Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 941
•26 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 941
File number: PEG 90 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 26 October 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal acted unreasonably in determining that the medical certificate provided by the applicant was insufficient to warrant reinstating the applicant’s review application – no jurisdictional error – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth), ss 362B, 362C, 476
Federal Court Rules 2011 (Cth)
Migration Regulations 1994 (Cth), cl 500.212 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NAKX v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1559
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 100 Date of hearing: 11 October 2023 Place: Perth Applicant: Applicant appeared in person (via video link) Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 90 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARSIMRAN SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
26 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application (as amended on 11 October 2023) be dismissed.
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 KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 14-16 & 36-39). He first arrived in Australia in November 2016. He was granted a student visa on 10 May 2019. That visa was valid until 15 March 2021 (CB 92).
On 12 March 2021, the applicant applied for the Student (Temporary) (Class TU) (Subclass 500) visa the subject of this review (the “visa”) (CB 13-31). In that visa application, the applicant provided details of a registered migration agent that he had appointed as his authorised representative (the “first representative”) (CB 17-18 & 32-34). The applicant also provided a number of supporting documents with that visa application (CB 32-87).
On 30 June 2021, the Department of Home Affairs (the “Department”) invited the applicant (through his first representative) to comment on adverse information (CB 91-96). That invitation letter relevantly provided as follows (CB 92):
The Department has consulted the Provider Registration and International Student Management System (PRISMS) to verify your study history in Australia. The findings in PRISMS raises serious concerns regarding your potential circumstances in Australia and the value of the courses to your future and consequently your genuine intentions in Australia.
The applicant was given 28 days to respond to the Department’s invitation (CB 94).
On 20 July 2021, the applicant provided a response to the invitation letter (CB 97-98).
On 25 February 2022, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 104-110) on the basis that he did not meet cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth). Specifically, the delegate was not satisfied that the applicant “genuinely intended to stay in Australia temporarily” (CB 110).
On 4 March 2022, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 111-118). In that review application, the applicant provided details of another registered migration agent as his representative (the “second representative”) (CB 115).
On 25 November 2022, the Tribunal invited the applicant (through his second representative) to provide information confirming his enrolment in a registered course of study and addressing the genuine temporary entrant criterion (CB 126-134). The applicant was provided with a link to access the relevant form to provide the Tribunal with that information (CB 128).
The applicant provided a response to that invitation using the form provided by the Tribunal (CB 139-147).
On 9 December 2022, the applicant’s second representative provided the Tribunal with a completed “Change of Contact Details” form (CB 148-151). In that form, the applicant provided his own email address and asked that all future correspondence be sent directly to him (CB 151).
On 21 March 2023, the Tribunal invited the applicant (via email) to attend a hearing before it (by telephone) on 17 April 2023 (CB 152-156).
On 16 April 2023, the applicant sent an email to the Tribunal asking to “reschedule” his hearing on medical grounds. That request relevantly stated (CB 157):
I have a hearing scheduled for 17/04/2023 at 11:00 am for a student visa rejection review. I want to request the tribunal to reschedule the hearing until the next available date as my health is not 100 percent as of now. It might affect my contribution towards explaining my situation. I am finding it difficult to speak as I am experiencing a sore throat and high fever. I can provide a medical certificate as I have an appointment booked for tomorrow with my doctor. Please consider my situation and try to reschedule the hearing as I am not feeling healthy at the moment.
On 17 April 2023, the Tribunal agreed to adjourn the hearing and asked the applicant to provide a medical certificate (CB 158-159).
On 18 April 2023, the applicant provided a medical certificate which stated that the applicant was “unfit for work” from 17 April 2023 to 19 April 2023 (CB 160-161). The applicant also provided a copy of a medical prescription (CB 162).
On 19 April 2023, the Tribunal invited the applicant (via email) to attend a hearing before it (by telephone) on 24 April 2023 (CB 163-166).
On 21 April 2023, the applicant wrote to the Tribunal (via email) asking the Tribunal to again delay the hearing “for 10-15 days” (CB 167-168). That correspondence relevantly provided as follows (without alteration) (CB 167):
Hi, I sent the copy of medical certificate and I am not feeling well at the moment as I’m in pain of my throat please allow me 10-15 days to recover as I have not fully recovered test due to which I can not explain my situation correctly. If you want I can present my medical certificate again.
Later that day (also on 21 April 2023), the Tribunal refused to delay the hearing further. The Tribunal advised as follows (CB 169):
In response to your request for a further hearing postponement the medical certificate you provided only stated you would be unfit for work until 19 April 2023. Your Original application is now over two years old and it has been over a year since your application for review. In the circumstances, further delay of finalising your case is not appropriate however any further medical evidence will be considered if filed prior to your hearing.
On 24 April 2023, the applicant provided the Tribunal (via email) with a further medical certificate which stated that the applicant had “a medical condition” and would be “unfit for work” from 24 April 2023 to 25 April 2023 (CB 170-171). In his email to the Tribunal, the applicant stated (without alteration) (CB 170):
I have got the doctor’s certificate as told earlier. I am still on strong medication for sore throat and high fever. Doctor has prescribed me medicine for ten days. Therefore, it might take upto ten day for me to recover. Please grant me a given time of 10-15 days to recover fully from this issue.
Later that same day (on 24 April 2023), the Tribunal agreed to again postpone the applicant’s hearing (CB 172-173).
Later that day (again on 24 April 2023), the Tribunal invited the applicant (via email) to attend a hearing before it (by telephone) on 26 April 2023 (CB 174-177).
The applicant replied to the Tribunal later that day (on 24 April 2023) again asking for the hearing to again be postponed (CB 178-179). The applicant’s email correspondence relevantly stated (without alteration) (CB 178):
The doctor has provided me with the medical for two days. However, I am not totally fit as I am not able to speak properly. Please allow me a few more days as I also need to prepare for the meeting.
The Tribunal responded to that request (on 24 April 2023) and refused the request to postpone the hearing (CB 180-181). That response relevantly provided as follows (CB 181):
On 24 April 2023 we sent a letter inviting you to attend a hearing on 26 April 2023 to give evidence and present arguments relating to the issues arising in your case.
On 24 April 2023 we received a request that the hearing be postponed.
Your original application is now over two years old and it has been over thirteen months since your application for review. Further, neither of the medical certificates you have provided state you are unfit for a half hour telephone hearing, nor do they give any detail as to your symptoms, condition or treatment. In the circumstances, it is not appropriate to continue to delay the finalisation of this matter.
The hearing will therefore proceed as scheduled. Please note that all details about the hearing, as set out in the hearing invitation letter dated 24 April 2023 still apply.
On 26 April 2023, the applicant wrote to the Tribunal (by email) again requesting that his hearing be postponed (CB 182-183). The applicant’s request relevantly provided (without alteration) (CB 182):
Hi, can you please postponed my hearing I’m not medically fit to attend that if you want I can provide the medical certificate. Therefore, I can not attend today please consider my request as it is important for me.
Later that day (on 26 April 2023), the Tribunal refused to postpone the applicant’s hearing (CB 184-185). The Tribunal’s reply relevantly stated (CB 185):
In response to your request for hearing postponement the presiding member wishes to advise a medical certificate is required to further postpone this hearing as previously indicated by the Tribunal. You are not prohibited from repeating your request for an adjournment at the commencement of hearing at 1pm today.
The applicant replied to that correspondence (via email on 26 April 2023) as follows (CB 186):
I have appointment booked at 10.45 Perth time as I can’t attend the hearing due to illness I will definitely provide the medical certificate after my appointment is done please consider my request
Later that day (also on 26 April 2023), the Tribunal agreed to again postpone the applicant’s hearing (CB 188-189). In correspondence to the applicant, the Tribunal requested that he provide a detailed medical certificate. The Tribunal’s correspondence relevantly provided as follows (CB 189):
On 26 April 2023, we received a request that the hearing be postponed. The Member has considered the request carefully and has decided to postpone the hearing. This is granted in good faith that a medical certificate will be provided indicating your symptoms, diagnosis and why you cannot attend a 30 minute telephone hearing.
No medical certificate was provided by the applicant at that time.
On 28 April 2023, the Tribunal again invited the applicant (via email) to attend a hearing before it (by telephone) on 3 May 2023 (CB 190-198).
The applicant did not respond to that hearing invitation and did not appear at the hearing (on 3 May 2023) (CB 199-202).
The Tribunal attempted (unsuccessfully) to contact the applicant by telephone on 3 May 2023 (CB 206).
At 1.58pm on 3 May 2023, the Tribunal dismissed the application pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) on the basis of the applicant’s failure to appear at the hearing “without further consideration of that application or the information before the Tribunal” (the “Non-Appearance Decision”) (CB 206).
The applicant was notified of the Non-Appearance Decision via email on 3 May 2023 (CB 203). The covering letter attached to that email relevantly stated (CB 204):
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 17 May 2023. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
On 17 May 2023, the applicant wrote to the Tribunal (by email) requesting reinstatement of his application. He also provided a copy of a medical certificate (dated 3 May 2023) which stated that the applicant would be “UNFIT for [his] usual Work” on 3 May 2023. The reason provided in the certificate was “Medical” (CB 208-209). The applicant’s email request relevantly stated as follows (without alteration) (CB 208):
Information for reinstatement for appeal hearing
I got a email for missing the hearing and it was directed that I need to apply for reinstatement as I was so I’ll that day due to which I couldn’t attend the hearing and I’m providing the medical for reinstatement please consider this and provide me the new date.
On 18 May 2023, the Tribunal confirmed the Non-Appearance Decision (the “Confirmation Decision”) (CB 212-214).
On 1 June 2023, the applicant applied to this Court for judicial review of the Tribunal’s Confirmation Decision (CB 1-7). As discussed below, he did not seek review of the Tribunal’s Non-Appearance Decision. The applicant also filed an affidavit in support of his judicial review application annexing a copy of the Tribunal’s Confirmation Decision (CB 8-12).
THE TRIBUNAL’S DECISIONS
The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal. It is thus useful to first outline the Tribunal’s decisions in some detail.
The Non-Appearance Decision
In full, the Tribunal’s reasons in relation to the Non-Appearance Decision (dated 3 May 2023) provide (CB 206):
1.The review applicant was invited under section 360 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal on 3 May 2023 at 1:30pm. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing one business day before the scheduled hearing.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with section 379A(5) of the Act, and the invitation has not been returned to sender. The Tribunal is also satisfied that an SMS reminder was sent to the review applicant about the hearing. The Tribunal called the applicant on the day of the hearing at 1:15, 1:20, 1:25, 1:30 and 1:35pm and the applicant did not attend the calls. No satisfactory reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Confirmation Decision
The Confirmation Decision is three pages in length and spans 22 paragraphs (CB 212-214).
The Tribunal began by identifying that a delegate of the Minister had refused to grant the applicant the visa on 25 February 2022. The Tribunal also explained that it had dismissed the applicant’s review application on 3 May 2023 (pursuant to s 362B(1A)(b) of the Act) on the basis that the applicant had not appeared before it at a scheduled hearing (at [1]-[2]).
The Tribunal noted that the applicant had been notified of the dismissal decision (as required by s 362C(5) of the Act) and was advised that he could seek reinstatement of his review application within 14 days. The Tribunal acknowledged that the applicant had applied for reinstatement, however, the Tribunal determined that it was not appropriate to reinstate his application (at [3]-[4]).
The Tribunal explained that a telephone hearing was listed on 17 April 2023, however, the applicant contacted the Tribunal (at 6.27pm the day before the hearing) stating that he was unwell with a sore throat and high fever. The Tribunal confirmed that on 18 April 2023, the applicant had also filed a medical certificate (dated 17 April 2023) which stated that the applicant was “unfit for work from 17/04/2023 till 19/04/2023”. The Tribunal noted that the applicant’s hearing was rescheduled to 24 April 2023 (at [5]-[7]).
The Tribunal then identified that on 21 April 2023, the applicant had again requested an adjournment of the hearing (on 24 April 2023) explaining that he was “not feeling well with pain in his throat”. The Tribunal noted that it had replied to the applicant on 21 April 2023 and explained as follows (at [8]-[9]):
your request for a further hearing postponement the medical certificate you provided only stated you would be unfit for work until 19 April 2023. Your Original application is now over two years old and it has been over a year since your application for review. In the circumstances, further delay of finalising your case is not appropriate however any further medical evidence will be considered if filed prior to your hearing.
The Tribunal noted that on 24 April 2023, the applicant had filed a further medical certificate (dated 23 April 2023) which explained that the applicant “ha[d] a medical condition and [would] be unfit for work from 24/04/2023 to 25/04/2023 inclusive”. The Tribunal noted that the applicant had also advised the Tribunal that he had been prescribed medication but no evidence had been provided in that regard. The Tribunal confirmed that it had again agreed to adjourn the hearing to 26 April 2023, however, on 24 April 2023, the applicant had contacted the Tribunal again explaining that he was “not totally fit” and was “not able to speak properly”. The Tribunal noted further that the applicant had requested “a few more days to prepare for the meeting” (at [10]-[11]).
The Tribunal continued:
12.On 24 April 2023, the Tribunal responded to the applicant indicating that the hearing would proceed on 26 April 2023, outlining the following:
Your original application is now over two years old and it has been over thirteen months since your application for review. Further, neither of the medical certificates you have provided state you are unfit for a half hour telephone hearing, nor do they give any detail as to your symptoms, condition or treatment. In the circumstances, it is not appropriate to continue to delay the finalisation of this matter
13.At 7.52am on 26 April 2023, the applicant again sought adjournment saying ‘can you please postponed my hearing I’m not medically fit to attend that if you want I can provide the medical certificate. Therefore, I can not attend today’.
14.On 26 April 2023, the Tribunal wrote to the applicant as follows:
The Member has considered the request carefully and has decided to postpone the hearing. This is granted in good faith that a medical certificate will be provided indicating your symptoms, diagnosis and why you cannot attend a 30 minute telephone hearing.
15.No such medical certificate as requested in the correspondence of 26 April 2023 was forthcoming.
The Tribunal explained that the applicant’s matter had been listed or a 30-minute hearing (by telephone) on 3 May 2023 but the applicant did not respond to the hearing invitation and did not appear at the hearing (on 3 May 2023). The Tribunal noted that it had made several attempts to contact the applicant by telephone but the applicant did not answer. The Tribunal thus dismissed the application pursuant to s 362B(1A) of the Act (at [16]-[17]).
The Tribunal continued:
18.On 17 May 2023, the applicant filed a medical certificate dated 03/05/2023 stating that the applicant ‘will, in my opinion, be UNFIT for their usual Work on the following dates (inclusive): FROM 03/05/2023 TO: [blank]’. The reason provided in this medical certificate is ‘medical’.
19.Whilst the applicant may have been unable to participate in his usual occupation on 3 May 2023, I do not accept that the applicant was unable to participate in a telephone hearing of limited duration at the schedule date. The Tribunal made it clear in its correspondence of 26 April 2023 that a further medical certificate provided by the applicant should indicate his symptoms, diagnosis and an explanation as to why the applicant could not attend a 30-minute telephone hearing. The medical certificate provided on 17 May 2023 does not address any of these.
Having reviewed all of the evidence before it, the Tribunal ultimately determined that it was not appropriate to reinstate the application. In the circumstances, the Tribunal confirmed the decision to dismiss the application (at [20]-[22]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 1 June 2023 contains two grounds of review, as follows (CB 4):
1. Improper Review of Application.
2. Medical Certificate Assessment.
The applicant also filed an affidavit in support of his judicial review application. That affidavit relevantly provided as follows (without alteration) (CB 10):
1.I submitted relevant documents when asked by the Administrative Appeals Tribunal for assessing my review of the decision made by Department of Home Affairs. I had medical condition when tribunal gave me a date to provide my response. Even after submitting my medical certificate on multiple occasions, tribunal did not provide a fair chance to explain my situation and did not even had a glance at my course progression across this time period.
On 22 August 2023, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any written submissions and any additional evidence. Unfortunately, no additional materials were provided by or on behalf of the applicant.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicant on 1 June 2023, a Court Book numbering 214 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 27 September 2023.
The applicant appeared before this Court on 11 October 2023 without legal representation and via video link. Ms Madisen Scott from the Australian Government Solicitor appeared on behalf of the Minister.
The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The Court addressed an oversight in the applicant’s judicial review application. Relevantly, the applicant’s judicial review application did not seek review of the Tribunal’s Non-Appearance Decision. The Court explained to the applicant that his application for judicial review, as filed by him on 1 June 2023, related solely to the Tribunal’s Confirmation Decision. With the agreement of the applicant, the Court granted the applicant leave to orally amend his application for judicial review to include review of both the Tribunal’s Non-Appearance and Confirmation Decisions.
On the basis of the above, this judgment will consider whether the Tribunal fell into jurisdictional error in relation to both its Non-Appearance and the Confirmation Decisions.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that when his hearing was listed on 3 May 2023, he was “not medically fit” and “somehow he missed the letter” notifying him of that hearing. The applicant explained further that he had submitted medical evidence but “the Tribunal dismissed the matter completely”.
The applicant’s comments, to the extent that they point to any jurisdictional error on the part of the Tribunal, will be considered by the Court below.
CONSIDERATION
As outlined above, the applicant’s grounds of review provide as follows (CB 4):
1. Improper Review of Application.
2. Medical Certificate Assessment.
The applicant’s supporting affidavit (filed with his review application) relevantly provided as follows (without alteration) (CB 10):
1.I submitted relevant documents when asked by the Administrative Appeals Tribunal for assessing my review of the decision made by Department of Home Affairs. I had medical condition when tribunal gave me a date to provide my response. Even after submitting my medical certificate on multiple occasions, tribunal did not provide a fair chance to explain my situation and did not even had a glance at my course progression across this time period.
In oral submissions before this Court, the applicant explained that he had failed to appear at his Tribunal hearing (listed on 3 May 2023) because he was “not medically fit” and, because he was unwell, he had “somehow … missed the letter” notifying him of the Tribunal hearing. The applicant further explained that he had submitted medical evidence to the Tribunal but the Tribunal dismissed his matter in any event.
Reading the applicant’s concerns as broadly as possible (as per the reasoning in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392), the applicant’s grounds of review and oral submissions appear to relate to one central issue. That is, whether the Tribunal properly considered the medical evidence provided by him in relation to his failure to appear at the Tribunal hearing. Essentially, the applicant takes issue with the Tribunal’s decision not to reinstate his review application (following the receipt of his medical certificate).
In this matter, after a number of hearing invitations and (granted) requests for adjournments, the Tribunal sent the applicant an email on 28 April 2023, again inviting him to attend a hearing before it (by telephone) on 3 May 2023 (CB 190-198).
The applicant did not appear at that hearing (on 3 May 2023) (CB 199-202).
The Tribunal attempted (unsuccessfully) to contact the applicant by telephone on the day of the hearing (being on 3 May 2023) (CB 206).
As a result of the applicant’s failure to appear at that hearing, at 1.58pm on 3 May 2023, the Tribunal dismissed the applicant’s review application pursuant to s 362B(1A)(b) of the Act (by way of the Non-Appearance Decision) (CB 206).
The applicant was notified of the Non-Appearance Decision by letter (sent via email) that same day (also on 3 May 2023) (CB 203-205). The covering letter attached to that email notified the applicant that he could seek reinstatement of his application within 14 days (CB 204).
On 17 May 2023, the applicant wrote to the Tribunal (by email) requesting reinstatement of his review application. He also provided a copy of a medical certificate dated 3 May 2023 which stated that the applicant would be “UNFIT for [his] usual Work” on 3 May 2023. The reason provided in the certificate was “Medical” (CB 208-209). The applicant’s request relevantly stated as follows (without alteration) (CB 208):
Information for reinstatement for appeal hearing
I got a email for missing the hearing and it was directed that I need to apply for reinstatement as I was so I’ll that day due to which I couldn’t attend the hearing and I’m providing the medical for reinstatement please consider this and provide me the new date.
Before outlining the principles concerning the Tribunal’s power to reinstate an application for review (after it has been dismissed following the failure of an applicant to appear at a hearing before it), it is useful to first set out the relevant legislative provisions in this regard. They provide 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.
…
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.
…
As outlined above, when an applicant seeks reinstatement, if the Tribunal considers it is appropriate to do so, the Tribunal must reinstate the application: s 362B(1C)(a) of the Act. If, however, the Tribunal does not consider it is appropriate to reinstate the application, the Tribunal must confirm the decision to dismiss the application: s 362B(1C)(b) of the Act.
Unfortunately, there is no guidance in the Act in relation what circumstances might be “appropriate” or the considerations that ought to be taken into account by the Tribunal when making that determination.
In relation to the relevant principles regarding the power to reinstate, the Court notes and is guided by the recent decision of Justice O’Bryan in Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479.
In Kumar, Justice O’Bryan considered “statutory analogues” to s 362B in the Act, as set out in the Administrative Appeals Tribunal Act 1975 (Cth) as follows:
37 Section 42A of the AAT Act relevantly provides:
Dismissal if party fails to appear
(2)If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant—dismiss the application without proceeding to review the decision; or
(b)in any other case—direct that the person who failed to appear shall cease to be a party to the proceeding.
…
Dismissal if party fails to appear—giving of appropriate notice
(7)Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.
Reinstatement of application
…
(8A)If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.
(9)If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
38The power of reinstatement set out in s 42(9) of the AAT Act is on substantially the same terms as that contained in s 362B(1C): that is, both provisions empower the Tribunal to reinstate an application “if it considers it appropriate to do so”, and neither provision expressly conditions the exercise of that power by reference to particular criteria.
39Justice O’Callaghan considered the power of reinstatement set out in s 42(9) of the AAT Act in Serpinli v Secretary, Department of Social Services [2019] FCA 2029. In that case, the applicant had sought judicial review of a decision of the Tribunal refusing to reinstate his application by reason of his non-appearance on that basis that, among other things, the Tribunal misinterpreted the statutory test. His Honour observed (at [25]-[26], emphasis added)
[25]At the outset of the hearing in this case, the Tribunal confirmed that the issue before it was whether or not “it’s appropriate that [the applicant’s] case should be reinstated”. The Tribunal said that in doing so it needed to consider: whether the applicant had a reasonable excuse for failing to attend the hearing, and whether the application had prospects of success.
[26]In considering whether to reinstate an application, the Tribunal can have regard to a range of factors in determining whether it is “appropriate” to reinstate an application. These factors may vary from case to case, but include a consideration of the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at a hearing, the explanation for it.
40His Honour concluded that the Tribunal did not err, having considered both the merits of the applicant’s substantive application for review and his explanation for his non-attendance at the hearing: at [35], [38].
Justice O’Bryan also considered similar provisions in the Federal Court Rules 2011 (Cth) (in Kumar), explaining as follows:
41The FC Rules contain numerous provisions to the effect that the Court may make an order dismissing an application if a party is absent at the hearing of a proceeding, and that the absent party may subsequently apply to set aside any such order. For example, r 30.21 provides as follows.
(1)If a party is absent when a proceeding is called on for trial, another party may apply to the Court for an order that:
(a) if the absent party is the applicant:
(i) the application be dismissed; or
(ii) the application be adjourned; or
(iii) the trial proceed only if specified steps are taken; or
(b) if the absent party is the respondent:
(i)the hearing proceed generally or in relation to a particular aspect of the application; or
(ii) the hearing be adjourned; or
(iii) the trial proceed only if specified steps are taken.
(2)If a trial proceeds in a party’s absence and during or at the conclusion of the trial an order is made, the party who was absent may apply to the Court for an order:
(a) setting aside or varying the order; and
(b) for the further conduct of the proceeding.
42Rules in identical form operate where a party is absent when an appeal is called on for hearing (r 36.75), when an application for leave to appeal is called on for hearing (r 35.33) and when an appeal from a decision of a body other than a court is called on for hearing (r 33.33).
43More generally, r 5.23 of the FC Rules provides that if an applicant is in default, a respondent may apply to the Court for an order that the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant. While this rule extends to forms of default beyond a party’s non-appearance at a hearing, it has been applied in circumstances including non-appearance: see, for example, Dauguet v Centrelink [2015] FCA 395 (Mortimer J, as her Honour then was). Rule 39.05(a) also relevantly provides that the Court may vary or set aside a judgment or order after it has been entered if it was made in the absence of a party.
44The power of the Court to set aside or vary an order dismissing a proceeding contained in rr 30.21(2), 33.33(2), 35.33(2), 36.75(2) and 39.05(a) of the FC Rules is framed in different terms to the Tribunal’s power of reinstatement in s 362B(1C) of the Act and in s 42A(9) of the AAT Act. The relevant rules do not use the language of “appropriateness”, nor do they otherwise condition the exercise of power by the Court. Indeed, rr 33.33(2), 35.33(2) and 36.75(2) refer only to the right of an absent party to apply to the Court and not to the exercise by the Court of its power with respect to that application. Nonetheless, these rules have been construed and applied by this Court in a manner that is consistent with the construction of s 42A(9) of the AAT Act in Serpinli.
45The Full Federal Court examined the application of the predecessor of r 36.75 of the FC Rules (being r 38A(2)(a) of the Federal Court Rules 1979 (Cth)), which was on substantially the same terms, in Prashar v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 197 (Prashar). Justice Katz concluded at [11] (with Branson J agreeing at [1] and Mansfield J agreeing at [4]) that:
Order 52, r 38A(2)(a) of the Rules does not specify any criteria for the exercise by the Court of the power conferred on it by that provision. However, the considerations which, in my view, would be relevant in the exercise of that power would include at least whether the moving party has provided an acceptable explanation for that party’s absence when the appeal was called on for hearing and the strength of that party’s case on the appeal if the order dismissing the appeal were to be set aside.
…
47In my view, the considerations that have been found to be relevant to the exercise of the discretion in s 42(9) of the AAT Act and the FC Rules referred to above are equally relevant to the exercise of the discretion under s 362B(1C) of the Act; namely, whether the applicant has a reasonable or acceptable excuse for their absence at the hearing of their substantive application and whether the application for review has sufficient merit to warrant the reinstatement. That is not to suggest that those two factors are exhaustive of potentially relevant considerations. Other considerations may include: the applicant’s conduct generally in progressing their review application and the prejudice to either party or to the wider public (if any) arising from reinstatement.
48Further, having regard to the subject matter, scope and purpose of the power to reinstate in s 362B(1C), I consider that it is implicit that the question whether the applicant has a reasonable excuse for their absence at the hearing of their substantive application is a mandatory consideration for the Tribunal. That implication arises from the statutory context as referred to earlier. First, by s 360, the Tribunal is required to afford the applicant a hearing at which the applicant can give evidence and present arguments. Second, the power of dismissal under s 362B(1A)(b) is exercisable if the applicant does not appear at the hearing. It necessarily follows from that context that the reason for the failure to appear is a mandatory relevant consideration.
Applying Kumar, the only mandatory consideration when a Tribunal is determining if it is appropriate to reinstate an application (following an applicant’s failure to appear at a Tribunal hearing) is the reason for the applicant’s failure to appear at that hearing. Further, other potentially relevant considerations may include the applicant’s conduct generally in progressing their review application, any prejudice to the parties (or the wider community) arising from any reinstatement and whether the substantive application has sufficient merit to warrant reinstatement.
Here, the Tribunal did consider the applicant’s reason for failing to attend the Tribunal hearing.
In this regard, the Court notes that, as outlined above, on 17 May 2023, the applicant sought reinstatement of his application (having failed to attend the Tribunal hearing by telephone listed on 3 May 2023). The Tribunal detailed the reinstatement request and its consideration of the applicant’s explanation for failing to appear at the Tribunal hearing as follows:
18.On 17 May 2023, the applicant filed a medical certificate dated 03/05/2023 stating that the applicant ‘will, in my opinion, be UNFIT for their usual Work on the following dates (inclusive): FROM 03/05/2023 TO: [blank]’. The reason provided in this medical certificate is ‘medical’.
19.Whilst the applicant may have been unable to participate in his usual occupation on 3 May 2023, I do not accept that the applicant was unable to participate in a telephone hearing of limited duration at the schedule date. The Tribunal made it clear in its correspondence of 26 April 2023 that a further medical certificate provided by the applicant should indicate his symptoms, diagnosis and an explanation as to why the applicant could not attend a 30-minute telephone hearing. The medical certificate provided on 17 May 2023 does not address any of these.
20.I have taken into account all of the material before me and do not consider a reinstatement of this application is appropriate in the circumstances.
As noted in the Tribunal’s reasons (at [18]), the applicant provided a medical certificate which stated that he would be “unfit for [his] usual work” on the date of the hearing. The applicant’s email to the Tribunal attaching the medical certificate stated (without alteration) (CB 208):
Information for reinstatement for appeal hearing
I got a email for missing the hearing and it was directed that I need to apply for reinstatement as I was so I’ll that day due to which I couldn’t attend the hearing and I’m providing the medical for reinstatement please consider this and provide me the new date.
No further details or explanation was provided by the applicant. He did not, for example, provide any details about why he was unable to participate in a 30-minute Tribunal hearing by telephone.
The Court considers that the Tribunal’s reasoning above satisfies the mandatory requirement to give consideration to the applicant’s reason for failing to attend the Tribunal hearing (as outlined in Kumar). In particular, the Tribunal noted the inadequacies of the medical certificate provided by the applicant and did not accept, based on the medical certificate before it, that the applicant was unable to “participate in a telephone hearing of limited duration”.
In relation to the contents and nature of the medical certificate provided, the Court references the comments made by the Federal Court in NAKX v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1559 (“NAKX”) (relating to medical certificates which included more detail than the certificate provided in the present matter) as follows:
5.The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:
‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’
The certificate of the same date in respect of the female appellant states:
‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’
6.The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.
7.I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.
8.If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.
9.I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.
10.In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.
The reasoning in NAKX was recently applied in Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576 (“Quach”) where a medical certificate (again containing more information than the medical certificate provided to the Tribunal in the present matter) was provided in support of an adjournment request. In Quach, the Federal Court determined as follows:
9.As to the first medical certificate, it does not provide a diagnosis of the condition suffered by Dr Quach or explain the nature of that condition. The certificate does not contain an opinion about whether or not Dr Quach is or was prevented or hindered in his preparation for, attendance at or participation in, a hearing. Necessarily, it contains no reasons for any such opinion sufficient to enable the Court to form its own view about the reliability of the opinion – see further: BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [35]; Kaur v Minister for Immigration and Border Protection [2016] FCA 565 at [12]-[14]; Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2]; NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]-[11]; MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 at [2].
The Court considers that, in the circumstances, and following the Federal Court authorities referenced above, the Tribunal did not act unreasonably in determining that the medical certificate provided by the applicant was insufficient to warrant reinstating the applicant’s review application.
In particular, the Court notes that the medical certificate provided by the applicant in this matter appears to be a “pro forma certificate” like those described in the Federal Court authorities detailed above. Importantly, the certificate did not “address the critical question of whether, and if so why, the [applicant’s] medical condition would prevent the [applicant] from … participating effectively in a [Tribunal] hearing” by telephone: NAKX at [6] & [8].
The Tribunal also considered the applicant’s conduct generally in relation to the applicant’s review application when determining whether to reinstate that application. In particular, the Tribunal considered the previous hearings listed by the Tribunal, the applicant’s numerous requests for adjournments and the reasons and supporting evidence (or lack thereof) provided by the applicant in those instances.
The Tribunal summarised the applicant’s first adjournment request (which was granted by the Tribunal) as follows:
5. The applicant’s case was listed for a telephone hearing on 17 April 2023.
6.At 6:27pm on 16 April 2023, the day before the hearing, the applicant sought an adjournment of his hearing stating he was unwell with a sore throat and high fever. On 18 April 2023, the applicant filed a medical certificate dated 17 April 2023 which stated the applicant was ‘unfit for work from 17/04/2023 till 19/04/2023’.
7. The applicant’s hearing was relisted for 24 April 2023.
The Tribunal then detailed the applicant’s second adjournment request (which was also granted by the Tribunal) as follows:
8.On 21 April 2023, the applicant again sought an adjournment stating he was not feeling well with pain in his throat.
9.On 21 April 2023, the Tribunal wrote to the applicant stating
your request for a further hearing postponement the medical certificate you provided only stated you would be unfit for work until 19 April 2023. Your Original application is now over two years old and it has been over a year since your application for review. In the circumstances, further delay of finalising your case is not appropriate however any further medical evidence will be considered if filed prior to your hearing.
10.On 24 April 2023, the applicant filed a medical certificate dated 23 April 2023 which stated the applicant ‘has a medical condition and will be unfit for work from 24/04/2023 to 25/04/2023 inclusive’. The applicant claimed in the body of his email that he had been prescribed with medication but there is no corroborating medical evidence to this effect. The Tribunal again adjourned the hearing to 26 April 2023.
The Tribunal then outlined the applicant’s third adjournment request (which was initially refused by the Tribunal but was later also granted), as follows:
11.On 24 April 2023 the applicant emailed the Tribunal saying he was ‘not totally fit as I’m not able to speak properly. Please allow me a few more days as I also need to prepare for the meeting’.
12.On 24 April 2023, the Tribunal responded to the applicant indicating that the hearing would proceed on 26 April 2023, outlining the following:
Your original application is now over two years old and it has been over thirteen months since your application for review. Further, neither of the medical certificates you have provided state you are unfit for a half hour telephone hearing, nor do they give any detail as to your symptoms, condition or treatment. In the circumstances, it is not appropriate to continue to delay the finalisation of this matter
13.At 7.52am on 26 April 2023, the applicant again sought adjournment saying ‘can you please postponed my hearing I’m not medically fit to attend that if you want I can provide the medical certificate. Therefore, I can not attend today’.
14.On 26 April 2023, the Tribunal wrote to the applicant as follows:
The Member has considered the request carefully and has decided to postpone the hearing. This is granted in good faith that a medical certificate will be provided indicating your symptoms, diagnosis and why you cannot attend a 30 minute telephone hearing.
15.No such medical certificate as requested in the correspondence of 26 April 2023 was forthcoming.
The correspondence sent by the Tribunal to the applicant across the three adjournment requests indicated to the applicant that the Tribunal required more detailed evidence to grant further adjournments to him. In particular, the Tribunal requested a medical certificate which indicated the applicant’s symptoms, diagnosis and why the applicant was not able to attend a hearing of 30 minutes in length.
The matter was then listed for the Tribunal hearing on 3 May 2023. The applicant failed to attend that hearing and the Tribunal dismissed the review application for non-appearance.
The Tribunal confirmed that this was the case and detailed its attempts to contact the applicant (prior to dismissing the application), as follows:
16.The applicant’s matter was listed for a half hour telephone hearing on 3 May 2023.
17.The applicant did not respond to the hearing invitation and failed to appear on 3 May 2023. The Tribunal made several attempts to contact him on his mobile phone at the time of hearing which he did not answer. It follows that the Tribunal dismissed the application under section 362B(1A)(b) of the Act.
As outlined above, the Tribunal considered a request made by the applicant (on 17 May 2023) to reinstate his review application but did not consider it was appropriate to do so.
The Court notes comments in Li which stress that there is no obligation for a Tribunal to afford an applicant every opportunity to present his or her case, stating as follows (emphasis added):
82.It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.
Context matters. In this case, the Tribunal scheduled a hearing on four separate occasions. The applicant sought and was granted adjournments in relation to the first three hearing dates. The matter was listed on a fourth date (on 3 May 2023). The applicant did not seek an adjournment of that fourth hearing date but did not attend the hearing.
Essentially, the Tribunal determined that “enough was enough” – ultimately deciding that the applicant had been given sufficient opportunity to attend a Tribunal hearing but did not do so.
No jurisdictional error arises in relation to the Tribunal’s assessment of the applicant’s request for reinstatement of his review application.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicant on 1 June 2023 have failed to identify any jurisdictional error on the part of the Tribunal. The Court is also unable to identify any error on the part of the Tribunal.
The application (as amended on 11 October 2023) is, accordingly, dismissed.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 26 October 2023
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