PRABHAKAR v Minister for Immigration
[2019] FCCA 1243
•15 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRABHAKAR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1243 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Visitor (class FA) (subclass 600) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Kaur & Anor v Minister for Immigration and Border Protection and Anor [2014] FCA 915; 236 CR 393; 141 ALD 619 |
| Applicant: | NARESH PRABHAKAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 644 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 16 October 2018 |
| Date of Last Submission: | 16 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 15 May 2019 |
REPRESENTATION
| Counsel for the applicant: | Ms Grinberg |
| Solicitors for the applicant: | Aila Rose Melasecca Barristers & Solicitors |
| Counsel for the respondents: | Mr A Roe |
| Solicitors for the respondents: | Australian Government Solicitors |
ORDERS
The applicant’s application for judicial review filed on 30 March 2017 and amended 18 September 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 644 of 2017
| NARESH PRABHAKAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the tribunal”) dated
27 February 2017. The tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) to refuse the applicant’s application for a Visitor (class FA) (subclass 600) visa (“the visa”).
The applicant’s claims
The applicant was the holder of a Visitor (class FA) visa which expired on 3 November 2016, having arrived in Australia on 16 July 2016.[1]
[1] Court book page 36.
Additionally, on 3 November 2016, the applicant applied for an extension of her Visitor visa.[2]
[2] Court book pages 9 to 19.
In the applicant’s application for a visitor short stay visa, the applicant was required to “give details of request for further stay” by providing, among other things a “reason for extension” of her visa. In response to this part of the application form, the applicant said that the reason for extension was “Applicant is currently being held at Dandenong Hospital under Medical Care.”[3]
[3] Court book page 9.
In response to a question on the application for a visa form completed by the applicant on 3 November 2016 as to whether “during their proposed visit to Australia… any applicant expect(s) to incur medical costs or require treatment or medical follow up for various conditions” including “respiratory disease that has required hospital admission…” the applicant answered ‘yes’.[4] The applicant then provided the following further information:
On 26 Oct 16 the app. was admitted into the Emerg. Dept. at Dandenong Hospital by Paramedics after suffering from various symptoms. App was diagnosed with pneumonia on 27 Oct 16. On 30 Oct 16 she was transferred to the ICU. It is anticipated that the app will need further treatment.[5]
[4] Court book page 16.
[5] Court book page 16.
The applicant also stated in her application that she intended to visit her son[6] and stay with him.[7] Attached to her visa application was also a letter from Dr Yao from Monash Health dated 3 November 2016 confirming the information set out above with respect to the applicant’s admission to hospital. The letter further stated:
She was due to fly out of Australia on 2/11/16 but unfortunately was too unwell to do so. She is currently too unwell to fly. Please take this into consideration with regards to her visa and plane tickets.[8]
[6] Court book page 13.
[7] Court book page 15.
[8] Court book page 27.
On 7 November 2016, the delegate refused the applicant’s application on the basis that the applicant expressly stated that the sole purpose for which a further stay was sought was related to medical treatment. The applicant did not therefore meet the mandatory requirements in
clause 600.221 of schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).[9][9] Court book pages 35 to 36.
On 14 November 2016, the applicant applied for a review of the delegate’s decision by the tribunal.[10] The applicant appointed a representative for the purposes of the review application.
[10] Court book pages 41 to 42.
By letter dated 13 January 2017, the applicant was invited to attend a hearing on 17 February 2017 before the tribunal to give evidence and present arguments.[11] That letter relevantly stated:
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that 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 without any further consideration of the application or the information before us. (emphasis added)[12]
[11] Court book pages 48 to 51.
[12] Court book pages 50 to 51.
On 13 February 2017, the applicant’s representative wrote to the tribunal asking for the hearing to be adjourned on the basis that the applicant was “currently offshore”.[13] As this letter did not specify when the applicant would be returning, the tribunal wrote to the applicant’s representative on 14 February 2017 asking when the applicant would be returning to Australia.[14]
[13] Court book page 55.
[14] Court book page 58.
The tribunal did not receive a response to this correspondence. The applicant did not attend the hearing scheduled for 17 February 2017 and consequently, on that same day, the tribunal advised the applicant that as she had not attended the scheduled meeting, the tribunal decided to dismiss her application.[15]
[15] Court book pages 60 to 64.
Later on that same day, on 17 February 2017, the applicant’s representative wrote to the tribunal requesting that the applicant’s application be reinstated to 30 March 2017. The representative stated in this correspondence, “… our Client has been under medical care at an overseas facility and was unable to confirm a date for adjournment at an earlier stage.”[16]
[16] Court book page 68.
The applicant’s application was reinstated[17] and by letter dated
20 February 2017, the applicant was invited to attend a further hearing on 23 February 2017.[18] Relevantly, in that letter, the tribunal said:The Tribunal has a statutory duty to conduct it’s (sic) business in a timely fashion. The Tribunal has also noted that your current Bridging visa is due to cease to have effect shortly and seeks to deal with this matter at it’s early convenience. The Tribunal is able to take evidence by telephone and will do so in this matter if you remain overseas.
Please note that if you seek a further adjournment of this matter the Tribunal will require medical evidence that states you are unable to provide evidence by telephone at the rescheduled time of this hearing.[19]
[17] Court book pages 76 to 77.
[18] Court book pages 70 to 73.
[19] Court book pages 71 to 72.
On 23 February 2017, the applicant’s representative wrote to the tribunal again seeking it be adjourned to 30 March 2017 on the basis that they had been unable to “establish contact with our Client, our Client is unable to attend today…”[20]
[20] Court book page 82.
On 28 February 2017, the applicant was advised that on
27 February 2017, the tribunal had affirmed the delegate’s decision not to grant the applicant the visa.
Legislative framework
Clause 600.211 of schedule 2 of the Regulations sets out the primary criteria which must be satisfied by an applicant for a subclass 600 visitor visa. Clause 600.211 relevantly states:
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 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 600 visa would be subject; and
(c)Any other relevant matter.[21]
[21] Migration Regulations 1994 (Cth), clause 600.211 of schedule 2.
Clause 600.221 of schedule 2 of the Regulations prescribes the primary criteria to be satisfied for a subclass 600 visa in the Tourist stream, namely:
The applicant intends to visit Australia, or remain in Australia:
(a)To visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, defacto partner, child, brother or sister of the applicant; or
(b)For any other purpose that is not related to business or medical treatment.[22]
[22] Migration Regulations 1994 (Cth), clause 600.221 of schedule 2.
The tribunal’s reasons
After setting out the background to the application for review at paragraphs 1 to 4 and the background to the hearing which was conducted on 27 February 2017 at paragraphs 5 to 14, the tribunal concluded that:
…because the visa applicant did not appear before the Tribunal on two occasions, the Tribunal proceeded to review the decision based on the information before it, pursuant to section 426A of the Act.[23]
[23] Court book page 91 at paragraph [14] of the tribunal’s reasons for decision.
To the extent that the tribunal referred to section 426A of the Migration Act 1958 (Cth) (“the Act”), the Minister conceded that this ought to have been a reference to section 362B of the Act.[24] These provisions are in equivalent terms albeit section 426A is found in part 7 of the Act, whereas the correct provision, section 362B is found in part 5 of the Act.
[24] Similarly, the reference by the applicant to section 425A of the Act should be read as a reference to section 360A of the Act, and the applicant’s reference to regulation 4.35D of the Regulations should be a reference to regulation 4.21 of the Regulations.
The tribunal identified the issue before it as requiring it to consider whether the tribunal was:
…satisfied that the visa applicant genuinely intends to visit Australia or remain in Australia, for the purpose of visiting an Australian relative or for any other purpose that is not related to business or medical treatment.[25]
[25] Court book page 91 at paragraph [16] of the tribunal’s reasons for decision.
After referring to the information contained in the application for a visa as set out in paragraphs 4 and 5 above, the tribunal concluded that “based on this information the purpose for the visa applicant lodging the application was to enable medical treatment to occur.”[26]
[26] Court book page 91 at paragraph [19] of the tribunal’s reasons for decision.
Having regard to the fact that clause 600.221(b) expressly excludes medical treatment as an allowable purpose for tourist stream visas, the tribunal concluded that the requirements of clause 600.211 were not met and the visa could not be granted. [27]
[27] Court book page 91 at paragraphs [20] to [21] of the tribunal’s reasons for decision.
The tribunal therefore affirmed the decision of the delegate to refuse to grant the applicant the visa.[28]
[28] Court book page 92.
Ground one
The first ground of review is:
The Tribunal failed to comply with section 425A of the Act and acted without power in affirming the decision under review.
Particulars
(a)The Tribunal held an initial hearing at which the applicant did not attend. The Tribunal dismissed the application under section 362B(1A)(b) of the Act on the same day without further hearing.
(b)At the applicant’s request the Tribunal reinstated the application and issued a fresh notice of invitation to appear.
(c)The fresh notice of invitation to appear failed to comply with section 425A(3) and Regulation 4.35D because it provided less than three days’ notice. The prescribed period of notice is 14 days.
(d)It is a mandatory obligation on the Tribunal to comply with the requirements of section 425A(3). The Tribunal’s failure to comply amounts to a jurisdictional error.
(e)Because the applicant had not been invited in accordance with section 425 of the Act, the Tribunal did not have the power to determine the application under section 426A of the Act.[29]
[29] Applicant’s amended application tendered 18 September 2018 at page 2.
At the commencement of the hearing, counsel for the applicant stated that the applicant was not pressing ground one.[30]
[30] Transcript page 3 at lines 3 to 5.
Ground two
The second ground of review is:
The Tribunal acted unreasonably in the legal sense by providing less than three days’ notice of the reinstated hearing and proceeding to determine the matter after being notified that the applicant’s advisers had been unable to establish contact with her during the notice period and so the applicant was unaware of the hearing and would be unable to attend.
Particulars
(a)In reinstating the application, the Tribunal stated that it had been unclear in its communications with the applicant.
(b)Prior to notifying the applicant that the matter had been reinstated, the Tribunal provided the applicant, through her advisers, a notice of an invitation to attend a hearing that was scheduled in three days’ time.
(c)Prior to the hearing, the applicant’s advisers notified the Tribunal that it had been unable to get in contact with the applicant. The applicant was therefore not aware of the hearing and not able to attend. The applicant’s adviser’s requested the hearing be adjourned to a date when the applicant was available.
(d)The Tribunal recorded that the applicant did not attend the hearing and proceeded to affirm the decision under review without adjourning the hearing date.[31]
[31] Applicant’s amended application tendered 18 September 2018 at page 3.
It is common ground that in exercising a statutory discretion such as determining how to proceed where the applicant has not attended a scheduled hearing to which the applicant has been invited, such discretion must be exercised reasonably.
In determining whether a tribunal exercised its powers unreasonably, the court must first identify the decision complained of. In this case, the applicant complained of the tribunal’s failure to grant the adjournment sought and their determination of the matter in her absence.
Next, the court must examine the terms, scope and purpose of the statutory power under which the decision was made. The applicant points to the tribunal’s discretion under section 362B of the Act, being a discretion to make a decision on the review where the applicant has not attended the hearing. It was said on behalf of the applicant that this discretion is conditioned by section 360 of the Act, which imposes a requirement on the tribunal to invite the applicant to appear.[32] The applicant also refers to the terms of section 357A of the Act which appears in division 5 and, at subsection (3) says that “in applying this Division, the Tribunal must act in a way that is fair and just.”[33]
[32] Transcript page 7 at line 45.
[33] Migration Act 1958 (Cth), div. 5, s.357A(3).
The applicant referred the court to the decision of Mortimer J in
Kaur & Anor v Minister for Immigration and Border Protection and Anor[2014] FCA 915; 236 CR 393; 141 ALD 619 (“Kaur”) in which her Honour noted:
… The High Court and the full Court of this Court have held now on several occasions that, on the current statutory language involving an invitation to appear, both ss 360 and 425 impose on the Tribunal an obligation to give an applicant a meaningful opportunity to appear and present evidence and arguments in support of her or his review application … As the plurality in the High Court pointed out in Li … there is a connection between the content of the obligation in s 360 and the reasonable exercise of discretions conferred by Pt 5 of the Act on the Tribunal. The manner in which the Tribunal exercises the discretions conferred upon it… must not frustrate the purpose of the obligation in s 360.[34]
[34] Kaur & Anor v Minister for Immigration and Border Protection and Anor [2014] FCA 915; 236 CR 393; 141 ALD 619 at [132].
Further, Mortimer J went on to say:
There is, however, no difficulty in accepting the proposition which also emerges from SZFHC that, having complied with its obligations under s425A (or, here, s 360A) there cannot be discerned from ss 425 and 425A read together (or, here ss 360 and 360A read together) any freestanding obligation on the Tribunal, in every case where there has been a failure to respond to a hearing invitation and a failure to appear at a scheduled hearing, to search its records, or those of the Department, to discover if there might be another way of communicating with the applicant. To imply such an obligation would be to constrain the discretions in ss 362B and 426A in a way the legislative scheme does not suggest is justified.[35]
[35] Kaur & Anor v Minister for Immigration and Border Protection and Anor [2014] FCA 915; 236 CR 393; 141 ALD 619 at [133].
The respondent argued that Kaur is a very different case to the present one. In Kaur, the applicant had been so heavily involved in the proceedings at every stage that a failure by the applicant to file a response to a hearing invitation was considered to be out of character and departed from the pattern of conduct and therefore the decision made in that case was affected by jurisdictional error.
The special nature of the circumstances in Kaur which gave rise to the conclusion in that case, was acknowledged by Mortimer J herself in the subsequent decision of MZALO v Minister for Immigration and Border Protection [2016] FCA 1339; 70 AAR 495, where she distinguished Kaur in the following terms:
This is not a case where there had been a pattern of close contact with the Tribunal such that it was reasonable to expect the Tribunal to take the short and simple step of making a phone call to the appellant to see why she had not attended the hearing. This was not a case where the appellant’s previous behaviour in relation to her review suggested a close and vital interest in its conduct, and suggested that failure to attend a Tribunal hearing was not the result of a conscious decision and was, instead out of character: cf my decision in Kaur…[36]
[36] See also paragraph [26] in MZALO v Minister for Immigration and Border Protection [2016] FCA 1339; 70 AAR 495.
The applicant also relied upon Minister for Immigration v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225; 139 ALD 181 (“Li”) in which French CJ said:
The decision of the MRT to proceed to its determination was not, on the face of it, informed by any consideration other than the asserted sufficiency of the opportunities provided to the first respondent to put her case. The MRT did not in terms or by implication accept or reject the substance of the reasons for a deferment put to it by the first respondent’s migration agent. It did not suggest that the first respondent’s request for a deferment was due to any fault on her part was based on any balancing of the legislative objectives set out in s 353. Its decision was fatal to the first respondent’s application. There was in the circumstances, including the already long history of the matter, an arbitrariness about the decision, which rendered it unreasonable in the limiting sense explained above.[37]
[37] Minister for Immigration v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225; 139 ALD 181 at [31].
I note that Li concerned a case in which the Minister’s delegate had refused a skilled visa on the basis that some of the supporting documentation was found not to be genuine. On review, the applicant sought some time to enable the obtaining and provision to the tribunal of a genuine skills assessment. This request was refused and the tribunal affirmed the delegate’s decision. The tribunal’s decision to refuse the requested adjournment was found to be legally unreasonable.
An affidavit of Ms Kowalewska sworn 2 October 2018 annexes a copy of the Department of Home Affairs’ computer database which shows the applicant’s movement records into and out of Australia.[38] Those records show that on 23 February 2017, the applicant entered Australia at 7:30am. The hearing before the tribunal was scheduled for 3:00pm on that day. It was argued on behalf of the applicant that these records support the applicant’s case that she was not contactable after her representative had been given notice of the new hearing date as she was travelling during that time. However, no evidence was led to support this proposition. For example, an affidavit was not filed attesting to the efforts made to contact the applicant by her representative.
[38] Annexure JZK-1 of the affidavit of Jolanta Zofia Kowalewska filed 2 October 2018.
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713; 357 ALR 408 (“SZVFW”), the High Court recently considered the principles which apply in determining whether the exercise of a statutory discretion was unreasonable in the sense necessary to give rise to a finding of a jurisdictional error. Keifel CJ said:
[10]In the joint judgement in Minister for Immigration and Citzenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. …
[11]… the test for unreasonableness is necessarily stringent. … because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion.
[12]In …Li reference was made to what had been said in Klien v Domus Pty Ltd regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts.
[13]The Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just economical, informal and quick. In reviewing a decision, the Tribunal is required to act according to substantial justice and the merits of the case. … Consistently with what has earlier been discussed, it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case.
…
[15]… The requirement to be implied in a provision such as s426A, that a decision-maker act reasonably, does not require the decision to be one which is advantageous to the person who is the subject of it. [39]
[39] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713; 357 ALR 408 at [10]-[15].
Similarly, Edelman J also stated:
[131]The reasonableness constraint that usually applies to the exercise by an administrator of statutory power is generally based upon a statutory implication. Where the statutory implication imposes a duty of reasonableness as a condition of decision making, violation of that duty means that the decision will have been made beyond power and therefore unlawfully. …
…
[135]An important matter of context in relation to the statutory implication is the legal tradition in which many statutes conferring administrative powers have been enacted. A strong part of that tradition has been the common description of unreasonableness in the terms of ‘patent’ unreasonableness. … The strong terms of the common description of unreasonableness may be based upon an assumption that Parliament did not manifest an intention that such a conclusion be lightly reached…[40]
[40] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713; 357 ALR 408 at [131]-[135].
Both parties referred to the factors identified in Ogawa v Minister for Immigration and Border Protection [2018] FCA 62; 159 ALD 138 (“Ogawa”) by Justice Flick as a guide to determine whether the three day notice period given for the adjourned hearing was reasonable, where his Honour said:
…s 353 is a provision intended to be ‘facultative, not restrictive’ … Provisions such as ss 353 and 420 direct attention – not only to the merits of a party’s case – but also to the wider public interest in ensuring the efficient resolution of claims made.[41]
[41] Ogawa v Minister for Immigration and Border Protection [2018] FCA 62; 159 ALD 138 at [14].
Here, the applicant claims that the tribunal acted unreasonably both in giving only three days’ notice of the adjourned hearing and also in proceeding to determine the application without granting a further adjournment.
In support of this submission, the applicant made the following submissions:
a)the tribunal was aware that the applicant had not been able to be notified of the adjourned date;
b)the tribunal was aware that the applicant was 60 years of age and had some 4 months earlier been hospitalised and received treatment in ICU for pneumonia;
c)the tribunal had been made aware that the applicant had also subsequently received medical treatment overseas;
d)the tribunal had been informed that the applicant would be available to give evidence on 30 March 2017;
e)the tribunal had accepted that its earlier communication regarding the adjournment request had been unclear and it was on this basis that the tribunal had reinstated the hearing;
f)notwithstanding the concession about the lack of clarity about its earlier communications, the tribunal had regard to the applicant’s failure to attend the first hearing in determining to proceed with the second hearing in the absence of the applicant;
g)the tribunal did not give any real consideration to whether the fact that the applicant had not been able to be advised of the adjourned date was a suitable basis to grant a further adjournment;
h)the tribunal did not consider whether three days’ notice was reasonable; and
i)at the time that the notice of invitation was emailed to the applicant’s representative, the tribunal had not yet notified her that her application for reinstatement had been granted.
As to the reasonableness of the notice given for the second hearing, it is appropriate to give consideration to the factors identified by Flick J in Ogawa.
a)The tribunal had provided the applicant with five weeks’ notice of the first hearing date, well in excess of the required 14 days. The applicant therefore had already had five weeks to gather any information and consider what submissions she wished to make. To the extent that the applicant’s representative indicated that the applicant had been under medical care at an overseas facility, this letter only stated that the applicant was “unable to confirm a date for adjournment at an earlier stage.”[42] It says nothing about the applicant’s capacity to provide her representative with instructions regarding her claims.
[42] Court book page 68.
Moreover, in the first invitation to attend a hearing issued on
13 January 2017, the applicant was requested to provide any additional documents or information that she might wish to rely upon during the hearing by 10 February 2017.[43] No such documents were provided, nor did the applicant’s representative in their letter of 17 February 2017, indicate that she wished to provide such further documents but was unable to do so.[44]
b)As to the complexity of any legal and factual issues to be canvassed, the legal and factual issues in this case are not complex. The issue is whether or not the applicant satisfied the requirements of clause 600.211 of schedule 2 of the Regulations. This is neither a legally or factually complex issue, nor was there a significant amount of documentary information relevant to this case as is evidenced by the length of the court book.
c)In relation to whether the applicant was previously provided with an opportunity to assemble factual materials and marshal legal arguments in support of her claim, I refer to the invitation in the correspondence dated 13 January 2017 to provide any additional documents or information by 10 February 2017. The applicant has not provided any such documents or information.
d)The applicant has not provided any evidence that she needed to obtain any further materials or evidence that may not have been available in time for the scheduled hearing.
e)In relation to whether the opportunity previously provided to the applicant to prepare any claim was rendered nugatory because of factors particular to the applicant, the delegate acknowledged that the tribunal was advised that the applicant had been “under the care of an overseas facility.”[45] However, the applicant did not, at any stage, provide the tribunal with any evidence to support this proposition, or which addressed the nature of her medical condition at the relevant time or how this was said to have prejudiced her ability to prepare for the hearing.
f)As to the question of whether a request was made for a rescheduled hearing to be further postponed, the delegate conceded that such a request was received from the applicant’s representative on the day of the rescheduled hearing. The only basis for the request was that the representative had not been able to “establish contact with our client”[46] and that the applicant would be available for a hearing on 30 March 2017. There was no evidence to support this assertion. For example, there was no information provided by the applicant’s representative as to the steps taken to try and make contact, when they last had contact with the applicant.
g)As to the final factor identified by Flick J in Ogawa, namely any assessment by the tribunal as to the adequacy of the period of notice given, it was submitted by the applicant that the tribunal did not give any such consideration in its reasons. It was submitted on behalf of the Minister that the tribunal did give consideration to this issue as is evident from the fact that in its correspondence dated 20 February 2017, the tribunal made reference to the fact that it had a statutory duty to conduct its business in a timely fashion. I agree with this submission. In addition, it is evident from the tribunal’s letter of 20 February 2017, that in considering the scheduling of the adjourned hearing, the tribunal also had regard to the timing of the applicant’s bridging visa ceasing to have effect. Having regard to both of these factors, the tribunal stated that it “seeks to deal with this matter at it’s earliest convenience.”[47] It is also evident that it sought to address any difficulties that an early hearing date might cause either because the applicant might still be overseas or otherwise unable to physically attend, by offering to take evidence by the telephone.
[43] Court book page 49.
[44] Court book page 68.
[45] Court book page 68.
[46] Court book page 82.
[47] Court book page 71.
In addition, the tribunal also left open the possibility that a further adjournment might be sought, but stated that if so, it would require further medical evidence in support. No such medical evidence was provided.
The delegate correctly pointed out that section 379G(2) of the Act is a complete answer to the applicant’s submission that the tribunal was aware on receipt of the correspondence from the applicant’s representative on 23 February 2017 that the applicant had not actually received notice of the hearing and proceeding with that knowledge was unreasonable. Moreover, as noted by the Full Court of the Federal Court in Le v Minister for Immigration and Citizenship [2007] FCAFC 20; 157 FCR 321 (“Le”) in considering an equivalent provision:
…the primary object of s 494D is to eliminate uncertainty as to whether a document has been given to an applicant. So long as the Minister has given a document to an Authorised Recipient, by a method that the Minister considers appropriate, that applicant is taken to have been given the document. … the consequence flows whether or not the document ever comes to the notice of the applicant. That certainty is of considerable advantage to the Minister in the administration of the Act.
…
[29] …it is incumbent upon an applicant to remain in communication with a person who is authorised to receive documents … until the applicant withdraws the notice.[48]
[48] Le v Minister for Immigration and Citizenship [2007] FCAFC 20; 157 FCR 321 at [25] and [29].
The applicant further submitted that the tribunal’s decision to have regard to the applicant’s failure to appear on the first occasion in circumstances where the tribunal had accepted that its earlier communications were unclear, rendered its decision unreasonable. In response the Minister said that the tribunal had only accepted that its request for further information made on 14 February 2017 was unclear, not its earlier communications regarding the invitation to appear at the first hearing more generally.
In circumstances where the tribunal had given the applicant over five weeks’ notice of the first hearing and made it clear in its correspondence that in the absence of the tribunal confirming that an adjournment had been granted, the hearing would proceed, I am satisfied that it was not unreasonable for the tribunal to have regard to the fact that the applicant had not appeared at both hearings in its decision.
The applicant also pointed to the fact that the tribunal was aware that the applicant:
a)was 60 years of age;
b)had only four months earlier been admitted in the Intensive Care Unit (“ICU”) and received treatment for pneumonia; and
c)had been receiving medical treatment overseas;
as further evidence that its decision not to grant a further adjournment was legally unreasonable.
The applicant has not provided any evidence that her age in any way impaired her capacity to comply with the request to attend the hearing. Whilst there was some evidence before the tribunal as to the applicant’s health status at the time she had filed her application for a visa, there was no further evidence about her health at the time of the adjourned hearing or in the interim which may have affected her ability to provide instructions to her representative. Indeed, the tribunal requested that information.
Whilst it is conceded that the applicant had indicated that she was available to attend a hearing on 30 March 2017, this is not determinative. The question is not whether the applicant was available on a day of her choosing but whether she was fit to participate in a hearing scheduled by the tribunal. There is nothing unreasonable in the tribunal not acceding to a request to schedule a hearing on a day which is suitable to the applicant, in the absence of evidence to support the applicant’s claim that she was unable to participate on the date which had been allocated by the tribunal to deal with this matter.
Contrary to the assertion by the applicant, it is not correct to say that the tribunal did not give any consideration as to whether the notice given was sufficient in circumstances where it had not been provided to the applicant. This is particularly so where the tribunal expressly referred in the notice to the fact that it had a statutory duty to deal with matters in a timely manner and that the applicant’s bridging visa was about to cease shortly. In addition, the short notice needs to be viewed in the context that the tribunal had indicated that it was prepared to take evidence by telephone.
The applicant also says that the receipt of the notice of the adjourned hearing was received before notice that the application for reinstatement had been granted. It is not clear how it could be said that this amounts to legal unreasonableness. What is clear is that the applicant through her representative had on 17 February 2017 requested the “reinstatement of this hearing to 30 March 2017.”[49] When one reads the letter from the tribunal to the applicant dated 20 February 2017, it is clear that this was in response to that request and that the application had been reinstated. So much is evident from the reference to “further adjournment”.[50] Moreover, there would be no need for a hearing if the reinstatement had not been granted. The fact that the applicant received the invitation to the adjourned hearing before the formal notification that the reinstatement application had been granted, does not evidence legal unreasonableness.
[49] Court book page 68.
[50] Court book page 72.
Having regard to each of these matters, both individually and collectively, and applying the principles espoused in SZVFW and in particular the need for the court not to lightly interfere with the tribunal’s exercise of discretion, I find that this ground is not made out. The question ultimately is not whether in the circumstances, this court would have come to a different conclusion on the facts, but rather whether the tribunal in exercising its discretion acted in a ‘patently’ unreasonable manner.[51] I am not satisfied that it did.
[51] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; ALJR 713; 357 ALR 408 at [135] per Edelman J.
Ground three
The third ground of review is:
The Tribunal misconstrued and misapplied cl 600.221 of the Migration Regulation 1994.
Particulars
(a)The Tribunal misconstrued and misapplied the exclusion for medical treatment in cl 600.221(b) Migration Regulation as if it generally applied to all purposes for tourist stream visas, including for purposes identified in cl 600.221(a), and not being limited to those ‘other purpose[s]’ related to business or medical treatment referred to in cl 600.221(b).
(b)The Tribunal failed to take into account a relevant consideration in applying cl 600.221 Migration Regulation 1994, namely that the applicant was seeking to extend a visit to an Australian citizen who was a child of the applicant, even if that extension was necessitated by the applicant’s need to obtain medical treatment.
(c)The Tribunal conflated the reason or cause of the application for a further visa, with the purpose of her visit. The applicant’s purpose of the visit remained to visit her son. The Tribunal reasoned that, as the cause for the further application was the applicant’s inability to travel due to her sickness, the purpose of the application was therefore to seek medical treatment.[52]
[52] Applicant’s amended application tendered 18 September 2018.
In essence the basis of this ground is that the tribunal, according to the applicant, failed to have regard to all of the reasons for the applicant’s visa application. It is submitted that the application filed by the applicant on 3 November 2016 was to extend her visa which had been granted to visit her son. The applicant pointed to the fact that in her application, she stated that she intended to visit her son[53] and intended to stay with him.[54]
[53] Court book page 13.
[54] Court book page 15.
It is further argued that this intention was sufficient to justify the granting of the visa on the basis that clause 600.221(a) was satisfied. As clause 600.221(a) and (b) are disjunctive, it is sufficient for one of them to be satisfied for the requirements of that clause to be met.
It was argued for the applicant that the tribunal misunderstood and misapplied clause 600.221 in that once it concluded that the application was in part related to medical treatment, this precluded the tribunal from having to consider whether the applicant fell within (a); namely that the purpose of her visit was to visit her son who was an Australian citizen or permanent resident.
The difficulty with this submission is that it does not accurately reflect the application made by the applicant. As correctly pointed out by counsel for the Minister, in response to the question in the application form as to the ‘Reason for extension’, the applicant stated “Applicant is currently being held at Dandenong Hospital under Medical Care.”[55] That is the sole purpose given for the application for the visa. The applicant did not put forward two reasons for the extension, one of which may have been permissible. The tribunal considered the one reason put forward by the applicant for the visa.
[55] Court book page 9.
To say that the applicant indicated that she would visit and stay with her son in response to other questions on the application form is not the same as saying that visiting her son and staying with her son were part of the reason for the application for an extension of her visa. Indeed:
a)the applicant’s statement that she would visit her son was made in response to a general question as to whether the applicant would visit any relatives, friends or contacts while in Australia; and
b)the applicant’s statement that she would stay with her son was made in response to a question about how the applicant’s stay in Australia would be funded.
It cannot be said on a proper reading of the application that these statements equate to a statement by the applicant that part of the purpose for the extension of the visa was to visit her son. The purpose for the extension of the visa is as stated in answer to the question[56] and is limited to the medical care.
[56] Court book page 9.
In addition, the letter from Dr Yao further supports the conclusion that the only basis for the application for an extension of the visa was due to medical concerns.[57] It clearly stated that the applicant was due to fly out of Australia but then became unable to do so because of her medical situation.[58]
[57] Court book page 27.
[58] Court book page 27.
For these reasons, ground three is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application should be dismissed with costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 15 May 2019
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