal and the applicant. The applicant’s counsel raised, for example, the response from the applicant that when she received information regarding the hearing she was “in a late stage of pregnancy”; that as a result of being close to giving birth she “didn’t have enough time to prepare”; that “if [she] had enough time [she] would prepare much better” and that (in response to a comment from the Tribunal that “being pregnant does not mean that you lose your intelligence”) she had not taken much notice of the hearing invitation email as at the time her “thinking is not well”.
Counsel for the applicant submitted that in the days after the applicant made her adjournment request, the Tribunal “set the expectation that the hearing was actually going to be adjourned” and had also created an expectation that the applicant would be provided a response to the application she made “one way or the other” given attempts made by her to get into contact with the Tribunal and query the outcome of her request. It was emphasised at the hearing before me that that response from the Tribunal did not come until the morning of the hearing when the applicant made a further attempt to query the status of her request and was told that the hearing was going ahead but via telephone. It is contended that proceeding in this way was both procedurally unfair and unjust for the applicant.
One other matter the applicant raised under this ground concerns the duration of the Tribunal hearing. It was submitted before me that the hearing was to last for one hour and 30 minutes but had only lasted 26 minutes – 10 minutes of which was dedicated to the Tribunal giving its oral decision. It was argued by the applicant that, effectively, the applicant’s opportunity to present her case as contemplated by the hearing invitation given pursuant to s 425A, was limited to the interactions described in the transcript of the Tribunal hearing.
The respondent’s submissions
The respondent disputes that there is any evidence to support the applicant’s claim that she was unfit to participate in the hearing. The respondent was not required for cross-examination.
In written submissions the respondent highlights that in the Maternity Discharge Summary it is recorded that the applicant and her newborn were discharged from hospital the day after the applicant had given birth. The respondent also highlights that the antenatal medications listed in the Discharge Summary were vitamin supplements and that the only conditions identified regarding the newborn were a birthmark and dry skin.
The respondent submits that, given the absence of any evidence to support the applicant’s claim that she was emotionally or mentally unstable, or that the newborn had any medical condition that warranted special observation, it was open to the Tribunal to proceed on the basis that the applicant was in a “fit state” to participate in a hearing, notwithstanding that she had just given birth three weeks prior. Without such evidence to corroborate the applicant’s claim that she was suffering emotionally or mentally such that she was not capable of giving evidence and presenting arguments, the respondent submits there is “no basis upon which to find that the Tribunal was wrong to draw an adverse inference as to the credibility of her claims based on her inability to provide detailed responses to its questions”.
The respondent also disputes that the Tribunal misled the applicant in the way alleged by the applicant. The respondent submits that the Tribunal record notes that the applicant telephoned the Tribunal on 5 September 2018 (the day after she provided her Maternity Discharge Summary) and was advised by Tribunal staff that “the Member requires a medical certificate in order to postpone the hearing within 48 hours”. The respondent argues that, properly understood, this was a request that the applicant provide a medical certificate for the Member to consider “within 48 hours” as the hearing was scheduled to proceed three business days after the call. The respondent added that the medical certificate subsequently provided by the applicant did not disclose that the applicant was unable to participate in a hearing because of her emotional or mental state, or any prescription medication she may have been taking. The respondent underlined that the medical certificate indicated that the applicant was “unable to fly to Sydney”.
The respondent in written submissions said that the applicant had more than eight weeks’ notice of the scheduled hearing referring to the hearing invitation provided to the applicant on 11 July 2018, in which the following paragraph is included:
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
CONSIDERATION
In reviewing a decision, the Tribunal must act according to substantial justice and the merits of the case: s 420 (b) of the Act.
In Li, French CJ at [13]-[15] considered the legislative history and context of section 353 of the Act (the equivalent provision in Part 5 to section 420) and noted at [14] that:
The rolled-up direction to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” was considered by the Court of Appeal of New South Wales in Qantas Airways Ltd v Gubbins.[7] As pointed out by Gleeson CJ and Handley JA in that case, the collocation has no fixed legal meaning independent of the statutory context in which it is found. So too, s 353(2) is to be understood in its statutory context. That context makes clear that it cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law.
(Footnotes omitted)
Section 425(1) of the Act provides that the Tribunal “… must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal’s jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a “jurisdictional error”: SCAR at [37] [38].
The hearing invitation was dated 11 July 2018. The hearing was scheduled to be an in-person hearing in Sydney. At the time of the hearing the applicant was living in Victoria. I accept that when the applicant received the hearing invitation she was in the later stages of her pregnancy. The applicant gave birth to her child on 13 August 2018.
In her affidavit the applicant deposed to her circumstances when she contacted the Tribunal on 11 September 2018. She said as follows:
3. On 13 August 2018, I was admitted to hospital to give birth a child and my baby was born on the same date.
4. On 14 August 2018, I was discharged from the hospital and was at home self-care.
5. At that time, I moved to a new residence where there was no regular power and had lot of difficulty with new born in winter.
…
13. On 11 September 2018, I attended the hearing lying in my bed holding my baby in arms and was on prescribed medication.
14. If I have known that my hearing is proceeding, I would have made proper arrangement for my newborn and prepare for the hearing.
The applicant was not cross-examined. The above circumstances arose in the context of where seven days prior to the hearing the applicant had made an application for the postponement of the hearing and included a hospital discharge document. Six days prior to the hearing she received an email from the Tribunal with a request to provide a medical certificate. Five days before the hearing she sent an email enclosing a medical certificate. The day before the hearing the applicant telephoned the Tribunal. The Tribunal case notes record that she was advised that the Member had been notified and she would be contacted.
At 10:03am on the day of the hearing, the applicant called the Tribunal to enquire if her request for a ‘postponement due to medical reasons’ had been accepted.
At 10:34am the Tribunal called the applicant. The case note record shows the case officer ‘…confirmed the hearing will go ahead at the appointed time by telephone. The applicant agreed to be available and present for the hearing by telephone’.
There is no evidence of any communication by the Tribunal to the applicant of any concern in relation to the sufficiency of the medical certificate.
The applicant’s first contact with the Tribunal recorded in the case notes on 4 September 2018 records her request for postponement of the hearing: “The applicant has just given birth and she needs more time before she is ready to attend”. At no point did the Tribunal member actually grapple with the applicant’s request for the hearing to be postponed. The applicant was seeking more time in circumstances where she had recently give birth.
There is no evidence of the applicant’s consent for the hearing to proceed by telephone. No opportunity was given for the applicant to make representations as to the application for the adjournment.
When the hearing commenced the Tribunal did not address the applicant’s application for an adjournment. The Tribunal did not establish with the applicant if she was in a position to proceed on that day – in circumstances where she had sought a postponement of the hearing and where – contrary to the invitation, the Tribunal was to proceed with the hearing not in person but by telephone.
It is apparent from the transcript that the Tribunal dealt with the applicant and her substantive application in a very cursory manner. Presumably, if the Tribunal had asked the applicant if she was able to proceed that day, not in person and by telephone - the applicant would have had the opportunity to inform the Tribunal that she was in lying in bed holding her baby and was on prescribed medication.
The applicant stated during the hearing that she had given birth at 8 months and she did not have enough time to prepare – that if she had enough time, she would prepare much better.
The respondent contends that this case can be distinguished from SCAR because the Tribunal was not oblivious of facts which establish that the applicant did not have a full and fair opportunity to present her case. The respondent says that the Tribunal considered the applicant’s claim that she was unable to attend the hearing because she had recently given birth.
I do not agree. The Tribunal were oblivious to the fact that at the time of the hearing, the applicant was in bed holding her baby in her arms and was on prescription medication. She said that she would have made alternative arrangements for her child had she known the hearing was proceeding.
The applicant requested the hearing be postponed in circumstances where she required more time to prepare for the hearing because (i) she had received the hearing invitation in the later stages of her pregnancy and gave birth to her child some weeks before the hearing; (ii) her emotional and mental health was ‘unstable to hold questions and answer session’; (iii) her doctor opined that due to her health and the babies health, they would not be able to travel to Sydney.
Looking at the circumstances of this case objectively, the invitation for the applicant to attend an oral hearing for the purposes of giving evidence and presenting arguments was not “real and meaningful”.
As a result, I find that jurisdictional error has been established and set aside the decision of the Tribunal.
Ground 3
The applicant’s third ground of review contends that the Tribunal’s decision to refuse an adjournment was unreasonable and resulted in jurisdictional error.
The applicant referred me to Perry J’s useful summary in BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660 of the relevant principles concerning of legal unreasonableness, which I reproduce as follows:
66. Legal reasonableness or an absence of legal unreasonableness is an essential element of lawfulness in decision-making, it being implied that Parliament intended that a discretionary power, statutorily conferred, must be exercised reasonably: Li at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [58] (the Court).
67. In determining whether an administrative decision is vitiated by legal unreasonableness it is, first, important to emphasise that the Court’s jurisdiction is strictly supervisory: Li at [66]. As the Full Court of the Federal Court explained in Eden at [59]:
It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: … Nor does it involve the Court remaking the decision according to its own view of reasonableness…
68. Secondly, as the Full Court explained in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] with reference to the High Court’s decision in Li, “[l]egal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process… However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error” (see also Eden at [60]).
69. Thirdly, an evaluation of whether an administrative decision is legally unreasonable and therefore outside the range of possible lawful possible outcomes must be made having regard to the terms, scope and policy of the statutory source of the power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [11] (Allsop CJ, with whose reasons Wigney J agreed at [90])). As the Full Court explained in Eden at [63]:
The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445 [42].
70. With respect to the values of the common law to which Allsop CJ referred in Stretton, his Honour explained at [9] that:
The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
71. Fourthly, in assessing whether a particular outcome is unreasonable, the Court held in Eden at 171 [62] that “…it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion… Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness… Such a decision falls within the range of possible lawful outcomes of the exercise of the power…” (citations omitted).
72. Finally, findings of unreasonableness ought not to be “lightly” made (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 625 [40]-[41]).
To the above, in the circumstances of this case, I refer to Li, where French J held at [18]:
The common-law hearing rule of procedural fairness applies to the process for making a decision to grant or refuse an adjournment in such cases and informs its legal consequences where a person is said to be deprived by a refusal of a reasonable opportunity for a hearing.
In the circumstances where s 427 sets out the powers that the Tribunal may exercise from time to time, at its discretion, in conducting the review the applicant is entitled to a fair hearing before a decision adversely affecting her interests is made by the Tribunal.
At no point during the review hearing did the Tribunal member provide an opportunity for the applicant to be actually heard on her application to adjourn the review hearing. Fairness would dictate that such an opportunity be provided to the applicant especially in light of the requirement in s 425 of the Act to allow an applicant to appear before the Tribunal to give evidence and present arguments: Singh at [43].
As I have averred earlier in this decision concerning the Ground 1, the applicant’s request for an adjournment of the proceedings was not solely on the basis of her and her babies health and being unable to travel. It is clear from the case note from 4 September 2018 when the applicant made the first contact with the Tribunal requesting the hearing be postponed, the applicant stated that she had just given birth and she needed ‘more time before she is ready to attend the hearing’.
It is also clear from the transcript of the hearing that she informed the Tribunal member that because she was in the late stages of pregnancy when the invitation was issued and because she subsequently gave birth, she did not have the opportunity to prepare adequately for the hearing.
In my view, a request for an adjournment of the proceedings in the circumstances was not unreasonable. Certainly, the Tribunal is not under an obligation to afford every opportunity to the applicant to present her best possible case - but in this case is not apparent how, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed, the Tribunal member failed to exercise the discretion to adjourn. It is not apparent on the face of the decision record why the Tribunal decided to refuse the adjournment.
The comment by the Tribunal to the applicant “…And for the record, being pregnant doesn’t mean that you lose your intelligence” is discourteous and does not address the submission of the applicant that she felt she did not, in the circumstances have sufficient time to prepare for the Tribunal hearing. The Tribunal failed to grapple at all with the applicant’s reasons for seeking the hearing be postponed.
I do not agree with the submissions of the first respondent that the material demonstrates that the Tribunal considered the applicant’s request for an adjournment but did not accept that an adjournment of the hearing was warranted in circumstances where firstly, the medical evidence provided indicated that the only impediment to the hearing proceeding was the applicant’s inability to travel to Sydney for the hearing and secondly, where she had consented to appearing by telephone. Firstly, there is nothing to suggest that the Tribunal considered the applicant’s request for an adjournment. Secondly, the medical evidence confirmed that the applicant had delivered a baby girl on 13 August 2018 and in the opinion of the doctor, due to the applicant’s health and her baby’s health they will not be able to fly to Sydney for approximately 12 weeks. That does not mean that it was only the applicant’s inability to travel that impacted upon her ability to appear. Self-evidently, and the opinion of the doctor, it was the applicant’s health and the baby’s health that meant that the applicant was not able to fly. Thirdly, there is simply no evidence that the applicant consented to appearing by telephone.
Thus, the failure of the Tribunal to adjourn the applicant’s application for review of the visa decision to allow the applicant to be properly prepared for the review was material. It follows that, as in Li, the Tribunal did not discharge its function of deciding whether to adjourn its review according to law and thus acted beyond its jurisdiction.
Ground 2
In light of my conclusions in relation to review grounds 1 and 3 it is unnecessary for me to determine review ground 2. However, I observe the following.
The applicant’s second ground of review contends that because the applicant did not appear before the Tribunal in person in the manner provided by the hearing invitation issued on 11 July 2018, s 426A(1) was enlivened, meaning that the Tribunal could either dismiss the application (s 426A(1A)(b)), make a decision on the review (s 426A(1A)(a), or reschedule the applicant’s appearance before it (s 426A(2)).
The applicant contends that by the Tribunal proceeding as it did - hearing the application by telephone rather than dismissing the application - denied the applicant the opportunity of possibly reinstating a dismissed application or rescheduling her appearance.
The applicant does not contend that the Tribunal did not have the power to hear the applicant’s review by telephone: s 429A of the Act.
On one view, allowing the appearance by the applicant before the Tribunal by telephone constitutes a rescheduling of the applicant’s appearance before it. In some circumstances, it may be convenient for an applicant to seek a face-to-face hearing be rescheduled to progress on the same day to a telephone appearance. Although in this case, as I have observed, I do not think the Tribunal allowed the appearance of the applicant by telephone. There is no evidence the applicant requested to appear by telephone. The evidence discloses the Tribunal confirming the hearing will go ahead at the appointed time by telephone. The applicant was not heard on the issue. The transcript indicates the Tribunal member did not satisfy herself that the applicant was able to participate in the hearing by telephone and provide such information and evidence as she wished to provide.
The respondent contends there is nothing in the statutory scheme which supports the applicant’s argument that once notice has been given that a hearing will be conducted in a particular way, that notice limits the manner in which the hearing might otherwise be conducted. The respondent refers me to a decision of Judge Mercuri in BIM16 & Ors v Minister for Immigration & Anor [2020] FCCA 3066 (“BIM16”) at [55] – [60]
I agree with the respondent that there is nothing in the statutory scheme which limits how hearings will be conducted. I agree with the observations made by Judge Mercuri, apposite in this case, that the ‘ultimate question is whether the manner in which the Tribunal conducted the hearing provided the applicants a fair opportunity to present their arguments and evidence and the matters before the Tribunal’: BIM16 at [54]. In BIM16 having regard to the facts of that case, Judge Mercuri observed:
It was not unreasonable in the Li sense for it to elect to proceed by telephone. This is particularly so in circumstances where the Tribunal member was able to satisfy themselves that the applicants were able to participate in the hearing and provide such information and evidence as they wish, with the benefit of an interpreter. Section 429A of the Act recognises that the Tribunal has sufficient flexibility to allow it to discharge its statutory duty in the most effective manner (citing Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [96]).
In SZVFW, Nettle and Gordon JJ said at [97]:
The discretion in s 426A recognises that the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course the review has taken, the Tribunal's approach throughout the review, the applicant's situation and conduct throughout the review and the other surrounding circumstances. That is, there is an area within which the decision‑maker has a genuinely free discretion which resides within the bounds of legal reasonableness (citations omitted).
Against the above framework, and in the circumstances of this case, I am not convinced it was not unreasonable for the Tribunal to elect to proceed by telephone.
CONCLUSION
In the foregoing circumstances, having upheld applicants Grounds 1 and 3, I make the orders sought by the applicant, quashing the Tribunal’s decision and issuing a writ of mandamus directing the Tribunal to determine the applicant’s application according to law.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 29 February 2024
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