Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 268
•25 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268
File number: MLG 30 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 25 November 2021 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the applicant was provided adequate notice of the Tribunal hearing – whether the Tribunal should have provided a hearing invitation to the applicant by post – whether the Tribunal acted unreasonably or denied the applicant procedural fairness – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 125, 360, 360A, 362B, 362C, 379C, 425A, 476, 477 and Part 7
Migration Regulations 1994 (Cth), reg 4.21 and condition 8202
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
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 SZVFW [2018] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Mohammed v Minister for Immigration and Border Protection & Anor [2016] FCCA 1346
Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 95 Date of hearing: 12 November 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms K McInnes Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 30 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HABEBUDDIN MOHAMMED
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:
25 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application, as amended on 12 November 2021, 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”) 10, 29-30 & 79-80).
The applicant has held a number of visas, with the last substantive visa held by him being a Student (Temporary) (Class TU) (Subclass 572) visa. That visa was issued on 7 June 2010 and was current until 26 July 2012 (CB 99).
On 2 July 2012, the applicant applied for a further Student (Temporary) (Class TU) (Subclass 572) visa (the “visa”) (CB 10-15). Attached to that application were copies of the applicant’s IELTS Test Report Form, educational records, the applicant’s passport and other supporting material (CB 16-32).
On 22 July 2012, the applicant provided further supporting documents to the then Department of Immigration and Citizenship (the “Department”). He did so by email (CB 39-60).
On 5 September 2012, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 65-67) on the basis that the applicant did not meet clause 572.235 of Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the applicant had substantially complied with the conditions of his previous student visa as there was a “gap in his enrolment of 6 months” (CB 67).
On 20 September 2012, the applicant applied for review of the delegate’s decision with the then Migration Review Tribunal (the “First MRT Tribunal”) (CB 68-78). Attached to that application was a copy of the applicant’s passport (CB 79-80).
On 16 September 2013, the applicant was invited by the First MRT Tribunal to attend a hearing scheduled before it on 17 October 2013 (CB 81-82).
The applicant appeared before the First MRT Tribunal on 17 October 2013 (CB 86-88). He provided copies of his Overseas Student Confirmation-of-Enrolment (“CoE”) forms (CB 89-91) and correspondence form the Melbourne Institute of Training and Technology (CB 92-93).
On 13 December 2013, the First MRT Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa (CB 95-100).
The applicant applied for judicial review of the First MRT Tribunal’s decision.
On 11 June 2014, orders were made by Judge Whelan in the then Federal Circuit Court of Australia (the “FCCA”), by consent, remitting the matter for redetermination (CB 101-104). The parties agreed that the First MRT Tribunal had “misapplied condition 8202(2)(a)” of the Regulations.
On 27 June 2014, a differently constituted Migration Review Tribunal (the “Second MRT Tribunal”) notified the applicant of “the reconsideration” of his application (CB 105-106). That letter was returned to the Second MRT Tribunal and marked “go back (to sender address)” (CB 107). The Second MRT Tribunal received that returned letter on 2 July 2014. A copy of the notification letter was subsequently sent to the applicant via email on 17 July 2014 (CB 109).
On 28 July 2014, the Second MRT Tribunal invited the applicant to appear at a hearing scheduled before it on 24 September 2014 (CB 111-112).
On 6 August 2014, the Second MRT Tribunal attempted (unsuccessfully) to contact the applicant on his mobile (CB 113). A further email was sent to the applicant on 6 August 2014 (CB 114) but delivery of this email failed (CB 115-117).
On 7 August 2014, the Second MRT Tribunal sent a letter to the applicant at an alternate postal address. That letter detailed the numerous (failed) attempts to contact the applicant and attached a copy of the hearing invitation dated 28 July 2014 (CB 122).
On 14 August 2014, the applicant wrote to the Second MRT Tribunal requesting a postponement of his hearing on the basis that he would be out of the country. He provided a completed “response to hearing invitation” form indicating that he would not take part in the hearing scheduled to take place on 24 September 2014 (CB 123-125).
On 15 August 2014, the Second MRT Tribunal wrote to the applicant via email advising that his request for postponement of the hearing had been refused and advising him that the hearing would proceed on 24 September 2014 as scheduled (CB 126-127).
On 24 September 2014, the Second MRT Tribunal attempted to contact the applicant by phone on the two mobile numbers the Tribunal had on file for him. The Second MRT Tribunal was unable to reach the applicant (CB 128).
On 24 September 2014, the applicant did not appear at the hearing (CB 131-133). The Second MRT Tribunal affirmed the delegate’s decision (CB 135-141).
The applicant then applied for judicial review of the Second MRT Tribunal’s decision.
On 24 May 2016, Judge Riley made orders in the FCCA remitting the matter for redetermination to the Administrative Appeals Tribunal (the “Tribunal”) (CB 144-145): Mohammed v Minister for Immigration and Border Protection & Anor [2016] FCCA 1346.
On 15 June 2016, the Tribunal notified the applicant via email of the reconsideration of his application (CB 146-148).
On 12 October 2016, the Tribunal invited the applicant to appear before it at a hearing scheduled to take place on 4 November 2016 (CB 149-162).
On 2 November 2016, the applicant provided a medical certificate and prescription in his name to the Tribunal. That material was sent via fax (CB 163-165). The applicant also sent an email to the Tribunal later that day attaching further copies of those documents and requesting a postponement of his hearing. That email read as follows (without alteration):
Dear, sir
As i am sick due to blood stools and feeling very week that i cant stand properly, so am requesting you to please postpone my hearing for which i highly thanksful to your firm
Yours
Sincerely
Habebuddin mohammed.
On 3 November 2016, the Tribunal wrote to the applicant agreeing to postpone the hearing and inviting the applicant to attend a rescheduled hearing before it on 16 November 2016 (CB 167-171).
On 16 November 2016, the applicant failed to appear at the rescheduled hearing (CB 172-174). The Tribunal attempted (unsuccessfully) to contact the applicant via his mobile phone (Supplementary Court Book (“SCB”) 2).
On 18 November 2016, the Tribunal dismissed the application pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) on the basis of the applicant’s failure to appear at the hearing “without further consideration of that application or the information before the Tribunal” (the “Non-Appearance Decision”) (CB 178-180).
The applicant was notified of the Non-Appearance Decision via email on 18 November 2016 (CB 175). The covering letter attached to that email stated (emphasis added) (CB 176):
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 2 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.
The applicant did not request reinstatement and, on 5 December 2016, the Tribunal confirmed the Non-Appearance Decision (the “Confirmation Decision”) (CB 183-184).
On 9 January 2017, the applicant applied to this Court for judicial review of the Confirmation Decision (CB 1-6). As discussed below, he did not seek review of the Non-Appearance Decision. The applicant also filed an affidavit in support of the application annexing a copy of the Confirmation Decision (CB 7-9). The application is brought pursuant to s 476 of the Act. To obtain assistance, the applicant must show jurisdictional error on the part of the Tribunal.
TRIBUNAL’S DECISIONS
Non-Appearance Decision
The Non-Appearance Decision is three pages in length and does not contain any paragraph numbers. This is less than ideal. It makes referencing on review difficult and is a practice that is to be discouraged.
The Tribunal began by setting out the applicant’s lengthy migration history (CB 178).
The Tribunal then explained (CB 178):
On 15 June 2016 a Tribunal officer spoke with the applicant and confirmed his contact details. The applicant advised the officer that he was planning to travel overseas and enquired about the hearing date and he was advised the Tribunal would advise him by email once the hearing date was scheduled.
The Tribunal confirmed that, on 12 October 2016, it invited the applicant, pursuant to s 360 of the Act, to appear at a hearing before the Tribunal on 4 November 2016 and that the invitation was sent by email and by post (CB 179).
The Tribunal then noted that, on 27 October 2016, the applicant had confirmed that he would attend the hearing, he required a Hindi interpreter and he would not have any witnesses. He also and asked “about providing documents on the day of the hearing”. The applicant was advised by the Tribunal that documents should be provided to the Tribunal before the hearing (CB 179).
Relevantly, the Tribunal then explained (CB 179):
On 2 November 2016 the applicant sent an email to the Tribunal. He stated that “As i am sick due to blood stools and feeling very week (sic) that I can’t stand properly, so am requesting you to please postpone my hearing for which I highly thanksful (sic) to your firm.” He enclosed a medical certificate dated 2 November 2016 by Dr [omitted] of the [omitted] stating that the applicant is receiving medical treatment for the period 2 November 2016 to 5 November 2016 inclusive and he will be unfit to continue his usual occupation. He also enclosed a prescription for medication dated 2 November 2016.
On 3 November 2016 the Tribunal notified the applicant by email that the Tribunal had agreed to the hearing being postponed and the hearing had been rescheduled for 10am on 16 November 2016. The invitation to the rescheduled hearing also noted that the Tribunal will only consider granting a further adjournment on medical grounds if a comprehensive and detailed medical report is provided by a medical practitioner setting out why the applicant cannot participate and give evidence in a Tribunal hearing either in person or by telephone, and that the Tribunal may seek to speak with the medical practitioner in relation to any report before making a decision in relation to any postponement application. The rescheduled hearing invitation also noted that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal, or the Tribunal may dismiss the application without any further consideration of the application or information before the Tribunal.
On 9 and 15 November 2016 the Tribunal sent SMS hearing reminders to the applicant’s mobile telephone number reminding him of the hearing on 16 November 2016.
The Tribunal has received no further communication from the applicant since the rescheduled hearing invitation was sent on 3 November 2016. The Tribunal has received no response to the hearing invitation, no further submissions or documents in support of the review application and no telephone contact from the applicant.
At 10am on 16 November 2016 the applicant did not appear at the scheduled time and place. At approximately 10.05am on two occasions and at 10.09am the Tribunal attempted to contact the applicant by telephone on the mobile telephone number advised to the Tribunal. The telephone calls could not go through on the mobile telephone number. A Tribunal officer checked the Department’s ISCE records for any updated telephone number, however the Department records showed the same mobile telephone number that was notified to the Tribunal.
As at the time of this decision, the Tribunal has received no communication from the applicant.
The Tribunal considered making a substantive decision on the review application but determined that it was not appropriate without hearing from the applicant.
The Tribunal ultimately determined as follows (CB 180):
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 two pages long and spans five paragraphs. In full, it provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 September 2012 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).
2.On 18 November 2016 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the review applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicant on 9 January 2017 contains one “ground of review”, as follows:
1.I was sick and informed them that I couldn’t attend the hearing. But they didn’t gave me enough time and notice to attend hearing.
In those days I have no internet access and they didn’t post to my mailing address about my hearing date.
So I request with judicial review to consider my case.
The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were filed by him.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 9 January 2017, a Court Book numbering 184 pages (Exhibit 1), a Supplementary Court Book numbering 2 pages (Exhibit 2), written submissions filed by the Minister on 30 August 2017 and a list of authorities filed by the Minister on 11 November 2021.
The applicant appeared before this Court without legal representation. At the hearing, at the applicant’s request, an interpreter in the Hindi and English languages was made available to assist the applicant. No assistance was required, however, as the applicant chose to proceed in English. No issues arose or were raised in this regard.
The Court confirmed with the applicant that he had received a copy of the Court Book, the Supplementary Court Book and the Minister’s written submissions.
The Court then addressed what appears to have been an oversight in the applicant’s application for judicial review. As explained by Minister, in written submissions filed with the Court on 30 August 2017, the application for judicial review does not seek review of the Non-Appearance Decision.
In this regard, the Minister submitted as follows:
20.The applicant has not sought judicial review of the non-appearance decision. However, the non-appearance decision is also a decision that may be the subject of a judicial review application made pursuant to s 476 of the Act. Sections 362C and 477(3)(b) of the Act clearly contemplate that a non-appearance decision is a migration decision capable of being challenged.
21.The applicant was notified of the non-appearance decision on 18 November 2016 (CB 175) and is therefore beyond the 35 day time limit within which to bring proceedings challenging that decision. The applicant would require an extension of time if he wishes to seek that the Court make orders for constitutional writs in respect of the nonappearance decision.
22.The Minister would not oppose the granting of an extension of time within which to seek relief in respect of the non-appearance decision because the applicant has applied for judicial review of the confirmation decision within time.
The Court explained to the applicant that his application for judicial review, as filed by him on 9 January 2017, related solely to the Confirmation Decision. The Court noted that, as outlined in the submissions above, 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 granted 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 granted the applicant an extension of time, pursuant to s 477(2) of the Act, to apply for review of the Non-Appearance Decision.
This decision will thus consider whether the Tribunal fell into jurisdictional error in relation to both the Non-Appearance Decision and the Confirmation Decision.
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 relies on irrelevant 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 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; 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.
Against this background, the applicant stated that he had returned to India because his father was unwell and, upon his return, “wanted to complete his Certificate IV studies”. He stressed that he had made some mistakes with his visa application but that this “was not intentional”. He pleaded for “one more chance” to complete his studies.
In relation to his failure to appear at the Tribunal hearing, the applicant first advised the Court that he “was unwell and not able to attend the hearing” and then received a letter to say his “application was dismissed”. He then advised the Court that “the hearing was rescheduled very quickly” and he “was unaware of that (rescheduled) hearing”.
The applicant also stressed that he had been in Australia for 10 years and that he had been “waiting since 2013 for an answer about his visa”.
CONSIDERATION
Ground 1
For ease of reference, ground 1 provides:
1.I was sick and informed them that I couldn’t attend the hearing. But they didn’t gave me enough time and notice to attend hearing.
In those days I have no internet access and they didn’t post to my mailing address about my hearing date.
So I request with judicial review to consider my case.
The applicant’s sole ground of review arguably raises three issues.
First, the applicant argues that he was not provided adequate notice of the hearing (the “prescribed period of notice”).
Second, the applicant argues that he was unable to access his emails and the Tribunal should have provided a hearing invitation to the applicant by post (the “method of notification”).
Finally, the applicant argues that the Tribunal acted unreasonably or denied the applicant procedural fairness when making the Non-Appearance Decision and the Confirmation Decision.
The Court will address these issues below.
Prescribed period of notice
The requirements for a notice of invitation to appear before the Tribunal (including the period of notice which must be given) are set out in s 360A of the Act, relevantly as follows:
360A Notice of invitation to appear
…
(4)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
…
The prescribed periods in relation to a notice to appear before the Tribunal are set out in reg 4.21 of the Regulations. As the applicant in this matter was not in immigration detention, the relevant provision is reg 4.21(4), which provides:
4.21 Prescribed periods—notice to appear before Tribunal
…
(4)If the invitation relates to any other application for review of a decision, the period of notice:
(a)commences when the person receives notice of the invitation to appear before the Tribunal; and
(b) ends at the end of:
(i)14 days after the day the person receives notice of the invitation to appear before the Tribunal; or
(ii)if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
Here, the Tribunal sent an invitation to the applicant by email on 12 October 2016 inviting him to attend a hearing before it on 4 November 2016 (the “first hearing invitation”) (CB 149-162). Pursuant to s 379C(5) of the Act, in circumstances where a document is transmitted by fax, email or other electronic means, the “person is taken to have received the document at the end of the day it was transmitted”. The applicant was thus taken to have received the first hearing invitation on 12 October 2016. This means that the first hearing invitation was taken as received 23 days prior to the Tribunal hearing (which exceeds the prescribed period of 14 days).
On 2 November 2016, the applicant asked for the hearing be postponed. That request was sent by the applicant to the Tribunal via fax and by email (CB 163-166).
On 3 November 2016, the Tribunal wrote to the applicant (again via email) advising that the Tribunal Member had agreed to the adjournment request. The applicant was also invited to attend a rescheduled hearing on 16 November 2016 (the “second hearing invitation”)
(CB 167-171). The applicant was again taken to have received the second hearing invitation at the end of the day it was transmitted (being 3 November 2016): s 379C(5) of the Act.
The applicant thus received the second hearing invitation 13 days prior to the rescheduled hearing. This does not meet the prescribed period of 14 days. However, where the Tribunal complies with s 360A(4) of the Act and provides an applicant with the “prescribed” period of notice in relation to a hearing (as the Tribunal did here in relation to the first hearing invitation), the Tribunal is not required to again give the prescribed period of notice where a hearing is rescheduled or where a further hearing is required: Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152 (“SZFML”) at [79]-[83]; SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 at [29]; Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358 (“Ogawa”) at [29].
The Tribunal is, however, required to provide a notice period that is not “unreasonably short”: Ogawa at [32]-[35].
The first hearing invitation was provided to the applicant 23 days prior to the scheduled hearing. This exceeds the prescribed notice period. The second hearing invitation was provided to the applicant 13 days prior to the rescheduled hearing. This falls only one day short of the prescribed notice period and cannot be considered “unreasonably short”.
No error arises in relation to the prescribed period of notice given to the applicant in the first or second hearing invitations.
Method of notification
The applicant also appears to take issue with the method of notification of the Tribunal hearings, indicating that he had no internet access and did not receive a notification of the hearing dates by post at his mailing address.
In this matter, the Tribunal contacted the applicant by phone on 15 June 2016 to obtain contact details from him that would enable the Tribunal to provide him with information about the remittal of the matter. The applicant advised the Tribunal that his preference was to receive information via email (SCB 1). The Tribunal confirmed the applicant’s correct email address at that time.
Email is an acceptable method by which the Tribunal can give a document to a person pursuant to s 379A(5) of the Act which, relevantly, provides:
379A Methods by which Tribunal gives documents to a person other than the Secretary
…
Transmission by fax, email or other electronic means
(5)Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e)if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.
The Tribunal provided both the first and second hearing invitations to the applicant at the “last email address provided to the Tribunal” by the applicant in connection with his review.
Further, the applicant must have received the first hearing invitation in order to request a postponement of the initial hearing which was scheduled to take place on 4 November 2016. He did so by faxing documents to the Tribunal and sending documents to the Tribunal by email (CB 166). The Court notes that the email correspondence does not include the applicant’s email address in the “from” field. Instead, it reads “From: md hebeeb”. However, the body of the email shows a previous email being forwarded from “Officeworks Campbellfield (327)” -- which was sent to the applicant’s email address of [omitted]. It appears that the applicant must have had some internet access or was otherwise able to access his email account after the first hearing invitation was sent and at least the day prior to the second hearing invitation being sent.
The Tribunal, although not required to do so, also attempted to phone the applicant on the morning of the hearing but was unable to reach him. Where an invitation to attend a hearing has been sent and complies with the requirements of s 360A of the Act, there is no obligation on the Tribunal to consider other ways in which the applicant can be notified of the scheduled hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 (“SZFHC”) at [39] (in relation to analogous provisions at ss 125 and 425A of the Act). This is further reinforced by amendments to the wording of s 360 of the Act which previously required that the Tribunal provide an applicant with an “opportunity” to appear. The current provision only requires that the Tribunal “invite” the applicant to appear: SZFHC at [41].
The Tribunal was not required to send the first or second hearing invitations to the applicant by post.
No error arises in relation to the method of notification.
Unreasonableness or denial of procedural fairness
A broad reading of the applicant’s ground of review suggests that the applicant believes he was not afforded procedural fairness and that the Tribunal’s decision to exercise its discretion to dismiss the application pursuant to s 362(B)(1A)(b) of the Act was “unreasonable”.
In relation to procedural fairness, the Court notes that, if an applicant is properly invited to attend a hearing before the Tribunal and fails to do so, the Tribunal’s discretion to dismiss is enlivened. In order for the discretion to be enlivened under s 362(B)(1A)(b) of the Act, an applicant must have been validly notified of a Tribunal hearing (as per the requirements of s 360A of the Act) and fail to attend.
Here, the first hearing invitation was sent to the applicant on 12 October 2016 (CB 150-162) via email (CB 149). That invitation:
(a)clearly outlined (on the first page) the date (4 November 2016), the time (10.30 am (VIC time)) and the location (at the Tribunal’s address in Melbourne) of the hearing: s 360A(1) of the Act;
(b)was sent to the applicant via email. Section 379A(5) indicates that the Tribunal can validly transmit material to the applicant via email: s 360A(2) of the Act;
(c)stated that, if the applicant failed to attend the hearing, the Tribunal might make a decision without taking any further action and that, in those circumstances, the applicant would be entitled to apply to have the dismissed case reinstated within 14 days of receiving notice of the dismissal (CB 152); and
(d)provided the applicant with notice in excess of the 14 day period as prescribed in reg 4.21(4) of the Regulations (the Tribunal gave the applicant 23 days’ notice): s 360A(4) of the Act.
The second hearing invitation was sent to the applicant on 3 November 2016 (CB 168-171) via email (CB 167). That invitation:
(a)outlined (on the first page) the date (16 November 2016), the time (10.00 am (VIC time)) and the location (at the Tribunal’s address in Melbourne) of the hearing: s 360A(1) of the Act;
(b)was also sent to the applicant via email: s 360A(2) of the Act;
(c)did not need to comply with the minimum notice period as it related to a “rescheduled hearing”: SZFML. Further, as outlined above, the notice period was 13 days (only one day less than the prescribed period) and cannot be said to be “unreasonably short”;
(d)also stated that, if the applicant failed to attend the hearing, the Tribunal might make a decision without taking any further action and that, in those circumstances, the applicant would be entitled to apply to have the dismissed case reinstated within 14 days of receiving notice of the dismissal (CB 170); and
The applicant did not attend the hearing.
For the reasons outlined above, the Tribunal complied with all of the necessary procedural fairness obligations prior to dismissing the application for non-attendance.
No error arises in this regard.
In relation to whether it was reasonable for the Tribunal to proceed to dismiss the application pursuant to s 362(B)(1A)(b) of the Act, the Court finds as follows.
Analogous provisions in Part 7 of the Act were considered by the High Court of Australia in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [69]-[70] (“SZVFW”). In SZVFW, the Court explained that the power to dismiss an application in circumstances where an applicant fails to appear must be considered within the context of the Tribunal’s obligation to operate as a “fair, just, economical, informal and quick mechanism of review”. Further, any assessment in this regard should be considered in light of the specific facts and circumstances of the relevant matter.
Here, the Court does not accept that the Tribunal acted unreasonably when dismissing the application for non-appearance. Relevantly:
(a)the applicant was validly and properly invited to attend the initial hearing and sought a postponement;
(b)the Tribunal granted the applicant a postponement and the applicant was validly and properly invited to attend the rescheduled hearing;
(c)there was no explanation for the applicant’s failure to attend the hearing;
(d)the applicant was sent two text message reminders of the date and time of the rescheduled hearing;
(e)the Tribunal attempted to phone the applicant twice at 10.05am and once at 10.09am on the day of the hearing; and
(f)the applicant had already been granted one previous hearing postponement.
For the reasons outlined above, it was open to the Tribunal to exercise its discretion pursuant to s 362B(1A)(b) of the Act.
No error arises in this regard.
In relation to the Confirmation Decision, in circumstances where the applicant did not make any attempt to apply for reinstatement, the Court need only consider whether the applicant was afforded procedural fairness as outlined in s 362C of the Act.
Here, the Tribunal gave a “written statement” setting out the requirements in s 362C(2) of the Act. This was done by way of the Non-Appearance Decision. A copy of that decision was sent to the applicant by email on 18 November 2016 (CB 175): s 362C(5) of the Act.
In the correspondence attached to the Tribunal’s email, it was explained to that applicant that he could apply for reinstatement of the application by 2 December 2016 (CB 176). An information sheet was also provided to the applicant with information about dismissal applications: s 362C(6) of the Act.
The applicant did not apply for reinstatement prior to 2 December 2016 (or at all). In those circumstances, the Tribunal was required to confirm the decision as set out in s 362B(1E) of the Act.
No error arises in relation to the Confirmation Decision.
CONCLUSION
The application for judicial review filed by the applicant on 9 January 2017 (and amended orally at the hearing on 12 November 2021) fails to identify any jurisdictional error. The Court has otherwise been unable to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 25 November 2021
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Notice Requirements
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