Gaal v Minister for Immigration

[2015] FCCA 1522

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAAL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1522

Catchwords:
MIGRATION – Application for review of the decision of the decision of the Migration Review Tribunal – whether the Tribunal complied with s.360 of the Migration Act 1958 (Cth) – whether Tribunal reasonably exercised a statutory discretion – whether Tribunal failed to comply with s.362B of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A, 362B, 363, 379A, 379C, 476

Migration Regulations 1994 (Cth), regs.1.15, 4.21, Schedule 2

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
SZQBN v Minister for Immigration and Border Protection [2014] FCA 686
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126
Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

Applicant: PETER GAAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1371 of 2014

Judgment of: Judge Nicholls

Hearing date: 17 March 2015

Date of Last Submission: 17 March 2015

Delivered at: Sydney

Delivered on: 5 June 2015

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie of Dobbie and Devine Immigration Lawyers

Counsel for the Respondents: Mr M J Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 21 May 2014 and further amended on 28 July 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1371 of 2014

PETER GAAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 21 May 2014, and further amended on 28 July 2014, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 30 April 2014 which affirmed the decision of the Minister’s delegate to refuse the grant of an Other Family (Residence) (Class BU) visa (“the visa”) to Mr Peter Gaal (“the applicant”).

Background

1. In evidence before the Court is a bundle of relevant documents (“the Court Book” – “CB” and “AE1”) and the applicant’s affidavit of 21 May 2014. The following background is relevant.

2. The applicant is a citizen of Hungary. He applied for the visa on 12 April 2012 (CB 1 to CB 35). His application was sponsored by his Australian citizen father (CB 27 to CB 34).

3. The relevant criteria for the grant of the visa were set out, at the relevant time, in Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). At that time, the subclass of visa relevant to the applicant’s application was subclass 835 of the Regulations.

4. Clauses 835.212 and 835.221 of Schedule 2 of the Regulations set out the relevant criteria to be satisfied, both at the time of application and time of decision for the grant of the visa. Relevantly, this included the criterion that the applicant be a “remaining relative” of an Australian citizen or permanent resident. The meaning of “remaining relative” was set out in reg.1.15 of the Regulations.

5. At the relevant time, reg.1.15 of the Regulation was in the following terms:

   “1.15  Remaining relative

   1)  An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

   (a)  the other person is a parent, brother, sister, step‑brother or step‑sister of the applicant; and

   (b)  the other person is usually resident in Australia; and

   (c)  the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:

   (i)  usually resident in Australia; and

   (ii) Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

   (d)  if the applicant is a child who:

   (i)  has not turned 18; and

   (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

   at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

   (2)  In this regulation:

   near relative, in relation to an applicant, means a person who is:

   (a) a parent, brother, sister, step‑brother or step‑sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

   (b) a child (including a step‑child) of the applicant or of the applicant’s spouse or de facto partner (if any), being a child who:

   (i) has turned 18 and is not a dependent child of the applicant or the applicant’s spouse or de facto partner (if any); or

   (ii) has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or the applicant’s spouse or de facto partner (if any).”

6. The delegate refused the grant of the visa on 29 May 2013 (CB 77 to CB 84). The delegate found that the applicant failed to provide evidence that his sister and mother were Australian citizens at the relevant time. It appears, on the evidence, that they were “near relatives” and resided in, and were citizens of, Hungary (CB 73). The applicant had provided evidence that they lived in Hungary, but that he had been estranged from his mother. This led the delegate to find that the applicant did not meet the definition of “remaining relative” as set out in reg.1.15 of the Regulations. This meant he did not satisfy cl.835.212 and cl.835.221 of Schedule 2 of the Regulations. The delegate noted that the Regulations did not “allow consideration of subjective matters such as the quality of familial relationships” (CB 84).

7. The applicant applied for review to the Tribunal on 18 June 2013 (CB 85 to CB 95). On 26 March 2014, the Tribunal wrote to the applicant inviting him to appear before the Tribunal on 30 April 2014 to “give evidence and present arguments relating to the issues arising” in his case (CB 109 and [4] at CB 136). The applicant was informed that if he failed to attend the hearing, and an adjournment was not granted, the Tribunal may proceed to make a decision “without taking any further action to allow or enable [him] to appear before it” (CB 109.8).

8. On 7 April 2014 the applicant requested, in person, an adjournment of the Tribunal hearing to allow his father, who was “his sponsor”, to be a witness at the hearing. It appears, from the material in the Court Book and the applicant’s request, that tis father was in custody and the subject of an extradition order. He was to appear at a bail hearing in the week beginning 14 April 2014 (CB 116). The applicant was instructed to put such a request in writing (CB 116 and [5] at CB 136).

9. The applicant returned the “Response to Hearing Invitation” form on 22 April 2014, indicating that he would attend and that his father would be his witness (CB 117 to CB 122). Additionally, the applicant had handwritten on the document “[c]hange hearing date see my letter attached” (CB 117.3). The applicant, in an attached supporting statement, requested an adjournment of the hearing date to late July 2014, in order to allow for his father to appear as a witness after his extradition hearing on 16 July 2014 (CB 119). The applicant attached evidence of his father’s arrest to this statement (CB 120 to CB 122).

10. The applicant telephoned the Tribunal on 29 April 2014 in relation to the postponement request (see further at [28] below). On 29 April 2014 the Tribunal refused the adjournment request (CB 124 to CB 131). The Tribunal officer telephoned the applicant on the same day, and recorded the following case file note (CB 132):

    “…I rang the review applicant to inform him that a letter in relation to his request for postponement had been sent by email as per a request received from him. He asked whether he could still attend the hearing and not respond to any questions. I informed him that the hearing was an opportunity for him to present his evidence and arguments and he could seek independent legal advice or discuss his options with the member at the hearing. I also alerted him to the information sheet attached to the hearing invitation.”

11. The applicant did not appear at the hearing before the Tribunal on 30 April 2014 ([9] at CB 136). The Tribunal proceeded to make its decision pursuant to s.362B of the Act, affirming the decision of the delegate to refuse the grant of the visa (CB 134 to CB 139).

12. The Tribunal recorded that it had considered the applicant’s postponement request of 22 April 2014 but refused it on the basis that “the applicant had given no indication as to the nature of his father’s evidence and so it was unable to determine whether a postponement was appropriate” ([7] at CB 136). The Tribunal also recorded that it had informed the applicant of the refusal of the adjournment ([7] – [8] at CB 136).

13. The Tribunal affirmed the delegate’s decision on the basis that the applicant had living relatives in Hungary at the time of the visa application, and the Tribunal’s decision and, therefore, it was not satisfied that there were no “near relatives” such that reg.1.15(1)(c) of the Regulations was met ([22] – [24] at CB 138 and [28] at CB 139).

Application to the Court

1. The applicant filed an amended application on 28 July 2014. It is in the following terms:

   “1. The Tribunal failed to conduct the review required by law

   (A) Particulars:

   (i) The Tribunal failed to conduct the review required:

   Section 360 of the Migration Act 1958 (‘the Act’) provided:

   360 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;

   (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c) subsection 359C(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.

   (a) On 26 March 2014, the Tribunal invited the Applicant to appear before it on 30 April 2014. The Applicant was sponsored by his father for a Class BU visa. At the time of the invitation, the Applicant’s father had been detained in jail pending an extradition application. The Applicant requested the hearing date be changed to a date after his father’s extradition hearing, because he wanted his father to appear as a witness, being the sponsor.

   (b) On 29 April 2014, the Tribunal declined to reschedule the hearing. The Applicant did not appear on 30 April 2014, and the Tribunal proceeded to make a decision on the papers.

   (c) As the sponsorship of the Applicant by his father was central to the visa sought, it was incumbent on the Tribunal to reschedule the hearing so that the Applicant could give evidence (including his father giving evidence) and to present arguments in relation to the issues arising under review. The refusal of the Tribunal to reschedule the hearing meant that the Applicant was not given a meaningful opportunity to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.  The Tribunal’s failure to comply with s360 constitutes jurisdictional error.

   (ii) The Tribunal failed to inform the Applicant that it wanted an indication of the evidence that the Applicant’s father was going to give before it would consider postponing the scheduled hearing. That failure was a breach of procedural fairness, which constitutes jurisdictional error and or went to the meaningful invitation to appear before it, as required by s360. The Tribunal therefore committed jurisdictional error by not informing that Applicant that it needed that information in order to reschedule the hearing.

   (iii) The Tribunal found that the Applicant had agreed, in a telephone call made on 29 April 2014, that he would appear before it on 30 April 2014, when the Applicant had not agreed to appear before ii on 30 April 2014. By relying on a fact that did not exist, it committed jurisdictional error by proceeding with the hearing scheduled on 30 April 2014.

   2. The Tribunal misinterpreted the applicable law or misapplied the law to the facts

   Particulars:

   (A) The Tribunal misinterpreted the applicable law or misapplied the law to the facts in relation to its discretion contained in s362B to reschedule a hearing:

   (i) Section 362B of the Act provided:

   362B Failure of applicant to appear before Tribunal

   (1) If the applicant:

   (a) is invited under section 360 to appear before the Tribunal; and

   (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

   the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

   (2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

   (a) The Applicant did not appear at the Tribunal on 30 April 2014. The Tribunal staled the following:

   However, the review applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s362B of the Act, the Tribunal has decided to makes its decision on the review M1ithout taking any further action to enable the applicant to appear before it.  (CB137-138 at [9])

   …

   (c) The Tribunal further failed to consider the exercise of its discretionary power contained in s362B(2) to reschedule a hearing, despite the non­appearance of the Applicant on 30 April 2014.

   (d) In the event that it did consider the exercise its discretion under s362B(2) (and it is not accepted that it did), the exercise of the discretion miscarried as the Tribunal merely had regard to the fact of the non-appearance as the reason for making the decision on the papers, when the exercise of the discretion to reschedule the hearing under s362B(2) is enlivened only after that non-appearance occurs. What enlivens the power cannot be the reason for not exercising the power.”

2. At the hearing, the applicant did not press particular (b) to ground two of the application.

Consideration

Ground One

1. Ground one asserts that the Tribunal fell into legal error because it did not conduct the review as required by s.360 of the Act. The applicant’s ground can be explained as follows. The Tribunal sent a letter inviting the applicant to a hearing pursuant to s.360 of the Act. The applicant responded to that invitation. He also asked the Tribunal to adjourn the hearing date so that his father, who was his sponsor for the visa, could attend the hearing. The Tribunal refused to adjourn the hearing.

2. It is important to note that the applicant’s ground, and his arguments in support, did not seek to rely on any complaint that the Tribunal’s refusal to exercise the discretion to adjourn the hearing was unreasonable (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 (“Singh”)). While references were made to unreasonableness before the Court, the argument was not developed along such lines.

3. Rather, the complaint is that the Tribunal fell into jurisdictional error because the applicant was not given a meaningful opportunity to appear before it.

4. The complaint has two additional elements. First, the Tribunal proceeded on the basis that the applicant had not given an indication as to the nature of his father’s evidence, and that the Tribunal did not tell the applicant that it needed any such indication.

5. The applicant argues that he had given such an indication when he advised the Tribunal, by way of his notation on the “Response to Hearing Invitation” form, that he wanted his father to attend and give evidence, as his father was his sponsor (see at CB 118 – “Describe this person’s evidence and how it is relevant to your case: ‘HE IS MY SPONSOR’”).

6. Second, that the Tribunal proceeded on the basis of a “fact that did not exist”. The Minister saw a third element that is, that the applicant was claiming some lack of capacity in attending the hearing without his father.

7. The facts before the Court, arising from the evidence, are as follows. The applicant was invited to a hearing pursuant to s.360 of the Act by letter dated 26 March 2014 (CB 109). The hearing was scheduled for 30 April 2014. There is no dispute that the letter of invitation complied with all of the relevant statutory and regulatory requirements (in particular see ss.360, 360A(4), 379A and 379C of the Act and reg.4.21 of the Regulations).

8. The applicant submitted that the criterion to be satisfied for the grant of the visa was that the applicant be sponsored for the visa by an appropriate person. That person was the applicant’s father. The denial of the opportunity for his father, as his sponsor, to attend the Tribunal hearing meant that the opportunity for the hearing was not a “real and meaningful” opportunity, or was an “empty gesture” (SZQBN v Minister for Immigration and Border Protection [2014] FCA 686 at [14]).

9. As stated above, in responding to the invitation (received by the Tribunal on 22 April 2014 – CB 117) the applicant said that he would attend the hearing and indicated that he wanted the Tribunal to hear evidence from his father, because his father was his sponsor. In a handwritten letter of the same date, the applicant asked that the hearing be adjourned to the middle of July 2014, as his father was in gaol awaiting an extradition hearing.

10. A Tribunal officer’s case note, dated 29 April 2014, reports on a conversation between the applicant and the Tribunal officer (CB 123). The applicant did not dispute that a conversation took place on that date. However, he does dispute one matter reported there.

11. The case note states (at CB 123):

    “…The review applicant telephoned in relation to his request to have the hearing postponed. I conferred with the member and she instructed that the hearing should still proceed and if he was adamant that he wanted to have his father present the hearing would be adjourned to a later date for the father to present his evidence. However, the hearing for the 30 April 2014 would be proceed so that the RA would present his evidence and arguments. I rang the review applicant back and informed him of the member’s instructions. He stated that he would attend the hearing but also contact his lawyer as he wanted his father to attend the hearing. I reiterated the member’s instructions with regard to the option of an adjournment so that the father could have the opportunity to attend at a later date but he stated that he needed to consult his lawyer.”

12. The applicant’s evidence before the Court is (applicant’s affidavit of 21 May 2014 at page 1 to page 2):

    “…After this I, Peter Gaal, did not get any response from MRT. That is why I called the office of the MRT on 29.04.2014 and I was asking the officer when they can respond for my request. The officer told me he have to call me back. When he called me back he told me he sent me the letter to my email address. So finally I got the respond (Annexure A, Page 10-11) from MRT at 12:18PM 29.04.2014. I have told on the phone to the officer of MRT several times that I want to go for hearing with my witness which is my father because he is my sponsor and my Remaining Relative Visa is connected to my father.

    - I’ve got a letter of ‘Notification of decision’ (Annexure A , Page 12 ) with the ‘Statement of decision and reasons’ (Annexure A , Page 13,14,15,16,17,18) from Migration Review Tribunal which I have got on 02.05.2014 with post. On the ‘Statement of decision and reasons’  paper ( Annexure A , Page 13, Paragraph 7) the MRT stated that I will attend on the hearing , this statement is not true. I did not tell them that I can attend for hearing without my father. I told the officer that I will attend if my father can attend with me.”

1. The applicant’s evidence, which was not disputed or subject to

   
   

   cross-examination, is that he wished to attend the hearing with his father (who was his sponsor), and that he said he would only attend if his father was able to attend. In a subsequent conversation with the Tribunal officer, the applicant is reported to have asked “whether he could still attend the hearing and not respond to any questions” (CB 132). The response by the Tribunal officer was said to be (CB 132):

   “…I informed him that the hearing was an opportunity for him to present his evidence and arguments and he could seek independent legal advice or discuss his options with the member at the hearing. I also alerted him to the information sheet attached to the hearing invitation.”

2. I agree with the Minister that the applicant’s complaint, that he was denied a meaningful opportunity, is not made out. In all the circumstances, the Tribunal’s refusal to adjourn the hearing date cannot be said to have made the invitation meaningless, or an empty gesture. It was the applicant’s election not to attend. It is important to note that beyond a reference to the father being his sponsor, as a reason for seeking the adjournment, the applicant provided no explanation as to why he was unable to attend without his father.

3. The argument now, that sponsorship by the father was an “initial”, or important, criterion for the grant of the visa, does not, in all the circumstances, assist the applicant. It was clear from the delegate’s decision that there was one live issue arising from that decision. That is, that the applicant had a mother and sister who fell within the definition of “near relative” for the purposes of reg.1.15 of the Regulations. That meant the applicant could not satisfy the definition of “remaining relative” (as set out at reg.1.15 of the Regulations). This meant he could not satisfy a relevant criterion for the grant of the visa (cl.815.212 and cl.815.221 of the Regulations) (CB 82 to CB 84).

4. It must be remembered that the obligation on the Tribunal, arising from s.360 of the Act, is to invite the applicant to a hearing “…to give evidence and present arguments relating to the issues arising in relation to the decision under review” (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 at [3]). That is, the issues arising in the review of the delegate’s decision. The Tribunal told the applicant that this was the case in its letter of invitation (CB 109.4).

5. There is nothing in the material that was put before the Tribunal to suggest that his father’s sponsorship was an issue in the review. It may be, as the applicant now submits, that sponsorship was a central criterion to the visa that he sought, however, there is nothing to show that the father’s sponsorship was ever at issue before the delegate, or the Tribunal.

6. Nor is there anything to show that the applicant wanted the father to attend because he was in a position, or wanted, to give evidence about the one, and only, “live” issue (see above at [31]).

7. The applicant now disputes that he gave “no indication” (as found by the Tribunal) as to the nature of the father’s evidence. He submits, and gives evidence in his affidavit, that the reason he wanted his father to attend is because his father was his sponsor. The Tribunal was, in my view, correct to say that this was not an indication of what the father’s evidence was to be. At most this was an indication that the applicant wanted his father to attend as he was his sponsor.

8. At its highest, it may be implicit that the father wanted to give evidence about his sponsorship. However, as set out above, this was never at issue. The Tribunal’s finding that he had given “no indication as to the nature of his father’s evidence” ([7] at CB 136) must be seen in light, and in the context, of the task set for the Tribunal and the statutory purpose of the hearing. Namely, the review of the delegate’s decision and the opportunity at the hearing to give evidence about the issues in the review. In this light, the Tribunal set out the relevant basis for the delegate’s decision and the one issue arising from it (see [3] at CB 136).

9. Further, I cannot accept the applicant’s submission that the Tribunal did not tell him that it wanted him to give an “indication” of his father’s evidence. The “Response to Hearing Invitation” form specifically asks: “Describe this person’s evidence and how it is relevant to your case” (CB 118.3).

10. The applicant also complains that the Tribunal proceeded on a “fact that did not exist”. That is, that the applicant had previously told the Tribunal officer that he would attend the hearing. His evidence before the Court was that this was “not true”, as he did not tell the officer “that I can attend for hearing without my father”.

11. It is not necessary to make a finding on this point. This is because, even if the applicant’s evidence is to be preferred over what is recorded in the Tribunal officer’s contemporaneous file note (which is also in evidence before the Court – “AE1”), the reason the Tribunal refused the adjournment did not arise from what the applicant told the Tribunal officer (as recorded in the file note of 29 April 2014 (see [27] above and CB 123).

12. Paragraph 7 of the Tribunal’s decision record is relevant (at CB 136):

    “The Tribunal considered the request. However, the applicant had given no indication as to the nature of his father’s evidence and so it was unable to determine whether a postponement was appropriate. The request was refused and the applicant was advised by phone on 29 April 2014. He was told that the Tribunal would take evidence and arguments from the him at this hearing and consider an adjournment if his father’s evidence was required.  The applicant told the officer that he would attend the hearing but would also contact his lawyer.”

13. On any plain reading, the Tribunal refused to adjourn the hearing for one reason. That is, the applicant had given no indication of the father’s evidence, and in that circumstance, it was unable to determine whether a postponement was appropriate.

14. It is of note that what is not impugned by the applicant is that part of the note of 29 April 2014 as to what the Tribunal officer recorded was said when he rang to notify the applicant of the Tribunal’s decision on the adjournment request. To the extent that the applicant’s argument now seeks to draw on that case note what was subsequently said by the Tribunal officer was not part of the Tribunal’s decision. That is, the Tribunal had already made its decision on this point.

15. The Tribunal plainly has the discretionary power to adjourn the review from time to time (s.363(1)(b) of the Act). The exercise, or refusal to exercise, the discretion must be reasonable (see Li and Singh). A decision which lacks an “evident and intelligible justification” may be held to be unreasonable. Where the Tribunal gives reasons for such a decision, the Court should look to those reasons to see if there is an evident and intelligible justification (see Li at [76] and Singh at

    
    

    [47] – [48]).

16. As set out above, the Tribunal’s reason was that, in the circumstances, given the absence of any indication as to the father’s evidence, it could not grant the postponement as it was unable to determine whether it was appropriate to do so. This was reasonably open to the Tribunal on what was before it. It is an “intelligible justification”. That his father was his sponsor says nothing about the nature of the evidence he was to give. This is particularly so in circumstances where that sponsorship was not at issue.

17. The Minister also made submissions on the basis that the applicant’s ground may be construed as complaining that the invitation was meaningless, because the applicant was unable to give evidence without his father.

18. There is no doubt that the Tribunal is required to give an applicant a “real and meaningful opportunity” to give his evidence. As the Minister submits, that obligation exists whether or not the Tribunal is aware of the actual circumstances that would defeat that obligation (Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126).

19. In the current case, therefore, the fact that the Tribunal relied on the applicant giving “no indication” of the father’s evidence would not assist the Minister in these proceedings if there were circumstances to show that the obligation was otherwise defeated.

20. However, the applicant has not provided any evidence to the Court to show that he lacked capacity, or was otherwise unable to attend, or was prevented from attending, the Tribunal hearing without his father. At its highest, his evidence is that he wanted to attend with his father because his father was his sponsor. He has not explained how the father’s absence, in these circumstances, meant he could not attend. The Tribunal’s obligation is not defeated simply because the applicant chose not to attend in these circumstances. In all, ground one is not made out.

Ground Two

1. Ground two asserts that the Tribunal fell into jurisdictional error because it misunderstood, and misapplied, the law to the facts in the exercise of its discretion in s.362B of the Act. That section, at eh relevant time, was in the following terms:

   “362B Failure of applicant to appear before Tribunal

   (1)  If the applicant:

   (a)  is invited under section 360 to appear before the Tribunal; and

   (b)  does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

   the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

   (2)  This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.”

2. Relevantly, the applicant directs attention to the following part of the Tribunal’s decision record ([9] at CB 136 to CB 137):

   “However, the review applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.”

3. The applicant raised two points. First, that the Tribunal misinterpreted s.362B of the Act. The argument is that the power in s.362B(1) of the Act is discretionary. In deciding to make a decision on the review without taking further action, the Tribunal was required to consider whether it should take such action to “allow or enable” the applicant to appear. The complaint is that it had regard to the latter, and not the former.

4. Before the Court, the applicant did not satisfactorily explain this aspect of his complaints. As will be seen below, the focus of the submission in relation to this ground was on unreasonableness, and whether the Tribunal’s reliance on a “fact” that was not true (as reported by the Tribunal officer), “subverted” the exercise of its discretion pursuant to s.362B of the Act.

5. It is the case that s.362B(1)(b) of the Act does make reference to “allow or enable”. It is also the case that given the use of two different words, expressed in the alternative, the legislature must be taken to have had two different circumstances in mind.

6. However, in the absence of a relevant explanation from the applicant, it is difficult to see how the Tribunal’s reference to “enable”, and not “allow”, reveals jurisdictional error. Plainly, at [9] of its decision record (at CB 136 to CB 137), the Tribunal had s.362B(1) of the Act in mind, given the actual reference to that section there.

7. I agree with the Minister that when [9] of the Tribunal’s decision record (at CB 136 to CB 137) is fairly read, the Tribunal was simply saying that it had decided to proceed to make a decision, notwithstanding that the applicant had not appeared. That is, it understood the two options available to it in the applicant’s absence and was simply reporting its decision to proceed to a decision. The Tribunal had “allowed” the applicant to appear by the giving of the invitation. The matter then before the Tribunal was whether to postpone the hearing to “enable” him to appear with his father.

8. In any event, as is made clear in [8] of the Tribunal’s decision record (at CB 136), the Tribunal understood that s.362B(1) of the Act makes express reference to “allow or enable”. When [8] and [9] (at CB 136 to CB 137) are fairly, and holistically read, and in the absence of further explanation before the Court, it cannot be said that the Tribunal misunderstood the relevant and applicable law, as the ground contends.

9. Before the Court, the thrust of the applicant’s complaint focussed on what he said was the Tribunal’s “fake factual finding”. That is, the Tribunal found that the applicant had told the Tribunal officer that he would attend the hearing. The applicant now gives evidence that he did not say that.

10. In written submissions (in relation to ground one) the applicant referred to Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 (“VOAO”) to support the proposition that the Tribunal fell into error by “relying on a fact that did not exist” (see at [19] of the applicant’s written submissions). Given that in that paragraph the applicant asserts that the Tribunal committed jurisdictional error by proceeding with the hearing scheduled on 30 April 2014, the reliance on VOAO appears to be properly understood as being directed to ground two. That is, in context, the decision to proceed on that date, to make a decision on the review.

11. I do not, respectfully, understand the Full Federal Court to have provided support for the proposition that the applicant contends. At [5] of VOAO, the Court said:

    “Counsel for the appellant accept that an error of law will be established if it appears that the Tribunal has made a finding of fact, or has drawn an inference, without any supporting probative evidence. They also accept that this error will amount to jurisdictional error if the Tribunal’s decision is based on such a finding. In our opinion this is such a case, although the application of the principle is here complicated by the circumstance that the relevant finding was of a negative, rather than positive, character.”

12. Relevantly, therefore, the issue in ground two is whether there was evidence before the Tribunal to ground the impugned factual findings or not. If there was no evidence, this would amount to jurisdictional error in circumstances where the Tribunal relied on any such finding of fact.

13. Paragraphs 7 to 9 of the Tribunal’s decision record (at CB 136 to CB 137) must be read together. I agree with the applicant (although put by him for a different purpose) that the words “…[i]n these circumstances”, as they appear at [9] (at CB 136 to CB 137), must be read as including what was said at [7] (at CB 136).

14. The Tribunal therefore can be understood as saying that one of the circumstances in which it proceeded to make a decision, where the applicant did not appear at the hearing, was that he had told the Tribunal officer that he would attend the hearing. The applicant’s evidence now is that he did not tell the officer that he would attend without his father.

15. I agree with the Minister, however, that the relevant question now is whether there was evidence before the Tribunal from which this finding can be seen to derive. The answer is that such evidence was contained in the Tribunal officer’s contemporaneous note of the telephone conversation that he had with the applicant. The applicant does not dispute that the conversation took place, nor challenge any other part of what is recorded in the file note (other than whether he said he would attend).

16. In submissions, the applicant sought to draw on, by analogy, SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (“SZFDE”) for the proposition that the exercise of the Tribunal’s power to review can miscarry if it relies on something that “was not true”, even in circumstances where, as he says in this case, the Tribunal did not know it was not true. He says the Tribunal’s exercise of its jurisdiction, in this case, was “stultified” through no fault of its own.

17. The applicant’s reliance on SZFDE must, respectfully, be seen in light of the circumstances the High Court was addressing in that case. In that case, there was a finding (by a lower Court) that the conduct of a third party during the review process, a person who had falsely held himself out to be a migration agent and lawyer, was fraudulent, and that this had subverted the process of review by the Tribunal (see SZFDE at [51]).

18. In that light, the Tribunal’s decision, albeit made without the knowledge of the fraudulent conduct, was found to be “no decision at all”. The importance of the prior finding of fraud in SZFDE was emphasised at [53]:

    “The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made [66]. The outcome in the present appeal stands apart from and above such considerations.”

19. In the current case, the applicant was clear that he was not alleging fraud on the part of the Tribunal officer. What remains, is that the applicant claims that the Tribunal’s decision to proceed, pursuant to s.362B(1) of the Act, was “stultified”, because he now gives evidence that disputes a part of the conversation that he had with the Tribunal officer. At most, therefore, the complaint is that the decision was stultified because the Tribunal proceeded on a “false” factual basis. Even if the Tribunal officer was mistaken, or misunderstood the applicant (I make no such finding), SZFDE does not assist the applicant in support of the grounds of the application. In all, the Tribunal officer’s record was the evidentiary basis for the Tribunal’s finding.

20. The second part of the attack of the Tribunal’s decision to proceed to a decision on the application for review in ground two again derived from the complaint that the Tribunal stated that the applicant had given no indication of the nature of his father’s evidence.

21. That matter is dealt with above in the context of ground one, and s.360 of the Act. What is relevantly said there applies equally to the Tribunal’s exercise of its discretion to proceed pursuant to s.362B(1) of the Act to make its decision on the review.

22. In that light, and when [7] – [9] of the Tribunal’s decision record (at CB 136 to CB 137) are read together, the Tribunal stated that it proceeded to a decision pursuant to s.362B of the Act, in circumstances where the applicant did not appear at the hearing and where he had sought an adjournment which had been refused because he had not provided any satisfactory explanation as to why he could not attend.

23. That is, he insisted on his father’s attendance as a condition of his attendance, but when invited to do so, did not provide any indication as to the father’s proposed evidence and why his absence prevented him from attending. In all, there was evidence before the Tribunal to support the finding it made as to whether he would attend the hearing and the Tribunal’s decision was not stultified by fraud. Ground two is not made out.

Relief Sought is Discretionary

1. While I have found that neither of the two grounds of the application reveal jurisdictional error, there is another independent basis on which the relief the applicant seeks is to be refused. There was no dispute that the relief the applicant seeks is discretionary. However, in the circumstances of this case, and if legal error were to have been found, to return the matter to the Tribunal for reconsideration would be an exercise in futility.

1. It was the applicant’s evidence to the Tribunal that his mother and sister lived in Hungary (CB 16 and CB 73). There was no dispute that they were not ordinarily resident in Australia. As set out above, cl.815.212 and cl.815.221 of the Regulations are criteria that the applicant must meet before the visa must be granted to him and require that he have no relatives ordinarily resident outside Australia.

2. There was no evidence put before the Court now by the applicant to dispute what he had relevantly told the delegate and the Tribunal in this regard. The relevant criteria for the grant of the visa requires that the Tribunal must be satisfied, as at the time of application, that there were no remaining relatives, as this term is defined in reg.1.15 of the Regulations, outside of Australia. Further, if the applicant met that requirement (which he did not), the Tribunal must also be satisfied that the applicant continues to satisfy that requirement as at the time of decision.

3. In the circumstance, if the matter is returned to the Tribunal, the Tribunal’s decision, therefore, must be the same. The Tribunal would affirm the delegate’s decision on the same basis as it has already done That is, the applicant’s mother and sister, who are “near relatives” were not, and are not, usually resident in Australia, or Australia citizens. The application for review to the Tribunal would, therefore, not succeed. In the circumstances, it would not be appropriate to grant the relief.

Conclusion

1. The grounds of the application are not made out. Further, in the exercise of the Court’s discretion, even if this were not the case it would be futile to return the matter to the Tribunal. It is appropriate to dismiss the application. I will make an order accordingly.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 5 June 2015