Salomonn v Migration Agents Registration Authority
[2014] FCA 380
•17 April 2014
FEDERAL COURT OF AUSTRALIA
Salomonn v Migration Agents Registration Authority [2014] FCA 380
Citation: Salomonn v Migration Agents Registration Authority [2014] FCA 380 Appeal from: Application for extension of time: Raymond Salomonn v Migration Agents Registration Authority [2013] AATA 146 Parties: RAYMOND SALOMONN v MIGRATION AGENTS REGISTRATION AUTHORITY and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 1600 of 2013 Judge: PERRAM J Date of judgment: 17 April 2014 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time in which to bring appeal from Administrative Appeals Tribunal – explanation for delay – decision making ability of applicant impaired
MIGRATION – review of decision of Migration Agents Registration Authority
ADMINISTRATIVE LAW – whether breach of rules of procedural fairness for the Tribunal to proceed in applicant’s absence after he left the hearing – whether Tribunal bound to adjourn
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 33(1), s 35, s 43 and s 44(2A)
Migration Act 1958 (Cth) s 276, s 280(1)Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 cited
Minister for Immigration and Citizenship v Li (2012) 202 FCR 387 cited
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 cited
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 considered
Minster for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
Public Service Board (NSW) v Osmond (1986) 159 CLR 656 cited
Raymond Salomonn v Migration Agents Registration Authority [2013] AATA 146 cited
Soliman v University of Technology, Sydney (2012) 207 FCR 277 cited
Sullivan v Department of Transport (1978) 1 ALD 383 considered
Tisdall v Webber (2011) 193 FCR 260 citedDate of hearing: 4 March 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 62 Counsel for the Applicant: Mr P Afshar Solicitor for the Applicant: Christopher Levingston and Associates Counsel for the First Respondent: Mr P Knowles Solicitor for the First Respondent: DLA Piper Australia Solicitor for the Second Respondent: The second respondent filed a submitting appearance
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1600 of 2013
BETWEEN: RAYMOND SALOMONN
ApplicantAND: MIGRATION AGENTS REGISTRATION AUTHORITY
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
17 APRIL 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Extend the time for the applicant to appeal to 7 August 2013.
2.Treat the applicant’s notice of appeal as having been filed on 7 August 2013.
3.Appeal dismissed.
4.The applicant pay the first respondent’s costs.
5.Pursuant to section 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’), being satisfied that the order is necessary to prevent prejudice to the proper administration of justice and to protect the safety of any person, it is ordered that:
5.1the information contained in Exhibits 1 and 2, being the orders of the Administrative Appeals Tribunal dated 18 February 2013 pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth), and the reasons of the Administrative Appeals Tribunal dated 21 February 2013 for those orders; and
5.2paragraphs 34 and 35 of the reasons for judgment of Perram J dated 17 April 2014,
are to be subject to a non-publication order within the meaning of section 37AA of the Act.
6.Order 5 operates for a period of 20 years commencing on the date of the order.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1600 of 2013
BETWEEN: RAYMOND SALOMONN
ApplicantAND: MIGRATION AGENTS REGISTRATION AUTHORITY
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE:
17 APRIL 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application to extend the time in which to appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’). The decision in question affirmed an earlier decision of the Migration Agents Registration Authority (‘the Authority’) to cancel the applicant’s registration as a migration agent. Without registration as a migration agent, a person is prohibited from giving ‘immigration assistance’ (Migration Act 1958 (Cth) s 280(1)) which concept includes, in effect, assisting with the making of applications for visas (s 276). The Authority cancelled the applicant’s registration because it concluded that he was not a fit and proper person to be included on the register.
When the matter was called on for hearing before the Tribunal the applicant, in circumstances to which it will be necessary to return, applied for an adjournment. This application was refused and the hearing eventually proceeded in his absence, following which the Tribunal affirmed the Authority’s decision: Raymond Salomonn v Migration Agents Registration Authority [2013] AATA 146. If permitted to appeal out of time to this Court the applicant will contend that by refusing him an adjournment and proceeding to hear and to determine the application in his absence, the Tribunal denied the applicant procedural fairness; reached a decision at which no reasonable decision maker could have reasonably arrived; and/or failed to discharge its core function of determining the merits of his review application.
For the reasons which follow the applicant should be granted an extension of time in which to appeal but the appeal should be dismissed with costs.
1. The extension of time application
The Tribunal made its decision on 19 March 2013. The application for an extension of time was made to this Court on 7 August 2013. Under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the Act’) an appeal had to be brought within 28 days of the date on which the decision of the Tribunal was given to the applicant. As the applicant did not claim to have received the decision later than 19 March 2013, he was required to file an appeal by the close of business on 16 April 2013. The proposed appeal is, therefore, just under four months out of time.
There are usually four matters which are relevant to whether an extension should be granted (for example, see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344):
(a)the extent of the delay;
(b)the explanation for the delay;
(c)the merits of the proposed appeal; and
(d)the extent of any prejudice to a respondent to the proposed appeal on the assumption that leave is granted.
I consider each in turn.
(a) The extent of the delay
As noted above, the appeal is just under four months out of time.
(b) The explanation for the delay
On the hearing of the application a number of matters were put forward to explain the delay in the making of the application which were, I think, intended to be treated cumulatively.
First, it was said that the applicant suffers from Attention Deficit Hyperactivity Disorder (‘ADHD’), Post Traumatic Stress Disorder (‘PTSD’), stress, anxiety and depression. Dr Grosseibl of the Glebe Medical Centre diagnosed the applicant with PTSD, chronic depression and anxiety on 14 September 2012. She expressed the view that the symptoms were causing clinically significant distress to him and an impairment in his ability to complete his university studies. By way of interpolation, it appears that he is studying for a Juris Doctor at the University of Technology in Sydney. There is no reference to ADHD in Dr Grosseibl’s report, but in another report dated 1 July 2013 prepared by the applicant’s rehabilitation consultant there is a reference to him having been diagnosed with ADHD in yet another report apparently produced in December 2012. In addition, attached to the applicant’s witness statement dated 23 January 2013, prepared for the purposes of the Tribunal proceedings, is a letter from a Dr Farago dated 17 January 2013 certifying that the applicant was being treated for ‘Adult Attention Deficit Disorder’. Although it is possible to imagine more cogent evidence about this, I am content to conclude that in the first eight months of 2013 the applicant was suffering to some extent from PTSD, ADHD, depression and anxiety. The diagnoses were not disputed by the Authority and there was evidence available that these were conditions which did not resolve themselves quickly.
That, however, is not the end of the matter. There was evidence before the Tribunal that, as at January 2013, the applicant was confident that his treatment for these various maladies was proceeding satisfactorily and that he was ‘well on the way to recovery’; further, that he now hoped to be able to resume his studies and get back to a ‘normal and useful life’. This evidence was put on by the applicant as part of an attempt to persuade the Tribunal that his registration as a migration agent ought not to be cancelled. This was because the misconduct of which he stood accused and which was said by the Authority to require his removal from the register was driven by his mental disorders. These, so it was said, were now improved although it was not said they were fully resolved.
Confronted by the use of his own argument against him, the applicant parried this contention by submitting that a relative of his had been killed in his country of origin after the conclusion of the hearing in the Tribunal and that this had put his recovery off course. This was the second matter he relied in this Court. The available material indicated that a relative of his had been found dead in his country of origin on or about 10 March 2013 (the Tribunal hearing was on 18 February 2013 and its decision was made on 19 March 2013) in circumstances which were said to signal the presence of a political murder. Further, and without dwelling on the detail, those behind the death were people of influence.
The applicant says that this death augmented fears about his own safety. As it was developed, the point was that there were political events taking place in his country of origin which exposed him to risk and the fact of this death only underscored that risk.
The Authority pointed out in its submissions that there were some circumstances which tended to undermine this. During the course of the hearing in the Tribunal the applicant had sought, and in part obtained, an order making confidential certain aspects of the Tribunal’s decision. He was dissatisfied with the partial nature of his success and left the Tribunal immediately to implement proceedings to review that decision in this Court. Those proceedings were actually commenced on 20 February 2013 (2 days after the hearing in the Tribunal). Ultimately they were discontinued on 8 May 2013 when I granted the applicant leave to discontinue. At that time, I ordered him to pay the Authority’s costs of that proceeding.
The Authority submitted that if the applicant could conduct a case in the Federal Court between February and May last year it cannot have been beyond him to file a notice of appeal in the present proceeding during the same period. There is some force in this proposition but it is perhaps a little dented by the observation that the preparation of the initial Federal Court proceedings (on 20 February 2013) occurred before the applicant had received notice of his relative’s death (on or around 10 March 2013) and that, once the proceedings were commenced, little happened in them. The only noteworthy events were that the Authority filed a notice of objection to competency on 5 March 2013 and a set of written submissions with affidavits on 26 March 2013; thereafter, procedural orders were made at a directions hearing on 26 March 2013 and the parties appeared before me on 8 May 2013.
I also take into account the applicant’s evidence that he is bankrupt; spends a lot of time caring for his parents; and that he expends much of his own Centrelink entitlements on them. However, I do not think these matters in themselves take matters very far.
In the circumstances, I find that the applicant was impaired in his ability to make sensible decisions about his proposed appeal by an unfortunate combination of depression, anxiety, ADHD and PTSD which became more serious on or around 10 March 2013 following his receipt of the news that one of his relatives had been killed in his country of origin. I am satisfied that this fugue continued until August 2013. I do not find that his judgment was materially affected on 18 February 2013, being the date of the Tribunal hearing. This is not relevant to the question of an extension of time; however it has some bearing on the applicant’s substantive arguments.
(c) The merits of the proposed appeal
It is now necessary to say a little more about the events which led to the applicant’s adjournment application and the Tribunal’s ultimate decision to continue the hearing after the applicant absented himself. When the matter was called on for hearing before the Tribunal on 18 February 2013 the applicant represented himself, although he was also accompanied by a solicitor, Mr Levingston of Christopher Levingston & Associates. Prior to the hearing material was forwarded to the Tribunal foreshadowing an application pursuant to s 35 of the Act (which, relevantly, authorises the Tribunal to direct that the hearing of a matter before it take place in private or that evidence or material adduced before it not be published).
The applicant’s concern was that material which was to be put before the Tribunal in the course of the review application would identify him as having changed his name and that the revelation of his original identity would expose him to a risk of violence at the hands of certain persons associated with a group of political extremists in his country of origin. It is apparent from the transcript of the proceedings that the applicant argued the s 35 matter himself and that Mr Levingston initially took no part. According to the transcript the argument began at 10.00 am. By page 12 of the transcript, that argument had concluded and the Tribunal announced its orders on the s 35 issue.
To a significant extent the applicant’s application was successful. As the final form of the orders the Tribunal made is confidential, I will not set them out here. However, I can record that the substance of the Tribunal’s orders was that:
(a)the former names of the applicant, as well as the complaint number allocated to the applicant’s matter by the Authority and the names of any complainants, were not to be published in the Tribunal’s final reasons;
(b)the written reasons and orders on the s 35 application were not to be published or disclosed other than to the parties and their legal representatives; and
(c)the Tribunal’s reasons on the substantive application would not be published or disclosed publicly for 30 days, within which time the parties could provide comments to the Tribunal on whether the reasons complied with the s 35 order.
I should note that during the course of the hearing I advised the parties that I would be assisted by being provided with a copy of the Tribunal’s s 35 orders and its reasons for decision in respect of the s 35 application, which had not been included in the appeal documents due to the non-disclosure order made by the Tribunal. In order to comply with this request, the parties obtained a variation order from the Tribunal which permitted the s 35 orders and reasons to be provided to my chambers for the purpose of the appeal.
I have considered the s 35 orders and the reasons given by the Tribunal for making those orders, which were received and marked into evidence as Exhibit 1 and Exhibit 2 respectively. As those exhibits remain subject to a non-publication direction made by the Tribunal and as their contents reveal the previous identities of the applicant, I am satisfied that it is necessary to prevent prejudice to the proper administration of justice and to protect the safety of the applicant that I make a non-publication order prohibiting the disclosure of the contents of Exhibits 1 and 2 other than to the parties and their legal representatives. This shall remain in force for 20 years, so that it endures while the applicant may continue to fear harm in his country of origin.
Having made the s 35 orders the Tribunal indicated that it would give reasons for them later. At that point the Tribunal then briefly adjourned. The time was 10:45 am. At 10:51 am it reconvened. By then the applicant was no longer present within the precincts of the Tribunal. In his place appeared Mr Levingston. He informed the Tribunal that the applicant was ‘on his way to the Federal Court to…lodge an application’ which Mr Levingston anticipated would be filed that day. He announced that his retainer was very limited and consisted solely of instructions to apply for an adjournment of the proceeding in the Tribunal.
The representative of the Authority opposed the adjournment and in due course the Tribunal refused the application. In considering the application, the following discussion took place between the Tribunal member and Mr Levingston (errors in the spelling of Mr Levingston’s name in the original):
Senior Member: Well, so isn’t this where we’re up to, Mr Livingston, that Mr Salomonn has just - and it’s entirely a decision of Mr Salomonn ---
Mr Livingston: Yes.
Senior Member: --- to appeal the decision of this tribunal. That’s uncontroversial. But he is not here. He’s left.
Mr Livingston: Yes. And he has withdrawn my instructions with respect to the conduct of the hearing. He says that my instructions are to ventilate the application for the adjournment. If it’s unsuccessful then I’m to cease to act in the matter.
Senior Member: All right. The adjournment – until such time as the Federal Court – this matter has been set down for some time. Until such time as the Federal Court advises the tribunal that it’s inappropriate to continue to hear the matter, it is my view that I will proceed to continue to hear the matter which has now been listed for some considerable period. What I would ask, and I note that, Mr Livingston, to some extent your hands are tied.
Mr Livingston: Yes.
Senior Member: That you’ve been instructed not to appear. What I would be grateful for is for you to advise Mr Salomonn by phone that the adjournment application will not be granted and we will be proceeding to – I will be proceeding to hear submissions from Mr Leerdam, and whoever else might be here, at 11.30. So he has 30 minutes to ---
Mr Livingston: Thank you, your Honour.
Senior Member: ---return or to review his decision in respect of instructions. And, as I have indicated, I will prepare some brief written reasons to supplement the reasons I gave on the transcript today in respect of the section 35 order.
The Tribunal then briefly adjourned (at 10:57 am) to allow Mr Levingston to contact the applicant to tell him the Tribunal would be proceeding with the matter whether he was present or not. The Tribunal reconvened at 11.35 am whereupon Mr Levingston informed the Tribunal that he had told the applicant that the matter was to proceed. At that point Mr Levingston withdrew. The Tribunal then proceeded to deal with the application for review on its merits.
In the draft notice of appeal accompanying the extension of time application, two breaches of the rules of procedural fairness are suggested: the decision to refuse the adjournment and the subsequent decision to decide the review application on its merits but in the absence of the applicant.
I do not think the former proposition has any substance. The applicant was represented at the adjournment application. There is nothing to indicate that he was not afforded an opportunity to be heard at that time. Indeed, Mr Levingston was able to make submissions on the applicant’s behalf as to why the adjournment should be permitted. There was no denial of procedural fairness in the Tribunal’s hearing of the adjournment application.
The real gist of the applicant’s argument focussed instead on the decision to dismiss the application on its merits in his or his representative’s absence. In essence there were three elements to the argument:
(a)by refusing the adjournment application the Tribunal denied the applicant the opportunity to put his case to it;
(b)the decision to refuse the adjournment was said to be irrational and/or so unreasonable that no reasonable decision matter could have reached it; and
(c)by refusing the adjournment the Tribunal had frustrated its own ability to carry out its statutory function under s 33(1) of the Act, which requires it to carry out ‘a proper consideration of the matters before the Tribunal’.
Matters (b) and (c) do not advance or hinder argument (a). In effect (b) and (c) disclose a fresh case of two distinct jurisdictional errors – Wednesbury unreasonableness and/or irrationality and a failure to conduct the core function of determining the application. I indicated to the applicant’s counsel during the course of the hearing that I was not disposed to entertain them as particulars to a case to which they appeared unrelated. The applicant then proposed a fresh draft notice of appeal articulating these claims more appropriately. In light of that procedural development it is useful to consider the grounds separately.
(i) Denial of procedural fairness
It is true that at the Tribunal’s hearing of the substantive matter the applicant did not, in fact, make submissions on his own behalf because he was not there and was not represented. There were three concurrent causes of this state of affairs:
(a)his decision to leave the hearing in order to attend the Federal Court to prepare and file an urgent application with respect to the s 35 orders which had been made by the Tribunal;
(b)his decision to instruct Mr Levingston to withdraw if his adjournment application was unsuccessful; and
(c)the Tribunal’s decision to proceed with the hearing after Mr Levingston withdrew.
There can be circumstances in which a failure to afford a party an adjournment will result in a denial of procedural fairness: see, for example, Sullivan v Department of Transport (1978) 1 ALD 383 at 403 per Deane J. The question is whether the affected person has been denied a reasonable opportunity to put his or her side of the story. The principle is not enlivened when a person is not heard from because she unreasonably elects not to participate in the hearing. In this regard, Mr Knowles of counsel, who appeared for the Authority, drew particular attention to this statement of Deane J in Sullivan at 403:
‘…In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.’
[emphasis in original]
In this case it is, therefore, necessary to examine whether the applicant received a reasonable opportunity to put his case.
This directs attention to the events surrounding the applicant’s departure from the hearing, and in particular, to the reasonableness of his actions.
The immediate concern which led the applicant to apply for the s 35 orders was that if he became linked to his former identify this would expose him to physical harm at the hands, in effect, of political opponents in his country of origin. He sought, therefore, the suppression of his former names. He also sought the suppression of his current name. The logic of this second aspect of his claim is dubious and, from the Authority’s perspective, contestable. It is dubious because the danger relied upon springs from drawing a link between the applicant’s previous identities and his current identity. There could be no danger, at least at first blush, if his current actual identity were published so long as it was not linked to his former ones. Indeed, the Authority’s decision referred to the applicant by his former name, not his present one. Regardless, the applicant advanced reasons for why his current name should also be suppressed.
The nature of those reasons, if published in this judgment, would undermine the Tribunal’s original s 35 orders, for they would tend to link the applicant’s present name with his former identity. For that reason I will direct that the following two paragraphs of these reasons (in which the point is explained) be not published other than to the parties and that they in turn not publish them to any other person. This direction will remain in place for 20 years. I am satisfied that the political situation in the applicant’s country of origin is very likely to expose him to the risk of which he complains for some time and that a non-publication order of this extensive duration is necessary. The publicly available version of these reasons will simply record the following two paragraphs as being the subject of a non-publication order which will remain in place until 17 April 2034. The order is necessary to protect the safety of the applicant from acts of political persecution, potentially of a physical kind.
[This paragraph is subject to a non-publication order which will remain in place until 17 April 2034]
[This paragraph is subject to a non-publication order which will remain in place until 17 April 2034]
The Tribunal was not persuaded that this provided a good reason to suppress his current identity. At the end of the argument the Tribunal indicated that:
(a)it would not refer to his former names in its substantive reasons for decision;
(b)it would, however, do so in its reasons on the s 35 application;
(c)the reasons for the s 35 orders would be subject to a non-publication order; and
(d)the reasons for the ultimate determination of the applicant’s review application would be subject to a 30 day non-publication order in order to allow any concerns to be the subject of a separate application.
One matter that is at once obvious about these orders is that the applicant was provided with immediate protection. When the Tribunal resumed its hearing the applicant was practically and substantively protected from the consequences of the Tribunal’s refusal to suppress his actual name because even if he wished to challenge that decision any such challenge could be made after the hearing. The stipulation that the Tribunal’s substantive reasons would not be published publicly for 30 days until after they were provided to the parties was evidently designed to ensure that this issue was dealt with in an orderly fashion and specifically so that the hearing upon which the Tribunal was about to embark was not disturbed by the need to obtain urgent relief in this Court.
The nature of these orders was announced by the Tribunal and their effect made quite clear at the hearing. There was no uncertainty about what the Tribunal was going to do. It was at this point that the applicant decided that he urgently needed to make an application to the Federal Court to protect himself from the consequences of the Tribunal’s refusal to suppress his actual name and to instruct Mr Levingston to apply for an adjournment and, if unsuccessful, to withdraw.
In my opinion, this was irrational behaviour. The expressed concerns of the applicant were in every way protected for 30 days at the very least (assuming the matter was decided ex tempore). No urgent relief in this Court was needed. Absenting himself from the hearing and instructing Mr Levingston to withdraw if he did not secure the adjournment was an act of folly. Nor do I accept that as at 18 February 2013 this behaviour might be seen as a function of his various mental conditions. As I have already noted, as at 18 February 2013, the applicant was sufficiently well to suggest that he should not be removed from the register. His descent from that improved position only occurred later after he received word of his relative’s death on or around 10 March 2013.
Although I accept that in the events which occurred the applicant did not get to put his case, the author of that misfortune was the applicant and not the Tribunal.
The case based upon a denial of procedural fairness fails. Procedural unfairness was visited upon the applicant but only by himself.
(ii) Wednesbury unreasonableness
The Tribunal gave two sets of reasons for refusing the adjournment. The first was the very brief set of oral reasons announced at the time of refusal and set out above at paragraph 22. At the hearing before me, Mr Afshar, of counsel, who appeared for the applicant submitted that there were only two reasons advanced by the Tribunal at the hearing, namely that:
(a)the Tribunal would continue to hear the case until the Federal Court told it not to; and
(b)the matter had been listed for some time.
In its written reasons of 19 March 2013 the Tribunal also gave these reasons for refusing the adjournment:
4.Mr Salomonn’s application for review of the cancellation decision was listed for a two day hearing. On the morning on the first day of that hearing, Mr Salomonn’s application for confidentiality orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) was determined. Confidentiality orders were made but not in the form sought by Mr Salomonn, who, among other things, sought an order suppressing the publication of his name.
5.Dissatisfied with that decision, Mr Salomonn announced that he intended to lodge an appeal with the Federal Court and left the hearing. His solicitor requested an adjournment until such time as the foreshadowed appeal was determined. The Authority opposed that application pointing out that the initiating application had been lodged in May 2012; the matter had been the subject of a number of interlocutory hearings and significant cost had already been incurred.
6.The application for an adjournment was refused. Mr Salomonn’s solicitor was requested to notify Mr Salomonn of that decision and also that the hearing would recommence in 30 minutes. When the hearing reconvened the solicitor advised that as requested, he had notified Mr Salomonn that the adjournment application had been refused. The solicitor also announced that his instructions had been withdrawn and he would no longer be appearing in the matter.
7. The hearing proceeded in the absence of Mr Salomonn.
It was submitted that the last sentence following the semicolon in paragraph 5 was not correct and that the Authority had submitted no such thing. It was submitted that the refusal in [6] should be understood as having been given for the reasons in [5]. The applicant then launched an attack on the reasonableness of the Tribunal’s decision by reference to:
(a)matters which were referred to in the reasons but which were said to be erroneous; and
(b)matters which were not referred to in the reasons and which it was submitted had not been taken into account.
There was some debate between the parties as to whether some or any of these points were available on a Wednesbury review. In short the issue is whether Wednesbury review is limited to a consideration of the objective reasonableness of a decision in light of known circumstances or whether the actual reasoning used by a decision maker can render a decision unreasonable. The answer to that question is probably a ‘yes’ to the latter. The conclusion is supported by the joint judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131] in relation to allegations of irrationality and that judgment was cited with approval by a majority in the Full Court’s decision in Tisdall v Webber (2011) 193 FCR 260 at [126]-[128] per Buchanan J (Tracey J agreeing). In the recent decision of Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, the Full Court also stated that the Court was permitted to follow the reasoning process of a decision maker when considering the reasonableness of a decision (at [45]). Of course, this debate has little relevance where the decision maker gives no reasons: cf Singh at [45].
Under s 43(2) of the Act the Tribunal is obliged to give reasons for its decision. Further, pursuant to subsection 43(2B), where the Tribunal gives reasons in writing for its decision, those reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. It is clear from the surrounding statutory context that the reference in s 43(2) to the Tribunal’s decision is to its substantive decision on the review application and is not a reference to any other ancillary decisions, such as those resolving interlocutory applications.
Because s 43(2) requires the Tribunal to state the reasons for its decision and because ordinarily one would assume that the Tribunal had complied with its legal duty under that provision, it follows that if a reason does not appear in the reasons given pursuant to s 43(2) it may be inferred that the absent reason was not one of the Tribunal’s reasons for reaching the decision: cf. the analogous reasoning in Minster for Immigration and Multicultural v Yusuf (2001) 206 CLR 323 at [35] per Gleeson CJ and Soliman v University of Technology, Sydney (2012) 207 FCR 277 at [53]-[55].
Where, on the other hand, decisions of the Tribunal are made which are not decisions within the meaning of s 43(2), the matter is governed by the common law position enunciated in Public Service Board (NSW) v Osmond (1986) 159 CLR 656 that there is no general duty to provide reasons for an administrative decision. One cannot infer in such a case, therefore, that the absence of a given reason from a written decision necessarily implies that the reason was not contemplated by the decision maker. One may be able to draw that inference but one is not bound to do so.
I accept that none of the following are referred to in the transcript or the short reasons:
(a)the effect that a refusal of the adjournment would have on the applicant;
(b)the date when the matter had been set down for hearing;
(c)the relevance to the adjournment application of the fact that the matter had been set down for a hearing;
(d)the applicant’s concern about disclosure of his name; and
(e)the fact that the Tribunal was exercising a discretionary power.
Equally, I also have no doubt that each of these matters was in fact considered by the Tribunal. Given the way the hearing had played out to that point each of these matters could not have been disregarded by the Tribunal. I do not accept, therefore, that these matters were not considered by it. No occasion arises, therefore, to consider whether it was irrational or unreasonable of the Tribunal not to consider these matters, because it did consider them.
The applicant submitted that there were a number of other aspects of the reasoning of the Tribunal which were wrong in the requisite sense. I am prepared to assume in the applicant’s favour that reasoning of the kind contemplated in SZMDS is available. This does not assist him, however, because none of the matters put forward by him exhibits the requisite degree of irrationality or unreasonableness whether on an SZMDS or Wednesbury basis (or in the sense outlined by the High Court in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225).
The applicant’s first argument was that neither the Tribunal nor the Authority had criticised the length of time it had taken for the matter to come on for a hearing and had not suggested that the applicant was responsible for the delay. The irrationality to which this was said to give rise related to the Tribunal’s remark that the matter had been set down for some time. The point was that it made no sense for the Tribunal to say that the matter had been set down for some time as a reason for refusing the adjournment if it did not also suggest that the length of time this had taken was excessive or that the applicant was in some way responsible for the delay.
I detect no want of reason. Assuming in the applicant’s favour that the statement to that effect at [5] in the Tribunal’s reasons was part of its reasoning process and not a recitation of the Authority’s submissions, there is nothing irrational about observing that the case had been set down for some time. The length of time a case has been pending is relevant to, but not dispositive of, the question of whether a matter should be adjourned.
The second argument was that the Tribunal had not explained why the hearing had to be conducted that very day. The short answer is that there was no rational reason not to do so. It would not be conducive to the orderly administration of the Tribunal’s business if it were required to adjourn whenever an applicant, for quite misguided reasons, decided to absent himself or herself from the hearing.
The third argument was that it was unreasonable for the Tribunal to state that it would continue to hear the case unless this Court stopped it. I do not think this was a matter taken into account by the Tribunal. It was merely a statement that the adjournment application had been refused and that it proposed to continue to hear the case.
The fourth argument was that it was unreasonable for the Tribunal to have had regard to costs which had been incurred at all when the Authority had made no such submission about costs. I do not accept this. Whether the submission was made or not, it was reasonable for the Tribunal to have regard to the fact that costs had been incurred in the proceedings to date. Contrary to the submissions of the applicant, this was not like a proceeding in the Refugee Review Tribunal where there is no opponent and costs may have less significance. This was a contested fitness proceeding between opposing parties. Further, before the substantive hearing, the matter had been listed on eight separate occasions and the Authority had appeared on six occasions. That public funds were being leached away in this process on the Authority’s behalf cannot seriously be doubted.
The fifth argument was that the Tribunal had acted unreasonably when it said there had been many interlocutory hearings. This argument has no substance. There were six separate directions hearings before the substantive hearing on 18 February 2013. This was relevant to its decision.
The sixth argument was that the Tribunal placed excessive weight on the prejudice to the Authority and not enough on the prejudice to the applicant. The prejudice to the applicant was, however, entirely self-inflicted and misguided. In that circumstance, the prejudice to the Authority was a significant consideration.
(iii) Performance of core function
Finally the applicant relied upon the Federal Court’s decision in Minister for Immigration and Citizenship v Li (2012) 202 FCR 387 at [29] for the proposition that an unreasonably refused adjournment may prevent a Tribunal from discharging its core function of hearing an application on its merits. This reasoning was upheld by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [85]. No separate contentions were ventilated under this rubric than under the Wednesbury and procedural fairness grounds. In light of my earlier conclusion that the Tribunal’s actions in refusing the adjournment were entirely rational, this allegation must fail on the facts.
(d) Prejudice to the first respondent
It was not suggested that the first respondent would be prejudiced if the extension of time were granted.
Disposition of extension of time application
In light of the satisfactory explanation for the applicant’s delay in appealing and the non-trivial nature of the proposed appeal I would extend the time to permit the appeal to be brought.
2. Appeal
For the reasons given above the appeal should be dismissed with costs.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 17 April 2014
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