SZTUQ v Minister For Immigration & Anor
[2016] FCCA 2889
•11 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTUQ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2889 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal dismissed for non-appearance – application under r.16.05 of the Federal Circuit Court Rules. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05 Migration Act 1958 (Cth), s.477 |
| Cases cited: Allstate Life Insurance Co v ANZ Banking Group Ltd (No 18) (1995) 133 ACR 667 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2014] FCA 318 |
| Applicant: | SZTUQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 155 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 22 July 2015 19 August 2015 |
| Date of Last Submission: | 21 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams |
| Counsel for the Respondents: | Ms Francois |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The order of 14 April 2015 dismissing the Applicant’s application of 22 January 2014 under Rule 13.03C(1)(c) of the Federal Circuit Court Rules is set aside.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 155 of 2014
| SZTUQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
On 14 April 2015 I dismissed an application for an extension of time and review of a decision of the former Refugee Review Tribunal pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the Rules) in circumstances where there was no appearance by the Applicant. The Applicant now seeks an order to set aside that order under r.16.05 of the Rules.
The proceedings in issue were commenced on 22 January 2014 by an application which sought review of a decision of the Refugee Review Tribunal dated 11 September 2012 and an extension of time under s.477 of the Migration Act 1958 (Cth) (the Act). That application was supported by an affidavit of the Applicant’s then solicitor and migration agent, Issam Issa, of 22 January 2014 which addressed the delay in seeking judicial review.
On 30 May 2014, at a time when the Applicant was legally represented, orders were made by consent for the filing of any amended application and other affidavit evidence and listing the matter for hearing of the application for an extension of time and, if an extension was granted, the substantive application, on 14 April 2015.
On 20 January 2015 the Applicant’s solicitor filed a notice of intention to withdraw as lawyer which specified an address for the Applicant in Altona North, Victoria.
On 23 February 2015 the Applicant’s solicitor filed a notice of withdrawal as lawyer. That notice stated that the Applicant had been served with the notice of intention to withdraw “by [either] posting it (or causing it to be posted) to the client’s last known residential or business address” and that the client’s last known address was set out in the notice of intention to withdraw. There is otherwise no evidence as to service of the notice of intention to withdraw on the Applicant.
The Applicant did not file any amended application, affidavit evidence or pre-hearing written submissions. The First Respondent filed submissions on 7 April 2015.
There was no appearance by or on behalf of the Applicant on 14 April 2015. The evidence relied on by the First Respondent included evidence that on 7 April 2015 a letter was sent to the Applicant by express post enclosing the Minister’s submissions and details of the hearing date, time and place. On 8 April 2015 a further letter was sent to the Applicant by express post including the full street address for the Court. Both letters were sent to the Altona North address for the Applicant that had been provided by his former solicitor in the notice of intention to withdraw as lawyer.
The application was dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Rules with costs (see SZTUQ v Minister for Immigration and Border Protection [2015] FCCA 962).
On 27 May 2015 the Applicant filed a document headed “Application” which sought an order seeking that the order made in his absence be set aside, an extension of time and final orders. It contained virtually the same two grounds pleaded in the original judicial review application. It was supported by an affidavit of 25 May 2015 in which the Applicant gave evidence that on or about 22 January 2014 he had instructed his former solicitor, Mr Issa, to file an application in this court seeking review of the Tribunal decision and that the application was filed out of time and an extension of time was sought. His evidence was that he was subsequently granted a Bridging E visa which required him to report to the Department and to keep the Department informed of his current residential address. He explained that approximately “nine months ago” he had notified the Department of his “current” address, which was an address in South Kingsville, Victoria, and that at “around that time” he also changed his email address. He attested that his former solicitor “kept sending me correspondence to my former address [in Altona North] and to my former email address” and that “As I did not receive any email form (sic) my former solicitor, I was not aware of how my case was progressing and when the hearing date was”.
He explained that when reporting to the Department on the Friday before he swore his affidavit he had been notified that his case had been dismissed. He attested that this was the first time that he had been notified of the “court outcome”.
At the hearing of the application for reinstatement, Mr Williams, who was appearing on a direct access basis for the Applicant, sought and was granted leave to rely on an “Amended” Application in a Case which clarified that the order sought was the setting aside of the order made under r.13.03C(1)(c) pursuant to r.16.05 of the Rules. It is this Application in a Case that is the subject of this judgment.
Mr Williams sought to rely on Mr Issa’s affidavit filed in support of the original application as well as that of the Applicant of 25 May 2014. Counsel for the First Respondent objected to Mr Issa’s affidavit on the basis that the solicitors for the First Respondent had not been informed that it would be relied on in relation to the reinstatement application and, had this been known, Mr Issa would have been required for cross-examination. In these circumstances, I have had regard to Mr Issa’s affidavit only as indicating the explanation that would be proffered in support of an application for an extension of time were the matter to be reinstated. There was no objection to the Applicant’s affidavit. He was not required for cross-examination.
In circumstances where the submissions of counsel for the Applicant in relation to the arguability of substantive grounds of review traversed matters that went beyond the grounds in the filed applications, I made orders giving him the opportunity to file further post-hearing written submissions annexing a proposed amended application containing grounds which would be relied on if the matter were to be reinstated, for written submissions from the First Respondent and written submissions in reply.
The First Respondent exercised liberty to apply in relation to the Applicant’s compliance with these orders. After I made further orders, the Applicant filed submissions including a proposed amended application which replaced the two substantive grounds in the original application with three new grounds. The parties filed post-hearing submissions.
These proceedings
Rule 16.05(2) of the Rules relevantly provides:
(2) The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party.
The order of 14 April 2015 was made in the absence of the Applicant. It is not in dispute that the order had been entered before the set aside application was made. The preconditions for the exercise of the Court’s discretion were satisfied (see SZIDH v Minister for Immigration and Citizenship [2007] FCA 369 at [6] per Jessup J).
The discretion to set aside an order under such a rule must be exercised judicially (Allstate Life Insurance Co v ANZ Banking Group Ltd (No 18) (1995) 133 ACR 667 at 675). There is authority to the effect that the exercise of such a power will be limited to “truly exceptional” circumstances and must be exercised with caution, bearing in mind the overarching principle of the finality of litigation (see Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2014] FCA 318 at [6]).
However, in Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 White J at [9] made the following observation in relation to an application for reinstatement of an application for review of a decision of the Migration Review Tribunal under r.39.05 of the Federal Court Rules 2011 (Cth) (which, like r.16.05(2)(a), extends to circumstances where an order was made in the absence of a party):
Rule 39.05 of the Federal Court Rules 2011 authorises the court to set aside a judgment or order after it has been entered if, amongst other things, it was made in the absence of a party. The rule does not circumscribe the discretion to set aside in these circumstances, but that discretion must, of course, be exercised judicially. Some authorities indicate that the power under r 39.05 is exercised ordinarily only in exceptional circumstances; for example, Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at 6. The circumstances to which r 39.05 may apply may be quite varied, so that it may not be appropriate to require exceptional circumstances in all cases. Nevertheless, it is apparent that good reason must be established for the Court to exercise the discretion to set aside an order which has been entered. The authorities indicate that parties seeking the exercise of the discretion, when the orders sought to be set aside were made in their absence, will usually have to provide a proper explanation for that absence, and show that they have a case which is reasonably arguable: 3D Funtimes Ltd v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407 at [6].
Similarly, the FCCA Rules do not circumscribe the discretion to set aside orders made in the absence of a party under r.16.05. In my view, having regard to the nature of these proceedings and the decision in issue, good reason, rather than “exceptional circumstances”, should suffice, bearing in mind however that, as pointed out in Wati v Minister for Immigration and Multicultural Affairs [1997] FCA 1052; (1997) 78 FCR 543 at 550-3), generally the discretion to set aside an order is not to be exercised unless it can be shown that, without fault on the applicant’s part, he or she has not been heard on a relevant question.
As stated in NAJN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 414 at [7]:
…The court has a discretion under r 16.05(2)(a) to set aside a judgment. Such discretion must be exercised with caution having regard to the importance which the public interest has in the finality of litigation recognising the tension between the public interest in the expeditious conduct of litigation and the obligation of the court to ensure litigants have the opportunity to present a case where there is a real dispute. The power is generally not to be exercised unless the applicant can show that by accident and without fault on his part the order was made without his being heard. It is necessary to look at the whole of the circumstances. (Australian Fisheries Management Authority v P.W. Adams Pty Ltd No2 (1996) 66 FCR 349).
The “primary consideration” in such a case has been said to be whether the case of the applicant for reinstatement “has merits to which the Court should pay heed” (see Davies v Pagett [1986] FCA 186; (1986) 10 FCR 226 at 229 citing Lord Wright in Evans v Bartlam [1937] AC 473 at 489 as referred to with approval in SZIDH at [7]-[8]).
Consistent with the approach in Lal, in considering whether good reason has been established to exercise the discretion under r.16.05 it is relevant to have regard to all the circumstances, in particular the explanation for the Applicant’s non-attendance and whether there is a reasonably arguable case or a real dispute such that the interests of justice require that the Applicant be given the opportunity to present his case (also see Clifford v Mountford (2006) 219 FLR 437; [2006] FMCAfam 450 at [34]).
The application of these principles is complicated by the fact that in this case setting aside the dismissal for non-appearance would not in itself afford the Applicant a hearing of his substantive application for judicial review. It would first be necessary for him to obtain an extension of time under s.477(2) of the Migration Act 1958 (Cth). The parties addressed the prospects of success of an application for an extension of time on the evidence presently before the Court.
The Applicant submitted, in essence, that his judicial review application should be reinstated because he had given a satisfactory explanation for his absence from the hearing in his affidavit; because it was in the interests of justice to grant an extension of time; and because he had raised an arguable case having regard to the grounds set out in the proposed amended application.
The First Respondent opposed the order sought. It was submitted that the Court should not accept that there was a satisfactory explanation for the Applicant’s failure to appear at the hearing and that even if there was a satisfactory explanation, the application for an extension of time to seek judicial review did not have sufficient prospects of success to justify the exercise of the Court’s discretion.
It was asserted that there was no satisfactory explanation for the Applicant’s delay in filing the initial judicial review application. Hence it was submitted that the circumstances in which the Court might grant an extension of time would need to be exceptional and that this was not such a case, having regard to the proposed grounds of review which, it was submitted, had no prospects of success, were not arguable, or not sufficiently arguable to warrant an extension of time. Hence it was submitted that the consideration of the interests of the administration of justice was “against” the exercise of the Court’s discretion to reinstate the proceedings.
The first factor of relevance is the explanation for the Applicant’s non-appearance at the scheduled hearing in April 2015. It is a fundamental principle that a party should be bound by a decision if he or she had full notice and hence the opportunity to appear and to be heard in the proceedings. However in this case there is unchallenged affidavit evidence from the Applicant that he was not aware of the hearing date. While there is some lack of clarity in his affidavit evidence about the reasons and circumstances in which he was not notified of the hearing date by his former solicitor, consistent with his apparent assumption that his former solicitor sent correspondence to his previous (Altona North) address, in the notice of intention to withdraw as lawyer, the Applicant’s former solicitor gave the Applicant’s previous Altona North address as his address for service. It can be inferred from the notice of withdrawal that the solicitor sent the notice of intention to withdraw (which contained details of the hearing date and place, although not the time of the hearing) to the Applicant c/- the Altona North address. Similarly, as attested to in the affidavit of Hervee Dejean of 13 April 2015, the First Respondent’s letters of 7 and 8 April 2015 were also (unsurprisingly) sent to the Altona North address.
I accept on the basis of the Applicant’s unchallenged evidence that he did not know the date of the hearing and was first notified of the orders of 14 April 2015 by the Compliance Section of the Department in May 2015. I also accept that he had notified the Department of his change of address. In fact it appears that some notification to the Department of the new address must have been made no later than 5 April 2013, that is, some 9 months before the judicial review application was filed. On that date the Department sent a notification of the outcome of a request for Ministerial intervention to the Applicant c/- his former lawyer. A copy of this document is in the Courtbook. The notification was addressed to the Applicant at the South Kingsville address. It appears that the Department also sent a copy of the notification to the Applicant directly at the South Kingsville address.
Counsel for the First Respondent pointed out that in his affidavit the Applicant had made no assertion that he did not receive correspondence sent by his former solicitor to his former home address. While that is so, he stated quite clearly that he was not aware of how his case was progressing and was not aware of “when the hearing date was”. He was not required for cross-examination. I accept this evidence. Further, while the Applicant made no assertion in his affidavit that he had informed his former solicitor of his new address or taken any steps to ensure that the solicitor could contact him, his silence in this respect is to be seen in light of the departmental notification of 5 April 2013 addressed to him at the South Kingsville address and sent to him c/- his former solicitor.
The First Respondent also took issue with what was said to be an absence of evidence that the Applicant had been “diligently attempting” to contact his solicitor or the Court to monitor the progress of his case (which at the time of the hearing had been on foot for over a year). However the Applicant was represented until February 2015 and the notice of intention to withdraw as lawyer was apparently sent to the Altona North address. On its face the Applicant’s evidence that he did not know the hearing date supports an inference that he did not receive the notice of intention to withdraw containing this information. I am not persuaded that it would be reasonable to expect a represented party to contact the Court about the progress of his case. While it clearly would have been preferable had the Applicant made diligent attempts to keep in contact his solicitor and to make inquiries about the progress of his case (and to have provided affidavit evidence in that respect) and while it also would have been preferable if he had provided his new residential address and email address to his solicitor as well as to the Department (or, if he had done so, to have given evidence to that effect), I am not satisfied that the absence of evidence of action in this respect is such as to establish fault on his part in the sense considered in Wati.
Even if the absence of evidence of proactive steps being taken by the Applicant to contact his solicitor to monitor the progress of his case were to mean that the explanation for the circumstances leading up to his non-appearance at the hearing was not completely satisfactory, he has provided a reasonably satisfactory, albeit incomplete, explanation for his non-appearance at the hearing on 14 April 2015.
The Applicant also submitted that the application for an extension of time to seek judicial review of the Tribunal’s decision of 11 September 2012 had sufficient prospects of success to justify the exercise of the Court’s discretion to set aside the dismissal for non-appearance. This was put on the basis that if the matter was reinstated it would be, or there would be sufficient prospect that it would be, in the interests of the administration of justice to grant an extension of time pursuant to s.477(2) of the Act.
The First Respondent submitted that the application for an extension of time did not have sufficient prospects of success to justify the exercise of the Court’s discretion under r.16.05, even if there was a satisfactory explanation for the Applicant’s non-appearance.
The parties proceeded on the basis that it was relevant to have regard to the arguability of the Applicant’s application for an extension of time in circumstances such as the present. An extension of time application entails consideration of all the relevant circumstances (see SZTES v Minister for Immigration and Border Protection [2015] FCA 719). As Foster J pointed out in SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252; [2013] FCA 1284 at [46]-[48], factors which are ordinarily taken into account in considering an extension of time application include whether there has been a reasonable and adequate explanation for the delay in commencing the judicial review proceedings, whether there is any prejudice to the Minister, and whether the Applicant’s substantive case is sufficiently arguable to justify the extension of time (and see SZSJC v Minister for Immigration and Border Protection [2013] FCCA 1755 at [14]). It is also relevant to have regard to the absence of a right of appeal against a refusal to grant an extension of time. It is generally not appropriate to fully investigate the merits of the substantive case, as what is in issue in determining an extension of time application is whether the grounds intended to be relied on are reasonably or sufficiently arguable.
I bear in mind, however, that in the context of the present application it is not appropriate to decide whether I am satisfied that is in the interests of the administration of justice to grant an extension of time. Insofar as the extension of time application is relevant, what is in issue is whether it has sufficient prospects of success in the sense that it is reasonably arguable such that the interests of justice require that the Applicant be given the opportunity to present (and have determined) his case for the grant of an extension of time (as a prerequisite to any hearing of his substantive application).
Both parties addressed the delay in commencing the judicial review proceedings. Insofar as aspects of the submissions appeared to suggest that the Court should make a finding in these proceedings as to whether or not there was in fact a satisfactory explanation for the delay in commencing the judicial review proceedings, I have not done so. As indicated, I am not determining an application for an extension of time, but rather whether to set aside a dismissal for non-appearance. However it is relevant to consider the explanation provided for the delay as part of a consideration of whether the case for an extension of time is such that the interests of justice require that the Applicant be given the opportunity to present his case in that respect.
There was a significant delay between the time of the Tribunal decision of 11 September 2012 and the application to the Court on 22 January 2014. In support of the application for an extension of time the Applicant’s former solicitor, Issam Issa, swore a very brief affidavit on 22 January 2014 to explain the delay in seeking review, relevantly stating (errors in original):
I have recently become aware that as a result of Minister for Immigration and Citizenship V SZQRB [2013] FCAFC (20 March 2013) that the correct evidentiary test when defining complementary protection criterion is that adopted when determining refugee criterion “ the real chance test”. Had I known may have advised my client to seek judicial review.
Both grounds in the original judicial review application took issue with the Tribunal’s consideration of the complementary protection criterion.
It was foreshadowed by counsel for the First Respondent that if the matter were to be reinstated and the hearing of the application for an extension of time proceeded, Mr Issa may be required for cross-examination. This reinforces my view that at this stage it is not appropriate to make a finding as to whether the explanation for the delay in bringing the application for review is in fact satisfactory, whether in relation to part, or all, of the delay.
The First Respondent referred to the views expressed by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67 in relation to an application for an extension of time in relation to proceedings in the High Court (at [16]):
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, “[t]he rules of court must prima facie be obeyed.” The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision9. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court (footnote omitted).
This does support the view that the issue of whether there is a satisfactory explanation for a delay is of relevance. In this case there is no evidence from the Applicant as to when he became aware of the Tribunal’s decision (except that it must have been before he instructed his solicitors to start proceedings in this court in January 2014). There is not necessarily an exact parallel between an application for an extension for time in which to seek relief in the High Court and an application for judicial review of a Tribunal decision filed in this court. There may be cases in which, despite the absence of a completely satisfactory explanation for delay in commencing judicial review proceedings, the strength of a proposed ground of review may be such as to warrant an extension of time to bring proceedings in this court, particularly if there is no prejudice to the Respondents and bearing in mind the absence of a right to appeal from a decision to refuse an extension of time. That would be a matter to be determined on the hearing of any application for an extension of time.
It is somewhat artificial to consider the “arguability” of an explanation for a delay in starting judicial review proceedings in the present context. An explanation in writing (see s.477(2)(a)) for the delay has been proffered. Whether or not that is satisfactory ought not to be determined in advance, particularly as this may depend on how the evidence emerges after cross-examination. There are obvious issues that would have to be addressed in relation to this “explanation” but I also bear in mind that in an appropriate case, notwithstanding the absence of an entirely satisfactory explanation, the merits of the case and all of the circumstances may warrant the grant of an extension of time.
I note that the Applicant submitted that there would be no, or negligible, prejudice to the Respondents as a result of an extension of time that could not be addressed by a costs order if appropriate compared to the impact on him of being refouled to his country of origin without his judicial review application being heard and that in this sense the impact on him of not being granted an extension of time would be serious. It was also submitted that it was in the interests of the Australian community to have refugee claims heard and determined according to law. The First Respondent did not disagree with the relevance of these principles in relation to an extension of time application.
In my view, in the present circumstances (where the Applicant has given a reasonably satisfactory explanation for his non-appearance at the hearing), what is critical is an assessment, in a preliminary sense, of the merits of the substantive application for the purposes of considering whether the interests of justice require that the Applicant should be given the opportunity to present his case for an extension of time.
At the hearing of the application under r.16.05 (at a time when there were two grounds in the application), argument about the “merits” was more detailed than would normally be necessary or desirable in such proceedings. That occurred in circumstances where it was necessary to identify the basis for the grounds relied on by the Applicant as originally pleaded in circumstances where issues raised for him appeared to go beyond the pleaded grounds. The proposed amended application filed after the hearing includes a new ground in relation to the exercise of the Tribunal’s discretion not to postpone the Tribunal hearing and reformulates the two grounds that take issue with the Tribunal’s consideration of the complementary protection criterion. The parties ultimately addressed the merits of the proposed grounds of review as they appear in the proposed amended application. I have proceeded on the basis that, having regard to the fact that it is generally inappropriate to fully investigate the merits of the substantive case in considering an application for an extension of time, so it is similarly (if not more) inappropriate where what is in issue is whether good reason has been established to exercise the discretion to set aside a dismissal for non-appearance (so that the Applicant has the opportunity to make his case for an extension of time) in circumstances where the Applicant was not aware of the hearing.
If his application were to be reinstated, the Applicant proposes to rely on the three grounds of review which appear in the proposed amended application. I have had regard to such proposed grounds and have not confined my consideration to the grounds raised in the original application for review.
The second and third proposed grounds take issue with aspects of the Tribunal’s consideration of the complementary protection criterion. It is asserted that there was “no evidence that the Tribunal applied the correct evidentiary test” with regard to the complementary protection criterion and that the Tribunal misinterpreted, misunderstood or misapplied the applicable law or otherwise failed to ask the correct question with regard to the correct test to be applied pursuant to s.36(2)(aa) of the Act, on the basis that it made no attempt to distinguish between the different tests posed in relation to the Refugees Convention criterion and the complementary protection criterion and did not engage with the language of s.36(2)(aa). However, for the limited purpose of the present proceedings, it is not necessary to consider the merits of these grounds, because I am of the view that ground 1 in the proposed amended application is sufficiently arguable to warrant reinstatement in all the circumstances such as to permit consideration of the application for an extension of time.
Proposed ground 1 is as follows:
Ground 1: Denial of Natural Justice and Procedural Fairness
1. The second respondent committed jurisdictional error by denying the request by the applicant to postpone and reschedule the hearing due to illness, which was supported by medical evidence, and therefore exercised the discretion pursuant to section 426A(2) of the Migration Act 1958 (Cth), in an unreasonable, arbitrary and capricious manner and denied the applicant an opportunity to appear and give evidence and present arguments in violation of section 425 of the Migration Act 1958 (Cth). In doing so, the second respondent failed to accord the applicant substantial justice, in violation of section 420 of the Migration Act 1958 (Cth) and failed to accord the applicant natural justice and procedural fairness in violation of section 422B of the Migration Act 1958 (Cth).
Particulars
a) On 5 July 2012, the applicant was invited to appear before the second respondent. In particular, the second respondent stated that it will only change this hearing date for a ‘good reason’.
b) On 11 July 2012, the applicant sent a response to the hearing invitation and indicated that the applicant and his representative would be attending.
c) On 16 August 2012, the applicant attended the hearing in Melbourne with his representative in Sydney via telephone. Prior to the hearing commencing, the applicant advised that he would like to seek an adjournment because he was not feeling well due to influenza.
d) The case worker contacted the Member (Charlie Powles) with the request and the member tole the case worker that the Tribunal required medical evidence within 3 business days on or before 21 August 2012.
e) The applicant completed a hand written letter requesting an adjournment, stating he was ‘really ill’ and ‘got a really high fever’ and his ‘voice almost lost.’
f) On 22 August 2012, the applicant’s representative sent to the second respondent a medical certificate as requested, which certified that Doctor Vladimir Vizec had examined the applicant and found the applicant was suffering from a respiratory infection and was unfit for work to and including Wednesday 22 August 2012.
g) On 22 August 2012, the second respondent wrote to the applicant and refused the applicant’s request for the hearing to be postponed. The second respondent erred and acted unreasonably, arbitrarily and capriciously by stating in that letter that the applicant did not provide ‘any’ medical certificate or other supporting evidence indicating why the applicant was not capable of participating in the hearing on 16 August 2012, when clearly the applicant did so.
h) As a consequence, the second respondent decided the application for review without giving the applicant an opportunity to appear before it to give evidence and present arguments and on 11 September 2012, affirmed the decision of the delegate to the first respondent to refuse the grant of a Protection (Class XA) visa.
i) Importantly, the applicant’s original application was made before the introduction of the complementary criterion and did not particularise such claims.
j) At [54] of the decision record, the second respondent observed that ‘as the applicant did not attend the hearing, the tribunal had been unable to question him in relation to these matter, leaving his claims under clarified and relevant questions unanswered.’
k) Similarly, the second respondent observed at [60] of the decision record that ‘in view of the insufficient information and lack of detail contained in the applicant’s claims’, the Tribunal was not satisfied that there was a real risk the applicant would suffer significant harm under the complementary criterion.
l) As a result of the decision by the second respondent to refuse the applicant an adjournment due to illness, the applicant was denied the opportunity to appear at the hearing to present arguments and give evidence and the second respondent found against the applicant as a consequence.
While expressed as an assertion of a denial of natural justice and procedural fairness, this proposed ground, as the First Respondent recognised, appears to involve a contention of legal unreasonableness in relation to the exercise of a discretion by the Tribunal. It is asserted that the Tribunal exercised its discretion pursuant to s.426A(2) of the Act in an unreasonable, arbitrary and capricious manner and also that the Tribunal denied the Applicant an opportunity to appear and give evidence and present arguments contrary to s.425 of the Act.
The particulars to this proposed ground take issue with the Tribunal’s approach to the Applicant’s request for a postponement of the Tribunal hearing. The evidence in the Courtbook is that the Applicant sought a postponement of the hearing at the Tribunal premises on the day of the scheduled hearing (16 August 2012) on the basis that (as recorded in a file note) he had the flu and was not feeling well (and had a medical certificate but had given it to Medicare with a claim form). He provided a letter requesting an adjournment on the basis that he was “really ill”, had a high fever and had almost lost his voice.
According to a Tribunal file note, an officer advised the Applicant that the Tribunal member required medical evidence within 3 business days stating “why the applicant could not complete (sic) the hearing”. The Tribunal member was said to have indicated that there was no guarantee that a new hearing would be granted without sufficient evidence. The Applicant was recorded as having stated that he understood the Tribunal’s request to provide documentary evidence in 3 working days regarding his incapacity to complete the hearing.
The Applicant (through his former solicitor) provided a medical certificate certifying that the doctor had examined him on 22 August 2012, found he was suffering from a respiratory infection and certifying that he would be “unfit for work up to and including Wednesday 22 August 2012”. The Tribunal refused the request for a postponement of the hearing. It addressed this issue in its reasons for decision as follows:
39. On 16 August 2012, the applicant attended at the Melbourne registry of the tribunal. Before the hearing commenced, the applicant requested that the hearing adjourned (sic) because, he claimed, he was not feeling well. The hearing officer advised the applicant that his request would need to be put in writing and would need to provide appropriate evidence in support of the request. The applicant told the hearing officer that he had had a medical certificate which he had given to Medicare. He stated he had a bad flu because he had recently given up smoking. The applicant provided a handwritten note in English to the tribunal officer which requested an adjournment of the hearing he was (sic) “really ill and got a really high fever” and his “voice almost lost”.
40. The hearing officer consulted with the presiding member and then informed the applicant that he needed to provide within three working days medical evidence stating why he was unable participate (sic) in the hearing. The hearing officer advised the applicant that there was no guarantee that a new hearing would be scheduled unless the applicant provided sufficient evidence for why he had been unable to participate in the hearing on 16 August 2012. The applicant told the hearing officer he understood that he needed to provide supporting evidence about his incapacity to participate in the hearing on that day. The hearing officer contacted the representative and advised him of the applicant’s adjournment request and the need to provide supporting evidence within three working days.
41. On 22 August 2012, the tribunal received a letter from the representative attached to which was a medical certificate in the name of the applicant stating that the medical practitioner issuing the certificate had examined the applicant on 22 August 2012, found him to be suffering from a respiratory infection and stating that the applicant would be unfit for work “up to and including Wednesday, 22 August 2012.”
42. After receiving the letter from the representative on 22 August 2012, the tribunal sent a letter to the applicant and the following terms (sic):
On 5 July 2012, the Tribunal sent a letter advising you that it had considered the material before it but was unable to make a favourable decision on that information alone and inviting you to appear before the Tribunal to give evidence and present arguments relating to the issues arising in your case on 16 August 2012.
On 11 July 2012, the Tribunal received a letter from your representative enclosing a Response to Hearing Invitation form signed on your behalf stating that you and the representative would attend the hearing scheduled for 16 August 2012.
On 16 August 2012, you attended at the Melbourne registry of the Tribunal and stated that you did not wish to proceed with the hearing on that day because you had a bad flu, exacerbated by you recently giving up smoking. An officer of the Tribunal (the officer) advised you that a request to have the hearing postponed needed to be in writing and submitted with appropriate evidence to support that request. The officer advised you that the supporting evidence would need to be an assessment by a competent medical practitioner indicating why you were not capable of participating in the hearing on 16 August 2012. You then provided the officer with a hand written note requesting that the hearing be adjourned because you were “really ill and got a really high fever” and because your “voice almost lost”.
The Tribunal granted you three working days from 16 August 2012 to provide the supporting evidence that you had been advised needed to be provided. You stated to the officer that you had a medical certificate, that you had given that medical certificate to Medicare when submitting an application to them and that you would provide a medical certificate within the time required. The officer contacted your representative by telephone on 16 August 2012 and advised him of the need for supporting evidence to be provided within three working days of 16 August 2012, that is, by the close of business on 21 August 2012.
Today, 22 August 2012, the Tribunal received from your representative a letter enclosing a medical certificate stating that a medical practitioner examined you on 22 August 2012, found you suffering from a respiratory infection and that you are unfit for work on Wednesday, 22 August 2012. This medical evidence does not indicate that you were unable to participate in the hearing on 16 August 2012. Nor does it provide any assessment of your medical condition or capacity to participate in a hearing on 16 August 2012.
Accordingly, the Tribunal finds that you have not provided any medical certificate or other supporting evidence indicating why you were not capable of participating in the hearing on 16 August 2012.
In light of the above, the Tribunal has considered the information before it in relation to your request to have the hearing postponed until another date. The Tribunal notes the absence of any medical certificate or other assessment by a competent medical practitioner as to your capacity to participate in the hearing scheduled for 16 August 2012 despite you having been given three working days, which in this case also included the two days of the weekend 18 – 19 August 2012, to provide evidence of this sort, which you have not done.
As a result, following ss 425 & 426A of the Act, the Tribunal refuses your request for the hearing to be postponed.
The Tribunal will now proceed to make a decision on the application for review. You are invited to provide any further information or submissions you wish to make in relation to the application for review in writing by 31 August 2012, after which time the Tribunal will make a decision on your application for review.
The Applicant provided a statutory declaration to the Tribunal dated 31 August 2012. On 3 September 2012 his solicitor advised the Tribunal that the Applicant was seeing a psychologist and that a report and statements from witnesses would be submitted within seven days (and that the Applicant had a drinking problem).
However, the Tribunal found:
48. The tribunal notes the claim made by the applicant in his hand written note provided to the tribunal on 16 August 2012 that he was not well on that day and also his claims made in the statutory declaration that he has been suffering an addiction to “smoking” and alcohol that resulted in him suffering a medical problem on 16 August 2012 that affected his ability or capacity to attend and participate in the hearing scheduled for that day. The tribunal notes the applicant and the representative undertook to provide medical evidence in support of the claims made in the statutory declaration within seven days of 3 September 2012, being 10 September 2012, yet no medical evidence was provided by the end of 10 September 2012.
49. As a result, the tribunal has no further information before it about any medical or health problem the applicant may have been suffering on or about 16 August 2012 which affected his ability to attend and participate in the hearing scheduled for that day. Nor does the tribunal have any information before it as to any other reason why the applicant was unable to attend and participate in the hearing scheduled for 16 August 2012.
50. In the absence of any medical evidence as to the applicant’s state of health on 16 August 2012 in circumstances where the applicant has repeatedly undertaken to provide medical evidence about his claimed medical condition on that day but has not done so, the tribunal does not accept the applicant’s assertions that he was suffering a medical problem that prevented him from being able to participate in the hearing scheduled for 16 August 2012.
The Tribunal also found that as the Applicant had not attended the hearing it had been unable to question him in relation to aspects of his claims leaving his claims “under clarified” and relevant questions “unanswered” and that the evidence he had provided about his claimed sexuality, medical problems and other matters was vague and generalised. It did not accept his claim that he had engaged in homosexual activity; that he was gay; that he was not a committed Muslim; that he had engaged in social activities or other conduct that would lead to him being perceived as “westernised”; that he suffered from an alcohol or “smoking” addiction or any other medical problem; or the other claims that he made in support of his protection visa application.
The proposed ground involves a contention that the Tribunal erred and acted unreasonably, arbitrarily and capriciously by stating in its letter that the Applicant did not provide “any” medical certificate or other supporting evidence indicating why he was not capable of participating in the hearing when (it is asserted) “clearly” he did so. It is argued that as a result of the Tribunal’s decision to refuse the adjournment due to illness, the Applicant was denied an opportunity to appear at the hearing to present arguments and give evidence and that the Tribunal found against him as a consequence.
In submissions in support of the contention that the Applicant had an arguable ground in this respect, the Applicant referred to principles of procedural fairness as considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 611 (in particular the observations of Gaudron and Gummow JJ at [40] that a failure to accede to a reasonable request for an adjournment could constitute procedural unfairness) and also the principles considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 in relation to the reasonableness of a decision not to adjourn review proceedings in order to afford an applicant the opportunity to put further evidence before the Tribunal.
The First Respondent submitted that ground 1 was factually misconceived and that the Tribunal’s finding that the Applicant was not suffering a medical problem that prevented him from being able to participate in the hearing scheduled for 16 August 2012 was clearly open on the evidence before the Tribunal. It was also submitted that the Tribunal had given a “comprehensive, highly intelligible and persuasive set of reasons” as to why it did not accept the Applicant was ill on 16 August 2012 and had thus decided to proceed under s.426A of the Act so that in the particular circumstances of this case the Tribunal’s decision could not arguably be said to be unreasonable or to lack any intelligible justification; could not be a breach of s.425 as the Applicant had been invited on 5 July 2012 to a hearing on 16 August 2012; and could not be a breach of s.420 or s.422 as the Applicant was found not to be sick and that hence this ground had no prospects of success or was not sufficiently arguable to warrant an extension of time, particularly given the significant delay in seeking review and what was said to be a need for exceptional circumstances on the basis that there was no satisfactory explanation for the delay.
However, there is a detailed particularised ground asserting a lack of reasonableness and a failure to comply with s.425 of the Act. Insofar as the First Respondent submitted that the Tribunal decision could not arguably be said to be unreasonable or lacking any intelligible justification in the sense considered in Li and in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1, whether or not the ground as pleaded would in fact be sufficient to warrant an extension of time or to establish jurisdictional error at a final hearing, it is sufficiently arguable to support the application for reinstatement. Moreover, contrary to the suggestion that there could not be a breach of s.425 of the Act, as the Applicant had been invited on 5 July 2012 to appear at a Tribunal hearing on 16 August 2012, in circumstances where (before the hearing commenced and after the Applicant advised that he was not well) the hearing did not proceed, the fact of the hearing invitation itself may not necessarily be such as to establish that there could not be a breach of s.425 of the Act. That would be a matter for determination if the matter proceeded to a final hearing. More generally, the scope of procedural fairness and the application of s.422B of the Act are contentious matters that ought not to be determined in proceedings of this nature.
Notwithstanding the issues raised by the First Respondent relevant to the exercise of the discretion under s.477(2) of the Act, I am satisfied for present purposes (that is in the context of considering the application for reinstatement) that the proposed ground of review is sufficiently arguable to support the application for reinstatement.
In conclusion, having regard to the particular circumstances of this case, including the explanation for the Applicant’s non-appearance at the scheduled hearing, the Applicant has raised a ground that has sufficiently arguable prospects of success such as to satisfy me that good reason has been established to exercise the discretion to set aside the dismissal for non-appearance so that he has the opportunity to present his case for an extension of time to seek review of the Tribunal decision which affirmed the decision not to grant him a protection visa.
I am satisfied that it is appropriate to exercise the discretion to set aside the order made on 14 April 2015 dismissing the application for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 11 November 2016
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