Minhas v Minister for Immigration
[2018] FCCA 2314
•24 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MINHAS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2314 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a Student visa – application in this Court for judicial review of decision of Administrative Appeals Tribunal affirming decision of Delegate of the Minister for Immigration not to grant a Student visa due to not being satisfied that the applicant genuinely intended to stay in Australia temporarily – no appearance by applicant before scheduled Tribunal hearing – applicant applied to Administrative Appeals Tribunal for reinstatement on the basis of inadequate medical certificate – Administrative Appeals Tribunal nevertheless reinstated application for review – no appearance by applicant at rescheduled hearing before the Administrative Appeals Tribunal and it proceeded to dismiss review application – no appearance by applicant at scheduled final hearing of the application for judicial review filed in this Court – first application for reinstatement for non-appearance in this Court – no appearance by applicant at scheduled first reinstatement hearing before this Court – second application for reinstatement in this Court – no reasonably arguable jurisdictional error identified in proposed grounds and no adequate explanation given for non-appearance at the scheduled final hearing – second application for reinstatement dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.2A Migration Act 1958 (Cth), ss.348, 360, 362B, 363 Migration Regulations 1994 (Cth) |
| Cases cited: AYX17v Minister for Immigration and Border Protection [2018] FCAFC 103 BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365 Sullivan v Department of Transport (1978) 20 ALR 323 SZMSA v Minister for Immigration [2010] FCA 345 SZMSF v Minister for Immigration [2010] FCA 585 |
| Applicant: | USMAN AZMAT MINHAS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3217 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 29 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms E. Warner-Knight |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application in a Case filed in this Court on the 31 August 2017 seeking leave to file a further Application in a Case for reinstatement of the substantive Application filed on 18 November 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3217 of 2016
| USMAN AZMAT MINHAS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Pakistan aged 32 years, having been born on 31 December 1985.
By Application filed in this Court on 18 November 2016 the Applicant sought to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 27 October 2016 (made under s.362B(1A)(b) of the Migration Act 1958 (Cth) (the Act)) to dismiss on that date his application for review of the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 7 December 2015 refusing to grant him a Student (Temporary) (Class TU) visa (Student visa) because of his non-appearance at the Tribunal hearing scheduled for 27 October 2016.
Background
The Applicant was granted a Student visa offshore on 8 January 2014, which was valid until 30 September 2015, and arrived in Australia on 1 February 2014. Since that time he has held either a Student visa or an associated Bridging visa.
The Applicant lodged his application for the Student visa the subject of this proceeding on 30 September 2015.
Statutory Requirements for the Grant of a Student Visa
Relevantly to this proceeding the Applicant had to satisfy what is known as the genuine temporary entrant criterion comprised in cl.573.223 of the Migration Regulations 1994 (Cth) (Regulations) which required, inter alia, that he be what is known as a “genuine applicant for entry and stay as a student”. Subclause 573.223 at the time of decision provided as follows:
573.223
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter;…
Decision of Delegate
By his Decision Record of 17 December 2015 the Delegate refused to grant to the Applicant a Student visa because he was not satisfied that the First Applicant was a genuine applicant for entry and stay as a student. The Provider Registration and International Student Management System indicated that the three courses in which the Applicant had been enrolled since he had been in Australia as the holder of a Student visa had been cancelled for non-payment of fees and thus the Applicant had not completed any of the Masters courses in which he had been enrolled. The Delegate found that the Applicant was using the Student visa program as a means of maintaining residence in Australia and he refused to grant the Student visa to the Applicant.
By letter dated 7 December 2015, sent by email to the email address of the Applicant’s then migration agent and authorised recipient, the Department of the Minister notified the Applicant that his application for the Student visa had been refused and attached the Decision Record of the Delegate.
Application for Review to Tribunal and Tribunal Decisions
On 24 December 2015 the Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal.
By letter dated 1 August 2016, the Tribunal invited the Applicant to appear at a hearing before it to give evidence and present arguments on 20 September 2016 at 9:30am. The letter also requested that the Applicant provide to it all documents he intended to rely on to establish that he met the criteria for the Student visa, advised that he would be assessed on whether he intended genuinely to stay in Australia temporarily and requested the following information:
(a)a copy of his current Certificate of Enrolment as required for the grant of the Student visa;
(b)document/s that showed he was currently enrolled in a course or had an offer of enrolment in a registered course, as required for the grant of the Student visa;
(c)document/s evidencing his past studies in Australia, including copies of all of his attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia; and
(d)an explanation of any gaps in his enrolment/s and any documentary evidence relevant to his explanation.
On 13 September 2016 the Applicant and a case officer of the Tribunal had a telephone conversation concerning certain aspects of the upcoming Tribunal hearing on 20 September 2016.
At around 8:47am on 20 September 2016 Mr Khan of Australian Multicultural Charity telephoned the Tribunal to advise it that the Applicant had rung him the previous night saying that he had food poisoning so that he would be unable to make it to the Tribunal hearing. Mr Khan further advised that he had a medical certificate for the Applicant but that Mr Khan himself was currently at a hospital with his wife who had suffered a heart attack the previous evening so that Mr Khan was not in a position to send the medical certificate to the Tribunal immediately. When the case officer pointed out to Mr Khan that he was not listed as the representative of the Applicant, Mr Khan responded that the Applicant had only approached him the previous evening about the application for review, but that he would send the medical certificate when he could.
A case officer of the Tribunal then at 9:25am telephoned the Applicant on his mobile phone but the call went straight to voice mail. The case officer left a message giving the substance of the conversation with Mr Khan but further explained that the Tribunal member was not prepared to postpone the hearing given no medical certificate had been provided, but was prepared to hold the hearing by telephone and would contact him later in the morning, once the other applicants in the Tribunal’s list had been heard. A confirmatory email to this effect was sent at 9:35am to the email address of the Applicant given by him in his application for review.
On 20 September 2016 the Tribunal made three calls to the Applicant’s mobile phone at 10:01am, 10:02am and 10:03am, with the last call going straight to message bank. The Applicant did not appear at the Tribunal for the hearing and by decision made under s.362B(1A)(b) of the Act the Tribunal dismissed the application for review at 11:36am on 20 September 2016 for the following substantive reasons:
The Tribunal considered the request for the adjournment, but decided not to grant the adjournment. This decision was made on the basis that the original Student visa application was lodged almost one year prior to the date of hearing, the 30 September 2015, and that the applicant had failed to provide any evidence of his enrolment or studies as requested by the hearing in the letter dated 1 August 2016. Also, although a third party referred to the applicant having obtained a medical certificate, this was not provided to the Tribunal prior to or at the time of the hearing.
Therefore 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.
The Decision Record of the Tribunal dismissing the application for review and an invitation to apply for reinstatement of his application for review was received by the Applicant by email from the Tribunal on 20 September 2016 and by fax dated 3 October 2016 Mr Khan sought reinstatement of the application for review and enclosed:
(a)a Notice of Appointment of Mr Khan as the Applicant’s representative and authorised recipient for the purposes of the application for review; and
(b)a medical certificate from Dr Karen Wong dated 19 September 2016 certifying;
I have examined Mr Usman Minhas who in my opinion is suffering from a medical condition and will be not fit for work from 20/09/2016 to 21/09/2016 inclusive.
Between 4 October 2016 and 12 October 2016 there were various communications and telephone discussions between the Tribunal, case officers of the Tribunal, the Applicant and Mr Khan relating to the Tribunal’s request for the information and documents previously requested in its letter dated 1 August 2016 and the Tribunal’s request to be given a copy of the Decision Record of the Delegate. By faxed letter of 11 October 2016 Mr Khan advised the Tribunal that he was going to get a copy of the Decision Record of the Delegate from the Department of the Minister and as soon as a copy had been received by him it would be forwarded to the Tribunal.
By Decision Record dated 12 October 2016 the Tribunal reinstated the Applicant’s application for review under s.362B(1C)(a) of the Act and by letter sent on the same date (by email to each of the Applicant and Mr Khan) invited the Applicant to appear before it on 27 October 2016 at 12pm. The letter stated that the Tribunal was unable to make a favourable decision on the information received to date and reiterated the request for information and documents requested in its earlier letter of 1 August 2016. The letter of 12 October 2016 further specifically advised as follows:
The Member reviewing your case advises that no further postponement of the hearing will be granted on medical grounds unless you provide the Tribunal with a report from your treating doctor which sets out the following information:
o A detailed description of your medical condition and treatment; and
o A detailed explanation as to why your medical condition prevents you from attending a hearing before this Tribunal.
If you are unable to attend in person you will be offered a telephone hearing.
Finally, the letter enclosed and requested the completion of the usual Response to Hearing Invitation. It was not completed and returned to the Tribunal and there is no evidence that the Applicant made any response to the Tribunal’s letter of 1 August 2016.
On 26 October 2016 at 11:34am a telephone discussion took place between Mr Khan and a case officer of the Tribunal which was recorded in a Case Note as follows:
The representative Mr Khan telephoned and asked the status of this case. I informed him a hearing is scheduled to take place on 27 October 2016 at 12.00pm. Mr Khan stated that he did not receive the hearing invitation letter. I informed him [that] on 12.10.16, the hearing invitation was sent to him and a copy also sent to RA. Mr Khan stated that we asked for a copy of DIBP decision and he didn’t provide that to the tribunal yet. I informed him that he is not obliged to provide a copy of the department’s decision and we sent him an email about it. Mr Khan further added he did not have a copy of the department’s decision and how he can help his applicant. I asked Mr Khan to submit his concerns in writing to the tribunal. Mr Khan agreed to do so. Mr Khan requested me to send him a copy of the hearing invitation to his email recorded in casemate. I agreed to send him a courtesy copy of the hearing invitation sent to him on 12/10/16. I also requested him to return the response to hearing invitation form.
By email dated 26 October 2016 at 12:48pm Mr Khan was informed that the hearing scheduled for 12 noon on 27 October 2016 would go ahead on the following day. A telephone message was left with the Applicant to the same effect at the same time.
Mr Khan sent a fax on 27 October 2016 at 11:18am, verbatim in the following terms:
Ref to my telephone discussion with you yesterday that we did not receive your email in relation to hearing 27 October 2010.
The tribunal asked us to provide the copy of the immigration decision record we advise the AAT that we do not have therefore we are going to get from department of immigration to provide the tribunal.
Therefore without the department decision recorded hearing would be prejudice to our client therefore we are seeking adjournment until we receive the decision record from immigration to assist our client.
By email in response the Tribunal advised that the hearing would go ahead on 27 October 2016 and that if the Applicant did not attend the review application would be dismissed. The reasons were stated in this letter to include:
• the delay since the original Student Visa was lodged, being 30 September 2015;
• the delay since the applicant appealed to the AAT, being 24 December 2015;
• the delay since the applicant was advised of the first hearing, in correspondence dated 1 August 2016, with hearing set for 20 September 2016;
• and that more than one postponement has already been granted.
The member has also taken into account that the application was dismissed for non-appearance on 20 September 2016, then re-instated on 12 October 2016, with a hearing invitation sent on the same date, and the late notice the applicant / Migration agent has provided in requesting an adjournment.
The Tribunal also notes that the hearing invite was sent to the email address listed in in the Appointment of Representative form dated 3 October 2016.
As such, the hearing will go ahead today. If the applicant does not attend, the matter will be dismissed.
The Applicant did not attend the scheduled hearing on 27 October 2016 and the application for review was again dismissed under s.362B(1A)(b) of the Act at 4:03pm for the reasons stated in the Decision Record of the Tribunal of that date.
By email of the same date both Mr Khan and the Applicant were given a copy of the Decision Record of 27 October 2016 and advised that the Applicant could apply for reinstatement by 10 November 2016. No further reinstatement application was made and by Decision Record dated 14 November 2016 the Tribunal confirmed its decision of 27 October 2016 to dismiss the application for review as it was required to do by s.362B(1E) of the Act, which meant that under s.362B(1F) the decision of the Delegate not to grant the Student visa to the Applicant was taken to be affirmed.
Grounds of Attack on Tribunal Decision and Procedural History in This Court
In his Application filed in this Court on 18 November 2016 the Applicant relied on the following Grounds:
1.Member determine[d] the Review [w]ithout [the] [D]epartment of [I]mmigration decision record to proceed with the hearing to determine the application.
2.The member made error of [l]aw to determine the application proceeded with the hearing without the full fact of the department decision.
Procedural History in this Court
The Application was first returnable before me on 9 December 2016 at 9:30am when the Applicant did not appear at that time. I made orders adjourning the case until 16 December 2016 and required the Minister to give notice to the Applicant of the adjourned hearing date. As it turned out the Applicant did arrive at Court at 10:30am, after the Minister’s solicitor had left, and the Applicant was informed of the adjourned hearing date of 16 December 2016.
The Applicant appeared at this second directions hearing on 16 December 2016 when procedural orders were made to get the matter ready for hearing and the matter was stood over to a callover on 5 May 2017, when the Applicant appeared and the matter was set down for final hearing on 26 May 2017.
The Applicant did not appear at the final hearing on 26 May 2017 (when Mr Reilly of Counsel appeared on behalf of the Minister) and I dismissed his Application at the Minister’s request pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Rules) and ordered him to pay the Minister’s costs in the amount of $7,206. I also made a further order which provided as follows:
In the event that the Applicant were minded to file an Application in a Case seeking reinstatement of his Application, that he be prepared on the first return date of that Application in a Case to run both the application for reinstatement and his substantive Application.
On 14 June 2017 the Applicant filed an Application in a Case seeking to set aside the order for dismissal of the Application on 26 May 2016 and reinstatement of it (First Application in a Case). The First Application in a Case was supported by an Affidavit of the Applicant affirmed 14 June 2016 which stated as follows:
I couldn’t appear to the Court on 26th of May because an unfortunate incident happened a few days earlier that put me into stress and anxiety. It was basically an accident that I will provide Proofs later.
No “Proofs” have ever been provided by the Applicant.
The Applicant and the First Respondent’s lawyers were advised that the hearing of the First Application in a Case would be on 4 August 2017, not before 11:00am.
By email sent to my Chambers at 2:40am on 4 August 2017 the Applicant sought an adjournment of the hearing of the First Application in a Case on the basis that he was attempting to obtain the services of a lawyer, but had failed to date. An email response was sent from my Chambers at 7:42am on 4 August 2017 advising the Applicant that the First Application in a Case would not be adjourned on the basis of his email, but that if he wished to make an adjournment application he was at liberty to do so in Court at 11:00am. The Applicant responded by email of 10:15am on 4 August 2017 and advised that he would not be able to attend the Court at 11:00am because he was, verbatim, “in a desperate situation where I find myself failed to make any decision”.
On 4 August 2017 Mr Reilly of Counsel again appeared for the Minister but the Applicant did not appear and at the Minister’s request I dismissed the First Application in a Case and ordered the Applicant to pay the Minister’s costs in the amount of $1,200. I made a further order on this occasion, as follows:
No further Application in a Case in this proceeding is to be filed by the Applicant without the leave of a Judge of the Court first had and obtained.
In the event, on 31 August 2017 the Registry of the Court accepted for filing an Application in a Case (Second Application in a Case) which sought leave to file an application in a case for reinstatement. The Applicant also filed an Affidavit dated 30 August 2017 of himself which stated verbatim as follows:
1. That I have been unemployed last 12 month therefore I have been suffering from serious financial hardship which led to my serious depression.
2. I have not been able to engage or seek legal advice from lawyer due to my financial problem and I do not understand the court system therefore I did not know what to do hence I did not appear on my court hearings, because I did not know what to do.
3. However I have sought assistance from Australian Multicultural charity they would help me to get the lawyer to represent me therefore it is my humble request to the honourable court for natural justice my case may kindly be reinstate enabling me to support my application.
The Second Application in a Case was set down for hearing on 29 September 2017 when the Applicant appeared in person and Ms Warner-Knight appeared on behalf of the Minister. I made clear to the parties at the commencement of the hearing that I considered that I was hearing at the same time the Second Application in a Case, as well as what I would take to be an oral application by the Applicant for reinstatement and the substantive Application to the extent necessary for me to determine whether or not I should grant reinstatement.
The principles governing an application for reinstatement of an application after it has been dismissed for absence of appearance under r.13.03C(1)(c) of the Rules were stated by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] as follows:
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.
(emphasis added)
Consideration
In my view the Second Application in a Case should be dismissed because any application for reinstatement ought to be refused for the following reasons.
First, I do not consider that the Applicant has given any adequate or reasonable excuse for his absence and non-appearance before the Court at the final hearing of his substantive Application scheduled for 26 May 2017. His Application in this Court had been filed on 18 November 2016 and he had received ample time to prepare for the final hearing on 26 May 2017.
His initial excuse as put forward in his Affidavit in support of the First Application in a Case was “because an important incident happened a few days earlier that put [him] into stress and anxiety”: see [27] above.
However, the Applicant in that Affidavit did not suggest that any stress or anxiety from which he suffered actually rendered him incapable of meaningfully participating in the final hearing on 26 May 2017. Further, he has not tendered any medical evidence to the effect that he was unable to meaningfully participate on that occasion. Subsequent to that Affidavit he has never provided the “Proofs” which he stated that he would.
It is relatively common for parties and witnesses before Courts and administrative tribunals to be stressed or to suffer from psychological disorders or psychiatric illness. However, these conditions of themselves are not determinative of fitness to participate in a hearing: SZMSF v Minister for Immigration [2010] FCA 585 at [32] per Flick J; SZMSA v Minister for Immigration [2010] FCA 345 at [32] per Gilmour J, approving [100] of the decision of the primary magistrate under appeal and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 16 [19] and at 49-50 [126], where Callinan J said as follows:
This should also be said about stressed witnesses. They are by no means rarely encountered in courts and tribunals. Legal and inquisitorial proceedings can be very stressful occasions even for people who have no direct interest in their outcome. That a witness or a party may be stressed will rarely of itself constitute sufficient reason to postpone a hearing. Whether a party or a witness is so stressed as to be unable to give a reasonable account of himself or herself, or whether further inquiries as to the capacity of a person to do so should be made, is pre-eminently a matter for the court or the tribunal to decide, and courts and tribunals by experience are generally well equipped to do so.
Insofar as his Affidavit dated 30 August 2017 is to be taken as stating reasons for his non-appearance on 26 May 2017 (see [30] above), that Affidavit is unpersuasive and implausible. Most applicants in migration cases before this Court appear without the benefit of the services of a lawyer, but manage to convey to the Court the nature of their complaints about the decision of the Tribunal under review. The Applicant is actually in a better position than most to run a case before the Court because, whilst he had the services of an interpreter at the hearing of the Second Application in a Case, he must obviously have a reasonable knowledge of the English language because he was intending to study courses leading to the degrees of Master of Professional Accounting and Master of Business Administration and in his Student visa application indicated that prior to coming to Australia he had sat for an International English Language Testing System test, for which he had received an overall band test score of 6.0.
Further, his alleged serious financial hardship and inability to engage a lawyer are in my view also inadequate explanations for his absence from the final hearing on 26 May 2017. Neither financial hardship nor inability to retain a lawyer are generally regarded either in this Court or in the Federal Court of Australia as excuses for non-appearance at, or adjournments of, scheduled hearings.
Turning to prejudice, there is obviously no great prejudice to the Minister but an absence of prejudice is not conclusive in the present circumstances and the element of finality in administrative decision-making is a factor that needs to be taken into account.
Finally, I do not consider that the Applicant has reasonably arguable prospects of success for his two substantive Grounds (see [23] above) which attack the Tribunal’s decision of 27 October 2016 to dismiss his application for review. I note that the Tribunal’s decision in this regard is comprised in both the email (see [20] above) and its Decision Record of that date. I take the Grounds as attacking as legally unreasonable the Tribunal’s decision on 27 October 2016 to dismiss the application for review because of the non-appearance of the Applicant at the hearing and implicitly as contending that the Tribunal should have on that day adjourned the hearing or alternatively proceeded to make a decision on the review and consider his claims in his absence under s.362B(1A)(a) of the Act. I note that the exercise of a discretionary power of a kind given by s.362B to the Tribunal is subject to judicial scrutiny in order to determine whether it was exercised in a legally unreasonable way: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Under s.363(1)(b) of the Act, the Tribunal has the power to adjourn a review from time to time. Further, the Tribunal is exhorted by s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to carry out its functions in a way that is “fair, just, economical, informal and quick”. However, these discretionary powers to adjourn a hearing, to proceed with a hearing and to operate economically, informally and quickly must be exercised reasonably in a legal sense and not arbitrarily, capriciously or without common sense, having regard to the central obligation of the Tribunal under s.348 of the Act to review relevant decisions and to give the relevant applicant a meaningful opportunity or a real chance to appear and to present evidence and arguments pursuant to the invitation extended under s.360.
However, in my view the decision of the Tribunal to dismiss the application for review without any further consideration on 27 October 2016 was not legally unreasonable and did not “lack an evident or intelligible justification”, in particular also because eo instanti it afforded the Applicant the opportunity to seek reinstatement within 14 days.
The Tribunal had given to the Applicant more than sufficient opportunity to appear and argue his case. The appointed Tribunal hearing date of 27 October 2016 presumably was, in the words of Hill J in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 at 102 [14], “one of the most important appointments in [his] life”. The Applicant was under a personal responsibility to attend in aid of his application for review if he was not precluded for good reason. As Barker J in Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365 said at 372 [56], referring to proceedings before the Migration Review Tribunal:
What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.
Here, the Applicant had been first given an opportunity to appear before the Tribunal at the scheduled hearing on 20 September 2016. He had failed to respond at all to the Tribunal’s letter of 1 August 2016 which asked him to provide relevant documents and information. Mr Khan only approached the Tribunal for an adjournment on the morning of the scheduled hearing on 20 September 2016 and was unable to support the allegation of the Applicant’s food poisoning by forwarding any medical certificate. When in fact the medical certificate of Dr Karen Wong did see the light of day it was in patently inadequate terms and provided no evidence at all that the Applicant would not have been able to meaningfully participate in the scheduled hearing of 20 September 2016 either in person or, as offered, by telephone. No Court in this country would have adjourned any scheduled hearing on the basis of Dr Wong’s medical certificate: see the discussions respectively by Davies J in MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 at [7] and Thawley J in BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [35].
Nevertheless, by Reinstatement Decision of 12 October 2016 the Tribunal reinstated the application for review and on the same date invited the Applicant to attend a hearing on 27 October 2016.
However, once again the Applicant did not appear at the scheduled hearing on 27 October 2016 and no good reason for his non-appearance is apparent or has been offered. It is true that the Tribunal had requested that the Applicant provide to it a copy of the Decision Record of the Delegate, but that issue had been under discussion since 13 September 2016 and by his faxed letter of 11 October 2016 Mr Khan had advised the Tribunal that he would provide it with a copy of the Decision Record of the Delegate.
Further, at no point has the Applicant ever sought to explain why he could not provide a copy of the Decision Record of the Delegate, although it was sent by email together with a notification letter dated 7 December 2015 to the Applicant’s migration agent and authorised recipient (see [7] above).
Even when the Tribunal afforded the Applicant a further opportunity of making a second reinstatement application by its letter of 27 October 2016 the Applicant remained unresponsive and at no point has he explained why he did not appear at the scheduled hearing on 27 October 2016 or exercise his right to seek a second reinstatement as invited by the Tribunal’s letter.
In my view the Tribunal simply could not properly administer its case load if applicants could act in the way the Applicant has with respect to his application for review. As Deane J pointed out in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, the Tribunal must give any applicant a reasonable opportunity to present his or her case but there is no obligation imposed upon the Tribunal to engage in “the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”. In my view, the Tribunal’s decision to dismiss the application for review was not “arbitrary” or “irrational” or lacking an “evident and intelligible justification”. The Tribunal had a “genuinely free discretion” and “decisional freedom” to make the decision and in that regard its decision did not fall outside of the range of possible, acceptable outcomes: see Wigney J in Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 at 650 [52].
As Tracey and Mortimer JJ said further in AYX17v Minister for Immigration and Border Protection [2018] FCAFC 103 at [39]:
[39] … In Minister for Immigration and Border Protection v Stretton [2016] 237 FCR 1 at [92], Wigney J placed the reference to a range of outcomes in what we consider, with respect, to be its correct context: namely as another way of explaining the general limits of the judicial function in a supervisory jurisdiction:
In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]- [45]), or if the decision is within the “area of decisional freedom” of the decision-maker (Liat [28], [66], [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently.
Finally, as recently pointed out by Kiefel CJ in Minister for Immigration v SZVFW [2018] HCA 30 at [11], in a similar context to this case, “the test for unreasonableness is necessarily stringent”.
Conclusion
In my view, the Applicant has no reasonable prospects of establishing that the decision of the Tribunal of 27 October 2016 was affected by jurisdictional error and so there would be no utility in the reinstatement of the substantive Application filed in this Court on 18 November 2016. Further, he has failed to adequately explain his non-appearance at the scheduled final hearing in this Court on 26 May 2017.
In these circumstances the Second Application in a Case is to be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 24 August 2018
0
12
4