SZUWM v Minister for Immigration
[2015] FCCA 2153
•11 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUWM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2153 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not attending Tribunal hearing – Tribunal proceedings to make its decision – whether the Tribunal acted unreasonably, overlooked a relevant consideration or breached s.425 of the Migration Act 1958 (Cth) considered. |
| Legislation: Migration Act 1958 (Cth), ss.36, 362B, 414A, 422B, 425, 425A, 426, 426A, 427, 429A, 430, 441A, 441C |
| Applicant NAHF of 2002 v Minister for Immigration (2003) 128 FCR 359 Dunsmuir v New Brunswick [2008] 1 SCR 190 Kaur v Minister for Immigration [2014] FCA 915 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration v SZIAI (2009) 259 ALR 429 Minister for Immigration v SZNVW (2010) 193 FCR 575 NALM v Minister for Immigration [2004] FCAFC 17 NALQ v Minister for Immigration [2004] FCAFC 121 SZBQG v Minister for Immigration [2005] FCA 1858 SZIGQ v Minister for Immigration [2007] FCA 328 SZJQP v Minister for Immigration [2007] FCA 1613 SZLBE v Minister for Immigration [2010] FCA 1335 SZLLY v Minister for Immigration [2009] FCA 185 SZNRO v Minister for Immigration[2010] FCA 137 SZOKD v Minister for Immigration [2010] FCA 1335 SZQRU v Minister for Immigration [2012] FCA 1234 |
| First Applicant: | SZUWM |
| Second Applicant: | SZUWN |
| Third Applicant: | SZUWO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2180 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2015 |
REPRESENTATION
| Counsel for the Applicants: | Mr B Symons |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended on 14 August 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2180 of 2014
| SZUWM |
First Applicant
SZUWN
Second Applicant
SZUWO
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 9 July 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are three applicants, who are a father, mother and infant child. The first applicant was appointed the litigation guardian for the third applicant. The relevant protection claims were made by the first applicant. References in this judgment to “the applicant” are intended to be references to him.
The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of Bangladesh, arrived in Australia on 29 January 2013 travelling on a tourist (class TU) (subclass 676) visa[1]. On 27 February 2013, the applicant applied for a protection (class XA) visa[2] with two members of the same family unit[3]. The applicant claimed to fear harm in Bangladesh because of his affiliation with the Bangladesh Nationalist Party (BNP). On 27 August 2013, a delegate of the Minister refused to grant the visas[4]. On 23 September 2013, the applicants applied to the Tribunal for review of the delegate’s decision[5].
[1] Court Book (CB) 85
[2] CB 1
[3] CB 27 and 34
[4] CB 97
[5] CB 98
Tribunal proceeding
In the application to the Tribunal, the applicant appointed a representative to act on his behalf and to be his authorised recipient[6].
[6] CB 100
By letters faxed to the applicants’ representative and the applicants on 12 March 2014, the Tribunal invited the applicants to a hearing arranged for 8 July 2014[7]. The applicants’ representative completed and returned a response to the hearing invitation; signed and dated on 20 May 2014[8].
[7] CB 111 and 114
[8] CB 116
By letter faxed to the Tribunal on 7 July 2014, the applicants’ representative requested a postponement of the hearing, and provided a medical certificate pertaining to the applicant and a confirmation of a medical appointment pertaining to his wife (second applicant), respectively[9]. By letters faxed to the applicants’ representative and the applicants on the same day, the Tribunal informed the applicants that it had decided not to postpone the hearing and that it would proceed unless they gave further information to the Tribunal as to the nature of the illness[10].
[9] CB 118, 120-121
[10] CB 122 and 124
By sending the notice to the last facsimile that the applicants had notified to the Tribunal, the notice was sent by a method specified in s.441A(5) of the Migration Act 1958 (Cth) (Migration Act). As a result, the applicants are deemed to have received the notice at the end of the day it was sent[11].
[11] Section 441C(5) of the Migration Act: see Kim v Minister for Immigration [2006] FCAFC 64 at [8]
The applicants did not appear at the hearing on 8 July 2014[12].
[12] CB 126 and 129
On 9 July 2014, the Tribunal affirmed the decision of the delegate not to grant the applicants protection visas[13].
[13] CB 133
The Tribunal found the applicants’ reasons for failure to attend the hearing “unsatisfactory,” and pursuant to s.426A of the Migration Act made its decision on the review without taking further action to enable the applicants to appear before it[14].
[14] CB 138-139 at [39] and [47]
The Tribunal found the information provided by the applicant was not “sufficiently detailed” to enable it to be satisfied the applicant faced a real chance of persecution for a Convention reason pursuant to s.36(2)(a) of the Migration Act[15]. In particular, the Tribunal found there was insufficient information before it in relation to the applicant’s claimed affiliation with the BNP[16].
[15] CB 139 at [46] and [52]
[16] at [48]
For the same reasons, the Tribunal was not satisfied there was a real risk the applicant would suffer significant harm in Bangladesh pursuant to s.36(2)(aa) of the Migration Act[17].
[17] CB 139-140 at [51] and [53]
The judicial review application
These proceedings began with a show cause application filed on 4 August 2014. An amended application was filed on 30 April 2015. On that day I ordered the Minister to show cause why relief should not be granted in relation to the grounds advanced in that amended application. The matter came before me on a final basis on 10 August 2015. At that time, counsel for the Minister expressed concern that written submissions prepared by counsel for the applicant were not entirely consistent with the grounds in the amended application. I gave leave for the applicant to file a further amended application consistent with his counsel’s submissions. A further amended application was filed on 14 August 2015. The grounds in that application are:
1.The Second Respondent exercised its discretion “unreasonably” in failing to order an adjournment of the hearing of the Applicant's case, pursuant to section 427(1)(b) of the Migration Act. It acted “unreasonably” because it failed to order an adjournment to allow the Applicant to give evidence at a later time than 9 July 2014 after the Second Respondent received a medical certificate from the Applicant the day before he was due to give evidence on 8 July 2014 indicating that the Applicant would be unwell until at least 9 July 2014. Minister for immigration and Citizenship v Li (2013) 249 CLR 332.
2.The Second Respondent failed to take account of a relevant consideration, the Applicant's medical certificate, in exercising its discretion, pursuant to section 427(1)(b) of the Migration Act, not to adjourn the hearing of the Applicant's case to allow the Applicant to give evidence at a time later than 9 July 20 14.
3.The Second Respondent failed to extend the Applicant a “real and meaningful” invitation pursuant to section 425(1) of the Migration Act because it failed to properly take account of the Applicant 's medical certificate and the fact that the Applicant was unwell in failing to order an adjournment of the hearing of the Applicant's case to allow the Applicant to give evidence at a time later than 9 July 2014.
In addition to the court book filed on 28 September 2014, I have before me as evidence the applicant’s affidavit filed on 30 April 2014. Counsel for the Minister objected to the receipt into evidence of three documents annexed to that affidavit. Two of those documents are copies of a medical certificate apparently signed by a Dr Elaine Caplan in which she certifies that she saw the applicant on 7 July 2014 and provided a medical certificate. Dr Caplan goes on to express an opinion as to the applicant’s fitness to give evidence before the Tribunal on 8 July 2014. The third document is simply a facsimile cover sheet from the Gateway Medical Centre. I declined to receive the copied certificates as evidence of the fitness of the applicant to attend the Tribunal hearing on 8 July 2014. I received them on the more limited basis as evidence of the certificate and opinion that Dr Caplan might have provided for the purposes of the Tribunal hearing if she had been asked.
Consideration
The applicant contends that the Tribunal acted unreasonably in failing to “properly” consider the limited medical certificate he provided through his agent to the Tribunal, the day before his scheduled hearing before the Tribunal. This could also be put as an assertion that the Tribunal acted unreasonably in failing to reschedule or adjourn the hearing in the light of the certificate.
The applicant relies upon two decisions to support his contention.
The recent High Court case of Minister for Immigration v Li[18] considered the circumstances in which it would be “unreasonable”, in the context of a judicial review application, for a Tribunal to adjourn a hearing. That case laid down the following principles:
a)review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”; quoting the Canadian Supreme Court case of Dunsmuir v New Brunswick[19] with approval[20];
b)judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy[21]; and
c)the stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency[22].
[18] (2013) 249 CLR 332
[19] [2008] 1 SCR 190 at 220-221 [47]
[20] Minister for Immigration v Li at 375 [105]
[21] Minister for Immigration v Li [2013] 249 CLR 332 at 376 [108]
[22] Ibid at 378 [113]
In the case of SZJQP v Minister for Immigration[23], the Federal Court held that a Tribunal had acted “unreasonably” in refusing an adjournment to an applicant who had been taken ill and provided a medical certificate to the Tribunal[24]. The relevant facts were:
a)the applicant in that case was due to give evidence at a hearing of the Tribunal on 23 August 2006;
b)the applicant in that case had been ill and travelled from Ashfield to Blacktown to see a doctor and obtain a medical certificate on the day he was due to give evidence at the Tribunal;
c)the distance from Ashfield to Blacktown was greater than from Ashfield to the Tribunal;
d)the applicant in that case provided the medical certificate to the Tribunal on 24 August 2006, the day after he was to give evidence; and
e)the medical certificate indicated that the applicant in the case “was unable to attend work/school from 23/8/06 to 24/8/06 inclusive”[25] (the applicant being due to give evidence on 23/8/06).
[23] [2007] FCA 1613
[24] Ibid at [54]
[25] Ibid at [11]
The Tribunal refused to reschedule the hearing of the applicant’s evidence in that case. The Tribunal appeared to consider that the applicant’s failure to attend was unsatisfactory. The Tribunal also appeared to consider rescheduling the hearing a waste of time. This was in the applicants’ submission because:
a)the Tribunal insinuated that it had doubts about the authenticity of the medical certificate provided, although they did not make a finding that the medical certificate was not genuine;
b)the Tribunal considered the claim that the applicant in that case had been ill a week before the hearing to be without foundation; and
c)the Tribunal appeared to consider that if the applicant in that case could have travelled from Ashfield to Blacktown on the day of the hearing, the applicant could just as easily have gone to the Tribunal. If the Tribunal had assessed the applicant as unwell the Tribunal could have adjourned the hearing;
d)however, the Tribunal also stated that if an applicant was taken ill the standard procedure would be to contact the Tribunal immediately and provide a medical certificate as to why they could not attend;
e)the Tribunal also considered that it should record its decision within 90 days, pursuant to s.414A of the Migration Act, and that it would not be possible to adjourn the hearing to another time within the next two months to meet this requirement; and
f)the Tribunal indicated that the applicant in that case had failed to respond to invitations in the past and they considered the applicant’s actions just another stalling tactic[26].
[26] See SZJQP at [11]
Gilmour J found that the decision of the Tribunal was infected with jurisdictional error. His Honour made the following findings:
a)he was surprised that the Tribunal could not find a suitable date to recall the witnesses to give evidence and meet its obligation pursuant to s.430 of the Migration Act to record its decision within 90 days of being provided with the relevant documentation in relation to the matter[27];
b)he was not troubled by the fact the applicant in that case had travelled all the way to Blacktown to see a doctor. Gilmour J considered it was possible that a friend had recommended that he consult that doctor. His Honour also considered it possible that a friend may have driven him to the appointment, and he was not therefore troubled by the distance the applicant in that case had travelled to attend the doctor’s appointment on the day that he was to give evidence at the Tribunal[28];
c)he considered that little weight should be given to the Tribunal’s previous experience that applicants who are genuine are anxious to come to a hearing and contact the Tribunal immediately if they are taken ill. The Tribunal seemed to make a judgement on this experience that the medical certificate was unsatisfactory. On the contrary, Gilmour J considered the medical certificate to be satisfactory[29].
[27] Ibid at [49]
[28] Ibid at [51]
[29] Ibid at [51]
Gilmour J concluded that:
a)the Tribunal had not accepted that the medical certificate was to the effect that the applicant in that case was not able to attend the hearing on 23 August 2006, and the Tribunal had therefore acted “unreasonably” [30];
b)the Tribunal had before it a medical certificate which was genuine on its face and it appeared to ignore it. The Tribunal had therefore failed to take account of a relevant consideration [31].
[30] Ibid at [54]
[31] Ibid at [57]
Two points need to be made in relation to the applicant’s contentions. The first is that the decision of the Federal Court in SZJQP did not establish that the Tribunal is bound to reschedule a hearing in the face of a certificate that simply states that an applicant is unfit for work. Gilmour J records at [9] of his decision that there was evidence that the Tribunal sought clarification from the medical centre responsible for the certificate in the case before him and was rebuffed on the basis of client confidentiality. At [36] his Honour noted that the Tribunal in that case elected to make enquiries and give reasons for the exercise of its discretion. His Honour framed the issue as whether in exercising its discretion, the Tribunal took irrelevant matters into account or failed to take relevant matters into account. After considering the circumstances in the case before him, Gilmour J concluded at [54] that it was arguable that the Tribunal disregarded the medical certificate. Although his Honour expressed the opinion that the Tribunal had acted unreasonably, it needs to be borne in mind that his Honour was dealing with what was then an appeal from a decision of this Court to refuse to grant an extension of time for the filing of a judicial review application. His Honour ordered that time be extended. Plainly, the Court decision was not a final statement of the legal merits of the applicant’s assertions but the finding that there was an arguable case that should be dealt with in the interests of the administration of justice.
Further, the issue in this case needs to be considered in its factual context. On that, the applicant deposes in his affidavit to the relevant facts and circumstances. He was cross-examined at some length on his affidavit. The relevant facts appear to me to be that on 7 July 2014 the applicant felt unwell and arranged for a friend to drive him to the Gateway Medical Centre where he was seen by Dr Caplan. Before he went to the doctor, the second applicant spoke to their migration agent who advised that a medical certificate should be obtained to show to the Tribunal. After the applicant saw the doctor and obtained the certificate, he telephoned their agent and arranged to fax the certificate to him. The court book records[32] that the applicant faxed the certificate to the agent from the BP service station at Mona Vale and the agent forwarded the certificate to the Tribunal by facsimile. It is clear from CB 122 that on receipt of the certificate, the Tribunal immediately, by letter, sought further information from the migration agent about the applicant’s medical condition. No response was received and the applicant did not attend the scheduled hearing.
[32] at CB 121
The applicant gave evidence that he had a further conversation with his agent on 7 July 2014 to confirm receipt of the medical certificate and two further conversations on 8 July and following the decision of the Tribunal. His evidence is that at no time did his agent inform him that the Tribunal required further information about his medical condition. I accept that evidence. It is reasonable to conclude that the agent was at fault in not raising with the applicant the Tribunal’s request for clarification. It was, in my opinion, both reasonable and proper for the Tribunal to seek the clarification it did because the simple statement that the applicant was unfit for work did not answer the question of whether he was fit to attend the Tribunal hearing. The Tribunal was required to communicate with the applicant through his agent who had been nominated as his authorised recipient and it was not the fault of the Tribunal that it received no response to its enquiry. In my opinion, in the circumstances of this case, it was not unreasonable for the Tribunal to proceed to make its decision in circumstances where there was no communication to the Tribunal following its request for clarification and no attendance by the applicant at the scheduled hearing.
I otherwise agree with the Minister’s submissions.
Procedural fairness
The relevant inquiry is not whether, in some general sense, the applicants were denied procedural fairness. Rather, the question is whether there was some failure to comply with the relevant statutory provisions[33].
[33] in particular s.425 of the Migration Act: see s.422B of the Migration Act which operates as, relevantly in this case, an exhaustive statement of the natural justice hearing rule
In NALQ v Minister for Immigration[34], the Full Federal Court held:
The Tribunal, having made the reasonable requirement that some evidence be produced to support the request for an adjournment, did not render the s 425 invitation illusory by proceeding to the hearing on the appointed day in the absence of the appellant. It also had regard to the fact that the appellant had known of the date of the proposed surgery at the time that he had accepted the invitation to attend the hearing. Nothing in the Tribunal’s approach reflected a failure to provide a real opportunity to the appellant to be heard. There was nothing in its approach to this matter therefore that was in breach of s 425, however construed. Nor was there any procedural unfairness on the part of the Tribunal.
There remains the question whether, unknown to the Tribunal, the appellant was in truth unfit to participate in the hearing. If, as a matter of fact, the appellant had been unfit to participate in the hearing, the Tribunal’s lack of awareness of that fact flowed from the appellant’s failure to respond to its reasonable request for further support for the adjournment. Such protection as is offered by s 425 and by the requirements of procedural fairness was not thereby vitiated. The situation which arose, assuming the appellant to have in fact been unfit to attend the hearing, arose from the appellant’s failure to respond to the Tribunal’s request. On the facts found by the learned federal magistrate that failure was followed or accompanied by a considered decision to furnish a written submission to the Tribunal.
[34] [2004] FCAFC 121 at [35]-[36]
The question therefore has two parts. First, on the material before the Tribunal, was it open to reject the applicants’ request for an adjournment. Secondly, as a matter of fact, was the applicant (or were the applicants) so ill on the day of the hearing that the invitation to the hearing was rendered meaningless[35].
[35] see eg SZQRU v Minister for Immigration [2012] FCA 1234 at [19]; SZLLY v Minister for Immigration [2009] FCA 185 at [19]; Applicant NAHF of 2002 v Minister for Immigration (2003) 128 FCR 359
In respect of the first question, in my opinion, it was open to the Tribunal to reject the request for an adjournment given the state of the evidence before it. The medical certificate provided in respect of the applicant stated only that he was suffering from a “medical condition” and that he will be “unfit for his normal work” for a three day period. It did not state what the applicant’s symptoms were, or that those symptoms rendered him unfit to attend the hearing. The evidence in respect of the second applicant was even more scant. It stated only that she had a 15 minute appointment with a gynaecologist and obstetrician on the day after the scheduled hearing. Given the paucity of information about the applicants’ claimed illness, it was open to the Tribunal to reject the adjournment request[36].
[36] SZNRO v Minister for Immigration[2010] FCA 137 at [13]; NALM v Minister for Immigration [2004] FCAFC 17 at [24]
In respect of the second question, the nature and degree of the applicant’s illness is a matter of factual dispute and was the subject of cross-examination. However, it must be noted that it is not sufficient for the applicant to show that he was ill or discomforted on the day of the hearing. The symptoms of the illness must be found to have been so significant that the applicant was unfit to attend the hearing and give evidence or present arguments[37]. In this case, even taking the applicant’s evidence at its highest, the applicant was not so disabled by his illness that he was incapable of attending the hearing.
[37] Minister for Immigration v SZNVW (2010) 183 FCR 575 at [37]
In any event, it does not follow that the Tribunal failed to comply with s.425 of the Migration Act. This is not a case where the Tribunal proceeded to determine the application on the day of the scheduled hearing. The Tribunal’s reasons were dated the next day. The applicant could have contacted the Tribunal after the scheduled hearing to provide the Tribunal with additional details of his illness. He did not. Thus, it was not his illness which deprived the applicant of an opportunity to attend a hearing, but his agent’s failure to provide the Tribunal with the information that it requested[38].
[38] SZBQG v Minister for Immigration [2005] FCA 1858 at [14]-[15]; SZOKD v Minister for Immigration [2010] FCA 1335 at [20]; SZLBE v Minister for Immigration [2008] FCA 1789 at [27]-[28]
Unreasonable exercise of the discretion
As previously noted, the Tribunal invited the applicants to appear before it. The notice of invitation to appear was in the correct form as mandated by s.425A of the Migration Act[39]. Relevantly, the notice contained a statement as to the effect of s.426A of the Migration Act[40].
[39] CB 111 and 114
[40] see s.425A(4)
Pursuant to s.426A of the Migration Act, if the applicant is invited to appear before the Tribunal and does not appear, “the Tribunal may make its decision on the review without taking any further action to allow or enable the applicant to appear before it.” As Downes J held in SZIGQ v Minister for Immigration[41]:
[T]he authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries.
[41] [2007] FCA 328 at [5]
It may be accepted however that s.362B of the Migration Act vests in the Tribunal a discretion as to whether or not to make a further attempt to allow a visa applicant to attend a hearing. Similarly, s.427(1)(b) vests in the Tribunal a discretionary power to grant the applicants an adjournment. It may be accepted that these powers must be exercised reasonably[42].
[42] see Kaur v Minister for Immigration [2014] FCA 915 at [82]; Minister for Immigration v Li (2013) 249 CLR 332
While expressed as a different ground of review, there is much to be said for the proposition that the allegation of unreasonableness is simply a different characterisation of the same issue which arises in respect of s.425[43].
[43] cf.Kaur v Minister for Immigration [2014] FCA 915 at [142] and [143]
In considering the applicants’ request for an adjournment, it is evident that the Tribunal “actively considered” the request, including the medical certificates provided in support[44]. Moreover the Tribunal’s statement in its letter of 7 July 2014[45] that the hearing would proceed, unless further evidence was provided to give information as to the nature of the illness shows that the Tribunal was prepared to entertain a further postponement request. The applicants did not provide the further evidence as requested (or at all) and instead chose not to attend the hearing[46]. The Tribunal’s finding was not one made without any “evident and intelligible justification”[47]. The Tribunal simply did not accept on the evidence before it that the applicants were unable to attend the hearing.
[44] CB 134 at [3]-[5] and [38]-[39]
[45] CB 124
[46] CB 138 at [38]
[47] applying Minister for Immigration v Li (2013) 249 CLR 332 at [76]
In so far as the applicants submit that the Tribunal should have exercised its power to conduct a telephone hearing under s.429A, there is no merit to the submission. The Tribunal is under no obligation to exercise, or consider exercising, the discretion in s.429A[48]. It cannot be unreasonable to fail to exercise the power in circumstances where the applicants made no request for a telephone hearing. Moreover, there are good reasons why a Tribunal may not wish to proceed by telephone in cases such as this where one matter the Tribunal has to determine is the applicant’s credit.
[48] Minister for Immigration v SZGUR (2011) 241 CLR 594 at [22] and [75]-[76]
Failure to make an inquiry
The applicants in their submissions seek to draw support from the statement of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration v SZIAI[49]:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
[49] (2009) 259 ALR 429
The applicants submit that the Tribunal should have made an inquiry as to the applicant and the second applicant’s health before it proceeded to determine the application. For several reasons the applicants’ contentions must fail.
First, it is not the case that the Tribunal failed to make any inquiry as to the health of the applicant and the second applicant. The Tribunal, via its facsimile request to the applicants’ agent, actually did make an inquiry by inviting the applicants to provide further information about their claimed illness[50].
[50] CB 124
Secondly, it is not clear in this case what the suggested inquiry should have been. Because the Tribunal was only given notice of the applicants’ claimed illness the day prior to the hearing, it might be suggested that the Tribunal should have made a telephone inquiry. But an enquiry of whom? It would not have been appropriate for the Tribunal to attempt to telephone the applicant directly as he had appointed a migration agent as his authorised recipient of communications. The applicant had also requested an interpreter at the hearing, so telephone communication would likely have required the assistance of the Telephone Interpreter Service. It would probably not have been appropriate for the Tribunal to telephone the doctors who issued the medical certificates. Privacy restrictions and patient confidentiality probably would have prevented the disclosure of any information to the Tribunal. The Tribunal could not, in the time available, exercise its powers to compel the doctors to provide information. That leaves only an inquiry of the migration agent. There was no point in the Tribunal telephoning the migration agent as it had already communicated with the agent by fax and requested further detail of the applicants’ claimed illness. In this sense, the proposed inquiry was not obvious, nor can it be assumed that the information that may have been sought was readily obtainable.
Thirdly, this is not a case where the Tribunal was in a unique position to make the inquiry. The failure of the Tribunal in this case to telephone the applicant cannot constitute a “failure to review” because the information the subject of the inquiry was uniquely available to the applicants. That is, there can be no criticism of the Tribunal for failing to make a telephone call when it was equally open for the applicants or their agent to telephone the Tribunal.
Fourthly, the applicants have not demonstrated that any failure by the Tribunal supplied a “sufficient link to the outcome”. That is, the evidence provided in the applicant’s affidavit does not establish that the Tribunal, if it had been aware of the evidence, would have taken a different view to either:
a)the application for an adjournment; or
b)the Tribunal’s decision to affirm the decision under review.
Relevant considerations
Ground 2 fails on the facts. There is no warrant for a finding that the Tribunal failed to consider the applicants’ claimed illness. The Tribunal referred to the medical evidence provided by the applicants[51]. The Tribunal also made a finding that the reasons put forward by the applicants for not attending the hearing were “not satisfactory”[52]. The Tribunal clearly considered (and rejected) the issue raised by the applicants.
[51] CB 134 at [4]-[5]
[52] CB 138 at [38]-[39]
Further, apart from the allegation concerning the medical certificate, the applicants have not identified any matter that the Tribunal was required to take into account and failed to. It is true that the second and third applicants’ visa application was dependent upon the applicant establishing his claims. That was a natural consequence of the fact that the second and third applicants made no independent claims for protection. The Tribunal was not required to separately consider their interests when determining the review because their interests were inextricably bound to the interests of the applicant.
Conclusion
The applicant has failed to establish that the Tribunal decision is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 September 2015
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