Rahman v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 855
Federal Circuit and Family Court of Australia
(DIVISION 2)
Rahman v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 855
File number(s): SYG 131 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 21 October 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – whether the Administrative Appeals Tribunal (Migration Division) (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection Visa rejection by the Ministers delegate – whether the applicants were deprived of natural justice and procedural fairness – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 358, 362, 363, 395A, 362B
Migrations Regulations 1994 (Cth) Sch 2 cl 187.233
Cases cited: Arfat v Minister for Home Affairs [2019] FCCA 3770
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Nguyen v Minister for Immigration and Border Protection [2018] FCCA 3045
SCCA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Singh v Minister for Immigration and Border Protection [2018] FCAFC 184
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 10 October 2022 Date of hearing: 10 October 2022 Place: Sydney Counsel for the Applicants: The First Applicant appeared in person. Counsel for the Respondents: Mr McCaughan appeared on behalf of the First Respondent.
Table of Corrections 24 October 2022 At paragraph 27, the word ‘not’ has been inserted into the third sentence.
At paragraph 36, “cl 187.223” has been amended to “cl 187.233”.
ORDERS
SYG 131 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD HABEBUR RAHMAN
First Applicant
ISMAT ZARIEN
Second Applicant
MUHAMMAD RAZEEN RAHMAN
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
21 October 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changes to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The First Applicant is to pay the First Respondents costs, fixed in the amount of $5900.00.
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 HUMPHREYS
Introduction
The primary applicant is the first named applicant. The second and third applicants are the first applicant’s wife and child. All the applicants are citizens of Bangladesh. On 1 September 2017, the applicants lodged an application for a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) Visas (employer nomination visas) in the direct entry stream through their Migration Agent.
On 20 September 2018, the Minister informed the applicants that an Employer Nomination application for the first applicant made by MS AUS BD Pty Ltd had been refused, which meant that the applicants’ visa applications could not be approved.
On 25 October 2018, a delegate of the Minister for Immigration (“the delegate”), refused to grant the first applicant an employer nomination visas on the basis that the first applicant did not satisfy cl 187.233 of Schedule 2 of the Migrations Regulations 1994 (Cth) (“the Regulations”), as the primary applicant was not the subject of a nomination approved by the Minister for Immigration.
On 8 November 2018 the applicants sought merits review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”). On 28 October 2020, the Tribunal invited the applicants to a telephone hearing before it on 2 December 2020, to give evidence and present arguments.
On 16 November 2020, the Tribunal invited the applicants pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”), to comment on information, namely that, the employer nominator had withdrawn its application for review of the decision to refuse the nomination application, which if relied upon, may lead to a finding that the Tribunal must affirm the decision under review.
On 27 November 2020, the applicants responded to the invitation, claiming that the nominator had denied to the second applicant withdrawing its review application with the Tribunal and stating that the owner (of the business) would provide evidence of this to the hearing, and appear if required.
On 1 December 2020, the first applicant sent to the Tribunal an email claiming to be very ill and suffering from suspected Covid 19. The first applicant requested that the matter be adjourned as he was in isolation for a period of 14 days. The first applicant stated that he had a sore throat and continuous coughing, otherwise he would offer a telephone hearing instead, but he did not wish to, as this was his opportunity to put his claim face-to-face. The applicant enclosed a medical certificate. The medical certificate attached, stated that the applicant was: “suffering from a medical illness and will be unfit for work from 1 December 2022 to 4 December 2020 inclusive. He is not suffering from Covid 19”.
On 2 December 2020, the applicant failed to appear at the scheduled hearing. The Tribunal dismissed the application under s 362B (1A)(b) of the Act. The applicants were notified of the dismissal of their matter for non-appearance on 21 December 2020.
On 22 December 2020 the first applicant requested reinstatement of the application and provided claims as to his reason for his absence in the Statutory Declaration of his friend. On 23 December 2020, the Tribunal notified the first applicant of concerns it held with respect to his claims and evidence in his reinstatement application. The first applicant was invited to provide further evidence. On 4 January 21, the applicant stated he had no further evidence to provide. On 8 January 2021, the Tribunal confirmed the decision to dismiss the application.
The AMINISTRATIVE APPEALS Tribunal Decision and Confirmation Decision
The Tribunal’s initial decision of 2 December 2020, records the applicants request for an adjournment. It also notes that the Tribunal reviewed the medical certificate provided by the first applicant. The medical certificate did not indicate that the first applicant would be unable to participate in the hearing by telephone as scheduled. The medical certificate also explicitly stated that the first applicant was not suffering from Covid 19.
The decision goes on to note that the Tribunal made three separate attempts to speak to the first applicant in the afternoon of 1 December 2020, however, he did not answer any of the calls, nor four separate calls placed to him on the morning of 2 December 2020. The Tribunal acknowledged that the first applicant was unwell, but found that there was insufficient evidence before it, to demonstrate that he was not able to participate in the hearing by telephone, even if he was in self-isolation. The Tribunal concluded that the reasons given for the first applicant’s non-appearance were not satisfactory and decided to dismiss the application.
In the confirmation decision of 8 January 2021, the Tribunal notes that the first applicant did not make any further attempts to communicate with the Tribunal until 22 December 2020, following the Tribunal writing to the applicants on 21 December 2020 advising them that their application had been dismissed for non-attendance. In the first applicant’s request for reinstatement, the applicant stated:
“I had undergone voluntary self-isolation (quarantine) from the very day of my medical check-up on 1/12/2020 as the doctor had asked me to take enough rest. According to the doctor’s advice most of the of the time of my isolation I kept my phone silent or off which also worried my wife who tried to contact me at the same time as tribunal. I told my wife about my health condition following the doctor suggestion on 04/12/2020. Surely I will try to attend your phone call on both first and 2 December 2020 if it was in my knowledge. I did not undertake the Covid 19 test in fear of further deterioration of my mental state rather I went for self-isolation.
I did not deliberately want to avoid the tribunal neither my wife on the aforementioned dates who repeatedly failed to get hold of me on the phone. My wife understood when I later explained my situation here.
The first applicant also provided a Statutory Declaration from a friend, Mr Shabbir Ahamed. Mr Ahmed stated that the first applicant was a close friend and that he was aware that the applicant was in self-isolation for two weeks which ended on 15 December 2020. During the applicant’s isolation, Mr Ahamed’s wife cooked food on several occasions which was supplied to the first applicant.
At paragraph 15 of its decision, the Tribunal noted several inconsistencies in the evidence provided by the first applicant. The Tribunal noted the first applicant’s belief that he was a “suspected Covid 19 patient” but that he decided not to be tested for the disease on the basis that his mental health might suffer as a result. The Tribunal also had issues with the applicant’s decision to switch off or leave on silent his mobile phone for a two week period, in circumstances where he was purportedly dependent on friends, such as Mr Ahamed, to provide him with food during his a voluntary quarantine.
At paragraph 16 of its decision, the Tribunal noted that the applicant made no attempt to contact the Tribunal that the cessation of his period of self-isolation to determine the status of his application. At paragraph 17 of its decision, the Tribunal noted that the applicants were made aware that a medical certificate certifying a person’s unfitness to attend work may not be sufficient evidence to demonstrate they are unfit to attend a hearing even by telephone.
The Tribunal noted the evidence from the first applicant’s General Practitioner that he was not suffering from Covid 19 on 1 December 2020 and there was no other evidence before it to reasonably demonstrate that the primary applicant was unfit or otherwise reasonably unable to attend a telephone hearing scheduled on 2 December 2020. The Tribunal was not of the view that the Statutory Declaration provided by Mr Ahamed established that the primary applicant was unable to attend a telephone hearing during his voluntary period of self-isolation. Accordingly, the Tribunal determined to confirm the dismissal of the application. As a consequence, the decision under review was taken to be affirmed.
Grounds of Judicial Review.
The grounds of judicial review relied upon are contained in an Amended Initiating Application dated 22 January 2021. They are as follows verbatim:
1. The Administrative Appeals Tribunal (Migration Division) (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection Visa rejection by the Ministers delegate.
2. The second respondent (the Tribunal) has exercise its power in error pursuant to s363(1)(b) and have denied the applicant’s natural justice and procedural fairness pursuant to s358(1)(a) and s358(1(b) and s359AA(1)(b)(ii)(iv) of the Migration act 1958.
3. The applicants claim the tribunal was preoccupied and that is why they were denied natural justice and procedural fairness when the tribunal formed the view about the applicants before the hearing. Preoccupation is clearly authenticated in its decision that the tribunal has cut and pasted from the delegates decision.
4. The applicants were deprived of natural justice and procedural fairness. Because the decision-maker did not afford the applicants whose interests has adversely affected by the decision as it did not give the opportunity to present their case. The tribunal did not follow the hearing rule is based on maximum due clearly recognised as a denial of procedural fairness.
At this point, it is appropriate to note that the Minister for Immigration drew to the attention of the Court that the applicant’s reference to a Protection visa and to the Tribunal cutting and pasting from the delegate’s decision would suggest that these grounds themselves have been appropriated from a separate application for judicial review. They are identical to the grounds pleaded in Arfat v Minister for Home Affairs [2019] FCCA 3770 at [17] per Judge Dowdy.
THE Applicant’s Submissions
The first applicant appeared before the Court unrepresented. The first applicant was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the first applicant was in possession of a copy of the relevant Court books and the first respondent’s written submissions. The Court also ensured that the first applicant had access to a pen and paper so that he could take notes should he wish to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Notwithstanding Court orders, written submissions on behalf of the first applicant were only filed late on the Friday before a Monday morning hearing. The legal representative for the first respondent indicated to the Court notwithstanding this late filing, there was no prejudice to the first respondent, and the hearing could proceed. The first applicant told the Court that he had nothing to add to his written submissions and did not wish to make any oral submissions.
At the conclusion of the first respondent’s oral submissions, the first applicant was asked if he wished to state anything in reply. The first applicant stated “no”.
The written submissions set out the history of the matter, and reiterate the first applicant’s claim that he was unable to receive any telephone calls because of his medical condition in the “Covid 19 situation I was self-isolated”. The first applicant submitted that the legal question is “at the time of the application” was the company ineligible to sponsor someone was the company a liquidated entity.
The first applicant then goes on to allege that the Tribunal was biased as it did not consider the Covid 19 situation with the neutral point of view and as a result he was deprived of natural justice.
Consideration
The Court notes information provided by the legal representative for the first respondent and the first applicant in his submissions that the employer sponsor, MS Aus BD Pty Ltd has been wound up and deregistered.
Ground one is an assertion of jurisdictional error which lacks any meaningful particulars. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). In any event, the complaints, such as they are within ground one, appear to be encompassed within grounds 2, 3 and 4. In any event, the Court is satisfied that the Tribunal followed all relevant procedures and processes required of it by the Act. Ground one has no merit.
In terms of the complaints about ss 358(1)(a), 358(1)(b), 359AA(1)(b)(iii), 359AA(1)(b)(iv) of the Act, the Court agrees with the first respondent that the Tribunal never rejected the document or a submission of the first applicant. There was not a hearing at which the Tribunal had given the applicant information. These provisions are not relevant to the Tribunal decisions, which solely relate to a decision to dismiss the application due to the nonappearance of the applicants. The inclusion of these complaints, appear to be as a result of the cutting and pasting of grounds of judicial review which the Court has referred to above.
In terms of the complaint unrespect of failing to comply with s 363(1) of the Act the first respondent submitted that it is not apparent that the first applicant actually expressly sought an adjournment. The first applicant said that he did not want to lose the opportunity for a face to face hearing. However, the original hearing invitation made it clear that the Tribunal proposed to proceed by way of a telephone hearing only.
In terms of whether there was an implied request for an adjournment, the first respondent submits that the Tribunal did not give express reasons for not adjourning the hearing. However, this was in circumstances where the first applicant was advised that any medical certificate must state the reasons why the first applicant was unable to attend a hearing, in this case a telephone hearing. The medical certificate did not do this. Further, the Tribunal made significant attempts to contact the first applicant both on the day before and on the day of the hearing.
The Court is not satisfied that the first applicant has in any reasonable manner explained, why he turned his telephone off or had it on silent in circumstances where the first applicant’s medical practitioner had certified that the applicant was not suffering from COVID 19. The applicant knew that the hearing was scheduled to take place. The first applicant simply chose to remove himself from the possibility that he might have to participate in the hearing, even to ask for an adjournment. The Court is satisfied that the decision of the Tribunal to dismiss the application was reasonable in the circumstances. Ground two has no merit.
Ground three is difficult to follow, given the Tribunal decision did not contain any portion of the delegate’s decision. The allegation of pre-occupation appears to be an allegation of bias. In any event, bias is a serious allegation and requires evidence, such as the transcript of the hearing. It will be a rare case that bias can be established solely from the published reasons of the Tribunal: (see; SCCA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). There is no evidence before the Court that would substantiate the claim of bias. The Tribunal dismissed the application as the first applicant failed to appear at the scheduled hearing. The Tribunal was not satisfied with the first applicant’s explanation for failing to appear, when he sought reinstatement. The Court is satisfied that the decision not to reinstate was within the legitimate decision freedom of the Tribunal in the particular circumstances of the case. Ground three has no merit.
Ground four is an allegation of a denial of procedural fairness. The first respondent notes that the Tribunal did not give the first applicant a copy of the written statement of the non-appearance decision within the 14 day time frame after the decision was made as required by
s 363C(5) of the Act. The first respondent submitted that the applicant suffered no practical injustice as a result of this error and that it does not amount to jurisdictional error: (see; Nguyen v Minister for Immigration and Border Protection [2018] FCCA 3045 at [133]-[134]). The Court accepts this submission. The error was not in any way material to the final outcome of the matter and the first applicant had failed to show that it was: (see; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [60]).
In terms of the reasonableness of the decision by the Tribunal to proceed under s 362(1A)(b) of the Act and dismiss the matter, in the circumstances of the case, the discretion exercised was reasonable. The Court is satisfied the decision was within the acceptable range of outcomes available to the Tribunal. As noted by the first respondent, the fact that the first applicant either turned his phone off or had it on silent such that he could not be contacted on the day before or on the day of the hearing were matters the Tribunal could reasonably take account of in determining to dismiss the matter for non-appearance.
On the confirmation decision, the first respondent notes that the Tribunal is required to consider whether a decision to re-instate is appropriate: (see; s 362B(1C)(a)). Whether it is appropriate must be suited to the particular circumstances of the case to determine if it is sensible, right and proper: (see; Singh v Minister for Immigration and Border Protection [2018] FCAFC 184 at [29]).
The Court considers that there is nothing inappropriate in the manner in which the Tribunal went about its consideration of whether to reinstate the matter. The evidence provided by the first applicant for his reasons for not attending the hearing by telephone were poor. They did not make sense, given that his own medical evidence indicated that he did not have Covid 19. No evidence was supplied as to the first applicant having a mental condition that prevented him from participating in a telephone hearing. The decision not to reinstate was not illogical, irrational or otherwise infected any legal unreasonableness. Ground four has no merit.
Finally, the Court notes the submission by the first respondent that, in any event, even if jurisdictional error is present (which is denied), it would be futile to remit the matter to the Tribunal for re-hearing. The applicant sought an Employer Sponsored visa. The employer withdrew the application for a review of the refusal by the Department of Immigration, of the employer nomination. Even had the Tribunal considered the matter on its merits, the only decision it could have come to was to affirm the refusal by the delegate as he could not satisfy cl 187.233 of the Regulations. The Court agrees with this submission.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 21 October 2022
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