MZAAE v Minister for Immigration

[2015] FCCA 1470

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAAE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1470

Catchwords:
MIGRATION – Application for extension of time to bring application for judicial review – substantial delay – no adequate explanation for delay – no merit to substantive application – consideration of prejudice.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Minister for Immigration and Citizenship v SZMDS (2010) HCA 16
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZLHP v Minister for Immigration and Citizenship & Anor [2008] FCAFC152
SZSDA v Minister for Immigration and Citizenship and Refugee review Tribunal [2012] FCA 139
SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40
Tran v Minister for Immigration and Border Protection [2014] FCA533

Applicant: MZAAE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 292 of 2014

Judgment of: Judge McGuire

Hearing dates: 25 & 31 March 2015

Date of Last Submission: 31 March 2015

Delivered at: Melbourne

Delivered on: 27 July 2015

REPRESENTATION

Counsel for the Applicant: Ms Burt

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the first Respondent: Mr Brown

Solicitors for the first Respondent: Australian Government Solicitors

ORDERS

1. The application for an extension of time is dismissed.

2. The applicant pay the first respondent’s costs such to be agreed between the parties but failing agreement the parties have liberty to apply to Judge McGuire.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 292 of 2014

MZAAE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The substantive application is for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of the Minister’s Delegate refusing the grant of a Protection (Class XA) visa (“the visa”) to the primary applicant. The remaining applicants are members of the primary applicant’s family.

2. The Tribunal’s decision was made on 9 July 2013. This application was not lodged until 20 February 2014, being some six months outside the 30 day prescribed time limit. The preliminary application is therefore one for a grant of an extension of time to lodge the substantive application.

3. The applicant pleads the following grounds for an extension of time:

   i) That his agent had advised him to apply for ministerial intervention;

   ii) That he was unaware of his right to apply for a judicial review until 19 February 2014 and that he then acted prudently in filing his application on the following day.

4. The applicant’s amended application filed 30 March 2015 raises four grounds of complaint being:

   i. The Second Respondent committed a jurisdictional error in that it acted pursuant to a process compromised by “third party fraud”.

   ii. The Second Respondent erred by failing to consider any integer of the Applicant’s claim, namely that he would be targeted because of his actual or imputed political opinion.

   iii. The Second Respondent erred in its exercise of discretion in s. 426A of the Migration Act 1958.

   iv. The Second Respondent erred by unreasonably refusing an adjournment request.

5. The role of the application’s agent, Ijaz Ahmad, was significant to the applicant’s application both for an extension of time and for substantive relief. Mr Ahmad gave oral evidence for the applicant. He did so voluntarily and apparently without the coercion of a subpoena. He was cross-examined by Counsel for the first respondent. The primary applicant also gave oral evidence and was cross-examined.

6. There are important issues of credit and disputed fact between the applicant and Mr Ahmad. Firstly, the applicant claims that he instructed Mr Ahmad to make an application to the Tribunal for an adjournment. He says that either his instructions were not carried out or that the agent wilfully did not advise him that an adjournment was not available. Importantly, he says that the agent was motivated by self-interest in not wanting to be exposed as operating as an agent contrary to provisions and requirements of the Migration Agent Registration Authority (“MARA”). He says that he was therefore denied the opportunity to appear before the Tribunal which proceeded to its determination in his absence. He argues that this operated as a fraud on the Tribunal stultifying its process.

7. Both Mr Ahmad and the applicant gave evidence and were cross-examined in respect of Mr Ahmad’s advice to the applicant post the Tribunal determination. Secondly, the applicant says that he was advised to pursue Ministerial intervention and not advised unambiguously of the option of an application to this Court. Mr Ahmad says both options were offered and explained. Crucial to this argument is an email from Mr Ahmad to the applicant of 15 July 2013 annexed to the applicant’s affidavit filed 24 March 2015 which says the following:

   Please find your Refusal Letter from RRT. You have two options either go to Minister and than (sic) apply to the court if needed

   There is balance owing of: $4050/- please fix this asap as I don,t like to proceed further with leagal (sic) action against you thanks.

   I can lodge your application for Minister advise me on this.

   Kind Regards,

   Mr. IJAZ AHMAD (Principal)

   Australian Qualified & Accredited

   Migration Agent Registration Number: 0849992

8. The applicant also relies on his own affidavit affirmed 23 March 2015 together with two prior affidavits of 7 November 2014 and 20 February 2014 and in respect of his professional relationship with Mr Ahmad. He also relies on an affidavit of Emily Kate Bentleigh Singh, Lawyer, sworn 23 March 2015. That affidavit reports of investigations into the business names and/or company umbrellas under which Mr Ahmad operates as a migration agent.

Background.

1. The applicants are from India being Hindus from the Punjab area. The primary applicant says that he was active in political life and through an uncle who was prominent in the Congress Party. The applicant says that in 1995 political opponents came to his house and verbally and physically attacked him and his wife. He says that he was the victim of a political scam and that his reputation was sullied. He was then threatened, blackmailed, kidnapped, abused and tortured. He says that he moved from the Punjab area but that his son was kidnapped during a visit in 2010 but was recovered after the payment of a ransom.

2. The applicants say that they have a well-founded fear of being killed, harmed physically, sexually and mentally and of being kidnapped.

3. The applicants applied for protection visas on 19 June 2012. The Delegate refused the grant of visas on 7 August 2012.

4. The Tribunal properly considered its statutory parameters [4-7] with reference to the alternative criteria in s.36(2)(a), (aa), (b) and (c) of the Migration Act 1958 (Cth) (“the Act”) and its Regulations 1994.

5. The Tribunal did not have the primary applicant appear before it at the hearing. The applicant had, however, provided “limited documentary material” with the Tribunal noting at [24] of its reasons:

   Limited documentary material has been provided to the Tribunal. The Tribunal has not been able to test this material with the applicants. Applicant 1’s claims are largely bare assertions as to past events and as to the harm feared. He did not attend in interview with the delegate.

6. At [26] the Tribunal notes:

   The applicants were put on notice that the Tribunal was unable to make a favourable decision on the evidence provided by applicant 1 in support of his application. He did not provide further evidence, despite ample opportunity to do so. He has not given the Tribunal the opportunity to explore his claims at a hearing.

7. The Tribunal was not satisfied as to the criterion under s.36(2)(a) and proceeded to consider the complementary protection criterion under s.36(2)(aa) and found that the applicant does not have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to India, there is a real risk that he will suffer significant harm [28]. The applicant claims that he did wish to and intended to appear before the Tribunal. A previous hearing date was adjourned by the Tribunal and he says that he was prepared and intending to appear on that day.

Extension of time.

1. S.477(2) of the Act gives the Court power to extend time if the Court is satisfied that it is in the interest of administration of justice to do so.

2. The usual considerations are firstly, the explanation for the delay; secondly, the length of the delay- with perhaps a greater burden put on the explanation commensurate with the longer the delay;[1] thirdly, the balances of prejudice which accompany an application seeking an indulgence of the court; and finally, the merits of the substantive application.

   [1] Tran v Minister for Immigration and Border Protection [2014] FCA533 at [38].

3. In the matter now before me, the applicant relies on the Court accepting him as credible against Mr Ahmad both in his explanation of his delay and also in respect of the ground of his application being that the agent perpetrated a fraud which compromised the Tribunal’s process.

4. The applicant says that he was not advised of the options of either reference to the Minister or for judicial review. Mr Ahmad in cross examination said:

   Counsel: Did you ever advise the applicant that he had the right to come to Court to challenge the Tribunal’s decision?

   Ahmad: Yes, sir. I always- I even – even right at the start with my first appointment with him I told him about this procedure; that he will go to the Department of Immigration, then we have RRT if he got refused, then we got Court or we go to Minister. Okay. So with the Court I cannot deal with; Minister I can. He has been clearly advised on this and he has also been clearly advised on the success of his case on the current information he has provided me and that is written and signed by MZAAE on the contract.[2]

   [2] Transcript of evidence ,25 March 2015 at pg 43, line 10.

5. The email of 15 July 2013 is of little use in resolving this issue of credit. Its terms are ambiguous and capable of support in its interpretation for both the applicant and Mr Ahmad. Its language and consequential ambiguity perhaps says something about the less than adequate command of the English language of both of these witnesses.

6. Mr Ahmad was in many ways an impressive witness. He was confident and assertive in his evidence. He says that he did receive instructions from the applicant to seek an adjournment. He says that he telephoned the Tribunal as to the prospects of an adjournment and received a negative response. I take his evidence, therefore, to be that there was no formal application put on behalf of the applicant for consideration by the Tribunal. Rather, he made a more general “testing of the waters”. I accept his evidence in this context. He says that he advised the applicant accordingly. The issue here is compounded by an ongoing dispute between the applicant and Mr Ahmad as to payment of Mr Ahmad’s fees and his threat, implied or actual, to withdraw his services. In any event, Mr Ahmad says the “request” he made at the Tribunal occurred “a couple of weeks” before the hearing date of 9 July 2013. He puts no file note of his conversation before this Court. The uncontroversial evidence of the applicant is that the Tribunal has no file note of any such conversation with Mr Ahmad. Further, Mr Ahmad says that he did not attend the hearing himself on 9 July 2013 which I am asked to accept as corroboration of the applicant’s claim of not being told of the failed adjournment request.

7. The applicant was also confident and generally consistent in his evidence. He says simply that he gave instructions to the agent to request an adjournment and that he heard nothing more until advised of the determination of the Tribunal via Mr Ahmad’s email of 15 July 2013. He says that he assumed the hearing to have been adjourned.

8. Neither witness retreated under vigorous cross-examination. Mr Ahmad’s evidence suffers from a lack of corroboration when such should have been available to him from the Tribunal’s records and from his own file notes which are mandatory under the requirements of his licence. I accept his evidence that he made general enquiries only as to the prospects of an adjournment. I am satisfied that he did not make a formal application for an adjournment on behalf of the applicant. I find on the balance of probabilities that he did not advise the applicant as to the results of those enquiries and that the hearing would proceed on 9 July 2013. I generally accept the applicant’s evidence that he has assumed (perhaps presumptuously) that an adjournment had been obtained on his behalf and that the hearing would not proceed on 9 July 2013. The salient issue is, of course, the motivation of Mr Ahmad, if any, in the scenario as set out in the above findings of fact. This requires further findings of fact and credit and I deal with these below.

9. Secondly, I accept the applicant’s evidence that his options as to reference to the Minister or Judicial Review were not made clear to him, or more particularly, the time limits that apply for the lodgement of a judicial review. The wording of the agent’s email of 15 July 2013 is open to the interpretation claimed by the applicant. Certainly that email does not set out the time restrictions. If the word “than” in that email is accepted as a typographical error of “then”, it would be perfectly reasonable for the applicant to understand that he had two further options of review without time constraint. Consequently, again on the balance of probabilities, I accept this as the applicant’s explanation for not lodging his application to this Court within the prescribed time limits. The question of whether such an explanation is acceptable, however, requires a further consideration on the authorities and separately as to whether I find the agent’s behaviour to constitute a fraud on the Tribunal.

10. The authorities on this point impose a heavy onus on an applicant to be diligent themselves and not necessarily rely on advice of third parties, negligent or otherwise. As Foster J observed in SZSDA v Minister for Immigration and Citizenship and Refugee review Tribunal:[3]

    In the present case there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated time frame, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay.

    [3] [2012] FCA 139 at [38]

11. In this matter the applicant has been involved in the process from the application to the Delegate and through the merits review to the Tribunal. He says that he was active and interested in his participation. Cross-examination elicited from him some previous association with lawyers. The email from Mr Ahmad spoke of “options” and although he was not told of time limits, the above authority, in my view, emphasises the obligation on an applicant in respect of reasonable enquiries. The applicant simply presumed the hearing to be adjourned. He did not receive confirmation. Similarly, he made no personal direct enquiries to clear the ambiguities in the agent’s email. He remained completely passive at all times in the fact of what may have been negligent or incompetent representation. It follows that I do not accept as adequate or reasonable the applicant’s explanation for the delay in bringing this application.

12. There is an obvious prejudice to the applicant in not granting him the indulgence sought, however, time limitations are not arbitrary and are set with a view to the prudent and proper administration of justice.[4] Further, I am willing to accept a prejudice to the public purse in matters such as these where there is a delay in the administration of justice. In any event, whilst the potential prejudice to the applicants of not acceding to this application is clear, such is not determinative of an application for an indulgence of the Court and the discretion of the Court is to be exercised by consideration and weighing of all factors.

    [4] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [552-553]

13. I turn to consider the merits of the applicant’s substantive claim as against each ground of complaint in his amended application.

Ground One- Third party fraud- the second respondent committed a jurisdictional error in that it acted pursuant to a process compromised by “third party fraud”.

1. The applicant here argues that the Act at ss.425 and 426A requires the Tribunal to invite an applicant to attend the hearing but if the invitation is not taken up then the Tribunal may proceed to make its determination absent the applicant. The applicant says that he asked his agent to adjourn the hearing which is an agreed fact. He says that the agent failed to act on his instructions and did not tell the applicant that the hearing had not been adjourned.

2. Whilst conceding the Tribunal to be blameless, the applicant argues that this is a fraud perpetrated on the Tribunal given that it acts on the presumption of regularity and would assume that its invitation to attend had properly and unambiguously been conveyed to the applicant. I have, of course, found on the balance of probabilities that:

   i) The applicant did instruct his agent to obtain an adjournment;

   ii) No formal application was made for an adjournment- although I accept the agent’s evidence that he made general enquiries as to the possibility of an adjournment;

   iii) The hearing date was not adjourned;

   iv) The applicant was not informed or, at least unambiguously informed, that an adjournment was not available and that the hearing date would remain;

   v) The applicant had expressed a desire to and intended to attend at the hearing; and

   vi) That the hearing proceeded in the applicant’s absence.

3. Counsel for the applicant referred the Court to a useful and lengthy summary of the relevant fraud principles provided by the Full Court in SZSXT v Minister for Immigration and Border Protection[5] which references the principles proffered by the High Court in SZFDE v Minister for Immigration and Citizenship.[6] The Full Court in SZSXT at [51-52] observes:

   [5] [2014] FCAFC 40

   [6] [2007] HCA 35

   [51] SZFDE establishes the following principles (omitting case references):

   (a) in the framework of general legal principle, fraud can come in various guises and is “infinite in variety” [8];

   (b) different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution [11];

   (c) “fraud” can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses “bad faith” [17];

   (d) in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud [20];

   (e) another practical aspect of fraud in public law which may set it apart from fraud in civil law is that “often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted” [22];

   (f) in a public law case, fraud is not limited to that of a decision-maker, a party or a party’s representative [25]-[27]; and

   (g) there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time [28]. But in the particular circumstances in SZFDE the rogue’s fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud “on” the Tribunal which meant that the Tribunal’s jurisdiction remained constructively unexercised [51]-[52].

   [52] It is well settled that mere negligence, inadvertence or incompetence on the part of an agent representing a visa applicant will not constitute fraud so as to warrant judicial intervention. InMinister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17, the Full Court (Tamberlin, Finn and Dowsett JJ) emphasised the necessity of demonstrating that an agent’s fraud in dealing with a visa applicant has resulted directly in a fraud on the Tribunal in discharging its decision-making functions. In that case, a protection visa applicant complained that he had failed to attend an adjourned hearing of the Tribunal because his migration agent had not advised him of the hearing. The Full Court held that the evidence concerning the conduct of the agent could not support a finding of fraudulent conduct by that person which caused the visa applicant not to attend the adjourned hearing. The Full Court found that no inference could be drawn that it was the agent’s dishonest failure that resulted in the applicant not being told about the adjourned hearing and that it was equally probable that the failure was due to an error or omission on the part of the agent. At [33], the Full Court said:

   … [A]n agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the tribunal in relation to the due discharge of its Div 4 of Pt 7 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects (sic) the tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-a-vis the visa applicant: SZFDE at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the tribunal. As we have indicated, particularly having regard to the level of satisfaction required byBriginshaw v Briginshaw(1938) 60 CLR 336 at 363 and 368; [1938] ALR 334 at 342-3 and 344-5 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.

1. Counsel for the applicant says that the agent’s omission here can constitute fraudulent conduct. It is here that the evidence and arguments in respect of the agent’s own professional status assumes relevance on the applicant’s case. The applicant says that it is open to the Court to find, on the balance of probabilities, that the agent’s own questionable status, including trading under the umbrella of a deregistered or insolvent corporate entity, would motivate this agent to avoid personal scrutiny before the Tribunal and hence not advise the applicant of the hearing date proceeding. This is to be viewed within the context of a continuing professional relationship between the applicant and the agent where threats of termination of that relationship had not eventuated and which therefore carry code of conduct obligations for the agent.

2. Counsel for the respondent in arguing against a finding of fraud on the Tribunal drew attention to the policy considerations noted by the High Court in SZFDE (supra) differentiating between fraud and behaviour categorised by negligence, inadvertence, and incompetence or similar. It is only when the applicant proves fraud to the requisite satisfaction that stultification of the Tribunal’s process and hence jurisdictional error occurs. The High Court in SZFDE (supra) at [53] states:

   The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.

3. Counsel for the respondent also refers the Court to statements of the Full Court in SZLHP v Minister for Immigration and Citizenship & Anor[7] at [36] where their Honours, under a heading “The need for care when making findings of fraud” say:

   This case highlights the need, when making findings of fraud in matters arising in the area of public law, for judicial officers to heed the admonition of French J in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [74] which was cited with approval by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [41] (SZFDE). French J’s admonition is to be found in the penultimate sentence of [74] where his Honour said:

   The learned Magistrate found that SZFDE and her family were dissuaded from attending the hearing because of “the fraudulent behaviour of Mr Hussain”. The learned Magistrate did not, at that point in his reasoning, expressly identify the fraudulent behaviour which had that effect… It is unfortunate in that in this important respect the learned Magistrate did not spell out his findings of fact clearly. The finding of fraud should have specified, in one place in the reasons, what was said that was fraudulent, how it was fraudulent, and how it was acted upon.

   [7] [2008] FCAFC152

4. In the matter now before me, the applicant’s argument rests on there being an element of dishonesty and fraud in the agent’s behaviour. That assertion being made by the applicant, evidence must be given or adduced to support such a finding on the balance of probabilities. I am, however, unable to make that finding of fact. I note again my findings above, including that the agent went only so far as to “test the waters” of an adjournment possibility without any formal application. I cannot be satisfied that the agent advised the applicant unambiguously that the hearing would proceed on 9 July 2013 and I say so taking into account both an e-mail of 19 June 2013 and a telephone conversation of 2 July 2013 between the agent and the applicant. There are other equally plausible explanations for the agent’s behaviour including negligence, inadvertence or simply language confusion. The material in respect of the applicant’s professional status does not assist me as to motive. Mr Ahmad’s evidence indicated his continuing practice as a migration agent and he gave a plausible explanation as to his umbrella of companies and/or business names under which he has operated. There are no results before me of any investigation by MARA. I also note the evidence of both Mr Ahmad and the applicant of their preparedness to attend at the hearing before the Tribunal at the earlier date in April 2013 when the hearing was adjourned by the Tribunal. This would seem to mitigate against any personal motive of Mr Ahmad to avoid scrutiny and to have perpetrated a fraud. Consequently, I cannot be satisfied as to the requisite standard of proof of any dishonesty or fraud in the agent. I cannot therefore find a fraud on the Tribunal in the sense contemplated by the decision in SZFDE (supra).

Ground Two- The second respondent erred by failing to consider an integer of the applicant’s claim namely that he would be targeted because of his actual or imputed political opinion.

1. The applicant argues that he made a claim of fear of harm because of his political views and associations through his uncle. He provided the Tribunal with a lengthy 11 page written statement (CB 37). He provided corroborating documents in respect of the claim.

2. The applicant argues that the Tribunal’s reasons do not disclose that it engaged with the claim on the evidence. Rather, he says, the Tribunal reasoned that the applicant’s non-attendance meant that his credibility could not be tested and hence his claim was dismissed. The applicant says that the Tribunal in any event had an obligation to engage and consider his claim and its supporting evidence and in not doing so it fell into jurisdictional error.

3. The obligation on a Tribunal to engage and consider an applicant’s claim is well established and the failure to consider a relevant matter can cause a Tribunal to fall into jurisdictional error.[8]

   [8]  Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30

4. The applicant’s claim is detailed in the Tribunal’s reasons at [9] and the corroborating documents at [16].

5. At [22] the Tribunal observes, citing authority:

   The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicants to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

6. At [23] the Tribunal summarises the applicant’s claim and at [24] notes the applicant’s non-appearance and that his claims are “largely bare assertions” not able to be tested with the application. Notably, these matters were pre-empted with the applicant prior to the hearing with the Tribunal advising that it was unable to make a favourable decision on the application on the material before it and inviting the applicant to attend at the hearing.

7. It is clear, therefore, that the Tribunal rejected the application on the basis of the material before it rather than on the non-appearance of the applicant [27]. Counsel for the respondent refers the Court to a decision of the High Court in Minister for Immigration and Citizenship v SZMDS[9] (Crennan and Bell JJ) where their Honours note:

   However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.

   [9] (2010) HCA 16

8. In this matter the Tribunal clearly did engage the material before it, noting it as “largely bare assertions” I see this as a conclusive statement made by a Tribunal charged with attributing weight. The Tribunal then sought the attendance of the applicants to test the claims. It is for the applicant to provide the evidence for consideration. The Tribunal is not obliged to simply accept the applicant’s claims and evidence. The statement of “bare assertions” shows an engagement. The subsequent dismissal of the application represents an exercise of discretion open to the Tribunal. I reject the argument that the application was dismissed because of the non-attendance of the applicant. I am satisfied that there was engagement with the evidence. Consequently, I find no merit in this ground of complaint.

Ground Three- the second respondent erred in the exercise of its discretion in s.426A of the Migration Act 1958 (Cth).

1. S.426A of the Act provides that if the applicant is invited to appear before the Tribunal and does not appear then the Tribunal may make a decision on the review without taking further action.

2. Subsection (2), however, retains a discretion in the Tribunal to reschedule the hearing or delay its decision to enable an applicant a further opportunity to appear. I accept the submission of the applicant’s Counsel that the discretion should not be exercised unreasonably or capriciously.[10]

   [10] NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045

3. The applicant argues that the Tribunal here should have been alerted by the applicant’s non-appearance on 9 July 2013. The applicant had provided a Response to the hearing invitation indicating his intention to attend (together with the other applicants) at the first listing of the hearing and that he would be requiring an interpreter. He said that he would be calling two witnesses. It is further argued that (on my finding of fact) Mr Ahmad had made a general enquiry to the Tribunal as to the possibility of an adjournment and that this might have further altered the Tribunal of the intentions of the applicant and therefore of something being amiss by his non-appearance.

4. Nevertheless, a second notice inviting the applicant to appear was given in this matter and one specifically in respect of the second listing on 9 July 2013. The applicant did not respond to that invitation. Secondly, accepting that Mr Ahmad had made only general contact and enquiring with the Tribunal regarding the possibility of an adjournment, there is no evidence of any matters specific to these applicants being placed before the Tribunal, even informally, to suggest any incapacity to attend on 9 July 2013. Thirdly, the Tribunal was appraised of the fact that the applicant had not attended at an interview before the Delegate. All of these matters mitigate against an argument of consistent active participation by the applicants and are factors which would properly and reasonably impact on the discretion of the Tribunal in deciding to proceed in the absence of the applicant. As such, I do not find that the Tribunal fell into error in the exercise of its discretion and this ground of complaint must therefore fail.

Ground Four – the second respondent erred unreasonably in refusing an adjournment request.

1. Counsel for the applicants in her oral submissions properly left it for the Court to make findings of fact and credit following the oral evidence in cross-examination of the applicant and his agent, Mr Ahmad. This ground of complaint is founded on the Court finding Mr Ahmad did make an application for an adjournment (which of course is not the applicant’s primary position). However, I did not make that finding. Rather, I accepted the evidence of Mr Ahmad that he simply made a general enquiry as to the possibility of the matter being adjourned or, as put during submissions, to “test the waters”. This being my finding, there was no adjournment application for the Tribunal to consider and I note that none is referenced in its reasons or from the applicant’s search of the RRT file. There can therefore be no merit in this ground.

Conclusion.

1. Consequently, in respect of this application for an extension of time, I find no merit in the applicant’s substantive application. I am also not satisfied as to the adequacy of the explanation for the delay in bringing the application. Whilst there will be an obvious prejudice to the applicant on the refusal of the indulgence that he seeks, I am not satisfied in this matter that the application for an extension of time should be granted. The application will therefore be dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  29 July 2015