Kaur v Minister for Immigration
[2020] FCCA 2610
•23 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2610 |
| Catchwords: MIGRATION – Show cause application – temporary student visa – where delegate not satisfied applicant was a person who genuinely intended to remain in Australia temporarily – where applicant notified of hearing – where applicant advised she would proceed before Tribunal – where applicant failed to appear before Tribunal for hearing – where applicant failed to apply for reinstatement within 14-day limitation period – applicable principles – application dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.67, 68 |
| Cases cited: Agar v Hyde (2000) 201 CLR 552 |
| Applicant: | HARPREET KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1949 of 2018 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 16 September 2020 |
| Date of Last Submission: | 16 September 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 23 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. Oldham |
| Solicitors for the Applicant: | Mr Hargobind Singh Jholl |
| Solicitor advocate for the Respondents: | Ms F. Lay |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Pursuant to r 44(1)(a) of the Federal Circuit Court Rules 2001, the amended application dated 4 September 2020 be dismissed.
The applicant pay the costs of the first respondent fixed at $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1949 of 2018
| HARPREET KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 4 September 2020, judicial review is sought of decisions of the Administrative Appeal Tribunal (Tribunal) made on 13 June 2018 and 5 July 2018, dismissing, and confirming the dismissal of, the application for non-appearance. The application sought judicial review of a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Student (Class TU subclass 573) visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
The application should be dismissed. In summary, I have concluded that, having sent to the applicant’s appointed agent a valid invitation to attend a scheduled hearing, the Tribunal was authorised to dismiss the application upon her non-appearance. There was nothing legally unreasonable attending that decision. Once that is accepted, the attack on the exercise of discretion is without substance. Further, upon the applicant being notified of her entitlement to seek reinstatement and her failure to do so, the Tribunal was obliged to confirm its decision.
Background
The applicant, an Indian citizen aged 27 years, first came to Australia on 22 August 2013 holding a Student (Class TU subclass 573) visa that had been granted while she was offshore.
On 30 June 2016, the applicant applied for the visa.
On 22 September 2016, a delegate of the Minister refused the application on the ground that he was not satisfied the applicant satisfied the English language requirements of Sch 5A for the purposes of the Migration Regulations 1994 (Regulations); Sch 2, cl 573.223(2)(a).
Following her application for merits review and supplying her English test results dated 7 June 2017 for its consideration, on 28 June 2017, the Tribunal remitted the application for reconsideration, doing so on the basis that the applicant now satisfied English language proficiency requirements as required by cl 573.223(1A)(1)(a)(i) of the regulations.
On 5 July 2017, the delegate requested the applicant provide evidence of her studies and a statement addressing the genuine temporary entrant criteria applicable to the granting of her visa. She did so.
On 26 July 2017, the applicant made a written submission to the delegate and supplied certain educational proofs for consideration.
On 17 August 2017, a delegate of the Minister refused the application on the basis that he was not satisfied the applicant was a genuine applicant for entry and stay in Australia and so did not meet the criterion in Sch 2, cl 573.223(1), of the regulations. The delegate’s decisional record noted that from an examination of PRISMS records, the applicant had enrolled in some thirteen courses, of which she had completed only three. The delegate also considered the matters identified in Ministerial Direction No 53 (Direction No 53) and concluded that he was not satisfied the applicant genuinely intended to stay in Australia temporarily.
On 5 September 2017, the applicant applied to the Tribunal for a review of the delegate’s decision made on 17 August 2017.
On 16 May 2018, the applicant was invited by the Tribunal to attend a hearing, scheduled for 13 June 2018. Attached to the invitation was a copy of Ministerial Direction No 53.
On 5 and 12 June 2018, SMS messages were sent to the applicant’s mobile phone number reminding her of the scheduled hearing date.
On 5 June 2018, the applicant responded to the Tribunal indicating that: (a) she was no longer represented by her migration agent; (b) she would, however, be attending the hearing; and, (c) she did not require the assistance of an interpreter. The applicant also submitted details of her educational history since arriving in Australia and a ‘Certificate of Completion’ setting out that she had completed a Diploma of Hospitality Management. It does not applied that she supplied a copy of the submission dated 26 July 2017 which she had made to the delegate.
On 13 June 2018, the applicant did not appear before the Tribunal when called. There is no evidence that the applicant communicated with the Tribunal that she would be unable to attend or any reason why she could not do so. It was accepted that the Tribunal’s decision to dismiss the application was not made until some three hours after the time at which the hearing had been scheduled to commence.
On 13 June 2018, the Tribunal dismissed the application for review (non-appearance decision) and confirmed that decision on 5 July 2018 (confirmation decision). The Tribunal gave reasons for each of those decisions (Reasons).
On 14 June 2018, the Tribunal notified the applicant’s agent of its non-appearance decision and informed her that she could apply for reinstatement of her application but that the application must be made before 28 June 2018. An information sheet provided to the applicant informed her that if she failed to apply for reinstatement within the 14-day period, the Tribunal must confirm the decision to dismiss the application. The applicant did not apply for reinstatement of the application for a merits review of the delegate’s decision.
On 5 July 2018, the Tribunal notified the applicant’s agent of its confirmation decision made on that date. The applicant was provided copies of the Reasons for each of the Tribunal’s decisions.
Tribunal decisions
By its non-appearance decision dated 13 June 2018, the Tribunal noted:
a)the applicant had been invited to appear before the Tribunal under s 360 of the Act, and advised that if the applicant ‘did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before the Tribunal’: [1];
b)the applicant had been sent two SMS reminders: [2];
c)upon there being no appearance and having reviewed the file, the Tribunal was satisfied the applicant had been properly invited to a hearing in accordance with s 379A(5): [3];
d)detailed submissions had been filed by the applicant’s agent together with a completed hearing form confirming the applicant’s intention to appear at the scheduled hearing: [4];
e)no explanation had been given for the non-appearance: [4];
f)the Tribunal decided to dismiss the application without further consideration of the application: [5].
By its confirmation decision dated 5 July 2018, the Tribunal found that:
a)the applicant had been notified of the decision to dismiss her application and provided a copy of the decision and the reasons for that decision;
b)the applicant was advised that ‘reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for a reinstatement within the 14 day period would result in confirmation of the dismissal decision’: [3];
c)as the applicant had not applied for reinstatement of the application within the 14 day period, ‘the decision under review is taken to be affirmed’: [4].
Procedural history
On 5 July 2018 (being the date of the Tribunal’s confirmation decision), the applicant filed an application for judicial review of the Tribunal’s non-appearance decision together with an affidavit sworn by the applicant to which she exhibited a copy of the Reasons for that decision and deposed that on 13 June 2018, she had been unwell with influenza and unable to get out of bed. Her affidavit did not suggest any other reason why she had not attended the hearing or seek to suggest that she was not aware of the scheduled hearing date.
On 30 July 2018, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision failed to establish any jurisdictional error.
On 30 October 2019, orders were made regulating the preparation of the matter for trial and an order was made that the matter proceed by way of a show cause hearing.
On 4 September 2020, the applicant filed an amended application for judicial review by which she abandoned the five original grounds of review and raised two new grounds in their place. Ground 2 was then abandoned at the hearing.
Show cause hearing
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: Act, s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: Act, s 476(2).
Rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) confers power on the Court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief.
The course which the Court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). In seeking to satisfy the Court that there is an arguable case, the applicants are confined to the relief sought and the grounds mentioned in the application for judicial review: r 44.13(1). If the Court is not so satisfied, it may dismiss the application: r 44.12.
An order under r 44.12(1) is an interlocutory order: r 44.12(2).
The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal.[1] As the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled.[2]
[1] MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6, [10] (Smith J).
[2] Spencer v The Commonwealth (2010) 241 CLR 118.
Caution must be exercised when considering whether to grant summary judgment. Such caution is equally appropriate upon the determination of a show cause hearing. The power to grant summary judgment is expressed in permissive terms; the Court may give judgment and may order that it be dismissed generally or in relation to any claim.
Critically, in the case of summary judgment, the power is not engaged unless the Court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding. The power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the Court that an arguable case for relief has been raised.
In Upaid Systems Ltd v Telstra Corporation Limited,[3] Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra, stated a series of further propositions, including the following:
(a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
(b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
(c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;
(d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;
Those propositions were endorsed in Nichol v Discovery Africa Ltd.[4]
[3] [2016] FCAFC 158, 122 IPR 190, [46]-[49].
[4] [2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).
In SZUTB v Minister for Immigration & Border Protection, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application.[5] In Siddique v Minister for Immigration and Border Protection,[6] Gilmour J explained that it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.” That is, a residual discretion remains to be considered. Those decisions do not appear to address the position of how the exercise of a residual discretion falls to be considered if the court has concluded that no reasonably arguable case has been demonstrated. At first sight, there would seem be only rare cases in which it was exercised favourably.
[5] (2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J)
[6] [2014] FCA 1352, [21].
As concerned the proper approach to the determination of a show cause application, the applicant relied upon a statement in Agar v Hyde,[7] where Gaudron, McHugh, Gummow and Hayne JJ observed:
Ordinarily , a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. [Emphasis added]
[7] (2000) 201 CLR 552, [57].
Contrastingly, Gleeson CJ considered that if it was proper to conclude that the claims were bound to fail, then the plaintiffs ought not be permitted to proceed.[8] Agar v Hyde concerned the exercise of power upon an application to set aside service of process on a foreign party.
[8] (2000) 201 CLR 552, [9]; see also at [106]-[109], (Heydon J).
The authorities considered above express the test applicable to the determination of a show cause hearing in somewhat different terms. Equally, Upaid Systems held that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success. The threshold is lower than hopeless or bound to fail.
The point of underlying significance is that, whether the court is concerned to determine an application for summary judgment, to strike out a claim, to set aside service outside of its jurisdiction or, as here, upon a show case hearing, it is exercising a power conferred on a court that is constrained by the terms in which the particular rule is framed. Each of those rules are directed to different ends.
The applicant further submitted, in reliance upon Siddique,[9] even where the court was satisfied that there was no arguable case, it still must consider whether to exercise its residual discretion as to whether or not to dismiss the application. While the breadth of that submission may be questioned, accepting that the Court must consider whether or not to exercise its residual discretion to allow a proceeding to go forward to a full hearing, at the least, a conclusion that there was no arguable case must be a significant factor which informs whether or how that discretion might be exercised. As counsel accepted, in Siddique the applicant was able to point to some circumstances which might militate in favour of an assessment whether that residual discretion ought to be exercised.
[9] [2014] FCA 1352.
Consideration
It was not in dispute that the applicant failed to appear before the Tribunal and also failed to apply for reinstatement of the application. The Tribunal dismissed the application for non-appearance pursuant to the power conferred on it by par 362B(1A)(b) of the Act and confirmed that decision pursuant to the power conferred on it by par 362B(E) of the Act.
The amended grounds of review as advanced by the applicant contained two grounds of review. As stated, Ground 2 was abandoned.
Ground 1 – relevant considerations
Ground 1 of the amended application reads:
The Second Respondent fell into jurisdictional error by failing to take relevant considerations into account prior to exercising its power to dismiss, and confirmed the dismissal of, the Applicant’s review application.
Particulars
(a)The applicant failed to appear before the Second Respondent on the listed hearing date;
(b)Prior to the hearing the applicant provided submissions to the second respondent in support of her application
(c)The applicant’s submissions were relevant to the question of her being a genuine temporary entrant to Australia;
(d)The Second Respondent also had before it the decision of the First Respondent, all relevant documents relating to the First Respondent’s decision and Ministerial Direction No.53.
The applicant submitted that the documents which she had supplied to the Tribunal were intended to form the basis of a contention that she was a genuine and temporary entrant to Australia and, accordingly, entitled to the granting of a student visa. It was further submitted that prima facie, those documents set out her academic progression and that the Tribunal had acknowledged receipt of her submissions.
It was further submitted that all documents provided by an applicant in relation to a visa application under review must be given to the Tribunal within 10 days of the application for review being made.[10] On this basis, while there is no suggestion the applicant had supplied the Tribunal with a copy of the submission made on 26 July 2017 (when she responded to the Tribunal hearing invitation on 5 June 2018), it may be assumed that her submission had been supplied to the Tribunal in conformity with s 352 of the Act. In any event, the non-appearance decision confirms that those submissions had been received by it.
[10] Act, s 352(4).
The applicant further submitted that the provision of such documents indicated a willingness to engage in the hearing process and that there was sufficient material before the Tribunal to enable a decision on the papers to be made pursuant to s 362B(1A)(a) of the Act.
While the applicant submitted that it was arguable s 362B(1A)(a) of the Act gave the Tribunal “a discretion”, it was said that a failure to recognise and address the matters and material put forward by an applicant amounted to a jurisdictional error. Reliance was placed upon Kaur v Minister for Immigration and Border Protection.[11] In my view, that decision is readily distinguishable from the present. Kaur was not a case concerned with dismissal for non-appearance. It concerned the obligation of an administrative decision-maker to consider the entirety of an applicant’s claims and issues of legal unreasonableness.[12] Counsel for the applicant eschewed any suggestion that the challenge advanced here was put on the basis of legal unreasonableness.
[11] [2014] FCA 1046, [48]-[49] (Mansfield J).
[12] [2014] FCA 1046, [41].
Counsel submitted that the Tribunal was required to correctly construe and consider each of the applicant’s claims (including each element or integer of each claim), including claims that were expressly raised by an applicant or are apparent on the material before the Tribunal.[13] While those propositions are well established, they arise in the distinct situation where a visa applicant is required to identify each of the claims upon which a visa is sought. In the present case, the delegate was concerned to consider whether he or she was satisfied that the applicant was a genuine applicant for entry and stay as a student: reg’s cl 573.223(1).
[13] Counsel relief upon Htun v Minister for Immigration (2001) 194 ALR 244; [2001] FCA 1802, at [42] (Allsop J, with whom Spender and Merkel JJ agreed); Dranichnikov v Minister for Immigration (2003) 197 ALR 389; [2003] HCA 26, at [22]-[24], [27] (Gummow and Callinan JJ), [88]-[89] (Kirby J), [95] (Hayne J)) NABE v Minister for Immigration (No 2) (2004) 144 FCR 1; [2004] FCAFC 263, [58]-[61] (Black CJ, French and Selway JJ).
As the delegate’s decision was a Pt 5 Reviewable decision, the Tribunal’s review was governed by Pt 5 of the Act which is arranged in nine Divisions comprising ss 336M-379G. Division 5 of Pt 5 of the Act regulate the Conduct of review and provides, by s 357A, that that division is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals.
Relevantly, the Tribunal is obliged to invite a review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. In the present case the issue arising in relation to the delegate’s decision was whether the applicant was a genuine applicant for entry and stay as a student. Section 360A addresses the matters of which an applicant must be notified.
Section 362B of the Act concerns the conduct of review where an applicant fails to appear before the Tribunal. It is structured so as to: define its scope; confer powers to proceed to make a decision, or to dismiss a proceeding; allow for reinstatement of a proceeding; and, allow for other measures to be taken (such as rescheduling a hearing or delaying the making of its decision).
The Tribunal’s power to proceed to dismiss an application due to the applicant’s failure to appear under s 362B(1A) is contingent upon the issuing of a valid invitation under s 360 given in accordance with the requirements of s 360A of the Act. In this case, it was accepted that the Tribunal had properly invited the applicant to attend the scheduled hearing and it was not suggested that the hearing invitation was invalid.
I am satisfied that the invitation was valid as it: contained an invitation to the applicant to appear before it to give evidence and present arguments;[14] notified her that she could give the Tribunal written notice to obtain oral evidence from a person or persons;[15] notified the applicant of the specified day, time and place of the hearing;[16] was given to the applicant’s authorised recipient by one of the means specified;[17] provided her with a period of notice in advance of the hearing that was at least the prescribed period of 14 days;[18] and, contained a statement describing the effect of s 362B and the consequences if the applicant failed to appear at the scheduled hearing.[19]
[14] Act, ss 360(1), 361(1)(a).
[15] Act, s 361(1)(b).
[16] Act, s 360A(1).
[17] Act, ss 360A(2), 379A (namely, by transmitting the document by email) as required by s 379G(1).
[18] Act s 360A(4) (as specified by reg 4.21(4) of the Regulations).
[19] Act, s 360A(5).
As the applicant was validly invited to attend the hearing in accordance with those statutory requirements, her failure to attend the scheduled hearing on 13 June 2020 engaged the Tribunal’s powers under s 362B.
Once the Tribunal had complied with its obligations to issue a valid invitation under s 360A, it was not obliged to take additional steps to ensure that the applicant was aware of the Tribunal hearing.[20]
[20] Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39] (Spender, French and Cowdroy JJ); NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 (Greenwood J).
By sub-s 362B(1A) of the Act, the Tribunal was authorised to make a decision on the review or to dismiss the proceeding. It was accepted that the power conferred by this provision is expressed in ambulatory terms. Where, as here, sub-s 362B(1A) of the Act applied to the Tribunal’s conduct of the review, it was open to the Tribunal to exercise its discretion under s 362B(1A)(b) to dismiss the application without any further consideration of the application or information before it. Kaur was decided in a very different context from s 362B(1A) of the Act.
In NBBL v Minister for Immigration and Multicultural and Indigenous Affairs,[21] Greenwood J refused leave to amend a notice of appeal upon concluding that the proposed ground had no prospect of success. The appellant, who indicated an intention to appear before the Tribunal, had failed to do so. The Tribunal exercised the power conferred under Pt 7 of the Act by s 426A[22] to make a decision without taking any further action to allow or enable the applicant to appear. Application was made to amend the notice of appeal so as to advance a ground that the Tribunal had erred in the exercise of discretion by proceeding under s 426A as the applicant had indicated an intention to attend the hearing. In rejecting the application for leave to amend, his Honour held that:
If there is no further obligation falling upon the Tribunal to search and discover a method of communication with an applicant in the circumstances of Minister for Immigration and Multicultural Affairs v SZFHC (once compliance with ss 425 and 425A is demonstrated), it seems to me that the Tribunal is entitled to rely upon the express written statement of the appellant of his intention to appear as a basis for proceeding to make a decision on the review on the footing that the applicant has made an election not to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Greenwood J held that the proposed ground had no prospect of success.
[21] (2006) 152 FCR 592, [22]-[25].
[22] In Pt 7 of the Act, s 426A is in near identical terms as are provided in Pt 5 by s 362B.
In this case, the Reasons for the non-appearance decision confirm that the Tribunal was aware the applicant had filed submissions. When the applicant failed to appear before the Tribunal, the fact that the applicant had provided submissions to the delegate (and some materials to the Tribunal) did not compel it to make a decision on the review pursuant to s 362B(1A)(a). I agree in the Minister’s submission that while the discretion conferred by s 362B must be exercised reasonably, the Act discloses a legislative intent that allows the Tribunal to consider the exercise of its powers under s 362B, once the preconditions are met: Minister for Immigration and Border Protection v SZVFW (SZVFW).[23]
[23] (2018) 264 CLR 541.
As the power conferred by s 362B(1A), was engaged the question arises as to what error was committed by the Tribunal and whether it was jurisdictional. The applicant accepted that she had been notified of the hearing and indicated her intention to appear. There was no evidence of an intention or inability to do otherwise. The Tribunal did not make that decision immediately but waited some hours before doing so. In exercising its discretion under s 362B, the Tribunal was not required to make a decision that was advantageous to the person affected by the exercise of that power.[24] In SZVFW,[25] Nettle and Gordon JJ stated that:
. . . there are cases in which the nature of the subject matter on review and the manner of the exercise of the review, may, on occasion, mean that the power may be exercised and the function or duty must be performed from time to time, as occasion requires, in order to arrive at the correct or preferable decision in the case before the Tribunal according to the material before it. But, of course, the exercise of the discretion in s 426A does not require the Tribunal to postpone or refrain from making a decision on a review every time an applicant suggests they wish to provide further information, cannot meet a deadline, or fails to appear. (Emphasis added)
In my view, this statement of principle applies equally to s 362B(1A). There was nothing in the nature of the subject matter of this review or in the manner of the Tribunal’s exercise of power which would warrant a conclusion that it was not open to dismiss the present application.
[24] (2018) 264 CLR 541, [15] (Kiefel CJ), [96] (Nettle and Gordon JJ).
[25] (2018) 264 CLR 541, [96].
Counsel for the applicant quite properly accepted that there was nothing in the nature of the case to suggest that the non-appearance decision was in anyway capricious and, while submitting that the ground of review might have been framed in terms of legal unreasonableness, accepted that such a ground had not been pressed. In any event, to adapt the reasoning in SZFVW, the decision to dismiss the proceeding was one made within that area where the Tribunal had a genuinely free discretion which resided within the bounds of legal reasonableness.[26]
[26] (2018) 264 CLR 541, [51], [97].
Upon the making of the non-appearance decision, in accordance with s 362C(5) of the Act, the Tribunal notified the applicant of the making of that decision. The notification, which was sent by an authorised means[27], and was given within 14 days of the date on which the decision was taken to have been made,[28] included an information sheet that if the applicant failed to apply for reinstatement of the application within 14-days, the Tribunal “must confirm the decision to dismiss the application.” Once the Tribunal had made the non-appearance decision, it had no power to vary or revoke that decision.[29] However, where, within 14 days of the non-appearance decision, an application was made to reinstate the application,[30] power was conferred to determine any application for reinstatement and if the application was reinstated, it was taken never to have been dismissed.[31] No such application had been made.
[27] Act, ss 379A(5), 379G(1).
[28] Act, s 3362C(5)
[29] Act, s 362B(4).
[30] Act, s 362B(1B).
[31] Act, s 362B(1D).
If an applicant fails to apply for reinstatement within that 14 day period, “the Tribunal must confirm the decision to dismiss the application, by written statement under section 368” and thereupon “the decision under review is taken to be affirmed.”[32] In the present case, the Tribunal gave a written statement of its confirmation decision in accordance with s 368.
[32] Act, ss 362B(1E), 362B(1F). Failure to so notify does not invalidate the decision: Act, s 368(4).
Upon the applicant failing to apply for reinstatement of her application, the Tribunal was obliged by law to confirm the decision and was denied authority to do otherwise. In short, its hands were tied: AYT16 v Minister for Immigration & Border Protection.[33]
[33] [2017] FCA 252, [10]-[11] (Perram J).
The remaining ground of the amended application must be rejected.
Conclusion
From my examination of the Tribunal’s reasons and the material that was before it, I discern no arguable basis on which it could be said that the decision of the Tribunal was affected by jurisdictional error. I am not otherwise persuaded that the Court should exercise its residual discretion to allow the matter to go forward. The application should be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 23 September 2020
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