SZVAN v Minister for Immigration
[2016] FCCA 1218
•26 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVAN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1218 |
| Catchwords: MIGRATION – Extension of time under s.477(2) of the Migration Act – Applicant failing to attend before Delegate or Tribunal – Tribunal refuses adjournment – nature of evidence admissible in claim of procedural unfairness – no procedural unfairness or jurisdictional error in Tribunal refusing adjournment in the circumstances. |
| Legislation: Migration Act 1958 (Cth), ss.477, 36, 427, 426A, 420, 414, 425, 425A Migration Regulations 1994 (Cth) |
| Cases cited: Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 |
| Applicant: | SZVAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2496 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 1 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person with a Punjabi interpreter. | |
| Counsel for the First Respondent: | Mr L Dennis (solicitor). | |
Solicitor for the First Respondent: | Minter Ellison. | |
ORDERS
Order pursuant to s.477(2) of the Migration Act 1958 (Cth) that the time for the Applicant to file his application in this proceeding be extended to 8 September 2014.
Order that the application herein be dismissed with costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG2496/2015
| SZVAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Pakistan aged 29 years, having been born on 21 April 1986.
He seeks in this proceeding by constitutional writs to quash a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the Refugee Review Tribunal) (Tribunal), dated 17 June 2014, affirming a decision dated 29 November 2013 of a Delegate (the Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), refusing to grant him a Protection (Class XA) visa. Further, he seeks a writ of mandamus directed to the Tribunal requiring it to determine his application for review according to law.
The grounds of attack in this Court on the decision of the Tribunal are expressed in his Application filed in this Court on 8 September 2014 in the most general terms, being:
1. Error of fact and law.
2. Miscarriage of justice.
At the hearing the Applicant appeared in person with the assistance of an interpreter. Early on, it became apparent that the real and substantive ground relied upon by the Applicant was that the Tribunal erred jurisdictionally and did not afford him procedural fairness by refusing to adjourn the hearing date before the Tribunal.
Procedural fairness, which is an aspect of natural justice, requires that an applicant before the Tribunal be given a meaningful opportunity to present his or her case, and a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness involving a failure to exercise jurisdiction leading to the quashing of the applicable decision: Gaudron and Gummow JJ in Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at 611 ([40]).
Further, in this Court it was necessary for the Applicant to obtain an order under s.477 of the Migration Act 1958 (Cth) (Act) that the time for the making of his application be extended by some 48 days because he filed his application in this Court on 8 September 2014, being some 83 days after the Tribunal’s decision.
Relevant Factual Background
On 25 February 2008, the Applicant arrived in Australia as the holder of a Subclass TU – 572 Vocation Education and Training Sector visa (Student Visa).
On 21 March 2008, the Applicant was granted another Student Visa as he intended to change his course of study. This visa expired on 14 September 2009.
On 11 September 2009, the Applicant lodged an application for another Student Visa which was granted, expiring on 15 October 2010.
On 30 March 2010, the Applicant departed Australia to travel to Pakistan to visit his family and then arrived back in Australia on 17 April 2010.
On 14 October 2010, the Applicant lodged another application for a Student Visa, which was refused by the Department of Immigration on 9 June 2011, it having found that a document lodged by the Applicant in support of his application was fraudulent. The Applicant appealed this decision to the Migration Review Tribunal which, on 19 February 2013, affirmed the Minister’s decision to refuse a Student Visa. On 19 March 2013 the Applicant lodged a request for Ministerial Intervention, but the Minister, on 16 June 2013, decided not to intervene in the Applicant’s case.
It was then, on 19 August 2013, that the Applicant lodged an application for a Subclass XA – 866 Protection visa (Protection Visa). In support of his application he affirmed a Statutory Declaration on 12 December 2013 which said, amongst other things, that from August 2008 he had worked in Queensland, respectively, as a security guard at IKEA and a salesperson at a 7/11 store.
Decision of Delegate
On 29 November 2013, the Delegate refused to grant the Applicant a Protection Visa, not being satisfied that Australia had protection obligations under s.36(2)(a) of the Act, cl.866.221(2) of Sch.2 to the Migration Regulations 1994 (Cth), or the complementary protection provisions under s.36(2)(aa) of the Act.
Relevantly for present purposes:
a)the Applicant failed to attend the scheduled Protection Visa interview with the Delegate which was to be conducted by phone on 18 November 2013. The Applicant advised that he was not ready and would refuse to take part in the interview;
b)the Delegate advised that he was not prepared to reschedule the interview and the Applicant responded, stating that he could not take part in the interview because he had a medical appointment on that day;
c)also on 18 November 2013, Mr Khan, being the chief executive officer of Australian Multi Cultural Charity, wrote to the Department of Immigration (Department) on behalf of the Applicant requesting that the scheduled interview for that day be postponed until such time as a lawyer was engaged for the Applicant. Attached to the correspondence were the first and second parts of a Form 956A relating to the appointment of Mr Khan as an authorised recipient and migration agent for the Applicant; and
d)on 25 November 2013, the Delegate called the Applicant and advised him of a problem with the Form 956A, but the Applicant would not engage with the Delegate and advised the Delegate that he should make a decision based on the forms already before the Delegate.
The Delegate, in his reasons, summarised the Applicant’s written claims of fear of serious harm for his life if he went back to Pakistan. He noted that, in his view, there was no compelling evidence that had been provided by the Applicant to support his claims that he had a well-founded fear of persecution in Pakistan in the foreseeable future and that the evidence before him lacked sufficient detail to satisfy the Delegate that the Applicant had a well-founded fear of persecution. The Delegate noted there would have been matters which he would have raised with the Applicant at interview had the Applicant participated in it, and that because of the Applicant’s failure to attend the interview the Delegate could not make a positive credibility finding in favour of the Applicant as to any of his claims for protection.
Application for Review to the Tribunal
On 1 January 2014, the Applicant lodged an application for review with the Tribunal. On that application he gave his own address as an address in Runcorn, Queensland, which is a suburb of Brisbane, and the mobile contact number which he gave was that of his migration agent, Mr Khan. The Applicant gave as his migration agent’s details the address of Mr Khan of the Australian Multi Cultural Charity. The Applicant directed on his application that correspondence should be sent to Mr Khan as his authorised recipient.
Correspondence was sent by the Tribunal, dated 7 January 2014, to Mr Khan acknowledging receipt of the review application and inviting the provision of material or written arguments for the Tribunal to consider as soon as possible, and warning that the Tribunal should be told immediately if there were any changes in contact details.
At the same time, the Tribunal also sent a statement outlining the Tribunal’s review process which indicated that a letter would shortly be sent inviting the Applicant to a hearing and giving the hearing date and also advising that the Tribunal aimed to decide all of its cases within 90 days of receiving the relevant documents from the Minister.
By letter of 27 February 2014, the Tribunal asked Mr Khan as soon as possible to forward to it a copy of the Delegate’s Statement of Decision of 29 November 2013 under review by the Tribunal. By letter dated 21 March 2014, Mr Khan sent to the Tribunal the Statement of Decision of the Delegate refusing the Protection Visa.
By correspondence dated 13 May 2014, the Tribunal informed Mr Khan that the Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review on 17 June 2014 in Brisbane. The correspondence indicated that if the Applicant was not able to attend the hearing, the Tribunal should be advised as soon as possible and noted that the Tribunal would only change the appointed hearing date if satisfied that the Applicant had a very good reason for being granted an adjournment and if the Applicant was not advised that an adjournment had been granted, he was to assume that the hearing would go ahead. It further indicated that if he did not attend the scheduled hearing, the Tribunal might make a decision without taking any further action to allow or enable him to appear before it. The correspondence also enclosed a pro forma Response to Hearing Invitation which was intended to be completed by the Applicant to confirm whether or not he would take part in the Tribunal hearing scheduled for 17 June 2014 and inquired about ancillary matters such as an interpreter and any proposed witnesses. That document was never completed and returned to the Tribunal.
On the day before the scheduled hearing of 17 June 2014, at 1:03pm Mr Khan rang the Tribunal and said that he would be faxing in a request for a postponement of the hearing because he had been unable to contact the Applicant.
At 1:22pm on 16 June 2014 Mr Khan faxed a letter on the letterhead of Australian Multi Cultural Charity to the Tribunal which, omitting formal parts, said as follows:
Reference to my telephone to day in relation to above matter listed for hearing on 17 June 2014.
As I have advised you that we have been trying to contact [the Applicant] by phone and by letter but he has not replied to us, therefore we are seeking adjournment to locate [the Applicant].
S.A. Khan
CEO
At 3:44pm on 16 June 2014 the Tribunal sent an email to Mr Khan which attached a formal letter of the same date refusing any adjournment of the scheduled hearing. The formal letter relevantly stated:
On 13 May 2014 we sent a letter inviting you to attend a hearing at the Tribunal on 17 June 2014 to give evidence and present arguments relating to the issues arising in your case.
On 16 June 2014 the Tribunal received a request that the hearing be postponed. The Presiding Member has considered the request carefully, but has decided not to postpone the hearing.
The hearing will therefore proceed as set out below. Please note that all details about the hearing as set out in the hearing invitation dated 13 May 2014 still apply.
On 17 June 2014 the Applicant did not appear at the scheduled hearing before the Tribunal and by its Decision Record of the same date the Tribunal affirmed the Delegate’s decision not to grant the Applicant the Protection Visa. The Applicant did not contact the Tribunal after the hearing to explain his absence.
The Tribunal considered the evidence and documents which had been lodged by the Applicant and considered by the Delegate. It similarly found that it was unable to satisfy itself of the veracity of the Applicant’s claims, and given his failure to attend the interview before the Delegate or at the hearing before the Tribunal, the Tribunal was unable to satisfy itself of the truthfulness of the Applicant’s claims.
The Tribunal, in relation to the application for postponement of the Tribunal hearing, said as follows at [21]-[23]:
21. On 13 May 2014, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 17 June 2014. The letter was sent to the applicant’s representative at the address for service provided to the Tribunal by the applicant in his application for review.
22. On 16 June 2014 the Tribunal received a faxed request from the applicant’s representative advising that he was unable to locate the applicant and requesting that the hearing be postponed. The Tribunal advised that it was not prepared to accede to that request, and confirmed that the hearing would proceed as advised on 17 June 2014.
23. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. He did not contact the Tribunal regarding his failure to attend the hearing. In these circumstances, the Tribunal is satisfied that the applicant has had ample opportunity to present his claims. Accordingly, pursuant to s462A of the [Migration] Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. Accordingly, this matter has been determined on the evidence available to the Tribunal.
By letter dated 18 June 2014 the Tribunal forwarded its Decision Record of 17 June 2014 to Mr Khan.
Evidence Given at the Hearing in this Court
At the commencement of the hearing, the Applicant read his affidavit of 25 August 2014, which went only to the issue of the extension of time sought under s.477 of the Act. No explanation was given in that affidavit of the reasons why the Applicant did not appear at the hearing before the Tribunal. That was obviously an important issue and I raised it with the Applicant and, ultimately, as is recorded in the transcript of the hearing, I gave him the opportunity to give evidence and also for Mr Khan, who was in Court, to give evidence.
I was of the view that such evidence was admissible, because whilst as a general rule material not before the relevant decision-maker is inadmissible in a judicial review proceedings such as this, it is admissible when the ground of review relied on is for a breach of procedural fairness by the Tribunal: see Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 at [30]-[32] per Kenny J; Weinberg J in Percerep v Minister for Immigration (1998) 86 FCR 483 at 495 (D-E); and Minister for Immigration v SCAR (2003) 128 FCR 553.
Oral Evidence of Applicant
The substance of the Applicant’s claims, told to the Court both before he went into the witness box and after he had gone into the witness box and had affirmed to tell the truth, was to the effect that prior to the scheduled hearing date before the Tribunal of 17 June 2014 he was very depressed and he went away to Queensland for a period of two to three weeks, during which period the hearing date of 17 June 2014 occurred, with other people from the Gallipoli Mosque (presumably the Auburn Gallipoli Mosque in Sydney was meant) and he was unable to be contacted during this period, including by Mr Khan. All in all, he was away in Queensland for about seven to eight weeks, travelling with a religious community there. He could not see a doctor about his alleged depression in June 2014 because he didn’t have any money to pay to see a doctor.
He did not contact Mr Khan and tell him where he was going or how Mr Khan could contact him. He went away for peace of mind. When he decided to go away, he did not contact the Tribunal or Mr Khan about his departure.
Oral Evidence of Mr Khan
Mr Khan’s evidence was to the effect that when he received the correspondence dated 13 May 2014 inviting the Applicant to appear before the Tribunal on 17 June 2014 to give evidence and present arguments, the Applicant was not around. Mr Khan attempted to ring the Applicant a couple of times to advise him about the letter, but he did not respond. The Applicant was very often uncontactable and, thus, Mr Khan was unable to advise the Applicant of the hearing date of 17 June 2014.
Extension of Time
The Applicant needs to obtain the leave of the Court under s.477(2) of the Act to extend the 35 day period by 48 days. He has complied with s.477(2) in that an application for an extension order has been made in writing to this Court which specified why he considered that it was necessary in the interests of the administration of justice to extend time, being:
1. The Appeal was filed within time on 22 July 2014.
2. Application returned by Court without any reason given therefore I am seeking extension of time.
His affidavit of 25 August 2014 asserted that in truth the application to this Court was filed within time by Australian Multicultural Charity, but returned without any covering letter from the Registry of this Court on 11 August 2014. There is no way to check the veracity of this evidence but in the result I have come to the view that it is in the interests of the administration of justice to make an order extending the time in which the Applicant can bring his application in this Court by the required 48 days.
The reasons for my granting this extension are as follows:
a)an extension of forty-eight days in this context is not a very long period;
b)the Minister did not suggest prejudice;
c)whilst there was not any particularly impressive sworn explanation for the delay, in the absence of a suggestion of prejudice to the Minister I did not consider that the failure to explain it in greater detail or by the affidavit required by r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) ought to militate against a grant of leave. In this respect, in so far as is necessary, I dispense with that part of r.44.05 which required the applicant to support his application by affidavit and give any further evidence explaining why it was necessary in the interests of the administration of justice for the court to grant an extension;
d)overall I considered that the interests of justice require that he be given the opportunity to argue his substantive application alleging procedural unfairness constituting jurisdictional error; and
e)the fact that if leave was not granted he had no right of appeal to the Federal Court was a matter that I further took into account, since whether or not an adjournment should be granted in a specific set of circumstances is a matter upon which reasonable minds can differ: Minister for Immigration v Pandey [2014] 143 ALD 640 at 650 ([52]).
Relevant Factual Findings on Failure to Attend Tribunal Hearing
I find that the Applicant, prior to the Tribunal hearing date of 17 June 2014, went away with some other persons in a religious community to Queensland for a period of some seven or eight weeks.
I find that when the Applicant decided to go away he did not make contact with either Mr Khan or the Tribunal to tell them where he was going or how he might be contacted.
I find that for the period he was away before and after the Tribunal hearing date he was effectively uncontactable by either Mr Khan or the Tribunal.
I find that Mr Khan, on behalf of the Applicant, received on or about 13 May 2014 the Tribunal’s invitation to the Applicant to appear before it on 17 June 2014 and he attempted to contact the Applicant to advise him of that date on the mobile telephone number the Applicant had given him, but the Applicant did not respond and the Applicant was, in fact, uncontactable from around 13 May 2014.
I do not accept or find that the Applicant was suffering from depression, deep or otherwise, during the seven or eight week period during which he went away or on the Tribunal hearing date of 17 June 2014 or that any such depression rendered him unfit or incapable of attending the Tribunal hearing and meaningfully participating in it. He was apparently able to go away with and participate in a religious community for a period of seven to eight weeks and he never explained to the Court how his ability to do this related to his claimed depression. He did not suggest that depression rendered him incapable of telling Mr Khan where he was going and how he might be contacted by Mr Khan. Rather, it is not credible to me that if he was in fact suffering from depression that he would not have conveyed that information to his migration agent, Mr Khan in May or June 2014. In these circumstances, I am not prepared to accept the bare assertion from the Applicant that he was suffering from “depression” in the absence of any medical evidence at all which would substantiate that assertion.
Further, I do not accept that if the Applicant was truly suffering from depression he would not have sought medical advice. I do not accept his excuse of not having any money for a medical check-up when on his own account he has been employed since August 2008 as referred to at [12] above, even if it was only part-time or casual work. He had told the Delegate on 18 November 2013 that he had a medical appointment on that day.
Further, the Applicant has given no retrospective medical evidence to this Court of depression disabling him from attending the Tribunal hearing on 17 June 2014.
I find that the Applicant has given no reasonable explanation for his failure to attend the Tribunal hearing on 17 June 2014.
Even if I had accepted the Applicant’s assertion that he suffered from depression as at 17 June 2014, there is no evidence that any such depression made him unable to participate in the Tribunal hearing. There is no evidence that any such asserted depression meant that he could not attend the Tribunal hearing and give evidence and present arguments in support of his claim, or understand and respond to questions put to him by the Tribunal.
The Applicant bears the onus of establishing that he was unfit to meaningfully take part in the Tribunal hearing of 17 June 2014: see Flick J in SZMSF v Minister for Immigration [2010] FCA 585 at [17] and Gilmour J in SZMSA v Minister for Immigration [2010] FCA 345 at [108]. In my view, he has failed to do so.
Consideration
I now turn to consider whether the Tribunal committed jurisdictional error by not acceding to Mr Khan’s request of the afternoon of 16 June 2014 to adjourn the scheduled hearing before the Tribunal of 17 June 2014.
Under s.427(1)(b) of the Act, the Tribunal has the power to adjourn a review from time to time.
Under s.426A(1A)(a) of the Act, the Tribunal has the power to make a decision on the review before it without taking any further action to allow or enable the Applicant to appear before it, if the relevant applicant does not appear before the Tribunal on the day on which the applicant is scheduled to appear.
Further, the Tribunal is exhorted by s.420(1) of the Act to carry out its functions in a way that is fair, just, economical, informal and quick.
However, these discretionary powers to adjourn a hearing, proceed with a hearing, and to operate economically, informally and quickly have to be exercised reasonably in a legal sense and not arbitrarily, capriciously or without common sense, having regard to the central obligation of the Tribunal under s.414 of the Act to review relevant decisions and to give the relevant applicant a meaningful opportunity or a real chance to appear and present evidence and argument pursuant to the invitation extended under s.425 of the Act.
I further note that whilst in this case the Tribunal had no reason given to it for the Applicant’s non-attendance and had no knowledge of any alleged incapacity of the Applicant to attend the Tribunal hearing, this would not necessarily be conclusive against a finding of jurisdictional error or failure to accord procedural fairness. This is because if an applicant before the Tribunal can establish that he or she was in truth not in a fit state to appear and represent himself or herself before the Tribunal, the invitation under s.425 of the Act is not a meaningful one, even if the Tribunal is through no fault of its own unaware of the alleged unfitness and otherwise blameless: see Minister for Immigration v SCAR (2003) 128 FCR 553 and Gageler and Keane JJ in Wei v Minister for Immigration (2015) 327 ALR 28 at 33 ([23]).
The first thing to be said is that whilst the failure of a court or a tribunal to adjourn a matter may constitute a failure to allow a party the opportunity of properly presenting his or her case, as Deane J said in Sullivan v Department of Transport (1971) 20 ALR 323 at 343:
… In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes on the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.
The appointed hearing date of 17 June 2014 was, in the words of Hill J in Machmud v Minister for Immigration [2001] 66 ALD 98 at 103 ([14]) “one of the most important appointments in [his] life”. He was under a personal responsibility to attend in aid of his application for review if he was not precluded for good reason. As Barker J in Ponugotti v Minister for Immigration (2015) 144 ALD 365 said at 372 ([56]), referring to proceedings before the Migration Review Tribunal:
56. What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.
In this case:
a)the Applicant refused and failed to attend and take part in an interview with the Delegate and advised the Delegate to make a decision based on the documentary evidence already before him. All this was known to the Tribunal on 16 June 2014 when it refused to adjourn the hearing set down for the following day;
b)the Applicant authorised the Tribunal to send all communications to Mr Khan and the only telephone number given by the Applicant to enable it to make contact with him was Mr Khan’s telephone number;
c)it was common ground and, in any event, proved by the Minister through the affidavit of Mr Pinder affirmed 5 February 2015, that the correspondence of 13 May 2014 inviting the Applicant to appear on 17 June 2014 was given as required by s.425A of the Act and actually received by Mr Khan; and
d)the request by Mr Khan of 16 June 2014 to adjourn the hearing before the Tribunal gave no reason, medical or otherwise, for the adjournment except that he had been unable to make contact with his own client. Further, the request for adjournment held out no prospect of either when or indeed, if, the Applicant would be located and would ever be able to or want to appear before the Tribunal. For all anyone might have known at that point, the Applicant might have returned to Pakistan again;
e)in other words, the application for adjournment was not supported by any plausible reason, purpose or time-frame within which the Tribunal might expect to be able to schedule a further hearing at which the Applicant might in fact appear to present his case.
In my view, these considerations do not tend in favour of the view that the Tribunal ought to be found to have committed jurisdictional error in refusing the adjournment. Even assuming for present purposes that the Applicant was indeed suffering from depression, there was no evidence supplied to the Tribunal to that effect and none led in this Court in support of the application, let alone medical evidence, that any depression suffered by the Applicant rendered him incapable of presenting his case before the Tribunal on 17 June 2014 and meaningfully participating in the hearing.
The Applicant must be regarded as having been on notice from the correspondence of 13 April 2014 of the potential consequences of not appearing at the Tribunal hearing.
There was no other method of communication with the Applicant available to the Tribunal enabling it to enquire of him the reason for the adjournment sought because the only telephone number given by the Applicant to the Tribunal was Mr Khan’s and the Applicant was not responding to Mr Khan’s telephone calls.
As I have said, in this case, no medical evidence was sent to the Tribunal as justification for an adjournment. However, even where medical grounds are relied on as a justification for an adjournment, courts and tribunals have, for many years, been increasingly reluctant to adjourn hearings on short notice based on uncommunicative medical evidence. In NAKX v Minister for Immigration [2003] FCA 1559 Lindgren J refused an application for an adjournment notified to the Federal Court Registry two days before the appointed hearing date because the medical certificates provided were quite unsatisfactory in that they did not address the critical question of whether, and if so why, the asserted medical condition would have prevented the party seeking the adjournment from travelling to the Court and participating effectively in a court hearing. In each of MZZTC v Minister for Immigration [2015] FCA 1209 and MZABB v Minister for Immigration [2015] FCA 84 the Federal Court refused adjournment applications on the basis of inadequate medical certificates sent to the Court the day before the scheduled hearing, after having referred to the decision in NAKX (supra) with approval. To like effect, in Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 the NSW Court of Appeal comprised of Basten JA and Meagher JA said at [14]:
All parties, including, but not limited to, litigants in person, should understand that proceedings in this Court will not be vacated on the basis of an email communication to the Registrar at short notice.
In MZZGY v Minister for Immigration [2014] FCA 488 Davies J in the Federal Court of Australia was hearing an appeal from the Federal Circuit Court and dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal. The appellant did not attend the hearing before Davies J, but notified the Court the previous day by email sent at 5:40pm that he would be unable to attend the Court because of bad health and requested an adjournment. The appellant later emailed in support of that adjournment a medical certificate and a copy of a prescription at 10:25pm. The medical certificate was in the baldest terms and Davies J, when ultimately refusing the adjournment request, said at [13]:
13. These documents were wholly inadequate to support an adjournment application. The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the court hearing. Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice. I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.
In MZAHI v Minister for Immigration [2016] FCA 129 Davies J had to consider an appeal from a decision of the Federal Circuit Court which had dismissed an application to review a decision of the Refugee Review Tribunal on the basis that the Tribunal had jurisdictionally erred by not allowing the appellant to appear and present arguments by refusing him an adjournment of the scheduled Tribunal hearing on the basis of a medical certificate which the appellant had furnished to the Tribunal, which merely said:
In my opinion, he/she will be unfit for his/her normal work from 27/5/14 to 28/5/14 inclusive (medical condition).
At [7] of MZAHI (supra) Davies J said:
[7] No error has been demonstrated in the conclusion of the Federal Circuit Court that the Tribunal did not deny the appellant procedural fairness. The medical certificate which the appellant furnished to the Tribunal was in the following form:
In my opinion, he/she will be unfit for his/her normal work from 27/5/14 to 28/5/14 inclusive (medical condition).…
The medical certificate was plainly inadequate to justify any further adjournment of the Tribunal hearing. The medical certificate merely stated that the appellant was unfit for work and provided no meaningful detail about the nature of the appellant’s illness, or any meaningful content which would enable the Tribunal to conclude that the appellant could not participate at the Tribunal hearing. Given the absence of any meaningful content in the medical certificate it was open to the Tribunal to reject that certificate as sufficient proof that the appellant was unable to participate in a Tribunal hearing on that day. As the Federal Circuit Court correctly stated at [18]:
The authority of the Federal Court indicates that a medical certificate of the type provided by the [appellant] would not, in the Federal Court, be an adequate justification for an adjournment.
The Applicant in this case cannot be in a better position by not furnishing any reason or medical evidence to the Tribunal in support of an adjournment application than an applicant who at least attempts to give a reason by way of an inadequate medical report.
This case bears no similarity to cases where, from the objective facts constituting the course of conduct between the Tribunal and an applicant, the Tribunal ought to have considered the applicant’s non-appearance as out of character and a departure from his or her previous pattern of conduct: see, for example, Kaur & Anor v Minister for Immigration (2014) 141 ALD 619 and AZAFB v Minister for Immigration [2015] FCA 1383. On the contrary, here the Applicant’s conduct in not appearing before the Tribunal was consistent with his earlier refusal to take part in an interview with the Delegate and he had not completed and returned the Response to Hearing Invitation form, which if he had, might have evinced to the Tribunal that he had a real interest in the review process being conducted by the Tribunal.
Disposition
In my view the Tribunal was justified in grounding its decision not to adjourn the hearing upon the basis that the Applicant had had ample time to present his case and, in any event, the result itself does not bespeak error: see Minister for Immigration v Li (2013) 249 CLR 332 at 369 ([85]) and Minister for Immigration v Singh (2014) 308 ALR 280 at 289-290 ([45]-[47]).
I do not consider the refusal to adjourn the Tribunal hearing was unreasonable as a matter of law or as being arbitrary, capricious, without common sense or plainly unjust and I consider that there was an intelligible justification for refusing to adjourn the Tribunal hearing. The tribunal had a “genuinely free discretion” or “decisional freedom” to refuse to adjourn and that decision did not fall outside the range of possible, acceptable outcomes: see Wigney J in Pandey (supra) at ([52]).
In the result, there was no procedural unfairness constituting jurisdictional error and the application to this Court will be dismissed with costs which I will reserve for the present time.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date:26 May 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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