Kumar v Minister for Immigration

[2020] FCCA 2170

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2170

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (class TU) Student (subclass 500) visa – whether the Tribunal failed to provide procedural fairness – whether the Tribunal failed to consider the relevant information – whether the Tribunal fell into jurisdictional error by acting beyond its power – whether the Tribunal acted contrary to s 359 and s 358 of the Migration Act 1958 (Cth) requirements and failed to make a decision under review for cancellation – whether the Tribunal failed in performing primary purpose of review – whether the Tribunal failed to be legally reasonable or exercising excessive power contrary to its objective, purpose, way of operation and power – whether the Tribunal failed to act accordingly to the requirements of s 362B of the Migration Act 1958 (Cth) – whether the Tribunal misapplied or misconstrued ‘appearing requirement’ – whether the Tribunal made jurisdictional error by overarching its authority – whether the Tribunal was unreasonable and procedurally unfair – whether jurisdictional error is made out – no jurisdictional error – application is dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss, 24, 33, 43

Migration Act 1958 (Cth), ss, 357, 358, 359, 360, 362, 366, 368, Division 5 of

Part 5

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

MZAHI v Minister for Immigration and Border Protection [2016] FCA 129

NAKX v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1559

Singh v Minister for Home Affairs (2019) 267 FCR 200

Applicant: SUNIL KUMAR

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 457 of 2020

Judgment of: Judge Humphreys

Hearing date: 6 August 2020

Date of Last Submission: 6 August 2020

Delivered at: Parramatta

Delivered on: 14 August 2020

REPRESENTATION

Solicitors for the Applicant: Mr Bhatta, Residency Legal

Counsel for the Respondents: Mr Johnson

Solicitors for the Respondents: Hwl Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 457 of 2020

SUNIL KUMAR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India. On 13 April 2018, the applicant was granted a Student (Temporary) (class TU) Student (subclass 500) visa. The visa was to enable the applicant to study a Bachelor of Accounting at Group Colleges Australia Pty Ltd.

2. On 20 September 2019, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa. This was on the basis that the applicant had discontinued his studies in a Bachelor of Accounting and instead, enrolled in two Vocational Education Training (“VET”) courses, being a Certificate IV in Commercial Cookery and a Diploma in Hospitality Management. It was alleged that this constituted a breach of condition 8202(2)(b), which was attached to the applicant’s visa. This required, in part, that the applicant maintain enrolment in a course that provided a qualification at the same or higher level, than the course for which the visa was granted.

3. On 6 November 2019, a delegate of the Minister for Immigration (“the delegate”) cancelled the applicant’s visa. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”).

4. The applicant was invited to attend a Tribunal hearing on 15 January 2020. The applicant did not attend the hearing or request a postponement. Accordingly, the Tribunal dismissed the application pursuant to

   
   

   s 362B(1A)(b) of the Migration Act 1958 (Cth) (“the Act”).

5. The applicant sought reinstatement of his application and provided a Statutory Declaration and a medical certificate in support of the application. In a decision dated 5 February 2020, the Tribunal confirmed the decision to dismiss the application.

6. The applicant now seeks judicial review of the decision of the Tribunal, to confirm the dismissal of his application.

The Administrative Appeals Tribunal’s Decision

1. The Tribunal noted that the applicant was advised in the hearing invitation, that if he was unable to attend the hearing, that the Tribunal could make a decision to dismiss the review, without any further consideration of the application of the information before it.

2. The Tribunal noted that the applicant applied for reinstatement within the required 14 days after receiving a notice of the initial decision to dismiss his application. In the applicant’s Statutory Declaration made 21 January 2020, in support of his application for reinstatement, the applicant stated as follows:

   I declare that I missed my hearing date for the AAT, 15 Jan 2020 due to medical condition I visited a doctor, who after my examination recommended bed rest. On the day of the hearing I was physically weak and barely able to walk and I followed the advice of doctor and took a rest at home. I wasn’t well enough to appear on the hearing and present my case. Now taking rest and medication as per the doctor suggestion I am feeling well and I would like to request the responsible authority to allow me another hearing date so I can present my response in regards to my application.

3. A medical certificate was provided from a Dr June Tun, that stated as follows:

   Mr Sunil Kumar has a medical condition and will be unfit for work from 15/01/2020 to 15/01/2020 inclusive.

4. At paragraph 10 of its decision, the Tribunal noted that the medical certificate did not elaborate as to the applicant’s medical condition. The Tribunal concluded that it was not severe, as the applicant was only given a medical certificate that he was unfit to attend work for one day. The medical certificate makes no mention of the applicant’s inability to attend and participate in the hearing of the Tribunal. The Tribunal noted that the medical certificate seemed at odds with the applicant’s Statutory Declaration, in that he was so weak, he was barely able to walk. The Tribunal was of the view that the medical certificate did not support the applicant’s claims in his Statutory Declaration.

5. Accordingly, the Tribunal was not satisfied, especially on the basis of the medical certificate that the applicant was medically unfit to attend and participate in the hearing.

6. The Tribunal also noted that there was no explanation given as to why the applicant did not seek to adjourn the hearing, either the day prior to, or on the morning of the hearing.

7. Accordingly, the Tribunal was not satisfied that the applicant’s application to reinstate showed a compelling or compassionate reason, for failing to attend the hearing. The Tribunal was not satisfied that the reinstatement application supporting evidence was sufficient to reinstate the review application. Accordingly, the Tribunal confirmed the dismissal of the application.

Grounds of Judicial Review

1. In an amended application filed on 17 June 2020, the applicant sets out ten grounds of judicial review. They are as follows, verbatim, including original grammar and spelling:

   1.   The Second Respondent made a jurisdictional error by failing to provide procedural fairness.

   Particulars

   a) Applicant missed hearing date for AAT on 15 Jan 2020 due to medical condition.

   b) The Second Respondent did not consider the medical certificate dated 15 Jan 2020 from Dr June Tan.

   c) The Second Respondent did not accept the medical evidence that the applicant was unfit for work from 15/01/2020 to 15/01/2020 inclusive.

   2.   The Second Respondent failed to consider the relevant information’s.

   Particulars

   a) The Second Respondent at [11] made a finding that the medical certificate makes no mention of the applicant’s inability to attend and participate in a hearing while the medical certificate did clearly mention that the applicant will be unfit for work from 5 Jan 2020 to 15 Jan 2020 inclusive.

   b) Unfit for work means, unfit to do anything.

   c) The Second Respondent was so reluctant to admit the documentary evidence produced by Dr thereby ignoring the statement made by the Dr.

   d) The Second Respondent did not consider that the applicant is currently enrolled in a CRICOS registered course. Certificate IV in Commercial Cookery from 17/09/2018 to 23/2/2020 followed by Graduate Diploma of Management from 02/02/2021 to 30/01/2022.

   e) The Second Respondent did not consider that it is not uncommon for students to change the path as to the career.

   f) The Second Respondent did not consider that the applicant’s current course is consistent with his business ambition.

   g) The Second Respondent did not consider that the applicant had done reasonable steps to secure bachelor’s degree COE. Applicant received offer letter for bachelor’s degree, however college refused to give him COE as they didn’t have enough space for new students. Revoked offer letter was provided but not considered.

   3.   The Second Respondent fell into jurisdictional error by acting beyond its power.

   Particulars:

   a) The Second Respondent has no power to dismiss a review application based on s43 of the AAT Act.

   b) The Second Respondent went ahead and dismissed the application despite s43 of the AAT Act.

   c) The Second Respondent acted beyond power given by the act and hence fell into jurisdictional error.

   4.   The Second Respondent acted contrary to s359 and s358 requirement and failed to make a decision under review for cancellation which the applicant has applied for thus failed in performing primary purpose of review.

   Particulars:

   a) The applicant applied for a review of application for cancellation decision.

   b) The Second Respondent was reviewing application on cancellation ground which required the Second Respondent to determine whether there if ground and if so whether to cancel the visa of the review application.

   c) The Second Respondent did not consider or review the application in the area for which the review application was applied for.

   d) The applicant has provided information as required under s359 on request from the tribunal or in the alternative, the applicant has given information to the tribunal under s358. The Second Respondent was required to consider the information given therein.

   e) The Second Respondent dismissed application for some procedural reasons. The procedural aspects were there for the Second Respondent to perform its duties properly and to remove any hinderance therein.

   f) The Second Respondent under s362B(1A)(a) could have made a decision as to cancellation rather by choice opted to dismiss the case under the same section but sub-regulation (b).

   g) Even when the applicant fails to give information under s359C(1) or comment under s359C(2), the Second Respondent can still make a decision on merit of the case even without taking further action but must make a decision therein as to the review application.

   h) The information and comment requirement unders359 are more important for a correct decision however, the hearing appearance under s360 might not be as significant for the decision. Thus s362B cannot be more inflexible or uncompromising or for the tribunal than s359C. Thus the Second Respondent could make a decision even under s362B(1A)(a) as to the review application rather than dismissing it altogether.

   i) The primary objective or duty of the tribunal was to conduct a review in the area that the applicant has applied for the merit review of the delegate’s decision.

   j) The Second Respondent failed to do that but dismissed the application of other technical ground.

   k) The Second Respondent failed to perform its primary duty of undertaking merit review in holding over some technical rules.

   l) The dismissal decision by the Second Respondent cannot be correct r preferable decision for the applicant as required to be made by the tribunal. The tribunal is supposed to take a best course of action given a regime of flexible review application.

   l) The Second Respondent failed to perform its primary duty or function of merit review and thus fell into jurisdictional error.

   5.   The Second Respondent made jurisdictional error by failing to be legally reasonable or exercising excessive power contrary to its objective, purpose, way of operation and power.

   Particulars

   a) The Second Respondent failed in its needs to be reasonable as to its objective; nature of its power; and its way of operation rather than just acted legally under the legislation.

   b) The Second Respondent must pursue the objective of providing a mechanism of review that is accessible, fair, just, proportionate and promotes public trust or confidence in the decision under section 2A of the AAT Act which it failed.

   c) The Second Respondent has the power to proceed in absence of a party to make a decision and to adjourn the proceeding from time to time under section 40 of the AAT Act which it failed.

   d) Under section 353 of the Migration Act as to way of operation of the tribunal, the Second Respondent in reviewing a decision is not bound by technicalities, legal forms or rules of evidence and shall act according to the substantial justice and merits of the case which the Second Respondent failed to perform accordingly.

   e) Under section 362B of the Migration Act, the Second Respondent has choices to choose from which would make its decision legally correct, however based on its objective, the applicant believe the choice are not legally reasonable for a tribunal with the given objective, way of operation and power under the legislation.

   f) Under the heading ‘Tribunal may make a decision on the review or dismiss proceedings’; section 362B(1A)(b) allows an application to be dismissed yet s362B(1A)(a) given an opportunity to the Second Respondent to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Further, under the heading ‘Other measures to deal with failure of applicant to appear’ s362B(2) allows the Second Respondent from rescheduling the applicant’s appearance before it or from delaying its decision on the review in order to enable the applicant’s appearance before it as reschedules.

   g) The choices under the s362B were given to improve review processing or efficiency in managing the cases effectively.

   h) A legally reasonable tribunal would prefer to do what is best for the applicant under its obligation, objective and power requirement rather than just what is legally correct.

   i) The inception of the Second Respondent would be to provide a fairer decision to an applicant who is not satisfied with an original decision and where there is a preferable and more beneficial decision that the applicant can get. The Second Respondent was not created to just make another decision that is unfair or unreasonable.

   j) The Second Respondent did not make a decision that is reasonable along its objective, power and way of operation thus fall into error.

   6. The Second Respondent failed to act accordingly to the requirement of s362B of the Migration Act.

   Particulars:

   a) The Second Respondent failed to reinstate the hearing despite the applicant providing a statutory declaration as to the medical condition and the report from a medical professional as to a medical condition.

   b) The Second Respondent failed to consider letter from a Doctor or a medical professional and disregarded it for reason of its own.

   c) The applicant has provided affidavit along with that reference letter from another medical professional to the effect that the medical professional is not required to provide medical condition in the letter. The Second Respondent took that aspect as important in its decision.

   c) The second respondent failed to act accordingly to the requirement of s362B of the Act along with its objective of being a fair and flexible.

   7. The Second Respondent misconstrued or misapplied the ‘appearing requirement’ under the act, in particular section 360 of the Migration Act therefore failed to invite the applicant to appear and thus failed to perform its statutory duties.

   Particulars:

   a) Section 360 requires the Second Respondent to invite the applicant to appear before the tribunal to give evidence.

   b) The applicant was not invited to appear before the tribunal as required.

   c) The Second Respondent has misunderstood, misconstrued and misapplied the meaning of the word ‘appear’ contrary to the requirement of the migration legislation.

   d) The Second Respondent thus affectively have not invited the applicant to a hearing.

   e) The Second Respondent failed to give invitation to appear and hence failed to perform its statutory duties.

   f) In effect, the applicant has not failed to appear before the tribunal under s362B of the migration act.

   8.    The Second Respondent made jurisdictional error by overarching its authority under section 366 of the act.

   Particulars:

   a) The Second Respondent failed to perform its procedure in intending to conduct the hearing by method that is impermissible to the tribunal under the legislation unless required by applicant’s circumstances and hence did not even provided a valid notice of invitation to appear therein or an opportunity to appear for a hearing.

   b) The Second Respondent is required under s360 to invite the applicant to appear before the tribunal to give evidence.

   c) Section 366 of the act only permits the tribunal to allow an appearance by the applicant by other means than as required under s360.

   d) The Second Respondent does not have an authority to dispense its requirement to conduct the hearing in person as required by the act under s360.

   e) The Second Respondent dispense the appearing requirement by inviting the person to a hearing that would be conducted over the mobile phone.

   f) Under s366, a telephone hearing arrangement is an option given to a person who is in need and where the tribunal may allow it, based on certain circumstances that the tribunal is satisfied that the applicant is in where the applicant cannot be in person at the tribunal for a hearing.

   g) Section 366 is incorporated as a facility to assist the applicant in particular circumstances but not the tribunal itself and there is no such provision for the tribunal to undertake a hearing over the phone which the tribunal failed to realize.

   h) The Second Respondent failed to invite or conduct appearance as required under the act.

   9.   The Second Respondent made an error by being unreasonable and procedurally unfair.

   Particulars:

   a) The Second Respondent was unreasonable in the given circumstances where it is undertaking a merit review for GTE to dismiss the application just because the applicant did not appear over the phone or was not connected despite knowing that it would be of great harm to the applicant.

   b) The Second Respondent is conducting review over the phone from Victoria when the applicant is in NSW and there is no issue explained to conduct a hearing in person at NSW. In the given circumstances, where the tribunal for its own convenience conducting the review over the phone, the tribunal should be flexible to reschedule the review hearing rather than dismiss the case.

   c) The Second Respondent knew or could have known that if the application is dismissed there are limited options to the applicant and yet the Second Respondent opted to be so prejudicial to the detriment of the applicant review despite the fact that the applicant is young and has a future associated with its decision.

   d) The Second Respondent knew that under s362C(4) the tribunal has no power to vary or revoke a non-appearance decision after the day and time the written statement is made.

   e) The Second Respondent could have adjourned the hearing as the applicant could not be reached under the provisions of the legislation.

   f) The Second Respondent may make a decision however it is unreasonable for a reasonable tribunal to dismiss the case for such a reason in the given circumstances.

   g) The Second Respondent failed to be reasonable in the given circumstances and did not provide procedural fairness to the applicant.

   10.    The Second Respondent failed to consider the relevant information’s.

   Particulars:

   a) The Second Respondent has been informed by the Registered Migration Agent that no ground existed for the cancellation.

   b) The Second Respondent was provided with a Confirmation of Enrolment of a course that is higher than Bachelor level.

   c) The rules require the Second Respondent to follow the process and if there is ground for cancellation the Second Respondent should consider other aspect while if there is no ground the Second Respondent in the position of the original decision maker should act accordingly.

   d) The Second Respondent failed to consider the information in making its decision and hence fell into jurisdictional error. Unfit for work means, unfit for anything.

The Applicant’s Submissions

1. The applicant’s written submissions seek to expand on the grounds of judicial review and the particulars set out above. The following is a summary of relevant points and arguments put to the court.

Ground 1

1. It was submitted that the decision to cancel a visa for a purported breach of the visa condition cannot or should not be made, based on the non-appearance of the applicant. The Tribunal is not performing its duty to review in that case, rather finding a new reason to affirm the decision. The duty of review obliges the Tribunal to consider and deal with clearly articulated submissions of substance. The failure to do so is a breach of procedural fairness.

Ground 2

1. It was submitted that the Tribunal was required to consider the information that was supplied by the applicant’s Registered Migration Agent, as part of the review process and the medical certificate.

Ground 3

1. It was submitted that the Tribunal had no power to dismiss the application under s 33(1) and s 43(1)-(6) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The Tribunal has a duty to review, not dismiss.

Ground 4

1. As the applicant provided information under s 359 of the Migration Act 1958 (Cth) (“the Act”), the Tribunal was compelled to consider that information and conduct a review under s 362B(1A)(a) of the Act, rather than electing to dismiss under s 362(1A)(b) of the Act.

Ground 5

1. It was submitted that it was legally unreasonable for the Tribunal to dismiss the matter, rather than conducting a review under s 362(1A)(a) of the Act. The Tribunal failed to make the preferable decision, reasonable to its objectives and purpose, that being conducting a review.

Ground 6

1. It was submitted that it was unreasonable for the Tribunal to dismiss the application, based on the lack of detail in the medical certificate supplied by Dr Tun.

Ground 7

1. The written submissions are a repeat of the substantive ground and particulars and do not add anything over and above that.

Ground 8

1. It was submitted that the Tribunal had no power to perform the hearing by video conference. It was submitted that a videoconference is not permissible, under the legislation, unless it is required by the applicant’s circumstances. It is not a method that is to be carried out at the convenience of the Tribunal, rather than the applicant.

Ground 9

1. It was submitted that it was incumbent on the Tribunal to consider the new Confirmation of Enrolment (“CoE”), as the ground for cancellation of the visa no longer existed. It was submitted that to not consider this, was procedurally unfair.

Ground 10

1. It was submitted that the Tribunal failed to consider the new CoE and in doing so, acted unfairly and confirmed an initial wrong decision by the delegate.

2. In oral submissions, it was submitted on behalf of the applicant that the following sentence, which is contained within the hearing invitation (see Court Book page 54), amounts to a request, pursuant to s 359 of the Act:

   Please provide all documents you intend to rely upon in support of your case. Any documents or written arguments sent to use should be in English and if not then accompanied by a translation from a qualified translator.

3. It was submitted on behalf of the applicant, that no other section empowered the Tribunal to request documents. As such, the Tribunal was compelled to consider the new CoE that was provided by the applicant’s migration agent, prior to the scheduled hearing.

4. In relation to the medical certificate, it was submitted on behalf of the applicant, that the case law relied upon by the first respondent, as to the inadequacy of the medical certificate, could be distinguished from the present case, as this was the first time the applicant had been unable to attend a Tribunal hearing, due to a medical reason.

5. It was submitted that the applicant did everything he could have reasonably been expected to, given his circumstances and the decision not to reinstate the application, was legally unreasonable. This was an important matter and the Tribunal had sufficient information before it, not to cancel the applicant’s visa, given the new CoE was provided.

The First Respondent’s Submissions

Ground 1

1. This ground asserts that the Tribunal failed to provide the applicant with procedural fairness. The Tribunal’s obligation to afford procedural fairness is set out in Part 5 of the Act. Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule, in relation to matters it deals with (see s 357A(1) of the Act”). The Tribunal invited the applicant to a hearing but he failed to attend. The applicant does not otherwise identify what it is about the Tribunal’s procedure that was deficient, having regard to Part 5 of the Act.

2. In the particulars to this ground, it is asserted that the Tribunal did not consider the medical certificate of Dr Tun. This cannot succeed at a factual basis. The Tribunal not only considered the certificate, but it set out the contents of it in full, in its decision to confirm the dismissal.

Ground 2

1. In ground two, the applicant says that the Tribunal failed to consider relevant information. Aside from the assertion that the Tribunal failed to consider the medical certificate, the applicant asserts the Tribunal failed to engage with the merits of the application, including his evidence concerning his education.

2. To the extent that the applicant submits that the Tribunal’s duty, in making a decision to confirm its decision under s 362B(1A)(b) of the Act, was to consider the substantive issues on the review and give reasons in relation to those issues, the applicant is mistaken. The only duty of the Tribunal, having dismissed the matter initially for non-appearance, was to consider whether or not to reinstate the application.

3. The Tribunal was not required to consider the substantive issues of the application. Having confirmed the dismissal decision the Tribunal gave, as required, a statement of reasons for the confirmation, under s 368 of the Act. As a result, having confirmed the dismissal decision, the decision under review is taken to be affirmed (see s 362B(1E) of the Act).

Ground 3

1. In this ground, the applicant asserts that the Tribunal acted beyond power. The applicant refers to s 43 of the AAT Act. That section does not apply in relation to a proceeding in the Migration and Refugee Division (see

   
    

   s 24Z(1) of the AAT Act). The preconditions for the power to dismiss the application, if the applicant failed to appear under s 362B(1A)(b) and confirm the dismissal under s 362B(1C)(b) of the Act, were met.

2. The applicant was invited to attend a hearing pursuant to s 360 of the Act. The applicant did not attend. It was open to the Tribunal to dismiss the matter. Having done so, the applicant was properly advised of his right to seek reinstatement. The Tribunal properly considered the materials put forward in support of the reinstatement application, but in a legitimate exercise of its power, confirmed the dismissal.

Ground 4

1. In this ground, the applicant asserts that the Tribunal acted contrary to

   
   

   s 358 and s 359 of the Act. The applicant appears to assert that the engagement of these provisions, prevented the Tribunal from proceeding with the dismissal of the review under s 362B of the Act. There is no support for the submission in the statutory context. Section 358 of the Act permits the applicant and the Secretary, to give certain documents to the Tribunal. Section 359 of the Act empowers the Tribunal to get information and that if it does so, that it have regard to that information. The Tribunal did not purport to exercise that power in this case.

Ground 5

1. In this ground, the applicant contends that the Tribunal acted in a legally unreasonable manner, or exercise its power “contrary to its objective, purpose, way of operation and power”.

2. In Singh v Minister for Home Affairs (2019) 267 FCR 200 (“Singh”), the Full Federal Court stated at [61]:

   The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power.

3. Neither of the Tribunal’s decisions is the subject of challenge in these proceedings involved an exercise of power beyond the limits of power conferred by the Act.

4. In relation to the initial decision to dismiss the application, the Tribunal followed all procedural steps required to advise the applicant that the hearing would take place on 15 January 2020. Whilst the Tribunal had a discretion, it opted to dismiss the matter (which was a power available to it under s 362(1A)(a) of the Act) when the applicant failed to appear. The decision to dismiss the matter does not mean it was legally unreasonable.

5. The Tribunal is not required to take one option over another. There is nothing legally unreasonable in the decision to confirm the dismissal. The Tribunal was not satisfied on the evidence before it that the applicant was medically unfit to attend the hearing.

6. The applicant submits that a “reasonable Tribunal would prefer to do what is best for the applicant… rather than just what is legally correct”. There is nothing in the objects of the Act, or in the discernible purpose of the discretionary powers that arise when an applicant fails to appear at a hearing to support that contention. It is submitted that the Tribunal is not required to do “what is best for the applicant”.

Ground 6

1. In this ground, the applicant contends that the Tribunal failed to act according to the requirements of s 362B of the Act. The complaint appears to be that the Tribunal failed to consider the medical certificate and erred in failing to appreciate that a medical professional, is not required to provide information about a medical condition in a medical certificate.

2. The Tribunal considered the medical certificate, however noted that there was no independent evidence to prove the applicant was unfit to attend the hearing. All the medical certificate stated was that the applicant was unfit for work for a single day.

3. In MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 (“MZAHI”), the following was said at [7]:

   The medical certificate was plainly inadequate to justify any further adjournment of the Tribunal hearing. The medical certificate merely stated that the appellant was unfit for work and provided no meaningful detail about the nature of the appellant’s illness, or any meaningful content which would enable the Tribunal to conclude that the applicant could not participate at the Tribunal hearing. Given the absence of any meaningful content in the medical certificate it was open to the Tribunal to reject that certificate as sufficient proof that the appellant was unable to participate in a Tribunal hearing on that day.

4. The medical certificate in the current case is similarly bereft of any meaningful detail either in the nature of the alleged illness, or the basis upon which the doctor had expressed the opinion that the applicant was unable to participate in the hearing. Indeed, Dr Tun expressed no view about the applicant’s fitness to participate in the hearing.

Ground 7, 8 and 9

1. In this ground, the applicant asserts that the Tribunal misunderstood the meaning of the word “appear” in s 360 of the Act and that the applicant was not actually invited to appear.

2. In the eighth ground, the applicant asserts that the Tribunal “overarched” it’s authority under s 366 of the Act.

3. The applicant contends in the ninth ground that the Tribunal was unreasonable and procedurally unfair. To the extent that the applicant suggest that the Tribunal’s proposal that he give evidence by video link, invalidated the s 360 of the Act invitation, that cannot be accepted.

4. Section 360 of the Act does not specify the manner in which the Tribunal is to take evidence from an applicant, it requires the applicant to be invited to give evidence. The applicant did not raise any objection with the Tribunal with appearing by video prior to the hearing and nor were there any circumstances evident to the Tribunal which might suggest that such a process would be unfair to the applicant.

5. Section 366 of the Act empowers the Tribunal to take evidence otherwise than in a face-to-face hearing. Further, the Tribunal did not misunderstand the word “appear” in s 360 of the Act. The applicant was given due warning of the hearing arrangements, but did not attend the hearing. It is submitted that no error is made out.

Ground 10

1. This ground is similar in terms of the second ground. The first respondent repeats the submission that it was unnecessary for the Tribunal to engage in an assessment of the material before it, or determine the issues arising on review, either in the exercise of its discretion to dismiss the application, or its exercise of discretion to refusing to reinstate the application.

Consideration

1. Both the grounds of appeal and particulars, together with the written submissions, contain a plethora of allegations of jurisdictional error that are largely entirely misconceived, or are simply legally unsustainable. Many overlap and are repetitive of earlier assertions. The grounds and submissions appear to adopt a “scattergun” approach in the hope that if enough grounds are pleaded, one of the grounds might throw up a matter that might succeed. This approach causes considerable additional work to both the Court and the first respondent. The grounds and submissions are not of a standard the Court is entitled to expect from a legal practitioner in terms, not only their approach and content, but in the grammar and expression used.

2. In essence, the complaint is that the applicant is not happy that the Tribunal initially dismissed his application for non-appearance and then confirmed the dismissal, after the applicant supplied a medical certificate and a Statutory Declaration that he was unwell and was unfit to attend work for the day. The grounds essentially argue that the Tribunal should have adopted a different, more beneficial manner, or was statute barred from acting in the way that it did. None of the grounds pleaded reveal any jurisdictional error and if anything, simply complain in an emphatic way, as to the merits of the decision to dismiss the application. This Court cannot engage in merits review and is restricted to jurisdictional error (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54]).

3. The Court is satisfied that the applicant was properly notified of the time, date and place of the hearing and that all procedural requirements in notifying him, pursuant to s 360 of the Act, were complied with. The hearing invitation specifically indicated that if the applicant sought to postpone the hearing for a medical reason, he needed to provide a doctor’s certificate that stated he was not able to attend the scheduled hearing. This requirement should be contrasted to the statement in the medical certificate that was supplied that he was simply unfit for work.

4. The Court rejects the assertion that the request contained within the hearing invitation letter (see Court Book page 54), to provide any documents that the applicant sought to rely upon, was an exercise of the power under s 359 of the Act. The Tribunal was conducting a de novo merits review hearing. The Tribunal, as a matter of course, was entitled to seek and would expect the applicant to provide any additional documentation that he might seek to rely upon in the hearing.

5. The suggestion that as a result of providing the documentation, this required the Tribunal, in circumstances where the applicant did not appear to not avail itself to the summary dismissal power under s 362 of the Act, cannot be sustained. That would be contrary to the scope and purpose of s 362 of the Act and unambiguous statutory language.

6. It is not in dispute that the applicant failed to appear at the hearing on 15 January 2020. It is also not in dispute that the applicant failed to contact the Tribunal prior to the hearing, or to seek a postponement of the adjournment. The Tribunal dismissed the matter pursuant to s 362(1A)(b) of the Act. This was an outcome that was specifically authorised by the Act. In these circumstances, it cannot be said that the decision to dismiss the application was beyond the scope, purpose and objectives of the statutory source of power (see Singh at [61]).

7. It is also not in dispute that the applicant exercised his right to seek reinstatement. The Court is satisfied that the evidence provided in support of the reinstatement application was considered by the Tribunal, but was deemed insufficient. Whilst that decision may be considered to be harsh, it was a decision that was legitimately open to the Tribunal, based on the evidence that was before it. Courts are often confronted with inadequate medical certificates. The medical certificate in no way sought to address the critical question of whether, and if so why, the applicant’s medical condition would prevent the applicant from travelling to Court and participating effectively in a Court hearing (see NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 per Lindgren J at [6] and [8]).

8. The Court rejects the submissions by the applicant that MZAHI can be distinguished and it is not applicable in the present case. The decisions are of general applicability in relation to the view Court’s and Tribunal’s should take of inadequate medical certificates. Further, the Tribunal contrasted the information in the medical certificate, such as it was, with the claims by the applicant that he could “barely walk”. It was a combination of the medical certificate, as well as the applicant’s Statutory Declaration, that resulted in the Tribunal forming a view that it was not satisfied that the matter should be reinstated for the reasons it gave.

9. There is nothing beyond power or legally unreasonable, in the decision of the Tribunal, in circumstances described, to confirm the dismissal pursuant to s 362(1C)(b) of the Act. In so doing, the decision under review is taken to be affirmed (see s 362(1F) of the Act). As a result, the Tribunal completed the process required of it by the Act, in that the decision, the subject of the application, had been reviewed.

10. Whilst the above might be sufficient to dispose of the application for judicial review, for added caution, the Court will now deal briefly with each of the pleaded grounds of review.

Ground 1

1. In relation to this ground, the Court is satisfied that all procedural requirements as set out in Division 5, Part 5 of the Act were complied with.

Ground 2 and 10

1. In terms of ground two and ten, the Court is satisfied that the Tribunal considered all relevant information, in terms of the matters that were required to be considered. Given that the applicant failed to appear at the hearing, the provisions of s 362(1A) of the Act were enlivened. There was no requirement to consider any information that related to the substantive matters before the Tribunal, in terms of the applicant’s involvement in any other course, or indeed any other matter.

2. It was open to the Tribunal to follow this course, rather than any of the other options open to it. The fact that the applicant disagrees with the course of action taken, is not jurisdictional error.

Ground 3

1. Ground three is unsustainable and fundamentally misconceived. As submitted by the first respondent, that section does not apply in relation to a proceeding in the Migration and Refugee Division of the Tribunal (see s 24Z(1) of the AAT Act).

Ground 4

1. Ground four is similarly misconceived. Sections 358 and 359 of the Act have no applicability in the current circumstances. The Tribunal did not purport to exercise its power under those sections. The Court is satisfied that the sentence contained within the hearing invitation, referred to above, was not an exercise of the Tribunal of the power in s 359 of the Act. The Tribunal was thus not required to then consider the material provided pursuant to the invitation letter.

Ground 5

1. Ground five contends that the Tribunal acted in the legally unreasonable manner or exercise its power “contrary to its objective, purpose way of operation and power”. The Tribunal was specifically authorised under the legislation, to take the action that it did, in initially dismissing the matter and in its decision not to reinstate the review. The suggestion by the applicant that the Tribunal should ‘prefer to do what is best for the applicant… rather than just what is legally correct’, amounts to no more than a philosophical statement, rather than a legal submission based on relevant statute and common law.

2. The Court is satisfied that there was no legal unreasonableness in the decision to both initially dismiss the application and confirm the dismissal. The Tribunal exercised a power that was open to it. No jurisdictional error arises.

Ground 6

1. In terms of this ground, if it is contended that the Tribunal did not consider the medical certificate, than this failed a factual level. Specific reference is made to the medical certificate in the confirmation of dismissal decision. The fact that the Tribunal rejected the medical certificate as being insufficient to justify a reinstatement, was a matter that was open to it, within legitimate decisional freedom.

Grounds 7, 8 and 9

1. Each of the grounds 7, 8 and 9 are misconceived. The contention appears to be that it is only open to the applicant, to request that they appear by video conference and that if the Tribunal proposes to conduct the hearing by video conference, this is beyond power. Section 366 of the Act empowers the Tribunal to take evidence, other than in a face-to-face hearing. All that s 360 of the Act requires that the applicant be properly invited to attend the hearing. The Court is satisfied that the invitation issued to the applicant to attend a hearing met all relevant requirements.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 14 August 2020