Nawaz v Minister for Immigration
[2015] FCCA 1432
•2 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAWAZ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1432 |
| Catchwords: MIGRATION – Application in a case to set aside an order dismissing the applicant’s substantive application for non-appearance – whether explanation for non-appearance reasonable – whether applicant has arguable case – application in a case dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.363(1)(b), 375A, 375A(1), 360, 359C, 359, 359A |
| SZRJY v Minister for Immigration and Citizenship(No.2) [2012] FMCA 756 NKAX v Minister for Immigration and Multicultural and Ethnic Affairs (2003) FCA 1559 |
| Applicant: | IMRAN SHAH NAWAZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 512 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 8 May 2015 |
| Date of Last Submission: | 8 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 2 June 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondents: | Mr Hutton |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application in a Case filed on 1 April 2015 is dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 512 of 2014
| IMRAN SHAH NAWAZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant has brought an Application in a Case under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (the “Rules”), seeking the reinstatement of his case and effectively seeking dismissal of an Order made on 13 March 2015 (“the Order”). The Order dismissed the substantive application pursuant to Rule 13.03C(1)(c) of the Rules on the basis that the Applicant failed to attend a final hearing listed on 13 March 2015.
The First Respondent (“the Minister”) opposes the application for reinstatement.
In deciding whether to grant the application, the Court must be satisfied that it is in the interests of justice to set aside the order and exercise its discretion cautiously: SZRJY v Minister for Immigration and Citizenship(No.2) [2012] FMCA 756 at [15]. In exercising its discretion the Court will have regard to the following matters:
a)whether there is an adequate reason for the non-appearance;
b)any delay in making the application to set aside the Order;
c)whether the party, in whose favour orders have been made, would be prejudiced by a new hearing in any respect which could not be adequately compensated by a suitable award of costs or the giving of security for costs; and
d)whether there is an arguable case on the merits of the substantive application. The Court will give considerable weight to this matter.
See: Akpata v Minister for Immigration and Citizenship [2005] FCAFC 250
Background
The substantive application seeks review of a decision of the Migration Review Tribunal (“ the Tribunal”), affirming a decision of a delegate of the Minister to refuse the Applicant a Skilled (Provisional) (Class VC) visa (“the visa”).
The Applicant applied for the visa on 16 July 2008 (CB 1-38). With that application, he provided a successful skills assessment from Trades Recognition Australia (TRA) based on evidence that he had satisfied 900 hours of directly related work experience (CB 34-35). By a statement dated 14 October 2008 sent to the (then) Department of Immigration and Citizenship, the Applicant explained that he had paid a migration agent and received a work reference stating that he had worked 910 hours at a company called Ezy Graphics, but that he had never worked at that company (CB 39-40). This reference was the basis for his skills assessment.
On 6 July 2010, TRA revoked the Applicant’s skills assessment (CB 132 at [12]).
On 27 May 2011, a delegate of the Minister was not satisfied that the Applicant held a favourable skills assessment as required by cl 485.221 of the Migration Regulations 1994 (“the Regulations)”, and refused to grant the visa (CB 56-58).
The Applicant applied to the Tribunal for a review of the decision on 12 August 2011, and on 3 August 2012 the Tribunal found that it did not have jurisdiction to review the matter (CB 71-76). The Applicant sought judicial review of this decision on 30 August 2012 and on 25 June 2013 Judge Riley remitted the matter to the Tribunal (CB 77-78).
A Tribunal differently constituted considered the matter. The Tribunal wrote to the Applicant, by his authorised representative, on 19 December 2013 inviting the Applicant to respond to information and to provide information (CB 97-102). The Tribunal requested the following information (CB 101):
a)Information which confirms that the Applicant’s skills had been assessed by an appropriate authority; and
b)Information which demonstrates “compelling circumstances” or “compassionate and compelling circumstances”.
The Tribunal requested this information by 16 January 2014 (CB 101).
On 9 January 2014, the Applicant requested documents on his file under freedom of information legislation (FOI) (CB 103-104, 107-108).
On 9 January 2014, the Tribunal received a letter from the Applicant requesting an extension of time of 28 days. He stated his migration agent could no longer represent him, he had been looking over the holiday break to get immigration advice and he wanted more time so he can “get advise (sic) from another agent”(CB 106).
The Tribunal refused this request for more time by letter dated 10 January 2014 (CB 112-113). The Tribunal stated:
“…The visa application was refused by the Department on 27 May 2011 and the review application was lodged on 6 August 2013.
Whilst the Tribunal appreciates that you have had difficulty in securing the services of another migration agent, the Tribunal letter sets out clearly the issues before it and invited you to comment on these issues. The Tribunal also notes that as the visa application was refused on 27 May 2011, you have been aware of the basis for the refusal of his visa application for a period of more than 2 ½ years.
You have also been invited to submit evidence you have a skills assessment from the relevant assessing authority for your nominated skilled occupation of ‘Graphic Pre-press Tradesperson’ (ASCO Code 4911-11), which was revoked on 6 July 2010, more than 3 ½ years ago. The Tribunal considers that you have had ample time since this event took place in July 2010, and since the refusal of the visa application in May 2011, to obtain a new skills assessment.
Finally, the Tribunal letter requested that you provide information that demonstrates the existence of any compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen in your case that would justify the grant of the visa.
Your representative was suspended on 14 June 2013 and, therefore, before the Tribunal sent its letter to him on 19 December 2013.
In the circumstances, the Tribunal considers that you have had ample time to obtain representation since your representative was suspended and to prepare evidence for you review application.”
The Tribunal attempted without success to call the Applicant by telephone on 15 January 2014 (CB 118).
On 17 January 2014, the Tribunal received a further request from the Applicant for more time. The Applicant stated he needed all the documents, time to read them and that he was trying to get a legal opinion. He said he needed 3 months to meet all requirements (CB 115). The Tribunal declined that request for an extension of time, stating that the matter will be finalised on 31 January 2013 and the Applicant could submit documents up until that time (CB 116 to 117). The Tribunal stated:
“…In addition, the Tribunal refers you to its letter dated 10 January 2014. For the reasons set out in that letter, the Tribunal considers that you have had ample time in which to obtain a ‘skills assessment’ for your nominated skilled occupation of ‘Graphic Pre-press Tradesperson’ since the revocation of you original favourable skills assessment by Trades Recognition Australia on 6 July 2010, and the refusal of your visa application by the Department on 27 May 2011. Similarly, the Tribunal considers you have has sufficient opportunity since your migration agent was suspended on 14 June 2013 to get legal advice regarding your review application.
The Tribunal has carefully considered your request for an extension of time, but has decided in the circumstances to decline your request…”
The Applicant was given access to the documents on his file under FOI on 22 January 2014 (CB 120-123).
On 29 January 2014, the Tribunal received a third request for an extension of time from the Applicant. The Applicant stated that he could not get legal advice, that he was mentally unwell and had difficulty reading the documents. He stated he was stressed, out of work, his mother (in Pakistan) was seriously ill, he supported the family in Pakistan and in the week before, his young son had attended hospital with a virus. He asked for an extension of two months (CB 125).
The Tribunal declined this third request and reiterated that any further evidence or submissions were due by 31 January 2014. The Tribunal stated (CB 127):
“…In addition, the Tribunal has taken into account the claims you have made about your personal circumstances, including your family circumstances in Pakistan, and your inability to pay for appropriate advice regarding your migration status in Australia.
However, for the reasons set out in its letter dated 17 January 2014, the Tribunal considers that you have had ample time to obtain both a skills assessment and migration assistance for the purposes of your review application…”
After this, the Applicant provided no further material.
The Tribunal proceeded to make its decision without inviting the applicant to attend a hearing. The Tribunal affirmed the delegate’s decision on 21 February 2014 (CB 129 to 161). The Applicant applied for judicial review on 24 March 2014.
Relevant law
At the time the visa application was lodged the visa class contained two subclasses: Subclass 485 (Skilled – Graduate) and Subclass 487 (Skilled – Regional Sponsored). Subclass 485 applied to the applicant’s circumstances and consequently the applicant was required to satisfy the criteria for the grant of a Subclass 485 visa, including, cls.485.221 and 485.224 of Schedule 2 to the Regulations.
Clause 485.221(1) applies at the time of the Tribunal decision and relevantly provides:
485.221
The skills of the Applicant for the Applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.
Clause 485.224 required the Applicant amongst other things to satisfy Public Interest Criterion 4020 (PIC 4020) which at the relevant time provided:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
….
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
…
The Tribunal’s decision
In its decision record the Tribunal explained its decision not to invite the Applicant to attend a Tribunal hearing as follows (CB 137 [34] to [35]):
“[34] The Tribunal notes that the invitation to comment on adverse information under section 359A, and to provide information under subsection 359(2) of the Act, was sent to the last address for service provided by the application in connection with the application for review. The Tribunal also has evidence indicating the date of dispatch in accordance with section 379A of the Act. In addition, the Tribunal notes that in his letter requesting an extension of time on 9 January 2014 the applicant acknowledged that he has received the Tribunal letter dated 19 December 2013.
[35]Accordingly, as the applicant failed to comment upon the adverse information and to provide the requested information before the time for giving it had passed, section 359C of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the information. Further, as section 359C applies to the applicant, subsection 360(3) states that he is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a person to do something he or she is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.
Section 363(1)(b) of the Migration Act 1958 (“the Act”) provides that the Tribunal may adjourn the review from time to time.
363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
(c)subject to sections 377 and 378, give information to the applicant and to the Secretary; or
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
…
The Tribunal also set out its reasons for refusing to adjourn the review under s.363(1)(b) and grant the Applicant an extension of time to provide the information requested or to comment or respond to the Tribunal correspondence dated 19 December 2013 (CB139 to 141 [50], [52], [54] to [57]):
“[50] Notably, at no time did the applicant in any of the requests that he made to the Tribunal for additional time dispute the fact that Trades Recognition Australia had revoked his skills assessment on 6 July 2010. Nor did he request additional time to obtain a new ‘skills assessment’ for the purposes of his review application.”
“[51] Consequently, at the time of the decision, the applicant has not provided any evidence that his skills have been assessed by Trades Recognition Australia as suitable for his nominated skilled occupation of a ‘Graphic Pre-press Tradesperson’.”
“[52] The Tribunal has considered whether it should adjourn the review under subsection 363(1)(b) of the Act in order to allow the applicant additional time in which to meet the requirements of clause 485.221, as requested by him.”
…
“[54] In relation to this matter the Tribunal has taken into account the fact that the visa application was lodged on 16 July 2008, more than 5 ½ years ago. In addition, the visa application was refused on 27 May 2011, and the applicant has therefore been aware of the basis for the refusal of his visa application for almost 3 years. The Tribunal has also had regard to the fact that the applicant had the benefit of professional advice regarding his review application from a registered migration agent when the review application was first lodged on 12 August 2011, 2 ½ years ago.”
“[55] Yet, at no time has the applicant disputed the fact that his skills assessment was revoked by Trades Recognition Australia on 6 July 2010, or that he does not have a valid skills assessment at the time of the decision. Nor has the applicant requested additional time for the purposes of obtaining a ‘skills assessment’ for his nominated skilled occupation. Moreover, the applicant has never disputed the fact that he provided a statement to the Department on 14 October 2008 that he had never worked at Ezy Graphics.”
“[56] The Tribunal has taken into account the applicant’s claim that he has not been able to secure legal assistance because the migration agent who lodged his review application was no longer available, and he cannot afford to pay the professional fees required by other registered migration agents for this purpose. However, the Tribunal notes that the applicant’s migration agent for the review application was suspended on 14 June 2013, approximately 5 months before the Tribunal issued its combined letter under sections 359A and 359(2) of the Act on 19 December 2013. Notably, the Tribunal wrote to the applicant on 19 September 2013 regarding his representative’s suspension as a registered migration agent and set out the options he might pursue in relation to representation for his review application.”
“[57] As a result, even if the applicant’s representative did not inform him of his suspension as a registered migration agent in June 2013, the applicant has had since 19 September 2013 at least to arrange alternative representation for the purposes of his review application. The Tribunal therefore considers that he had had sufficient time in which to obtain appropriate legal assistance. The Tribunal also observes that the applicant’s claims in this regard are somewhat at odds with the fact that he successfully lodged an application for judicial review on 30 August 2012 with the then Federal Magistrates Court, appearing in person and without representation before the Court.”
With respect to the grant of the visa, the Tribunal found that the Applicant did not satisfy the visa criteria for two reasons:
a)First, the Applicant’s skills assessment had been withdrawn, so the Tribunal found that the Applicant did not have a skills assessment and therefore did not satisfy cl.485.221(1) (CB 142 at [64]).
b)Secondly, the Tribunal found that the Applicant did not satisfy PIC 4020, and so he did not satisfy the requirements of cl.485.224(a) of the Regulations (CB 161 at [150]-[151]). In reaching that conclusion, the Tribunal found that the Applicant gave a statement to the Department that he has paid his former migration agent to obtain a work reference from Ezy Graphics, that he had never worked there, and that his agent had submitted that reference to Trades Recognition Australia (CB 147 at [81]).
Whether there was an adequate reason for non-appearance?
In his Affidavit filed with his Application in a Case dated 31 March 2015 the Applicant deposes that he was at the gym on 10 March 2015, and suffered from back pain. He attended his General Practitioner at some time after this (the exact date is unclear from the affidavit) who advised him that he had high blood pressure and hypertension and should have complete bed rest. The Applicant asked his friend to “drop in” an adjournment application with medical certificates provided at the time of the Applicant’s examination. The Applicant deposes that his condition on the day of his hearing was beyond his control.
The Affidavit annexes two medical certificates. A medical certificate dated 30 March 2015 an adjournment request dated 12 March 2015 and a medical certificate dated 11 March 2015. The medical certificate dated 30 March 2015, clearly post-dated the hearing.
The medical certificate completed on 11 March 2015 was signed by Dr Aflal Hussain certified that the Applicant:
“IS RECEIVING MEDICAL TREATMENT FOR HIS MEDICAL CONDITION
HE WILL BE UNFIT TO CONTINUE USUAL OCCUPATION
From Wednesday 11 March 2015 to Saturday 14 March 2015 inclusive
The medical certificate completed on 30 March 2015 was signed by Dr Aflal Hussain certified that the Applicant:
IS RECEIVING MEDICAL TREATMENT FOR HIS MEDICAL CONDITION (BACK PAIN AND HYPERTENSION)
HE HAS BEEN TREATED WITH BED REST AND PHARMACOLOGICAL MANAGEMENT
The Minister submits that the Court should ignore the evidence provided by the applicant about his hypertension and high blood pressure and his Doctor’s recommendation for bed rest. The Minister argues that this claim relies on a medical certificate completed on 30 March 2015, some 17 days after the hearing and one day before the reinstatement application was made. The Minister points out that contrary to the Applicant’s affidavit, this certificate was not provided to the Court on 12 March 2015.
Even if the Court had regard to the medical certificate dated 30 March 2015 (together with the medical certificate dated 11 March 2015), I would find that the applicant has not provided a reasonable explanation for his non-attendance for the following reasons.
In NKAX v Minister for Immigration and Multicultural and Ethnic Affairs (2003) FCA 1559, Lindgren J considered two medical certificates provided by the appellants to explain their non-attendance at the hearing as follows:
“5. The medical certificate dated 13 December 2003 in respect of the male applicant states 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.’
The certificate of the same date in respect of the female appellant states:
‘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.’
6 The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.
7 I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.
8 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 I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.
10 In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above. “
The medical certificate completed on 11 March 2015 did not specify the Applicant’s medical condition and did not specify that the Applicant would be unable to attend Court and participate in the Court hearing. Consequently, it does not provide a reasonable explanation for his non-attendance at Court on 13 March 2015.
The medical certificate completed on 30 March 2015 specifies that the Applicant is being treated for back pain and hypertension. However, it does not state the period during which the Applicant has been suffering these symptoms for which he is being treated, nor does it specify that the Applicant was unable to attend Court and participate in a hearing. I am not satisfied that the medical condition, as it is described in the medical certificate, is such as to prevent the applicant from attending Court, assuming this is the medical condition he was suffering from on 13 March 2015. Consequently, it does not provide a reasonable explanation for his non-attendance at Court on 13 March 2015.
I am not satisfied in the evidence provided by the applicant that he had a reasonable explanation for not attending Court on 13 March 2015.
The delay in making the application or Prejudice to the Respondent
The Applicant’s substantive application was dismissed by Order’s made on 13 March 2015. The Applicant filed his Application in a Case on 1 April 2015. I am satisfied this is not an unreasonable delay.
The Respondent does not submit the Minister would suffer any prejudice. I am satisfied that the Minister would not suffer any prejudice which could not be compensated for by a suitable award of costs.
Does the substantive application raise an arguable case?
The grounds of review
The Applicant’s grounds of review are set out in an attached document to his substantive application filed on 24 March 2014 and related affidavit. The grounds extracted in full are:
1.The Tribunal failed to understand the seriousness of my mental state and inability to respond to the requests made by the Tribunal. Please see Paragraph 31 to 33 of the Decision record of the MRT. The Tribunal did not consider my personal circumstances. The Tribunal did not understand the seriousness of my personal circumstances and discounted the contents of my letter dated 29 January 2014. I was not offered an opportunity to put my case. The Tribunal took the position that I failed to respond to the Tribunal letter date 19 December 2013 yet at Paragraph 58 the Tribunal acknowledges that I did respond to that letter. I did respond within the required timelines. I offered explanations for my inability to respond within the timelines. I believe I have not been afforded natural justice. The Tribunal failed to understand that I have not sought an extension in this matter previously.
2.The Tribunal states that I was not contactable by telephone however I specifically requested the Tribunal to contact me ny email at [email protected] . The Tribunal erred in stating that I did not provide an email for this purpose. Please see paragraph 26 of the Tribunal Decision Record.
3.The Tribunal makes irrational and unreasonable conclusions about my capacity to represent myself fails to consider my representations as to why I needed more time
4.The Tribunal is punitive and judgmental and shows little compassion for my personal circumstances. This leads me to believe that the Tribunal is biased in coming to its decision.
5.The Tribunal takes judgmental and value laden position which impacts on my opportunity to make my case before the Tribunal. I have not been given an opportunity to be heard. The Tribunal does not understand my personal circumstances that I have experienced in this case and I note that in similar circumstances the Tribunal has adjourned cases where individuals have had mental health issues or stress situations and the Tribunal has granted extensions of time. The Tribunal fails to understand that I have indicated in my letter in response to the 19 December 2013 request for the Tribunal that I required and extension of time for the purposes ‘to fulfil all requirements’.
6.The statement by the Tribunal at Paragraph 61 commencing “Against a background where the applicant has never denied either making a statement to the Department of 14 October 2008, or the contents of that statement, namely, that he had paid someone to obtain a document that falsely represented that he has undertaken relevant work experience for the purposes of a skills assessment, the Tribunal considers it reasonable to infer that the applicant’s only purpose in seeking additional time in January 2014 was to effectively delay the finalization of his review application” is irrational, unreasonable in the circumstances and judgmental given that I was not able to be present to put my case to the Tribunal. The Tribunal comes to an illogical conclusion.
7.The conclusions reached at paragraph 62 of the Decision record are unreasonable and irrational and unfair given my timely responses and reasonable requests for time in order to fulfil of the requirements of the Tribunal in the circumstances that I am confronting.
8.The Tribunal fails to understand the purpose of my request for an extension of time and makes comments that are judgmental and punitive. I did indicate to the tribunal my personal circumstances and the need to have all of my file as I was trying to get the services of another representative. Given the timing of the Letter of request of further information (19 December 2013) the Tribunal fails to understand the difficulties imposed upon me. To get the service of a representative during this period is very difficult. I believe the Tribunal erred in not offering me natural justice.
9.The Tribunal at paragraph is dismissive of my circumstances and takes a very rigid position in not offering me an opportunity to be heard.
10.The Tribunal errs in making the comments at paragraph 55. In my letter to the Tribunal I did request more time in order to fulfil all the requirements. Given the time of year and my personal circumstances as described I needed more time to ‘fulfil all the requirements. The Tribunal erred in that it did not allow mw an opportunity to present necessary documents.
11.The Tribunal at paragraph 59 fails to understand the purpose of the FOI request. The FOI request was to assist me in providing information to another representative in order to obtain legal assistance. I compare this paragraph to paragraph 53 where it would appear that the Tribunal does have discretion such (sic) matter. The Tribunal has shown a lack of understanding of my personal circumstances in this instance and has failed to use its discretionary power to adjourn the hearing in order to give me an opportunity to test the allegations and claims made by the Tribunal in its decision.
12.The Tribunal makes illogical and irrational conclusions as to the evidence before it given that I was not able to attend and hence not given an opportunity to be heard. The natural justice principles have been abrogated by the Tribunal. The Tribunal failed to understand that had I had an opportunity to put my case I would have put the tribunal information to meet the requirements of the Tribunal. However I needed time to make the necessary preparations and to have obtained (sic) legal advice. I was not granted that opportunity for an adjournment by the Tribunal. I believe that there were sufficient grounds to be granted an adjournment.
13.The matters raised by the Tribunal at paragraphs 86 to 127 of the decision record could not be tested without my presence to give evidence to counter such allegations. I believe the Tribunal has erred in that it has not applied the principle of natural justice. The matters raised have not been tested. I did say in my letter requesting an adjournment that I would provide documents to ‘fulfill (sic) all the requirements’(sic)
15.The Tribunal considered the waiver provision at paragraphs 128 to 148. The Tribunal did not give (sic) an opportunity to address this aspect. The Tribunal did not offer me an opportunity to be heard.
16.The Tribunal in its decision recorded at paragraph 62-64 fails to understand that the Skills assessment could be provided at any time before a decision is made in my case. I did say in my request for an adjournment that I needed more time to ‘fulfill (sic) all the requirements’ getting a skills assessment was one to (sic) the matters I was seeking legal advice upon. The Tribunal erred in not understanding my request and the need for such a request.
17.At paragraph 67 the Tribunal erred in not understanding my personal circumstances throughout the Visa and appeal process and has come to the erroneous conclusion that I have deliberately not countered the allegations made. Again I repeat that I did in a timely way request additional time and I believe that the Tribunal had discretion to adjourn the hearing as I have indicated I was going to provide additional information to ‘fulfill (sic) all the requirements’ (sic)
18.The Tribunal erred in granting me an adjournment as itself (sic) recognizes fails to understand that in my request I was going to [provide further information to ‘fulfill (sic) all the requirements’. The Tribunal has erred in not giving (sic) an opportunity to counter the statements at Paragraph 70.
19.The Tribunal erred in its conclusion in equating ‘responsiveness’ as agreement or acceptance by me to information given to officers of the Department. The Tribunal did not give me an opportunity to provide counter arguments and also an opportunity to ‘fulfill (sic) all the requirements’ as indicated in my letter seeking and (sic) adjournment. The Tribunal has been unreasonable and shows lack of consideration of the operation the natural justice principles (sic)
20.The Tribunal erred in not granting me an opportunity to counter the conclusions reached at paragraphs 91 and 94 of the Decision Record and similar at paragraphs 141 to 142 (sic) I was not given an opportunity to personally present arguments to seek to waive the operation of Schedule 4020 as is permissible under schedule 4040 (4)(a)” (sic)
I am satisfied that these grounds for judicial review can be grouped and considered under the following headings[1]:
1.the Tribunal failed to properly consider the Applicant’s requests for an extension of time;
2.the Tribunal did not give the Applicant an opportunity to attend a hearing and thereby give arguments and submissions at hearing; the Tribunal failed to accord the Applicant procedural fairness.
3.the Tribunal unreasonably or irrationally determined not to adjourn the review under s.363(1)(b);
4.the Tribunal incorrectly or erroneously determined that the Applicant failed to respond to the letter of 19 December 2013;
5.the Tribunal erred by stating that the Applicant did not provide an email address; and
6.the Tribunal was punitive and judgmental, took a value laden position and was dismissive.
[1] These are an adaption of the categories identified by the Minister in the First Respondent’s Contentions of Fact and Law filed on 26 February 2015
I have adopted this summary of the Applicant’s grounds, in considering whether he has an arguable case, as I am satisfied that for the purpose of judicial review they fairly group his grounds in a way that can be meaningfully considered.
At the hearing, the Applicant submitted that he sought judicial review for two reasons; firstly, because the Tribunal denied him an opportunity to present his case before it and secondly, because he was not given an extension of time as he requested. When asked why he had sought an extension of time, the Applicant said that he did not seek an extension of time to obtain a skills assessment, rather, it was to obtain a new lawyer. He said that in late 2013, his then lawyer told him about the delegate’s decision and that he could no longer represent the Applicant. Consequently, in January 2014 he sought an extension of one month so he could obtain legal representation.
It is clear from the Applicant’s submission to the Court that he understood it was a requirement for him to be granted the visa that he have a skills assessment. He seemed to have the view that if he saw a lawyer he could have all of his circumstances examined and so assist his case. Moreover, it appears that he was under the misapprehension that the Tribunal would give him “options” to progress with his case, had he been given an opportunity to appear before it.
He said that during January 2014, he had attended on lawyers but they “were not giving him any hope for his case.” He wanted more time to find a lawyer to give him options.
Did the Tribunal properly consider the Applicant’s requests for an extension of time
A refusal by a Tribunal to adjourn or reschedule a hearing, if unreasonable, will amount to a failure to exercise its power according to law. In Gazi v Minister for Immigration and Citizenship [2013] FCA 1094 (Gazi), Logan J stated, referring to Minister for Immigration & Citizenship v Li (2013) 87 ALJR618 (Li) at [34] to [35]:
“34 Li concerned a refusal by the Tribunal to adjourn a review hearing in the exercise of its power so to do conferred by s 363(1)(b) of the Migration Act, whereas this case concerns a decision by the Tribunal not to reschedule a hearing in the exercise of the power so to do conferred by s 362B(2) of that Act. That, though, is a distinction without a difference in terms of the question settled by Li. As with the power conferred by s 363(1)(b) of the Migration Act, the power conferred on the Tribunal by s 362B(2) of that Act must be exercised according to law and it will only be so exercised if it is exercised reasonably: Li at [26], [27], [28], [31] per French CJ; at [47], [63], [67], [68] and [76] per Hayne, Kiefel and Bell JJ and at [90], [92], [94] per Gageler J. It will not be exercised reasonably if it is exercised in a way that no reasonable tribunal could so exercise the power in the circumstances concerned.”
“35. For the reasons just given, a decision of the Tribunal might be quashed for jurisdictional error grounded in an unreasonable refusal to reschedule a review hearing. For the Tribunal to make such a decision would be not to conduct its “core function” (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [19] per French CJ and Kiefel J) of review according to law.”
His Honour set out examples of circumstances where a refusal to adjourn or reschedule a hearing may be unreasonable at [38] to [39]:
“38 ………..It is certainly possible to envisage a case where a refusal to reschedule might be unreasonable if an applicant had placed before the Tribunal material which showed that, notwithstanding diligent endeavour to secure materials which were supportive of a successful challenge to the decision under review, it had not proved possible to secure these from a third party in time for the appointed hearing date. Where that applicant also put before the Tribunal in conjunction with the rescheduling request evidence which showed that the supporting material would be available within a short time, a refusal by the Tribunal to reschedule might very well be regarded as unreasonable. Li was a case of that kind.”
“39 Unreasonableness might also be found in an uncritical refusal to reschedule, even in the face of medical evidence accepted as reliable, which showed that an applicant was not fit to participate in any hearing no matter what form that hearing took. The case for a conclusion of unreasonableness in those circumstances would be strengthened if the Tribunal approached the question of rescheduling on the basis that an applicant had already been offered a number of earlier hearings which had had to be rescheduled and that enough was enough. The Migration Act does not provide a limit as to the number of times upon which a hearing might be rescheduled. That past hearings had, for reasons which the Tribunal thought good, been rescheduled would not carry with it the proposition that no further rescheduling could occur any more than those past reschedulings would, in themselves, dictate that there ought to be a further rescheduling of a hearing.”
In Li, the applicant had sought more time to enable her to seek a review of an unfavourable skills assessment which she claimed was deficient. The majority (Hayne, Kiefel and Bell JJ) stated:
“80. The decision to refuse the adjournment request was explained by the Tribunal on the bases that: (a) Ms Li had been provided with enough opportunities to present her case; and (b) the Tribunal was not prepared to delay the matter any further. The reference to delay was not further explained by the Tribunal. The only significant delay would appear to be attributable to the Tribunal, which took some nine months to contact Ms Li after the lodgement of her application. In any event, what pressing need for a conclusion of the review was the Tribunal adverting to, a need which would have to be weighed against the object of s 360? The position of the Tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another[160]. It may be accepted that the Tribunal is to act with some efficiency, as is stated in s 353(1) of the Migration Act, but such a consideration would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5.”
“81. The Minister appears to translate the Tribunal's reference to Ms Li having had sufficient opportunity as "enough is enough" and submits that if the Tribunal could not so determine, it would be required to hear, in effect, a series of applications which could be unending. This submission should be understood in the context that the criteria for the visa in question may be fulfilled at any time up to the point of decision.”“82. It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that "enough is enough", but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.”
“83. The purpose of s 360(1) has already been referred to. It is to provide an applicant for review the opportunity to present evidence and arguments "relating to the issues arising in relation to the decision under review". The question which remained in issue when the Tribunal made its decision was the satisfaction of a visa criterion by a complying skills assessment. Although the Tribunal could not be expected to assume that the second skills assessment, when reviewed, would favour Ms Li, it did not suggest that there was no prospect of the second skills assessment being obtained, or that the outcome could not be known, in the near future. In these circumstances it is not apparent why the Tribunal decided, abruptly, to conclude the review.”
The Applicant claims that the Tribunal failed to have regard to his personal circumstances: those being his mental state and inability to respond to the Tribunal requests. His oral evidence is that he wanted to find a lawyer who would take his case on.
It is evident from the extracts at [26] above, that the Tribunal refused to grant the Applicant an extension of time because he had had, in the Tribunal’s view, sufficient time to obtain a skills assessment and to obtain representation.
The Tribunal observed that the Applicant has had 5 ½ years since his application has been made to obtain a proper skills assessment and he had been on notice of the defects in his previous skills assessment for at least 2 ½ years (CB 112, CB 140 at [54]). He had also been assisted by a registered migration agent when lodging the review application (CB 140 at [54]). The Tribunal also concluded that the Applicant did not appear to have taken any steps to obtain a skills assessment or to challenge the revocation of his previous skills assessment (CB 140 at [55]).
The Tribunal refused to grant the Applicant further time to obtain representation primarily because the Applicant had been aware since 19 September 2013 that his migration agent’s registration had been suspended and that he needed to obtain new representation (CB 140-141 at [57]). The Tribunal also considered that the Applicant’s submission that he required representation were at odds with his previous successful self-representation in the Federal Magistrate’s Court (CB 141 at [57]).
The Tribunal refused to grant the Applicant further time to obtain and consider documents under FOI because the Tribunal considered that it had already provided the Applicant with all the relevant documents annexed to its letter of 19 December 2013 (CB 141 59].
The Tribunal stated it took into account the Applicant’s claims regarding his personal circumstances, but for the reasons it had earlier given to him (see [50]) above it had refused the third request for an extension (CB 127).
Ultimately, the Tribunal found that “the Applicant has a history of being non-responsive when invited to comment on issues relating to his visa application by the Australian authorities” (CB 141 at [61]). And that “he has not provided any information to the Tribunal that would suggest that he is in a position to obtain a ‘skills assessment’… in the reasonably foreseeable future from Trades Recognition Australia to meet the requirements of cl 485.221. Instead he has responded vaguely to the Tribunal invitation dated 19 December 2013” CB 141 at [61]). The Tribunal also noted that the Applicant had never challenged the bogus nature of his TRA assessment. Finally, the Tribunal found “it reasonable to infer that the Applicant’s only purpose in seeking additional time in January 2014 was to effectively delay the finalisation of his review application” (CB 141 at [61]).
Consideration
The Applicant’s submission at hearing was that he required an extension of time to obtain legal advice or options to pursue his case. He specifically stated to the Court that he had not sought an extension of time because he wished to obtain a skills assessment. I am satisfied that since the time his skills assessment by the TRA was revoked on 6 July 2010 up to the period during which the Applicant sought an extension in time to provide information to the Tribunal and to comment on or respond to information identified by the Tribunal, he had not taken any steps nor did he intend to attempt to obtain a skills assessment. This is despite the fact that the Applicant understood he required an assessment to obtain the visa, that it was apparent for the delegate’s decision made on 27 May 2011 that he required a skills assessment to be granted the visa and despite the fact that the Tribunal made it clear that this was a requirement for the grant of the visa in its correspondence dated 9 December 2013.
The Applicant’s submission about his efforts to obtain legal advice conveyed the impression of someone who was not merely seeking new representation but a person who would give him some hope in pressing his case for the review (which in the absence of a skills assessment can only have said to have been hopeless).
The circumstances in this case are to be distinguished from those which confronted the Tribunal in Li. In this case, the Applicant did not ask for an extension of time to obtain a skills assessment and, despite being aware that he needed to have a skills assessment to satisfy the criteria for the grant of the visa,
In his written grounds of review, the Applicant claims that the Tribunal erred in not granting him more time, because it did not consider the Applicant’s personal circumstances or mental state (grounds at [1], [4], [8]). The Applicant first raised these issues in the Applicant’s third request for an extension of time in his letter received on 29 January 2014 (CB 125-126). I note here that he did not provide any medical evidence regarding his ill health or that of his son’s.
The Tribunal stated, in declining this request (on 30 January 2014) that these matters had been carefully considered by the Tribunal, but it decided to decline the request because the Tribunal considered that the Applicant had had ample time to obtain a skills assessment and migration assistance (CB 127). The Tribunal also dealt with the personal circumstances raised by the Applicant at [60] of its decision when it decided not to adjourn the review (CB 141). The Tribunal acknowledged that the Applicant’s claims that he was experiencing stress and depression but opined that this was not an unusual experience for applicant’s engaged in the visa application and review process. In the absence of any probative medical evidence from the Applicant, this was a reasonable conclusion for the Tribunal to reach. It is apparent in any event, that the Tribunal gave greater weight to the fact that the applicant had had sufficient time to obtain a skills assessment, new representation and the fact that he had a history of being non-responsive.
I am satisfied the Tribunal considered the Applicant’s circumstances but gave greater weight to other factors. It was entitled to do this. I am satisfied that it exercised its discretion reasonably.
The Applicant claims that the Tribunal failed to understand that he required time “to fulfil all requirements” (grounds at [5]). In the Applicant’s second request for more time he says “[n]ow I believe I need 3 months to meet all the requirements” (CB 115). In his third request he says “grant me at least 2 months to fulfil all the requirements” (CB 126). I am satisfied, having regard to the Applicant’s submissions, that in saying he was seeking time to “fulfil all requirements”, he was not seeking time to obtain a skills assessment but rather to obtain representation. The Tribunal was correct in stating that the Applicant did not specifically “request additional time for the purposes of obtaining a ‘skills assessment’ for his nominated skilled occupation” (CB 140 at [55]). I am satisfied that there was no evidence before the Tribunal that the Applicant was seeking to obtain a new skills assessment or that he was likely to gain such an assessment, and given the period of time the Applicant had had to obtain a proper skills assessment, I am satisfied the Tribunal did not unreasonably refuse an extension of time: cf Li.
The Applicant alleges that Tribunal failed to take into account the fact that the Applicant had not previously sought an adjournment (grounds [1]). I concur with the Minister’s submission that such a consideration was not mandatory and that the Tribunal’s failure to expressly take this into account does not render the Tribunal’s decision unreasonable. Indeed, it would appear that had the Tribunal approached the question of an extension of time having regard to this factor, the exercise of its discretion may well have been unreasonable: Gazi at [39].
The Applicant contends that the Tribunal failed to appreciate the difficulty in obtaining representation as at 19 December 2013 (grounds [8]). I am satisfied the Tribunal did consider the ability of the Applicant to obtain representation and found that there had been sufficient time (from 19 September 2013 – when the Applicant was made aware that his agent’s registration had lapsed) to obtain representation (CB 140 to 141 at [57]). This contention of the Applicant is, in my view, simply a disagreement with the Tribunal’s conclusion on this point and does not give rise to jurisdictional error.
The Applicant’s submits that the Tribunal erroneously considered that the FOI claim was to obtain documents to respond to the 19 December 2011 letter, when it was in fact to obtain documents to brief a representative (grounds at [8]). In his second request for an extension of time, the Applicant says that “I think I would need all the documents I have requested and I also need time to read this and understand them. I am also trying to get legal opinion” (CB 115). It is not clear from the Applicant’s second request that he required all the documents on the file for a legal representative. It was reasonable for the Tribunal to conclude that the purpose of the freedom of information claims was for the Applicant to obtain documents for himself to consider.
The Applicant submits that the Tribunal failed to understand that a skills assessment could be provided any time before a decision was made (grounds [16] referring to [62] to [64] of the decision record). There are two things to be said about this ground; first, there is nothing in the Tribunal decision record that indicates that the Tribunal held such a view. The Tribunal was simply stating that, as a matter of fact, the Applicant had not provided to the Tribunal any information to suggest he was in a position to obtain a skills assessment, and that his requests for two to three months extension to “fulfil all requirements” were vague. Secondly, the Applicant was asked at the hearing at Court, whether he sought an extension of time to seek a skills assessment at least twice and each time he responded, that he was not seeking an extension in time for such a purpose.
The Applicant contends that the Tribunal’s inference that he was merely attempting to effectively delay the finalisation of his review application is irrational and unreasonable (grounds at [6]).
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Crennan and Bell JJ stated at [130] to [131]:
“130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s.65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing Court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
I am satisfied that the inference was open to the Tribunal. The Applicant had not put forward any prima facie evidence before the Tribunal that he was attempting to provide material which would result in a successful visa application. Reasonable minds might have differed on the view the Tribunal took regarding the evidence and the inference to be drawn. However, this does not constitute unreasonableness which gives rise to jurisdictional error.
The Applicant also submits that the Tribunal made irrational or unreasonable conclusions about the Applicant’s ability to represent himself (grounds at [3]). The Applicant does not identify how this conclusion is unreasonable. There is nothing inherently irrational or unreasonable in the Tribunal’s conclusion that the Applicant’s claims to require representation were “somewhat at odds” with his successful previous appearance in the Federal Magistrates Court (CB 141 at [57]). I refer and repeat [68] and [69] above.
I find that the Tribunal’s decisions to refuse to grant an extension of time to the Applicant to provide further information did not disclose unreasonableness or irrationality sufficient to give rise to jurisdictional error.
The Tribunal’s failure to give the Applicant an opportunity to attend a hearing and failed to afford the Applicant procedural fairness.
These categories of jurisdictional error are found at grounds at [1], [6], [12] to [16] and [18] to [19].
Part 5 of the Act deals with the conduct of reviews by the Tribunal. Section 357A provides that Division 5 of Part 5 is an exhaustive statement of the natural justice hearing rule. The effect of s.357A(1) of the Act is to exclude the Tribunal from common law obligations of procedural fairness: see SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99 at [49]-[50] and SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [48].
Section 360 provides:
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 359C provides:
Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.
By correspondence dated 19 December 2013, acting pursuant to s.359 of the Act the Applicant was requested to provide information under s.359, including the provision of a skills assessment (CB 99). In that same correspondence the Tribunal acting pursuant to s.359A of the Act was also invited to comment on or respond to information which would be a reason or part of a reason for affirming the decision under review. This information concerned the operation of PIC 4020 (CB 99 to 101).
The Applicant did not provide the information it requested to the Tribunal nor did he comment on or respond to the information before the time for giving it had passed; namely 31 January 2014.
Consequently, by operation of subsection 360(3) the Applicant was not entitled to appear before the Tribunal.
The Applicant appears to believe that his requests for an extension of time amounted to a response to the Tribunal’s request pursuant to s.359 and s.359A. This contention is misconceived as his requests were simply requests for additional time. The correspondence containing these requests were non-responsive to the Tribunal’s request for him to provide information and to comment on or respond to information which would be a reason or part of a reason for affirming the decision under review.
I am satisfied that the Tribunal complied with its obligations under Division 5 of Part 5 of the Act and that the Applicant was, in the circumstances not entitled to appear before the Tribunal. I find this ground does not disclose jurisdictional error.
Did the Tribunal did not unreasonably or irrationally determine not to adjourn the review under s.363(1)(b)
This ground is contained at ground [7] of the Applicant’s attachment.
For the reasons set out at [46] to [62] above, I am satisfied that the Tribunal did not unreasonably or irrationally determine not to adjourn the review when it refused the Applicant’s request for an extension of time.
Did the Tribunal correctly determine that the Applicant failed to provide information required by the letter of 19 December 2013.
The Applicant claims that the Tribunal is inconsistent in finding that the Applicant did not respond to the 19 December 2013 letter by also noting that the Applicant responded to the 19 December 2013 letter at [58] of its decision.
I have earlier dealt with this argument (see [70] above).
Did the Tribunal erred by stating that the Applicant did not provide an email address.
The Applicant correctly identified that the Tribunal makes a factual error at [26] (CB135) when it claims that between 15 and 17 January 2015 the Tribunal could not contact the Applicant by email because it did not have his email address. In fact, the Applicant had provided that address in his 9 January 2014 letter (CB 106).
I am satisfied that whilst this is a clear error of fact it is an error made within jurisdiction and does not give rise to jurisdictional error.
The factual error must be considered in context. At [26], the Tribunal is explaining attempts it made to follow up with the Applicant to get him to respond to the 19 December 2013 letter before the deadline of 16 January 2014. There is no legislative requirement for it to do this, and so there can be no consequence for the Tribunal’s failure to use the Applicant’s email. Moreover, even if there were, the Applicant’s consent to receive information by email does not constrain the First Respondent’s discretion to determine how to correspond with an Applicant.
In MDIBP v Kim [2014] FCA 390 the applicant had indicated in her application for a visa that communication from the Department for Immigration and Border Protection was to be sent by email. Buchannan J identified the central issue in the appeal was whether the Minister retained an effective discretion to choose any of the methods prescribed by s.494B (including delivery by hand) to communicate a visa refusal to the applicant [28]. His Honour found that the Minister did. His Honour stated at [42] and [43]:
“41. A similar question to the present was addressed by Gilmour J in Haque v Minister for Immigration and Citizenship [2010] FCA 346, (2010) 114 ALD 547. There was one factual difference: the form in that case indicated (after the equivalent of question 20, authorising communication by email) – “Note: If this visa application is refused you will be notified by mail”.
“42. Apart from that difference, Gilmour J’s remarks (at [64]) are directly on point:64. The appellant’s consent to the receipt of communications by email did not oblige the first respondent to communicate with him by that means. An email address does not constitute an “address” for the purposes of s 494B(4)(c)(i) of the Act. It is but one of the several methods by which the first respondent may give a document to a person and is expressly provided for in this respect under s 494B(5) of the Act. It was open to the first respondent to use any one of the methods provided for under s 494B, even to have done so by email despite the content of the note to which I have referred. Whilst an email address was provided by the appellant to receive correspondence, there is no requirement for the Tribunal to send communication electronically: see Maroun v Minister for Immigration [2009] FMCA 535; Milon v Minister for Immigration [2009] FMCA 85.”
“43. Considerations of comity require me to construe the operation of s 494B in the same way. Furthermore, I have come to the view, with respect, that the construction favoured by Gilmour J is the correct one.”
I am satisfied that the factual error did not give rise to jurisdictional error.
Was the Tribunal punitive and judgmental, did it take a value laden position, and was it, dismissive?
These claims are set out in grounds [4], [5] and [9]. These claims are made without any explanation as to why the Tribunal is said to be judgmental. The claims seem to me, to merely amount to a disagreement with the Tribunal’s consideration of his circumstances. I agree with the Minister’s submission to the extent that the Applicant is claiming that the Tribunal was biased that he does not sufficiently explain how that Tribunal’s decision was tainted by actual or apprehended bias.
Conclusion on grounds of review
Given my findings regarding the Applicant’s grounds of judicial review, it will be apparent that I am satisfied that the Applicant does not have an arguable case on his substantive application.
Conclusion
For the reasons set out above, I will dismiss the Applicant’s Application in a Case with costs.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 2 June 2015
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