Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 921
•19 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 921
File number(s): ADG 334 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 19 September 2024 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of Vietnam – Medical Treatment visa – whether failure to properly consider medical certificate – consideration of cases involving bare medical certificates – whether unreasonable refusal to adjourn hearing – whether deprived of opportunity to give evidence and present arguments – whether failure to properly consider psychiatric evidence – whether remitter futile in any event – whether relief to be refused in exercise of discretion – whether material jurisdictional error Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Migration Act 1958 (Cth) Pt 7 Div 4, ss 351, 357, 360, 362B, 422B, 425, 425A, 426A, 441A, 474, 476 pt 7 div 4
Migration Regulations 1994 (Cth) cll 602.212, 602.215
Cases cited: AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 118
ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
ATI21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 3
CJZ16 v Minister for Immigration and Border Protection [2019] FCCA 29
COW17 v Minister for Immigration and Border Protection [2020] FCCA 2873
CXS18 v Minister for Home Affairs [2020] FCAFC 18
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21; (2022) 397 ALR 1
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144
FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383
Ghaffar v Minster for Immigration and Border Protection [2017] FCCA 1937
Hao Jiang v Minister for Immigration and Citizenship [2007] FCA 907
Jiang v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 215
Kalapala v Minister for Home Affairs and Another [2019] FCCA 859
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) ALD 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAHI v Minister for Immigration & Border Protection [2016] FCA 129
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAMF v Minister for Immigration & Border Protection [2016] FCA 121
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZWMI v Minister for Immigration &Multicultural & Indigenous Affairs [2005] FMCA 810
MZYAN v Minister for Immigration [2008] FMCA 1729
MZZGY v Minister for Immigration & Border Protection[2014] FCA 488
NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464; (2022) 399 ALR 644
Singh v Minister for Immigration & Border Protection[2014] FCA 538
Singh v Minister for Immigration and Border Protection [2016] FCA 108
Swift v SAS Trustee Corporation [2010] NSWCA 182; (2020) 6 ASTLR 339
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1
SZUWM v Minister for Immigration & Border Protection [2016] FCA 92
SZUWM v Minister for Immigration and Border Protection [2016] HCASL 136
SZVFW & Anor v Minister for Immigration and Anor [2016] FCCA 2083; (2016) 311 FLR 459
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of last submission/s: 14 May 2024 Date of hearing: 17 April and 14 May 2024 Place: Perth Applicant: In person with the assistance of an interpreter Counsel for the First Respondent: Ms G Ellis Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 334 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI THANH TAM NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The originating application filed on 16 September 2019 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Before the Court is an application for judicial review (“Judicial Review Application”) filed by the applicant, Ms Thi Thanh Tam Nguyen (“Ms Nguyen”), under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) in which the Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) not to grant Ms Nguyen a Medical Treatment (Visitor) (Class UB) Subclass 602 (Medical Treatment) visa (“MT Visa”). The Tribunal Decision is in the Court Book (“CB”) at CB 55-61. At hearing the Court marked the CB as Exhibit 1.
BACKGROUND
The background to the Judicial Review Application is as follows:
(a)on 25 September 2012 Ms Nguyen, a citizen of Vietnam, arrived in Australia as the holder of a Temporary Partner (Class UF) (Subclass 309) visa (“Temporary Partner Visa”): CB 27;
(b)on 26 August 2016 Ms Nguyen’s Permanent Partner (Class BC) (Subclass 100) visa (“Permanent Partner Visa”) application was refused by a delegate on the basis that her relationship with her sponsor was non-genuine or non-ongoing: CB 27;
(c)on 6 September 2016 the Temporary Partner Visa expired: CB 27;
(d)Ms Nguyen remained in Australia whilst she awaited the outcome of a review application in relation to the refusal of the Permanent Partner Visa: CB 27;
(e)on 10 August 2017 the Tribunal affirmed the delegate’s decision of 26 August 2016 to refuse to grant the Permanent Partner Visa: CB 27;
(f)on 25 September 2017 Ms Nguyen sought Ministerial intervention under s 351 of the Migration Act: CB 27;
(g)on 13 October 2017 a delegate determined not to refer the matter to the Minister on the basis that Ms Nguyen did not meet the guidelines for referral: CB 27;
(h)Ms Nguyen had stated in her Ministerial referral request that she was pregnant to a person with whom she had commenced a spousal relationship: CB 27;
(i)on 25 October 2017 Ms Nguyen applied for the MT Visa the subject of these proceedings on the basis that she was 23 weeks pregnant and suffering from stress and depression: CB 2 and 6;
(j)in the MT Visa application form Ms Nguyen listed “01 Nov 2017 to 01 Nov 2018” as the “period [she] wish[ed] to remain in Australia”: CB 3;
(k)in support of the MT Visa application Ms Nguyen provided a Form 1507 completed by Ms Nguyen’s general practitioner Dr Diem (Therese) Phan (“Dr Phan”), which confirmed Ms Nguyen’s medical condition as stress and depression and stated that Ms Nguyen’s proposed treatment was for her to see a psychologist and “seeing hospital for antenatal care and Perimental health team”: CB 13;
(l)on 20 November 2017 the Delegate’s Decision was to refuse to grant the MT Visa on the basis that Ms Nguyen did not meet cl 602.215 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 25-29, the Delegate finding that Ms Nguyen was attempting to utilise the MT Visa pathway as a means to maintain ongoing residence in Australia and that she did not genuinely intend to remain in Australia on a temporary basis, as required by the criteria for the grant of the MT Visa: CB 28;
(m)on 7 December 2017 Ms Nguyen applied to the Tribunal for review of the Delegate’s Decision, and in the review application Ms Nguyen did not provide a telephone (mobile or otherwise) number on which she might be contacted: CB 30-31;
(n)on 19 June 2019 Ms Nguyen was invited to attend a hearing before the Tribunal listed for 9 July 2019 and to provide to the Tribunal by 2 July 2019 any further documents or information she wished the Tribunal to consider on the review application (“First Tribunal Hearing”): CB 35-38;
(o)on 9 July 2019 Ms Nguyen requested an adjournment of the First Tribunal Hearing, and provided a medical certificate to the Tribunal in support of her request (“July 2019 Medical Certificate”): CB 39;
(p)on 10 July 2019 the Tribunal granted Ms Nguyen’s adjournment request and the First Tribunal Hearing was rescheduled to 13 August 2019 (“Second Tribunal Hearing”): CB 44-46;
(q)on 12 August 2019 Ms Nguyen wrote to the Tribunal providing a medical certificate dated 12 August 2019 (“August 2019 Medical Certificate”) authored by Dr Phan: CB 47-48;
(r)the August 2019 Medical Certificate certified that “Mst An Truong Rajkumar [Ms Nguyen’s child] is suffering from: a medical condition and his parent/guardian, Ms Tam Nguyen, is required to look after him From: Monday, 12 August 2019 to Tuesday, 13 August 2019 inclusive”;
(s)Ms Nguyen did not attend the Second Tribunal Hearing on 13 August 2019: CB 49, and apart from the July and August 2019 Medical Certificates Ms Nguyen did not provide any further documents or materials to the Tribunal for consideration in the review; and
(t)on 14 August 2019 Ms Nguyen was notified of the Tribunal Decision made on 13 August 2019 which was to affirm the Delegate’s Decision: CB 53-61.
TRIBUNAL DECISION
In relation to the Tribunal Decision the Tribunal:
(a)found that in circumstances where Ms Nguyen had not turned 50 and there was no claim or evidence to suggest that she was medically unfit to depart Australia, Ms Nguyen did not meet the exception to the genuine temporary entrant criterion provided for in cl 602.212(6) of Sch 2 to the Migration Regulations: CB 57 at [10]-[11];
(b)considered whether Ms Nguyen genuinely intended to stay temporarily in Australia to obtain medical treatment as required by cl 602.215 of Sch 2 to the Migration Regulations: CB 57 at [13];
(c)noted that Ms Nguyen had lived in Australia since arriving on 25 September 2012 as a holder of a Temporary Partner Visa, and that the Temporary Partner Visa was the last substantive visa Ms Nguyen had held, and that she had subsequently been issued with several bridging visas: CB 57 at [14];
(d)noted that Ms Nguyen had failed to attend both the First and Second Tribunal Hearings;
(e)in respect of the First Tribunal Hearing scheduled for 9 July 2019:
(i)accepted that valid medical grounds had been provided by Ms Nguyen in support of her request for an adjournment: CB 57 at [15];
(ii)noted that it had granted Ms Nguyen’s request for an adjournment and the First Tribunal Hearing was relisted for 13 August 2019 Second Tribunal Hearing; and
(iii)noted that Ms Nguyen was notified in writing of the Tribunal decision to adjourn the First Tribunal Hearing, and of the time and date of the Second Tribunal Hearing: CB 57 at [15] (the written notification appears at CB 45-46);
(f)in respect of the Second Tribunal Hearing did not accept that the content of the August 2019 Medical Certificate indicated that Ms Nguyen was not fit or capable to provide evidence to the Tribunal, and that Ms Nguyen’s failure to appear meant that the Tribunal was unable to make any positive findings about the genuine temporary entrant criterion or whether there were compelling or exceptional circumstances to warrant departure from the genuine temporary entrant criterion: CB 58 at [17]-[18];
(g)was satisfied that Ms Nguyen had been notified in writing, prior to the Second Tribunal Hearing, that the Tribunal had considered the material before it but had been unable to make a favourable decision based on that information alone, and that it therefore wished to interview Ms Nguyen to explore the information she had provided and to take oral evidence from her: CB 58 at [19];
(h)in circumstances where there was no adjournment request in respect of Ms Nguyen’s non-appearance at the Second Tribunal Hearing, the Tribunal considered that, on the material before it and in the absence of any sworn evidence from Ms Nguyen, it was not satisfied that:
(i)Ms Nguyen met the genuine temporary entrant criterion; or
(ii)there were compelling or exceptional circumstances to warrant departure from the genuine temporary entrant criterion: CB 58 at [21]; and
(i)concluded that Ms Nguyen did not meet the requirements for the MT Visa (namely, cl 602.215 of Sch 2 to the Migration Regulations): CB 59 at [23].
JUDICIAL REVIEW APPLICATION
Grounds
The grounds of the Judicial Review Application are set out at [15] (ground 1) and [59] (ground 2) below.
Legislative criteria
The criteria for the grant of the MT Visa are contained in cll 602.212(6) and 602.215 of Sch 2 to the Migration Regulations, which relevantly provide as follows:
602.212(6)
(a) the applicant is in Australia;
(b) the applicant has turned 50;
(c) the applicant has applied for a permanent visa while in Australia;
(d)the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;
(e) the applicant has been refused the visa;
(f)the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
602.215
(1)The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a)whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b)whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and
(c) any other relevant matter.
(2)However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.
Submissions
Some litigation history and Ms Nguyen makes no submissions
Following the docketing of the matter to the Court as presently constituted in October 2022 a directions hearing was held on 23 November 2022. At the 23 November 2022 directions hearing (at which Ms Nguyen appeared with the assistance of an interpreter) the Court:
(a)made orders (“Court’s November 2022 Orders”):
(i)setting aside orders made by a Registrar of the Court in October 2019 which primarily related to a proposed show cause hearing which was never listed for hearing; and
(ii)that Ms Nguyen file and serve any amended Judicial Review Application, further affidavits and an outline of submissions by 25 August 2023, and listing the matter for hearing on 18 October 2023; and
(b)told Ms Nguyen that she needed to establish material jurisdictional error in the Tribunal Decision, and the nature of jurisdictional error, and that the Court was not re-hearing the merits of the MT Visa application.
Ms Nguyen filed no submissions pursuant to the Court’s November 2022 Orders.
On 12 September 2023 the parties were advised that due to reasons associated with judicial hearing workloads and case management that the final hearing of the matter had been re-listed to 17 April 2024. The final hearing of the matter proceeded on 17 April 2024, but was almost immediately adjourned to 14 May 2024 because of the Court’s concerns about the competence of the interpreter.
At the resumed final hearing on 14 May 2024 (at which Ms Nguyen appeared with the assistance of an interpreter) the Court:
(a)noted that Ms Nguyen had not filed any materials pursuant to the Court’s November 2022 Orders, and reiterated what had been said at the 23 November 2022 directions hearing that Ms Nguyen needed to establish material jurisdictional error in the Tribunal Decision, and the nature of jurisdictional error, and that the Court was not re-hearing the merits of the MT Visa application: Transcript, 14 May 2024, pp 2-3;
(b)albeit that Ms Nguyen did not file any submissions she was invited to make oral submissions: Transcript, 14 May 2024, p 3, consistent with Federal Court authority to the effect that even where there are un-particularised grounds of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J; see too FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383 at [8(j)] per Judge Lucev and FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144 at [25]-[26] per Judge Ladhams. Ms Nguyen did not make any oral submissions: Transcript, 14 May 2024, p 3;
(c)heard oral submissions from the Minister: Transcript, 14 May 2024, pp 4-11, which largely explained the written submissions filed by the Minister; and
(d)asked Ms Nguyen whether she wished to make any submissions in reply to what had been said by the Minister, to which Ms Nguyen said she did not: Transcript, 14 May 2024, p 11.
Ms Nguyen has therefore had the opportunity to make submissions in this matter but has either failed or declined to do so.
The Court notes that at the time of filing the Judicial Review Application Ms Nguyen also filed an affidavit affirmed 14 September 2019 (“Nguyen Affidavit”), but that affidavit dealt with purely factual matters (at [1]-[14]), a restating of the grounds of the Judicial Review Application (at [15]), and a statement that Ms Nguyen believed she had reasonable grounds to succeed in the Judicial Review Application (at [16]), and did not make any submissions as such.
Minister’s submissions
In the Minister’s written and oral submissions, the Minister submitted that:
(a)in relation to ground 1:
(i)the Tribunal did consider the medical evidence provided by Ms Nguyen and engaged with and appropriately considered that evidence;
(ii)the Tribunal’s determination not to adjourn the Second Tribunal Hearing was supported by an intelligible justification, namely, that no adjournment had explicitly been sought, but even if an adjournment had been sought the content of the August 2019 Medical Certificate did not demonstrate that Ms Nguyen was not fit or capable of providing evidence to the Tribunal, and this aspect of the ground does no more than emphasis disagreement with the Tribunal Decision; and
(iii)Ms Nguyen’s failure to attend the Second Tribunal Hearing enlivened the Tribunal’s power under s 362B of the Migration Act to make a decision on the review without taking any further action to allow or enable Ms Nguyen to appear before it;
(b)in relation to ground 2 that the period for which Ms Nguyen sought the MT Visa had long since elapsed and there was no evidence as to any ongoing need for her to remain in Australia for the purposes of medical treatment; and
(c)even if satisfied that there was a jurisdictional error the Court should refuse prerogative relief in the exercise of its discretion because remitting the matter to the Tribunal would be futile where the MT Visa was sought for the period from November 2017 to November 2018, and there was no evidence of any required medical treatment post the latter date.
Consideration – generally
Material jurisdictional error
For present purposes it suffices to observe that the Court may set aside a decision of the Authority upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ the plurality in the High Court said that:
15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
Not merits review
The Court’s role is not to review the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”). The “line between judicial review and merits review…must be maintained”: LPDT at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, and the reasons of the Authority are not to be over-zealously scrutinised in a search for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”)at [46] per French, Sackville and Hely JJ.
Consideration - ground 1
The ground
Ground 1 provides as follows:
The Second Respondent committed a jurisdictional error by failing to properly consider Dr Theresa Phan’s medical certificate dated 12 August 2019 and unreasonably refusing to adjourn the hearing on 13 August 2019 which consequently deprived me of an opportunity to give evidence and present arguments in support of my review application
Three alleged errors
Ground 1 raises three distinct allegations of error:
(a)first, whether the Tribunal erred in failing to “properly consider” the August 2019 Medical Certificate;
(b)second, whether the decision by the Tribunal to refuse to adjourn the Second Tribunal Hearing was unreasonable; and
(c)third, whether the determination of the matter in Ms Nguyen’s absence from the Second Tribunal Hearing had the effect of depriving Ms Nguyen of an opportunity to give evidence and present arguments in support of the Judicial Review Application.
Whether failure to properly consider August 2019 Medical Certificate
It is convenient to commence by setting out what was said in the Tribunal Decision in relation to the August 2019 Medical Certificate.
At CB 56 at [4] the Tribunal said that:
The applicant did not attend the rescheduled hearing of 13 August 2019 [the Second Tribunal Hearing] (citing reasons of caring for another person) and an adjournment was not requested, or granted.
At CB 57-58 at [16]-[17] the Tribunal said that:
16.On the evening prior to the rescheduled hearing of 13 August 2019, the applicant sent an email to the Tribunal that attached a Medical Certificate from Dr Therese Phan dated 12 August 2019 setting out the following:
…
This is to certify that Mst An Truong Rajkumar is suffering from: a medical condition and his parent/guardian, Ms Tam Nguyen, is required to look after him
From: Monday, 12 August 2019 to Tuesday, 13 August 2019 inclusive.
…
17.The Tribunal notes the reasons provided by the applicant in the aforementioned certificate but does not accept, in the circumstances raised, that the applicant was not fit or capable to provide evidence to the Tribunal.
The reference to “citing reasons of caring for another person” at CB 56 at [4], when read in context - by having regard to the August 2019 Medical Certificate set out at CB 57-58 at [16] – can only be a reference to the words “required to look after him” in the August 2019 Medical Certificate. Those words refer to Ms Nguyen being, in the opinion of Dr Therese Phan, required to look after her son on the day of the Second Tribunal Hearing.
It is plain from CB 56 at [4] and CB 57-58 at [16] that the Tribunal was aware of the August 2019 Medical Certificate, going so far as to set it out in full at [16]. It is also plain from the first sentence of CB 58 at [17], and in particular the use of the phrase “in the circumstances raised” that the Tribunal considered the terms of the August 2019 Medical Certificate, and reached a conclusion, albeit brief, as to what those terms, also brief, meant insofar as Ms Nguyen’s fitness and capacity to give evidence to the Tribunal were concerned. There can therefore be no doubt that the Tribunal considered the August 2019 Medical Certificate.
Ms Nguyen’s complaint is, however, that the Tribunal did not “properly consider” the August 2019 Medical Certificate.
In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417 at [26] per Kiefel CJ, Keane, Gordon and Steward JJ a majority of the High Court observed that (footnotes omitted):
Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [[1986] HCA 40; (1986) 162 CLR 24], “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
Put differently, and as has so often been said, to argue that there was not “proper consideration” of an issue is often indicative of nothing more than disagreement (and perhaps even emphatic disagreement) as to a factual conclusion or conclusions, and that it is not for a court undertaking judicial review by resort to such epithets to slide into impermissible merits review: Swift v SAS Trustee Corporation [2010] NSWCA 182; (2020) 6 ASTLR 339 at [45] per Basten JA (with whom Allsop P agreed at [1]); Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122 at [30]-[37] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [35] per McKerracher, White and Colvin JJ.
The better question here is whether the conclusion reached by the Tribunal on the basis of the August 2019 Medical Certificate that it did “not accept” that Ms Nguyen “was not fit or capable to provide evidence to the Tribunal”: CB 57 at [17], was a conclusion that no reasonable decision-maker could arrive at on the same evidence, or one without an evident and intelligible basis: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) ALD 24 (“SZMDS”) at [130], [131] and [135] per Crennan and Bell JJ.
There have been numerous cases involving so-called “bare” medical certificates and requests for adjournments of proceedings before the Tribunal (and its predecessors) and the federal courts. Some of those cases are set out hereunder,
NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 (“NAKX”)
In NAKX at [5]-[10] per Lindgren J the Federal Court dealt with an adjournment application on the basis of two medical certificates as follows:
5The 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.
In SZUWM v Minister for Immigration & Border Protection [2016] FCA 92 (“SZUWM”) at [8]-[10] per Farrell J the undisputed relevant facts were as follows:
8.At about 2.13 pm on 7 July 2014, the Tribunal received a letter by fax from the appellants’ migration agent. The letter requested that the hearing be postponed because the husband and wife were “sick” and that the Tribunal provide another hearing date. The letter concluded: “Should you have any queries regarding this matter, please feel free to contact the writer at the above address.”
9.Accompanying the letter were two documents which were described in the letter as “medical certificates”:
(1)The first document purported to be on the letterhead of a medical specialist; it was undated and unsigned. It indicated only that the wife had a medical appointment scheduled for 8 July 2014 at 2.45 pm at Brookvale.
(2)The second document pertained to the husband. It was dated 7 July 2014 and appeared to be on the letterhead of, and signed by, a medical practitioner who had “today examined” the husband. It stated that the husband was suffering from “a medical condition” and that he would be unfit for “his normal work from 7 July 2014 to 9 July 2014 inclusive.”
10.By letters dated 7 July 2014 and faxed to the appellants’ migration agent at 4.23 pm, the Tribunal stated that “[t]he Presiding Member has considered the request carefully but has decided not to postpone the hearing” and that “[t]he hearing will proceed as scheduled pending receipt of further information: the nature of the illness.”
The Federal Court in SZUWM concluded that:
(a)it was appropriate for the Tribunal to seek clarification from the appellants’ migration agent who had been appointed by the appellants as their authorised recipients for the purposes of communication with the Tribunal, and that the Federal Circuit Court (from which the appeal was brought) did not err in finding that it would not have been appropriate for the Tribunal to contact the applicants or the applicants’ doctors directly: SZUWM at [35] per Farrell J;
(b)the circumstances of the case were such that it was not appropriate for an appellate court to intervene in this Court’s finding that the husband was not too sick to attend and participate in the hearing before the Tribunal: SZUWM at [24] and [36] per Farrell J; and
(c)having regard to the legislative scheme in Division 4 of Part 7, and in particular s 422B of the Migration Act (which has its equivalent in these proceedings in s 357A of the Migration Act) it meant that there was no denial of procedural fairness, and that there was no error in this Court’s finding that it was not the husband applicant’s illness but rather, his agent’s failure to provide the Tribunal with the requested information which deprived him of the opportunity to attend a hearing as contemplated by s 425 of the Migration Act: SZUWM at [39] per Farrell J.
In SZUWM v Minister for Immigration and Border Protection [2016] HCASL 136 the High Court refused to grant SZUWM special leave to appeal SZUWM.
Singh v Minister for Immigration and Border Protection [2016] FCA 108 (“Singh 2016 FCA”)
In Singh 2016 FCA the Federal Court had before it a request for an adjournment supported by a chiropractor’s certificate indicating that the appellant was unfit due to a spinal injury.
In Singh 2016 FCA at [2] per Pagone J the Federal Court, having set out NAKX at [5]-[11]
per Lindgren J, observed as follows:
The case [a reference to NAKX ] indicates that what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing. In this case, neither the certificate by Dr Carbone, nor the letter enclosing it from the appellant, establishes why the appellant would be unable to attend court. We know from the certificate and the letter that the appellant has a spinal condition. We know also that it requires chiropractic treatment. We do not know what the spinal condition is or why the spinal condition would prevent him from attending court. The certificate says that the appellant is unfit for physical activity, but that description is of such a generality as to be unhelpful. It does not assist the court to evaluate why it is or how it is that the appellant’s condition would prevent him from attending court. A certificate of the kind relied upon by the appellant does not assist him to make the case for an adjournment of a court hearing. Accordingly I find the certificate to be insufficient to warrant the grant of an adjournment. In addition, it was provided only on the last business day before the hearing, with no explanation about why the certificate was obtained only the last business day before the scheduled hearing of Mr Singh’s appeal, or why the application for the adjournment was not made until then. These are all circumstances that militate against the grant of an adjournment. If the appellant had a condition of the kind that prevented him from attending court, an application should have been made earlier, and if there was some reason why it could not have been made earlier, that needed to be explained in his application. That has not occurred and the application for adjournment is rejected.
MZAMF v Minister for Immigration & Border Protection [2016] FCA 121 (“MZAMF”)
In MZAMF the Federal Court had, ex tempore, dismissed an application for an extension of time in which to seek leave to appeal the dismissal by the Federal Circuit Court of the applicant’s application for review of a decision of the then Refugee Review Tribunal (“RR Tribunal”). It subsequently came to light that an email had been sent to the Registry by the applicant shortly prior to the hearing seeking an adjournment, which email had not been seen by the Court because when received it had gone into the Registry’s junk mail folder: MZAMF at [1] and [12] per Davies J. In a postscript to the ex tempore reasons for judgment revised from the transcript and published in writing in MZAMF at [13]-[18] per Davies J the Federal Court said as follows:
13 The medical certificate is dated 15 February 2016 and states as follows:
This is to certify that [MZAMF] will be unfit for work for three day, as he is suffering from medical condition.
14The “medical condition” is not identified and, moreover, it is a certificate that the applicant is “unfit for work”. The certificate is totally inadequate to justify the applicant's non-attendance at Court. The certificate has no meaningful detail about the nature of the applicant's “medical condition” or any meaningful content which would enable the Court to conclude that the applicant could not participate in the hearing either in person or by telephone, if necessary.
15In NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559, Lindgren J refused an application for an adjournment in circumstances where medical certificates were similarly lacking in detail about the nature of the condition which would prevent the appellants in that case from attending Court. His Honour stated that the certificates were “quite unsatisfactory” because they did not address the critical question of whether, and if so why, the medical conditions would prevent the appellants from travelling to the Court and participating effectively in a Court hearing. Other cases where medical certificates have been rejected because of lack of detail are MZZGY v Minister for Immigration and Border Protection [2014] FCA 488 and Singh v Minister for Immigration and Border Protection [2014] FCA 538.
16I note that the applicant stated in his email that he was suffering diarrhoea but without an acceptable medical certificate verifying his inability to attend Court the applicant has not provided a satisfactory explanation for his non-attendance.
17Moreover, the applicant left wholly unexplained why he waited until 2:00pm on the day of the hearing, which was scheduled to commence at 2:15pm, to send the email, when he had obtained the certificate the day before. He did not give the Minister or the Court prior notice that he was suffering the condition he claims has prevented him from attending Court but waited until the very last moment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice.
18 In those circumstances, the judgment and orders stand.
MZAHI v Minister for Immigration & Border Protection [2016] FCA 129 (“MZAHI”)
In MZAHI the then RR Tribunal had rejected medical evidence provided by an applicant as wholly inadequate to explain his inability to attend at hearing, and gone on to refuse the application: MZAHI at [2] per Davies J. An application to this Court (then the Federal Circuit Court) for review of that decision of the RR Tribunal was dismissed, this Court apparently doing so on the basis that Federal Court authority indicated that a medical certificate of the type provided to the Tribunal would not, in the Federal Court, be an adequate justification for an adjournment: MZAHI at [7] per Davies J.
The medical certificate provided to the RR Tribunal and under consideration in MZAHI was in the following terms:
In my opinion, he/she will be unfit for his/her normal work from 27/5/14 to 28/5/14 inclusive, (medical condition).
In MZAHI at [7] per Davies J the Federal Court found as follows with respect to the medical certificate:
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 it did in MZAMF the Federal Court went on in MZAHI at [9] per Davies J to refer to the Federal Court judgments in NAKX, MZZGY v Minister for Immigration & Border Protection[2014] FCA 488 and Singh v Minister for Immigration & Border Protection[2014] FCA 538, and to further observe that:
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.
AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815 (“AAL17”)
In AAL17 the Federal Court had before it a request, made the afternoon before the listing date, to adjourn the hearing of an appeal, on the basis of a medical certificate for a three day period of incapacity: AAL17 at [10] per Lee J. As to the medical certificate the Federal Court at AAL17 at [19] per Lee J observed as follows:
19I have set out above the adjournment request. In my view the medical certificate provided was wholly deficient in apprising the Court of the circumstances which would lead the Court to conclude that the appellant has an acceptable explanation for not appearing this morning. As I explained in a similar context in SZWBK v Minister for Immigration and Border Protection [2017] FCA 1020 (at [15]), a case where the appellant sought an adjournment due to back pains:
The medical certificates do not purport to address the critical question of whether, and if so why, the relevant “medical condition” would prevent the first appellant from travelling to Court and participating effectively in the hearing. Like the position in NAKX [[2003] FCA 1559]and Singh [2016 FCA 108(“Singh”)], I do not accept, on the basis of the material provided, that the Delphically described “medical condition” would have prevented the first appellant from travelling to Court and participating effectively in the hearing. Even if I was wrong about this, there is no explanation as to why the first appellant could not have made the necessary arrangements to attend the hearing by telephone … I agree, with respect, with what Pagone J said in Singh (at [2]), namely that:
… what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing.
With respect to adjournments and “bare” medical certificates there are also a plethora of cases over many years to similar effect in this Court (and its predecessors) applying NAKX and some of the other cases set out above: see, merely by way of example, Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 118 at [25] per Judge Ladhams; Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25 at [82]-[89] per Judge Lucev; Kalapala v Minister for Home Affairs and Another [2019] FCCA 859 at [19]-[21] per Judge Driver; Ghaffar v Minister for Immigration and Border Protection [2017] FCCA 1937 at [2]-[8] per Judge Emmett; MZYAN v Minister for Immigration [2008] FMCA 1729 at [1]-[11] per Turner FM; MZWMI v Minister for Immigration &Multicultural & Indigenous Affairs [2005] FMCA 810 at [6]-[11] per Riethmuller FM.
What all the cases referred to above demonstrate is that:
(a)it is unsatisfactory and insufficient for an applicant for an adjournment of proceedings to rely upon a medical certificate which asserts unfitness by reason of an unspecified medical condition with unspecified medical consequences beyond mere unfitness; and
(b)there needs to be meaningful detail and content provided by the medical practitioner to explain why the medical condition and its consequences mean that the person seeking the adjournment cannot attend the proceedings personally, or participate in the proceedings electronically or telephonically.
The above principles apply, by extension, to a carer (such as Ms Nguyen) seeking an adjournment of a proceeding on the basis of the medical condition of a person in their care (such as Ms Nguyen’s son).
What the above cases also demonstrate is that the conclusion reached by the Tribunal on the basis of the August 2019 Medical Certificate to not accept that Ms Nguyen was not fit and capable to provide evidence to the Tribunal was a conclusion that other reasonable decision-makers could have arrived at on the same evidence, and one that had an evident and intelligible basis in the lack of detail in the August 2019 Medical Certificate: SZMDS at [130], [131] and [135] per Crennan CJ and Bell JJ.
In all of the above circumstances, it cannot be said that there was a failure by the Tribunal to consider the August 2019 Medical Certificate, and that the conclusion reached in relation to not accepting that Ms Nguyen was not fit or capable to provide evidence to the Tribunal was not a decision open to the Tribunal on the evidence before it, and one that another reasonable decision-maker could not have arrived at on the same evidence.
Whether failure to adjourn Second Tribunal Hearing unreasonable
In certain circumstances unreasonableness, and more correctly, legal unreasonableness, may constitute jurisdictional error: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225 (“Li”) at [63]-[76] per Hayne, Kiefel and Bell JJ. Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness in migration cases is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ. It is well established that unreasonableness may be found where an administrative decision-maker reaches a conclusion that no reasonable decision-maker could have reached, or makes a decision that lacks an evident and intelligible justification: Li at [76] per Hayne, Kiefel and Bell JJ. Legal unreasonableness may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn”: Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464; (2022) 399 ALR 644 at [43] per Gordon J. Unreasonableness is not established merely because reasonable minds could have come to different conclusions: SZMDS at [130]-[131] per Crennan and Bell JJ. The test for legal unreasonableness is stringent: Li at [113] per Gageler J; Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713 (“SZVFW - High Court”) at [11] per Kiefel CJ.
Legal unreasonableness is fact dependent and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 at [10] per Allsop CJ; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21; (2022) 397 ALR 1 at [30]-[33] per Allsop CJ, Besanko and O'Callaghan JJ (and cases there cited).
In SZVFW & Anor v Minister for Immigration and Anor [2016] FCCA 2083; (2016) 311 FLR 459 (“SZVFW - Circuit Court”) this Court held that the Tribunal’s exercise of its power to make a decision on a review in circumstances where applicants did not attend the Tribunal hearing was legally unreasonable: SZVFW - Circuit Court at [82] per Judge Barnes. In SZVFW - Circuit Court the Court:
(a)held that it was unnecessary to resolve whether a letter of invitation to a Tribunal hearing had been dispatched within three working days of the date of the letter so as to come within the prescribed means of communication under s 441A(4) of the Migration Act, thereby satisfying s 426A(1)(a) of the Migration Act: SZVFW - Circuit Court at [51] and] [52] per Judge Barnes;
(b)found that it was sufficient that the Tribunal was not able to satisfy itself that the applicants had been formally advised of the Tribunal hearing or that they were in a practical sense aware of the Tribunal hearing date and time: SZVFW - Circuit Court at [75] per Judge Barnes;
(c)found that the attendance of the applicants at the Tribunal hearing could have made a difference to the outcome of the review, and that the Tribunal could easily have identified another means of communicating with the applicants, including by means of mobile telephone number and email, but there was no evidence of any attempted communication by these means with the applicants from the Tribunal: SZVFW - Circuit Court at [75] and [79] per Judge Barnes;
(d)found that the matter had been before the Tribunal for a relatively short time, that there was not a lengthy period during which the applicants had done nothing, and they were not represented, and in those circumstances the absence of a pattern of communication between the Tribunal and the applicants was not determinative: SZVFW - Circuit Court at [78] per Judge Barnes; and
(e)found that even assuming that the letter of invitation was dispatched within the prescribed period so that it complied with ss 425, 425A and 426A(1) of the Migration Act, the Tribunal decision to determine the review application without taking any further action to contact the applicants was legally unreasonable: SZVFW - Circuit Court at [82] per Judge Barnes.
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 (“SZVFW - Federal Court”) was an appeal by the Minister from SZVFW - Circuit Court. The Full Court of the Federal Court dismissed the appeal holding that:
(a)as an appeal by way of rehearing, the role of the Full Court of the Federal Court was correction of any appealable error of fact or law, and it was not to consider the matter afresh and come to its own view: SZVFW - Federal Court at [41]-[43] per Griffiths, Kerr and Farrell JJ; and
(b)to determine if the Tribunal acted unreasonably requires an evaluative judgment by this Court, having identified and weighed appropriately all the relevant circumstances and legal principles: SZVFW - Federal Court at [44] per Griffiths, Kerr and Farrell JJ.
In SZVFW - High Court the High Court, unanimously, allowed an appeal by the Minister from SZVFW - Federal Court. The High Court held that the exercise of the discretion by the Tribunal, to proceed to determine the matter in the absence of the applicants pursuant to s 426A of the Migration Act, was legally reasonable. In so doing, the High Court observed that:
(a)the intention of the scheme of the Migration Act is that the Tribunal be permitted to consider the exercise of its powers under s 426A of the Migration Act if the preconditions for the exercise of that power have been met: SZVFW - High Court at [7] per Kiefel CJ;
(b)the task of a court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable, which requires an assessment as to whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power, and thus, in relation to the particular decision in issue, whether the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power: SZVFW - High Court at [78]-[80] per Nettle and Gordon JJ;
(c)the reasonableness of a decision made by an administrative decision-maker depends upon the existence of justification, transparency and intelligibility within the decision-making process, but also as to whether the decision falls within a range of possible, acceptable outcomes defensible in respect of the facts and law and, in that regard, error may be identified simply because the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances: SZVFW - High Court at [82]-[83] per Nettle and Gordon JJ; and
(d)“legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case … ”: SZVFW - High Court at [84] per Nettle and Gordon JJ.
In SZVFW - High Court at [70]-[71] per Gageler J the following observations were made:
[70]Nothing before the Tribunal took the respondents’ application for review into the realm of the extraordinary. To the contrary, the respondents’ failure to respond to the earlier invitation from the Minister’s Department and their failure to provide the Tribunal with any further documentation in support of their claims for protection, both of which considerations were expressly taken into account by the Tribunal, suggested that a further attempt by the Tribunal to make contact with them would be unlikely to elicit a response.
[71]The Tribunal did not act unreasonably in choosing to make the decision without taking any further action to allow or enable the respondents to appear before it. The primary judge’s conclusion that the Tribunal did act unreasonably in so doing was wrong. The Full Court should have so decided.
In SZVFW – High Court at [140]-[141] per Edelman J the following observations were also made:
[140]The matters relied upon by the primary judge do not, even in combination, establish legal unreasonableness. In particular, two matters of statutory context require a highly demanding approach in determining whether legal unreasonableness exists in the exercise of the power under s 426A(1), which is in Div 4 of Pt 7 of the Migration Act. First, there was the objective of review of protection visa decisions under Pt 7, expressed in s 420(1) as providing a mechanism that is “fair, just, economical, informal and quick”. Secondly, and in relation to “fairness and justice”, s 422B(1) provided that “[Div 4] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with” and, as Nettle and Gordon JJ observe, the effect of s 441C(4) was to deem the respondents to have received the invitation to the hearing.
[141]The decision by the Tribunal, for the reasons it gave, was not legally unreasonable. Three further reasons, additional to those given by the Tribunal, are also relevant. First, in the original applications by the respondents to the Minister, they undertook to inform the Department if they intended to change their address for more than 14 days while their applications were being considered. No change of address was provided. It was reasonable for the Tribunal to draw the inference that the respondents were still accessing mail at that address. Secondly, the letter from the Department refusing the respondents’ original applications was sent to their nominated address. Thirdly, prior to the decision of the delegate, the respondents had not attended a scheduled interview with the Department, despite apparently being made aware of the interview by letters sent to their nominated address and a telephone call rescheduling the interview. It would have been reasonable to infer that a rescheduled hearing before the Tribunal might have been futile.
In dismissing a judicial review application asserting that the Tribunal ought to have done more to endeavour to contact an applicant before proceeding with a hearing and dismissing the judicial review application the then Federal Circuit Court in COW17 v Minister for Immigration and Border Protection [2020] FCCA 2873 (“COW17”) rejected an argument that the Tribunal acted unreasonably in failing to make further endeavours to contact the applicant who did not appear at a Tribunal hearing. In COW17 at [66] per Judge Mercuri the Court observed that:
It may well have been possible for the tribunal to do more. It could have attempted to contact the applicant by telephone. It could have made inquiries of the Department to determine whether they were aware of any changes to the applicant’s contact details. However, there is an onus on an applicant to prosecute their application, and moreover, the mere fact that there was more that the tribunal could have done, does not lead to the conclusion that it acted unreasonably in not taking this action.
In CJZ16 v Minister for Immigration and Border Protection [2019] FCCA 29 (“CJZ16”):
(a)all of the preconditions for the Tribunal to validly exercise its powers pursuant to s 426A of the Migration Act had been met; and
(b)the applicants:
(i)did not attend the interview before the Delegate, despite being invited to do so;
(ii)did not forward materials in support of their protection visa application to the Tribunal to advance their claims; and
(iii)did not attend the Tribunal Hearing, despite being invited to do so, and being reminded, twice by SMS, of the Tribunal Hearing.
In CJZ16 at [28] per Judge Lucev the then Federal Circuit Court found that:
… the behaviour of the applicants up to the time of the Tribunal Decision indicated a disengagement with the Protection Visa application process inconsistent with applicants legitimately pursuing their Protection Visa application such that there was nothing to suggest to the Tribunal that the applicants’ non-appearance was out of character or amiss, or that there was any basis for concluding that the applicants would attend an adjourned Tribunal Hearing: MZALO v Minister for Immigration & Border Protection [2016] FCA 1339 at [22]-[28] per Mortimer J; SZFHC at [39] per Spender, French and Cowdroy JJ, SZVFW - High Court at [70] per Gageler J and [141] per Edelman J. By reason of the applicants being invited to the Tribunal Hearing in the manner and form prescribed by the Migration Act there was no denial of procedural fairness by failing to give the applicants an opportunity to be heard. Nor was it, in the circumstances set out above, unreasonable for the Tribunal to proceed to determine the applicants' review application in circumstances where the Tribunal had proper grounds for so doing: there was no abuse, or excess, of power in the Tribunal Decision. There is, therefore, no jurisdictional error on the basis of procedural fairness or unreasonableness in relation to the Tribunal's invitation, hearing and determination process.
In ATI21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 3 at [42]-[45] per Judge Laing:
(a)the applicant had been notified of the Tribunal hearing by letter sent by express post some months prior to the Tribunal hearing;
(b)SMS reminders of the Tribunal hearing date and time were attempted to be sent to the applicant by the Tribunal, but it appeared that the mobile telephone number provided by the applicant had been disconnected; and
(c)the applicant had not advised that email was his preferred mode of communication with the Tribunal,
and, in the circumstances, this Court found that the Tribunal’s failure to use an email address provided by the applicant to receive “Medicare letters” was not legally unreasonable.
In this case:
(a)the requirement for a valid invitation to the Second Tribunal Hearing was met as the invitation sent to Ms Nguyen in relation to the Second Tribunal Hearing met the requirements of s 360 of the Migration Act;
(b)section 2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal must pursue the object of a review that is, amongst other things, “quick”, in circumstances where the Tribunal had already adjourned the hearing once, a matter of which it was plainly cognisant: CB 57 at [15] and 58 at [19];
(c)in relation to any application for an adjournment of the Second Tribunal Hearing the letter sent by the Tribunal inviting Ms Nguyen to that hearing also advised Ms Nguyen that “[i]f we do not advise you that an adjournment has been granted, you must assume the hearing will go ahead”: CB 46, and Ms Nguyen was therefore on notice that the Second Tribunal Hearing would proceed unless she was advised otherwise (and she was not advised otherwise);
(d)Ms Nguyen filed no documents, materials or submissions with the Tribunal in relation to the either the First or Second Tribunal Hearings, save for the July and August 2019 Medical Certificates;
(e)albeit that the effect of the Tribunal’s considered reasons was that an adjournment of the Second Tribunal Hearing was not granted: CB 58 at [17] and [19], no adjournment was specifically sought by Ms Nguyen, the August 2019 Medical Certificate being a document forwarded to the Tribunal without any covering correspondence, explanation or other contact with the Tribunal: CB 47-48;
(f)the August 2019 Medical Certificate did not provide any information as to what “medical condition” was said to afflict Ms Nguyen’s son, and did not say why the unspecified medical condition required Ms Nguyen to care for her son, or how she might be required to do so, or how it might prevent Ms Nguyen from participating in the Second Tribunal Hearing whether in person or by video-link or telephone;
(g)the Tribunal Decision at CB 57-58 at [16]-[19] considered the August 2019 Medical Certificate and gave reasons which evinced a logical connection between the evidence (the August 2019 Medical Certificate) and the reasons for not accepting that Ms Nguyen was not fit or capable to provide evidence to the Tribunal;
(h)the outcome of the Tribunal Decision, which had the effect of not granting an adjournment to Ms Nguyen, was, in all the circumstances, justifiable and intelligible, and within a range of proper and appropriate possible outcomes: cf SZVFW – High Court, COW17, CJZ16, and ATI21 referred to at [47]-[49], [50], [51]-[52] and [53] respectively above;
(i)there was no opportunity for the Tribunal to make a telephone call to Ms Nguyen concerning the Second Tribunal Hearing as she had not provided a contact telephone number in her Tribunal review application, and hence no unreasonableness on that account: see too COW17 at [66] per Judge Mercuri; and
(j)the failure to email Ms Nguyen concerning the Second Tribunal Hearing did not give rise to unreasonableness in circumstances where the Tribunal:
(i)had no guarantee she would respond promptly if it did email her; and
(ii)it is not practicable to conduct a hearing by email.
The Tribunal Decision not to adjourn the Second Tribunal Hearing, as evidenced by the matters set out in the preceding paragraph, involved a reasoned decision in relation to Ms Nguyen’s non-attendance at the Second Tribunal Hearing, and one which was within power, and involved no abuse or excess of power by the Tribunal. The stringent and highly demanding approach required to found unreasonableness is not met in relation to the Tribunal Decision not to adjourn the Second Tribunal Hearing, and the Court finds that the failure to adjourn the Second Tribunal Hearing was not unreasonable.
Whether deprived of an opportunity to give evidence and present arguments
Section 362B(1) and (1A) of the Migration Act provide as follows:
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(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.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Ms Nguyen’s failure to attend the Second Tribunal Hearing enlivened the Tribunal’s power under s 362B(1A)(a) of the Migration Act to make a decision on the review without taking any further action to allow or enable Ms Nguyen to appear before it. The Tribunal exercised that power in making the Tribunal Decision. In circumstance where:
(a)the requirement for a valid invitation to the Second Tribunal Hearing was met as the invitation sent to Ms Nguyen in relation to the Second Tribunal Hearing met the requirements of s 360 of the Migration Act;
(b)in relation to any application for an adjournment of the Second Tribunal Hearing the letter sent by the Tribunal inviting Ms Nguyen to that hearing also advised Ms Nguyen that “[i]f we do not advise you that an adjournment has been granted, you must assume the hearing will go ahead”: CB 46, and Ms Nguyen was therefore on notice that the Second Tribunal Hearing would proceed unless she was advised otherwise;
(c)the Court has found for the reasons set out at [43]-[55] above that that the failure to adjourn the Second Tribunal Hearing was not unreasonable; and
(d)Ms Nguyen did not attend the Second Tribunal Hearing,
the Court is of the view that Ms Nguyen was not deprived of an opportunity to give evidence and present arguments to the Tribunal at the Second Tribunal Hearing.
Conclusion – ground 1
Having regard to the conclusions reached at [42], [55] and [57] above the Court has concluded that ground 1 does not establish material jurisdictional error in the Tribunal Decision.
Consideration - ground 2
Ground 2 is as follows:
The Second Respondent committed a jurisdictional error by failing to give proper consideration to the medical evidence provided in relation to my psychiatric condition.
The Court has set out at [23]-[24] above the law with respect to the giving of “proper consideration” to matters by administrative decision-makers.
The Tribunal did not need to give any consideration to “medical evidence provided in relation to … [Ms Nguyen’s] psychiatric condition” because there was no medical or other evidence as to Ms Nguyen having a “psychiatric condition” or having ever seen a psychiatrist. In its terms ground 2 fails to establish jurisdictional error in the Tribunal Decision.
If, as the Court will now assume, ground 2 intended to refer to a “psychological condition” there is some evidence referring to Ms Nguyen’s psychological state, as follows:
(a)in the MT Visa application, completed on 25 October 2017, at CB 4 at Q 17 Ms Nguyen indicates that the period she was to be under medical care in Australia was to be 1 November 2017 to 1 November 2018;
(b)in the MT Visa application at CB 4 at Q 18 the form asks for a brief description of the medical treatment arranged in Australia and its estimated cost, in relation to which Ms Nguyen indicates that:
- I am currently 23 weeks pregnant and suffering from severe Stress/Depression.
- My family doctor, Dr Therese Phan has recently referred me to a Psychologist, Ms Dung Nguyen for psychological treatment. The costs of such treatment are estimated to be about $1,500 for a l2 monthly session treatment plan.
- A medical treatment plan will be provided shortly. Please do not make a decision on my application until after you have been provided with such treatment plan.
(c)in a Form 1507 – Evidence of intended medical treatment dated 19 October 2017, Dr Phan at CB 13 at Q 4 describes the medical condition for which Ms Nguyen requires treatment as “Stress/Depression” goes on at Q 5 to describe the treatment information as follows:
To see psychologist (private) +/- seeing hospital for antenatal care and Perimental health team
Before the Tribunal the evidence concerning Ms Nguyen’s medical condition and psychological state was very limited. There was at the time of the Tribunal Decision no:
(a)medical report;
(b)psychological report;
(c)evidence that Ms Nguyen ever saw a psychologist;
(d)evidence that after 19 October 2017 Ms Nguyen saw Dr Phan again in connection with her pregnancy or her alleged stress and depression; and
(e)evidence that the medical or psychological treatment plan which the Form 1507 suggests would be prepared was ever prepared.
The Tribunal, reviewing this matter and making the Tribunal Decision in August 2019 almost ten months after the suggested period for Ms Nguyen’s treatment had expired in November 2018, was plainly aware of Ms Nguyen’s pregnancy and alleged stress and depression as it referred specifically to those “grounds” for the MT Visa application: CB 56 at [2]. It cannot thus be said that the Tribunal was not aware of these grounds, or that it overlooked them: WAEE at [47] per French, Sackville and Hely JJ. But even if the Tribunal had overlooked them it would not have mattered for two reasons:
(a)first, because there was such a paucity of evidence on these grounds that the Tribunal would not have been in a position to make any reliable findings as to Ms Nguyen’s medical condition or psychological state, if it was required to do so ten months after the requested treatment period had expired; and
(b)second, the Tribunal determined the review adversely to Ms Nguyen for reasons that did not concern whether or not she suffered from a medical condition or a psychological state for which she sought the MT Visa, but rather it concluded that Ms Nguyen did not satisfy the genuine temporary entrant criterion in cl 602.215 of Sch 2 to the Migration Regulations and that there were no compassionate or exceptional circumstances to justify departing from that criterion.
The Court notes that there was no evidence before the Tribunal to suggest that Ms Nguyen had developed any post-natal mental health issues after the birth of her child in February 2018: Nguyen Affidavit at [4], and that the child was almost 18 months old at the time of the Tribunal Decision.
It follows from what is set out above that ground 2 does not establish any material jurisdictional error in the Tribunal Decision.
Consideration - jurisdictional error otherwise
The Court is cognisant that Ms Nguyen was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Tribunal Decision.
Whether remitter futile in any event
Where the relief sought to be granted upon judicial review would likely “lack utility”: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J or “be an exercise in futility”: Jiang v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 215 at [31] per Lucev FM (from which an appeal by the applicant was dismissed in Hao Jiang v Minister for Immigration and Citizenship [2007] FCA 907 at [30] per Bennett J) the Court may, in the exercise of its discretion not grant the relief sought.
In this case Ms Nguyen sought the MT Visa to enable her to receive medical care between 1 November 2017 and 1 November 2018: CB 4 at Q 17. The Tribunal’s review was conducted, and the Tribunal Decision made, almost ten months after the period for which the MT Visa was sought had expired. The Judicial Review Application was filed almost a year after the period for which the MT Visa was sought had expired. Ms Nguyen was, in any event, in Australia during the period she said she needed to be here to get the relevant medical treatment specified in the MT Visa application and Form 1507 (as to which see [62] above). The child delivered of the pregnancy in respect of which the medical treatment was sought is now more than six years old, and Ms Nguyen adduced no evidence in the Tribunal to suggest that other medical related issues had arisen since the birth of her child that necessitated the grant of the MT Visa (see also [63] above). The lack of evidence as to any ongoing need for Ms Nguyen to remain in Australia for the purposes of medical treatment is a basis on which, even if the Tribunal Decision were affected by material jurisdictional error (which it is not: see [58], [66] and [67] above), the Court would, in the exercise of its discretion, decline to grant Ms Nguyen the relief she seeks on the basis that it would be an exercise in futility to remit this MT Visa application to the Tribunal for reconsideration.
CONCLUSIONS AND ORDER
The Court has concluded that:
(a)the Tribunal Decision is not affected by material jurisdictional error; and
(b)even if the Tribunal Decision were affected by material jurisdictional error, the Court would not, in the exercise of its discretion, grant the relief sought by Ms Nguyen.
It follows that there will be an order dismissing the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 19 September 2024
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