MZAQV v Minister for Immigration
[2016] FCCA 2477
•23 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAQV v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2477 |
| Catchwords: MIGRATION – Refugee Review Tribunal – application for protection visa – failure to attend tribunal hearing – whether tribunal should have adjourned for further hearing – whether medical certificate adequate. |
| Legislation: Migration Act 1958 (Cth) ss.425, 426A(1A)(a), 422B, 427(1)(b) |
| Cases cited: MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 MZAHI v Minister for Immigration and Border Protection [2016] FCCA 2708 |
| Applicant: | MZAQV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 76 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 21 September 2016 |
| Date of Last Submission: | 21 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 23 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Nicholson |
| Solicitors for the Applicant: | Bardo & Erci Lawyers |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 16 January, 2015 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 76 of 2015
| MZAQV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants seek judicial review of a decision of a refugee review tribunal dated 23 December, 2014 which affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
The applicant submits that the tribunal’s decision is affected by jurisdictional error because the tribunal refused to reschedule a hearing at which the applicant was to appear, give evidence and make submissions in support of his visa application. He argues that the failure to reschedule, or adjourn, the hearing resulted in procedural unfairness or, alternatively was a decision by the tribunal that was legally unreasonable. In either case, the applicant argues that he demonstrates jurisdictional error and the tribunal’s decision ought to be set aside.
The first respondent opposes the application. The second respondent enters a submitting appearance.
Background
The applicant is a citizen of Lebanon. He applied for a protection visa on 10 August, 2012. A delegate of the first respondent refused the visa on 29 October, 2012. Through his authorised representative, the applicant lodged an application for review by a refugee review tribunal on 21 November, 2012.
On 9 September, 2014 the applicant was invited to attend a hearing before the tribunal on 12 December, 2014.
On 11 December, 2014 the applicant, by his legal representative made a pre-hearing submission to the tribunal consisting of extensive written submissions, a letter from his employer and two statutory declarations.
At 8.10am on the day of the hearing, 12 December, 2014 the applicant’s legal representative emailed the administrative email address of the tribunal. The substantive part of the email was as follows:
We refer to the above matter and advise that we have just received a telephone call from the review applicant advising that he does not feel well and hence unable to attend this morning's hearing.
We requested the applicant to provide our office with a medical certificate substantiating his medical conditions which we will forthwith forward to the tribunal to seek a postponement of today's hearing.
The tribunal was not made aware of the email. Soon after the scheduled commencement time for the hearing a tribunal officer telephoned the applicant’s legal representative enquiring as to the whereabouts of the applicant and the legal representative. The applicant’s legal representative, who had not bothered to appear before the tribunal, advised the tribunal that the applicant was unwell and that he had emailed the tribunal that morning to request a postponement as the applicant was unwell.
On 12 December, 2014 the tribunal wrote to the applicant, via his legal representative, in the following terms:
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection (Class XA) visa.
The Tribunal notes that you did not appear at the scheduled hearing of this matter on 12 December 2014.
The Tribunal is considering how to proceed under section 426A of the Migration Act 1958 which provides as follows:
Section 426A. Failure of applicant to appear before Tribunal
426A. (I) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
You are invited to provide written comments or submissions on how the Tribunal should proceed with this matter by close of business on Friday 19 December 2014. Please note that any medical evidence submitted to the Tribunal should set out the impact of any medical condition on your ability to participate in a Tribunal hearing.
On 15 December, 2014 the applicant’s legal representative responded to the letter in the following terms:
We refer to the above matter and more particularly to your email below.
As foreshadowed in our recent communications with the Tribunal, our client was unable to attend his hearing on Friday 12 December 2014 due to a medical condition, please find attached a medical certificate to substantiate his medical condition.
The enclosed medical certificate said:
THIS IS TO CERTIFY THAT
[name redacted]
IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD
Thursday, 11 December 2014 TO Friday, 12 December 2014 INCLUSIVE
He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION
This Certificate was completed on 12/1212014
(signed)
Dr Adil Abughazaleh
On 16 December, 2014 the tribunal wrote to the applicant, via his legal representative:
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection (Class XA) visa.
The member has considered your submission emailed on 15 December 2014 and declined your request for a hearing postponement.
On 23 December, 2014 the tribunal affirmed the delegate’s decision to refuse the application. It did so without having heard from the applicant in person at a hearing or offering him another opportunity to appear at a hearing.
The tribunal’s reasons
After recording that the applicant was sent a hearing invitation, but had not responded to it and recording that the applicant did not appear at the scheduled time for the hearing before the tribunal, the tribunal set out, accurately, the matters I have referred to above. Relevantly, the tribunal continued:
12. The Tribunal notes that despite the applicant being informed that any medical evidence submitted to the Tribunal should set out the impact of any medical condition on his ability to participate in a Tribunal hearing, the medical certificate he submitted stated only that he was receiving medical treatment and was “unfit to continue his usual occupation”. The Tribunal finds that the evidence before it does not indicate the applicant was medically unfit to participate in a hearing before the Tribunal. No other reason has been given for the requested postponement.
13. The Tribunal has also considered the fact that the representative sent an email to the Tribunal less than one hour before the scheduled starting time of the hearing and made no attempt to contact the Tribunal by telephone. The Tribunal considers that in view of the very short timeframes involved it would have been reasonable to expect that the applicant and/or his representative would have attempted to contact the Tribunal by telephone to ensure the Tribunal was aware of his circumstances and request for postponement before the scheduled starting time of the hearing.
14. Having regard to the matters set out above, the Tribunal has decided not to exercise the discretion to reschedule the applicant’s appearance and pursuant to s.426A of the Act has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The tribunal’s finding that “the evidence before it does not indicate the applicant was medically unfit to participate in a hearing before the Tribunal” was plainly correct. Its observation that “No other reason has been given for the requested postponement” was also plainly correct.
The tribunal proceeded to determine the review without hearing orally from the applicant. It decided the review against the applicant, largely on issues of credibility. The applicant does not take issue with the tribunal’s decision in respect of those matters.
The grounds of review
The first ground of review relied upon by the applicant is that the tribunal failed to afford procedural fairness to the applicant by reason of refusing to adjourn the date for the applicant’s oral hearing, such refusal being unfair and unjust in the circumstances in breach of s.422B of the Migration Act 1958 (Cth). The second ground is that the tribunal’s failure to grant the postponement or adjournment sought by the applicant was unreasonable, illogical and irrational in the circumstances.
In answer to the applicant’s first ground, the first respondent argues that having regard to the statutory scheme established by the Migration Act and in particular ss. 425, 425A and 426A, it cannot be said that the tribunal did not afford the applicant procedural fairness. The tribunal complied with the obligations upon it under the Act to invite the applicant to a hearing. When the applicant did not attend that hearing, the discretion provided for in s.426A(1A)(a) was enlivened. The first respondent argues that the real question raised by the applicant is whether the tribunal exercised its power reasonably – ground 2 of the application.
Although the terms of the applicant’s lawyer’s email of 12 December, 2014 do not expressly request an adjournment or postponement of the scheduled hearing – it is couched in language suggestive of a future application: “which we will forthwith forward to the tribunal to seek a postponement of today's hearing”, it seems clear enough that the tribunal understood the email, once it was brought to the tribunal member’s attention, as a request for an adjournment. The tribunal’s response made on 16 December, 2014 is predicated upon the applicant having applied for a postponement of his oral hearing. So too are the terms of [12] – [14] of the tribunal’s reasons.
In my view, the tribunal considered two separate matters when it determined not to offer the applicant a further opportunity to present oral evidence and submissions. The first was the applicant’s request for an adjournment or postponement of the review until he could give oral evidence and submissions. The tribunal had power to adjourn the review: s.427(1)(b) of the Act. The second was the discretion enlivened in the tribunal of the applicant’s failure to appear provided in s.426(1A)(a) of the Act. Although the arguments made by the applicant are not necessarily mutually exclusive, it seems to me that his first ground of review is directed to an exercise of the power under s.427(1)(b) of the Act and the second is directed to the discretion conferred by s.426A(1A)(a) of the Act.
There is no doubt that in the conduct of a review, the tribunal must act in a way that is fair and just: s.422B(3) of the Act. A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [19], [48].
The power to adjourn the review, in this case for the purpose of permitting the applicant another opportunity to present oral evidence and submissions, must be exercised reasonably: Li at [63]. Whilst there is an area within which a decision-maker has a genuinely free discretion, that area resides within the bounds of legal reasonableness: Li at [66]. Further, “The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused”: Li at [67].
As observed by Judge Driver in Zhoory v Minister for Immigration & Anor [2015] FCCA 2699:
44. In Li the plurality[34] also said at [61]:
Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal's knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3),be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty. (citations omitted)
45. The plurality linked the obligations between s.360(1)(b) and s.360(1) at [74]:
In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(1)(b), as connected to the purpose of s 360(1). With that in mind, consideration could be given to whether the Tribunal gave excessive weight – more than was reasonably necessary – to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached. (citations omitted)
The applicant’s grounds of review intersect. The real complaint is that the tribunal’s decision to refuse a postponement or rescheduling of the applicant’s opportunity to give oral evidence or to give an adjournment of the review until that occurred was unreasonable in the circumstances. If it was unreasonable, the legal consequences are twofold. First, there had been a denial of procedural fairness in the sense explained in Bhardwaj and Li at [19], [48]. Second, the finding of unreasonableness might be sufficient to vitiate the tribunal’s decision even if no conclusion that there had been a denial of procedural fairness could be reached.
The applicant argues that the tribunal’s refusal to reschedule the hearing was a denial of procedural fairness because the nature of the applicant’s claims was such that an oral hearing was necessary so that the applicant could put his case properly. He argues that the substance of his claim was that he has a well-founded fear of persecution in Lebanon should he be returned there by virtue of his homosexuality. He argues that his claim is of a nature that it could only be verified or discounted by his own words and statements. He argues that his circumstances are such that he has little, if any, capacity to corroborate independently his sexuality, which was the primary factual issue that was determinative of the review. Consideration by the tribunal of the applicant’s statutory declarations, the delegate’s decision and the submissions made by the applicant’s legal representative was not, it was said, sufficient for the tribunal to afford a fair and just review. He further argues that given that the tribunal’s decision was based solely on adverse findings relating to the credibility of the applicant, the only way the tribunal could ensure that the review was carried out in a way that was fair and just was to allow the applicant to address issues relating to his credibly by way of oral evidence. Accordingly, the failure of the tribunal to allow the applicant to put his case at an oral hearing amounted to a failure to afford procedural fairness required under s. 422B of the Act.
However, I do not accept those submissions. The nature of the claims made by the applicant did not mandate, as the applicant’s submissions would tend to suggest, a hearing at which the applicant would give oral evidence. There is nothing inherent in the applicant’s claims that meant that an oral hearing and oral submissions were the only way that the applicant could make out his claims.
In any event, the applicant was afforded an opportunity to present oral evidence and make submissions. He did not take that up in the first instance. The question is whether the tribunal’s refusal to adjourn the review so that he had another opportunity to do so was unreasonable so as to amount to a denial of procedural fairness or otherwise lead to relief.
I do not think that it was. The applicant’s legal representative had indicated that the applicant was unwell. But more than that, the legal representative also suggested that a medical certificate substantiating his medical conditions would be forthcoming. That was, no doubt, because the applicant and his advisers anticipated that some evidence of the applicant’s incapacity would be required by the tribunal. A bare request for an adjournment, accompanied by an assertion that the applicant did “not feel well and hence unable to attend this morning's hearing” was never likely to be sufficient to secure the requested postponement. Were it otherwise, postponements and adjournments could be secured without providing justification for such a course.
As the applicant points out, in determining whether to grant an adjournment the tribunal was required to consider whether the applicant had been given a reasonable opportunity to be heard. He suggests that the tribunal did not do that. But I disagree. The tribunal’s request for written comments or submissions on how the tribunal should proceed with “this matter” including a request that any medical evidence submitted to the tribunal should set out the impact of any medical condition on the applicant’s ability to participate in a tribunal hearing was the tribunal undertaking the very task the applicant says that it did not undertake. A consideration of whether the applicant had been given a reasonable opportunity to be heard necessarily required a consideration of the reason or reasons why the applicant could not attend the pre-appointed tribunal hearing. An applicant might be stripped of a reasonable opportunity to be heard where a tribunal refuses to adjourn or postpone a hearing in the face of probative information that an applicant had suddenly become unwell to an extent that they could not appear before the tribunal. But in the absence of such information a tribunal would be well justified in refusing such a request.
There is nothing new in that proposition. In MZAHI v Minister for Immigration & Anor [2015] FCCA 2708 Judge Riley was faced with an argument not dissimilar to that in this case. After setting out the history of the matter before her and referring to Li (above), her Honour recorded that, “The hearing had already been rescheduled once to accommodate the applicant’s claimed confusion about the hearing date. The authority of the Federal Court indicates that a medical certificate of the type provided by the applicant would not, in the Federal Court, be an adequate justification for an adjournment.”
In MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 Davies J dismissed an appeal from Riley J’s judgment. In doing so, her Honour said (footnotes omitted):
7. No error has been demonstrated in the conclusion of the Federal Circuit Court that the Tribunal did not deny the appellant procedural fairness. The medical certificate which the appellant furnished to the Tribunal was in the following form:
In my opinion, he/she will be unfit for his/her normal work from 27/5/14 to 28/5/14 inclusive. (medical condition)
8. The medical certificate was plainly inadequate to justify any further adjournment of the Tribunal hearing. The medical certificate merely stated that the appellant was unfit for work and provided no meaningful detail about the nature of the appellant’s illness, or any meaningful content which would enable the Tribunal to conclude that the appellant could not participate at the Tribunal hearing. Given the absence of any meaningful content in the medical certificate it was open to the Tribunal to reject that certificate as sufficient proof that the appellant was unable to participate in a Tribunal hearing on that day. As the Federal Circuit Court correctly stated at [18]:
The authority of the Federal Court indicates that a medical certificate of the type provided by the [appellant] would not, in the Federal Court, be an adequate justification for an adjournment.
In NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1559 at [5], Lindgren J rejected, as unsatisfactory, medical certificates which stated as follows:
‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’
[and in respect of the female appellant:]
‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’
His Honour held that the certificates did not address the critical question of whether, and if so why, the medical condition would prevent the appellants from travelling to the Court and participating effectively in a court hearing. His Honour also stated at [8] that:
If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.
9. There is other Federal Court authority to similar effect: MZZGY v Minister for Immigration and Border Protection [2014] FCA 488; Singh v Minister for Immigration and Border Protection [2014] FCA 538. The obligation was on the appellant to provide a medical certificate that sufficiently explained why his medical condition prevented him from attending the Tribunal hearing. There is no merit in his claim that his certificate was wrongly rejected because he was not given a clear explanation as to what was required.
The tribunal concluded that the evidence before it did not indicate that the applicant was medically unfit to participate in the hearing because the medical certificate provided by the applicant read only that the applicant was ‘unfit to continue his usual occupation’ and did not include information which the tribunal had requested was plainly correct.
The applicant argues that the tribunal’s request for the applicant to provide details about his medical condition indicates that the tribunal considered that it was entitled to make a judgment as to the applicant’s medical fitness to participate in a hearing when determining whether to grant an adjournment. It is said that no other reason can be attributed to the tribunal for making the request for the additional information.
To develop that argument, the applicant submits that so much is evident when one considers how the tribunal might have used such information. Had the tribunal been given an explanation from a registered medical practitioner that in the opinion of the practitioner the applicant was not medically fit to participate in the hearing, “the tribunal would not be entitled to substitute its private opinion about the abilities of people generally and determine that the applicant was medically fit. Such a conclusion would be based on private opinion and not on any expertise or assumed knowledge of the tribunal. As a result, the request by the tribunal for the medical practitioner to set out additional detail could serve no useful purpose in the tribunal’s decision making.” The applicant also submitted that, “The absence in the medical certificate of the details of the applicant’s medical condition is not a factor the tribunal is entitled to consider in determining whether to grant an adjournment. Alternatively, the tribunal gave too much weight to the fact that the medical certificate did not contain the explanation and made the unreasonable conclusion that there was no evidence before it that indicated the applicant was medically unfit to participate in the hearing.”
In my view, these submissions miss the point. The tribunal was entitled to know the reason for which the applicant required an adjournment. It was entitled to know if there was any factual basis to the applicant’s request. The medical certificate that was supplied did not address the relevant issue. It advanced the applicant’s request in no relevant sense.
The applicant also argues that the tribunal took into account that the applicant’s legal representative may have acted in a manner that the tribunal considered unreasonable. That was not a factor, it was argued, that the tribunal was entitled to consider in determining whether to grant an adjournment. Alternatively, the applicant argues that the tribunal gave too much weight to the method of communication in refusing the adjournment.
I have set out paragraphs 13 and 14 of the tribunal’s reasons above. It is clear that in paragraph 13 the tribunal recounted and considered the circumstances in which the postponement was requested. The tribunal was critical of the applicant’s representatives for not contacting the tribunal by telephone before the scheduled time for the hearing. Paragraph 14 of the tribunal’s reasons refer to “the matters set out above” without specifying which of the matters “set out above” were considered in respect of the two matters before the tribunal, namely the request for the adjournment and the decision to be made to proceed under s.426A(1A) of the Act.
On a fair reading of the tribunal’s decision, I think that the discussion in paragraph 13 of the tribunal’s reasons was relevant to whether s.426A(1A) was engaged. Had a request for a postponement been made before the scheduled time for the commencement of the hearing, then arguably, s.426A(1A) may not have been engaged. As it was, the applicant did not appear and notwithstanding the email earlier in the morning, there was no attempt to confirm receipt of the applicant’s request before the hearing started. The tribunal’s reasons in paragraph 14 reveal that the tribunal was there dealing with both the request for the adjournment and the decision to be made to proceed under s.426A(1A) of the Act.
Conclusion
The tribunal’s refusal of the adjournment or postponement request by the applicant was not unreasonable in the circumstances. There was no consequent denial of procedural fairness. The failure of the applicant to appear at the hearing enlivened the tribunal's jurisdiction to determine the review under s.426A of the Act. The tribunal’s decision to proceed to determine that application as it did was not attended by jurisdictional error.
The application must be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Date: 23 September 2016
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