Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 58
•1 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 58
File number: MLG 1342 of 2019 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 1 February 2024 Catchwords: MIGRATION – delegate refused to grant a partner visa – application for judicial review of the decision of the Administrative Appeals Tribunal to dismiss an application for non appearance – applicant sought reinstatement –whether the Tribunal acted unreasonably or denied the applicant procedural fairness – no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 360, 360A, 362B and 362C
Migration Regulations 1994 (Cth) cl 830.221
Cases cited: AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383;(2015) 244 FCR 144
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submissions: 29 January 2024 Date of hearing: 29 January 2024 Place: Melbourne The Applicant: Appearing in person Solicitor for the First Respondent: Sparke Helmore The Second Respondent: Submitting an appearance save as to costs ORDERS
MLG 1342 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KARANVEER SINGH
Applicant
AND: MINISTER FOR IMMIRGATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
1 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application filed 3 May 2019 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed in this Court on 3 May 2019 (Application), the Applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (Tribunal), pursuant to s 476(1) of the Migration Act 1958 (Cth) (Migration Act).
On 29 March 2019 the Tribunal confirmed its decision dated 7 March 2019 to dismiss the Applicant’s application for non-appearance pursuant to s 362B(1A)(b) of the Migration Act (ConfirmationDecision).
This matter was heard on 29 January 2024 and proceeded in person at the Melbourne Registry of the Court (Hearing). At the conclusion of the Hearing Judgment was reserved. These Reasons for Judgment are in relation to the Hearing.
ISSUES IN DISPUTE
The issues in dispute are whether in the Tribunal’s exercise of power pursuant to s 362B of the Migration Act:
(a)The Applicant was denied procedural fairness; and or alternatively
(b)The Tribunal acted unreasonably.
SYNPOSIS
I have determined that no jurisdictional error can be found in the Tribunal’s exercise of power and the Confirmation Decision was made in accordance with law.
BACKGROUND
The Court has before it a Court Book of 211 paginated pages, filed by the Minister on 22 September 2021 (Court Book). The Minister’s Written Submissions, filed on 22 January 2024 (Minister’s Submissions) accurately summarise the background to this matter at [3] to [14]. The Court adopts these submissions as its own with some amendments as follows.
On 17 May 2016 the Applicant applied for a Partner (Temporary) (Class UK) (Subclass 820) visa (Visa) on the basis of the relationship with his spouse, who was an Australian Citizen, (Sponsor).[1]
[1] Court Book (CB) 1-77.
On 21 June 2018 the Department of Home Affairs (Department) sought further evidence from the Applicant as “information provided to the Department indicates that the spousal or de facto relationship upon which your application was based has ceased”(21 June 2018 Invitation).[2]
[2] CB 98-100.
On 11 July 2018 the Applicant provided the Department with a statement and attached further evidence in response to the 21 June 2018 Invitation regarding the cessation of his relationship with the Sponsor (11 July 2018 Letter).[3]
[3] CB 101-114.
On 15 August 2018 a delegate (Delegate) of the First Respondent (Minister) refused to grant the Visa (Delegate’s Decision).[4] The Delegate found that the spousal relationship with the Sponsor had ceased and therefore was not satisfied that the Applicant was the spouse of a person who meets the relevant criteria for the grant of the Visa as required by cl 830.221 of the MigrationRegulations 1994 (Cth) (Regulations).
[4] CB 115-121.
On 1 September 2018 the Applicant applied for review of the Delegate’s Decision before the Tribunal (Review Application).[5] The Applicant attached a statement of claim addressing the Delegate’s Decision to the Review Application.
[5] CB 162-166.
On 3 December 2018 the Tribunal wrote to the Applicant pursuant to s 359A of the Migration Act inviting him to comment on or respond to information and provide information about his relationship with the Sponsor (Invitation to Comment).[6] The Invitation to Comment informed the Applicant of the following:
The particulars of the information are:
[...]You have made an application for a Partner visa. It is a requirement for the grant of that visa that at the time when the application is made, and at the time of the decision, you are the spouse or de facto partner of the sponsoring partner, unless one of the exceptions applies.
[…] Information on the Department’s file indicates that your relationship with the sponsoring partner has ended and that the sponsoring partner has withdrawn the sponsorship.
This information is relevant because the Tribunal may conclude that at the time of this decision, you are no longer the spouse or de facto partner of the sponsor. If the Tribunal is not satisfied that you are the spouse or de facto partner of the sponsor, and if you do not meet any of the alternative criteria for the grant of the visa, the Tribunal may conclude that you do not meet the requirements for the grant of the visa for which you have applied. The Tribunal may then affirm the decision under review.
[6] CB 171-173.
On 17 December 2018 the Applicant provided a written response dated 16 December 2018 to the Tribunal and claimed that he was a victim of domestic abuse (Written Response).[7] The Applicant attached two medical certificates from a doctor in support of his claim to the Written Response.
[7] CB 174-177.
On 11 February 2019 the Tribunal invited the Applicant (Hearing Invitation) to attend a hearing before it on 7 March 2019 (Tribunal Hearing). [8] The Tribunal noted the following in the Hearing Invitation:
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. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
[8] CB 178-180.
The Dismissal Decision
On 5 March 2019 the Applicant informed the Tribunal by email that he could not attend the Tribunal Hearing because “i am currently suffering from severe stress and depression. I cannot attend and give evidence due to my situation and i am not mentally ready to attend AAT hearing on 7/03/2019” (Adjournment Request).[9] The Applicant attached a medical certificate dated 4 March 2019 in support of his Adjournment Request, which stated:
[the Applicant] feels very stressed & feels depressed due to his Father in Law not allowing him to contact his wife. His Father in Law has told him that his daughter has divorced him, but he has not got any documents relating to that. When he contacted Victorian registry of birth, marriage and death registry to find out it is true he was told there is no record of it. When he requested a copy of divorce certificate from his Father in Law he was told that he had put all documents in rubbish. Due to this scenario Mr Karanveer Singh is going through a lot of mental stress and anxiety and is not able to present himself on any sort of forum.
(As written)
[9] CB 181-182.
On 5 March 2019, after the Adjournment Request had been received, an Officer of the Tribunal called the Applicant to inform him that he would need to provide a timeframe for the Tribunal Hearing to be rescheduled by 6 March 2019, and that if no information was sent or the Tribunal Member did not agree to the postponement, he was still required to attend the Tribunal Hearing (5 March 2019 Telephone Conversation).[10] The Applicant advised that he did not know or was unsure as to when the Tribunal Hearing should be postponed to. The Applicant also advised that he did not consent to a decision being made on the papers. The Tribunal did not receive any information from the Applicant as requested.
[10] CB 186.
On 6 March 2019 the Tribunal informed the Applicant that the Tribunal had considered the request for postponement but decided not to postpone the Tribunal Hearing.[11]
[11] CB 183-185.
On 7 March 2019 the Applicant did not appear before the Tribunal at the Tribunal Hearing to give evidence and present arguments.[12]
[12] CB 187-190.
On 8 March 2019 the Tribunal informed the Applicant that on 7 March 2019 the Tribunal dismissed the Review Application without further consideration or information pursuant to s 362B(1A)(b) of the Migration Act, as the Applicant failed to appear before the Tribunal (Dismissal Decision).[13]
[13] CB 191-196.
The Dismissal Decision is at pages 194 to 195 of the Court Book. The Tribunal recorded the background events of the matter. The Tribunal then outlined its consideration of the Adjournment Request. The Tribunal was satisfied that the Applicant was properly invited to a hearing in accordance with s 379A(5) of the Migration Act and that no satisfactory reason for the non-appearance had been given.
The Confirmation Decision
On 20 March 2019 the Applicant sent the following email to the Tribunal (Reinstatement Application):[14]
I am writing to apologize for not apperaing my court hearing on 7th March 2019 because of my ongoing mental health issues. I have been seeking help from medical personnel and I have been undergoing continous assessment to deal underlying stress issues. I hardly manage myself to perform routine duties while battling with current situation since June 2018. My health practitioner belived that I will need more time and help to overcome family issues which is the main cause of my deteriorating mental health. Due to this reason , its beyond my control to even focus on more important task which resulted in absent from court hearing. My current non stable mental health does not make me confident to answer any legal proceedings.
I would like to make a request here considering my ongoing mental issues , if you could please allow me atleast 6-8 months time for next court hearing. I hope I will be more organized in due time. I apologize again for failing to attend the court hearing this time and believe you will consider my request in this regard.
(As written)
[14] CB 196.
On 21 March 2019, in response to the Reinstatement Application, an Officer of the Tribunal attempted to contact the Applicant twice by telephone.[15] The Tribunal sent an email to the Applicant later that day and requested copies of any and all documentary evidence corroborating his claims relating to medical personnel and continuous assessment to deal with underlying stress issues. The Tribunal requested that the Applicant provide the information by 28 March 2019.[16]
[15] CB 186.
[16] CB 197.
On 28 March 2019 the Applicant submitted medical evidence and informed the Tribunal of the following:[17]
I am writing to provide you with documentary evidence as per your request made on 21st March, 2019. Please find attached the most recent documents as evidence that I have been seeing my General Practitioner from a while now. He also referred me to a Physiologist (CHANTAL SANTACATERINA) considering my ongoing mental health conditions. I have been on prescribed medications and under psychological assessment by CHANTAL SANTACATERINA. I have attached certificate from GP along with tax invoices and medications prescribed by the Physiologist to deal with stress conditions. Physiologist advised that my case requires more sessions to deal with my medical and mental issues. She is happy to be contacted regarding my case if needed at later stages.
(As written)
[17] CB 198-205.
On 1 April 2019 the Tribunal wrote to the Applicant informing him that on 29 March 2019 the Tribunal confirmed its decision to dismiss the Review Application in the Confirmation Decision.[18]
[18] CB 206-211.
The Confirmation Decision is at pages 208 to 211 of the Court Book.
The Tribunal recorded that: on 7 March 2019 it dismissed Review Application under s 362B(1A)(b) of the Migration Act as the Applicant did not appear at the Tribunal Hearing; and that the Applicant was notified of the dismissal and given a copy of the Dismissal Decision in accordance with s 362C(5) of the Migration Act.
The Tribunal outlined the relevant background events relating to the Reinstatement Application and outlined all the evidence submitted by the Applicant.
The Tribunal did not consider it appropriate to reinstate the Review Application. The Tribunal found that the evidence did not support the Applicant’s claim that his mental health caused him to lose focus on important tasks which resulted in his absence from the Tribunal Hearing.
Firstly, the Tribunal found that there was no detailed medical or psychological evidence as to the Applicant’s mental health status which justified a postponement of a hearing for six (6) to eight (8) months. The tax invoices did not provide any detail as to the reason(s) for the Applicant’s appointments with his general practitioner and psychologist. The three (3) medical certificates from the general practitioner provided limited detail. The Tribunal was concerned with the medical certificate dated 11 September 2018 as it refers to treatment due to “current” personal marital status but the evidence before the Tribunal was that the relationship had broken down. Combined with evidence from the Department that the relationship with the Sponsor had ceased, the Tribunal questioned whether the Applicant was completely truthful when giving his explanation to the medical practitioner.
Secondly, the Tribunal determined that the evidence suggested that the Applicant was able to undertake action in order to meet important tasks. The Tribunal used the example of the Applicant seeking and providing further evidence as requested by the Tribunal and in accordance with the Tribunal’s deadlines.
The Tribunal confirmed its decision to dismiss the Review Application and affirmed the Delegate’s Decision.
PROCEEDINGS BEFORE THE COURT
The Application was filed in the (then) Federal Circuit Court on 3 May 2019, within 35 days of the date of the Confirmation Decision pursuant to s 477 of the Migration Act. At the time the Application was filed the Applicant was represented by Ravi James Lawyers (Applicant’s Solicitors).
On 8 September 2021 and 1 December 2023 Orders were made for the filing of trial materials. The Applicant did not file any material in accordance with these orders.
On 6 December 2023 the Applicant’s Solicitors filed a Notice of Withdrawal of Lawyer stating that “the client has requested us not to appear for him in his judicial review matter”.[19]
[19] Notice of Withdrawal of Lawyer, filed 6 December 2023, [3(a)].
The Hearing was held on 29 January 2024 and proceeded in person at the Melbourne Registry of the Court. The Applicant appeared in person and a Solicitor for the Minister appeared for the Minister. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court. At the conclusion of the Hearing Judgment was reserved.
The Applicant relied upon the following documents at the Hearing:
(a)The Application; and
(b)The Affidavit of Shaima Mohamed Faiq, Solicitor, sworn and filed 3 May 2019.
The Minister relied upon the following documents at the Hearing:
(a)The Response, filed 27 May 2019;
(b)The Minister’s Submissions;
(c)The Affidavit of Service of Madlin Richardson, Solicitor, affirmed and filed 22 January 2024; and
(d)The Minister’s List of Authorities, filed 25 January 2024.
The Applicant relied on two (2) grounds of review in the Application (Grounds of Review):
1.The Second Respondent, constructively, failed to review the First Respondent’s decision by denial of procedural fairness in its failure to raise the critical matters with the applicant, but acted arbitrarily on its assumption. (Ground One)
Particulars
i.On 7 March 2019 the Second Respondent dismissed the application under sec 362B(1A)(b) of the act, as the applicant did not appear before it to give evidence and present arguments.
ii.The applicant did not appear due to stress, in the relationship since June 2018, and the resulting mental illness by which he was disoriented about his day to day affairs, and was under medical attention.
2.The decision of the Second Respondent is unlawful, by jurisdictional error, in that it acted unreasonably, in the exercise of its functions or alternatively, constructively did not exercise is jurisdictional by failing to exercise it or failing to consider to get new information from the applicant before making the decision. (Ground Two)
Particulars
i.The applicant applied for a reinstatement of the application within 14 days after receiving the notice of decisions dated 7 March 2019.
ii.The applicant on 20 March 2019 advised the Second Respondent that he has been undergoing continuous medical assessment to deal with the underlying stress issues and hardly manages himself to perform routine duties.
iii.The applicant sought to defer the hearing by 6-8 months.
iv.On 21 March 2019, the applicant was requested to provide copies of any and all documentary evidence corroborating his claims to have received help from medical personnel.
v.On 28 March 2019 the applicant provided such evidence comprising his interactions with medical personnel and prescriptions given by them to his conditions.
vi.The Second Respondent did not have any further contact with the applicant and decided it was not appropriate to reinstate the application.
vii.The Second Respondent held that the evidence submitted by the applicant does not support his mental health issues.
viii.The Second Respondent said the documents did not provide ay detail for the applicant’s attendance on doctors.
ix.The Second Respondent stated that from evidence, from the First Respondent’s decision it appeared that on 9 January 2018, the department was advised of the cessation of the spousal relationship and therefore the applicant’s claim that the stress is due to “current marital status” is of concern doubting the medical evidence or is medical condition.
x.The Second Respondent failed to consider in balance, the applicant’s letter to the First Respondent on 11 July 2018, about his concerns on the duplicity of the spouse and his own knowledge of his status until that time.
xi.The Second Respondent failed to provide an opportunity to respond to the concerns it had and the applicant was not told that the evidence he submitted are in issue and why or how it was an issue in supporting his mental illness arising from the marital issue.
xii.The Second Respondent expected the applicant to provide written corroborative documents, beyond the evidence of interaction with medical professional, for the claim to be credible but did not advert this to the applicant or raise this when it had concerns with the documents.
xiii.The applicant failed to appreciate the impact of the mental illness on the applicant, which affected his day to day routine and behaviour and substituted its own views over the medical evidence submitted.
(Words in bold and in italics added. Otherwise as written)
RELEVANT LEGISLATION
The Grounds of Review take issue with the Tribunal’s exercise of its power under s 362B of the Migration Act, which gives the Tribunal power to dismiss an application for non-appearance. Section 362B provides as follows:
362B Failure of applicant to appear before Tribunal
Scope
(1)This section applies if the applicant:
(a)is invited under section 360 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B)If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.
Note:Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C)On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a)if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or
(b)confirm the decision to dismiss the application, by written statement under section 368.
Note 1:Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2:Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b)the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E)If the applicant fails to apply for reinstatement within the 14‑day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.
Note:Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F)If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G)To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
CONSIDERATION
At the Hearing the Applicant did not make any submissions which relevantly addressed the Grounds of Review. The Applicant said that he did not attend the Tribunal Hearing because of his mental state and the deterioration in his relationship.[20] The Applicant further said that he required medical assistance for his mental health, has been unemployed and could not afford legal representation, and had evidence to support his mental state.[21] The Applicant stated “I only requested [the Tribunal] to just give me another four to five months to mentally prepare for the hearing and to come with my evidence and come confidently present myself in the court”.[22] The Applicant’s submission that he was unable to provide ‘proper’ documentation to the Tribunal but can provide the evidence now[23] cannot be taken into account given this Court’s jurisdiction to undertake judicial review.
[20] Transcript P3:L15-17 and P7:L37-P8:L16.
[21] Transcript P3:L27; P7:L37-P8:L16 and P8:L28-29.
[22] Transcript P8:L11-13.
[23] Transcript P3:L15-29.
Ground One
Ground One contends that the Tribunal did not comply with procedural fairness obligations. The particulars of Ground One recite background events to the Confirmation Decision.
The Minister submitted that the Tribunal did comply with its procedural fairness obligations under ss 360 and 360A of the Migration Act. The Minister submitted that the Tribunal had no power to vary or revoke the Dismissal Decision after the day and time the written statement was made: s 362C(4).
As submitted by the Minister,[24] the Tribunal invited the Applicant to appear before it pursuant to s 360 and complied with the relevant legislative requirements for inviting applicants to a hearing. I am satisfied that the Hearing Invitation complied with the requirements set out in s 360A as it:
(a)Provided the Applicant with notice of the day, time and place of the Tribunal Hearing: s 360A(1);
(b)Was transmitted by email to the nominated email address provided by the Applicant: ss 360A(2) and 379A(5);
(c)Complied with the prescribed notice period: s 360A(4) and r 4.21 of the Regulations; and
(d)Contained a statement to the effect of s 362B, in that it explained the consequences of the Applicant failing to attend the hearing: s 360A(5).
[24] Minister’s Submissions, filed 22 January 2024 (Minister’s Submissions), [27].
Importantly, the Hearing Invitation put the Applicant on notice of the following:[25]
[…]
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. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
We request that any additional documents or information that you may wish to rely on during the hearing be provided to us by 28 January 2019.
[…]
[25] CB 179-180.
Given the Hearing Invitation was made pursuant to legislative requirements, the Tribunal's power to proceed to dismiss the application under s 362B(1A)(b) was enlivened. The Applicant failed to appear before the Tribunal and did not provide further information to the Tribunal. Therefore, the Tribunal validly exercised its power to dismiss the application.
Further, it is apparent on the evidence that the Tribunal complied with obligations under ss 362B and 362C as it provided written reasons for its decision to dismiss the Review Application for non-appearance. The reasons for the Dismissal Decision were sent to the Applicant’s nominated email address on 6 March 2019 and the reasons for the Confirmation Decision were sent to the Applicant’s nominated email address on 8 March 2019.[26] The Tribunal also sent the Applicant a statement describing the effect of ss 362B(1B) to (1F), in accordance with the requirements in ss 379A(5), 362C(5), and 362C(6) of the Migration Act.
[26] CB 183 and 192.
Ground One fails to establish jurisdictional error.
Ground Two
Ground Two contends that the Tribunal acted unreasonably in its deciding not to reinstate the Review Application pursuant to ss 362B(1B) and (1C) and/or alternatively failed to consider information from the Applicant. Particulars (i) to (ix) of Ground Two outline the background events to and summarise the Tribunal’s reasoning in the Confirmation Decision. Particulars (x) to (xii) described the alleged “failures” of the Tribunal.
The Minister submitted that it is well-established that the Tribunal’s discretion under s 362B must be exercised reasonably: AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383; (2015) 244 FCR 144; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30. The threshold of legal unreasonableness is not easily met and the Court cannot undertake imperssible merits review where applicants take issue with the findings of the Tribunal.
The Minister submitted that in the circumstances, it was open and reasonable for the Tribunal to conclude that no satisfactory reason for the Applicant’s non-appearance at the Tribunal Hearing had been given, and it could not be said that no logical decision maker could not have drawn the same conclusion.[27] The Minister contends that the Tribunal had regard to several factors including: the Adjournment Request; the Applicant’s medical evidence; the fact the Applicant had been put on notice that the Tribunal requested further information; the 5 March 2019 Telephone Conversation; the Applicant’s failure to provide further information; and the Applicant’s confirmation that he understood that if the Tribunal did not postpone the Tribunal Hearing then he was required to attend.
[27] Minister’s Submissions, [32].
The Tribunal took the following into account when considering the Reinstatement Application:
(a)The Applicant’s Adjournment Request and attached evidence. The Tribunal found that the Applicant was unclear with respect to the time period of the Applicant’s inability to attend a hearing and the nature of his condition;
(b)The 5 March 2019 Telephone Conversation where the Applicant was put on notice that the Tribunal Hearing would proceed without further information from him, which he understood;
(c)The Applicant failed to provided information as requested in relation to the Adjournment Request; and
(d)The Tribunal’s email to the Applicant on 6 March 2019 which confirmed that the Tribunal had decided to not grant the Adjournment Request and that the Tribunal Hearing would proceed.
I am satisfied that the Confirmation Decision was open to the Tribunal and a reasonable decision for the Tribunal in the circumstances: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [16].
Notably, the Tribunal considered the Applicant’s medical evidence, Adjournment Request and response to the Hearing Invitation. At [7] and [8] of the Confirmation Decision the Tribunal outlined the evidence before it.[28] At [9] of the Confirmation Decision the Tribunal concludes that:[29]
9.The Tribunal does not consider reinstatement to be appropriate in this case. The applicant has requested that the matter be re-instated because his mental health has caused him to lose his focus on important tasks before him which resulted in his absence from the hearing. However, the evidence submitted does not support this claim.
[28] CB 209-210.
[29] CB 210.
The Tribunal explained its assessment of the evidence at [10] and [11] of the Confirmation Decision. The Tribunal was not satisfied that the evidence supported the Applicant’s mental health claims. The Tribunal determined that the evidence conflicted with other information provided by the Applicant and did not support the assertions that he could not attend the Tribunal Hearing because of his mental health. I am satisfied that this assessment of the evidence and findings are rational and logical. It was open and reasonable for the Tribunal to conclude that the Applicant’s mental health did not prevent him from attending the Tribunal Hearing and therefore it was not appropriate to reinstate the Review Application.
I accept the Minister’s submissions that to the extent the Applicant complains the Tribunal failed to put him on notice of the concerns with his medical evidence, this ground cannot succeed.[30] The Tribunal communicated to the Applicant that it required further information for consideration of the Adjournment Request and communicated its concerns with the evidence before it in the reasons for the Dismissal Decision, which was received by the Applicant prior to the Confirmation Decision. I also note that pursuant to s 362B(1A)(b) the Tribunal was entitled to dismiss the Review Application without any further consideration of the application or information before it.
[30] Minister’s Submissions, [33].
As submitted by the Minister,[31] no jurisdictional error arises from the Tribunal’s failure to consider the 11 July 2018 Letter to the Department as the Tribunal was not required to do so in circumstances where it dismissed the application under s 362B(1A)(b) of the Act without any further consideration of the application or the information before it.
[31] Minister’s Submissions, [34]
Ground Two fails to establish jurisdictional error.
CONCLUSION
The Application fails to establish jurisdictional error in the Confirmation Decision. The Application must be dismissed.
The Minister sought costs fixed in the amount of $5,000.[32] This amount is significantly below the scale costs provided for in Item 3 of Division 1 of Part 2, Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
[32] Minister’s Submissions, ‘Orders sought’, [3].
Orders will be made accordingly.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 1 February 2024
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