Sran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 377
•11 April 2022
FEDERAL COURT OF AUSTRALIA
Sran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 377
Application for leave to appeal: Sran & Anor v Minister for Immigration & Anor [2020] FCCA 333 File number(s): QUD 82 of 2020 Judgment of: GREENWOOD J Date of judgment: 11 April 2022 Catchwords: MIGRATION – consideration of an application for an extension of time for filing an application for leave to appeal from the orders of the Federal Circuit Court of Australia (as that Court was then known) – consideration of the merits of the appeal – consideration of all grounds of the proposed appeal as the parties elected to fully argue the merits of the appeal on the extension and leave applications – consideration of orders to be made in this Court
MIGRATION – consideration of the Tribunal’s decision to confirm under s 362B(1C)(b) an earlier decision of the Tribunal to dismiss the application of the applicants for review of the delegate’s decision to refuse to grant the visa in issue in the proceedings
Legislation: Federal Court of Australia Act 1976 (Cth), s 28(b)
Migration Act 1958 (Cth), ss 338, 347, 348, 353(a) and (b), 357A(3), 359C(1) and (2), 360(1), 362B(1)(a) and (b), 362B(1A)(a) and (b), 362B(1B), (1C), (1D), (1E), (1F) and (1G) and 362B(2)
Cases cited: Kruger v The Commonwealth (1997) 190 CLR 1
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
R v Anderson; Ex parte Ipec‑Air Pty Ltd (1965) 113 CLR 177
Sharp v Wakefield [1891] AC 173
Singh v Minister for Home Affairs [2018] FCA 1927
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 126 Date of last submission/s: 3 November 2020 Date of hearing: 19 November 2020 Counsel for the Applicants: Mr S J Keim SC with Ms A J Cousen and Mr N Edridge Solicitor for the Applicants: Arshad and Chand Lawyers Counsel for the First Respondent: Ms B Rayment Solicitor for the First Respondent: Sparke Helmore ORDERS
QUD 82 of 2020 BETWEEN: AMANDEEP SINGH SRAN
First Applicant
MANDEEP KAUR DHILLON
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
GREENWOOD J
DATE OF ORDER:
11 APRIL 2022
THE COURT ORDERS THAT:
1.The time for filing an application seeking leave to appeal from the orders of the Federal Circuit Court of Australia (the “primary Court”) (as the primary Court was then known), made on 20 February 2020, is extended to 20 March 2020.
2.Leave to appeal from the orders of the primary Court in terms of the draft notice of appeal, is granted.
3.The appeal is upheld.
4.The orders of the primary Court are set aside and in their place the following orders be made: (a) the application before the primary Court to show cause is dismissed; and (b) the first respondent pay the costs of the applicants of and incidental to the show cause application.
5.The proceeding before the primary Court is stayed pursuant to s 28(b) of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”) having regard to Order 6 of these orders.
6.In the appeal for which leave has been given, the Court orders pursuant to s 28(b) of the FCA Act that the decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 25 September 2019 (by which a decision of the Tribunal made on 9 September 2019 was confirmed under s 362B(1C)(b) of the Act), is set aside on the ground that in reaching the decision the Tribunal engaged in jurisdictional error, and the matter of the reinstatement application made to the Tribunal by the applicants is remitted to the Tribunal to be decided according to law having regard to the reasons of the Court published today.
7.The first respondent pay the costs of the applicants of and incidental to these proceedings in this Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
Background
On 20 February 2020, the Federal Circuit Court of Australia (now known as the Federal Circuit and Family Court of Australia (Division 2)) (the “primary Court” as constituted by the “primary judge”) dismissed an application filed by the applicants by which they sought judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 25 September 2019, by which the Tribunal confirmed (the “Confirmation decision”) under s 362B(1C)(b) of the Migration Act 1958 (Cth) (the “Act”) the Tribunal’s earlier decision of 9 September 2019 to dismiss an application for review of a decision of the Minister’s delegate not to grant the first applicant, Amandeep Singh Sran (“Mr Sran”) a Student (Temporary) (Class TU) (subclass 500) visa (the “visa” or “student visa”): the “Dismissal decision”. The second applicant, Mandeep Kaur Dhillon (“Mandeep Kaur”) sought a visa as a member of the first applicant’s family unit as the “Spouse/De Facto Partner” of Mr Sran.
The application for judicial review of the Tribunal’s Confirmation decision was listed before the primary Court for a “show cause” hearing under rule 44.12 of that Court’s Rules by which the applicants were called upon to show cause why the proceeding ought not to be dismissed as failing to raise an arguable case of jurisdictional error in the exercise of the power conferred on the Tribunal by s 362B(1C)(b) of the Act.
In such an application under rule 44.12, if the primary Court is not satisfied that the grounds of the application raise an arguable case for the relief claimed, it may dismiss the application for judicial review.
On 20 February 2020, the primary Court did so. The decision is an interlocutory decision giving rise to an interlocutory order for dismissal of the proceeding.
In this Court, the applicants seek an extension of time for the filing of an application to seek leave to appeal from the interlocutory order.
They seek leave to appeal on the basis of the grounds set out in the proposed notice of appeal. They also seek orders upholding the appeal should both the extension of time and leave to appeal be granted. The parties have elected to fully argue the merits of the appeal not just for the purposes of determining the leave application but so as to determine the appeal.
Accordingly, I will address the chronology of events, the contentions as to the basis upon which the administrative decision‑maker is said to have exceeded the limits of the power confirmed under the Act on the repository of the power and whether those contentions have been made good. The Minister contests each of the contentions of the applicants as to excess of power leading to contended jurisdictional error, and supports the decision and reasoning of the primary judge.
Before turning to those matters, it is necessary to say something about the context within which the extension of time application is made. As to that matter, the applicants rely upon the affidavit of Mr Sran sworn and filed on 20 March 2020.
In that affidavit, Mr Sran says that on 20 February 2020 he received an email “about the judgement”. He says that he sought advice about the judgment on 25 February 2020 from Mr Sourabh Aggrawal, a migration agent operating under the name “Education Embassy”, paid certain fees and was told that he had “28 days to appeal” from the decision and that Mr Aggrawal was “going to do something”. On 29 February 2020, Mr Sran approached “Bajwa Immigration Lawyers”, paid particular fees and was again told that he had 28 days to appeal and that that firm “would look into the matter”. Mr Sran says that he then contacted Mr Ravi Toor of “Visa Point Consultants”, paid particular fees, and was told that he ought to “apply for medical visa”. Mr Sran sought advice from Bhardwaj and Associates, was told that a barrister ought to be retained to consider an appeal; that he had 28 days to appeal; and that a reasonably substantial sum of money on account of costs would need to be provided. Mr Sran then consulted “Arshad and Chand Lawyers”. That firm agreed to assist him without a consultation fee being paid and Mr Sran says that he was told that he was out of time to seek leave to appeal. The application for an extension of time and for leave to appeal was filed on 20 March 2020, 15 days out of time.
Mr Sran also says in his affidavit that he is a “sick person”. Mr Sran annexes to his affidavit a letter dated 5 August 2015 from Dr Manuj Chhabra of the Newmarket Medical Centre in which Dr Chhabra says that, at that date, Mr Sran was receiving medical treatment “for Disc bulge/low back pain with symptoms having started around Wednesday, 5 August 2015”. Dr Chhabra says that Mr Sran would be unfit for work until 5 September 2015.
Mr Sran also annexes a referral letter from the Daisy Hill Surgery to Dr Jatinder Randhawa of the “Apollo Specialist Centre” dated 17 February 2020 confirming that Mr Sran had been suffering from anxiety and depression for many months, had been prescribed and was taking Zoloft and was suffering from low mood, poor appetite and showing no interest in activities. The referral letter to the specialist sets out the current medication prescribed to Mr Sran as at 17 February 2020. Other documents going to Mr Sran’s medical condition over time are also annexed to that affidavit.
Clearly enough, the time period of 14 days prescribed by the Rules for the filing of an application for leave to appeal is not merely “aspirational”. The principal explanation for the delay is the incorrect advice Mr Sran was given about the relevant time period. The Minister accepts that he will suffer no prejudice if an extension is granted, other than incurring costs in responding to what he contends to be an unmeritorious application.
I accept that Mr Sran was given the advice he says he was given. The question of whether an extension is to be given is very largely informed by the merits of the application for leave having regard to the contended grounds of appeal.
I will now turn to those matters before returning to the extension of time question.
The contextual facts and chronology of events
Mr Sran is a citizen and national of India. He was born in the Punjab District in December 1984 and speaks Punjabi as his main language. His English language skills are poor, having regard to some of the handwritten letters written by him as contained in the record. He has undertaken a series of technical courses at the New England College of Technology at the East Brisbane Campus obtaining a Certificate Level III in Automotive Mechanical Technology from 10 April 2011 to 2 April 2012; a Certificate Level IV in Automotive Technology from 3 April 2012 to 16 October 2012; and a Diploma of Automotive Technology from 22 October 2012 to 22 March 2013. Thereafter, from 31 December 2013, Mr Sran worked as a “Motor Mechanic General” for BNJ Australia in Arndell Park, Sydney, New South Wales, holding a Temporary Work (Skilled) (subclass 457) visa in the Industry field of “Professional, Scientific and Technical Services”.
On 30 December 2017, Mr Sran applied for the student visa, listing Mandeep Kaur as a dependent family member applicant.
In response to the requirement to provide information in support of the application so as to demonstrate that the applicant meets the “genuine temporary entrant” criteria, Mr Sran said this on the visa application form:
I am an Indian national living and working in Australia. I have completed my previous qualification, Certificate III and Certificate IV leading to Diploma in Automotive Mechanical Technology in Australia and was employed as a motor mechanic in an automotive workshop. But due to lower back problem I am unable to perform well as a mechanic anymore, so instead of applying for further 457 visa I thought to apply for student visa. Please find medical certificate attached with visa application. I am currently enrolled in Advanced diploma of leadership and management at Gateway College of Technology to gain higher managerial skills. My parents have been supporting me and will support me for my further education and living expenses in Australia. …
[emphasis added]
Counsel for the applicants emphasise that at the date of the application for the visa on 30 December 2017, Mr Sran was drawing attention to his lower back problems which had rendered him unable to perform work as a motor mechanic causing him to apply for the visa so as to acquire leadership and management skills through engaging in an Advanced Diploma of Leadership and Management, rather than seek a further subclass 457 visa related to his work as a mechanic.
On 2 January 2018, Mr Sran provided the delegate (by a submission to the Student Visa Processing Centre of the Department) with further information about the reasons for applying for the visa. Mr Sran said this:
I am a qualified motor mechanic. I have been living and working in Australia as a skilled worker. I have completed my previous qualification Diploma in Automotive Mechanical Technology in Australia.
I had a passion to become a sports car mechanic and was about to [pursue] motorsport course at Oceania College of Technology. Since the completion of automotive studies, I have been working on subclass 457 visa as a motor mechanic. I have been employed as a motor mechanic in an automotive workshop in Sydney. I started suffering from lower back pain because of physically heavy mechanic duties, since year 2015. Because of my job I started suffering from discogenic degeneration which has resulted in severe lower back pain. This has severely affected my employment as a motor mechanic. I wish I could continue to work as a motor mechanic. But the doctors have suggested me to change my education and job line. Please find attached a medical certificate, and other supporting evidence with this visa application.
I have decided to discontinue my employment and undertake a leadership management course that can help me to change my career.
I have recently enrolled in advanced diploma of leadership and management at Gateway College of Technology to learn business management skills. …
[emphasis added]
The applicants emphasise that Mr Sran was explaining at this point the reasons for his change of direction from work as a mechanic (holding a skilled subclass 457 visa), influenced by his suffering from lower back pain since 2015 due to the physical demands of heavy work as a motor mechanic. In the statement, Mr Sran says that work as a mechanic caused him to suffer from discogenic degeneration which has resulted in severe back pain.
On 4 January 2018, Dr Chhabra formulated a “Medical Certificate” which is very short and is criticised by counsel for the applicants as being characteristically terse on the part of Dr Chhabra. Counsel for the applicants observes that Dr Chhabra terseness was apparent from the record at an early stage. However, the record otherwise attests to Mr Sran’s condition. In any event, Dr Chhabra said this on 4 January 2018:
[Mr Sran] has a medical condition and has been under my treatment on and off for last few years.
He has been having ongoing pain mid and lower back for many months to years.
He has been advised physiotherapy and exercise on a semi regular basis.
On 6 July 2015, “Qscan Radiology Specialists” provided a report to Dr Chhabra concerning the imaging (CT scan) of Mr Sran’s lumbar spine. The clinical details were low back pain, possibly discogenic in nature. The scan was for the purposes of investigating those clinical observations. The report to Dr Chhabra from Qscan (Dr Thomas Hess) contains these observations:
At L5/S1 there is a minor broad based annular disc bulge that may be related to posterior annular tearing. Minor associated central canal narrowing including effacement of the subarticular recesses where there is likely contact with the descending S1 nerve roots. Minimal bilateral exit foramen narrowing. Normal appearance of the facet joints.
Impression
Minor discogenic degeneration at L5/S1 that may be associated with a posterior annular tear (a potential cause for low back pain). The disc bulge contacts the descending S1 nerve roots within the subarticular recesses and may thus be associated with nerve root irritation.
Having regard to that report, the applicants emphasise that as early as 6 July 2015 there was confirmed minor discogenic degeneration at L5/S1; there may have been an associated posterior annular tear, the potential cause of Mr Sran’s back pain; and a disc bulge was in contact with the descending S1 nerve roots potentially causing nerve root irritation. The applicants also say that the description of the discogenic degeneration as “minor” ought not be taken as indicating any lack of severity in the symptoms Mr Sran was actually experiencing which had caused him to consult Dr Chhabra about his lower back pain and which, in turn, had caused Dr Chhabra to refer Mr Sran for CT scans of his lumbar spine.
Counsel for the applicants also emphasise as a matter of context a statement made by the delegate in which the delegate sets out the various courses Mr Sran had undertaken leading to the qualifications described earlier and Mr Sran’s election to enrol in an Advanced Diploma of Leadership and Management. The relevance of the delegate’s statement is simply said to be that it recognises that Mr Sran had stated to the delegate that he had elected to undertake that course due to a back injury which required him to seek a different career. Apart from that matter, the delegate seemed to be concerned about the length of time Mr Sran had resided in Australia coupled with limited departures (departures on two occasions for a total of 95 days in the period since arriving in Australia in November 2008) which suggested to the delegate that Mr Sran’s “primary purpose” in applying for the visa was to remain residing in Australia.
On 19 March 2018, Mr Sran provided further information to the Department in relation to his application. He said this:
I have applied for student visa just before Temporary Work 457 visa was about to expire because when I was on subclass 457 visa and I started suffering back pain, I was under an impression that I would not be able to change my career. I thought that the only option I had was to change my sponsor and look for sponsorship as a business manager.
…
I have worked hard and tried to make better future for me and my family. I never imagined that I may have to quit my job as a mechanic. My back problem just kept growing and I ended up giving up working as a mechanic.
Again, counsel for the applicants emphasises that this material is consistent with continuing assertions by Mr Sran of a back condition which had caused him to give up work as a mechanic, thus demonstrating the way in which the injury had affected him.
The delegate refused the application. On 11 June 2019, the Tribunal wrote to Mr Sran in relation to his application for a review of the delegate’s decision and requested Mr Sran to provide a range of information about the course of study he was proposing to undertake and the proposed period of entry and stay in Australia as a student so as to enable the Tribunal to be satisfied that Mr Sran was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. Mr Sran was invited to examine the specific details sought by the Tribunal by accessing a document described as a “Request for Student Visa Information”, contained on the website and able to be accessed by clicking on the relevant link in the letter. The letter also attached five pages of information based upon the Minister’s “Direction Number 69” under the title Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications. The Tribunal requested Mr Sran to provide the information by 25 June 2019 and advised him that he was entitled to seek an extension of time in which to provide the information but if he did so, the request would need to be received by 25 June 2019 and he would be required to state the reason why the extension of time was required. The Tribunal said that it would carefully consider any request for an extension of time and advise whether or not it would be granted.
On 25 June 2019, Mr Sran requested an extension by a handwritten letter in these terms:
I want to do humble request for extension about my AAT. Sir I getting treatment because I am not weel [well.] I [cannot] eat or sleep very well[.] Even I can provide you medical [certificate] tommorw [tomorrow] from my doctor. I did call to my agent but he asking me $1400 fees for if I have to get future extension he said [it’s] my service fees. PLZ [please] [it’s] my life matter fine [if] I decide to meet [myself] about my problem so PLZ help me and give me extension me and my wife really in stress[.] We [don’t have] any way except explain you sir,
AMANDEEP SRAN
Counsel for the applicants emphasise that at this point Mr Sran was telling the Tribunal that he was getting treatment because he was not well and that he could not eat or sleep very well and that he was not getting much help from his migration agent. He also says that he could provide information from his doctor the following day if necessary.
On 26 June 2019, the Tribunal wrote to Mr Sran’s immigration agent, Mr Toor, seeking information about how much time Mr Sran was seeking as an extension in order to provide the information sought by the Tribunal. On 27 June 2019, Mr Sran sent a handwritten letter to the Tribunal advising that he was seeking an extension of two weeks to provide the information “because during my sickness I am getting treatment I have to go [to] [pathology] for couple of test. PLZ as well send me your response on my email [citing his email]”.
On 27 June 2019, the Tribunal received a further medical certificate from Dr Chhabra dated 26 June 2019 in which he simply said this: “Mr Amandeep Singh Sran is going through severe anxiety and will be unfit for work/school from 26/06/2019 to 10/07/2019 inclusive”. Counsel for the applicants emphasise that this certificate is now referring to “severe anxiety” and not just the severe back pain Mr Sran had said that he had been suffering.
On 9 July 2019, Mr Sran sent an email to Ms Sarah Garrahy, the person at the Tribunal in charge of receiving correspondence (although Ms Garrahy was not the decision‑maker). The letter was actually sent by Amandeep Gill and the email records that Mr Sran had obtained help from his ex‑teacher in writing and sending the email. By the email, Mr Sran submitted to the Tribunal his “Confirmation of Enrolment” (“COE”) in the particular course, details about the course, relevant accreditation numbers and the particular college. He attaches a medical certificate for the Tribunal’s reference and recites:
I have been diagnosed with Depression/Anxiety for [a] few years. I had a really bad day today and was further referred to Psychologist today. I have been put on increased dose of [Zoloft]. ...
Counsel for the applicants emphasise that in this email, consistent with Dr Chhabra’s letter of 26 June 2019, Mr Sran is referring to depression and anxiety and his need to consult a psychologist. The email also attached a letter dated 9 July 2019 from the Daisy Hill Surgery (Dr Chhabra) to a clinical psychologist, Dr Amy Underwood, referring Mr Sran to Dr Underwood for clinical management of ongoing anxiety and depression and low mood. Dr Underwood was advised that Mr Sran had, that day, commenced Zoloft as medication for the condition (one tablet daily). Mr Sran was referred for psychotherapy management. His past medical history is described as back pain (4 January 2018), anxiety disorder (26 June 2019) and depression (9 July 2019).
Counsel for the applicant emphasises that all this material was available not simply as part of the Department’s file relating to the delegate’s decision but information provided directly to the Tribunal about Mr Sran’s medical condition and history. The email also attached the COE which made it plain that there was no question that he had enrolled in the relevant course.
The email also attached a medical certificate dated 9 July 2019 from Dr Chhabra in which he confirms that Mr Sran has been diagnosed with depression/anxiety “and has been having these symptoms for many months”. It confirms that Mr Sran has started, on 9 July 2019, medication for the condition (Zoloft) and is waiting upon an appointment with a psychologist (Dr Underwood).
On 21 August 2019, the Tribunal sent a letter to Mr Sran inviting him to appear before the Tribunal to give evidence and present arguments in relation to the issues raised by his case. The Tribunal advised that a hearing had been arranged for 6 September 2019 commencing at 9.30am at the particular nominated address. The letter requested Mr Sran to provide all documents he intended to rely upon in order to establish that he meets the criteria for the visa. Mr Sran was also advised of these matters:
Other things to note
If you are not able to attend the hearing, you need to advise me 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 wish to have your hearing adjourned on medical grounds, you must provide us with a medical certificate certifying that you are unable to attend and give oral evidence. The certificate must also indicate when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you have a representative acting on your behalf, medical certificates should be submitted no later than two business days before the scheduled hearing day, where available: Migration and Refugee Matters Practice Direction, at paragraph 7.4.
Additionally, it is the Tribunal’s general practice to conduct a hearing by telephone if an applicant is unable to attend in person. If you are unable to participate in a hearing by telephone on medical grounds, you must provide a medical certificate that clearly states this.
Requesting your hearing be adjourned on medical grounds without providing appropriate medical evidence may result in the Tribunal refusing your request.
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 may make a decision at the end of your hearing.
…
The enclosed leaflet “Information about hearings – MR Division” contains important information about hearings, dismissals and your rights.
…
On 5 September 2019, Mr Sran’s partner (Mandeep Kaur) sent an email to the National Registry Mailbox for the Tribunal under the reference number of the case number for Mr Sran’s hearing. The email attached a medical certificate. The email was sent to the Tribunal’s email “Mailbox” at 23:36:48, that is, approximately 25 minutes before midnight.
In the email, Mandeep Kaur says this:
Dear Sir/Madam
I am writing to inform you that Mr Amandeep Singh Sran is unable to attend the hearing today for the above‑mentioned case due to his medical condition[.] He has been suffering from back pain, depression and Anxiety disorder.
He was trying his best to attend the hearing today till last moment as [it’s] really important for his immigration status in Australia but he is unable to do so.
Could you please grant him a hearing extension for 2‑4 weeks until his medical conditions get better. ?
Kind regards
Mandeep KaurThe email attached a medical certificate dated 3 September 2019 from Dr Chhabra in which he says this: “Mr Amandeep Singh Sran has a medical condition and will be unfit for work/school from 03/09/2019 [to] 17/09/2019 inclusive”. That one line statement by Dr Chhabra as an explanation of the elements of Mr Sran’s medical condition is essentially meaningless as it tells the reader nothing other than an expression of Dr Chhabra’s opinion that Mr Sran would be “unfit” for work or school for two weeks. Mandeep Kaur’s email explains the three critical features of Mr Scran’s medical condition more usefully and in terms consistent with the documents then before the Tribunal, but of course, she is neither independent nor medically qualified although, as Mr Sran’s partner, she certainly can speak to his “lived experience” of these conditions and there is no suggestion that either of the applicants are acting improperly in conveying information to the Tribunal about Mr Sran’s condition.
On 6 September 2019, the Migration Hearing Record demonstrates that Member Robert Cumming entered the hearing room and convened the hearing session concerning the applications by the applicants. The hearing form does not recite the commencement time. The hearing note records “Applicant did not appear”.
On 9 September 2019, the Tribunal sent an email to Mr Sran attaching the Tribunal’s letter dated 9 September 2019. The email requested Mr Sran to read the attached letter carefully as the Tribunal may require a response from Mr Sran before a certain date. In the attached letter, the Tribunal says this:
…
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 23 September 2019. 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.
Before turning to the Statement of Reasons of Mr Cumming in relation to the Tribunal’s dismissal of the application for review, it is necessary to note a further matter in relation to the email which had been sent by Mandeep Kaur on the evening of 5 September 2019.
It will be recalled that she sent her email to the Tribunal’s National Registry Mailbox approximately 25 minutes to midnight on the evening of 5 September 2019. It will also be recalled that Mr Sran regarded the hearing as “really important” for his “immigration status”, that he was trying his best to attend but was unable to do so due to the elements of his medical condition (back pain, depression and anxiety disorder). It will also be recalled that the email was seeking an extension of two to four weeks until his medical condition had improved.
The transmission time of the email by Mandeep Kaur on 5 September 2019 was 23:36:48.
At 23:47:59, the email was forwarded to Ms Sarah Garrahy “cc to “Robert Cumming” “fyi”, 11 minutes and 11 seconds after receipt of the email that evening.
However, in forwarding Mandeep Kaur’s email the transmission details of her email are shown as having been sent by her to the National Registry Mailbox on Friday, 6 September 2019 at 9.37am that morning, approximately seven minutes after the scheduled time for the commencement of the hearing that day. Obviously enough, an email sent at 9.37am on 6 September 2019 could not have been forwarded to Ms Garrahy and Member Cumming at 23:47:59 on the preceding evening, 5 September 2019. Equally clearly, Mandeep Kaur’s email was sent by her on 5 September 2019 at 23:36:48. The notion that an email seeking an adjournment for two to four weeks was sent after the commencement of the hearing might well have seemed to Member Cumming, a cavalier step to take on the part of the applicants and particularly Mr Sran.
The email sequence reflecting this odd circumstance or anomaly is set out as Annexure CNA‑1 to the affidavit of Cody Nathalie Allen affirmed 23 January 2020, in the proceedings before the primary Court. Ms Allen is a solicitor employed by the solicitors for the Minister. At para 4 of the affidavit, Ms Allen says that the Tribunal file contains “a copy of the email sent by the second applicant to the [Tribunal] at 9.37am on 6 September 2019 referred to at [4] of the Tribunal’s decision”. The email, however, was actually sent on the preceding evening in circumstances where Mr Sran was asserting that he had been trying his best to attend the hearing until the last moment as he recognised the importance of the hearing to his immigration status in Australia but that his medical condition as a result of which he was suffering from back pain, depression and anxiety disorder had made it necessary for him to seek an extension of two to four weeks for the hearing.
Counsel for the applicants put the concern this way.
The decision‑maker would have had to look very closely at the emails in order to realise that the information communicated to him about the transmissions did not make sense. The applicants say that for whatever reason, the decision‑maker has factored a false fact into the decision‑making process which may well have affected the Tribunal’s Dismissal decision. The applicants say that it is a significant matter in the fact‑finding process that the applicants have taken the trouble late at night before the day of the hearing to avoid any inconvenience to the Tribunal by advising the Tribunal of the then prevailing position. However, the impression made on the mind of Member Cumming may well have been that, as late as, after the time for the commencement of the hearing, an email was received agitating for an adjournment on contended medical grounds. The applicants say that anyone reading the email as actually sent, at the time sent by Mandeep Kaur, would realise that the applicants did not want to miss the hearing; that they did not want to inconvenience the Tribunal; and that there was a medical condition that was causing a problem at that particular moment in time resulting in a request for a limited adjournment of two to four weeks.
The applicants also accept that the email on the evening of 5 September 2019 did not, unfortunately, address the topic of whether a telephone hearing might have been possible. They say, however, that that omission is not an extraordinary thing in circumstances where Mr Sran was suffering from back pain, depression and anxiety.
The Dismissal Decision
On Monday, 9 September 2019, Member Cumming made a decision, under s 362B(1A)(b) of the Act, to dismiss the applicants’ application for review of the delegate’s decision.
In the Dismissal decision, Member Cumming notes that the hearing had been set down for 6 September 2019 at 9.30am and that the invitation letter included advice as to what the applicant should do if he could not attend the hearing on medical grounds. The Tribunal notes that the applicant did not appear on the day at the scheduled time and place. The Tribunal also notes at [4] that in “confirmation” that the applicant was aware of the hearing, the secondary applicant “sent an email to the Tribunal National Registry Mailbox at 9.37am (after the scheduled commencement of the hearing)” [emphasis added].
Member Cumming notes at [4] the text of the email and notes at [5] the request for an adjournment included in the email, although not the limited period of two to four weeks sought by Mr Sran as the period of the adjournment.
The Tribunal notes at [6] the email from Dr Chhabra dated 3 September 2019 and notes at [7] that the medical certificate makes no reference to the ability of Mr Sran to attend (or otherwise) the Tribunal hearing. The Tribunal Member notes at [8] that “having reviewed the Tribunal file”, the Tribunal is satisfied that the applicant was properly invited; that the invitation had not been returned to sender; and that by causing the email to be sent by the second applicant, Mr Sran acknowledged that he knew when the hearing was scheduled. At [9], the Tribunal refers to the “purported medical certificate” and notes that it does not address the ability of Mr Sran to attend the Tribunal hearing in circumstances where Mr Sran had been advised in the invitation letter as to how to deal with a situation of being unable to attend the hearing on medical grounds.
The Tribunal then finds at [10] that no satisfactory reason for the non‑appearance has been given and at [10] the Tribunal concludes that “in these circumstances”, it has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
There are a number of matters of particular emphasis that emerge from these reasons.
First, the Tribunal was concerned to recognise that Mr Sran “knew” that the hearing was to take place at 9.30am on 6 September 2019 and Mandeep Kaur’s email was significant for the Tribunal because it “confirmed” that state of knowledge. It was, however, significant for other reasons.
Second, the fact of the sending of the email at 9.37am on the morning of the hearing was both incorrect and thought to be sufficiently material as an apparent fact that the time of sending was to be mentioned in the decision and so too that it was sent after the time scheduled for the commencement of the hearing.
Third, the protocol for seeking to adjourn the hearing was that set out in the Tribunal’s letter of 21 August 2019 and Mr Sran had not complied with it and he had provided “no satisfactory reason” for his non‑appearance. It may be that a person suffering from depression and anxiety (and perhaps severe anxiety and depression) and having been under the management of a specialist psychologist might find that his or her medical condition during the evening before an event to take place the following morning, had become such that it was not possible, for reasons of the condition, to participate in the event the following morning and thus compliance with the orthodoxy of the protocol in the letter of 21 August 2019 would not be possible. Thus, non‑compliance with that protocol could not always be treated as determinative of the correct answer, or a reasonable answer, to the question of whether a discretion ought to be exercised to adjourn a hearing for a relatively limited period of time of two to four weeks, as requested.
Fourth, the Tribunal Member observes having reviewed the Tribunal file, but makes no mention of any material on the file over time consistent with the evidence of Mr Sran’s medical condition mentioned in the email requesting a brief adjournment of the hearing for either two, three or four weeks.
The reference to the “purported medical certificate” attached to Mandeep Kaur’s email on the evening of 5 September 2019 presumably attracted the description of “purported” in the sense that it did not comply with the elements of the protocol in the letter of 21 August 2019.
In the Tribunal’s letter of 9 September 2019 (see [41] of these reasons), the Tribunal tells Mr Sran that the applicants may apply for reinstatement of the review application and that, in doing so, he ought to explain the failure to appear at the hearing and provide any other information he would want the Tribunal to take into account when deciding whether to reinstate the review application of the delegate’s decision to refuse the visa. Counsel for the applicants contend that that statement may have seemed odd to someone who is unrepresented by counsel and solicitors and whose primary language is Punjabi as Mr Sran had already provided material to the Tribunal explaining his medical condition.
Nevertheless, on 23 September 2019, a former teacher and friend of Mr Sran helped him send an email to the Tribunal attaching a medical certificate from Dr Chhabra dated 20 September 2019 which confirms that Mr Sran “had low back pain” and was seen by him on 3 September 2019. The certificate otherwise confirms the earlier certificate. The email also attached the Qscan radiology report of Dr Hess dated 6 July 2015 confirming discogenic degeneration at L5/S1 and a disc bulge in contact with the descending S1 nerve roots within the subarticular recesses which may be associated with Mr Sran’s nerve root irritation.
In the email of 23 September 2019, Mr Sran said this:
Please find my attached medical certificate with CT scan report. I have [S1] root nerve issue because of the disc bulge. This has been issue from last few years[.]
I take [Endone] to get immediate relief. But [Endone] makes me very drowsy and sleepy.
I will really appreciate if you can allocate me another date.
On Monday, 23 September 2019, Mr Sran applied to the Tribunal by email at 8:33:49 for reinstatement of the review application of the delegate’s decision.
Counsel for the applicants contends that at this point, the Tribunal had material before it revealing that Mr Sran was suffering low back pain involving L5/S1 nerve root irritation, depression and drowsiness due to Endone and Zoloft. All of the material discussed in these reasons to this point is emphasised and relied upon by the applicants as giving content and context to the Tribunal’s Confirmation decision made on 25 September 2019 which is the decision ultimately under challenge in these proceedings (on the footing that the primary judge was in error in dismissing the judicial review application before that Court as revealing no arguable case for the grant of the constitutional writs in relation to that decision). The Tribunal’s Dismissal decision is not challenged by the applicants in proceedings as that decision was, in effect, rendered subject to merits review by the Tribunal through the reinstatement application. The contended error going to jurisdictional error is said to lie in the decision to confirm the Tribunal’s earlier Dismissal decision.
On 27 September 2019, the Tribunal sent Mr Sran a letter advising that the Member had considered the application for reinstatement of the review application and had confirmed the decision to dismiss the application for review.
The Confirmation decision was made by the Member on 25 September 2019.
How did the Tribunal go about deciding to confirm the dismissal of the review application?
At [4] of the decision, the Tribunal observes that the reinstatement application was lodged on the 14th day after Mr Sran received notice of the Dismissal decision (there being a 14 day period within which to apply for reinstatement), at 6.34pm (Queensland time), after normal business hours for the Tribunal, but nevertheless, on the 14th day. Oddly enough, another anomaly emerges in relation to the email by which the reinstatement application was made. The email at Court Book 120 bears a date and time of 23 September 2019 at 8.33am that morning: 8:33:49, not 6.34pm.
At [5], the Tribunal observes that the “only evidence” to support the non‑attendance of the review applicants (and particularly Mr Sran) at the hearing was a medical certificate from Dr Chhabra dated 20 September 2019. The Tribunal quotes the content of that certificate.
At [6], the Tribunal recognises that, in fact, the letter/certificate from Dr Chhabra was not the only evidence, as Mr Sran had also sent to the Tribunal the radiology report from Dr Hess. A section of that report is quoted by the Tribunal at [6].
At [7], the Tribunal accepts that “[Mr Sran] was suffering from low back pain”. At this point in the reasoning, an inference arises that the Tribunal accepted that the radiology report provided an objective anatomical foundation for the complaints of Mr Sran in the email of 23 September 2019 (S1 root nerve issue because of the disc bulge with Endone giving some immediate pain relief) together with Dr Chhabra’s brief expression of opinion that Mr Sran had “ongoing low back issues”.
At [7], the Tribunal observes that its concern was the “ability” of the applicants (and particularly Mr Sran) to participate in a hearing.
At [8], the Tribunal observes that notwithstanding the new medical certificate (Dr Chhabra, 20 September 2019) and notwithstanding that the Dismissal decision highlighted that the initial medical certificate failed to address the ability of Mr Sran to attend the hearing, the new certificate of 20 September 2019 also fails to address the “ability of [Mr Sran] to attend the hearing” and “[a]ccordingly, the Tribunal is not satisfied that [Mr Sran] could not have attended the hearing”.
The applicants, by their counsel, contend that reaching a state of satisfaction that the dismissal of an application to review a decision of the delegate is to be confirmed on the footing that within the text of the letter of Dr Chhabra of 20 September 2019 itself, the Tribunal cannot find a basis for concluding that Mr Sran could not have attended the hearing, is a “very narrow basis” for reaching such a finding and fails to take into account all of the information then available to the Tribunal about the applicants. Counsel observes that, at this point, the Tribunal had before it the statements of Mr Sran in the application document for the visa; the reason for Mr Sran changing direction due to the work injury associated with heavy mechanical work; the medical factors then present that led to that decision; the circumstance that many of the relevant factors were present for a long period from 2015 when those medical factors first emerged then leading to other factors of depression and anxiety; and documents and certificates going to the history of the medical condition confronting Mr Sran.
One thing is clear from the chronology of events and the documents is that Mr Sran was not a person in that class of case where a visa applicant seeking review before the Tribunal had received an invitation to appear at a hearing and simply failed to appear or failed to identify a basis for a relatively short adjournment period for the hearing. Rather, Mr Sran was a person who had a clear and demonstrated history of engagement with the Tribunal about his particular work history and consequent health issues leading to the decision to seek the visa and subsequently seek review of the decision of the Minister’s delegate to refuse the application.
The further factor emphasised by the applicants is that if the material available to the Tribunal demonstrated that Mr Sran could not have functioned property at a hearing due to levels of anxiety and depression or would have experienced extreme difficulty in doing so, that would be a material factor to weigh in the balance in deciding whether or not the Dismissal decision ought to be confirmed, extinguishing as it does, any review on the merits of the decision of the Minister’s delegate to not grant the student visa.
The proposition is that the Tribunal acted on the basis of the brevity alone of Dr Chhabra’s certificate of 20 September 2019 on a “narrow and non‑contextual basis” for making a finding which the applicants contend is an “unreasonable” basis for the Confirmation decision.
At [9], the Tribunal observes that it has based its findings on a number of factors.
At [9](a), the Tribunal refers to the invitation issued to the applicants to attend a hearing.
At [9](b), the information is set out concerning what would need to be done should the applicants seek to adjourn the hearing as set out in the invitation letter (the adjournment protocol).
At [9](c), the Tribunal notes the non‑appearance of the applicants at the hearing.
At [9](d), the Tribunal Member, who was also the Tribunal Member who decided the initial Dismissal decision, recites the same error recorded in the Dismissal decision by observing, in virtually the same text as the Dismissal decision, as follows:
However, in a confirmation that the applicants were aware of the hearing, the secondary applicant sent an email to the Tribunal National Registry Mailbox at 9:37am (after the scheduled commencement of the hearing) in which she stated: [followed by the first two paragraphs of the email as quoted in the Dismissal decision and as set out at [38] of these reasons].
[emphasis added]
At [9](e), the Tribunal notes that the email quoted at [9](d) (which is actually the email sent by Mr Sran’s partner late on the evening of 5 September 2019) contained a request for an adjournment of the hearing, but, again (like the Dismissal decision), the reasons fail to mention that the adjournment sought by the applicants was for a period of “2‑4 weeks until his medical conditions get better”. The relatively limited period of adjournment (two, three or four weeks) is both relevant and material to the consideration of whether the Tribunal’s decision to dismiss (and thus expunge) any review of the decision of the Minister’s delegate to refuse to grant Mr Sran a student visa (and Mr Sran’s partner a visa as a dependent family applicant) was to be confirmed.
At [9](f) and (g), the Tribunal refers to Dr Chhabra’s certificate of 3 September 2019 and the failure to identify in that certificate any reference to the ability of Mr Sran to attend a hearing.
At [9](h), the reinstatement application is noted.
All of these factors at [9], as described, were regarded by the Tribunal as relevant and material (because the decision‑maker said that these matters formed the basis for his decision). So too the factors at [9](i) and [9](j).
As to [9](i), the Tribunal says that the new certificate from Dr Chhabra dated 20 September 2019 does not contain a “sufficient explanation” of the applicants’ inability to attend the scheduled hearing. Three factors demonstrating the inadequacy of the certificate (and recognising that the focus is only upon the certificate of 20 September 2019 at this point in the reasoning) are mentioned.
First, the certificate does not refer to or describe the “degree of mobility” affecting Mr Sran. Could he drive to a hearing? Could he be driven in a private car, taxi, ride‑share or public transport to a hearing? There is no suggestion in any of the material that Mr Sran is suffering from a “mobility” disability. This reference as a matter of concern seems to suggest that the Tribunal had in mind a possible mobility issue confronting Mr Sran as it had in mind his low back pain. At [7], the Tribunal had accepted that Mr Sran was suffering from low back (see [72] of these reasons). That, however, was not Mr Sran’s only complaint or condition. He had told the Tribunal that he was suffering from “back pain, depression and Anxiety disorder” (see the email of 5 September 2019 seeking the adjournment). Apart from that email, Mr Sran had made these elements of his condition clear to the Tribunal in these documents: the handwritten letter of 25 June 2019 (see [28] of these reasons); the handwritten letter of 27 June 2019 (see [30] of these reasons); the email of 9 July 2019 to Ms Sarah Garrahy (see [32] of these reasons); Dr Chhabra’s certificate/letter of 26 June 2019 describing Mr Sran as going through “severe anxiety and being unfit for work or school” (see [31] of these reasons); and the email from Dr Chhabra to the clinical psychologist, Dr Amy Underwood, referring Mr Sran to Dr Underwood for clinical management of ongoing anxiety and depression and low mood (see [33] of these reasons).
Second, could Mr Sran sit in a hearing room? Again, this question seems to focus upon a physical capacity to sit and be present in a hearing room.
Third, could Mr Sran attend the hearing by telephone? Again, this question may be related to a concern that although Mr Sran may not have sufficient mobility to attend and then sit through a hearing, he may be able to participate in a hearing by telephone. The factors reflected in the material described at [89] do not appear to be within the frame of reference of the decision‑maker.
Counsel for the applicants contend that focus on the certificate of 20 September 2019 without engaging with the contextual material concerning Mr Sran (described in these reasons) is unreasonable in the legal sense of that term and that it is plain that Dr Chhabra is a person who expresses his opinions in brief and terse terms. Nevertheless, there is other material which supports the scope of the condition suffered by Mr Sran. Counsel also says that the applicants are “very much beholden to the professionals that they engage, including doctors” and counsel for the applicants say that they “make the point quite strongly” that the deficiencies in the certificate of 20 September 2019 are “obviously a part of Dr Chhabra’s practice and to put all of that on to the applicant [Mr Sran] is just not a reasonable consideration” in the exercise of the power conferred on the repository of the power in deciding whether to confirm the Dismissal decision or reinstate the application for review of the delegate’s decision not to grant the visa: T, p 22, lns 6‑10.
At [9](j), the Tribunal observes that Mr Sran was “able to use a device” to send the email to the Tribunal on 23 September 2019 seeking the reinstatement of the application. The Tribunal then observes that it does not accept that Mr Sran was incapable of participating in a hearing by telephone. The applicants contend that the notion that because Mr Sran was capable of sending an email, he therefore could have participated in a hearing of the review application by telephone, is irrational.
At [10], the Tribunal observes that on the basis of “those findings”, which seems to be a reference to the matters at [9] which are described as “findings”, the Tribunal finds that there is insufficient evidence to persuade it that reinstatement of the review applicants’ application for review is “warranted”.
At [11], the Tribunal says that it is “fortified” in its decision by the decision of this Court in Singh v Minister for Home Affairs [2018] FCA 1927 (“Singh”), Perry J. That decision was concerned with an appeal to this Court from the primary Court which dismissed an application for judicial review of a decision by the Tribunal to not reinstate an application which had been dismissed. The facts of that case are vastly different. In Singh, the Minister’s delegate had refused to grant the applicant the visa as sought. The applicant applied for review before the Tribunal. The Tribunal sought information from the applicant and invited him to attend a hearing. No information or documents were provided by the applicant. The applicant did not respond to the hearing invitation and did not attend the hearing. The application was dismissed. The applicant then sought reinstatement of the application on the basis that he had been sick and was not able to do anything or travel. He submitted a perfunctory pro forma medical certificate which contained options to be marked by reference to an asterisk about whether Mr Singh would be unfit for work or school from a certain date to another date. The perfunctory certificate was not completed properly and did not provide a basis for reinstatement. No jurisdictional error was found in the decision not to reinstate.
In Singh’s case, there was nothing like the body of information and exchanges as between the Tribunal and the applicant as there is in this case as between the Tribunal and Mr Sran. Singh’s case provides no fortification for the Tribunal’s decision in this case and, of course, it is well understood that any analysis of whether a decision‑maker has fallen into error constituting jurisdictional error is a, case by case, factually intensive question. The facts of one case are very unlikely to assist in determining whether a power ought to be exercised in a particular way in another case.
At [12] and [13], the Tribunal confirms the decision to dismiss the applicants’ application noting that the decision of the delegate under review is taken to be affirmed: s 362B(1F) of the Act.
The statutory provisions
The decision of the Minister’s delegate to refuse to grant the applicants the visa is a “Part 5 – reviewable decision” before the Tribunal: ss 338, 347 and 348 of the Act.
Section 353 of the Act provides that in reviewing such a decision, the Tribunal is not bound by technicalities, legal forms and rules of evidence (s 353(a)) and “shall act according to the substantial justice and the merits of the case”: s 353(b).
Section 357A provides that Division 5 of Part 5 is taken to be an “exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with”. In applying Division 5 of Part 5 in any case it deals with, the Tribunal “must act in a way that is fair and just”: s 357A(3).
Section 360(1) provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The statutory opportunity (as one aspect of the hearing rule), by invitation by the Tribunal, to appear before it to give evidence and present arguments at a hearing on the various issues arising in the proceeding is not engaged if the Tribunal proposes to decide the review in the applicant’s favour or the applicant consents to a decision being made without an appearance before the Tribunal: s 360(2)(a) and (b). The obligation arising under s 360(1) is not engaged if an applicant has failed to give information or provide comments as contemplated by s 359C(1) or (2).
There is no suggestion in this case of any disentitling conduct under s 359C(1) or (2) and no suggestion of any consent by the applicants to the Tribunal deciding the review without the applicants appearing before it.
The statutory element of the hearing rule addressed at s 360 contemplates a hearing at which both limbs “giving evidence”, on the one hand and “presenting arguments”, on the other hand are provided for as enabling of a “fair and just” hearing “according to the substantial justice and merits of the case” as required by s 353(b) and s 357A(3).
Given the exhaustive statement of the natural justice hearing rule prescribed by Division 5 of Part 5, those Parts of the natural justice hearing rule encapsulated by s 360 are critical aspects of the statutory scheme providing for merits review of the relevant decision.
Plainly enough, however, the Act needs to address those circumstances where an invitation to appear to give evidence and present arguments is given but for one reason or another or no reason, an applicant fails to appear before the Tribunal at the nominated time and place for the conduct of the hearing. Section 362B(1) addresses that matter and “applies” if an applicant is invited under s 360 to appear before the Tribunal on the nominated day at the relevant time and place but does not appear: s 362B(1)(a) and (b).
In those circumstances, the Tribunal may “make a decision on the review” without taking any further action to allow or enable the applicant to appear (ss 362B(1A)(a) and 368) or “dismiss the application” without any further consideration of the application or information before the Tribunal: ss 362B(1A)(b) and 362C. Sections 362C and 368 provide for a written statement setting out the reasons for decision and related matters.
In this case, the Tribunal on 9 September 2019 dismissed the application for review under s 362B(1A)(b) of the Act.
Section 362B(1B) provides that if the Tribunal dismisses the review application (in circumstances of non‑appearance at the hearing), the applicant may, within 14 days after receiving notice of the decision, apply to the Tribunal for reinstatement of the application.
Section 362B(1C) provides that on application for reinstatement in accordance with subsection (1B), the Tribunal must, if it considers it appropriate to do so, reinstate the application and give such directions as it considers appropriate in the circumstances (by means of a statement made under s 362C of the Act), or it must confirm the decision to dismiss the application (by means of a written statement under s 368 of the Act).
If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed: s 362B(1F) of the Act.
The decision to reinstate the application or to confirm the decision to dismiss the application must be given in writing under the relevant sections as mentioned earlier and cannot be given orally.
Section 362B(1) deals with what is described as the “Scope” of the section. Section 362B(1A) addresses the topic of what is described as “Tribunal may make a decision on the review or dismiss proceedings”. Sections 362B(1B), (1C), (1D), (1E), (1F) and (1G) deal with the topic of “Reinstatement of applications or confirmation of dismissal”.
Section 362B(2) addresses the topic of “Other measures to deal with failure of applicant to appear”.
The subsection provides that s 362B “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”. Thus, subsections (1A), (1B), (1C), (1D), (1E), (1F) and (1G) are not an exhaustive statement of the steps the Tribunal might take in circumstances of non‑appearance at a hearing as s 362B expressly preserves by s 362B(2) the power of the Tribunal to make a decision to reschedule the applicant’s appearance before it or to delay its decision on the review in order to enable the applicant to appear before it at a rescheduled hearing.
The express preservation of the power in the Tribunal to take the steps contemplated by s 362B(2) reflects the importance of those elements of the natural justice hearing rule preserved by s 360 of the Act within the exhaustive statement of the natural justice hearing rule, taking into account the imperative direction to the Tribunal to “act in a way that is fair and just” (s 357A(3)) and to “act according to substantial justice and the merits of the case”: s 353(b).
Section 362B(1C) confers a power on the Tribunal to reinstate a dismissed application for review if the Tribunal considers it appropriate to do so. In reaching a decision as to whether it is or is not appropriate to do so, the Tribunal must necessarily have regard to the conferral and exercise of the power in the context of the subject matter, scope and purpose of the Act and particularly the scope and purpose of the provisions of the Act giving expression to the power: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, Dixon J at 505. The Tribunal must also keep in mind that Parliament is taken to intend that any statutory power conferred on the repository of the power will be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”), French CJ at [29], Hayne, Kiefel and Bell JJ at [63], Gageler J at [88]; Kruger v The Commonwealth (1997) 190 CLR 1, Brennan CJ at 36. In that sense, legal reasonableness is an essential element in the legality of the exercise of the power. An aspect of legality in the exercise of the power (and ultimately thus an element of reasonableness) is whether the decision has been reached according to the rules of reason: Sharp v Wakefield [1891] AC 173 at 179; R v Anderson; Ex parte Ipec‑Air Pty Ltd (1965) 113 CLR 177 at 189; Li, French CJ at [24].
In exercising the power under s 362(1C) to decide whether it is appropriate or not to reinstate the review application or confirm the earlier dismissal of it, the Tribunal must have regard to the conferral of the power in the context of its statutory duty to review the underlying decision of the Minister’s delegate to refuse to grant the visa to the applicants and the role of s 360(1) in that process as enabling an applicant to have the benefit of a meaningful hearing as described earlier at [103] of these reasons.
In Li, Hayne, Kiefel and Bell JJ (the plurality) at [60] and [61], emphasised the relationship between the statutory duty to review the decision in question and the role of s 360(1) in the discharge of that duty. In Li, the plurality observed that “[s]cheduling a hearing on a date which, to the Tribunal’s knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1)” as it “would be an empty gesture and any decision made following the hearing would be liable to be set aside”. Refusing to adjourn a hearing from a date to a date two to four weeks later than that date, in circumstances where the proposition put to the Tribunal on the evening before the hearing consistent with material before the Tribunal over earlier recent months was that the applicant was suffering from depression, anxiety and lower back pain, may have had the same result as the outcome contemplated by the plurality in Li in terms of the example. It needs to be kept firmly in mind that the subject matter, scope and purpose of the provisions of the Act enabling an application to be made for reinstatement of a dismissed review application and the corresponding subject matter, scope and purpose of the power to reinstate the application is to enable the Tribunal to decide whether it is appropriate to allow an applicant to have the benefit of a hearing (in the context of the importance of such a step in the statute’s exhaustive statement of the limits of the natural justice hearing rule), or to confirm that the applicant is to be deprived of the benefit of a hearing.
Seeking to always capture the essential character of unreasonableness by a particular textual formula or taxonomic box such as illogicality, arbitrariness or lacking an evident or intelligible justification can be inherently difficult because the essence of the question, as a matter of legality, is whether in all the circumstances of the case, the decision‑maker has exceeded the limits of the exercise of public power. That may occur because “specific errors in decision‑making” (Li at [72]) have occurred which render the decision unreasonable and “some decisions may be considered unreasonable in more than once sense” (Li at [72]) as ultimately all these things run into one another: Li at [72]. Where reasons have been given, as in this case, the basis for the decision can be examined. Where no reasons have been given, the decision may simply reflect an unreasonable “outcome” without any particular error having been identified. As to these matters of characterisation and the task of the Court, see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, Allsop CJ at [2]‑[13]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (“SZVFW”), Kiefel CJ at [10]‑[12]; Gageler J at [51]‑[60], as to matters of principle. As to SZVFW, it should be noted that, on the facts, SZVFW was very different to the present case. The extent of the applicant’s total disregard of the Tribunal’s correspondence in SZVFW can be seen at [5] of the reasons of Kiefel CJ.
In this case, the exercise of the power under s 362B(1C) leading to the decision under s 362B(1C)(b) (the Confirmation decision) exceeded the limits of the power and was thus unreasonable for these reasons.
First, the exercise of the power took into account and was expressly “based” upon an incorrect and material fact that Mr Sran had sent an email to the Tribunal on the morning of the hearing at seven minutes after the scheduled start for the hearing at 9.30am on 6 September 2019. The same decision‑maker recorded the apparent fact in both his Dismissal decision and his Confirmation decision. The apparent fact was apt to poison the water or throw sand in the eyes of the decision‑maker (to use two metaphors) casting the decision‑maker off‑balance in the rational approach to the exercise of the power. The apparent fact was apt to cast Mr Sran and his partner in the eyes of the decision‑maker as little caring about the hearing and cavalier in their approach to the review of the delegate’s decision the subject of their challenge. The position put to the Tribunal in the email late on the evening before the hearing when it became apparent that Mr Sran’s condition was such that he would not be able to attend the hearing the following day, made plain that the hearing of the review application was important to them; they wanted to attend but could not do so for the reasons identified concerning Mr Sran’s condition; and an alternative time was requested for a period between two to four weeks later. In the result, the review application was dismissed thus expunging the underlying review of the delegate’s decision, and the Dismissal decision was confirmed.
Second, in making the decision, the Tribunal, in its reasons, did not engage with a substantial body of material put to it over time concerning Mr Sran’s condition, described in these reasons and, in particular, the matters mentioned at [89] of these reasons.
Third, the Tribunal seemed to proceed on the footing that the principal concern was Mr Sran’s mobility.
Fourth, in reaching the decision, the reasons of the Tribunal do not engage with any consideration of the topic of whether the “other measure” to deal with a failure of the applicant to appear, as expressly contemplated by s 362B(2) of the Act, was engaged or ought to be invoked. As mentioned earlier, s 362B(2) makes clear to the Tribunal that s 362B(1C) 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.
For these reasons, having regard to the discussion in these reasons of the various factors, the Tribunal acted unreasonably and fell into jurisdictional error.
That being so, the proper exercise of the discretion requires the application for the extension of time to seek leave to appeal from the orders of the primary Court to be granted. So too, leave to appeal from the orders of the primary Court is to be granted having regard to the matters discussed in these reasons. The appeal is to be upheld. In the ordinary course, the orders of the primary Court would be set aside and in their place orders would be made dismissing the application before that Court calling upon the applicants to show cause why the proceeding in that Court ought not be dismissed. However, because the underlying question ultimately falling to be decided by the primary Court of whether the Tribunal engaged in jurisdictional error as discussed in these reasons has been fully argued by the parties in this Court, the appropriate course is to make an order in the exercise of the appellate jurisdiction of this Court (in the appeal for which leave has been given), under s 28(b) of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”), in the nature of a declaration that the Tribunal, in making the Confirmation decision, engaged in jurisdictional error, and to order that the decision of the Tribunal be set aside and the matter remitted to the Tribunal to be decided according to law. An order is to be made setting aside the orders of the primary Court and staying further proceedings in that Court in light of the orders made under s 28(b) of the FCA Act and the remission of the matter to the Tribunal. The first respondent will be ordered to pay the costs of the applicants before the primary Court and the costs of the applicants before this Court.
I certify that the preceding one‑hundred and twenty‑six (126) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood. Associate:
Dated: 11 April 2022
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