Gazi v Minister for Immigration and Citizenship

The appellant, Md Shahinur Gazi, a citizen of Bangladesh, appealed against the decision of the Federal Magistrates Court to dismiss his application for the judicial review of a decision of the Migration Review Tribunal (the Tribunal). That decision affirmed a decision of the Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) to refuse Mr Gazi a Student (Temporary) (Class TU) visa. The Tribunal's decision to refuse a request by Mr Gazi to reschedule the hearing of his review application was the subject of Mr Gazi's complaint and the ground of his appeal. The Minister submitted that the Tribunal's refusal of that request was reasonable and that, even if the Federal Magistrates Court had erred in finding that the Tribunal's decision was not vitiated by jurisdictional error, the error was not of a kind that entitled Mr Gazi to succeed in his appeal. The appeal was dismissed. The Tribunal's refusal to reschedule the hearing of Mr Gazi's application for review was not unreasonable. The Tribunal had offered Mr Gazi a hearing and was entitled to exercise its discretion to decline to reschedule that hearing. It did so on the basis of the material before it at the time. 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. 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, and 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. 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. This conclusion renders it unnecessary to determine whether Saba Bros was correctly decided. 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.