Ijaz v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 688
•6 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ijaz v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 688
File number: MLG 2294 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 6 August 2024 Catchwords: MIGRATION – Judicial Review – Whether the Tribunal’s decision was legally unreasonable – Where the Applicant did not appear at the scheduled hearing – Where the Tribunal’s dismissal of the application under s. 362B(1A) permitted the Applicant to apply to the Tribunal for reinstatement of the application – Where the Tribunal’s exercise of a statutory discretion fell within a range of possible, acceptable outcomes defensible in respect of the facts and the law – No legal unreasonableness – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 353, 360, 362B, 363 Cases cited: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [2014] FCAFC 1
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [2013] HCA 18
New South Wales v Canellis (1994) 181 CLR 309
Singh v Minister for Immigration and Border Protection [2017] FCA 217
SZRQU v Minister for Immigration & Citizenship [2012] FCA 1234
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submissions: 16 July 2024 Date of hearing: 16 July 2024 Applicant: In person Solicitor for the First Respondent: Mr O’Shannessy of Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2294 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMIR IJAZ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
6 AUGUST 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
WHAT IS THE ISSUE?
The issue for decision is whether the Tribunal acted unreasonably in dismissing the Applicant’s review application under s. 362B(1A)(b) of the Migration Act 1958 (Cth) when the Applicant did not appear at the scheduled hearing. The Tribunal did not act unreasonably. I will dismiss the application. My reasons follow.
WHAT IS THE NECESSARY BACKGROUND?
Mr Amir Ijaz seeks a Student (Temporary) Visa. The Minister’s delegate was not satisfied the Applicant intended genuinely to stay temporarily in Australia and refused to grant the visa. The Applicant sought merits review before the Tribunal.
There is no issue that the Tribunal met its statutory obligation to invite the Applicant under s. 360 to appear before the Tribunal to give evidence and present arguments.
On 12 June 2018 the Applicant did not appear before the Tribunal at the scheduled hearing. Under s. 362B(1)(b) the Applicant’s non-appearance engaged the Tribunal’s powers under s. 362B.
By an email sent on 12 June 2018 about 1½ hours before the scheduled hearing the Applicant requested an adjournment and rescheduling of the Tribunal hearing. The Applicant told the Tribunal that he was unable to attend the hearing for two reasons: because his lawyers “couldn’t make it” and because he was “stressed out”. The Tribunal did not respond to the Applicant’s email before the scheduled hearing. Later that day, the Applicant duly did not appear at the Tribunal hearing. Following the Applicant’s non-appearance, the Tribunal dismissed the application “without any further consideration of the application or information before” under s. 362B(1A)(b).
Part 5 of the Migration Act 1958 (Cth)
Section 353 in Part 5 of the Act provides that the Tribunal “shall act according to substantial justice and the merits of the case”. Under s. 362B(1A)(b), if an applicant 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 dismiss the application without any further consideration of the application or information before the Tribunal” (emphasis added). The use of the word “may” disclose the Tribunal’s statutory discretion as to the course it will follow. If the Tribunal exercises its statutory discretion to dismiss an application under s. 362B(1A)(b), an applicant may then within 14 days “apply to the Tribunal for reinstatement of the application” under s. 362B(1B). Under s. 362B(1E) “if the applicant fails to apply for reinstatement within the 14-day period … the Tribunal must confirm the decision to dismiss the application”. Under s. 362B(1F) if the Tribunal “confirms the decision to dismiss the application, the decision under review is taken to be confirmed”.
As a result, under the Part 5 statutory framework, if the Tribunal exercises its discretion to dismiss an application under s. 362B(1A)(b) and an applicant fails to apply for reinstatement under s. 362B(1E) there will be two Tribunal decisions: a dismissal decision and a confirmation decision. That was what occurred in this case.
The Tribunal’s dismissal decision
The Tribunal dismissal decision made on 12 June 2018 under s. 362B(1A)(b) is short. In its relevant part it was as follows:
1.The review applicant was invited under s. 360 of the Migration Act 1958 to appear before the Tribunal on 12 June 2018. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a· hearing … No satisfactory reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Tribunal’s confirmation decision
The Applicant did not apply for reinstatement of his application within the 14-day prescribed period.
The Tribunal’s confirmation decision made on 6 July 2018 is also short. In its entirety it reads:
1. This is an application for review of a decision made by a delegate of the Minster for Immigration on 2 March 2017 to refuse to grant the visa application a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).
2. On 12 June 2018 the Tribunal dismissed the application under s.362(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicant was advised that reinstatement of the application could be sought within the prescribed period of receiving the dismissal statement and that a failure to apply for reinstatement within that period would result in confirmation of the dismissal decision.
4.As the review applicant did not apply for reinstatement of the application within the prescribed period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
WERE THE TRIBUNAL’S DECISIONS UNREASONABLE?
Ground 1
The Applicant framed his single ground of review (Ground 1) as follows:
The Tribunal doesn’t follow all the matters under S. 362B(1A)(b) and in accordance with S. 362C. By Law this is a procedural unfairness to access student visa by not attending the hearing or reinstated considering my medical situation to the time of decision due to which I did not attend. Under the court of Law tribunal have to consider accessing the genuine temporary entrance criterion for student visa. Where as tribunal failed to consider S. 362B(1A)(b) and S. 362C. I believe this is procedural unfairness so I want this matter to be heard and determined by Federal Circuit Court.
[Typographical errors corrected]
Beneficially read, the issue for decision under Ground 1 is whether the Tribunal acted unreasonably in proceeding as it did in its dismissal decision on 12 June 2018. Once it dismissed the application, in the absence of a reinstatement application, it was inevitable that the Tribunal would make the confirmation decision.
Other than its statement in its dismissal decision that “No satisfactory reason for the non-appearance has been given” the Tribunal did not expose its reasons for its exercise of its statutory discretion to proceed to dismiss the application under s. 362(1A)(b). As a result, the reasons do not expose why the power was exercised as it was (Cf. Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [2014] FCAFC 1, [47]). It is not possible to identify any specific error in the reasoning process by a review of the short reasons set out in the dismissal decision.
Nonetheless, as Nettle and Gordon JJ held in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, [2018] HCA 30 at [82]:
A conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no “evident and intelligible justification” for the decision
As a supervising court, my review of the reasonableness of the decision is concerned with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (SZVFW, [82] citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [2013] HCA 18, [105]).
The statutory discretions
Once the Applicant did not appear at the scheduled hearing following his email sent approximately 1 ½ hours before the hearing, the Tribunal had a number of co-existing statutory discretions as to how to proceed.
First, it had a discretion to “make a decision on the review without any taking any further action to allow or enable the applicant to appear before it” (s. 362B(1A)(a)) in which case its review function would be at an end.
Second, it had a discretion to dismiss the application without any further consideration of the application or information before the Tribunal under s. 362B(1A)(b) which is the discretion it in fact exercised. The statutory consequence of exercising that discretion was that the Applicant could within 14 days after receiving notice of the dismissal decision apply to the Tribunal for reinstatement of the application.
Third, the Tribunal had a discretion to adjourn the review from time to time under s. 363(1)(b).
Pragmatically assessed, the Tribunal’s decision to exercise its discretion under s. 362B(1A)(b) on 12 June 2018 was the following of a middle path in the sense that the Tribunal remained seized of the matter and the Applicant’s review rights remained alive to the extent that it was open to him to apply for reinstatement of his application within the 14-day period permitted under s. 362B. Only on the Tribunal’s confirmation decision under s. 362B(1F) the decision under review would be “taken to be affirmed”.
The material before the Tribunal
As to the material before the Tribunal when it made its dismissal decision on 12 June 2018, on 23 March 2017, on commencing his review application the Applicant had appointed a representative.
On 14 May 2018 the Tribunal invited the Applicant to a scheduled hearing on 12 June 2018. As noted, there was no issue that the invitation complied with s. 360 of the Act.
On 21 May 2018 the Applicant’s representative orally “enquired as to whether the hearing for this case could be adjourned for one day”. The Tribunal advised him to put his request in writing. As a result, on 21 May 2018, the representative made a written request because he had been undergoing treatment for a medical matter. He noted that he “should be available the following week at the same time”.
On 22 May 2018 the Tribunal (verbally) contacted the representative “to advise that the postponement request for the hearing scheduled for 12/06 has been denied as the member does not have any alternative dates available at this stage”. The representative responded” “that he was disappointed as he is currently undergoing chemotherapy and his health might not be good enough to attend two hearings on that date.”
By a letter dated 23 May 2018, the Tribunal formally responded to the request to postpone the hearing. In its response it wrote that the “Member has considered the request carefully but has decided not to postpone the hearing”.
By an email dated 8 June 2018, the appointed representative advised the Tribunal that he no longer represented the Applicant in relation to the review application.
On 12 June 2018 the Tribunal called the appointed representative and advised that the Tribunal required notification that he was no longer to receive correspondence in connection with the review.
On 12 June 2018 (10.07 am) the Tribunal directly emailed to the Applicant a letter advising the Applicant that it had been told by the representative that he no longer represented the Applicant in the review.
On 12 June 2018 (11:49 AM) — a short time later — and about 1 ½ hours before the scheduled hearing, the Applicant sent an email to the Tribunal as follows:
Hi there,
I’ve hearing at 01:30pm today and unfortunately my lawyers just couldn’t make it and since I found out that he’s not available for today I’m very much stressed out. Please allow me some time so I can find another another lawyer or any other date when Mr George is also available.
…
All I’m saying is I just need help sought out this matter, I’ve spend a lot of time finishing my studies and gone through a lot emotional and mental ups and downs meanwhile.
I’m looking forward come down any next available date whenever George is also available.
If required I can provide my medical situation as well.
[As written]
The Applicant did not appear at the scheduled Tribunal hearing on 12 June 2018 (1:30 PM). On his non-appearance, the Tribunal proceeded to dismiss the application under s. 362B(1A)(b).
I interpolate that at no time after 12 June 2018 (the date of the dismissal decision) in the ensuing period before the confirmation decision on 6 July 2018 did the Applicant apply to reinstate his application.
I accept the First Respondent’s submission that by 23 May 2017 the Applicant’s first adjournment request made by the Applicant’s legal representative on 21 May 2017 was “spent” once the Tribunal communicated to the legal representative that the Tribunal had decided not to postpone the hearing.
As of 22 May 2018, the Tribunal informed the Applicant’s legal representative that the reason for the denial of the adjournment was that “the member does not have any alternative dates available at this stage”.
There was no evidence before the Tribunal as to the communications (if any) between the Applicant and his legal representative which preceded the Applicant’s representative’s communication to the Tribunal that he no longer represented the Applicant on 8 June 2018.
The Tribunal was then confronted with a situation on the day of the scheduled hearing -12 June 2018 that it had on 23 May 2018 denied a request for an adjournment made in a timely way and now had an applicant 1½ hours before the scheduled hearing making a further request for an adjournment – in circumstances in which I infer the member did not have any alternative dates available because that had been the circumstance on 22 May 2018.
The Applicant (by his email) advanced two possible reasons for his requested adjournment: first, his medical circumstances and, second, his loss of legal representation.
As to his medical circumstances, to the extent that the Applicant relied upon being “stressed out” and wrote that he could provide information as to his “medical situation” on 12 June 2018, the Tribunal was entitled to regard the medical information as inadequate in deciding how to proceed as the Applicant had provided no details as to “why it is or how it is” any medical circumstance prevented the Applicant from participating in the scheduled hearing of which he had had significant notice (Singh v Minister for Immigration and Border Protection [2017] FCA 217, [13] (Murphy J)).
As to the circumstances of his legal representation, the Applicant asked, “please allow me some time I can find another lawyer or any other date when [the legal representative who had just ceased to act] is also available”. The Applicant did not communicate to the Tribunal the length of any requested adjournment and if, indeed, the applicant could or would obtain alternative legal representation. The Applicant had no entitlement to legal representation (New South Wales v Canellis (1994) 181 CLR 309 at 330-331; SZRQU v Minister for Immigration & Citizenship [2012] FCA 1234, [24] (Katzmann J). There was no basis on which the Tribunal might infer that the legal representative who days before had notified the Tribunal that he ceased to act on 8 June 2017 may resume his representation of the Applicant. The Applicant was requesting an indefinite adjournment.
Doubtless, it was a difficult circumstance that the Applicant who had had legal representation for more than a year since he commenced his merits review application then confronted the situation in which only one, or possibly two, business days before the Tribunal hearing his lawyer had ceased to represent him.
Adopting an “outcome focus” (SZVFW, above), the Applicant has not persuaded me that the Tribunal’s exercise of its discretion to make a decision to dismiss the application under s. 362B(1A)(b) was such that the outcome was outside the range of possible, acceptable outcomes defensible in respect of the facts and the law. In particular, it was open to the Tribunal to take that course in circumstances in which:
(a)the Tribunal had given significant advance notice to the Applicant of the scheduled hearing;
(b)the Tribunal had invited the Applicant to appear at the scheduled hearing in accordance with s. 360;
(c)the Tribunal communicated with the Applicant’s representative that an adjournment would not be granted on or about 22 May 2018 more than two weeks before the hearing;
(d)the Tribunal had an evident and intelligible justification for not granting the adjournment, because the member did not have other available dates;
(e)the Applicant did not provide any material as to the circumstances of his lawyer’s withdrawal;
(f)the Applicant requested an adjournment only 1½ hours before the scheduled hearing;
(g)the Applicant said that a reason for the adjournment was his “medical situation” but did not provide any satisfactory medical material as to why was or how it was that his medical situation necessitated an adjournment; and
(h)the Applicant did not tell the Tribunal the length of the requested adjournment. The Tribunal was left with a request to adjourn the hearing indefinitely.
Further, in my view the Tribunal’s taking of a middle path in dismissing the application under s. 362B(1A)(b), an approach which carried with it the possibility of the applicant applying for reinstatement of his application is relevant to an assessment of the reasonableness of its dismissal decision. A harsher response vis-à-vis the Applicant may have been for the Tribunal to make a decision under s. 362B(1A)(a) in which case the review was at an end without any opportunity for the Applicant to make a reinstatement application. A more favourable response may have been for the Tribunal to adjourn the review under s. 363(1)(b) without dismissing the application.
Nonetheless, in an assessment of whether the decision fell within a range of possible, acceptable outcomes which are defensible in respect of the facts of the law, because the Tribunal took the approach it did, it remained open to the Applicant to seek reinstatement of his application if his non-appearance was an unavoidable result of his lawyer’s actions or his medical situation. It was open to him to rely on those reasons, or any other applicable reasons which satisfactorily explained his non-appearance, in a reinstatement application. Although the Applicant told me that he did not understand that he had that opportunity to apply for the reinstatement of his application, that does not prove that the dismissal decision was unreasonable. The Tribunal’s choice of the particular option it took in the context of the statutory framework reinforces my conclusion that the dismissal decision fell within a range of possible acceptable outcomes defensible in respect of the facts and the law.
Procedural fairness
Looking at the Tribunal’s decision through a procedural fairness “lens” does not assist the Applicant. The obligation on the Tribunal was to provide an opportunity to the Applicant to give evidence and present arguments. It did so. It was a different question as to whether the Applicant took best advantage of that opportunity.
CONCLUSION
I will dismiss the application. I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 6 August 2024
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