Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1260
•27 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1260
File number(s): MLG 4477 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 27 November 2024 Catchwords: MIGRATION – application for judicial review – student visa – failure to appear at scheduled hearing – whether refusal to grant adjournment was reasonable – whether medical evidence insufficient – whether Tribunal acted unreasonably in refusing to reinstate the applicant’s review application – whether failure to consider relevant matters – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 42A
Migration Act 1958 (Cth) ss 362B, 362B(1C)(a), 362B(1C), 362B(1C)(b), 366, 368, 426A
Federal Court Rules 2011 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 9.03
Cases cited: Gazi v Minister for Immigration and Citizenship [2013] FCA 1094
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479
NAKX v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1559
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576
Singh v Minister for Immigration and Border Protection [2018] FCAFC 184
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 941
SZJQP v Minister for Immigration and Citizenship [2007] FCA 1613Division: Division 2 General Federal Law Number of paragraphs: 80 Date of last submission/s: 24 October 2024 Date of hearing: 24 October 2024 Place: Melbourne Solicitor for the Applicants The first applicant appeared in person Solicitor for the Respondents Ms Petrovski, Sparke Helmore Lawyers ORDERS
MLG 4477 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SATINDER KAUR
First Applicant
TARLOCHAN SINGH
Second Applicant
JASLEEN KAUR (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
27 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent is amended to Administrative Review Tribunal.
3.The application for judicial review filed 18 December 2019 is dismissed.
4.The applicants pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $5,000.00.
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 CORBETT
The applicants seek judicial review of a decision of the second respondent (Tribunal) made on 27 November 2019 pursuant to s 362B(1C)(b) of the Migration Act 1958 (Cth) (the Act) confirming a decision to dismiss the applicants’ application for review for non-appearance at a scheduled hearing of the Tribunal.
The written record provided by the Tribunal pursuant to s 368 of the Act is dated 27 November 2019 (Decision) and was given to the applicants by letter on 3 December 2019. The application for judicial review was filed with this Court on 18 December 2019.
References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court on 24 October 2024 and marked exhibit “R1”.
BACKGROUND
The applicants are citizens of India. The first applicant arrived in Australia on 4 November 2008 under a Student (Class TU subclass 573) visa. That visa expired on 11 April 2011 and in 2015 the first applicant was granted a Temporary Skilled (Provisional) (Onshore) Graduate Work Stream visa which expired on 15 June 2017 (CB 76).
On 14 June 2017, the first applicant applied for a Student (Temporary) (class TU) (subclass 500) visa (visa). The accompanying family members included in the application were the first applicant’s husband and their two children (CB 1–65). The husband is the second applicant to the application for judicial review and the two children are the third and fourth applicants.
On 9 August 2017, a delegate of the first respondent (Minister) refused to grant the applicant the visa (CB 67–82).
On 17 August 2017, the applicants applied to the Tribunal for review of the delegate’s decision (CB 83–5).
On 11 January 2019, the Tribunal invited the applicants to provide further information to support the application for review (CB 97–8).
On 24 January 2019, the first applicant responded to that invitation and provided further information to the Tribunal (CB 100–112).
On 11 February 2019, the Tribunal invited the applicants to a hearing in person to be held on 1 March 2019 at Melbourne (CB 126–136).
On 28 February 2019, a migration agent retained by the applicant’s sought to postpone the hearing as “Mrs Kaur is not able to attend tomorrow’s hearing” (CB 141). Attached to that request, was a medical certificate stating that the first applicant was suffering from “hearing deficit/tinnitus plus anxiety” and will be “unfit for work” from 26 February 2019 to 5 March 2019 inclusive (CB 142). That same day, the Tribunal notified the applicants in writing that the presiding member was not prepared to grant an adjournment of the scheduled hearing (CB 147-150).
On 1 March 2019, the applicants’ migration agent wrote by email to the Tribunal (CB 151) stating (verbatim):
As per the attached Medical Certificate, Mrs Satinder could not attend the hearing this morning. She has not received any calls from the Tribunal. I would like to request for adjournment of the hearing due to the medical condition. She is also travelling overseas for further treatment and already receiving Bridging Visa B.
That email attached another medical certificate dated 1 March 2019 stating that the first applicant was suffering from “otitis media (ear infection), decreased hearing in both ears” and was “unfit for work” from 1 March 2019 to 5 March 2019 inclusive (CB 153).
On 5 March 2019, the Tribunal informed the applicants that their application for review had been dismissed (CB 154–8).
On 19 March 2019, the representative of the applicants applied to reinstate the application for review (CB 159).
On 4 April 2019, the Tribunal reinstated the application for review pursuant to s 362B(1C) of the Act (CB 164–5).
On 9 May 2019, the Tribunal invited the applicants to attend a hearing in person at Melbourne on 24 May 2019 (CB 167–170). The applicants did not appear at the hearing on that day.
On 24 May 2019, the Tribunal notified the applicants that their application for review had been dismissed (CB 176–8).
On 6 June 2019, the representative of the applicants requested that the application for review be reinstated by the Tribunal and provided a further medical certificate stating that the first applicant was suffering from “mouth ulcers” and was “unfit for work” from 24 May 2019 to 25 May 2019 inclusive (CB 179-181).
On 12 June 2019, the Tribunal reinstated the application for review pursuant to s 362B(1C) of the Act (CB 184–6).
On 13 June 2019, the Tribunal invited the applicants to attend a hearing in person at Melbourne on 28 June 2019 (CB 191-4). The applicants and their representative did not appear at the hearing that day (CB 195-7).
On 1 July 2019, the Tribunal informed the applicants that their application for review had been dismissed under s 362B(1A)(b) for non-appearance at the hearing (CB 198-200). The Tribunal delivered written reasons for that decision (CB 201-3).
On 12 July 2019, the representative for the applicants sent an email to the Tribunal stating, “Please find the attached Medical certificate” (CB 205). Three medical certificates were attached to that email. The first medical certificate stated that the first applicant has “a medical condition, suffering from gastroenteritis” and “will be unfit for work from 28 June 2019 to 28 June 2019 inclusive” (CB 207). The second medical certificate stated that the first applicant “has a medical condition, suffering from anxiety/stress and will be unfit for work from 1 July 2019 to 1 July 2019 inclusive” (CB 208). The third medical certificate repeated that the first applicant “has a medical condition, suffering from anxiety/stress and will be unfit for work from 8 July 2019 to 9 July 2019 inclusive” (CB 209).
On 3 December 2019, the Tribunal notified the applicants that their application to reinstate had been refused and the Tribunal had decided to affirm the decision under review (CB 212). The Tribunal provided written reasons for that decision dated 27 November 2019 (CB 213–7) and it is from that decision that the applicants now seek judicial review by this Court.
TRIBUNAL DECISION
After setting out the history of adjournments and reinstatements the Tribunal considered the applicants non-appearance and concluded that (CB 216-7):
(A)The primary applicant has been unable to appear at the tribunal hearing either in person, or by telephone;
(B)The secondary applicants have not appeared at the tribunal hearing either in person, or by telephone;
(C)The applicant representative, Mr Hosseinabadi has not appeared at the Tribunal with the medical evidence, or sought a postponement in person;
(D)One medical certificate stated that the primary applicant was unwell for a period of eight days inclusive (26 February to 5 March 2019), with the remaining certificates stating that the applicant was unfit for work for no more than two days inclusive;
(E)The primary applicant has mostly suffered from differing medical conditions;
(F)The primary applicant has claimed to have been unfit to appear at a scheduled hearing on three separate occasions;
(G)On any of the occasions the primary applicant has sought a postponement of the hearing she has notified the Tribunal no more than 1 day prior to the hearing;
(H)The primary applicant has supplied medical certificates which do not state the severity of the conditions suffered, or which provide a causal explanation of the conditions suffered and the inability of the primary applicant to appear, either in person or by telephone, at the scheduled Tribunal hearing times.
The Tribunal then confirmed the decision to dismiss the application for review made 1 July 2019 pursuant to s 362B(1C)(b) of the Act.
PROCEEDINGS IN THIS COURT
On 18 December 2019, the first applicant personally filed an application for judicial review. The application identified the following grounds of review (verbatim):
(1)The Tribunal made a jurisdictional error whilst making decision on application.
(2)The Administrative Appeals Tribunal member failed to consider all the aspects of the appeal and observe principles of natural justice.
(a). In considering whether the visa applicant met the visa grant criteria required by the regulations, the tribunal member failed to fully consider the fully consider the fact that the circumstances of the case were beyond the applicant’s control.
(b). The visa applicant was not at fault and yet was affected by exceptional circumstances
The application for judicial review was supported by an affidavit sworn by the first applicant and witnessed by a solicitor on 18 December 2019. In that affidavit the first applicant said (verbatim):
(1)I am the applicant in the judicial review mentioned above.
(2)The information provided is true and correct.
(3)Administrative Appeals Tribunal handed down written decision on 27 NOVEMBER 2019.
(4)The decision is attached to this affidavit.
(5)Administrative Appeals Tribunal erred in law.
On 24 January 2020, the Minister filed a Response to the application for judicial review.
On 26 February 2020, the first applicant filed a notice of address for service in which the applicants nominated Mr Imran Warraich as their solicitor.
By order of a Registrar of this Court on 8 April 2020, the first applicant was appointed litigation guardian for the third and fourth applicants. On that day the Court also ordered that the applicants file and serve the following documents, 28 days before the final hearing date:
(a)any amended application with proper particulars of the grounds of the application;
(b)any affidavits;
(c)supplementary Court Book, if any; and
(d)written submissions.
On 4 September 2024, the application for judicial review was listed for an in person final hearing to take place in Melbourne at 10:15 AM on 24 October 2024. The applicants did not file or serve an amended application, any further affidavits, any submissions or a supplementary Court Book.
On 25 September 2024, the solicitor for the applicants made a request to attend the final hearing by video link. The reason stated for that request were “I am unable to attend a hearing due to personal and other reasons”. No further reason or explanation was given.
On 30 September 2024, the solicitor for the applicant was informed that he was expected to appear in person at the final hearing and that his request to appear via video link had been denied.
On 17 October 2024, precisely seven days before the date listed for the final hearing, the solicitor for the applicants filed a notice of intention to withdraw as lawyer pursuant to r 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules).
On 24 October 2024, the hearing of the application for judicial review was listed at Melbourne. The first applicant appeared in person. Ms Petrovski, solicitor, appeared for the Minister.
The first applicant sought an adjournment of the hearing up to six or eight weeks so that she may instruct a new solicitor. The first applicant informed the Court that she received a letter from her former solicitor on Thursday 17 October 2024, saying that he could no longer act on her behalf and the applicants have been unable to find another lawyer since. The first applicant was asked by the Court what lawyers she had contacted and said that she had asked her migration agent to assist in the search for a lawyer but had been unable to secure representation in the time available.
The application for an adjournment was opposed by the Minister. It was submitted that in the absence of an affidavit or documentary evidence of the applicants’ inability to obtain legal representation for the hearing, there was no credible explanation for the adjournment. The solicitor for the Minister submitted that the Minister was ready to proceed, prepared for the hearing and the applicants had notice of the hearing date since 4 September 2024 and that legal representation should have been secured at that time.
In the circumstances, the Court was not prepared to adjourn the final hearing of the application for judicial review and required the first applicant to proceed unrepresented. The Court was not satisfied with the explanation given for the need for an adjournment, in circumstances where the application for judicial review was filed in December 2019 and there was no evidence to explain why the applicants’ former solicitor ceased to act at the eleventh hour. There was also no evidence regarding non-compliance with the orders made on 8 April 2020 or attempts to secure alternative representation or counsel for the applicants.
The Court explained the process to be followed by the Court on the hearing of the application for judicial review and explained the Decision to the first applicant. It was explained that the Tribunal had dismissed the applicants’ request to reinstate the application for review of the delegate’s decision following dismissal for non-attendance at the hearing on 28 June 2019.
The first applicant confirmed that she received and had with her a copy of the Court Book and the Minister’s outline of written submissions. The Court took the first applicant through the reasoning of the Tribunal in the Decision and asked the first applicant to explain why the Tribunal made a mistake in refusing to re-instate the application for review (CB 213-7).
The Court explained that the only issue the Court was permitted to determine was whether the Tribunal fell into jurisdictional error and that the Court could not reconsider whether the first applicant was entitled to the visa but could send the case back to the Tribunal to reconsider the application for review, if the Tribunal made a mistake that was unfair, unreasonable or contrary to law. Furthermore, it was explained that the Court was restricted to determining whether the Tribunal had made a material error in not reinstating the application for review after it was dismissed for non-appearance.
APPLICANT’S SUBMISSIONS
The first applicant submitted that she had been unwell on each of the days that the application was listed for hearing before the Tribunal. This was confirmed by each of the medical certificates. Her health was poor at each time, she frequently gets mouth ulcers and returned to India to obtain treatment for her ear infection which helped her heal.
The Court asked the first applicant why she believed the Decision was wrong. The applicant submitted that she felt unwell in the stomach the evening before the scheduled hearing on 28 June 2019, however it was too late to inform her migration agent, and she did not know how to email the Tribunal. On the morning of the hearing, the first applicant rang the Tribunal and said that she was too ill to attend. The first applicant said that her illness arose when there was no time to inform the Tribunal in advance to seek an adjournment. The first applicant said that she wanted to explain to the Tribunal that she was a good and genuine student and that she intended to study in mental health and learn to be a personal care assistant to further her career. Her husband could not attend the Tribunal on that day as he does not speak much English and did not know much about the case. The first applicant says she asked her migration agent to attend but he could not attend and did not explain why.
The Court then directed the first applicant to the application for judicial review dated 18 December 2019 and affidavit in support. The applicant was invited to explain each of the grounds of review and identify the error of law referred to in her affidavit.
The first applicant said that it was not her fault that she could not appear due to illness, that it could happen to anyone, and the Tribunal should have given her a further opportunity to be heard and explain that she was a genuine student. The first applicant referred to the medical certificates that were provided and said that the certificates explained her illness and why she could not attend the Tribunal. The first applicant said she had suffered from poor health since the birth of her twins and that it had subsequently affected her study and then her ability to attend the Tribunal hearings.
MINISTER’S SUBMISSIONS
Ms Petrovski relied on the Minister’s outline of written submissions filed 10 October 2024. In those submissions the Minister addressed the grounds of review in the application for judicial review filed 18 December 2019. The short point was that the grounds were without proper particulars, vague and unclear.
Ground two was submitted to be factually incorrect where it was alleged that the Tribunal considered whether the applicant met the visa grant criteria required by the regulations. The Tribunal did not consider any of the criteria. The merits of the visa application were not considered by the Tribunal when deciding to dismiss the application for non-appearance. Therefore, that ground of review was submitted to be meaningless. Further, fault was not a relevant consideration in determining whether to reinstate and there was no evidence of any “exceptional circumstances” save for repeated illness, which the Tribunal had requested a full medical report on yet was not provided. The Tribunal did consider the available evidence of illness but was not satisfied that it was appropriate to reinstate.
It was submitted by Ms Petrovski that the Decision was reasonable and logical. The reasons given by the Tribunal provided an evident and intelligible justification for the conclusion reached (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Li)). Further, the Tribunal considered all the “matters that are advanced to support reinstatement” (see Singh v Minister for Immigration and Border Protection [2018] FCAFC 184 at [30] per Colvin J (Singh)).
In this case, the matters considered by the Tribunal were the medical certificates provided to the Tribunal on 12 July 2019. There was no failure to consider relevant evidence, however the Tribunal had not reached the level of satisfaction necessary to conclude that it was appropriate to reinstate pursuant to s 362B(1C)(a) of the Act. This was after consideration of the medical certificates, the procedural history of the application and the absence of a written request for postponement before the hearing. The Tribunal also considered that the medical evidence did not properly explain an inability to attend the hearing in person or by telephone.
It was submitted that there was no evidence given to the Tribunal or this Court to support the first applicant’s claims of persistent poor health or to supplement the medical certificates provided to the Tribunal in support of the application for re-instatement. It could not be said that, in those circumstances, no rational or logical decision-maker could arrive at the same decision on the same evidence (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]-[131] per Crennan and Bell JJ) (SZMDS)).
In the outline of written submissions filed on behalf of the Minister and in the oral submissions, reliance was also placed on a case note prepared by an officer of the Tribunal (CB 171-2). The case note recorded a telephone conversation with the first applicant on 28 June 2019 and a subsequent telephone conversation with the applicants’ migration agent on the same day, stating that the applicants’ migration agent was informed that the hearing would proceed “unless the applicant can provide a written medical report addressed to the Tribunal stating the condition suffered and the reasons for the inability to participate in a hearing whether in person or by telephone” (CB 172). There was no further contact from the first applicant or the migration agent prior to the hearing and no request that the applicants appear via telephone or video link pursuant to s 366 of the Act. This was noted by the Tribunal at paragraphs [16] and [17] of the Decision (CB 215-6). The Tribunal also noted at [22] of the Decision that the medical certificates provided on 12 July 2019 did not contain detail of the first applicant’s inability to attend the hearing in person or by telephone (CB 172).
Therefore, it was reasonable for the Tribunal to not be satisfied on the medical evidence provided by the applicants that the first applicant was unfit to attend the hearing in person or by telephone.
In reply, the first applicant said that she did not know how to email the Tribunal on the day of the hearing and that she could not leave her children at home on the day of the hearing. The first applicant maintained that it was important that she explain why there was a medical reason for her repeated illness, and she was not given the opportunity by the Tribunal to do so.
CONSIDERATION
The function of this Court is to determine if the Tribunal has fallen into jurisdictional error. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
In Li, the High Court of Australia considered a refusal of an adjournment by the Tribunal pursuant to the statutory power to adjourn (Li at [63]-[76]). It was held that an unreasonable refusal to grant an adjournment could result in jurisdictional error if the Tribunal did not conduct a review as required by the Act (per Hayne, Keifel and Bell JJ at [77]-[85]).
In Gazi v Minister for Immigration and Citizenship [2013] FCA 1094 at [34] Logan J held that the power conferred on the Tribunal pursuant to s 362B of the Act must be exercised according to law and it will only be so exercised if it is exercised reasonably.
The grounds of review in the application for judicial review do not identify a jurisdictional error in the Decision. At best the grounds of review seek to reagitate the merits of the application for the visa. The first applicant’s submissions at the hearing before this Court were to the same effect. Namely, that she was a genuine student that intended to pursue further study in Australia. More to point is whether the Tribunal acted reasonably in reaching the conclusion that it was not appropriate to reinstate based on the medical certificates provided. The Minister’s oral submissions were directed to that unarticulated ground of review as the “key issue” and it was correct to do so.
The relevant legislative provisions are as follows:
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.
…
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.
(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.
In SZJQP v Minister for Immigration and Citizenship [2007] FCA 1613 (SZJQP), Justice Gilmore considered an appeal from a decision of a Federal Magistrate where the then Refugee Review Tribunal (RRT) affirmed a decision of a delegate of the Minister to refuse to grant a protection visa. The RRT affirmed the delegate’s decision because the applicant did not attend a scheduled hearing. The applicant failed to attend the hearing due to illness and subsequently provided a medical certificate that indicated that the applicant was “unable to attend work/school” on the date of the hearing. The certificate was illegible as to the name of the medical practitioner providing the certificate. The RRT then wrote to the medical centre that provided the certificate to confirm the authenticity of the certificate. The medical centre did not respond to the request citing patient confidentiality. The RRT proceeded to decide the application without granting the applicant a further opportunity to appear. The Court then considered the power to decide or dismiss under s 426A of the Act. Section 426A is in substantially the same form as s 362B of the Act. The Court also considered the reasons given by the RRT for deciding the application rather than dismissing the application and affirming the delegate’s decision to refuse the protections visa.
In SZJQP at [54] Gilmore J said:
Most importantly, in my opinion, arguably, the Tribunal in a material sense disregarded the medical certificate dated 23 August 2006 to the effect that the appellant was unable to attend the schedule hearing on that day. It seems to have accepted that the appellant did travel to Blacktown and that a doctor did note on the certificate that he was unwell on that particular day and the next. In fact, that is not what the doctor certified. He certified that due to viral illness he would be unable to attend, in effect, the Tribunal hearing, on the 23 or 24 August 2006. However the use made by the Tribunal of the certificate was to highlight what it clearly considered to be a discrepancy as to the length of the period of illness. The Tribunal should have, in my opinion, accepted that the evidence before it, namely the medical certificate, was to the effect that he was not able to attend the scheduled hearing by reason that he was unfit to do so. In so doing, in my opinion, it acted unreasonably. The Tribunal, in its reasons, stated that, had the appellant appeared before it, and had it concluded that the appellant was demonstrably not well, then it would have adjourned the hearing. That of course, had it occurred, would have been reasonable. However, the medical certificate was to the same effect.
In SZJQP, the Court held that the Federal Magistrate erred in finding that the applicant’s grounds of review had no prospects of success (SZJQP at [59]).
The decision in SZJQP is to be compared to the decision in Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479 (Kumar) per O’Bryan J.
In Kumar, Justice O’Bryan considered s 42A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT) which was as follows:
[37] Section 42A of the AAT Act relevantly provides:
Dismissal if party fails to appear
(2)If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant—dismiss the application without proceeding to review the decision; or
(b)in any other case—direct that the person who failed to appear shall cease to be a party to the proceeding.
…
Dismissal if party fails to appear—giving of appropriate notice
(7)Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.
Reinstatement of application
…
(8A)If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.
(9)If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
[38]The power of reinstatement set out in s 42(9) of the AAT Act is on substantially the same terms as that contained in s 362B(1C): that is, both provisions empower the Tribunal to reinstate an application “if it considers it appropriate to do so”, and neither provision expressly conditions the exercise of that power by reference to particular criteria.
[39]Justice O’Callaghan considered the power of reinstatement set out in s 42(9) of the AAT Act in Serpinli v Secretary, Department of Social Services [2019] FCA 2029. In that case, the applicant had sought judicial review of a decision of the Tribunal refusing to reinstate his application by reason of his non-appearance on that basis that, among other things, the Tribunal misinterpreted the statutory test. His Honour observed (at [25]-[26], emphasis added):
[25]At the outset of the hearing in this case, the Tribunal confirmed that the issue before it was whether or not “it’s appropriate that [the applicant’s] case should be reinstated”. The Tribunal said that in doing so it needed to consider: whether the applicant had a reasonable excuse for failing to attend the hearing, and whether the application had prospects of success.
[26]In considering whether to reinstate an application, the Tribunal can have regard to a range of factors in determining whether it is “appropriate” to reinstate an application. These factors may vary from case to case, but include a consideration of the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at a hearing, the explanation for it.
[40]His Honour concluded that the Tribunal did not err, having considered both the merits of the applicant’s substantive application for review and his explanation for his non-attendance at the hearing: at [35], [38].
Justice O’Bryan also considered similar provisions in the Federal Court Rules 2011 (Cth) explaining as follows (Kumar at [41]-[48]):
[41]The FC Rules contain numerous provisions to the effect that the Court may make an order dismissing an application if a party is absent at the hearing of a proceeding, and that the absent party may subsequently apply to set aside any such order. For example, r 30.21 provides as follows.
(1)If a party is absent when a proceeding is called on for trial, another party may apply to the Court for an order that:
(a) if the absent party is the applicant:
(i) the application be dismissed; or
(ii) the application be adjourned; or
(iii) the trial proceed only if specified steps are taken; or
(b) if the absent party is the respondent:
(i)the hearing proceed generally or in relation to a particular aspect of the application; or
(ii) the hearing be adjourned; or
(iii) the trial proceed only if specified steps are taken.
(2)If a trial proceeds in a party’s absence and during or at the conclusion of the trial an order is made, the party who was absent may apply to the Court for an order:
(a) setting aside or varying the order; and
(b) for the further conduct of the proceeding.
[42]Rules in identical form operate where a party is absent when an appeal is called on for hearing (r 36.75), when an application for leave to appeal is called on for hearing (r 35.33) and when an appeal from a decision of a body other than a court is called on for hearing (r 33.33).
[43]More generally, r 5.23 of the FC Rules provides that if an applicant is in default, a respondent may apply to the Court for an order that the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant. While this rule extends to forms of default beyond a party’s non-appearance at a hearing, it has been applied in circumstances including non-appearance: see, for example, Dauguet v Centrelink [2015] FCA 395 (Mortimer J, as her Honour then was). Rule 39.05(a) also relevantly provides that the Court may vary or set aside a judgment or order after it has been entered if it was made in the absence of a party.
[44]The power of the Court to set aside or vary an order dismissing a proceeding contained in rr 30.21(2), 33.33(2), 35.33(2), 36.75(2) and 39.05(a) of the FC Rules is framed in different terms to the Tribunal’s power of reinstatement in s 362B(1C) of the Act and in s 42A(9) of the AAT Act. The relevant rules do not use the language of “appropriateness”, nor do they otherwise condition the exercise of power by the Court. Indeed, rr 33.33(2), 35.33(2) and 36.75(2) refer only to the right of an absent party to apply to the Court and not to the exercise by the Court of its power with respect to that application. Nonetheless, these rules have been construed and applied by this Court in a manner that is consistent with the construction of s 42A(9) of the AAT Act in Serpinli.
[45]The Full Federal Court examined the application of the predecessor of r 36.75 of the FC Rules (being r 38A(2)(a) of the Federal Court Rules 1979 (Cth)), which was on substantially the same terms, in Prashar v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 197 (Prashar). Justice Katz concluded at [11] (with Branson J agreeing at [1] and Mansfield J agreeing at [4]) that:
Order 52, r 38A(2)(a) of the Rules does not specify any criteria for the exercise by the Court of the power conferred on it by that provision. However, the considerations which, in my view, would be relevant in the exercise of that power would include at least whether the moving party has provided an acceptable explanation for that party’s absence when the appeal was called on for hearing and the strength of that party’s case on the appeal if the order dismissing the appeal were to be set aside….
[47]In my view, the considerations that have been found to be relevant to the exercise of the discretion in s 42(9) of the AAT Act and the FC Rules referred to above are equally relevant to the exercise of the discretion under s 362B(1C) 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 s 362B(1C), 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 s 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 s 362B(1A)(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.
In the Full Court of the Federal Court of Australia decision in Singh (referred to in [49] above), the Court considered the power of the Tribunal to dismiss and reinstate a proceeding for non-attendance at a scheduled hearing. In that case, the Court held that the Tribunal erred by not considering all the matters that were advanced to support reinstatement (per Colvin J at [30]). In that case, the Tribunal focused its reasons for refusing to reinstate on the fact that the applicant was correctly notified of the hearing. The Tribunal did not consider other matters advanced by the applicant as to why the proceeding should be reinstated and did not address those matters in the reasons for decision. Therefore, the decision of the Tribunal in that case was unreasonable. The Full Court held that the failure to address those additional matters was a failure to perform the statutory task (see Singh per Colvin J at [35]-[37]).
These decisions show that when the Tribunal is determining if it is appropriate to reinstate an application (following an applicant’s failure to appear at a Tribunal hearing), the Tribunal must objectively consider the applicant’s reasons for the failure to appear at that hearing but that is not the only relevant consideration. The history of the proceeding and context may also be important.
In NAKX v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1559 (NAKX) (relating to medical certificates which included more detail than the certificates provided in the present matter), Lindgren J said as follows:
[5]The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:
‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’
The certificate of the same date in respect of the female appellant states:
‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’
[6]The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.
[7]I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.
[8]If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.
[9]I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.
[10]In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.
NAKX was applied in Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576 (Quach) where a medical certificate (again containing more information than the medical certificate provided to the Tribunal in the present matter) was provided in support of an adjournment request. In Quach, Justice Thawley at [9] determined as follows:
As to the first medical certificate, it does not provide a diagnosis of the condition suffered by Dr Quach or explain the nature of that condition. The certificate does not contain an opinion about whether or not Dr Quach is or was prevented or hindered in his preparation for, attendance at or participation in, a hearing. Necessarily, it contains no reasons for any such opinion sufficient to enable the Court to form its own view about the reliability of the opinion – see further: BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [35]; Kaur v Minister for Immigration and Border Protection [2016] FCA 565 at [12]-[14]; Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2]; NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]-[11]; MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 at [2].
In this case, the Tribunal came to a similar conclusion in the Decision (CB 172 [22]). It was not satisfied that the first applicant could not attend the scheduled hearing either in person or by telephone and it explained its reasoning with intelligible justification.
The applicants’ application for reinstatement was based on the medical certificates provided to the Tribunal. The Tribunal considered those certificates and found them to be inadequate to explain why it was appropriate to reinstate. The Tribunal also considered the procedural history of the application for review including the previous applications to postpone and reinstate for medical reasons. The Tribunal considered the late notice given on each occasion and the absence of an explanation of the severity of the illness, or the “causal explanation of the condition suffered and the inability of the primary applicant to appear, either in person or by telephone…” (CB 172 [22]). There was no failure to consider a relevant matter or to provide adequate reasons as to why the Tribunal was not satisfied that it was appropriate to reinstate.
The applicant failed to attend the Tribunal on three occasions and gave notice of her illness at the eleventh hour on each occasion. The medical certificates provided were general and not directed to assist the Tribunal in assessing the first applicant’s capacity to appear at a Tribunal hearing either in person or by telephone. When seeking reinstatement pursuant to s 362B(1C) of the Act and faced with the onus of persuading the Tribunal that it was appropriate to reinstate, the applicant, through her migration agent, sought to rely on medical certificates that were vague and general as to her incapacity to appear. Whilst the reasoning of Gilmore J in SZJQP is apposite where faced with the rejection of the first application for an adjournment and can be understood as “unreasonable” in those circumstances, it does not mean that after a third request and the provision of multiple general and vague medical certificates without further explanation, that a Tribunal would act unreasonably in refusing to reinstate.
In the decision of Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 941 (Singh 2023) at [96] Judge Kendall said, in relation to a similar application for judicial review of a decision not to reinstate for dismissal for non-attendance, “Context matters”. In that case, it was not unreasonable for the Tribunal to determine that “enough was enough” in circumstances where the Tribunal gave sound reasons as to why it was not appropriate to reinstate (see Sing 2023 at [97]).
The application for judicial review, supporting affidavit and submissions made to this Court do not identify jurisdictional error in the Decision. The Decision was logical and rational and not legally unreasonable in the circumstances. It could not be said that no rational or logical decision-maker could arrive at the same decision on the same evidence (SZMDS at [130]-[131] per Crennan and Bell JJ). The application for judicial review filed 18 December 2019 is dismissed.
At the conclusion of submissions at the hearing before this Court the solicitor for the Minister sought an order for costs, in the event that the application for judicial review was dismissed. The Minister sought costs and disbursements of and incidental to the application for judicial review in the sum of $5,000.00 which is less than the applicable scale and is fair and reasonable.
The solicitor for the Minister also sought an order that the name of the first respondent be amended to Minister for Immigration and Multicultural Affairs. Further, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
ORDERS
The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
The name of the second respondent is amended to Administrative Review Tribunal.
The application for judicial review filed 18 December 2019 is dismissed.
The applicants pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $5,000.00.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 27 November 2024
SCHEDULE OF PARTIES
MLG 4477 of 2019 Applicants
Fourth Applicant:
BIKRAMJIT SINGH
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