Jaiswal v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 886
•21 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jaiswal v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 886
File number(s): MLG 3675 of 2019 Judgment of: JUDGE VASTA Date of judgment: 21 May 2025 Catchwords: MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479
Mitchell v R [1996] HCA 45
Singh v Minister for Immigration and Border Protection [2018] FCAFC 184
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submission/s: 21 May 2025 Date of hearing: 21 May 2025 Counsel for the Applicants: Ms Costello of Kings Counsel and Ms Knowles of Counsel Counsel for the First Respondent: Ms Chan of Counsel Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs. ORDERS
MLG 3675 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMIT JAISWAL
First Applicant
DAKSH JAISWAL
Second Applicant
TINA JAISWAL
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
21 MAY 2025
THE COURT ORDERS THAT:
1.The application filed on 24 October 2019 is dismissed.
2.The First and Second Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $8,371.30.
3.The name of the First Respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
NOTATION:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
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
(Ex tempore)JUDGE VASTA
On 18 October 2019, the Administrative Appeals Tribunal (“the Tribunal/AAT”) confirmed a decision to dismiss the application of Amit Jaiswal and his wife, Tina Jaiswal, and their son, Daksh Jaiswal, for a visa. The last two applicants are dependents upon the first applicant, Amit Jaiswal, and they do not have any claims independent of his claim; therefore, when it is that I refer to the applicant, I am truly referring to all three applicants, as the other two applicants' claims rise or fall upon the claims of the first applicant. The applicant asked this Court to review that decision six days later, on 24 October 2019.
The matter came before Registrar Carlton on 3 December 2019. The registrar made the usual orders for the filing of material and ordered that the matter be listed for a hearing on a date to be advised. The matter sat, as it were, in some form of limbo until it ended up being taken up by the national migration docket, where, in April of 2025, it was docketed to me to be heard today, 21 May 2025.
This means that the applicants have been waiting for five and a-half years for this Court to deal with their application. That is an inordinate delay, and one for which I, on behalf of the Court, extend my apologies to the applicants for that delay. It is also part of the reason why it is that I am giving this decision ex tempore, because the applicants deserve to have as quick a decision as possible.
The one benefit of the delay for the applicant has been that nearly two years ago, on 17 May 2023, O’Brien J published a judgment, sitting as an appeal judge, in which his Honour went through the principles that need to be observed in looking at applications for reinstatement. That decision has been of benefit to the applicants, as well as to the Minister, and certainly to this Court.
This matter does have a very long history, as noted by the Tribunal. The application, itself, for the Skilled Provisional visa, was made by the applicant and his dependents on 23 October 2008, nearly 17 years ago. It took until 14 March 2013 for the delegate to make their decision.
The reason for that delay seems to be that there was a criminal prosecution launched against a third person, whom I will call Mr CA. In short, Mr CA was charged with manufacturing work references and then selling them to persons who needed such a reference for the purposes of visa applications.
In this case, part of the prerequisite for the Skilled Provisional visa was proof that the visa applicant had completed at least 900 hours of work experience, and, in doing so, had been able to obtain a positive skills assessment from Trades Recognition Australia.
The applicant provided a letter, which is reproduced at CB 6, that is dated 3 December 2007 on the letterhead of Cafe Rousseau. The letter goes for some six pages, describing the tasks that the applicant had undertaken while working at Cafe Rousseau. The letter certifies that the applicant was employed as a cook between 16 November 2006 and 24 November 2007, totalling 1070 hours. The letter was signed by a Mr MI, who was the general manager and owner.
What emerged from the prosecution of Mr CA was that, when Mr CA’s files were looked at, there was a file that had the applicant's name, the employer as being Cafe Rousseau, the applicant’s date of birth, and the fact that it was a work reference.
The information disclosed by the prosecution of Mr CA, with regard to Cafe Rousseau, was that Mr CA had said:
I created these fraudulent documents for students to use in their attempts to obtain PR in Australia. I created the false work reference letters to show that the student had completed 900 hours of work in a trade. I also created statutory declarations containing false information to confirm employment if an application was refused and further evidence was required by TRA.
Later, Mr CA had said, in his statement, at paragraph 32:
I used to ask all the employers in the first meeting, "Is it okay if I sign on their behalf, as it is easier for everybody?" Some would say, "Yeah, that's fine, as long as I have a copy of the letter." These employers would read the first few paragraphs of the work reference when I handed it to them, so that meant that they saw that the work experience dates were prior to any student intending to start work. These employers were -
and one of those was Mr MI from Cafe Rousseau.
At paragraph 35, Mr CA said:
All the employers knew that the students weren't going to complete the full 900 hours, that the students had already paid for the reference prior to commencing any voluntary work experience. I had an agreement with all the employers that they would verify false employment claims in TRA or DIAC checked.
Once the prosecution was completed, the material was sent to the Department. In the end, the delegate, in making their decision in 2013, had concluded that the applicant had given, to the Department, a bogus document, and that was the main reason why the delegate refused to grant the visa.
The applicant applied to the AAT, or what was the Migration Review Tribunal (“MRT”) at that stage in 2013, for a merits review. The MRT affirmed the decision of the delegate.
The applicant asked this Court to review that matter. In 2017, the Court reviewed the matter, on the basis that the applicant and the Minister consented to the issuing of the writs. The reason was that the AAT had not disclosed all of the documents that it needed to disclose to the applicant. The matter was then remitted to the Tribunal.
The Court Book shows that there was then correspondence between the representatives for the applicant and the Tribunal, because the applicant's representatives were not convinced that they had been given all of the material that the Tribunal had before it regarding Mr CA and his criminal activity. In particular, there had been a s 375A certificate, which was a certificate that was not a valid certificate.
In that certificate, the particular delegate had decided that electronic files of AFP employers’ statement for CA, a summary of facts for CA and a summary of taped record of interview would be contrary to the public interest because it contains third-party details not relevant to the particular merits review.
This Tribunal, however, did disclose all of the material that it had. I am satisfied, on the evidence and on what has been submitted to me by Ms Chan, that this was so.
The problem, as it seems to me, was that whilst all of the material was given to the applicant, it could easily be argued that that material did not match the description of material in the s 375A certificate, which, understandably, led the representatives for the applicant to inquire as to whether it was that they really did have everything.
On 30 September 2019, the AAT wrote and attached all the documents, that it had, to the representatives for the applicant. However, it noted that the applicant needed to be careful with some of those items, in that the publishing of certain information may offend an order made by Judge Cannon of the County Court, that order having been made on 30 November 2012. That is part of the reason why I have referred to the persons as Mr CA and Mr MI.
The representatives sent an email in reply, where they have said that there was no summary of the tape recording of the taped record of interview, nor of the employment statement. The email went on:
As the hearing is within two days and all documents have not been provided, I request the hearing be postponed by 14 days.
In an unfortunate turn of phrase by the representative, the representative requested that the Tribunal exercise its powers to summon Mr CA to appear before the Tribunal to give evidence. The AAT wrote back on 1 October 2019, saying that:
The Tribunal has considered your request for postponement but has decided to proceed with the hearing as scheduled on 2 October 2019 at 10 am. Please note that, as indicated in the 375A release letter, no further documentation covered under 375A was provided to the Tribunal for this particular case. This is inclusive of the following documents noted in the certificate, that being the summary of facts, the employer statement and summary of taped record of interview. If you have any questions, contact me on this number.
At 6.40 am on the day of the hearing, 2 October 2019, the representatives emailed the Tribunal. The email reads as follows:
Attached please find a medical certificate provided by the applicant. My client confirms that he cannot make it to the hearing today.
The document was attached. As to the material that had been requested, the email again said:
Please note the only attached document was sent to us on 30 September 2019, that the Tribunal [again, unfortunately phrased] is relying on the statements drafted by investigators and signed by CA. Further, the Tribunal has not responded to the request to summon CA, on whose statement prepared by the investigators and signed by him, the 900 hours voluntary work, a requirement in the guidelines set by TRA for skills assessment, was in breach of employment laws. As the statement was drafted by the investigation officers and signed by CA (a criminal), my client intends applying today for the metadata of all documents generated in the preparing of following documents -
which were the summary of facts, the AFP employers’ statement and the statement and summary of taped record of Interview:
My client once again requests the Tribunal provide all documents under section 375A and also respond to the request to summon CA as a witness to identify my client.
The medical certificate simply read, dated 1 October:
Master Daksh Jaiswal has a medical condition and will be cared for by Mr Amit Jaiswal from 2.10.2019 to 3.10.2019 inclusive –
signed by a Dr Masood Seyfi. The areas in that certificate, where the names of the third applicant and the applicant are recorded, are obviously areas where one can simply add in those names, and the dates are also in that way. The certificate, which is headed Carer's Certificate, is simply a template document where one puts in the names.
At 10 o'clock, the Tribunal sat and waited for the applicant and/or his legal representatives to arrive. No one attended. The Tribunal member declared what is colloquially known as a “no-show” at 10.05 am. Sometime shortly after 11 am that morning, the Tribunal wrote to the applicants in these terms:
Response to postponement request.
I am writing in relation to the applications for review. The Tribunal notes that this matter was set down for a review hearing in August 2019, and the hearing invitation was sent to you as authorised recipients on 28 August 2019. The hearing invitation specified the time and place of the hearing, namely 2 October at 10 am in Melbourne. The Tribunal determined that the section 375A certificate issued by the Department of Home Affairs was invalid and released all of the information that was the subject of that certificate to the applicant prior to the scheduled hearing.
The Tribunal notes your correspondence dated 1 October 2019 seeking access to section 375A documents that you assert were not released and seeking an adjournment of the proceedings for 14 days pending the release of additional documents you claim were the subject of the certificate. The Tribunal also notes your request to summons CA. The Tribunal, in correspondence to you, confirmed that all of the documents that were the subject of the section 375A certificate had been released in full and that the Tribunal would not be postponing the hearing on the requested basis, and confirming that the scheduled hearing would go ahead. The Tribunal will not be summonsing CA.
The Tribunal received an additional request from you to adjourn the hearing received at 6.40 am on 2 October 2019. The Tribunal notes that this request was made outside business hours, but that it has been duly considered. The request was on the basis that the applicant had to care for his son and would not be able to attend the scheduled hearing on that basis. In support of this, a medical certificate dated 1 October 2019 was provided by Dr Masood Seyfi from Lakes Boulevard Medical in South Morang, which states that "Master Daksh Jaiswal has a medical condition and will be cared for by Mr Amit Jaiswal from 2 October to 3 October 2019". The medical certificate does not provide any details as to the medical grounds precluding the applicant's attendance at the hearing, nor does it explain why the child's mother is unable to care for the child whilst the hearing proceeds nor why the applicant is unable to attend the hearing by telephone [emphasis added].As such, the Tribunal has determined that the hearing will proceed on 2 October 2019. The Tribunal has, accordingly, rescheduled the hearing to 2.30 pm this afternoon. If you have any questions, please email at this date or contact the numbers listed below …
The invitation to attend a hearing was also attached. That invitation was identical to the earlier invitations, though the time had changed to 2.30 pm Victorian time. Of note, there is nothing in the invitation that speaks of how it is that the applicant - can attend by telephone. However, it does say this:
If you do not attend the scheduled 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 information before us. A dismissed case can be reinstated if the member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the member confirms the dismissal, the decision under review is taken to be affirmed.
The Tribunal did not receive any other contact from the applicant or the applicant's representatives. At 2.30 pm, the AAT convened, and the applicant. did not turn up.
The Tribunal gave a decision, going through part of that history that I have already mentioned. The Tribunal reiterated that all of the material sought by the applicant had been released to them. At paragraph 9 of that decision, the Tribunal said:
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 the review applicant was properly invited to a hearing. In addition to this, the Tribunal forwarded SMS reminders to the applicant on 24 September at 11.02 am and 1 October 2019 at 11.02 am. No satisfactory reason for the non-appearance has been given. 10. 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 then sent out the usual letters explaining that the application had been dismissed, and that the applicant was entitled to make an application for reinstatement. The letter, which is a form letter, states that:
In a reinstatement application, you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration in deciding whether your reinstatement application should be granted.
The applicant did send through an application for reinstatement, requesting the reinstatement of the case, asking the Tribunal to make a determination on the validity of 900 hours voluntary work experience with a statement of reason and providing a statement of reason for refusing to summons CA. The applicant, in a statutory declaration, stated that:
My child was sick from 30 September 2019 to 5 October 2019. My wife took a day off on 1 and 4 October, and I took two days off from 2 and 3 October 2019.
On 18 October, the Tribunal gave its reasons for confirming the decision to dismiss the application. The Tribunal went through the history of the matter and the communications that had been made between the representatives of the applicant and the Tribunal.
At paragraph 26 and following, the Tribunal wrote this:
In the request for reinstatement, the applicant provided a statutory declaration, stated 15 October 2019. With regard to the sickness of his child, the applicant stated, quote, “That my child was sick, from 30 September 2019 to 5 October 2019, that my wife took a day off on 1 and 4 October, and I took two days off on 2 and 3 October 2019”.
The Tribunal has considered the applicant's statutory declaration of 15 October 2019. The Tribunal has considered the submissions and declarations provided with the reinstatement request which addressed the substantive issues in the review. The only component of the submission which pertains to reasons for reinstatement are at points 1 and 2 of the applicant's statutory declaration of 15 October 2019 in regard to having care for his son leading to his non-attendance.
The applicant's statutory declaration of 15 October 2019 does not, in the view of the Tribunal, provide a satisfactory explanation for the applicant's non-attendance at the hearing on 2 October 2019. The submission notes that the applicant's child was sick from 30 September 2019 to 5 October 2019. The applicant's statutory declaration advises that his wife took 1 and 4 October 2019 off work to look after the child, and the applicant took 2 and 3 October 2019 off work. As has been noted above, the applicant was invited to attend the hearing in a letter dated 28 of August 2019. The applicant was given an excessive one month's notice of the time and date of hearing. The evidence for reinstatement provided by the applicant indicates that in order to care for their child, he and his wife took two days off work each. There is no evidence as to why the applicant was precluded from looking after his son on 1 and 4 October, or why his wife was precluded from looking after their son, when the applicant was required to attend the scheduled hearing on 2 October 2019. There has been no evidence provided as to why the applicant was not able to participate in a Tribunal hearing by telephone.
The medical evidence of 1 October 2019, along with the statutory declaration provided by the applicant, dated 15 October 2019, do not, in the view of the Tribunal, provide an adequate explanation as to why the applicant was prevented from attending and participating in the Tribunal hearing scheduled for 2 October 2019.
The decision to dismiss the application is confirmed. In these circumstances, the decisions under review are taken to be affirmed.
As noted before, the applicant filed this application very soon after. The grounds of the application were these:
The decision of the Tribunal to refuse to reinstate the application and to dismiss the application was affected by jurisdictional error, in that the Tribunal failed to consider matters advanced in support of reinstatement, namely the intention of the applicants to prosecute the case and to question witnesses in the Tribunal hearing.
The decision of the Tribunal to refuse to reinstate the application and to dismiss the application was affected by jurisdictional error, in that the Tribunal applied an interpretation of the test for when it was appropriate, "To reinstate the application within the meaning of section 362B(1)(c) of the Migration Act". That was too narrow.
The decision of the Tribunal to refuse to reinstate the application and to dismiss the application was unreasonable.
As I said at the beginning of the hearing, O'Bryan J gave his decision in Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479 on 17 May 2023. His Honour referred to the observations of Colvin J in an earlier case of Singh v Minister for Immigration and Border Protection [2018] FCAFC 184, in which, at paragraph 29, the Court said this:
When section 362B(1)(c) says that on application for reinstatement the Tribunal must, if it considers it appropriate to do so, reinstate the application, it imposes a statutory responsibility on the Tribunal to form an opinion or make an assessment as to whether reinstatement is appropriate, having regard to all the circumstances advanced to support reinstatement. In such a context, the word appropriate connotes two aspects: fitness and propriety. That is, in order to be appropriate, something must be both suited to the particular circumstances as well as sensible, right and proper.
In Mitchell v R [1996] HCA 45, it was said by Dawson J, Toohey J, Gaudron J, McHugh J and Gummow JJ, that:
The phrase “considers appropriate” indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper.
Relevantly for present purposes, the use of the word “appropriate” requires the Tribunal to make an assessment of all the matters that are advanced to support reinstatement. If more is raised on an application to reinstate than the single issue as to whether the applicant was notified of the scheduled hearing, then the Tribunal could not properly form a view as to whether reinstatement was appropriate by confining consideration to the facts concerning notification.
At paragraph 47 and 48 of Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479, O'Bryan J wrote, 47:
47.In my view, the considerations that have been found to be relevant to the exercise of the discretion in section 42(9) of the AAT Act and the Federal Court Rules referred to above are equally relevant to the exercise of the discretion under section 362B(1)(c) of the Act. Namely, whether the applicant has a reasonable or acceptable excuse for their absence at the hearing of their substantive application, and whether the application for review has sufficient merit to warrant the reinstatement. That is not to suggest that those two factors are exhaustive of potentially relevant considerations. Other considerations may include the applicant's conduct generally in progressing their review application, and the prejudice to either party or to the wider public, if any, arising from reinstatement.
48.Further, having regard to the subject matter scope and purpose of the power to reinstate in section 362B(1)(c), I consider that it is implicit that the question whether the applicant has a reasonable excuse for their absence at the hearing of their substantive application is a mandatory consideration for the Tribunal. That implication arises from the statutory context as referred to earlier. First, by section 360, the Tribunal is required to afford the applicant a hearing at which the applicant can give evidence and present arguments. Second, the power of dismissal under section 362B(1)(a) and (b) is exercisable if the applicant does not appear at the hearing. It necessarily follows from that context that the reason for the failure to appear is a mandatory relevant consideration.
The applicant submits that when the Tribunal stated, at paragraph 27 of their reasons, that the only component of the submission which pertains to reasons for reinstatement are points 1 and 2 of this statutory declaration, that the Tribunal was very much in error. It is true to say that the only aspects of the applicant's statutory declaration that go to the excuse as to why he did not turn up were points 1 and 2 of the statutory declaration, but the applicant contends that there are more than just the fact of the excuse as to why it did not turn up for the Tribunal to consider as to the appropriateness of a reinstatement.
The applicant has submitted that they had made it clear that they wished to prosecute the case. They made it clear that they thought that they did not have all of the material. They made it clear that they wanted to ask questions of CA. And, having made those points before, the considerations for the Tribunal should have been, firstly, what had been previously submitted by the applicant; secondly, that the applicant and the representatives did not turn up on 2 October; and thirdly, the excuse that the applicant's child was sick. These considerations combined should have been the basis of any decision as to whether it was appropriate to reinstate.
The applicants point to the fact that there was still confusion as to whether they did have all of the material, notwithstanding the fact that the Tribunal had said on two occasions, that is, 30 September and 1 October 2019, that the Tribunal had given the applicants every bit of material that they had. The fact that the s 375A certificate talked about other matters, notwithstanding whether the Tribunal had that or not, meant that the applicant was entitled to get more information about those matters. The applicant submitted that the Tribunal rebuffed and ignored those matters.
The submission is that looking at the reasons given by the Tribunal, there has been a focus on the reason why there was the failure to appear.
What was said by O'Bryan J is instructive, in that the mandatory relevant consideration is the failure to appear. In many ways, when one looks at a matter such as this, the reason for the failure to appear is not just the mandatory relevant consideration, but it would also be the major relevant consideration.
The Minister has made the submission that, whilst the applicants point to the number of other issues, those issues are really said to demonstrate the intention of the applicants to prosecute the case and the intention to question persons who are on the outskirts of the decision. The submission is that intention and engagement are not mandatory considerations, and that there is no obligation on the Tribunal to consider them. The case of the intention to prosecute this matter was certainly spoken of in the decision, having regard to the history that was given by the Tribunal member in their reasons.
The Tribunal had consideration of what it termed a long history of the matter. The Minister says that if, in the consideration, the Tribunal decided to stick to the mandatory relevant consideration identified by O’Bryan J in paragraph 48 of Kumar, then it cannot be said that the Tribunal has erred in failing to consider that intention of the applicants to prosecute the case.
I note, in that context, that the letter sent by the representatives for the applicant noted that they intended to raise a number of issues with the Tribunal. However, they did not turn up on 2 October to actually raise those matters before the Tribunal as they said that they would. It seems to me that this is a significant factor in deciding whether or not it was an error to not consider those other aspects, if it were that the Tribunal had not considered them at all.
In my view, the Tribunal, in going through the history of the matter, and especially the recent history of the communications between the Tribunal and the legal representatives, did consider those matters, but found it well and truly outweighed by the mandatory consideration.
Even if I am wrong about that, it seems to me, having considered the mandatory consideration, that it cannot be said there that, if there were other considerations that were not mandatory for the Tribunal to consider, then it cannot be said that such amounted to a jurisdictional error. For those reasons, ground 1 fails.
Ground 2 overlaps ground 1, in that the applicants submit that the concept of whether something was “appropriate” was not correctly interpreted by the Tribunal. In that respect, the applicant points to what is written in paragraph 47 of Kumar, which I have already read into the record, where His Honour speaks to matters that are relevant to the exercise of the discretion; that is, whether the application has sufficient merit to warrant the reinstatement, and the applicant's conduct generally in progressing their review, and the prejudice to either party and the wider public, if any, arising from reinstatement.
However, those are matters that go to discretion and not whether matters are “appropriate”. The aspect of whether something is “appropriate” is, as the authorities have said, an exercise in looking at all of the circumstances combined. When one then tempers what is said in paragraph 47 with what is followed up in paragraph 48 of His Honour's decision, it seems to me that the Tribunal has looked generally at all of the circumstances of this case. It has followed the history all the way through.
It was submitted by the applicant that the Tribunal was using the fact that this matter had dragged on for quite some time as some form of, to use my words, albatross around the neck of the applicant, and that the time had come where enough was enough. I disagree with this characterisation. Rather, it is the engagement by the Tribunal with all of the circumstances that surround what has led to the non-appearance and then focusing as the mandatory consideration (which is the actual reason given for the non-appearance). This is why ground 2 overlaps somewhat with ground 1.
I am not convinced that the Tribunal applied an interpretation of the test of whether something was “appropriate” that was too narrow. In my view, the Tribunal did apply the test for when it was appropriate to reinstate in a proper manner, and ground 2 therefore does not illustrate any jurisdictional error. Ground 2 therefore fails.
Ground 3 is the ground in which I saw the most merit. Whilst it is that the ground says that the decision to refuse to reinstate the application was unreasonable, the focus of this ground is on paragraph 29 of the Tribunal’s reasons.
The Tribunal looked at the applicant's excuse that he needed to look after the child, and the carer certificate signed by a doctor. The problems with that were well and truly looked at by the Tribunal, and no realistic criticfism can be made of the Tribunal's conclusion as to the sickness of the child not being a sufficient excuse for non-attendance, especially given that the applicant has known for quite some time that his application was going to be heard on 2 October.
As I said, during the course of argument, it may look as though, on a reading of the applicant’s statutory declaration, that he was telling the Tribunal that the only reason he was taking 2 October and 3 October off was his son's illness. But that would indicate that, if the son was not ill, he would be going to work on 2 October when he had, for over a month, known that 2 October was the date of his hearing. So, I have no issue with regard to that reasoning of the Tribunal being not unreasonable.
It is the last sentence of paragraph 29 that has given me some trouble. That sentence, as I have already read into the record, says that:
There has been no evidence provided as to why the applicant was not able to participate in a Tribunal hearing by telephone.
One must remember that, in October 2019, attendances at Courts and Tribunals by telephone was not de rigueur, as it was during the pandemic, and has continued to be since things got back to normal. In 2019, in my experience, there was the usual need for Courts to either invite people to attend by video link or telephone or respond to requests from persons to attend by telephone or video link.
If one only looked at the reasons of the Tribunal, there was nothing there that indicated that the Tribunal was even open to telephone evidence at the time of the non-appearance. It was only when I went through the Court Book and saw that, at CB 340, that the email sent shortly after 11 am, on 2 October, after the applicant had not turned up, contains this admonition to the applicants regarding the medical certificate. It is almost word for word with what is written in paragraph 29. The Tribunal wrote the following to the applicants:
The medical certificate does not provide any details as the medical grounds which precludes the applicant's attendance ... nor why the applicant is unable to attend the hearing by telephone. As such, the Tribunal has determined that the hearing will proceed.
It seems to me by writing that, just after 11 o'clock, the Tribunal was making it clear that the medical certificate did not preclude an appearance by telephone, and, if the applicant made such an application by telephone, then it would be considered in a positive way.
Notwithstanding that the revised invitation to attend a hearing did not specifically speak of how to attend by telephone, the covering letter said that:
If you have any questions, email at this particular email address, or contact the person on the telephone number below.
And the telephone number was provided.
There was no email or telephone call to the Tribunal between 11.15 am and 2.30 pm enquiring as to how one could attend by telephone. There was just simply no appearance, either by the applicant in person or by his representatives. With this background, as the Minister has submitted the statement, the last sentence in paragraph 29 can therefore be put into its proper context.
As the Minister submitted to me, it may be somewhat harsh, but it is not unreasonable. The letter, sent after 11 am that morning, left open the possibility of appearance by telephone. The applicant did not answer, or make inquiries, or do anything to look at that possibility. The applicant seemingly just ignored the email sent by the Tribunal and the fact that they had postponed the matter to 2.30 pm to assist with the applicant's convenience, notwithstanding that no one turned up at 10 am.
It seems to me then that it is not possible to say that, in pointing out that there had been no evidence provided as to why the applicant was not able to participate in the Tribunal hearing by telephone, such a statement could be said to be unreasonable in those circumstances. Therefore, ground 3 also fails.
The result of all of that is that I dismiss the application with costs fixed in the amount of $8,371.38, which is the scale amount.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of Judge Vasta. Associate:
Dated: 16 June 2025
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