SZROZ v Minister for Immigration and Anor (No.3)
[2018] FCCA 1054
•4 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZROZ v MINISTER FOR IMMIGRATION & ANOR (No.3) | [2018] FCCA 1054 |
| Catchwords: MIGRATION – Substantive application seeking review of the decision of the Administrative Appeals Tribunal – whether the applicant was denied procedural fairness – s.438 certificate – whether the Tribunal’s decision regarding the adjournment of the hearing was unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 438, 476 |
| Cases cited: SZROZ v Minister for Immigration & Anor [2018] FCCA 433 SZROZ v Minister for Immigration and Citizenship [2012] HCASL 190 |
| Applicant: | SZROZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 750 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 7 December 2017 and 1 March 2018 |
| Date of Last Submission: | 1 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr V Kline by Direct Access |
| Counsel for the Respondents: | Mr T Liu |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 31 March 2016 and amended on 18 October 2017 is dismissed.
The applicant pay the first respondent’s costs in relation to the application made on 31 March 2016 and amended on 18 October 2017 as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 750 of 2016
| SZROZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 31 March 2016, and amended on 18 October 2017, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 25 February 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
This judgment should be read with SZROZ v Minister for Immigration & Anor [2018] FCCA 433 (“SZROZ”) and SZROZ v Minister for Immigration & Anor (No.2) [2018] FCCA 1053 (“SZROZ (No.2)”).
SZROZ was concerned with the question of the admission into evidence of certain documents. For the reasons set out in that judgment, those documents were admitted into evidence in the proceedings. SZROZ (No.2) was concerned with an Application in a Case (“AIC”) filed by the applicant on 20 February 2018. For the reasons set out in SZROZ (No.2), that AIC was dismissed.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of Chloe Ann Hillary, Solicitor, made on 25 July 2017 which annexes a copy of a certificate issued by the Minister’s department pursuant to s.438 of the Act relating to the applicant and relevant exhibit.
The grounds of the amended application now before the Court are in the following terms:
“1. The Second Respondent failed to disclose to the Applicant the existence of a certificate issued to it under s 438(1)(a) (the Certificate) of the Migration Act 1958 (Cth) (the Act), and so denied the Applicant procedural fairness, and thus fell into jurisdictional error.
2. The Second Respondent proceeded to act on the Certificate, which was invalid, and thus fell into jurisdictional error.
Particulars
The Certificate was invalid because it was issued on the basis that the documents referred to in it ‘contain information relating to an internal working document and business affairs’. Such is not a necessary or sufficient basis for establishing a claim by the Crown in right of the Commonwealth in judicial proceedings that the mattes contained in the documents should not be disclosed, within the meaning of s 438(1)(a) of the Act.
3. The Second Respondent’s decision to deny an adjournment of the sort requested by the Applicant, lacked an evident and intelligible justification, and was a decision disproportionate to that which was required by the Act. The Second Respondent thus behaved in a manner that was legally unreasonable and so fell into jurisdictional error.
Particulars
The original Tribunal hearing date of 2 November 2015, had to be adjourned due to the illness of the Applicant, as supported by a doctor’s certificate stating that on that day the Applicant was unfit for normal duties as suffering from vertigo. The Applicant sought a new hearing date after his next doctor’s appointment on 9 November 2015. However, the Second Respondent rescheduled the hearing for 6 November 2015, that is four days later and before the Applicant’s next doctor’s appointment, on the basis that the doctor’s certificate was issued only for the day of the original hearing.”
Background
The applicant is a citizen of India, and is of Christian religion (CB 13). He arrived in Australia on 15 November 2010 as the holder of a visitor visa (CB 14). He first applied for a protection visa on 24 December 2012. He sought review and judicial review, which culminated in Special Leave being refused by the High Court of Australia on 12 December 2012 (CB 51 and see SZROZ v Minister for Immigration and Citizenship [2012] HCASL 190).
Following the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235, the applicant made a second application for a protection visa which was received by the Minister’s department on 22 October 2013 (CB 1 to CB 32).
It is this second protection visa application that forms the basis of the matter currently before the Court. The applicant was invited to, but did not attend, an interview with the delegate on 8 May 2014 (CB 40 to CB 45 and CB 54.3). The delegate refused the grant of the visa on 13 May 2014. The applicant was notified by letter of the same date (CB 46 to CB 62).
The applicant applied for review to the Tribunal which was received on 7 June 2014 (CB 63 to CB 68). By letter sent to the applicant dated 3 February 2015, the applicant was invited to, but did not subsequently attend, a hearing before the Tribunal on 5 March 2015 (CB 72 to CB 79 and CB 80 to CB 82). The Tribunal affirmed the delegate’s decision on 5 March 2015. The applicant was notified by letter of the same date (CB 83 to CB 87).
The applicant applied for judicial review of the Tribunal’s decision to the Court, and the matter was remitted by consent to the Tribunal for reconsideration on 3 July 2015 (see SZROZ v Minister for Immigration & Anor [2015] FCCA 1851).
By letter sent to the applicant dated 25 August 2015, he was invited to attend a hearing before the reconstituted Tribunal on 2 November 2015 (CB 100 to CB 101).
On 2 November 2015, the applicant sent a medical certificate and pathology request, by facsimile, to the Tribunal (CB 103 to CB 104). The medical certificate indicated that the applicant “[would] be unfit for normal duties on 2/11/2015” (CB 103). A case note written by a Tribunal officer indicates that the applicant then telephoned the Tribunal on the same day to enquire as to whether it had received the documents that he had sent by facsimile to the Tribunal. A Tribunal officer informed the applicant that it had, and that the Tribunal hearing had been rescheduled for 6 November 2015 (CB 105). The Tribunal then sent a letter to the applicant dated 2 November 2015 confirming the new hearing date (CB 106 to CB 107).
The applicant attended the rescheduled Tribunal hearing on 6 November 2015 (CB 108 to CB 114). On 25 November 2015, the applicant sent a facsimile to the Tribunal which included a number of documents (CB 115 to CB 120). One of the documents was a medical certificate dated 25 November 2015, that indicated the applicant was “suffering from depression” and had “poor memory, motivation, low mood and concentration” (CB 120).
A case note written by a Tribunal officer indicates that the applicant telephoned the Tribunal that same day to enquire as to whether the Tribunal received the facsimiled documents. The Tribunal confirmed that they had been received (CB 121).
In short, the applicant claimed to fear harm on the basis of being an active member of the Communist Party of India, and as the witness to a murder committed by the Dalit Human Rights Movement. Due to many inconsistencies in the applicant’s written and oral evidence, the Tribunal found that the applicant was “not a witness of truth”, and affirmed the delegate’s decision on this basis ([47] at CB 134 to [53] at CB 135). Accordingly, the applicant did not meet the requirements of s.36(2)(aa) of the Act for the grant of the visa ([54] at CB 135 to [58] at CB 136). The applicant was notified of the Tribunal’s decision by letter sent to him dated 26 February 2016 (CB 123 to CB 138).
Ground one and ground two of the amended application assert that the Tribunal failed to disclose to the applicant the existence of a certificate issued pursuant to s.438(1)(a) of the Act (“the s.438 certificate”). As a result, the applicant claims he was denied procedural fairness. Further, the applicant asserts that the Tribunal proceeded to act on the s.438 certificate which was invalid. Both instances are said to be jurisdictional error on the part of the Tribunal.
Further background is set out in SZROZ (at [3] – [10],
[12] – [23] and [32] – [38]) relating to the s.438 certificate issue and for convenience, has been reproduced as follows:
“[3] The Minister sought to read the affidavit of Ms Chloe Ann Hillary, solicitor, made on 25 July 2017. There was no objection to the affidavit. However, the applicant’s counsel ultimately objected to the tender of the documents referred to in that affidavit as exhibit ‘B’.
[4] The background to this matter is as follows.
[5] On 31 March 2016, the applicant made an application to this Court seeking review of the decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 25 February 2016, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant. The applicant was not legally represented at that time.
[6] The applicant first appeared before a Registrar of the Court on 19 May 2016, and various orders were made by consent, including that the applicant be given the opportunity to file any amended application and further evidence by way of affidavit by 30 June 2016. The applicant filed no documents in this regard.
[7] The applicant again appeared before a Registrar of the Court 6 October 2016, and orders were made for the progress of the matter, including for the filing of written submissions by the parties, and that the matter be set down for final hearing on 26 March 2018. Subsequently, the Court was informed by the Minister’s solicitor that the applicant had been taken to immigration detention. For this reason, the final hearing of the matter was moved forward to 13 October 2017.
[8] On 6 October 2017, the parties sought an adjournment of the final hearing by consent. The applicant had obtained the representation of counsel (acting on a direct access and pro bono basis). Leave was also granted for the filing of an amended application. This was done on 18 October 2017…
[9] On 31 October 2017 orders were made, by consent, giving the parties the opportunity to file written submissions and listing the matter for final hearing on 7 December 2017. The applicant filed written submissions on 23 November 2017 (‘the applicant’s first written submissions’). The Minister filed written submissions on 30 November 2017 (‘the Minister’s first written submissions’).
[10] Further written submissions were also filed by both parties after the hearing. The applicant filed written submissions on 14 December 2017 (‘the applicant’s further written submissions’). The Minister filed written submissions on 21 December 2017 (‘the Minister’s further written submissions’). The parties’ further written submissions concerned an issue raised at the hearing by the applicant (see [40] below). The final hearing was adjourned on 7 December 2017 to allow consideration of this issue.
…
[12] There was no dispute between the parties that an officer of the Minister’s department issued a certificate pursuant to s.438(1)(a) of the Act dated 13 July 2015 (‘the s.438 certificate’), and that that s.438 certificate was placed on the applicant’s file held by the Minister’s department (see [2] and annexure ‘A’ to the affidavit of Ms Hillary). The s.438 certificate referred to two folios on the Minister’s department’s file (see [3] of the affidavit of Ms Hillary).
[13] In his first written submissions (at [2]), the applicant submits that the Tribunal received the s.438 certificate from the Minister’s delegate. He appears to rely on [2] of the affidavit of Ms Hillary for that submission.
[14] Paragraph [2] of Ms Hillary’s affidavit does not support that proposition. However, given what is set out at [3] (at CB 126) of the Tribunal’s decision record, the relevant departmental file was before the Tribunal, and it is therefore reasonable to say that the s.438 certificate and the documents covered by that certificate, were a part of that file (see below also at [18]).
[15] In MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 (‘MZAFZ’) (per Beach J on appeal from this Court), the Federal Court considered the matter of a certificate issued under s.438(1)(a) of the Act (as in this case).
[16] The s.438 certificate in MZAFZ stated, amongst other things, that (MZAFZ at [29]):
‘...the disclosure of this information [to which the certificate referred and which was on the departmental file] ‘would be contrary to the public interest because it contains internal working documents’.’
[17] The s.438 certificate in the current case contains the same wording. I note that there was no dispute from the Minister that the s.438 certificate was not valid, in the sense explained by Justice Beach in MZAFZ (see MZAFZ at [35] – [38]).
[18] In MZAFZ, the Court held that the statement by the Tribunal in its decision record, that it had the departmental file before it, was sufficient to establish that the Tribunal had regard to that file which included the s.438 certificate (MZAFZ at [48]).
[19] On this basis, the Court held that the ‘the Tribunal acted in some unspecified way on the invalid certificate in relation to the documents’ (MZAFZ at [40]).
[20] The applicant submits that the Court held that the applicant in that case had been denied procedural fairness ‘because the Tribunal had not disclosed the existence of the [s.438] certificate to him, had not given him the opportunity to make submissions on the validity of the [s.438] certificate’, and had not told him whether the Tribunal was going to take into account the information which was the subject of the s.438 certificate. Further, the Tribunal had not provided the applicant with an opportunity to address the exercise of its discretion under s.438(3)(b) of the Act, to disclose to him the contents of the documents covered by the s.438 certificate (see [5] of the applicant’s first written submissions).
[21] In Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (‘Singh’), the Full Federal Court also dealt with a ‘certificate’, albeit in relation to the analogous (for current purposes) s.375A of the Act (‘the s.375A certificate’). The Court there held that the failure to disclose to the applicant the existence of the s.375A certificate was a denial of procedural fairness.
[22] The applicant’s first written submissions also addressed the finding in MZAFZ that the s.438 certificate in that case was invalid on the basis that the reason given for the issuing of the s.438 certificate was inconsistent with the relevant statutory requirement (MZAFZ at [3] and [44] and see also [8] – [10] of the applicant’s first written submissions). Acting on the invalid s.438 certificate was held to constitute jurisdictional error in that case.
[23] In the current case, the applicant’s written submissions argue that the circumstances are ‘on all fours’ with both MZAFZ and Singh, and therefore the Court in this case should also find jurisdictional error ([7] of the applicant’s first written submissions).
…
[32] Relevant to grounds one and two of the amended application, Justice Barker in AVO15 stated (at [91]):
‘To the extent that there may have been some technical breach of the disclosure obligations arising under the Act, I do not consider that the applicant lost any opportunity to advance his case by reason thereof. No detriment is shown. No practical injustice is, on any view, identified. See Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40, especially at [57] (Gageler and Gordon JJ).’
[33] For current purposes, I note that the Court at first instance in AVO15 v Minister for Immigration & Anor [2016] FCCA 2101 (‘AVO15 FCCA’), did proceed on the basis urged by the Minister now. That is, the documents covered by the s.438 certificate were taken into evidence. The Court at first instance was upheld on appeal.
[34] Following the filing of the applicant’s first written submissions, a number of Full Federal Court judgments relevant to the ‘certificate issue’ were handed down on 29 November 2017 (see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 (‘CQZ15’), Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (‘BJN16’) and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 (‘BEG15’)).
[35] The Minister’s written submissions did address these cases, as did counsel for the applicant and the Minister at the hearing.
[36] In any event, direction for current purposes is provided by those later Full Federal Court judgments (above at [34]). In essence, what I respectfully and relevantly understand from these judgments, is that each case involving a s.438 certificate is to be considered and determined on its own facts (BJN16 at [76], CQZ15 at [68] – [69] and BEG15 at [30]).
[37] In BEG15 the Full Federal Court stated (at [30]) (and see also BEG15 at [32] – [33]):
‘In Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, a decision published today, the Full Court, as presently constituted, reviewed MZAFZ and Singh and other related authorities. Having done so we rejected submissions that these authorities supported rigid and unqualified propositions of the kind advanced by BEG15 on this appeal. In particular we found nothing to support the view that it was always a jurisdictional error for the Tribunal to act upon an invalid s 438 certificate and that, in doing so, the Tribunal would invariably deny procedural fairness to an applicant. We concluded (at [62]) that:
It may be accepted that the non-disclosure by the Tribunal of the existence of a certificate, given under s 438 of the Act, may give rise to a denial of procedural fairness. It does not follow that this will always be the case. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the omission to be examined.
We also said (at [69]) that:
We do not consider that the decisions in MZAFZ and Singh compel the conclusion that material contained in documents covered by s 438 certificates can never be relevant in the course of judicial review proceedings in which the Tribunal has made a decision without disclosing to an applicant that the Secretary has issued a certificate and that the documents identified in the certificate had been provided to it.
We accepted that documents covered by s 438 certificates might be relevant in determining whether or not an applicant had received procedural fairness before the Tribunal and as to the exercise of the Court’s discretion to grant relief. This was so whether or not the certificate was invalid.’
[38] In the current case, the Minister seeks to tender the documents so that the Court may examine them, and consider whether the documents could have been relevant to the Tribunal decision, or how they affected, or impacted on, the applicant’s ability to argue his case before the Tribunal. In short, the Court should allow the tender so it can consider whether the applicant was denied procedural fairness, and to properly inform the exercise of the Court’s discretion to grant the relief sought (and see CQZ15 at [62] – [69]).”
On 29 November 2017, three Full Federal Court judgments were handed down in relation to the “certificate issue” (see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 (“CQZ15”), Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (“BJN16 ”) and BEG15 v Minister for Immigration and Border Protection[2017] FCAFC 198 (“BEG15”)).
There is no dispute that the s.438 certificate in this case is invalid. However, as was established in CQZ15, BJN16 and BEG15, it does not follow that non-disclosure of the existence of a s.438 certificate will always give rise to a denial of procedural fairness (CQZ15 at [68], BJN16 at [63] and BEG15 at [30]). Further, the Full Federal Court accepted that the documents covered by the s.438 certificate might be relevant to determining whether an applicant has been denied procedural fairness in the conduct of the review (see particularly CQZ15 at [62] – [65] and SZROZ at [37] – [38]).
As outlined in SZROZ, the documents the subject of the s.438 certificate were described in the Minister’s covering affidavit as being in the nature of “internal working documents and business affairs”, and in the Minister’s written submissions as “administrative checklists” (see SZROZ at [63] – [64]). In any event, there is no reference to the documents the subject of the s.438 certificate in the Tribunal’s decision (AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [89]), and having regard to the documents, there is no basis in this case to say that the Tribunal “acted on” the s.438 certificate (MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at [40]).
There is also nothing to indicate in this case that the Tribunal considered the documents the subject of the s.438 certificate as material to the conduct of the review before it (CQZ15 at [65]). It is also reasonable to infer that the relevant documents could have had no bearing on the outcome of the Tribunal’s decision. Therefore there was no denial of procedural fairness to the applicant. Ground one and ground two of the amended application are not made out.
Ground three of the amended application asserts the Tribunal’s decision was affected by legal unreasonableness thus revealing jurisdictional error.
The applicant’s argument is that the Tribunal had scheduled a hearing (pursuant to s.425 of the Act) on 2 November 2015. This “had to be” adjourned because the applicant had produced a doctor’s certificate which said he was “unfit for normal duties”, because he was suffering from vertigo.
The submission is that the applicant sought a rescheduled hearing, and for it to take place after his next doctor’s appointment on 9 November 2015. However, the Tribunal rescheduled the hearing for 6 November 2015. That is, three days before the proposed doctor’s appointment.
In his submissions, the applicant relied on Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) as follows ([21] – [22] of the applicant’s written submissions filed on 23 November 2017):
“[21] In the well known High Court decision of Minister for Immigration and Border Protection v Li, the Tribunal refused the applicant an adjournment to obtain a further skills assessment. All members of the Court declared that decision to be legally unreasonable and giving rise to jurisdictional error. The plurality did so because the decision lacked an evident and intelligible basis. His Honour the Chief Justice did so because the decision was a disproportionate exercise of an administrative discretion. Justice Gageler did so on the basis that the decision fell foul of the traditional Wednesbury unreasonableness test.
[22] There the decision not to adjourn had been justified only on the basis that the applicant had been provided with enough opportunities to present her case, and the Tribunal was not prepared to delay any further. The majority also held that ‘even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at’.”
[Footnotes omitted.]
The essence of the applicant’s argument was that the current case was “on all fours” with the circumstances in Li (see [28] of the applicant’s written submissions filed on 23 November 2017).
I should note that the applicant made no reference to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (“Singh”) which provides further direction to this Court on the matter of legal unreasonableness.
In any event, the applicant sought to make good the proposition that the circumstances in this case were similar to those in Li, as follows.
In Li, the decision not to adjourn was made only on the basis that the applicant in that case had been given enough opportunities to present her case (in essence, a favourable “skills assessment” which was a necessary condition for the grant of the visa). On this basis, the Tribunal was not prepared to further delay the making of its decision on the review.
In the current case, the applicant asked for an adjournment for a minimum of eight days to allow for his next doctor’s appointment. The Tribunal refused this request, and only gave him three days, because his doctor’s certificate only “covered” one day.
The applicant also submitted that at the hearing which he attended on 6 November 2015, he “thought” he was stressed because he had suffered from “dizziness, vertigo and depression and was stressed awaiting the results of his medical tests”, that he suffered from loss of memory and was awaiting his prescription ([26] of the applicant’s written submissions filed on 23 November 2017). The complaint is that notwithstanding this, the Tribunal still proceeded to the hearing.
There is no question that this Court is bound by the High Court’s statements in Li as to the principles relevant to legal unreasonableness. This is similarly the case with what was said in Singh by the Full Federal Court.
It is instructive for current purposes to note that the unreasonableness found in Li, arose in circumstances where the Tribunal (in that case) knew, at the time of the exercise of its discretion, that the applicant (in that case), was awaiting the outcome of a review of an unsuccessful skills assessment. A successful skills assessment was critical to the grant of the visa.
I do not agree with the applicant’s submission that the Tribunal was unreasonable in the exercise of its discretion in light of the principles set out in Li.
First, the Tribunal did exercise its discretion to adjourn the hearing in the applicant’s favour. The hearing scheduled for 2 November 2015 was moved to 6 November 2015.
The Tribunal did so, notwithstanding that the medical evidence provided by the applicant did not give any detail about the applicant’s capacity to participate meaningfully at the hearing.
As is clear from the “case note” (at CB 105), which records the Tribunal’s notification of its decision regarding the adjournment, the medical certificate referred only to “normal duties”.
Second, it is to be remembered that the relevant question for the Tribunal was whether the applicant could participate meaningfully at the hearing to which he had been invited pursuant to s.425 of the Act.
It was reasonably open in the circumstances for the Tribunal to “note” ([27] at CB 129) that the medical evidence did not address that question. That is, whether the applicant could meaningfully participate in the Tribunal hearing (see the terms of the certificate as reproduced at CB 103). The applicant’s submission to the Court does not acknowledge that in the circumstances, it could have been reasonably open to the Tribunal to find that the evidence did not support the applicant’s claim as to his capacity to participate at the hearing. It could have reasonably refused to adjourn the hearing in that light.
Third, the applicant’s submissions do not acknowledge the actual decision made by the Tribunal. That is, the applicant’s ground depends on a misrepresentation of the exercise of the Tribunal’s discretion.
An important feature of the exercise of that discretion was that the rescheduled hearing date was contingent upon the applicant being fit on that day to participate by answering questions.
As the Tribunal made clear to the applicant by telephone (at CB 105 and see [27] at CB 129), the hearing was rescheduled for 6 November 2015, in circumstances where, if the applicant was “unwell” on that day, he could provide medical evidence that gave “information about why the applicant could not attend a hearing and answer questions”.
Fourth, the applicant did not provide any such evidence. He attended the hearing on 6 November 2015. The Tribunal asked him if he was “well enough to proceed” ([28] at CB 129). The applicant outlined his medical problems. However, on the only evidence available to the Court of what occurred at the Tribunal hearing (that is the Tribunal’s account in its decision record), the applicant told the Tribunal on a number of occasions that he was well enough to proceed. This was confirmed with the applicant, by the Tribunal, on a number of occasions during the course of the hearing.
It is of note that another medical certificate dated 25 November 2015 and provided to the Tribunal by facsimile on the same date, made no reference to the applicant’s capacity to participate at the hearing, and importantly made no reference whatsoever to the Tribunal hearing, let alone provide evidence that the applicant’s medical condition prevented him from meaningfully participating in that hearing (CB 120).
Further, at the conclusion of the hearing, the Tribunal gave the applicant 18 days to provide any further evidence, including medical evidence. The applicant did make submissions and provided a medical certificate. As set out above, that medical evidence made no reference to his participation at the Tribunal hearing. Importantly, the applicant’s submissions also made no complaint about the Tribunal hearing.
In all therefore, the Tribunal’s exercise of its discretion in the circumstances was not legally unreasonable. Ground three is not made out.
Conclusion
The application, as amended, should be dismissed. I will make the appropriate order.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 4 May 2018
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