Hanspal v Minister for Immigration
[2018] FCCA 1408
•1 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANSPAL v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1408 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – Tribunal’s confirmation of its earlier decision to dismiss the application for non-appearance of the applicant at the Tribunal hearing – whether legal unreasonableness – whether the Tribunal erred in its understanding of the relevant law – whether there was a failure of procedural fairness by the Tribunal – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360, 360A, 362B, 368, 379A, 379C, 476 Migration Regulations 1994 (Cth), reg. 4.21, sch. 2, cl.820.211, sch.3, 3001, 3003, 3004 |
| Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Sharma & Anor v Minister for Immigration & Anor [2017] FCCA 966 |
| Applicant: | SUKHWINDER SINGH HANSPAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 982 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 16 March 2018 |
| Date of Last Submission: | 3 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr T Galvin of Minter Ellison Lawyers |
ORDERS
The application made on 22 April 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 982 of 2016
| SUKHWINDER SINGH HANSPAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 22 April 2016 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 April 2016. In its decision of 5 April 2016, the Tribunal confirmed under s.362B(1C) of the Act, its earlier decision to dismiss Mr Hanspal’s application to the Tribunal for non-appearance at the Tribunal hearing (s.362B(1A)(b) of the Act). [I note that the application indicates that the relevant decision was made on 6 April 2016, but in context, that appears to be in error. See further below.]
The evidence before the Court is as follows:
a)A bundle of relevant documents, filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of Usipua Talele Soliola, paralegal, made on 21 July 2016.
The affidavit of Mr Hanspal, made on 4 August 2016 was not read into evidence as it was not relevant to a fact in issue in these proceedings.
Background
Mr Hanspal is a citizen of India (CB 3). He first arrived in Australia in October 2006 on a student visa. That visa ceased in September 2008. He was then granted three further student visas, the last of which was valid until September 2011. Mr Hanspal then applied for another student visa, which was refused (CB 221). That decision was the subject of review by the then Migration Review Tribunal which, on 12 June 2012 affirmed the refusal (CB 136 to CB 138). [I note that the last page of that decision is not in the Court Book.]
On 3 August 2012, Mr Hanspal applied for a partner visa
(CB 1 to CB 90). Mr Hanspal indicated on the application form that he had not received any assistance in completing the application form (CB 20). There was no indication he had engaged a migration agent to assist him. The address for correspondence was given as Mr Hanspal’s residential address (CB 3).
That application was refused by a delegate of the Minister on 26 September 2014 (CB 221 to CB 244). The reason for the refusal was that pursuant to reg.820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), Mr Hanspal was required to satisfy criteria 3001, 3003 and 3004 of Schedule 3 to the Regulations. Mr Hanspal did not satisfy criterion 3001 of Schedule 3 to the Regulations because his last substantive visa had ceased more than 28 days prior to the date on which his application for the partner visa was made, and the delegate was not satisfied that there were compelling reasons to waive the Schedule 3 requirement (CB 222.8 and CB 224.6).
Mr Hanspal applied for review to the Tribunal on 5 October 2014 (CB 259 to CB 260). The application for review indicated that Mr Hanspal’s relevant address for receiving correspondence was an address in Chandler St, Belconnen ACT. Mr Hanspal also provided an email address. There was no indication that Mr Hanspal had engaged any migration agent to assist with the review application to the Tribunal.
On 9 October 2015, the Tribunal sent a letter to Mr Hanspal at his relevant address for receiving correspondence, inviting him to attend a hearing before the Tribunal scheduled for 25 November 2015 (CB 269 to CB 278). The letter also stated the following (CB 270.2):
“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. If you do not attend the schedule hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us”.
Mr Hanspal was then advised, by letter dated 28 October 2015 and sent to his relevant address for receiving correspondence, that the hearing had been postponed due to the inability of the Tribunal member to conduct the hearing on that date (CB 280 to CB 283). A Tribunal officer also left a voice message on Mr Hanspal’s telephone on that day (CB 279).
The Tribunal wrote again to Mr Hanspal at his address for service by letter dated 3 February 2016, advising that the hearing had been rescheduled for 3 March 2016 (CB 281 to CB 283). The letter also contained the relevant statement set out above (at [8]). The letter was dispatched by the Tribunal on 3 February 2016 (see annexure “UTS1” to Ms Soliola’s affidavit).
On 25 February 2016, the Tribunal received a letter from Mr Hanspal requesting that the hearing be postponed. The letter advised that Mr Hanspal had appointed a “Senior Migration lawyer” (Mr Bilal) to “represent [his] case” and “act on our [he and his sponsor’s] behalf”. Mr Hanspal was “shocked” to receive correspondence from the Tribunal, as Mr Bilal had advised that all correspondence would go through him. Mr Hanspal said that he had been “standing empty handed”. He stated that he did not have “a single paper” to provide to the Tribunal, as evidence to support his application (CB 284).
In his letter, Mr Hanspal requested that the hearing be postponed to allow him time to “collect all the required documents”. He also acknowledged “if the Tribunal is unable to postponed (sic) the hearing, [it had] every right to do so and made (sic) the decision accordingly without listening or considering [his] version” (CB 284).
On that same day, an officer of the Tribunal telephoned Mr Hanspal on three occasions (CB 285).
On the first occasion, the Tribunal officer left an “incomplete” voice message advising that Mr Hanspal’s request for a postponement had not been granted (CB 285.4)
On the second occasion, the Tribunal officer spoke to Mr Hanspal and advised that the relevant Tribunal member had considered Mr Hanspal’s application for a postponement, and had decided not to grant it. The hearing scheduled on 3 March 2016 would therefore proceed (CB 285.5). The Tribunal officer recorded in a “Case Note” documenting the telephone call, that Mr Hanspal said that there was “not (sic) point” in him attending the hearing as he would not be able to produce a “single document” in relation to his application. The reason for this was that he had provided all the relevant documents to his migration agent, and he had not been able to make contact with the agent (CB 285.5).
The Tribunal officer then telephoned Mr Hanspal again, after speaking with the relevant Tribunal member. Mr Hanspal was advised that the hearing would proceed as scheduled, and that Mr Hanspal would be given time after the hearing to provide “further submission[s]” in relation to his application. Mr Hanspal again said that there would be no point in him attending the hearing, due to not being able to provide any documentation. The Tribunal officer advised that Mr Hanspal could “discuss his issues” at the hearing with the Tribunal.
The Tribunal also wrote to Mr Hanspal on 25 February 2016 sent by email to the relevant address, confirming the refusal of the application for a postponement, and confirming the hearing details. The letter also asked Mr Hanspal to arrange for the sponsor (his claimed spouse) to attend at the hearing to give evidence. The letter again contained the statement reproduced above (at [8]) (CB 286 to CB 289).
Mr Hanspal telephoned the Tribunal on 26 February 2016 to indicate that he would be making a further request for a postponement of the hearing to allow him time to obtain the relevant documentation. He was advised by a Tribunal officer that the hearing would proceed as scheduled, and that he could submit a further application for an adjournment. However, it may not be granted, given that his previous adjournment application had been refused (CB 294).
On 28 February 2016 Mr Hanspal sent an email to the Tribunal. In the email he made a further request for an adjournment. Again, his reason for requiring an adjournment was that his migration agent had “disappeared”, preventing Mr Hanspal from being able to obtain his documentation (CB 290).
The Tribunal sent a letter to Mr Hanspal by email to his relevant address for service on 29 February 2018. It advised that his application for an adjournment had been refused and the hearing was to go ahead as scheduled (CB 295 to CB 297). The letter again contained the statement as set out above (at [8]).
On 1 March 2016 Mr Hanspal sent an email to the Tribunal. In his email, Mr Hanspal stated that he believed his application to the Tribunal had been “reviewed by some computer generated program” and that he did not have any documents to provide to the Tribunal. He stated that he believed he was dealing with a “Robert” [in context, it appears this is in error, and Mr Hanspal intended to refer to a “Robot”], which sent him the “same reply again and again” with “no sentimental understanding of how to treat a other (sic) human”. Mr Hanspal requested that the Tribunal “[k]indly disregard all my requests or appeals and continue your course of action and do the same what the (sic) immigration have done to me” (CB 298).
Mr Hanspal did not attend the hearing before the Tribunal on 3 March 2016 (CB 300). In that light, on 4 March 2016, the Tribunal dismissed his application pursuant to s.362B(1A)(b) of the Act (CB 305).
A copy of the Tribunal’s decision was sent to Mr Hanspal by post at his address for receiving correspondence (CB 301 to CB 305). A copy of an information sheet entitled “Information about dismissal of applications – MR Division” was enclosed with the letter (CB 303 to CB 304). That information sheet indicated that Mr Hanspal could apply for reinstatement of his application within 14 days of receiving notice of the dismissal decision (CB 303.5).
On 15 March 2016 Mr Hanspal sent an email to the Tribunal, with the subject line “[r]equest to review my application”, and repeating his difficulties with obtaining his documentation (CB 306).
On 5 April 2016, the Tribunal confirmed its decision of 4 March 2016, to dismiss the application (CB 308 to CB 310). In its decision, the Tribunal noted that the application was dismissed pursuant to s.362B(1A)(b) of the Act due to Mr Hanspal’s non-appearance at the scheduled Tribunal hearing ([2] at CB 309).
The Tribunal treated Mr Hanspal’s email dated 15 March 2016 as an application for reinstatement ([4] at CB 309).
The Tribunal noted that Mr Hanspal had requested an adjournment of the hearing “twice” on the basis that his migration agent had “disappeared without trace”, and consequently, so had the information that Mr Hanspal had provided to him in “preparation” of his case ([5] at CB 309).
The Tribunal stated that it “fully understood Mr Hanspal’s predicament”, but that it had requested that Mr Hanspal attend the hearing in any event to allow the Tribunal to question him about his circumstances and to take oral evidence from Mr Hanspal ([6] at CB 309). Further, that Mr Hanspal had been advised that he could be given further time to provide further information. Despite this, Mr Hanspal did not appear at the hearing at the scheduled time ([6] at CB 309).
The Tribunal also noted that Mr Hanspal had indicated to it that he would appoint a new representative. However, despite the Tribunal’s request that in the event a new representative was appointed, Mr Hanspal was to provide the relevant form, Mr Hanspal did not provide such a form, or any other “additional information” ([7] – [8] at CB 309). It noted that in his application for reinstatement, Mr Hanspal indicated he was having difficulties obtaining new representation ([7] at CB 309).
The Tribunal stated that it had considered Mr Hanspal’s submission, and had “taken into account all the relevant circumstances of the case”. While it had “read” Mr Hanspal’s explanations regarding his requests for an adjournment of the hearing, it remained that the Tribunal had specifically requested that Mr Hanspal attend the hearing notwithstanding these requests ([9] at CB 309). In those circumstances, the Tribunal did not consider it appropriate to reinstate the application ([9] at CB 309), and the decision of 4 March 2016 was confirmed ([10] at CB 309).
The Application to the Court
The application to the Court contains three grounds. They are in the following terms:
“1. Jurisdictional error and lacked jurisdiction
2. Error in interpretation of legislation
3. Natural justice”
Before the Court
The parties first appeared before a Registrar of the Court on 9 June 2016. On that day, orders were made, by consent, which amongst other things, provided Mr Hanspal the opportunity to file and serve any amended application or evidence by way of affidavit. Orders were also made for the filing of written submissions by the parties. Mr Hanspal did not file any further documents in this regard. The Minister filed written submissions on 6 March 2018 (“the Minister’s first written submissions”).
At the hearing, Mr Hanspal provided written submissions in support of his application. Mr Hanspal’s grounds were in such general terms that they lacked any specificity, or even any indication, as to the nature of “jurisdictional error” asserted.
Mr Hanspal’s complaint in the submissions was plainly directed to what he saw as the lack of opportunity to attend at the Tribunal hearing in circumstances where he had sought, with explanation, an adjournment.
During the hearing before the Court, I raised with the Minister’s solicitor the following. On the evidence, there is no doubt that the Tribunal exercised its discretion to dismiss the application for reason of Mr Hanspal’s non-attendance at the hearing on 4 March 2016 pursuant to s.362B(1A)(b) of the Act.
Section 362B(1) and (1A) are relevantly as follows:
“Section 362B
Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(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.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2: Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.”
It is clear that once Mr Hanspal did not attend the hearing, this engaged s.362B(1)(b) of the Act. The Tribunal was then able to elect proceed on either one of the bases set out at s.362B(1A)(a) or (b) of the Act. The Tribunal elected to proceed under s.362B(1A)(b) of the Act.
Following Mr Hanspal’s application for reinstatement, that then engaged s.362B(1B) of the Act. That section is relevantly as follows:
“Section 362B
Failure of applicant to appear before Tribunal
…
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.
Note: Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.”
The Tribunal was then required to consider s.362B(1C) of the Act. That section is relevantly as follows:
“Section 362B
Failure of applicant to appear before Tribunal
…
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so--reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or
(b) confirm the decision to dismiss the application, by written statement under section 368.
Note 1: Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.”
As set out above, the Tribunal decided to confirm the dismissal on 5 April 2016 ([10] at CB 309). In his application to the Court, Mr Hanspal seeks review of what he says was the Tribunal’s decision of 6 April 2016. On the evidence before the Court, the Tribunal’s decision to confirm the dismissal of the application for review was made on 5 April 2016.
I note that at Court Book page 308, the front page of the Tribunal’s decision states that the decision was that “the Tribunal affirms the decision under review”. When that is compared with the Tribunal’s reasoning in its decision record, and its conclusion at [10] (CB 309) that statement at Court Book page 308 appears to be in error.
I find that the Tribunal’s decision made on 5 April 2016 was to confirm its earlier decision to dismiss the application for non-attendance. The Tribunal’s decision to “confirm” its earlier decision to dismiss the application for review has the consequence by operation of law that such a decision is taken to be an affirmation of the delegate’s decision (s.362B(1F) of the Act). However, the Tribunal’s actual decision was to confirm the dismissal of the application for review.
Mr Hanspal received notification of the decision by letter dated 6 April 2016 (CB 307). In context, that is the decision that is the subject of the application before the Court.
However, Mr Hanspal’s submissions before the Court appeared to take issue with the Tribunal’s decision not to adjourn the hearing set down for 3 March 2016.
The question that arose at the hearing was whether the Court was required to consider the reasonableness of the decision under s.362B(1A)(a) and (b) of the Act (“the dismissal decision”) and the reasonableness of the decision under s.362B(1C)(b) of the Act (“the confirmation decision”). I gave the parties the opportunity to make written submissions. Only the Minister filed written submissions. He filed written submissions on 3 April 2018 (“the Minister’s second written submissions”).
I agree with the Minister that both s.362B(1A) and s.362B(1C) of the Act contain discretionary powers. Those discretions must be exercised reasonably (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li (HCA)”), Gazi v Minister for Immigration and Citizenship [2013] FCA 1094 (“Gazi”) at [34], Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158; (“Eden”) at [63] and Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 (“SZVFW”) at [38], [44] and see [7] the Minister’s second written submissions).
The Minister submits that both the decisions (the dismissal decision and the confirmation decision) are migration decisions, and therefore both are capable of being challenged on review (Sharma & Anor v Minister for Immigration & Anor [2017] FCCA 966 at [18] per Judge Driver and see [8] of the Minister’s second written submissions). I agree with the Minister’s submissions in this regard.
The Minister also submits that the application to the Court has only challenged the confirmation decision. The application to the Court has not, as was open to Mr Hanspal to have done so, challenged the dismissal decision (see [9] of the Minister’s second written submissions). Again, on the facts, I agree with the Minister.
The Minister argues that given the above (in particular that the application to the Court does not seek to challenge the dismissal decision in circumstances where it could have done so), in considering the issue of legal unreasonableness, the Court is limited to considering and determining whether the confirmation decision was legally valid.
The Minister relies on two authorities of this Court in support of that submission which he says are reflective of that “approach”, Li v Minister for Immigration & Anor [2017] FCCA 2326 (“Li”) and Lim v Minister for Immigration & Anor [2018] FCCA 496 (“Lim”) (see [9] of the Minister’s second written submissions).
The Minister’s submission was that in both cases, the Court limited its consideration to the question of legal unreasonableness of the Tribunal’s decision under s.362B(1C)(b) of the Act (the confirmation decision) and did not consider legal unreasonableness of the decision under s.362B(1A)(b) of the Act (the dismissal decision).
I do not agree with the Minister that those cases support the proposition that such a distinction can be made in all cases.
It is the case that in Li and Lim the Court did confine its consideration to the decision under s.362B(1C)(b) of the Act.
However, the hearing before the Court in Lim proceeded as a show cause hearing. The application to the Court was dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC rules”) (see Lim at [36]).
At such a hearing, the applicant was confined to the relief sought in the grounds of the application (r.44.13(1) of the FCC Rules). As the Court, with respect, made clear (at [25]):
“Noting that the application to show cause only seeks review of the Tribunal’s confirmation decision, the Minister understands Grounds 1 and 3 to contend that the Tribunal denied Ms Lim procedural fairness in exercising its discretion to confirm the dismissal decision. I agree.”
With respect, there is nothing in the Court’s judgment to indicate that the applicant in that case asked the Court to dispense with r.44.13 of the FCC Rules pursuant to r.1.06 of the FCC Rules.
The situation with Li is similar. It proceeded by way of a hearing pursuant to r.44.12 of the FCC Rules. It also was dismissed pursuant to r.44.12(1)(a) of the FCC Rules.
However, the circumstances in the current case are different. This matter was set down for a final hearing by an order made by a Registrar of the Court. In that circumstance, r.44.13 of the FCC Rules does not apply.
In my respectful view, there is nothing in either Lim or Li to indicate the Court established some general principle applicable to all cases involving s.362B of the Act. Rather, each case must proceed having regard to its particular circumstances. Further, as the Minister correctly submits, both decisions in the current case (the dismissal decision and the confirmation decision), are capable of judicial review on the question of unreasonableness.
A difficulty in the current case, as the Minister also correctly submits, is that in his application, Mr Hanspal has only sought review of the confirmation decision.
However, in circumstances where r.44.13 of the FCC Rules does not apply, where Mr Hanspal is legally unrepresented before the Court and where Mr Hanspal has otherwise specifically raised the issue, it is appropriate to consider whether the Court should contemplate the matter of legal unreasonableness for both the dismissal decision and the confirmation decision.
This is particularly so in circumstances where, given the relevant statutory scheme, the decision made under s.362B(1C)(b) of the Act (the confirmation decision) was available to the Tribunal only because of the Tribunal’s exercise of discretion under s.362B(1A)(b) of the Act (the dismissal decision).
In his oral submissions to the Court, and in his written submissions presented to the Court at the final hearing, Mr Hanspal’s complaint about the Tribunal was essentially directed to one issue. That is, he complained about the Tribunal’s decision not to “postpone” the hearing.
The reasons advanced by Mr Hanspal were that his migration agent had all his documents, and he was unable to attend the Tribunal hearing without them.
The Tribunal’s decision to refuse the adjournment and then to proceed with the exercise of its discretion to dismiss the application for
non-appearance, was not unreasonable in the circumstances.
This is not a case where Mr Hanspal was unaware of the hearing date, or did not attend because of some “mistake” or misadventure. Nor is it a case where the inability to attend was said to be because of any medical, or other such difficulty.
The sole reason was that Mr Hanspal did not want to attend because he did not have his documents.
As Mr Hanspal was told on two occasions by the Tribunal officer, he could still come to the hearing to give his oral evidence, and further time would be given to him to provide the relevant documents after the hearing. Mr Hanspal was on notice from the various communications from the Tribunal that a failure to attend may well result in an unfavourable outcome for him.
In all the circumstances, it was reasonably open to the Tribunal to proceed in the exercise of its discretion to refuse the adjournment requests, and then, following Mr Hanspal’s non-appearance at the hearing, to dismiss the application.
It was Mr Hanspal’s election, and it must be said in the circumstances unreasonable election, not to attend the Tribunal hearing that led to the dismissal decision.
Before the Court, Mr Hanspal submitted that it was not possible for him to attend without documentation. Why that was the case, in the circumstances, was never satisfactorily explained before the Court.
The Tribunal’s reasons for its refusal of the adjournment requests were explained to Mr Hanspal in various correspondence from the Tribunal. The Tribunal gave an intelligible justification for its refusal that engaged with Mr Hanspal’s reason for not wanting to attend the hearing.
The Tribunal’s exercise of its discretion pursuant to s.362B(1A)(b) of the Act was also reasonable. The Tribunal’s decision record of 4 March 2016 provides an intelligible justification for that dismissal decision.
The Tribunal’s decision to confirm the dismissal pursuant to s.362B(1C)(b) was also legally reasonable. The Tribunal’s decision to confirm the dismissal reveals that it considered Mr Hanspal’s reasons as to why he said his review application should be reinstated. The Tribunal’s reasoning was that Mr Hanspal was given every opportunity to attend the hearing, with the possibility of further time to provide documents, and ultimately he chose not to do so. The Tribunal’s reasoning is not unreasonable in the requisite sense (Li (HCA), Gazi, Eden and SZVFW).
The grounds of the application to the Court are bare statements of legal error. At best, the following may be inferred. One, Mr Hanspal’s complaints are that the Tribunal made an error in its understanding, and application, of the relevant law (“grounds” one and two).
Two, that the Tribunal denied Mr Hanspal procedural fairness (“ground” 3).
If this is what was meant by Mr Hanspal’s grounds, then on the evidence before the Court, none of these allegations are made out.
As set out above, there is nothing in the evidence before the Court to indicate that the Tribunal misunderstood or misapplied the relevant statutory requirements.
Mr Hanspal was invited to a hearing pursuant to s.360 of the Act. That invitation complied with relevant requirements (see s.360A, s.379A and s.379C of the Act and reg.4.21 of the Regulations).
Mr Hanspal did not appear on the day, at the time or the place that had been ultimately notified to him by the Tribunal. As set out above, the Tribunal proceeded pursuant to s.362B(1A)(b) of the Act to dismiss the application without any further consideration of the application, or information, before the Tribunal.
As with the exercise of statutory administrative powers, such an exercise must, as set out above, not be exercised unreasonably (Li (HCA)).
The Minister, fairly, brought the Court’s attention to AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383; (2015) 244 FCR 144 (“AZAFB”). In that case, the Court considered whether it was legally unreasonable of the relevant decision-maker to proceed to a decision in circumstances where the applicant had not appeared at the hearing.
The Court found that the applicant in that case had been engaged with the proceeding before the delegate and the Tribunal. The Court held that the Tribunal should have at least attempted to telephone the applicant before proceeding to determine the application for review (AZAFB at [24] – [26]).
The Minister submits respectfully that this approach is “erroneous” and that the better law is that “arising in the earlier case of SZFHC” (Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73; (2006) 150 FCR 439 and see [38] of the Minister’s first written submissions).
It is trite to say that it is not open to this Court to find that the Federal Court exercised its appellate jurisdiction, in respect of a matter from this Court, in an erroneous fashion, or was erroneous in its approach.
However, I do not respectfully understand the Court in AZAFB to have set down a general principle that in all circumstances, the Tribunal is obliged to telephone an applicant who does not appear at a hearing.
Rather, I respectfully understand that in AZAFB, the Court found that the Tribunal in that case had not acted reasonably in circumstances where the applicant had actively engaged in both the process of the application, and in the conduct of the review (see AZAFB and in particular at [22] – [26]).
Thus, in each case, the matter of unreasonableness is to be determined with reference to the particular circumstances of that case (Li (HCA)).
The relevant circumstances in the current case are as follows. One, that Mr Hanspal was clearly aware of the Tribual hearing date, time and place. There was no dispute about this.
Two, a Tribunal officer had made telephone calls to Mr Hanspal. These calls were specifically directed to his request for an adjournment of the hearing date, and his attendance at the Tribunal hearing.
Three, Mr Hanspal’s stated reason for not wanting to attend the Tribunal hearing, and/or for being unable to attend the hearing, was that his “legal advisor” (Mr Bilal), whom he also described as a “[s]enior [m]igration lawyer” (CB 284) had taken his documents, and Mr Hanspal had been unable to find him.
It is important to note that the Tribunal’s relevant reasons in refusing the adjournment request, which then led to the dismissal of the application due to Mr Hanspal’s absence were as follows (CB 305.5):
“The applicant requested that the hearing be adjourned twice based on his claim that his representative had disappeared without trace (sic) along with the information he provided him. The Tribunal requested twice that he attend the hearing and, if necessary, additional time would be granted for him to provide further submissions. The applicant informed that he would appoint a new representative. The Tribunal then requested him to provide a new Appointment of Representative form.
As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.”
This was in circumstances where Mr Hanspal had told the Minister’s department that he had not received assistance with the completion of the visa application form, as he had not nominated any person who was representing him (CB 20). Further, Mr Hanspal had lodged the application for review himself, and did not nominate anyone to represent him. The addresses for service he provided to the Tribunal were his own residential and email addresses (CB 260).
The application for review was made on 5 October 2014 (CB 259 to CB 260). It was not until 25 February 2016, that Mr Hanspal made reference to having been represented by Mr Bilal.
In the circumstances, it was not unreasonable for the Tribunal to refuse the adjournment request, and expect that Mr Hanspal attend at the hearing to be questioned about his circumstances.
As the Tribunal made clear, further time could be granted to Mr Hanspal to provide further information (his documents) if he attended at the hearing and explained what had happened.
In the circumstances, the Tribunal’s decision not to grant the adjournment, and its decision to determine the application in the absence of Mr Hanspal, was open to it, given s.362B(1A)(b) of the Act, and was not legally unreasonable in the sense explained by relevant authorities.
Following its decision, the Tribunal received what it understood to be an application by Mr Hanspal for reinstatement of his application. I cannot see any legal error in the Tribunal’s understanding in this regard.
In this circumstance, s.362B(1C) of the Act required the Tribunal to either reinstate the application if it considered it appropriate to do so, or confirm the decision to dismiss the application, and to do so by a written statement pursuant to s.368 of the Act.
The Tribunal decided to confirm the decision and did so by way of a written statement pursuant to s.368 of the Act.
The Act and the Regulations do not provide for any mandatory relevant consideration in relation to the exercise of this discretion. The reinstatement according to the statute is to take place if the Tribunal considers it appropriate to do so. Again, this is an exercise of an administrative discretion. It must be exercised reasonably.
For the reasons set out above, I agree with the Minister’s submission that in the particular circumstances presented, the Tribunal’s decision was not legally unreasonable. The Tribunal’s reasons for that decision provide an intelligible justification for the exercise of its discretion.
Conclusion
The grounds of the application, and as further explained before the Court and in written submissions, do not reveal jurisdictional error in the Tribunal’s decision. Therefore it is appropriate to dismiss the application. I will make the appropriate order
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 1 June 2018
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