Kazhila v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1795
•6 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kazhila v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1795
File number(s): MLG 3045 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 6 August 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – section 362B of the Migration Act 1958 (Cth) – whether Tribunal proceeding under section 362B(1A)(a) was legally unreasonable – validity of Tribunals invitation to attend hearing undisputed – invitation overlooked by Applicant’s legal representative – court not accepting representatives explanation – Applicant’s requests for an extension of time not demonstrating pattern of engagement – no obligation on Tribunal to telephone Applicant for non-attendance – decision to proceed under section 362B(1A)(a) not unreasonable – no jurisdictional error found – application for review dismissed Legislation: Migration Regulations 1994 (Cth), sch 3
Migration Act 1958 (Cth), ss 362B, 362B(1A)(a), 362(1B), 426A
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Cases cited: AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383
Minister for Immigration v SZVFW (2018) 264 CLR 541
Number of paragraphs: 28 Date of hearing: 22 July 2021 Place: Melbourne Counsel for the Applicant: Mr Cadman Solicitor for the Applicant: Visatec Legal Counsel for the First Respondent: Mr Daly Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS
MLG 3045 of 2018 BETWEEN: JEAN KAZHILA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
6 AUGUST 2021
THE COURT ORDERS THAT:
1.The Application filed on 10 October 2018 and amended on 24 June 2021 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $5,800.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal') on 19 September 2018. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Partner (Temporary) (Class UK) visa ('Visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The application for the Visa indicates that the Applicant is from Zambia. The Applicant arrived in Australia in February 2009. She was granted a series of visas, the last of which ceased on 30 August 2014. She applied for the Visa on 8 March 2016.
On 17 March 2016 the Department of Immigration and Border Protection (‘Department’) wrote to the Applicant. She was informed that as she was not the holder of a substantive visa at the time of lodging the application for the Visa, she needed to satisfy additional criteria set out in Schedule 3 to the Migration Regulations 1994 (‘Regulations’). She was also informed that as she did not meet Criteria 3001 of Schedule 3 of the Regulations, she could put forward any circumstances relating to whether there were ‘compelling reasons’ that existed not to apply the Criteria in Schedule 3. She was asked to provide this response within 28 days after receipt of the letter.
On 14 April 2016, the Applicant (through her representative) requested an extension of time of a further 28 days in which to provide the information sought by the Department.
On 26 April 2016, the Department refused to grant the extension of time sought by the Applicant. The correspondence from the Department indicated, however, that the matter had not been allocated to a case officer and that if the Applicant’s circumstances changed, or if there was any further information to provide after this date but before a decision is made, the Applicant was invited to provide the information and it would be considered by the case officer.
On 12 July 2016, a delegate of the Minister ('Delegate') refused to grant the Applicant the Visa.
On 25 July 2016, the Applicant applied to the Administrative Appeals Tribunal (‘Tribunal’) for review of the delegate's decision. The Applicant’s representative details were set out in the application to the Tribunal. They included address details, telephone details and an email address noted as ‘[email protected]’ (the ‘Email Address’).
On 1 August 2016, the Tribunal acknowledged receipt of the application for review.
On 21 April 2017, the Tribunal wrote to the Applicant. The Applicant was, inter-alia, invited to provide information in writing as to whether there were any compelling reasons for not applying the criteria set out in Schedule 3 to the Regulations.
On 5 May 2017, the Applicant through her representative replied to the correspondence from the Tribunal dated 21 April 2017 and provided further submissions and supporting documents.
On 31 August 2018, the Tribunal wrote to the Applicant. The Applicant was invited to attend a hearing before the Tribunal on 18 September 2018. It is not contended by the Applicant that the invitation to attend the hearing sent by the Tribunal was deficient or did not comply with the relevant statutory requirements.
On 18 September 2018, a hearing was held at the Tribunal. The Applicant did not attend that hearing.
On 19 September 2018, the Tribunal affirmed the decision not to grant the Applicant the Visa.
The Applicant filed her application in the Court to review the decision of the Tribunal, and affidavit in support, on 10 October 2018. Orders were subsequently made for the conduct of the matter.
The Applicant subsequently filed an amended application for review ('Application') on 24 June 2021. She also filed an outline of submissions. The Minister filed a Court Book and an outline of submissions. Both parties filed a bundle of authorities.
THE APPLICATION
The Application contains a single ground of review which is as follows:
The Second Respondent (the Tribunal) acted in a manner that was legally unreasonable in deciding to affirm the decision under review without taking any further action to allow or enable the applicant to appear before it under section 362B(1)(a) of the Migration Act 1958 (Cth) (the Act), in circumstances where;
Particulars
a.The Applicant did not appear at the hearing before the Tribunal;
b.The Applicant had previously participated in the Tribunal process and had sought to engage fully in the process before the delegate and it was therefore unexpected or remarkable that she did not appear at the Tribunal;
c.There is no evidence that the Tribunal telephoned the Applicant or her representative on the day of the scheduled hearing;
d.The Tribunal proceeded to affirm the decision on the basis that the health issues faced by the Applicant’s spouse, and the care and support provided by the Applicant to the spouse, were not compelling reasons for the relevant Schedule 3 criterion not to apply, and in particular that the medical evidence going to the Applicant’s role in providing care and support to her spouse was “shallow”;
e.The evidence of compelling reasons, including the health issues faced by the Applicant’s spouse, the Applicant’s role in providing care and support, and the issue of the sufficiency of the medical evidence, were not canvassed by the decision of the delegate;
f.The Tribunal’s adverse conclusions as to the health issues faced by the Applicant’s spouse, the care and support provided by the Applicant and the character and/or strength of the medical evidence were not put to the Applicant;
g.It was open to the Tribunal to dismiss the application under section 362B(1)(b) of the Act, which would have allowed the Applicant to apply to reinstate the application under section 362(1B) and address the adverse conclusions that were not put to the Applicant.
It can be seen from the ground above that the Applicant takes issue with the decision of the Tribunal to proceed to determine the matter under section 362B(1A)(a) of the Migration Act 1958 (‘Act’). Section 362B is concerned with what occurs when an applicant fails to appear before the Tribunal. Assuming the conditions set out in subsection (1) of section 362B are satisfied, the Tribunal has two choices under section 362B(1A). Under subparagraph (a) it can make a decision on the review without taking any further action to allow or enable an applicant to appear before it. Alternatively under subparagraph (b), it can dismiss the application without any further consideration. Where the second alternative is chosen, an applicant may apply to the Tribunal for reinstatement of the application.
The Applicant contends that the decision by the Tribunal to proceed under subsection (1A)(a) was unreasonable. Among other things, the Applicant contended that when the circumstances of the matter are considered as a whole, she had evinced an intention to have her claim for compelling reasons ventilated at the hearing before the Tribunal and had filed material in support of that. Despite that, it is submitted that the Tribunal failed to telephone the Applicant on the day of the hearing to enquire as to her whereabouts. Further, it is submitted that the Tribunal incorrectly stated that the Applicant had failed to provide any response when requested to do so by the Department. Additionally, it was submitted that the Tribunal then considered the material or evidence filed by the Applicant in support of there being ‘compelling reasons’ and found that material to be ‘shallow’ in circumstances where it never heard from the Applicant and the Applicant was given no opportunity to provide updating material. In support of the submissions above, the Applicant relied on the decision of North ACJ in AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 (‘AZAFB’) at [19], [26].
The Applicant’s challenge to the decision of the Tribunal is advanced on the basis that the specific actions complained of and taken by the Tribunal were ‘legally unreasonable’. It is well settled that a decision made in the exercise of a statutory power is unreasonable when it lacks an evident and intelligible justification. It is also well recognised, however, that the test for unreasonableness is necessarily stringent and that courts will not lightly interfere with the exercise of a statutory power in an area involving discretion: see Minister for Immigration v SZVFW (2018) 264 CLR 541 (“SZVFW”) at [10]-[11], [52], [86].
The first matter to observe is that the regime established under subsection (1A) of section 362B permits the Tribunal to elect whether to review the decision of the delegate, or alternatively, dismiss the proceeding. Which option the Tribunal ultimately selects is a matter for it. There is nothing in the text of section 362B that requires the Tribunal to adopt a particular course. The decision is completely at the discretion of the Tribunal. This is perhaps not surprising when consideration is given to objects of the Tribunal set out in section 2A of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’). Under section 2A of the AAT Act, the Tribunal is to provide a mechanism of review that is fair, just, economical, informal and quick.
The next matter to observe is that the invitation given to the Applicant was valid and complied with the requirements of the Act. The Applicant did not contend otherwise. The Applicant acknowledged that the invitation had been received but had simply been overlooked by her representative. The Applicant sought to explain that the invitation had been overlooked because the subject of the email was as follows: ‘1611328-Ms Jean Kazhila – NSW- Your reference 1601156’. It was said the reference to ‘NSW’ bore no relation to the Applicant or her lawyers, neither of whom is based in New South Wales. While it may be the case that neither the Applicant nor her lawyers are based in New South Wales, I do not accept that the inclusion of the letters ‘NSW’ in the subject line of the email provides an explanation for the invitation to the hearing being overlooked. The subject line of the email clearly refers to the Applicant by name. The Applicant was clearly a client of her representatives and was known to them. Further, the correspondence attached to the email made clear to whom it was directed and the subject matter of the communication.
One of the contentions advanced by the Applicant is that the Tribunal did not telephone her or her representative on the day of the hearing to advise that the hearing was proceeding. I accept that no telephone call appears to have been made. There is not, however, any requirement on the Tribunal to telephone an applicant who does not appear at a scheduled hearing. Further, the invitation given to the Applicant to attend the hearing was valid and the Applicant had the benefit of receiving two SMS reminders of the hearing in circumstances where there is no requirement for her to receive those reminders. I observe further that the invitation to attend the hearing informed the Applicant that if she did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.
The Applicant’s contention that there was a pattern of engagement or contact which should have alerted the Tribunal to the unusual nature of her absence at the hearing also bears consideration. The Applicant did provide further information to the Tribunal on 5 May 2017 in response to the invitation from the Tribunal on 21 April 2017. That was, however, the only incident of proactive engagement. The Applicant had not previously provided information to the delegate despite an invitation to do so. In that respect, I do not accept the contention of the Applicant that her request to the delegate to be given more time to submit information constitutes actual engagement. I observe that before the delegate, she was given a period of 28 days to submit further information. On the 28th day of that period, she had asked for time to be extended for a further 28 days in order to submit further information. That, in my view, can hardly be described as part of a pattern of engagement
I have considered the decision in AZAFB relied on by the Applicant. AZAFB does not assist the Applicant. AZAFB concerned the operation of section 426A of the Act. In AZAFB, the applicant had applied for a protection visa. He was unrepresented. At a point in time, he changed his address and notified the Department, but failed to notify the Tribunal. He then failed to appear at the hearing before the Tribunal. The Tribunal proceeded to affirm the decision of the delegate to refuse the grant of a protection visa. In reaching its decision, the Tribunal outlined a number of concerns or questions it had about the material before it and noted it had been unable to question the applicant about these matters at the hearing. The Federal Circuit Court declined to remit the matter to the Tribunal. In the Federal Court, North ACJ set aside the decision of the Tribunal and remitted it for reconsideration. In doing so, North ACJ found that the failure of the Tribunal to attempt to contact the applicant on his mobile telephone number on the day of the hearing was unreasonable. North ACJ also observed that the applicant had filed a substantial and serious written submission which suggested that the applicant intended to pursue the application for the visa and to attend the hearing.
I have considered closely the decision in AZAFB. In my view, it does not assist the Applicant in this case. AZAFB is distinguishable and should not be applied in the present matter for the reasons that follow. First, the Applicant in AZAFB was at the relevant time unrepresented. In the present matter, the Applicant has been represented at all times. Second, in AZAFB, the applicant did not receive the notice to attend the hearing because of his change of address. Here, the notice to attend the hearing was received but was overlooked by the representative. Third, AZAFB concerned an application for a protection visa and North ACJ noted that the nature of the application demonstrated that if the claims made were established, the applicant was at risk of serious harm if returned to Sri Lanka. Those considerations do not apply in this case. Finally in this case, the Tribunal sent two SMS reminders of the hearing. No such step appears to have been taken in AZAFB.
In summary, this is a case where it was open to the Tribunal to proceed to make a decision on the review as contemplated by subsection (1A) of section 362B. It was further open to the Tribunal to conclude that there were not compelling circumstances to waive the Schedule 3 criteria. The approach taken by the Tribunal was not unreasonable or infected with jurisdictional error.
For all of these reasons, the application for review must be dismissed. The Minister sought costs in the amount of $5,800. I will make a costs order in that amount given the Minister has been entirely successful.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 6 August 2021
0
2
0