Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 374
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 374
File number: MLG 167 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 20 May 2022 Catchwords: MIGRATION – Partner visa – decision of the Administrative Appeals Tribunal – where the applicant did not attend the Tribunal hearing – where the Tribunal dismissed the application for non-appearance at the hearing – whether the Tribunal failed to take into account relevant information – whether Tribunal denied applicant procedural fairness – whether Tribunal failed to disclose information to the applicant – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 57, 360, 360A, 362A, 362B, 362C, 363B, 375A, 376, 379A, 476, 477
Privacy Act 1988 (Cth), Australian Privacy Principle in Schedule 1
Migration Regulations 1994 (Cth), reg 4.21 & cl 820.211 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107
Craig v State of South Australia (1995) 184 CLR 163
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Singh [2016] FCA 575
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration and Border Protection [2018] FCAFC 184
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 106 Date of hearing: 13 May 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms O Hicks Second Respondent: Submitting appearance, save as to costs Counsel for the Respondents: Australian Government Solicitor ORDERS
MLG 167 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAKESH KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
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 KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 22 & 64-65).
On 10 July 2013, the applicant applied for a Partner (Temporary) (Class UK) (Subclass 820) / Partner (Residence) (Class BS) (Subclass 801) visa (the “visa”) (CB 12-68). The applicant married the sponsor on 24 February 2013 (CB 63).
On 16 July 2014, the then Department of Immigration and Border Protection (the “Department”) wrote to the applicant inviting him to provide further information regarding his relationship with the sponsor (CB 85-90).
On 24 September 2014, the applicant responded to the Department’s invitation via email attaching additional documents (CB 91-185), including written submissions from the applicant (CB 132-134) and from his sponsor (CB 135-137).
On 5 June 2015, the Department invited the applicant to comment on information that it considered would be the reason or part of the reason for refusing to grant the applicant the visa pursuant to s 57 of the Migration Act 1958 (Cth) (the “Act”) (CB 186-189).
On 29 June 2015, the applicant responded to that invitation to comment by providing two affidavits, one sworn by the sponsor on 27 June 2015 (CB 191-192) and one by the applicant on 29 June 2015 (CB 193-194).
On 21 July 2015, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 199-227). The delegate found that the applicant did not meet the requirements set out in cl 820.211 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the applicant and the sponsor were committed to each other as spouses and that their relationship would continue after the intended migration outcome (CB 203).
On 6 August 2015, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 230-231).
On 19 October 2016, the Tribunal wrote to the applicant (via email) inviting him to attend a hearing before it scheduled for 5 December 2016 (CB 238-240). The letter was accompanied by an information sheet that explained what would happen if the applicant did not attend the scheduled hearing (CB 240; Supplementary Court Book (“SCB”) 263-266). Relevantly, the invitation and fact sheet letter explained that if:
(a)the applicant was unable to attend the hearing, he should advise the Tribunal of this as soon as possible and, if he intended to request an adjournment, he needed to provide a ‘very good’ reason for the adjournment;
(b)an adjournment was sought on medical grounds, a medical certificate stating why the applicant would be unable to attend a hearing should be provided; and
(c)the applicant failed to attend the hearing, the Tribunal might dismiss the application.
On 4 November 2016, the applicant sent a completed “response to hearing invitation” form to the Tribunal in which he indicated that he would attend the hearing (CB 241-244).
The applicant also requested access to information disclosed by the Department to the Tribunal, under s 362A of the Act (CB 245- 246).
On 24 November 2016, the Tribunal gave the applicant partial access to the requested information (CB 247-248). The information excluded from disclosure was that which was subject to certificates issued by the Department pursuant to ss 376 and 375A of the Act and the “Australian Privacy Principle” (APP 6) in Schedule 1 of the Privacy Act 1988 (Cth).
On 28 November 2016, the applicant was sent an SMS hearing reminders by the Tribunal to the mobile phone number he had provided with his application for review (CB 262).
On 2 December 2016, the applicant was sent a further SMS hearing reminder by the Tribunal (CB 262).
The applicant did not attend the hearing listed for 5 December 2016 at 2.00pm (CB 252).
On 8 December 2016, the Tribunal dismissed the application for review for non-appearance at the hearing pursuant to s 362B(1A)(b) of the Act (CB 250-252) (the “Non-Appearance Decision”). As discussed further below, the explanation provided by the Tribunal for the dismissal was that “no satisfactory reason” had been given by the applicant for his non-appearance at the hearing scheduled on 5 December 2016 (CB 252).
The Non-Appearance Decision was sent to the applicant on 8 December 2016 via email (CB 249). It was sent with a covering letter which, relevantly, provided (CB 250):
You may apply to us, in writing, for reinstatement of the application by 22 December 2016. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted
On 16 December 2016, the applicant telephoned the Tribunal to ask what he had “to do to get another hearing” (CB 253). The Tribunal referred the applicant to the information in the letter dated 8 December 2016 (see above) which advised him that he could apply for reinstatement of his application by 22 December 2016.
Later that same day, the applicant emailed the Tribunal asking for reinstatement of his application for review (CB 254). That email attached a letter written by the applicant (also dated 16 December 2016) which stated (CB 255):
RE: Please consider the statement & evidence to reinstate my application
I am Rakesh Kumar writing this letter to bring your attention to the reason, why I did not attend my schedule hearing on 5th Dec 2016.
On 19th oct 2016 I was invited to attend hearing on 5th dec 2016. I was agree to attend the hearing but unfortunately I could not attend the hearing on scheduled date because I was unfit to attend.
On 3rd dec 2016 evening, I slipped from my drive way and hurt badly my back and head. I was feeling pain and took panadole and slept I thought it is just normal pain. But next day I was feeling really painful in back and went to doctor on 4th dec 2016 for check-up. After diagnose Dr [omitted] advised me that my back is hurt very badly resulting muscle tightness and gave me medicine and advised me to rest for 3 day.
I was still thinking I would attend My hearing however that medicine was strong and feeling unconscious (black out), when I wake up next day I was not fit even to get up from my bed. I was also stressed because it was very important hearing, I tried to ring many time to AAT to inform about my situation. But the officer on other side could not hear me properly.
I was planning to attend hearing so I can present my side view. But the circumstances were beyond my control. Due to this my application was dismissed and I lost my chance. Today I spoke to someone at AAT department and they told me I can request for reinstatement of my application.
I sincerely apologise for non- appearance of AAT and request you to give me another chance.
The applicant also attached a medical certificate issued and signed by Dr [omitted] of [omitted] (CB 256). That medical certificate contained the following information:
Medical Certificate
This to certify that Mr Rakesh Kumar
Attended this clinic on 4/12/2016
suffering from Medical Condition
And in my/his/her opinion, she /he will be /was unfit for work/school/child care
From 4/12/2016 To 7/12/2016 INCLUSIVE
Signed: [signature omitted]
Dr [omitted]
On 3 January 2017, the Tribunal confirmed the decision to dismiss the applicant’s application for review (CB 259-261) (the “Confirmation Decision”).
On 25 January 2017, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
TRIBUNAL’S DECISIONS
Non Appearance Decision
The Tribunal’s reasons in relation to the Non-Appearance Decision dated 8 December 2016 provide in full (CB 252):
The review applicant was invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 5 December 2016 at 2.00pm, but did not appear at the scheduled time and place. As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
Confirmation Decision
The Confirmation Decision is three pages long and spans 14 paragraphs.
The Tribunal began by identifying the type of visa the applicant had applied for. The Tribunal then noted that it had dismissed the application for review pursuant to s 363B(1A)(b) of the Act as the applicant had not appeared at the hearing scheduled for 5 December 2016 (at [1]-[2]).
The Tribunal explained that the applicant had been notified of the dismissal in accordance with s 362C(5) of the Act. The Tribunal also noted that the applicant was advised that he could apply for reinstatement of his application within 14 days of receiving the Non-Appearance Decision (at [3]).
The Tribunal noted that the applicant had applied for reinstatement of his application within the prescribed period but that it “did not consider it appropriate to reinstate the application for review” (at [4]).
The Tribunal then summarised information provided by the applicant on 16 December 2016 which detailed the applicant’s reasons for not attending the review hearing scheduled for 5 December 2016. The Tribunal noted that (at [5]):
(a)the applicant claimed that he had been unfit to attend as he had fallen on his drive-way on the evening of Saturday 3 December 2016 and hurt his back and head;
(b)the applicant took pain relief medication that night but, as he was still in pain, he went for a medical examination the next day (on 4 December 2016);
(c)on 4 December 2016, the applicant was given a medical certificate which stated that he was “suffering from” a “Medical Condition” and “unfit for work/school/child care” from 4 to 7 December 2016, inclusive; and
(d)a copy of the medical certificate had been provided to the Tribunal with a letter from the applicant dated 16 December 2016.
The Tribunal then determined as follows:
6.The Tribunal considers this medical certificate to be insufficiently clear as to the reason that Mr Kumar was ‘unfit for work/school/child care’ from 4 to 7 December 2016. As the nature of Mr Kumar’s medical condition is not explained, it is unclear whether the Tribunal may have been able to accommodate the condition—for example, by conducting the hearing by telephone. The Tribunal finds that the medical certificate provided is insufficient to satisfy the Tribunal of Mr Kumar’s inability to attend the hearing. The Tribunal would not have accepted a request for postponement of the hearing based on the medical certificate provided.
The Tribunal continued:
7.In his letter to the Tribunal, Mr Kumar explained that
I was still thinking I would attend My hearing however that medicine was strong and feeling unconscious (black out), when I wake up next day I was not fit even to get up from my bed. I was also stressed because it was very important hearing, I tried to ring many time to AAT to inform about my situation. But the officer on other side could not hear me properly.
8.On 19 October 2016, when Mr Kumar was invited to the hearing, he was provided with a leaflet entitled 'Information about hearings - MR Division'. The accompanying letter stated that this leaflet ‘contains important information about hearings, dismissals and your rights’. The leaflet stated, amongst other things, that ‘[i]f you are not able to attend the scheduled hearing, you need to advise us as soon as possible’. It also stated that '[i]f you seek to adjourn your hearing for a medical reason, you must provide a doctor's certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason of this'. Further, it stated that non-attendance at the hearing may result in dismissal of the application for review.
The Tribunal then explained that it was not satisfied that the applicant “did in fact contact the Tribunal about his situation” and noted that the applicant had not provided any details of the times he had attempted to call or who he spoke to at the Tribunal (at [9]).
The Tribunal then observed that (at [11]):
(a)on the medical certificate provided, the applicant’s doctor considered the applicant “would be fit for work and like activities on Wednesday 8 December [2016]”;
(b)the Tribunal did not make its decision to dismiss the application until mid-morning on 8 December 2016;
(c)the applicant had an opportunity to inform the Tribunal of the reasons for his non-appearance on 8 December 2016 when his doctor indicated that the applicant would be well enough to attend work; and
(d)the applicant did not take up this opportunity even though he knew that his appeal may be dismissed for non-appearance.
On the basis of the above, the Tribunal confirmed the decision to dismiss the application for review (at [13]-[14]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicant on 25 January 2017 provides six “grounds of review”, as follows (without alteration):
1.My Partner visa was refused on 21st july 2015. I did apply to AAT to review the decision.
2.Hearing for AAT was scheduled on date 5th Dec 2016, however on 3rd dec 2016 I slipped from drive way and hurt badly my back and head, I thought it was normal pain and will be fine. But overnight pain became worst; I went to doctor on 4th dec 2016 for check up. After diagnose Dr [omitted] advised me that my back muscles are very tight because that accident, and told me to have a rest for 3 days and gave some strong medicine. I was still thinking I would attend schedule hearing. Because of medicine I was feeling very week (not proper fit to attend hearing). But due to health issue I could not attend my scheduled hearing and my case no 1510650 was dismissed by Honourable Member.
3.I was informed about the decision of department by email and I was very stressed because I could not present my argument in relation to situation which led my visa refusal. But in the letter it was mentioned that I can request to reinstatement of application by 22 Dec 2016 (14 days). I was hoping that still I have chance that I can explain my situation to AAT.
4.On 16 Dec 2016 with in the time limit. I apologised to AAT because I could not attend the scheduled hearing due to my sickness. But on 3rd Jan 2016 AAT dismissed (affirmed) my appeal.
5.Because of my wife, I do suffer a lot of stress full married life, cheated emotionally and what not.
6.I believe that I was not given fair chance to explain my situation moreover AAT did not even consider my medical condition which was beyond my control. This can happen to anyone, no one can predict future and I am no exception.
The applicant also filed a supporting affidavit with his application which contains a copy of the Tribunal’s Confirmation Decision. That affidavit also contains two paragraphs which provide:
1.I did not intend to miss the scheduled hearing. I did explain compelling reasons to AAT and request to reinstatement of application within 14 days but AAT did not consider my circumstances. Therefore I request to allow me to explain my situation.
2.I am not guilty; therefore I am appealing for justice.
On 6 December 2021, procedural orders were made which gave the applicant an opportunity to file an amended application, any affidavit evidence and written submissions.
On 25 June 2021, the applicant sent an email to Chambers in which he advised that he wished to add the following grounds of review to his application for judicial review (without alteration):
AAT second respondent consititute juridictional error as per Minister for Immigration and Border Protection v Singh [2016] FCA 575
AAT second respondent constituted Juridictional error by denying procedural fairness kind of found in Minister of immigration and Border Protection v Singh [2018] FCAFC 183
First responder breached the section 375a of the Migration Act 1958
The Minister did not object to the applicant’s request to “add to” his grounds of review and addressed the new grounds of review in written submissions filed by the Minister on 12 July 2021.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 25 January 2017, an affidavit filed by the applicant on 7 October 2021, a Court Book numbering 262 pages (marked as Exhibit 1), a Supplementary Court Book numbering 6 pages (marked as Exhibit 2), written submissions and list of authorities filed by the Minister on 12 July 2021, written submissions sent by the applicant to chambers on 25 June 2021 (in which the applicant adds further grounds of review) (marked as Exhibit 3), the affidavit of Maria Ngo sworn and filed on 22 July 2021 and the affidavit of Keith Maxewell Sypott affirmed and filed on 29 November 2021.
The parties appeared before the Court via video link on 13 May 2022. The applicant was assisted by an interpreter in the Punjabi language. The Court confirmed with the applicant that he had a copy of the Court Book, the Supplementary Court Book and the Minister’s written submissions. Noting the contents of the affidavit of Maria Ngo sworn and filed on 22 July 2021, the Court is satisfied that the applicant had been sent all relevant documents.
The Court also addressed what appears to be “oversights” in the application for judicial review filed by the applicant. Relevantly, the Court notes that the application for judicial review does not seek review of the Tribunal’s Non-Appearance Decision. The Court explained to the applicant that the application for judicial review filed by him on 25 January 2017 only related to the Tribunal’s Confirmation Decision. The Minister did not oppose the applicant being granted an extension of time within which to seek review of the Non-Appearance Decision. On that basis, and with the agreement of the applicant, the Court made orders granting the applicant leave to orally amend his application for judicial review to include review of both the Non-Appearance Decision and the Confirmation Decision. The Court also made orders granting the applicant an extension of time, pursuant to s 477(2) of the Act, to apply for review of the Non-Appearance Decision.
This judgment thus considers whether the Tribunal fell into jurisdictional error in relation to both the Non-Appearance Decision and the Confirmation Decision.
It is also noted that the application for judicial review only seeks relief by way of an order quashing the Tribunal’s decision. It does not formally seek a writ of mandamus requiring the matter to be remitted to the Tribunal. As such, the application does not properly invoke the Court’s jurisdiction under s 476 of the Act.
The Court explained the relevance of this omission to the applicant and, with the consent of the Minister made orders allowing the applicant to amend his application to include the seeking of a writ of mandamus, in the event that the applicant was successful before the Court.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker ignores relevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Having been provide this information, the applicant explained the nature of his physical injuries and why he could not attend the hearing before the Tribunal. He also explained that he had attempted to contact the Tribunal to advise the Tribunal that he could not attend but “network difficulties” meant that he could not get through to the Tribunal.
To the extent that these oral submissions address the issue of jurisdictional error, they are discussed below.
CONSIDERATION
This Court’s preferred approach is to be mindful that, where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for a hearing, or understand what is required of them, the Court should read the applicant’s grounds of review as broadly as possible and remain astute to the possibility of legal error in the Tribunal’s decision and raise any concerns in that regard with the Minister. Further, in its duty to the applicant as an unrepresented litigant, this Court has remained astute to error in both the Tribunal’s Non-Appearance Decision and its Confirmation Decision and to the extent that the decisions reveal any material error, the Court will say so: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Grounds 1 to 5
For ease of reference, grounds 1 to 4 provide (without alteration):
1.My Partner visa was refused on 21st july 2015. I did apply to AAT to review the decision.
2.Hearing for AAT was scheduled on date 5th Dec 2016, however on 3rd dec 2016 I slipped from drive way and hurt badly my back and head, I thought it was normal pain and will be fine. But overnight pain became worst; I went to doctor on 4th dec 2016 for check up. After diagnose Dr [omitted] advised me that my back muscles are very tight because that accident, and told me to have a rest for 3 days and gave some strong medicine. I was still thinking I would attend schedule hearing. Because of medicine I was feeling very week (not proper fit to attend hearing). But due to health issue I could not attend my scheduled hearing and my case no 1510650 was dismissed by Honourable Member.
3.I was informed about the decision of department by email and I was very stressed because I could not present my argument in relation to situation which led my visa refusal. But in the letter it was mentioned that I can request to reinstatement of application by 22 Dec 2016 (14 days). I was hoping that still I have chance that I can explain my situation to AAT.
4.On 16 Dec 2016 with in the time limit. I apologised to AAT because I could not attend the scheduled hearing due to my sickness. But on 3rd Jan 2016 AAT dismissed (affirmed) my appeal.
As accurately assessed by the Minister (at [25] in written submissions filed on 12 July 2021), grounds 1 to 4 do no more than provide a narrative of the applicant’s procedural and medical history to date and an overview of why he did not attend at the Tribunal on the date of the scheduled hearing.
These grounds of review do not address jurisdictional error in the Tribunal’s decisions. No error on the part of the Tribunal can be identified or inferred.
Grounds 1 to 4 are, accordingly, dismissed.
By Ground 5, the applicant states (without alteration):
5.Because of my wife, I do suffer a lot of stress full married life, cheated emotionally and what not.
As argued by the Minister (at [26] in written submissions filed on 12 July 2021 – an argument with this Court agrees), this ground is no more than a reference by the applicant about what appear to have been marital difficulties between him and his wife (the sponsor) and/or as caused by another person. This ground does not disclose jurisdictional error in the Tribunal’s decisions, nor can any error on the part of the Tribunal be identified or inferred.
Ground 5 is, accordingly, dismissed.
Ground 6
For ease of reference, ground 6 provides (without alteration):
6.I believe that I was not given fair chance to explain my situation moreover AAT did not even consider my medical condition which was beyond my control. This can happen to anyone, no one can predict future and I am no exception.
Interpreted broadly, by ground 6 the applicant arguably raises the following concerns:
(a)he was denied procedural fairness;
(b)the Tribunal failed to consider information provided by the applicant before it made the Confirmation Decision; and
(c)the Tribunal’s conclusions in relation to the medical evidence and the applicant’s explanation for failing to attend the Tribunal hearing were irrational or illogical.
Procedural Fairness
Confirmation Decision
The Tribunal’s power to dismiss an application for non-appearance is found in s 362B(1A)(b) of the Act. Section 362B(1A)(b) of the Act provides:
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
…
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
The preconditions to the exercise of the power in s 362B(1A)(b) of the Act are found in s 362B(1) of the Act which provides:
362B Failure of applicant to appear before Tribunal
(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.
Here, the Court notes that:
(a)the applicant was invited to attend the hearing scheduled for 5 December 2016 by the letter dated 19 October 2016 which was sent to his nominated email address: s 360 of the Act (CB 238-240);
(b)this letter advised the applicant of the date, time and place of the hearing: s 360A of the Act (CB 239);
(c)the invitation letter was sent via a method specified in s 379A of the Act (i.e. by email) (CB 239);
(d)the letter was sent to the applicant on 19 October 2016, more than 14 days before the date of the hearing (14 days being the minimum prescribed period): reg 4.21(4) of the Regulations; and
(e)
the letter contained a statement explaining the effect of s 362B of the Act
(CB 239-240). The relevant paragraphs in the letter advised that:
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
On 4 November 2016, the applicant responded to the Tribunal’s invitation by email and attached a completed copy of the Form titled “Response to hearing invitation – MR Division” (CB 241-244). By that response, the applicant confirmed his intention to attend the hearing.
There is no dispute that the applicant did not appear at the hearing.
The statutory preconditions to the exercise of the power in s 362B(1A)(b) were met in this matter. However, the power under s 362B(1A)(b) is discretionary. Accordingly, the Tribunal must act “reasonably” in exercising this power: Li at [63] (per Justices Hayne, Kiefel and Bell).
In this matter, the Court does not consider the Tribunal’s decision to dismiss the application pursuant to s 362(1A)(b) to have been unreasonable. Relevantly:
(a)the applicant was invited to attend the hearing scheduled for 5 December 2016 at 2.00 pm (VIC time) and the location was provided as the Tribunal’s address in Melbourne: ss 360 and 360A (CB 238-240);
(b)an information leaflet was also included in the email containing the invitation letter. That leaflet explained in detail what would happen if the applicant did not attend the hearing (SCB 263-268). The relevant part of the leaflet advised the applicant as follows (SCB 265-266):
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.
What happens if an application is dismissed?
If we dismiss your application, a written statement of the dismissal decision will be given to you. Within 14 days after receiving notice of the dismissal decision you may apply for reinstatement of the application.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so. If we reinstate the application, the application is taken never to have been dismissed and we will conduct (or continue to conduct) the review accordingly.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application. If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department's decision remains in force.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
(c)in the email to the Tribunal dated 4 November 2016, the applicant signalled his intention to attend the hearing by completing and returning to the Tribunal the Form: “Response to hearing invitation – MR Division” (CB 241-244);
(d)on 28 November 2016, seven days before the hearing, the Tribunal sent the following SMS message to the mobile phone number provided by the applicant to Tribunal (CB 262):
Reminder - Your AAT hearing is on 05/12/16. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
(e)on 2 December 2016, three days before the date scheduled for the hearing, the Tribunal sent another SMS message to the same mobile phone number reminding the applicant of that his hearing was scheduled for 5 December 2016 (CB 262);
(f)the applicant did not appear at the hearing; and
(g)he did not ask the Tribunal for an adjournment, nor did he contact the Tribunal advising that he was unable to attend the scheduled hearing.
No error arises in this regard.
Confirmation Decision
Section 362B(1C) of the Act provides:
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.
In relation to any procedural fairness concerns the applicant might have regarding the Confirmation Decision, it is noted that when the applicant was advised that his application had been dismissed, he was advised that he could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (CB 250). This complied with s. 362C(6) of the Act. Further, when the applicant called the Tribunal on 16 December 2016 and asked what he needed to do to have his matter listed for a further hearing, the following conversation occurred (CB 253):
RA called to enquire what he has to do to get another hearing. I asked if he received the letter we emailed 8 December. He said he did. I read out the paragraph explaining what he had to do. He said he had medical evidence. I said he should provide anything he wished the Member to take into consideration.
The applicant does not dispute that he received the letter advising him of what was required of him. The Court notes that the applicant did apply for reinstatement within 14 days as required and provided evidence which he believed supported his case. The Tribunal assessed that evidence but, as explained below, determined that it was not, on the basis of that evidence, appropriate to reinstate the application. A written statement to that effect was then provided to the applicant.
No error arises in relation to the Tribunal’s procedural fairness obligations in this regard.
Did the Tribunal overlook relevant material?
The applicant broadly claims that, in confirming the decision to dismiss his application under s 362B(1C) of the Act, the Tribunal failed to consider the reasons he gave in a letter to the Tribunal dated 16 December 2016 (which explained why he had not attend attended the hearing) (CB 255) and the medical certificate he provided in support (CB 256).
In the written submissions filed on 12 July 2021, the Minister responds to these concerns and submits:
29.The applicant’s complaint that the Tribunal failed to consider his medical condition is without merit. Where an application for reinstatement is made, the Tribunal’s task is to make an assessment of all the matters advanced by an applicant in support of reinstatement. The only matter raised by the applicant in support of reinstatement was the impact of his claimed medical condition on his capacity to attend the hearing. This matter was the subject of substantial consideration by the Tribunal, who ultimately rejected the applicant’s argument for the reasons set out in [18]-[22] above. Those reasons disclose an evident and intelligible basis for the Tribunal’s decision to confirm the non-appearance decision.
The Court agrees.
In arriving at its ultimate decision that the application should not be reinstated, the Tribunal did in fact consider the reasons advanced by the applicant in the letter dated 16 December 2016 (at [5]) and the information provided in the accompanying medical certificate. Relevantly, the Tribunal considered the information presented in the medical certificate (CB 256) and concluded that it was (at [6]):
(a)“insufficiently clear” as to the reasons why the applicant was ‘unfit for work/school/child care’ from 4 to 7 December 201”;
(b)“unclear” as to the nature of the applicant’s medical condition and did not indicate whether the Tribunal could have accommodated that condition by, for example, conducting the hearing via telephone; and
(c)insufficient to satisfy the Tribunal of the applicant’s inability to attend the hearing.
In terms of the explanations provided by the applicant in the letter dated 16 December 2016, the Tribunal found that:
(a)it was not satisfied that the applicant did in fact attempt to telephone the Tribunal to explain his situation as he had claimed in that letter (at [9]);
(b)given the applicant’s awareness of the possibility of the Tribunal dismissing his application for non-appearance, he could have used other modes of communication (such as email) to advise the Tribunal of the reasons for his non-appearance at the hearing (at [10]);
(c)given that the applicant’s doctor indicated that the applicant would be fit for work and other activities by 8 December 2016 on the medical certificate, the applicant did not avail himself of the opportunity to contact the Tribunal that same day [at [11]); and
(d)the evidence before the Tribunal (in the form of a file note (CB 253)) indicated that the applicant first attempted to contact the Tribunal to enquire about “getting another hearing” on 16 December 2016 – eleven days after the date of the scheduled hearing (at [12]).
The Court is satisfied that the Tribunal genuinely considered the information before it to the extent required in the authorities: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [43]–[46].
No error arises in this regard.
Was the Tribunal’s Confirmation Decision “illogical”?
As noted above, the Tribunal was not persuaded by either the claims in the letter dated 16 December 2016 or the information presented in the medical certificate. As it appears, the Tribunal attributed no weight to either piece of evidence.
In Singh v Minister for Immigration and Border Protection [2018] FCAFC 184, the Full Court of the Federal Court explained that:
29.When s 362B(1C) says that on an application for reinstatement the Tribunal must, if it considers it appropriate to do so reinstate the application, it imposes a statutory responsibility on the Tribunal to form an opinion or make an assessment as to whether reinstatement is ‘appropriate’ having regard to all of the circumstances advanced to support reinstatement. In such a context, the word ‘appropriate’ connotes two aspects: fitness and propriety. That is, in order to be ‘appropriate’, something must be both suited to the particular circumstances as well as sensible, right and proper.
In this matter, the Tribunal determined that it was not appropriate for the Tribunal to reinstate the application. As concisely and accurately summarised by the Minister in written submissions filed on 12 July 2021 (at [18] to [22]), in coming to that conclusion, the Tribunal had regard to:
(a)the medical certificate provided by the applicant which, the Tribunal determined, was not sufficiently clear about why the applicant was “unfit for work/school/child care” from 4 December 2016 to 7 December 2016. The Tribunal noted, in particular, that the nature of the applicant’s medical condition was not explained and did not assist the Tribunal in determining whether it may have been able to accommodate that condition at a hearing. The Tribunal was not satisfied that the applicant was unable to attend the 5 December 2016 hearing on the basis of the medical certificate provided (at [6]);
(b)the fact that, when the applicant was invited to attend a hearing, he was provided with an information sheet that stated that, if he was unable to attend the scheduled hearing, he should advise the Tribunal as soon as possible. The information sheet further stated that, if the applicant sought to adjourn his hearing on medical grounds, he should provide a doctor’s certificate outlining why he was unable to attend the hearing (at [8]);
(c)the Tribunal’s rejection of the applicant’s claim that he had contacted the Tribunal ‘many time(s)’ on the day of the hearing to outline his medical situation. The Tribunal did so on the basis that the applicant had provided no detail of the times at which he called or the name of the person or persons to whom he claimed to have spoken. Further, it noted that there was no evidence in the Tribunal’s records of the applicant having attempted to contact the Tribunal via telephone prior to his hearing, or at all until 16 December 2016 when he sought information about applying for reinstatement (at [9] and [12]);
(d)the Tribunal’s rejection of the applicant’s claim that the Tribunal officers that he spoke to could not hear him properly over the telephone. The Tribunal noted that, given the importance of the applicant attending the hearing or advising the Tribunal of his claimed medical situation, and the applicant’s knowledge that the Tribunal was not aware of that medical situation, the Tribunal found it implausible that the applicant did not seek to take other action to inform the Tribunal of his medical situation. It noted that such action could have included an email, the use of a smart phone to send a photograph of the medical certificate or seeking the assistance of a friend to contact the Tribunal (at 10]); and
(e)the fact Dr [omitted] had considered that the applicant would be fit for work and similar activities by 8 December 2016 and the fact that the Tribunal had not dismissed the application until mid-morning on that date. The Tribunal considered that the applicant had an opportunity to advise the Tribunal of his reasons for non-appearance on that morning, but had not done so (at [11]).
The question that arises here is whether the Tribunal’s decision in this regard is illogical or irrational. To the extent that the applicant is suggesting that the Tribunal’s conclusions in this regard are illogical, the Court disagrees. As articulated by the High Court in SZMDS, the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Here, it cannot be said that the Tribunal’s findings in relation to the applicants’ medical evidence and his explanations for not attending the hearing were not open to it. While this Court might have assessed the evidence before it differently, that is not the test on review. The question that this Court must answer is whether, on the evidence, the Tribunal’s conclusions are “clearly unjust” or “arbitrary” or “capricious” or “unreasonable”.
Given the nature of the evidence before the Tribunal and the Tribunal’s forensic assessment of that evidence, the Tribunal’s rejection of that evidence and the Tribunal’s ultimate determination that this was not an appropriate case for reinstatement was entirely reasonable: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87].
No jurisdictional error arises in the Confirmation Decision in relation to this issue.
Additional Matters
In noted above, in an email to chambers received on 25 June 2021, the applicant indicated that he wanted to add the following grounds to his application for judicial review (without alteration):
AAT second respondent consititute juridictional error as per Minister for Immigration and Border Protection v Singh [2016] FCA 575
AAT second respondent constituted Juridictional error by denying procedural fairness kind of found in Minister of immigration and Border Protection v Singh [2018] FCAFC 183
First responder breached the section 375a of the Migration Act 1958
The Minister takes no issue with the form or manner in which the grounds in the email dated 25 June 2021 are raised. However, the Minister does contend that the three paragraphs in the email do not demonstrate jurisdictional error in the Tribunal’s decisions.
For the reasons that follow, the Court agrees with the Minister.
In relation to the applicant’s reference to the case of Minister for Minister for Immigration and Border Protection v Singh [2016] FCA 575 (“Singh No 1”) in the first paragraph above, the Court in that decision found this Court to have incorrectly held that there were factual errors in a Tribunal decision that amounted to jurisdictional error.
As stressed by the Minister (at [33] in written submissions filed on 12 July 2021) the applicant has not explained why Singh No 1 is relevant to this matter. Nor is the relevance of Singh No 1 to this matter self-evident when read as a whole. As discussed above, the conclusions made by the Tribunal in the present matter were open to it on the material before it. The Tribunal here did not consider the merits of the applicant’s substantive application. Rather, it dismissed the application for non-appearance and subsequently confirmed that decision.
No jurisdictional error arises in relation to the issues in the first paragraph of the email sent to chambers on 25 June 2021.
By the second and third paragraphs of the above email, the applicant refers to two notifications issued by the Department to the Tribunal dated 18 August 2015 (CB 228) and 16 December 2015 (CB 229), respectively. Each notification had the effect of limiting disclosure of certain information obtained by the Department only to the Tribunal pursuant to ss 376 and 375(2)(b) of the Act.
The applicant’s concern here is that the Tribunal denied him procedural fairness by not disclosing the fact of the Department’s notifications to him. In this regard, he relies on Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 (“Singh No 2”). The Court notes that the applicant references that decision as [2018], rather than [2016]. This is no more than a typographical error.
In Singh No 2, the Full Court held that the mere “existence” of notifications limiting the disclosure of information by the Tribunal “has an immediate and adverse impact on an applicant’s entitlement to participate in the hearing” (at [51]). As such, these notifications give rise to a duty on the part of the Tribunal to afford an applicant procedural fairness on the issue of the notifications: Singh No. 2 at [52].
In addressing whether an issue of concern arises here, in written submissions filed on 12 July 2021,+
the Minister submits:
35.In a letter to the applicant dated 24 November 2016, responding to a request for access to the Tribunal’s files, the Tribunal disclosed the fact that it had received notifications under both ss 375A and 376 of the Act. Accordingly, it did not fail to comply with its obligation of procedural fairness to disclose the fact of notification.
36.The applicant’s argument that the Minister ‘breached’ s 375A of the Act fails to engage with the nature of the decision under review. The Tribunal’s determination of the application for reinstatement was a procedural decision did not lead it to consider any of the material relating to the substantive merits (including any material covered by a ss 375A or 376 notification). Its focus was, appropriately, on the only matter advanced in support of reinstatement, being the applicant’s claimed medical condition.
The Court agrees.
On 4 November 2016, the applicant requested access to information disclosed to the Tribunal via email (CB 245). That email attached the relevant Form: “Request for access to written material under Section 362A of the Migration Act – MR Division” (CB 246).
On 24 November 2016, the Tribunal gave the applicant partial access to the requested information (CB 247-248). The information excluded from the disclosure was that which was subject to the certificates issued under ss 376 and 375A of the Act and the “Australian Privacy Principle” (APP 6) in Schedule 1 of the Privacy Act 1988 (Cth).
To the extent that the Tribunal did not disclose the fact of the certificates before the applicant requested access on 4 November 2016, the Tribunal’s conduct in this regard did not amount to jurisdictional error. As the Minister points out in written submission filed on 12 July 2021 (at [37]), the Tribunal’s “non-compliance” with any procedural fairness duties in this context is only a jurisdictional error if that breach has had a material effect on the Tribunal’s decision.
The information the subject of the two certificates was not material to either the Tribunal’s Non-Appearance Decision or the Confirmation Decision. Both decisions were, in the Minister’s terms, “procedural” decisions that did not require consideration of “any material relating to the substantive merits (including any material covered by a ss 375A or 376 notification)”.
Hence, the Minister argues, to the extent that the Tribunal denied the applicant procedural fairness by not disclosing the Department’s notifications within a reasonable time, that breach was not material to either the Non-Appearance Decision or the Confirmation Decision.
The Court agrees and is satisfied that disclosure of the notifications to the applicant would not have realistically resulted in a different Tribunal decision in either the Non-Appearance Decision or Confirmation Decision: MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at [32].
No jurisdictional error arises from the issues raised in the second and third paragraphs of the applicant’s email to chambers on 25 June 2021.
CONCLUSION
The application for judicial review (as amended) has failed to identify any jurisdictional error in the Tribunal’s Non-Appearance Decision and Confirmation Decision. The Court is otherwise unable to identify any jurisdictional error in either of the Tribunal’s decisions.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2022
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