SZVMG v Minister for Immigration & Anor
[2016] FCCA 631
•8 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVMG v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 631 |
| Catchwords: MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – applicant receives notice under s.425(1) of the Migration Act 1958 (Cth) (Act) to appear before the Tribunal to present arguments and evidence – applicant informs Tribunal that he would appear at the hearing – applicant does not attend hearing – Tribunal decides to exercise power under s.426A(1) of the Act to proceed with the review without taking any steps to reschedule the hearing – whether Tribunal acted unreasonably in so deciding – Tribunal did not act unreasonably. |
| Legislation: Migration Act 1958 (Cth), ss.362B, 420(1), 425(1), 426A, 426A(1), 426A(2), 441A |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 Dunsmuir v New Brunswick [2008] 1 SCR 190 Ponugoti v Minister for Immigration and Border Protection [2015] FCA 67 Secretary of State for Education and Science v Tameside Metropolitan Borough Council[1977] AC 1014 Swan Hill Shire v Bradbury [1937] HCA 15; (1937) 56 CLR 746 |
| Applicant: | SZVMG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3133 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 18 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2016 |
REPRESENTATION
| The applicant appeared in person assisted by an interpreter |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3133 of 2014
| SZVMG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (protection visa).
Claims for Protection
The applicant, a citizen of the People’s Republic of China (China), applied for a protection visa on 4 February 2013. In a statement that formed part of his application for a protection visa,[1] the applicant claimed that in August 2009 he and his friend invested 600,000 Yuan to set up a fruit storehouse. In August 2010 the director of a village, Mr Y, viewed the applicant’s business as profitable and wanted to “buy in”. The applicant refused.
[1] CB28-33
In March 2011 Mr Y was re-elected as director of the village. The applicant claimed Mr Y had won the election through bribery of electors and other illegal activities. In early April 2011 the applicant and three others went to the town government to inform them of the “illegal activities in the electoral process”, and requested the government investigate Mr Y for suspected corruption and embezzlement.
In the afternoon of 30 April 2011, over 10 people went to the applicant’s home and “beat us”. The other three people who went to the town government with the applicant were also beaten at their homes. One person who was beaten called “110” but the police did not come because the village party secretary stopped the police and asked them not to deal with the matter.
In May 2011 the applicant and three others went to the “Bureau of Letters and Calls”, but two weeks later they were told the town government were instructed to deal with their petition. On 4 June 2011 village security, the leader of which was Mr Y’s nephew, went to the applicant’s home to “catch” him. The applicant was taken to the leader’s office and “[u]nder his instigation, two team members slapped [the applicant’s] face hard”. After the applicant fell down, they kicked him hard. The applicant felt pain all over his body and his face was covered in blood. The leader asked the applicant if he would petition again but the applicant did not respond. A team member then pressed the applicant’s head to the ground repeatedly and the applicant was tortured all night. The next day, the applicant’s wife begged them to let the applicant go. The leader extorted 10,000 Yuan from the applicant’s wife and forced the applicant to sign a guarantee that he would not petition further if released.
In early July 2011 Mr Y’s son asked the applicant to transfer his business to him but the applicant did not agree. Mr Y’s son said the applicant “would be in trouble”. On 15 July 2011 the Trade and Industry Bureau ordered the applicant to close down his business for “rectification for three months on the ground of safety loophole in my fruit storehouse”. Three months later the applicant went to the Bureau to extend his business certificate, but his request was refused. The applicant “understood that it was [Mr Y] that forced me to give up my business by government agency”.
Before the Tribunal
By letter dated 10 September 2014, the Tribunal invited the applicant to attend a hearing before it on 14 October 2014 to give oral evidence and present arguments.[2] The letter stated that if the applicant did not attend the hearing and a postponement of the hearing was not granted, the Tribunal may make a decision on his review application without further notice. The applicant responded to the invitation stating he wished to attend the hearing.[3] The applicant, however, did not attend. The Tribunal decided to make a decision on the review, pursuant to s.426A of the Migration Act 1958 (Cth) (Act), without taking any further action to enable the applicant to appear before it.
[2] CB109
[3] CB116-117
The Tribunal’s decision
The Tribunal found the applicant’s claims to fear harm in China consisted of no more than a number of brief and entirely unsubstantiated assertions. The Tribunal was of the view that neither the written material nor the applicant’s evidence before the delegate provided “significant circumstantial detail” about the events the applicant alleged occurred.[4] In particular, the Tribunal found the applicant did not:
a)make it clear why he would have taken a leading role in opposing corruption in his village without any claimed previous history of political activism or an interest in bringing corrupt officials to justice;
b)explain how he was in a position to become aware of the alleged electoral fraud or the alleged fraud and embezzlement engaged in by a number of officials;
c)mention suffering physical harm between the alleged incident during which the applicant was arrested and tortured in May 2011 and his departure for Australia in December 2011;
d)explain why he would fear harm should he return to China;
e)explain why, if he was prevented from operating his business as a result of harassment by officials, such a difficulty would force him to leave his wife and family and travel to Australia to find safety; or
f)explain why, if corrupt officials had taken these actions to punish the applicant for attempting to expose them, they would continue to have an interest in harming or harassing the applicant some three years later.[5]
[4] CB125, [18]
[5] CB126, [19]
Because the Tribunal found it would have been reasonable for the applicant to explain such circumstances in some depth, it was not satisfied that the applicant’s unsubstantiated and generally brief account of his experiences provided a sufficient basis for it to be satisfied that the applicant ever protested against electoral fraud and corruption in his village, or that he ever suffered harm for such a reason.[6] The Tribunal, therefore, was not satisfied the applicant has a well-founded fear of persecution for a Convention[7] reason should he return to China, now or in the reasonably foreseeable future, or that there were substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there would be a real risk he would suffer significant harm.[8]
[6] CB126, [20]
[7] Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967, Article 1A(2)
[8] CB126-127, [22]-[23]
Grounds of review
The application filed with this Court contains the following four grounds of review:
1.The reason why I failed to attend the interview because I remembered the wrong time of the hearing date, so I was not in Sydney on that date. I realized I made a very serious mistake, so I applied a review to Federal Court of Australia and hope that I can have one more chance to seek a fair judgment.
2.One of the reasons why RRT refused my application was because I could not provide sufficient evidence about claim. This is because those materials are very sensitive. I do not want to put my family in danger in order to send me those evidences, so I did not ask my family to mail them to me. I hope Your Horner [sic] can consider my compelling circumstances.
3.Another reason why RRT refused my application was because I was unable to explain the experience of persecution in China in details. Your Horner, [sic] please consider my actual situation: I have suffered serious harm in China both physically and mentally, so I was scared to talk to other people about my true experiences. Besides, I was very nervous during the interview, my mind was confused and I felt very scared, especially when I was under such solemn environment. Therefore, when I received a refusal letter from RRT, I decide to apply a review to Federal Circuit Court of Australia because I feel I am ready and want to seek another chance for myself.
4.I wish the Federal Circuit Court of Australia could consider my situation.
Ground 1 – unreasonable exercise of power under s.426A(2)
Quite fairly, counsel for the Minister has interpreted ground 1 as claiming the Tribunal acted unreasonably in the circumstances by deciding to exercise the power conferred by s.426A(1) of the Act to proceed to review the applicant’s application without taking any further action to allow or enable the applicant to appear before it. I too will interpret ground 1 as a claim that the Tribunal acted unreasonably by exercising the power conferred by s.426A(1) of the Act in the manner it did.
Counsel for the Minister was content for this ground to be considered on the assumption that the applicant failed to attend before the Tribunal because he remembered the wrong date. I will, therefore, consider the ground on the assumption that the applicant did not attend the hearing before the Tribunal because he “remembered the wrong time of the hearing date”.
I begin with the text of s.426A(1) of the Act, which provides as follows:[9]
[9] The provisions of the Act that apply to the applicant were those that existed as 4 February 2013, being the date on which the applicant applied for a protection visa. For each of expression, I will speak of the provisions of the Act in the present tense, even though some of the provisions have subsequently been amended.
If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
It will be seen that s.426A(1) of the Act applies when the Tribunal, pursuant to s.425(1) of the Act, invites an applicant to appear before the Tribunal to give evidence and present arguments relating to issues arising in relation to the decision under review, but the applicant does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear. If those matters occur, the Tribunal has a choice: it may make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or, as expressly permitted by s.426A(2) of the Act, the Tribunal may reschedule the applicant’s appearance before it, or it may delay its decision on the review to enable the applicant’s appearance before it to be rescheduled. In other words, the Tribunal has a discretion about whether it should or should not reschedule the hearing the Tribunal had initially appointed or delay its decision to allow such rescheduling to occur.
One consequence of s.426A(1) of the Act being discretionary is that the legislature is taken to have intended that it will be exercised reasonably.[10]The Full Federal Court recently examined the reasonableness ground of review in Minister for Immigration and Border Protection v Eden.[11] In joint reasons for judgment, the Court reduced the relevant principles into “a few short propositions”, noting, however, that “[t]his short summary is not intended to supplant or derogate from the detailed analysis and explication of the relevant principles in” Minister for Immigration and Citizenship v Li,[12] Minister for Immigration and Border Protection v Singh,[13] and Minister for Immigration and Border Protection v Stretton.[14] The Full Court stated the following propositions:
a)The concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making.[15]
b)The Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.[16]
c)There are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified.[17]
d)In assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.[18]
e)To identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact dependent, and to require careful attention to the evidence.[19]
f)Where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.[20]
g)Perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations, or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. The task, however, is not an a priori definitional exercise. Nor does it involve a “checklist” exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.[21]
[10] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [63] (Hayne, Kiefel, and Bell JJ)
[11] [2016] FCAFC 28 (Allsop CJ, Griffiths and Wigney JJ)
[12] [2013] HCA 18; (2013) 249 CLR 332
[13] [2014] FCAFC 1; (2014) 231 FCR 437
[14] [2016] FCAFC 11
[15] [2016] FCAFC 28 at [58]
[16] [2016] FCAFC 28 at [59]
[17] [2016] FCAFC 28 at [60]
[18] [2016] FCAFC 28 at [62]
[19] [2016] FCAFC 28 at [63]
[20] [2016] FCAFC 28 at [64]
[21] [2016] FCAFC 28 at [65]
On the Full Court’s approach, the assessment of whether a decision is legally unreasonable requires a court to evaluate the decision with a view to determining whether, having regard to the terms, scope, and purpose of the relevant statutory power, the decision possesses one or more of the qualities conveyed by such words or expressions as “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. If the court concludes that the decision possesses one or more of these attributes, the decision will be held to be legally unreasonable.
With respect, there is a potential difficulty with the Full Court’s approach to the extent it requires a court to evaluate the decision, having regard to the terms, scope, and purpose of the relevant statutory power, with a view to determining whether the decision possesses one or more of the qualities conveyed by such words or expressions as “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. This approach has the potential of placing out of direct view the necessity of undertaking an inquiry that ordinarily must be entered into when considering a challenge of a decision on the ground that it is unreasonable. That inquiry is the identification of the standard of conduct by reference to which the reasonableness of the decision under challenge is to be assessed.
“Reasonableness” is a standard.[22] One set of related meanings of “standard” is a “rule, principle, or means of judgement or estimation; a criterion, measure”.[23] Reasonableness, as a standard in this sense, is employed in many areas of law to describe the conduct a person must follow to avoid a legal liability. On its own, however, “reasonableness” has no content. A court gives it content in particular litigious contexts for the purpose of applying a legal rule that requires the court to assess a person’s conduct by reference to the standard of reasonableness. In that sense, reasonableness is a kind of fact – it is something a court must find is the standard against which a particular person’s conduct in a particular case is to be measured for the purposes of the application of a particular legal rule. Such facts have been referred to as “normative facts”.[24] To say, therefore, that a decision-maker is under an obligation to exercise reasonably a statutory power in the particular circumstances of a case presupposes the formulation of a rule of conduct that a decision-maker must have been obliged to follow in the circumstances of that case. Thus, when a decision is challenged on the ground that it is unreasonable, the focus of inquiry is not so much the decision itself, but the standard – that is, the rule of conduct – which in law the decision-maker was required to comply with when making his or her decision in the circumstances in which the decision was made. It is only after the relevant standard has been formulated that the court can determine whether the decision was made in conformity with that standard.
[22] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [63], [66], [67] (Hayne, Kiefel, and Bell JJ)
[23] Oxford English Dictionary, online edition
[24] D A Binder and P Bergman Fact Investigation From Hypothesis to Proof West Publishing Co 1984, pages 6-7: “Sometimes, disputes . . . involve what might be termed “normative facts” and/or “legislative facts.” In such cases, factfinders are called upon not only to determine what occurred in the past in relation to the parties, but also to determine the criteria to be used in judging the past events.”
This distinction between, on the one hand, focusing attention on the standard of conduct to which the decision-maker must conform and, on the other, evaluating the decision, could be said to be illusory. After all, the Full Federal Court in Eden made it clear that the impugned decision must be evaluated having regard to the terms, scope, and purpose of the relevant statutory power pursuant to which the decision is made. In my opinion, however, the distinction is useful and, perhaps, necessary. Reasonableness, being a standard of conduct, must be given content in the particular circumstances in which the decision was made before the Court can assess whether the decision in question was unreasonable. By focusing on the evaluation of a decision with a view to determining whether it is “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”, rather than focusing on ascertaining the standard of reasonableness that applies to the circumstances of the case, and then determining whether the decision complies with that standard, there may be an increased risk that the Court will trespass into the forbidden territory of merits review. That risk arises from the form of the inquiry: is the decision, having regard to the terms, scope, and purpose of the relevant statutory power pursuant to which the decision is made, “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”, and, therefore, legally unreasonable? The direct answering of this question, without the conscious identification of the standard of reasonableness by reference to which the decision in question is to be measured, risks the Court applying its own views of the merits of the matter which is the subject of the decision that is challenged as unreasonable.
This, then, leads me to consider how the contents of the standard of reasonableness may be determined in any given case. There are at least three matters that may need to be considered. The first is the identification of the subject to which the standard of reasonableness is to apply in the circumstances of the case. In Minister for Immigration and Border Protection v Singh[25] the Full Federal Court identified two subjects. One is the outcome of the exercise of the power; in other words, the decision itself. The other is the reasoning the decision-maker employs in arriving at the decision. Thus, the Full Federal Court referred to: [26]
…the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of the power.
[25] [2014] FCAFC 1 (Allsop CJ, Robertson and Mortimer JJ)
[26] [2014] FCAFC 1 at [47] (Allsop CJ, Robertson and Mortimer JJ)
The same distinction was recognised in the reasons for judgment of Bastarache and LeBel JJ of the Supreme Court of Canada in Dunsmuir v New Brunswick:[27]
A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[27] Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47]
In the case before me, the relevant subject in question is the Tribunal’s decision to exercise the discretion under s.426A(1) of the Act, not its reasoning. I will therefore only refer to the formulation of standards for review of decisions, not to the reasoning by which those decisions may have been arrived.
The second matter to consider is the material by reference to which the standard is to be ascertained. There are two classes of material. The first is the subject matter, scope, and purpose of the statutory power pursuant to which the decision in question is made, properly construed. That follows from the principle that “[e]very statutory power, however widely expressed, is confined by the subject matter, scope and purpose of the statute”.[28] The second class of materials is the facts relevant to the proper exercise of the statutory power that were known to the decision-maker and which ought reasonably to have been known to the decision-maker. What facts the decision-maker ought reasonably to have known will be determined by the subject matter, scope, and purpose of the relevant statutory provision pursuant to which the decision is made. It is only after the subject matter, scope, and purpose of the statutory power have been ascertained, and after the relevant facts have been identified, that a court is in a position to formulate the decision the decision-maker ought to have made or ought not to have made.
[28] North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41; (2015) 90 ALJR 38 at [34] (French CJ, Kiefel and Bell JJ)
The third matter to consider is the decision the decision-maker ought reasonably to have made in the circumstances of the case; and that is the decision which ought to have been made by a hypothetical decision-maker, given the subject matter, scope and purpose of the statutory power in question, and the facts relevant to the proper exercise of the power that were known, or which ought reasonably to have been known, to the actual decision-maker. The hypothetical decision-maker has been given different names, and the decision the decision-maker should make or not make in the circumstances of a particular case has been described in different ways. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation[29] Lord Greene MR referred to the hypothetical decision-maker as the “reasonable authority”, and the decision such decision-maker should not make is a decision that is “so unreasonable that no reasonable authority could ever come to it”. In Sharp v Wakefield the hypothetical decision-maker was described as “an honest man competent to the discharge of his office”, and the only decision he was held legally capable of making was one that fell “within the limit, to which an honest man competent to the discharge of his office ought to confine himself”.[30] And in Secretary of State for Education and Science v Tameside Metropolitan Borough Council Lord Diplock referred to the hypothetical decision-maker as a “sensible authority acting with due appreciation of its responsibilities”, and the conduct such decision-maker could not take is conduct that no “sensible authority acting with due appreciation of its responsibilities” could have taken.[31] The decision that is unreasonable has been described in other ways. Unreasonableness will be present if there is an “arbitrariness about the decision”,[32] or where the decision is one that “lacks an evident and intelligible justification”,[33] or where the decision does not fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.[34]
[29] [1948] 1 KB 223
[30] Sharp v Wakefield [1891] AC 173 at page 179 referring to Wilson v Rastall (1792) 4 Term Reports 753 at page 757
[31] Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at page 1064
[32] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [31] (French CJ)
[33] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ)
[34] Dunsmuir v New Brunswick [2008] 1 SCR 190 at page 220-221, [47] quoted with approval by Gageler J in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [105]
It is important to note that the standard of reasonableness, once formulated in a given case, would rarely, if ever, require the decision-maker to make a particular decision. In most, if not all cases, the standard, when formulated, accepts that, in the circumstances of the particular case, there will be a range of decisions it is permissible for the decision-maker to make. Generally, courts do not identify each of the decisions it is permissible for the decision-maker to have made. The application in any given case of the principle that a decision-maker must exercise reasonably a statutory discretion is manifested by a court making one of two findings. One is that the decision fell within the range of decisions it was reasonably open to the decision-maker to make. The other is that the decision was not within the range of decisions it was reasonably open to the decision-maker to make.
This feature of the standard of reasonableness – that it usually accepts that, in any given case, there is a range of decisions a decision-maker may permissibly make – is an incident of discretionary power. In general terms “discretion”:[35]
…refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
[35] Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission & Ors [2000] HCA 47; (2000) 203 CLR 194 at [19] (per Gleeson CJ, Gaudron and Hayne JJ)
It also recognises the reasons legislatures confer discretionary power in particular officials or bodies. These were identified by Dixon J (as his Honour then was) in Swan Hill Shire v Bradbury:[36]
The reason for leaving the ambit of the discretion undefined may be that legislative foresight cannot trust itself to formulate in advance standards that will prove apt and sufficient in all the infinite variety of facts which may present themselves. On the other hand, it may be because no general principles or policy for governing the particular matter it is desired to control are discoverable, or, if discovered, command general agreement.
[36] [1937] HCA 15; (1937) 56 CLR 746 at page 757
Thus, when considering whether the Tribunal acted unreasonably in the case before me by deciding to exercise its power under s.426A(1) of the Act to proceed to review the applicant’s application without taking any further action to allow or enable the applicant to appear before it (Decision), it is necessary to address the following questions:
a)What is the subject matter, scope and purpose of s.426A(1) of the Act?
b)What was the information relevant to the exercise of the power under s.426A(1) of the Act of which the Tribunal was aware, or of which the Tribunal ought reasonably to have been aware, at the time it made the Decision?
c)Is the Decision one that falls within the range of decisions a reasonable decision-maker could reasonably have made, assuming the decision-maker was aware of the subject matter, scope and purpose of s.426A(1) of the Act, properly construed, and was aware of the information of which the Tribunal knew or ought reasonably to have known at the time it made the Decision?
Subject matter, scope and purpose of s.426A(1) of the Act
The subject matter of s.426A(1) of the Act is the making of a decision on a review without the Tribunal’s “taking any further action to allow or enable the applicant to appear before it”. The scope of s.426A(1) of the Act is limited: it empowers the Tribunal to make a decision on a review where the applicant has not appeared before the Tribunal to give evidence, and to present arguments.
What of the purpose or purposes of s.426A(1) of the Act? One purpose is readily apparent; and that is to permit the Tribunal to complete a review in a timely manner. The power conferred by s.426A(1) of the Act eliminates as a potential cause of delay an applicant’s not responding to an invitation under s.425(1) of the Act, and placing the Tribunal in the position of having to contact the applicant to schedule a new hearing date. This way, s.426A(1) of the Act supports one of the aims s.420(1) of the Act identifies the Tribunal should pursue when undertaking a review, namely, quickness.
This purpose may be considered in the light of another purpose manifested by the Act, and which supports the purpose of quickness in the disposition of applications for review; and that is to provide certainty in the means by which the Tribunal may be taken to have communicated with an applicant for the purposes of a review. This purpose is to be inferred from the requirement under s.425A(2) of the Act that an invitation under s.425(1) of the Act to a person not in detention to appear before the Tribunal must be given to the applicant by one of the methods specified in s.441A of the Act.
But quickness and certainty of the means of communication cannot be the only purposes for which the power under s.426A(1) of the Act can be exercised. If that were so s.426A(1) of the Act would not have conferred any discretion on the Tribunal to reschedule a hearing, or delay its decision to allow for a rescheduled hearing to take place. There are also considerations of fairness, and the need to accord substantial justice to the applicant – matters also referred to in s.420(1) of the Act – that may have a bearing on the purposes for which the power conferred by s.426A(1) of the Act may be exercised. These considerations may come into play if the Tribunal, before it makes its decision, becomes aware of some circumstance which would or could render it unfair, or which would or could amount to the denial of substantive justice to the applicant, if the Tribunal were to decide the application for review without making any further attempts to reschedule the hearing. For example, the Tribunal may become aware of circumstances which indicate the applicant suffered from some illness or has suffered some misadventure that prevented the applicant from attending the hearing scheduled by a notice the Tribunal had issued under s.425(1) of the Act. If the Tribunal becomes aware of such circumstances, it would have to consider whether it should exercise its discretion under s.426A(1) of the Act.
Relevant information before the Tribunal
In its reasons for decision, the Tribunal noted that, on 16 September 2014, the applicant responded to the Tribunal’s invitation to attend a hearing before the Tribunal to give evidence and present arguments.[37] That must be a reference to the applicant’s having completed and returned to the Tribunal a “Response to Hearing Invitation”.[38] The applicant indicated in that form that he would take part in the Tribunal hearing that was scheduled for 14 October 2014. He also provided a contact mobile telephone number. The Tribunal also noted, however, that the applicant did not attend the hearing, and did not contact the Tribunal to explain his failure to do so.
[37] CB124, [9]
[38] CB116-117
Was the Tribunal’s decision within the range of decisions open to a reasonable decision-maker?
Although the Tribunal was aware the applicant had indicated he would appear at the hearing, the Tribunal member could not reasonably have been expected to assume or suspect that the applicant’s failure to appear was due to some mishap which would have rendered it unfair or unjust for the Tribunal to have exercised the discretion under s.426A(1) of the Act as the Tribunal member did by deciding to proceed with the review without rescheduling the hearing. That is particularly so in the circumstances of this case where the applicant did not attempt to contact the Tribunal to explain his absence. Further, given the subject matter, scope, and purpose of s.426A(1) of the Act, the Tribunal was not required to consider whether the reason an applicant did not appear was that the applicant had forgotten. If that were so, the Tribunal would be required, in every case where an applicant does not appear, to attempt to contact the applicant before the Tribunal could exercise the power conferred by s.426A(1) of the Act. That would add a precondition to the exercise of the power under s.426A(1) of the Act that does not appear in the text of that subsection.
It is true that the Tribunal in this case made its decision at 9:25 am on 15 October 2014, which is just under 22 ½ hours after the scheduled hearing time and date, and that may be considered a relatively short time within which the applicant could have contacted the Tribunal about his non-appearance. On the other hand, short as it was, the period could reasonably have been regarded by the Tribunal as sufficiently long to have provided the applicant a reasonable opportunity to contact the Tribunal, if the applicant had in fact suffered some misadventure that prevented the applicant from attending the hearing and which could have rendered unfair the Tribunal’s decision to proceed with the application without rescheduling the hearing.
It is also true that some illnesses and misadventures may be of such character as to make it impossible for an applicant to contact the Tribunal. For example, an applicant may have been involved in a serious accident that rendered the applicant unconscious for days. In the case before me, however, the Tribunal assumed the applicant did not suffer any misadventure that made it impossible or at least difficult for the applicant to contact the Tribunal. That assumption is revealed in the Tribunal’s noting that the applicant did not contact the Tribunal to explain his absence. It was reasonably open to the Tribunal to so assume, given that it could reasonably have been supposed by the Tribunal, simply on the basis that such misadventures are relatively rare, that the likelihood of the applicant having suffered such mishap was very small.
I am troubled by this last conclusion, for it would mean that if an applicant suffers a severe mishap, the Tribunal, if unaware of such mishap, could reasonably proceed to determine the review without rescheduling a new hearing. That would cause a substantial injustice. The only way, however, to eliminate the possibility of this occurring in relation to any applicant who suffers such mishap would be to require the Tribunal in every case to contact by telephone an applicant who has failed to appear at the hearing, whether or not the applicant has informed the Tribunal he or she intends to appear. In my opinion, however, to impose such requirement would be contrary to the purpose of s.426A(1) of the Act, properly construed. It would mean that the Tribunal would have no discretion to proceed to complete a review where an applicant does not appear at a hearing without rescheduling the hearing, unless the Tribunal first attempts to contact the applicant, at least where it is practicable for it to do so. That would add a precondition to the exercise of the power under s.426A(1) of the Act that does not exist in the text of that subsection.
In my opinion, therefore, the Tribunal’s decision to exercise the power conferred on it by s.426A(1) of the Act in the circumstances of this case was within the range of decisions a reasonable Tribunal would have made, given the subject matter, scope, and purpose of s.426A(1) of the Act, and the facts as they were known to the Tribunal.
Cases referred to by the Minister
Counsel referred me to two cases that may be potentially relevant to ground 1. The first is a decision of North J in AZAFB v Minister for Immigration and Border Protection.[39] In that case, the applicant had changed his address without notifying the Tribunal. The applicant, therefore, did not receive an invitation the Tribunal had sent under s.425(1) of the Act to the address the applicant had nominated, and the Tribunal exercised the power conferred by s.426A(1) of the Act and proceeded with the review without rescheduling the hearing or delaying the making of a decision to accommodate the rescheduling of a hearing. His Honour found the Tribunal acted unreasonably by failing to contact the applicant by use of the mobile telephone number the applicant had provided to the Tribunal. His Honour said:[40]
The obvious purpose of recording the mobile phone number was to provide a method which would allow the Tribunal to contact the appellant. Elementary common sense demanded that the Tribunal at least attempt to phone the appellant on the mobile phone number which it had in its records. To fail to do so was legally unreasonable. The Tribunal fell into jurisdictional error by not seeking to contact the appellant on the phone number which he had given the Tribunal.
[39] [2015] FCA 1383
[40] [2015] FCA 1383 at [26]
The second case is the decision of Barker J in Ponugoti v Minister for Immigration and Border Protection.[41] Unlike the applicant in AZAFB, the applicant in Ponugoti was aware of the scheduled hearing date, but did not appear. His Honour agreed with a Judge of this Court that the Tribunal did not act unreasonably by exercising the power under s.362B of the Act (which is equivalent to s.426A(1) of the Act) to proceed with making a decision without rescheduling the hearing. Barker J said:[42]
The Tribunal initially, on the return of the hearing invitation letter, contacted the appellant. It made sure he knew the hearing was to be held. There were no other communications, the nature of which suggested that the Tribunal should have attempted to contact the appellant once again, before proceeding to decide the review application in his absence. The appellant, on the evidence before the Court, simply did nothing.
[41] [2015] FCA 67
[42] [2015] FCA 67 at [54]
Counsel for the Minister submitted that the facts of the case before me are distinguishable from those in AZAFB, and comparable to those in Ponugoti, and that I should conclude in this case as Barker J and this Court concluded in Ponugoti. There are a number of points to make about this submission.
First, the Full Federal Court in Minister for Immigration and Border Protection v Singh said that it would be wrong to see Minister for Immigration and Citizenship v Li[43] “as creating some kind of factual checklist to be followed and applied in determining whether there has been a legally unreasonable exercise of a discretionary power”.[44] The same can be said about any case in which a court has found a discretionary power has been exercised unreasonably. That is so because, as the Full Federal Court explained:[45]
Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence. Ultimately, however, the outcome will depend on the application of the principles which emerge from Li, and the earlier authorities discussed in it, rather than on mere factual similarities or differences.
[43] [2013] HCA 18; (2013) 249 CLR 332
[44] [2014] FCAFC 1; (2014) 231 FCR 437 at [42] referring to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
[45] [2014] FCAFC 1; (2014) 231 FCR 437 at [42]
The second matter to note about the Minister’s submission is that, although the facts in Ponugoti are distinguishable from the facts in AZAFB, the facts before me are distinguishable from those in both Ponugoti and AZAFB. In particular, unlike the facts in Ponugoti, the applicant in the case before me indicated he would attend the hearing, whereas the applicant in AZAFB did not. Had the applicant in Ponugoti informed the Tribunal, as the applicant did in this case, that he intended to appear at the hearing, it may be that Barker J may have regarded this a “communication, the nature of which suggested that the Tribunal should have attempted to contact” the applicant.
The third matter to note about Ponugoti and AZAFB is that in neither case did the Court expressly consider the subject matter, scope or purpose of s.426A(1) or s.362B of the Act; nor did the Court in either of these cases expressly consider whether the decision the Tribunal made was within the range of decisions reasonably open to a decision-maker, given the facts that were known or available to the Tribunal.
For these reasons, I do not propose to decide whether the Tribunal in the case before me acted unreasonably by reference to the facts and decisions in Ponugoti and AZAFB. That question should be determined by applying the principles of reasonableness to which I have referred above. As I have already found, the Tribunal’s decision to exercise the power conferred on it by s.426A(1) of the Act in the circumstances of this case was within the range of decisions a reasonable Tribunal would have taken, given the subject matter, scope, and purpose of s.426A(1) of the Act, and the facts as they were known to the Tribunal. In other words, the Tribunal’s decision under s.426A(1) of the Act to proceed with the review without rescheduling the hearing, or delaying the making of a decision until the hearing was rescheduled, was not unreasonable.
Ground 1 of the application, therefore, fails.
Ground 2
The second ground, as stated in the application, provides a reason why the applicant could not provide sufficient evidence about his claim. Whether or not the applicant has good reasons for not presenting evidence to the Tribunal is not a matter that is relevant to whether the Tribunal made a jurisdictional error. It is not suggested that the applicant had in any way informed the Tribunal that he had relevant information to provide, but which he could not provide because he would be placing his family in danger if he were to provide such information.
At the hearing before me, the applicant, who is not legally represented, said that he had difficulty in obtaining evidence about his ownership of the business referred to in his application for a protection visa, and about the circumstances of his detention. These matters do not disclose any jurisdictional error. There is no suggestion the applicant informed the Tribunal he had difficulty obtaining evidence.
Ground 2, therefore, fails.
Ground 3
In his third ground, the applicant claims he was unable to explain his experience of persecution, and that he was very nervous in his interview. Presumably, the ground intends to refer to the interview before the delegate. At any rate, the ground does not disclose any jurisdictional error.
At the hearing, the applicant repeated it was difficult to obtain evidence, that he would do his best to obtain evidence, that he was injured, and that he is under mental pressure. None of these matters suggest any jurisdictional error by the Tribunal.
Ground 3, therefore, fails.
Ground 4
Ground 4 simply requests that this Court consider the applicant’s situation. That, by itself, does not disclose any jurisdictional error by the Tribunal.
Ground 4, therefore, fails.
Disposition
The applicant has not succeeded on any of his grounds of application. I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as second respondent.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 8 April 2016
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