Gazi v Minister for Immigration and Citizenship
[2013] FCA 1094
FEDERAL COURT OF AUSTRALIA
Gazi v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1094
Citation: Gazi v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1094 Appeal from: Gazi v Minister for Immigration and Anor [2012] FMCA 895 Parties: MD SHAHINUR GAZI v MINISTER FOR IMMIGRATION AND CITIZENSHIP (NOW MINISTER FOR IMMIGRATION AND BORDER PROTECTION) and MIGRATION REVIEW TRIBUNAL File number: NSD 1871 of 2012 Judge: LOGAN J Date of judgment: 23 October 2013 Catchwords: MIGRATION – Appeal from Federal Magistrates Court (now Federal Circuit Court) – review of decision of Migration Review Tribunal (the Tribunal) – appellant refused a request to have the hearing of his case in the Tribunal rescheduled – whether the refusal of that request for postponement was unreasonable – Held Tribunal’s refusal to reschedule was not unreasonable – appeal dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)Cases cited: Health World Limited v Shin-Sun Australia Pty Ltd (2009) 174 FCR 218 considered
Health World Limited v Shin-Sun Australia Pty Ltd (2010) 240 CLR 590 considered
Kuru v New South Wales (2008) 236 CLR 1 cited
Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618 followed
Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11 considered
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 consideredDate of hearing: 18 February 2013 Place: Brisbane (Heard in Sydney) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 45 Solicitor for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr HPT Bevan Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1871 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
(NOW THE FEDERAL CIRCUIT COURT OF AUSTRALIA)
BETWEEN: MD SHAHINUR GAZI
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP (NOW MINISTER FOR IMMIGRATION AND BORDER PROTECTION)
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
23 OCTOBER 2013
WHERE MADE:
BRISBANE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs of and incidental to the appeal to be taxed if not agreed.
3.The name of the first respondent be amended to the Minister for Immigration and Border Protection.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1871 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
(NOW THE FEDERAL CIRCUIT COURT OF AUSTRALIA)
BETWEEN: MD SHAHINUR GAZI
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP (NOW MINISTER FOR IMMIGRATION AND BORDER PROTECTION)
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE:
23 OCTOBER 2013
PLACE:
BRISBANE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
The appellant, Mr M D Shahinur Gazi, is a citizen of Bangladesh. Mr Gazi arrived in Australia on 1 March 2008 as the holder of a particular type of student visa known as a Non-Award (subclass 575) temporary visa. Subsequently, he obtained a temporary student class (TU) subclass 572 visa. On 3 March 2011, Mr Gazi applied for a further subclass 572 visa.
On 20 May 2011, that further application was rejected by a delegate of the Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) (the Minister), who is the active party respondent to this appeal. The Minister’s delegate rejected the further application on the basis that Mr Gazi had not produced evidence to verify, in accordance with cl 572.222 of the Migration Regulations 1994 (Cth) (the Regulations), made under the Migration Act 1958 (Cth) (the Act), that he had satisfied the English language requirements for the grant of the visa.
On 20 June 2011, the appellant applied to the Migration Review Tribunal (the Tribunal) for the review of that decision. The nature of the challenge which Mr Gazi came to make to the Tribunal’s decision on judicial review in the Federal Magistrates Court (now the Federal Circuit Court) and to press on appeal requires that the course of proceedings in the Tribunal be set out in some detail.
On 23 November 2011, the Tribunal sent Mr Gazi a letter inviting him to “comment on or respond to information”. Mr Gazi replied to this letter on 30 December 2011. In that reply he sought further time to respond to the Tribunal’s request. The precise content of this exchange of correspondence is of significance both in Mr Gazi’s challenge and in a contention in the appeal made on notice by the Minister. They are detailed later in these reasons for judgement.
On 10 January 2012, the Tribunal refused Mr Gazi’s request for an extension of time and invited him to attend a Tribunal hearing on 2 February 2012 at 10:30 am. In late January 2012, initially by way of telephone contact with the Tribunal’s registry and then by a letter, undated but received by the Tribunal on 30 January 2012, Mr Gazi sought the rescheduling of the hearing fixed for 2 February 2012. The reasons he advanced in his letter for seeking rescheduling of the hearing were “ongoing mental health factors” because of problems with his ex-girlfriend and a “big problem” with his brother. He elaborated on each in his letter.
On 1 February 2012, Mr Gazi was advised by an officer of the Tribunal’s registry, at the request of the tribunal member concerned, that the member would not be able to give him an answer that day as she was unavailable but that she “would consider his submission tomorrow morning and the Tribunal would contact him with an answer then” (Tribunal file note of 1 February 2012). Mr Gazi was likewise then advised that, “until he received an answer he should assume the hearing was going ahead, and should assume so if he heard nothing” and, further, that “if the hearing was not postponed and he did not attend he may lose his right to give evidence about his application at a hearing”. To this Mr Gazi replied that he would “wait for confirmation tomorrow”.
In the meantime, but also on 1 February 2012, Mr Gazi hand delivered to the Tribunal’s registry a copy of a medical certificate which attested to his receiving medical treatment and to his being “unfit to continue his usual occupation” from 1 to 2 February 2012. Separately, but also on 1 February 2012, he caused a note from a community health centre to be delivered to the tribunal’s registry which attested to his having been seen regularly for several months in 2011 for counselling in respect of an adjustment disorder following a relationship break-up, to his having re-presented in recent weeks for follow up treatment but also to the opinion that he was “now fit enough for work and study”.
On the morning of 2 February 2012, but not until 10:25 am, an officer of the Tribunal’s registry telephoned Mr Gazi and advised him that the tribunal member had considered his request, including the supporting medical certificates, to reschedule the hearing offered but had decided that the hearing should go ahead and that, if he did not attend, he would be recorded as a “no show”.
Mr Gazi failed to attend the Tribunal hearing on 2 February 2012. Later that day, he contacted the Tribunal seeking a future hearing date. He was invited to submit any further supporting medical evidence upon which he relied. This he did. On 2 February 2012, he sent to the Tribunal by facsimile a copy of yet a further medical certificate, one dated 2 February 2012, which attested to his suffering from food poisoning and related conditions and to his being “unable to attend his normal duties or study, need total bed rest and rehydration” [sic] from 2 to 6 February 2012.
On the strength of this, the Tribunal decided to allocate a fresh hearing date. By a letter dated 9 February 2012, Mr Gazi was advised that a hearing would be held on 2 March 2012 at 10:30 am. Upon the receipt of a request for a further adjournment of the hearing, supported by a medical certificate, the Tribunal decided on 1 March 2012 to reschedule the hearing to 7 March 2012 at 10:30 am and informed Mr Gazi accordingly by a letter sent to him that day. In its letter of 1 March 2013 the Tribunal advised Mr Gazi that, as this was the second postponement of the hearing, a further postponement would be granted only in exceptional circumstances and that, if he were unable to attend on that day, he should provide the Tribunal with the reasons for that inability and supporting evidence, including, if ill health was relied upon, medical evidence.
On 5 March 2013, Mr Gazi attended at the Tribunal’s registry and informed a registry officer that he was still too unwell to attend a hearing. He was informed that he should obtain supporting medical evidence and that any such evidence should specifically deal with why he was unable to attend a hearing rather than just state that he was unable to attend work.
Mr Gazi failed to attend the hearing on 7 March 2012. Just before 5:00 pm that day he telephoned the registry to advise that he had been supposed to attend a hearing that day but had injured his foot and had a bleeding toenail. He later sent through a medical certificate which confirmed the sustaining of an injury of that kind and which contained an expression of opinion by the medical practitioner that Mr Gazi “needs bed rest and treatment” and “is unable to attend his normal duties or study” from 7 to 9 March 2012.
On 8 March 2012, the Tribunal affirmed the Minister’s decision to refuse Mr Gazi’s visa. It notified him of that decision by letter sent that day. Substantively, the Tribunal found that Mr Gazi had failed to provide a certificate of enrolment under cl 572.222(1) of Schedule 2 to the Regulations. Procedurally, having considered the medical evidence provided up to that time by Mr Gazi, the Tribunal considered that this did not sufficiently explain why he had failed to attend the hearing scheduled for 7 March 2012 either in person or, as had been put to him as an alternative, by telephone.
On 30 October 2012, the Federal Magistrates Court dismissed Mr Gazi’s application for the judicial review of the Tribunal’s decision. He has appealed to this court against that order of dismissal.
In the court below, Mr Gazi had the benefit of legal representation, via an appearance of counsel pro bono. He appeared on his own behalf on the hearing of the appeal.
This absence of legal representation in respect of the appeal very probably explains the way in which the grounds of appeal are pleaded:
1.The Court below failed to consider that the Tribunal committed jurisdictional error in exercising its discretion not to grant an extension of time to me for my response to the invitation issued pursuant to section 359A of the Migration Act 1958.
2.The Court below failed to consider that the Tribunal committed jurisdictional error in issuing the hearing invitations dated 10 January 2012, 9 February 2012 and 1 March 2012.
3.The Court below committed jurisdictional error in purporting to exercise its discretion pursuant to section 362B of the Migration Act 1958 to make a decision on the review without taking further action to enable me to appear before it.
I mean no disrespect to Mr Gazi in observing that ground 3 in the notice of appeal is an uncritical adaptation of ground 3 in the judicial review application (“The Court below” has been substituted for “The Tribunal”). The adaptation of ground 3 is uncritical in that the Federal Magistrates Court exercises no power, discretionary or otherwise, under s 362B of the Migration Act. Having regard to the way in which grounds 1 and 2 of the notice of appeal are pleaded, it is clear enough that Mr Gazi intended that ground 3 allege error on the part of the Federal Magistrates Court in failing to hold that the Tribunal had committed jurisdictional error in the manner specified. The Minister, quite fairly, responded to the appeal on the basis of such an understanding of ground 3.
Though the Minister submitted that the Federal Magistrates Court had made no errors of the kinds alleged (or taken to be alleged), he also advanced an alternative submission by way of notice of contention upon which he submitted that the dismissal of the judicial review application by the court below might be upheld. The nature of that alternative submission will become apparent from the discussion below.
The decision of the Minister’s delegate to cancel Mr Gazi’s visa was made pursuant to clause 572.222 of the Regulations, which provide:
572.222
(1)Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).
That decision was a “MRT-reviewable decision” for the purposes of s 347 of the Migration Act. On the review of an MRT-reviewable decision, the Tribunal is empowered with all the powers and discretions conferred by the Act on the minister’s delegate who made the decision under review. Sections 349(2) and (3) of the Migration Act provide that, on review:
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c)if the decision relates to a prescribed matter – remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
Section 359A(1) of the Migration Act imposes a number of procedural obligations on the Tribunal in relation to its review of an MRT reviewable decision. Relevantly, it requires the Tribunal to:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
Section 359B stipulates the requirements which may be specified in an invitation given under s 359A:
359B Requirements for written invitation etc.
(1) If a person is:
(a) invited in writing under section 359 to give information; or
(b)invited under section 359A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2)If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3)If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b)at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4)If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5)If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b)a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.
[Emphasis added]Section 359C(2) details the consequences for failing to respond or comment within the specified period. It provides that:
(2) If the applicant:
(a)is invited under section 359A to comment on or respond to information; and
(b)does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
It is also necessary to set out s 362B, which is directed to the decision-making power that the Tribunal may exercise in the event that an applicant does not attend as invited at a hearing:
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.
The Tribunal’s letter of 23 November 2011 to Mr Gazi was in the following terms:
23 November 2011
Mr Md. Shahinur Rahman Gazi
67 Beaumaris Street
ENFIELD NSW 2136Dear Mr Gazi
INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MR MD. SHAHINUR RAHMAN GAZI
I am writing about the application for review made by you in relation to a decision to refuse to grant a Student (Temporary) (Class TU) visa.
In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that the Tribunal has not made up its mind about this information.
The particulars of the information are:
·On 2 November 2011, the Tribunal obtained electronic records held by the Department of Education, Employment and Workplace Relations’ Provider Registration and International Student Management System (PRISM) that indicate that you are not currently enrolled in any course.
This information is relevant to the review because it indicates that you do not meet essential requirement for subclass 572 or any other subclass in the Student (Temporary) Class TU visa, being the requirement that, at the time of the Tribunal’s decision, you provide the Tribunal a certificate of enrolment relating to undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).
If the Tribunal relies on this information in making its decision, it may find that you are not enrolled in any acceptable course and therefore you do not satisfy cl. 572.222, or any other subclass in the Student (Temporary) Class TU visa, as this is also an essential criteria for every other subclass and therefore it would affirm the decision to refuse your application for the visa.
You are invited to give comments on or respond to the above information in writing.
Your comments or responses should be received at the Tribunal by 30 December 2011. If the comments or responses are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 30 December 2011, you may ask the Tribunal for an extension of time in which to provide the comments or response. If you make such a request, it must be received by the Tribunal before 30 December 2011 and you must state the reason why the extension of time is required.
The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If the Tribunal does not receive your comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.
If you have any questions, please contact me on the number listed below, or telephone the Tribunal’s national enquiry line on 1300 361 969. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
Yours sincerely
Robert Cook
TRIBUNAL OFFICER
Telephone: 02 9276 5254
[Emphasis in original]
Mr Gazi’s letter in reply of 30 December 2011 provided:
30 Dec 2011
Robert Cook
Tribunal OfficerREF: MRT Case 1106041
Application for Extension of time period to provide comments on mentioned information
Dear Mr Cook
With reference to your letter, dated 23 Nov ’11, I like to notice you that I received your letter on 25 Dec ’11 as I moved out to a new different place than the address you posted. Due to my acute depression I didn’t keep any contact with anyone including my earlier landlord. I came to learn about this letter once I met him few days back and eventually collected the mail you sent to me.
Therefore, I like to request you to consider me to grant an extension of time period of 2 (two) months to provide my comments or response regarding my enrolment in study course.
I also like to inform you that now I’m trying hard to standup strong and recover the time I lost in due psychological mess. And also to persue (sic) my study further. Please forward all correspondaces (sic) to my new address mentioned below.
Hoping to find me granted of extension of time. Thanking you
Yours sincerely
Md. Shahinur Rahman Gazi
Unit #10, 13-23 Gibbons Str
Redfern, NSW[sic]
In the Federal Magistrates Court, both Mr Gazi and the Minister made the formal submission that a case decided by this Court in relation to what constituted a “response” for the purposes of s 359A of the Migration Act, Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11 (Saba Bros) was wrongly decided. Because Saba Bros was a decision of this Court given in the exercise of appellate jurisdiction, it was, as the learned Federal Magistrate and the parties correctly appreciated, binding upon that court. Mr Gazi further submitted below that that case was distinguishable. In this Court, the Minister advanced by notice of contention the same submission that Saba Bros was incorrectly decided.
In Saba Bros Jagot J held that a solicitor’s reply to a letter from the Tribunal which had invited comment on or response to particular information, sent under s 359A of the Migration Act, which reply acknowledged the receipt of the invitation, advised that it had been put to the client and that the client wished to appear at a hearing was a “response” for the purposes of s 359A(1)(c) and s 359C(2) of the Migration Act. In so doing, her Honour rejected a submission made on behalf of the Minister that “comment on or respond to” required some “minimal grappling” with the information put to the review applicant in the Tribunal’s invitation letter. She stated (at [30]:
A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.
The learned Federal Magistrate held that there was no material distinction to be drawn between the reply under consideration in Saba Bros and Mr Gazi’s reply of 30 December 2011. I agree. His Honour concluded that the Tribunal had refused Mr Gazi’s request for further postponement of the hearing on the basis of a correct understanding that it “was entitled to invite Mr Gazi to a hearing” (at [23]).
Having reached this conclusion, his Honour further concluded that the Tribunal had made no jurisdictional error in deciding to act under s 362B of the Migration Act and proceed to make a decision in respect of his review application without offering Mr Gazi yet a further hearing opportunity.
In his oral and written submissions in respect of the appeal, Mr Gazi submitted that the Tribunal’s refusal of his last request for an extension of time was procedurally unfair. That extension of time had been requested, he submitted, “because I was sick and mentally I could not decided what to do right” [sic]. He further submitted that, if the Tribunal had granted him an extension of time he would have been able to provide the Tribunal further documents in support of his claims.
In response, the Minister submitted that, assuming that Saba Bros was correctly decided such that the Tribunal was obliged to offer Mr Gazi a hearing, a hearing had been offered. The refusal of the further postponement of the hearing was a decision reasonably open to the Tribunal and evinced no jurisdictional error.
This case was decided below and the appeal was argued prior to the delivery of the High Court’s judgement in Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618 (Li). The High Court dismissed an appeal from this Court which, in turn, had dismissed an appeal from the then Federal Magistrates Court which had quashed a decision of the Tribunal on the basis that it had, by the unreasonable refusal of an adjournment of a hearing, committed jurisdictional error.
Li concerned a refusal by the Tribunal to adjourn a review hearing in the exercise of its power so to do conferred by s 363(1)(b) of the Migration Act, whereas this case concerns a decision by the Tribunal not to reschedule a hearing in the exercise of the power so to do conferred by s 362B(2) of that Act. That, though, is a distinction without a difference in terms of the question settled by Li. As with the power conferred by s 363(1)(b) of the Migration Act, the power conferred on the Tribunal by s 362B(2) of that Act must be exercised according to law and it will only be so exercised if it is exercised reasonably: Li at [26], [27], [28], [31] per French CJ; at [47], [63], [67], [68] and [76] per Hayne, Kiefel and Bell JJ and at [90], [92], [94] per Gageler J. It will not be exercised reasonably if it is exercised in a way that no reasonable tribunal could so exercise the power in the circumstances concerned.
As it was developed, Mr Gazi’s “procedural fairness” submission was in substance and as correctly characterised a complaint that the Tribunal’s refusal further to reschedule the hearing was unreasonable in the sense described and that the Federal Magistrates Court had, erred in failing to hold that the Tribunal’s decision was not vitiated by this jurisdictional error.
For the reasons just given, a decision of the Tribunal might be quashed for jurisdictional error grounded in an unreasonable refusal to reschedule a review hearing. For the Tribunal to make such a decision would be not to conduct its “core function” (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [19] per French CJ and Kiefel J) of review according to law.
The Tribunal’s refusal further to reschedule was not unreasonable in the sense described in the circumstances of this case. The Tribunal considered Mr Gazi’s request and such material as he submitted in support of that request. It did so on the basis that Mr Gazi was entitled to be and had been offered a hearing but that, as a matter of discretionary value judgement, the hearing offered should not be rescheduled.
Mr Gazi did not put his request for a rescheduling of the hearing on the basis that he needed a little extra time to secure further supporting documentation. It is certainly possible to envisage a case where a refusal to reschedule might be unreasonable if an applicant had placed before the Tribunal material which showed that, notwithstanding diligent endeavour to secure materials which were supportive of a successful challenge to the decision under review, it had not proved possible to secure these from a third party in time for the appointed hearing date. Where that applicant also put before the Tribunal in conjunction with the rescheduling request evidence which showed that the supporting material would be available within a short time, a refusal by the Tribunal to reschedule might very well be regarded as unreasonable. Li was a case of that kind.
Unreasonableness might also be found in an uncritical refusal to reschedule, even in the face of medical evidence accepted as reliable, which showed that an applicant was not fit to participate in any hearing no matter what form that hearing took. The case for a conclusion of unreasonableness in those circumstances would be strengthened if the Tribunal approached the question of rescheduling on the basis that an applicant had already been offered a number of earlier hearings which had had to be rescheduled and that enough was enough. The Migration Act does not provide a limit as to the number of times upon which a hearing might be rescheduled. That past hearings had, for reasons which the Tribunal thought good, been rescheduled would not carry with it the proposition that no further rescheduling could occur any more than those past reschedulings would, in themselves, dictate that there ought to be a further rescheduling of a hearing.
In this case, the Tribunal noted of the medical evidence that there was nothing in that which suggested that Mr Gazi would not be able to participate in a review hearing by telephone. This was an option that the Tribunal had offered to him, as it was entitled so to do. Mr Gazi had not suggested that there was some feature of his case that dictated that a physical appearance by him at any hearing was essential. Nor had he put the rescheduling request on the basis that essential supporting material had been requested and would be available within a short time. All that occurred here was the making of a value judgement by the Tribunal, reasonably open to it on the basis of the material then before it, that the case was not one for further rescheduling. That being so, the Tribunal was entitled, under s 362B(1) to approach the case on the basis that there had been a failure on the part of Mr Gazi to attend at the hearing the Tribunal was obliged to offer him and then to proceed to determine the application for review without offering any further hearing to him.
For these reasons, I agree with the conclusion of the learned Federal Magistrate that the Tribunal’s decision in respect of the review application was not attended with jurisdictional error.
This conclusion renders it unnecessary to determine whether Saba Bros was correctly decided. Unnecessary though it may be to determine that issue, a question which arises is whether, the issue having been raised by the Minister by a notice of contention, there is nonetheless an obligation, in the exercise of an intermediate appellate jurisdiction such as the present, to deal with it.
In Health World Limited v Shin-Sun Australia Pty Ltd (2009) 174 FCR 218 at [45] to [47] (Health World v Shin-Sun Australia), Perram J, with whom Emmett and Besanko JJ agreed, referred to statements made in the High Court in relation to the duty of an intermediate appellate court, on disposing of a case on a single decisive issue, to deal with other issues which did not thereby arise. His Honour observed (at [47]) of the most recent pronouncement of the High Court on that subject, Kuru v New South Wales (2008) 236 CLR 1 at [12], “It is, I think, important to emphasise that the Court did not say that such findings had to be made. Rather, it merely exhorted intermediate Courts to consider whether to do so.” The Full Court’s judgement in Health World v Shin-Sun Australia was later reversed by the High Court: Health World Limited v Shin-Sun Australia Pty Ltd (2010) 240 CLR 590. Though the High Court (at [19]) noted that the Full Court had not dealt with the issues raised by the notice of contention, it did not criticise the Full Court for failing to deal with those issues or otherwise disapprove of the observation of Perram J which I have quoted. I therefore proceed on the basis that it is not obligatory to deal with the issue raised by the Minister in his notice of contention.
I do not consider that it is desirable in the circumstances of this case to deal with the issue raised by the notice of contention. I should only depart from Saba Bros if convinced it was clearly wrong (a subject upon the merits of which I express no view). Even if I were persuaded that that case was incorrectly decided, all that would mean, apart from deciding the issue inter partes, is that there would be two conflicting decisions of equal authority upon the same issue. And that issue is one of considerable practical importance in the Tribunal’s practice and procedure. Further, the issue transcends practice and procedure in that, for the Tribunal to fail to offer an invitation to a hearing where the Migration Act required that, would be not to conduct a review according to law. Potentially, the Tribunal could be faced with the unpalatable choice of deciding which of this Court’s decisions to follow. It is neither in the public interest nor that of parties to Tribunal reviews to embark on the consideration of the issue in circumstances where it is not necessary so to do for the purposes of deciding the appeal. The issue is one appropriately confronted when it is essential to the determination of an appeal and then, in my respectful view, by a Full Court.
For these reasons, the appeal must be dismissed, with costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 23 October 2013
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