Syed v Minister for Immigration and Anor (No.2) - [2018] FCCA 2305

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYED v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2018] FCCA 2305

Catchwords:
MIGRATION – Applicant invited to appear before Administrative Appeals Tribunal (Tribunal) to give evidence and present arguments – applicant applied for an adjournment based on claimed medical condition – Tribunal refused to adjourn hearing – whether Tribunal acted unreasonably in refusing to adjourn hearing – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A, 362B(1A)(b), 362C, 368, 375A, 379A, 379C

Cases cited:

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28

Minister for Immigration and Border Protection v Singh (2014) FCAFC 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

MZAHI v Minister for Immigration and BorderProtection [2016] FCA 129

Singh v Minister for Immigration & Anor [2018] FCCA 2063

Applicant:

MUSTAFA SYED

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 13 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

3 August 2018

Date of Last Submission:

3 August 2018

Delivered at:

Sydney

Delivered on:

3 August 2018

REPRESENTATION

Applicant in person

Solicitor for the Respondents:

Ms K Hooper of Minter Ellison Lawyers

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 13 of 2017

MUSTAFA SYED

Applicant

And

MINISTER FOR IMMIGATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

In this matter the applicant applies for judicial review of a decision made by the second respondent (Tribunal) on 3 January 2017 confirming a decision it made on 8 December 2016 pursuant to s.362B(1A)(b) of the Migration Act 1958 (Cth) (Act) dismissing the applicant’s application for review of a decision of a delegate of the first respondent not to grant the applicant a Partner Residence (Class BS) (Partner visa). The relevant background is as follows.
On 14 February 2013 the applicant, who is a national of India, applied for a Partner visa and a Partner (Temporary)(Class UK subclass 820) visa (820 visa) on the basis of his relationship with a sponsor who is an Australian citizen. On 31 October 2014 the applicant was granted an 820 visa, but on 2 December 2015 a delegate of the Minister refused the applicant the grant of a Partner visa. On 17 December 2015 the applicant applied to the Tribunal for review of the delegate’s decision.
On 31 October 2016 the Tribunal invited the applicant to appear before it on 8 December 2016 to give evidence and present arguments relating to the issues arising in his case. That invitation, I find, was given pursuant to s.360 of the Act and the letter itself constituted a notice of that invitation which the Tribunal was required to give under s.360A of the Act. The invitation was sent to the applicant by email to an email address which was the same as the email address the applicant specified in the application by which he applied to the Tribunal for review (see CB289).
Notifying the applicant by this means is a means by which under s.379A(5) of the Act the Tribunal can give a document to a person. That subsection provides that a method by which a Tribunal member can give a document is by “transmitting the document by . . . email . . . to . . . the last . . . email address . . .provided to the Tribunal by the recipient in connection with the review”. Under s.379C(5) of the Act, if the Tribunal gives a document by the method provided for in s.379A(5) of the Act, the person is taken to have received the document at the end of the day on which the document is transmitted. I refer to these provisions now because all communications to which I will shortly refer were made by email.
The next event to relate is that on 7 December 2016 the applicant sent an email to the Tribunal which stated as follows (errors in original):[1]
As I am requesting to extant my hearing date because I’m suffering from chest pain and lots of family strees recently visited to the hospital for my health issues. But the doctor said to me take a few weeks rest I’m totally disturbed in my life as per this condition I’m not able to attend next hearing which tablets I’m taking every day feeling sleepy and I cannot drive so kindly I am requesting to you extandmy next hearing date please. There is a medical certificate below.
[1] SCB6
Attached to the email the applicant sent to the Tribunal is a document titled “Medical Certificate” issued by a medical centre and dated 6 December 2016. After stating the name of the applicant, the certificate states that the applicant “is in my opinion suffering from anxiety due to mother’s illness” and that the applicant “will not be/was not fit for duty from 6/12//16 to 16/12/16 inclusive” (see supplementary Court Book pages 1 and 2).
There is in evidence a document titled “case note 18090236” which appears to have been prepared by an officer of the Tribunal. It refers to a telephone conversation the officer had with the applicant. The case note recorded the following information:
As per the task I called the RA and left a message advising that the PM will not be adjourning the hearing and it will go ahead as scheduled. The medical certificate does not state that you are not capable of attending a hearing before the Tribunal, however the sponsor and you are expected to attend the hearing tomorrow. I left my contact phone number if the applicant wishes to contact me. Member informed.[2]
[2] SCB289
The applicant did not attend the scheduled hearing. In those circumstances the power provided by s.362B of the Act was enlivened. That follows from subsection (1) of that section which provides that s.362B applies if the applicant is invited under s.360 to appear before the Tribunal but 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. Under s.362B(1A), in those circumstances, the Tribunal may do one of two things. Relevant is that which is provided for by paragraph (b), which states that the Tribunal may:
by written statement under section 36(2)(c), dismiss the application without any further consideration of the application or information before the Tribunal.
In the circumstances of this case, the Tribunal decided to dismiss the application under s.362B(1A)(b). As required by s.362C the Tribunal prepared a written statement setting out, among other things, the decision. That statement is dated 8 December 2016 and is headed “Non-Appearance Decision”. In the non-appearance decision the Tribunal member referred to the applicant having been invited, under s.360 of the Act, to appear before the Tribunal on 8 December 2016, but the applicant did not appear at that time, and it gave details of the matters contained in the letter by which the Tribunal invited the applicant to appear before the Tribunal. It then referred to the applicant having sent an email on 7 December 2016 stating that he was suffering from chest pain and lots of family stress; that he claimed that his doctor had told him to take a few weeks rest, and he was not able to attend the hearing because he was taking tablets. The non-appearance decision continued as follows:
He provided a letter from Dr . . . . This stated that the applicant was “suffering from anxiety due to mother’s illness … and will not/was not fit for duty from 6/12/16 to 16/12/16 inclusive”.
Dr . . . did not indicate the applicant was taking any medication that would have affected the applicant’s capacity to attend at hearing before the Tribunal.
The non-appearance decision also referred to the fact that the Tribunal telephoned the applicant, leaving a message on his phone when he did not answer and replied to the applicant at his email address stating that the request for postponement of the hearing was declined. It was noted the medical certificate did not state that he was not capable of attending a hearing. The applicant was advised that he should attend the hearing with his sponsor. The applicant was also advised that if he did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal or may dismiss the application without any further consideration of the application. No response was received from this communication with the applicant. The Tribunal member then concluded as follows:
As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
I have omitted to refer to a matter stated in the decision and it is appropriate that I refer to it now. The matter I omitted to refer to is that on 7 December 2016 the Tribunal sent by email a letter to the applicant referring to the request that the applicant had made on 7 December 2016 that the hearing be postponed and that the “member has considered the request carefully but has decided not to postpone the hearing”. The letter further stated that the Tribunal had received the applicant’s medical certificate on 7 December 2016 but that:
The medical certificate does not state you are not capable of attending a hearing before the Tribunal. Therefore, you and your sponsor are expected to attend the hearing tomorrow as set out below.
The letter also stated that if the applicant was not able to attend the hearing, he should advise the Tribunal as soon as possible. The letter stated that the Tribunal will only change the date:
…if satisfied that you have a very good reason for being granted an adjournment.
The letter again stated that if the applicant did not attend the scheduled hearing:
The Tribunal may make a decision on the review without taking any further action or dismiss the application for review without further consideration of the application or the information before the Tribunal.
I now return to the non-appearance decision. Having been made, and as it was required to do under s.362C(5) of the Act, the Tribunal notified the applicant of the non-appearance decision by sending it by email on 12 December 2016 under cover of a letter. As it was also required to do by s.362C(7), the letter to the applicant stated:
You may apply to us in writing for reinstatement of the application by 28 December 2016. 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 reinstated application should be granted.
Attached to the letter was a document titled “Information About Dismissal Of Applications – MR Division”. There is a section under the heading “What Happens If An Application Is Dismissed” which gives information about the applicant’s rights to apply for reinstatement.
The applicant did not make any application for reinstatement. In those circumstances, the Tribunal, as it was bound to do under section 362B(1E), dismissed the application. Again, as it was bound to do, the Tribunal dismissed the application by making a statement under s.368.[3] After referring to some relevant facts, the decision simply concludes that the “Tribunal confirms the decision to dismiss the application”.
[3] CB329
I then turn to the grounds on which the applicant relies in his application for judicial review. The applicant is not legally represented. When I invited the applicant to make submissions, the applicant referred to matters which related to the circumstances and the reasons for which the Department did not grant the applicant the visa. I interrupted the applicant and took a little time to explain to him what the issue was before me, namely, the decision of the Tribunal to dismiss his application for review. In any event, I took the applicant to the grounds stated in the application, and the grounds are as follows:
(1)The Tribunal erred in making final decision. The RRT adopted harsh approach to judge the application criteria
(2)The Tribunal made decision in hurry based on incomplete and unrelated information
(3)The Tribunal did not provide sufficient opportunity to provide the required information
The applicant did not have anything to say in relation to the first and second grounds. In relation to the third ground the applicant said he was unable to attend the hearing before the Tribunal. After further discussion with the applicant, I asked him whether his real complaint was that the Tribunal acted unreasonably in not granting the applicant the adjournment that he requested. As I understood applicant, he said that is what he wanted to submit. That is how the Minister has interpreted at least the second and third grounds stated in the application. In my opinion, what is really raised in the application is the question of whether the Tribunal acted reasonably or, more to the point, whether it acted unreasonably when it refused the applicant’s request for an adjournment of the hearing that had been scheduled to take place on 8 December 2016.
There is no question, and the Minister does not submit otherwise, that upon becoming enlivened, the power under s.362B of the Act is a power that must be exercised reasonably. Whether in any given case the Tribunal has exercised or failed to exercise a power unreasonably must be determined in accordance with the principles stated in Minister for Immigration and Citizenship v Li[4] and “the earlier authorities discussed in it”. That last quote is from the Full Federal Court’s decision in Minister for Immigration and Border Protection v Singh.[5] Having regard to the subject matter scope and purpose of the relevant statutory power, a decision will be legally unreasonable if the decision possesses one or more of the qualities conveyed by such words or expressions as “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification” and “obviously disproportionate”. I have taken those words from the judgment of the Full Federal Court in Minister for Immigration and Border Protection v Eden.[6] If the Court concludes the decision possesses one or more of these attributes, the decision will be held to be legally unreasonable.[7] Where it is claimed that a decision supported by reasons is unreasonable, reasonableness should be assessed by reference to the actual reasoning the decision maker adopted in reaching the decision and the outcome of the decision.[8] In those circumstances the decision will be unreasonable if it lacks an intelligible justification, and the intelligible justification “must lie within the reasons the decision maker gave for the exercise of the power”.[9]
[4] [2013] HCA 18; (2013) 249 CLR 332
[5] [2014 FCAFC 1, at [42]
[6] [2016] FCAFC 28, at [65]
[7] [2016] FCAFC 28, at [65]
[8] Minister for Immigration and Border Protection v Singh (2014) FCAFC 1 at [47]
[9] Minister for Immigration and Border Protection v Singh (2014) FCAFC 1 at [47]
The question of unreasonableness has been considered in the context of applications for adjournments of a hearing before the Tribunal based on asserted medical conditions supported by medical certificates. Ms Hooper, who appeared for the Minister, drew my attention to the judgment of Dowdy J in Singh v Minister for Immigration & Anor[10] and, in particular, to paragraph 19 of his Honour’s judgment where his Honour, beginning in that paragraph, refers to Federal Court authority. The first authority his Honour refers to is the judgment of Davies J in MZAHI v Minister for Immigration and Border Protection.[11] In a passage from the judgment of Davies J his Honour cites, the terms of a medical certificate are set out, and her Honour said:
The medical certificate was quite plainly inadequate to justify any further adjournment of the Tribunal hearing. The medical certificate merely stated that the appellant was unfit for work and provided no meaningful detail about the nature of the appellant’s illness or any meaningful content which would enable the Tribunal to conclude that the appellant could not participate at the Tribunal hearing. Given the absence of any meaningful content in the medical certificate, it was open to the Tribunal, to reject the certificate as sufficient proof that the appellant was unable to participate in a Tribunal hearing on that day.
[10] [2018] FCCA 2063
[11] [2016] FCA 129, at [7]
It is unnecessary to refer to the other decisions Judge Dowdy referred to in Singh. The effect of those decisions is that the Tribunal would not act unreasonably by not accepting a medical certificate as evidence of an applicant’s inability to attend or participate in a hearing, if the medical certificate does not address whether the medical condition from which it is said an applicant suffers prevents the applicant from attending, or whether it otherwise adversely impacts on the applicant’s ability to meaningfully participate in the scheduled hearing.
If I return to the circumstances of the case before me it is evident from the Tribunal’s decision and what passed between the applicant and the Tribunal before the decision that a matter which weighed in the Tribunal’s mind was that the medical certificate on which the applicant relied did not disclose whether the condition from which the certificate stated the applicant suffered affected the applicant’s capacity to attend a hearing before the Tribunal. That was a matter which was reasonably open to the Tribunal to take into account when considering whether to grant the adjournment and for refusing to grant the adjournment.
There are other circumstances in this case, however, which are relevant to reasonableness. And that is that before the Tribunal made its decision the applicant was informed that the medical certificate the applicant provided did not deal with a matter which was of relevance at the Tribunal, that is to say the applicant’s capacity to participate in the hearing. That means that the applicant had an opportunity to produce further evidence which would indicate he did not have the capacity to attend the hearing, or that the condition from which he suffered could have adversely affected his ability to participate in the hearing. And when I say the applicant was given notice, I am referring to the telephone conversation that is the subject of the case note to which I have referred, and the letter dated 7 December 2016 to which I have also referred. In my opinion, the Tribunal’s decision in these circumstances not to grant the applicant the adjournment that he sought was one that was within the range of decisions that a reasonable Tribunal member could have taken. And for those reasons it was reasonably open for the Tribunal to proceed in the manner that he did, namely, to dismiss the application under s.362B(1A)(b).
Although not relevant to whether that power was exercised reasonably, the Tribunal member having adopted the course that it did still enabled the applicant, had he so chosen, to avail himself of the opportunity to apply for re-instatement, and if it was indeed the case even then that he was suffering from some condition which prevented him from meaningfully participating in any hearing, it was open for him to put that information in an application for a re-instatement. I do not say that because I find that it is or consider that it is relevant to whether the power under s.362B(1A)(b) was reasonably exercised by the Tribunal. I say it only for the benefit of the applicant.
In those circumstances, therefore, the challenge to the Tribunal’s decision must fail.
Before I conclude these reasons there is a matter to which the Minister has drawn my attention. There is in evidence in the Court Book a certificate which was purportedly issued under s.375A of the Act; and a copy of that certificate is to be found at page 287 of the Court Book. Unlike many other cases, in this particular case the Tribunal referred to the existence of that certificate in its letter dated 31 October 2016 by which the Tribunal invited the applicant to appear before it. In that letter the following is stated:
The department has provided information to the Tribunal and has issued a certificate pursuant to section 375A of the Act which requires the Tribunal to do all things necessary to ensure that the document or information is not disclosed to any other person. You are invited to provide any submissions on the validity of the certificate. A copy of the certificate is enclosed.

In the Court Book there does not appear to be a copy of the certificate following immediately the copy of the letter from which I have quoted the passage. Whether it was attached to the letter does not really matter. A fair inference is it was attached, but in any event, whether attached or not, the letter gave clear notice to the applicant of the existence of the certificate, and clearly invited the applicant to make submissions about its validity. Insofar as any duty of procedural fairness required the Tribunal to give the applicant notice of the s.375A certificate, the Tribunal, in my opinion, discharged that obligation by setting out in its letter the passage to which I have referred.
Ms Hooper also drew my attention another aspect of the judgment of Judge Dowdy in Singh. In that case, which concerned, like this case, a dismissal of an application pursuant to s.362B(1A)(b) of the Act, a s.375A certificate was issued but had not been disclosed to the applicant. His Honour found that the Tribunal’s failure did not result in any practical unfairness, because the application was dismissed without the Tribunal looking into the merits of that case. The circumstances in Singh that were before Judge Dowdy are different from the circumstances of the case before me. As I have already noted, in the case before me the Tribunal gave the applicant notice of the existence of the s.375A notice and invited the applicant to make submissions on the validity of the certificate.
It follows from what I have said, that I propose to dismiss the application, and I will do so in a moment after I invite the parties to make submissions about costs.
The Minister applies for an order for costs, and also applies that I set those costs in the amount of $5,600. The applicant had nothing to say against my making such an order, as indeed there appears that there is nothing he could have said in the circumstances of this case so far as the material before me reveals.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 20 August 2018