Pathirathnage v Minister for Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 152
•4 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Pathirathnage v Minister for Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 152
File number(s): MLG 2071 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 4 October 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student Temporary Class TU visa - where the Tribunal refused to grant the Applicant a request for an adjournment – whether the Tribunal failed to afford the Applicant procedural fairness - whether the Tribunal failed to comply with section 362B(1)(b) of the Migration Act 1958 – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth) sch 2 cl 500.212
Migration Act 1958 (Cth) s 362(1A), 362B(1A)(b), 362B(1B), 362B(1E), 362C(2), 357A(2)
Cases cited: MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 4 October 2021 Place: Melbourne Solicitor Advocate for the Applicants: Mr Bandara Solicitor for the Applicants: PLS Lawyers Counsel for the Respondents: Mr Hibbard Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2071 of 2018 IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BETWEEN: ITASHA ERANGA UPEKSHANI HETIARACHCHI PATHIRATHNAGE
First Applicant
MADHAWA MADHUSANKA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
4 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application filed on 17 July 2018 and amended on 6 September 2021 be dismissed.
2.The time for lodging any notice of appeal pursuant to Rule 36.03 of the Federal
Court Rules 2011 be extended until 28 days after the publication of written reasons.
3.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
DELIVERED EX TEMPORE, REVISED FROM THE TRANSCRIPT
JUDGE BLAKE:
INTRODUCTION
This is an application for a review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 25 June 2018. In that decision the Tribunal affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the applicant a student temporary class TU visa, which I refer to as "the visa".
The first applicant is the primary applicant for the visa. The second applicant is the husband of the primary applicant. In these reasons I refer to the first applicant as "the Applicant".
The Applicant is a national of Sri Lanka. She applied for the visa on 27 February 2017. On 14 March 2017 a delegate of the Minister refused to grant the Applicant the visa. The delegate found that the Applicant did not satisfy clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’).
On 3 April 2017 the Applicant applied to the Tribunal for review of the delegate's decision. The Applicant was represented by an agent.
On 23 May 2018 the Tribunal wrote to the Applicant. In that letter the Tribunal invited the Applicant to attend a hearing before it on 25 June 2018 to give evidence and present arguments relating to the matters in her case. Among other things, the Tribunal requested the Applicant to provide it with a range of documents. The letter from the Tribunal also contained the following:
If you are not able to attend the hearing, you need to advise me as soon as possible. Please note we will only change this date if satisfied you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review and any further consideration of the application or the information before us. A dismissed case can be reinstated if the member considers it appropriate to do so and the application is made within 14 days of receiving a notice of dismissal. If a member confirms the dismissal, the decision under review is taken to be affirmed.
On 25 June 2018 at approximately 9:09am the Applicant telephoned the Tribunal to seek an adjournment. A note of the conversation is contained within a case note document prepared by the Tribunal and contained within the Court Book at [104]. The notation is as follows:
Call from the applicant Ithasha Eranga Upekshani Hettiarachchi PATHIRATHNAGE requesting a postponement of hearing scheduled for 10.30 am today due to be ill with asthma. She said she went to the doctor yesterday and received a certificate for two days and she was again at the doctor’s and she called the tribunal. I said to send her request in writing to the tribunal with any medical evidence, of which it will be passed on to the member for their consideration. [errors in original]
Following the exchange above, the Applicant sent an email to the Tribunal at around 9:20 am on 25 June 2018 (at Court Book [102]). In the email the Applicant stated as follows:
I have my hearing around 10 am today. I got cold and flu and asthma and I went to see the doctor yesterday night, and I’m going to see him today as well as I got asthma attack today morning. I ring to your office today around 9 am to ask for a reschedule. Please understand my situation and give me another day to come to the hearing. I will attach my medical certificate, which has been provided by my doctor. [errors in original]
A medical certificate was attached to the email I have referred to above. It provided that the Applicant attended the relevant medical centre on 24 June 2018. The certificate then provides that:
As a result of the patient’s statement and history provided to me and my clinical examination, I conclude that the patient was/is unable to attend work from 25/6/2018 to 26/6/2018 inclusive due to a medical condition.
The case notes documents of the Tribunal contained within the Court Book at [104] then contain the following entries. First, at 9:44am the Tribunal called the Applicant's representative on both his landline and mobile telephone number. The Tribunal advised the representative by leaving a message that it had received a request from the Applicant to postpone the hearing and that the member had considered the request and denied the request for postponement. As a result, the hearing was to proceed.
Second, the case notes document records that at 9:57 am the Tribunal spoke to the Applicant. The following is recorded in the case notes document:
Called the applicant Ithasha Eranga Upekshani Hettiarachchi PATHIRATHNAGE and said that the Tribunal had received her written request for postponement of the hearing. I said the Member has denied the request and the hearing is to go ahead as scheduled. I further added that the Member can however offer, if they wish, to appear at the hearing by phone. She said she did not know if she would attend by phone and would consult with her agent. I said I had just called her agent and the phone went to messagebank. I said that if she wishes to appear by phone to call the Tribunal by the start of the hearing and that if the Tribunal does not hear back from her it is assumed the hearing will go ahead as per scheduled.
At around 10:26 am the Applicant’s representative sent an email to the Tribunal making a further request for postponement of the hearing. Ultimately after all of this, the Applicant did not attend the hearing scheduled for 10.30 am on that day.
At around 2:41 pm on 25 June 2018 the Tribunal dismissed the Application under section 362B(1A)(b) of the Migration Act 1958 (‘Act’). Among other things, the Tribunal stated as follows (at paragraph [2] – [3] of its reasons):
2.The applicant requested an adjournment of the hearing by phone and then subsequently by email the morning of the hearing, which was refused by the tribunal. The applicant’s representative sent a postponement request through with the same medical certificate provided earlier by the applicant. If construed as a second request, it is also refused. The review applicant did not appear before the tribunal on the day and scheduled time and place. Having reviewed the tribunal file, the tribunal is satisfied section 379A(5) the invitation has not been returned to sender and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
3.In these circumstances, the tribunal has decided to dismiss the application without further consideration of that application or the information before the tribunal.
A decision statement of the Tribunal was subsequently sent to the Applicant by email at around 2:59 pm on 25 June 2018 (at Court Book [112]). The letter accompanying the decision statement, among other things, stated that:
You may apply to us in writing for reinstatement of the application by 9 July 2018.
The Applicant did not seek reinstatement of the Application. Accordingly, on 10 July 2018 the Tribunal affirmed its decision to dismiss the Application pursuant to section 362B(1E) of the Act.
The Applicant then filed her Application for review and an Affidavit in support in this Court on 17 July 2018. Since then the Applicant has filed an Amended Application (‘Application’) and an Outline of Written Submissions dated 6 September 2021. The Minister filed an Outline of Submissions on 20 September 2021. Each side has also filed a list of authorities.
THE APPLICATION
The Application contains a single ground of review. The ground of review is as follows:
1.Administrative Appeal Tribunal erred in law and/or fact and thereby fell into jurisdictional error when it did not afford a [sic] procedural fairness to the applicant by refusing the request for an adjournment and whereby breach of natural justice occurred in connection with the making of the decision.
Particulars
i) The Applicant’s adjournment request by phone and by email on her medical condition was refused without giving any reasons.
ii)The medical certificate presented by the applicant and subsequently by her agent was refused without giving any reasons.
iii)The Administrative Appeal Tribunal misconstrued or misapplied the applicable law and failed to comply s.362B(1)(b).
In written submissions the Applicant claims that she has not been afforded procedural fairness or natural justice when the Tribunal came to exercise the power under section 362B(1A)(b) of the Act. She also submits that she gave a valid reason for not being present and is therefore not caught by section 362B(1) of the Act. She further submitted the error was material in that, had she been able to provide further information, the Tribunal may have reached a different conclusion.
The Applicant's written submissions were supplemented orally before me on 4 October 2021. It was submitted that, notwithstanding the terms of section 357A and subsection (3) to that section, common law principles in relation to natural justice and procedural fairness continue to operate. It was then submitted that the requirements of Division 5 of Part 5 of the Act had not been complied with because, among other things, section 362C(2) requires the Tribunal when making a non-appearance decision to set out the reasons for its decision. It was submitted that the decision of the Tribunal was deficient and did not meet the requirements of section 362C because no reasons were given by the Tribunal for the non-appearance decision, or, if they had been, those reasons were inadequate.
At the outset I do not accept the submission that the terms of section 357A leave room for the common law to operate in relation to Part 5 reviewable decisions. Subsection (1) of 357A makes clear that ‘The Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals’. The Applicant's case is not advanced by pointing to subsection (3) of section 357A. True it is that that subsection requires the Tribunal to act in a way that is fair and just. That requirement exists in respect of the Tribunal when it comes to ‘applying this Division’.
The Applicant's submission that she has not been afforded procedural fairness or natural justice must be assessed in light of the relevant statutory provisions. That assessment begins with the terms of section 357A (2) of the Act. As I have noted, that section provides that what is contained within Division 5 of Part 5 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters with which it deals.
Consideration must then turn to the terms of section 362B of the Act. That section expressly empowers the Tribunal to deal with situations where an Applicant fails to appear at hearing, a situation that occurred in this matter. Significantly, section 362B(1A)(b) expressly gives to the Tribunal a discretion to dismiss an application without any further consideration of the application or information before the Tribunal in the event an applicant fails to appear. There is then section 362B(1B). That section permits an applicant to apply for reinstatement of a decision made by the Tribunal.
In the present matter the Applicant was properly invited to attend the hearing. She was reminded of the hearing date on at least two occasions by text message. She was informed she would need a very good reason for any adjournment request. At the time she was told that her adjournment request was refused, she was informed that she had the opportunity to attend by telephone. However, she did not take up that opportunity. As I have noted, she also did not take up the opportunity to apply for reinstatement.
When all of the circumstances of this case are considered, the Applicant has not been denied procedural fairness or natural justice.
The particulars in paragraphs (i) and (ii) to the ground of review complain about the postponement or adjournment being refused without giving any reasons. In oral submissions this point was expanded upon, as noted above, to encapsulate a claim that the Tribunal did not comply with section 362C(2) because it failed to give reasons for the non-appearance decision. That is a complaint without substance. I have set out the reasons given by the Tribunal earlier. The Tribunal gave the following reason at paragraph [2] of its reasons:
… No satisfactory reason for the non-appearance has been given.
In summary, therefore, there has not been a breach of section 362C of the Act. There has not been a failure by the Tribunal to consider the Applicant’s position or to fail to give reasons for its decision.
In her written submissions the Applicant contends that she ‘does not fall under sec.362B(1)’. That is a submission that cannot be sustained. Section 362B (1) is enlivened if the Applicant is invited to appear before the Tribunal and does not attend, circumstances which arose here. Whether the Applicant's explanation for seeking an adjournment was sufficient was a matter for the Tribunal to determine when it came to exercise its discretion under section 362(1A) of the Act.
A relevant question that arises in the present matter is whether the decision of the Tribunal to dismiss the Application without further considering its merits is open to challenge. The exercise of that discretion by the Tribunal is subject to consideration as to whether the decision was legally reasonable. The decision will be unreasonable if, among other things, it lacks an evident and intelligible justification.
In MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 (‘MZAHI’), Davies J considered the situation that confronted an applicant for a protection visa. Davies J considered whether a medical certificate presented to a tribunal in that case was sufficient or otherwise to justify the postponement of a hearing. The medical certificate in that case provided as follows:
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 paragraphs [7] and [9] of her reasons, Davies J considered the certificate that had been produced and also other Federal Court authority. Davies J noted that:
The medical certificate was plainly inadequate to justify any further adjournment of the tribunal hearing…
because it 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 hearing.
The Applicant contended before me that the position in MZAHI and other cases referred to could be distinguished from the present case because, unlike in the present case, in those matters the Tribunal went on to consider the substance of the matter. There are two things that may be said about that. First, I consider the situation that confronted Davies J in relation to the adequacy of the certificate is very similar to the situation that is presently before me. Davies J found the certificate before her was inadequate and, in my view, the certificate in this matter was inadequate. It was open to the Tribunal to conclude that a satisfactory reason had not been provided for the Applicant’s non-attendance at the hearing given the content of the certificate.
Second, the provisions of the statute engaged here expressly deal with the situation that confronted the Applicant and it was open to the Tribunal to embark upon the course that it did. Accordingly, the reasoning of the Tribunal is intelligible and not unreasonable.
For all the reasons above, the Application must be dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of His Honour Judge Blake. Dated: 15 October 2021
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