Verma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 32
•31 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Verma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 32
File number: MLG 818 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 31 January 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal acted unfairly by making a decision (pursuant to s 362B of the Act) in the absence of the applicant – whether the Tribunal “misguided” the applicant – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss.360, 360A, 362B, 368, 476
Migration Regulations 1994 (Cth), reg.4.21, cll.570.227 and 570.227A of Schedule 2Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Kim v Minister for Immigration and Anor [2008] FMCA 1577
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80Division: Division 2 General Federal Law Number of paragraphs: 82 Date of hearing: 27 January 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms M Stone Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 818 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YOGESH VERMA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
31 JANUARY 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 2).
The applicant was granted a Visitor (Class FA) (Subclass 600) visa (the “visitor visa”) on 1 December 2015 (CB 12) and arrived in Australia as the holder of that visa.
On 29 April 2016, whilst holding the visitor visa (and whilst he remained in Australia), the applicant applied for a Student (Temporary) (Class TU) (Subclass 570) visa (the “visa”)
(CB 1-21). Attached to that application were supporting documents (including a letter of offer and acceptance, identity documents and educational records) (CB 22-31).
On 16 May 2016, the then Department of Immigration and Border Protection (the “Department”) asked the applicant for more information about his visa application
(CB 34-39). In that letter, the Department stated (CB 37):
Initial student visa while in Australia
As you are an Assessment Level 3 applicant, you are not able to be granted an initial student visa in Australia unless exceptional reasons exist for the grant of the visa.
Exceptional reasons may include but are not limited to:
•the grant of the visa would be of benefit to Australia
•the applicant is a family member of a departing temporary resident, has been successfully studying in Australia for at least one (1) year and wishes to complete their current course of study or undertake further studies
•the applicant is a holder of an Occupational Trainee (subclass 442) visa, a Visiting Academic (subclass 419) visa, or a Training and Research (subclass 402) visa in the Occupational Trainee stream or the Research stream, and wishes to change to a student visa to undertake further studies in Australia.
Please provide a statement explaining your exceptional reasons for the grant of an initial student visa in Australia and any supporting evidence.
The applicant was given 28 days within which to respond to the Department but no response was provided to the Department by the applicant.
On 23 August 2016, the Department again asked the applicant for more information about his application (CB 41-46). In that letter, the Department asked for the same information as was requested in their letter dated 16 May 2016.
Again, no response was provided by the applicant.
On 23 September 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 51-54). Having concluded that there were no exceptional grounds to grant the applicant the visa, the delegate was not satisfied that the applicant met clause 570.227 of Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 53).
On 10 October 2016, the applicant applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 55-56). The applicant provided copies of the refusal letter and decision record with his application for review (CB 55-56). He also provided his mobile number and the contact details of his migration agent (including his email address).
On 22 February 2017, the Tribunal invited the applicant to appear at a hearing before it scheduled for 21 March 2017 (CB 67-72). The invitation was sent by email to the applicant's representative and notified the applicant that if he did not attend the hearing, the Tribunal may make a decision on review without taking any further action to allow or enable him to appear or it may dismiss the application without any further consideration (CB 68). The Tribunal did not receive a response to that invitation.
On 14 March 2017, the Tribunal sent an SMS hearing reminder to the applicant's phone number ([omitted]). That message read (CB 77):
Reminder - Your AAT hearing is on 21/03/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
The Tribunal's system recorded that the delivery of that SMS hearing reminder failed on 17 March 2017 (CB 77).
A second SMS hearing reminder was sent to the applicant’s phone number on 20 March 2017. That message read (CB 77):
Reminder - Your AAT hearing is on 21/03/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
Neither the applicant nor his representative appeared at the Tribunal hearing on 21 March 2017 (CB 73-76).
On 23 March 2017, the Tribunal’s system recorded that delivery of the second SMS hearing reminder sent on 20 March 2017 had also failed (CB 77).
On 24 March 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 81-85).
On 21 April 2017, the applicant sought judicial review of the Tribunal’s decision in this Court. That application was supported by an affidavit which was affirmed by the applicant. That affidavit attached a copy of the Tribunal’s decision and associated correspondence (discussed below). The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must demonstrate that the Tribunal fell into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is five pages long and spans 21 paragraphs.
The Tribunal began by detailing the decision under review (at [1]), the requirements for the visa and the matter’s history to date. Relevantly, the Tribunal explained as follows:
2.The applicant applied for the visa on 29 April 2016 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).
3.In the present case, the delegate assessed the applicant against the criteria for a Subclass 570 visa on the basis of the applicant’s claimed enrolment in Certificates I,II,III and IV of EAL.
4.The criteria for the grant of a Subclass 570 visa are set out in Part 570 of Schedule 2 the Regulations. Relevantly to this case they include cl.570.227. The visa was refused because the applicant, who held a Tourist subclass 600 visa when the application was made, did not provide the evidence of exceptional reasons for the grant of the visa.
The Tribunal then explained why it had decided to hear the matter without the applicant in attendance:
5.On 22 February 2017 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a hearing on 21 March 2017. The review applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice. No response to the hearing invitation was received. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5) and the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the 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.
The Tribunal identified that the issue before it was whether there were “exceptional reasons” for the grant of the visa as set out in cl 570.227 of Schedule 2 of the Regulations (at [7]).
The Tribunal then outlined the relevant legislative provisions under cll 570.211, 570.227 and 570.227A of Schedule 2 of the Regulations (noting the requirement that the applicant establish that there are “exceptional reasons” for the grant of the visa (at [8]).
The Tribunal then noted:
9.The delegate’s decision, a copy of which was provided with the review application, records that the applicant is subject to Assessment level 3 and, having never held a student visa, is required to demonstrate exceptional reasons for the grant of the student visa onshore. The delegate noted that on 23 August 2016 the applicant was requested to provide information regarding exceptional reasons; however, no response was received. After considering the relevant policy, the delegate was not satisfied that exceptional reasons for the grant of the visa were established. Consequently the visa was refused.
The Tribunal explained that the hearing invitation letter (sent to the applicant on 22 February 2017) asked the applicant for further information or documents to support his application but that no response had been received (at [10]).
The Tribunal then determined as follows:
11.On the basis of the course enrolment information above (paragraph 3), the Tribunal finds that the applicant is applying to study courses within the 570 stream and that he made the student visa application in Australia as the holder of a Subclass 600 (Visitor) visa. He therefore met the requirements of cl.570.211 at the time of application. As the holder of a passport of India he is subject to assessment level 3, the highest relevant assessment level and which is higher than assessment level 1 (r.570.227A). He therefore satisfies cl.570.227(a) and (b). To meet cl.572.227(c) he must establish exceptional reasons for the grant of the Subclass 572 visa.
The Tribunal noted that, when considering if an applicant has established “exceptional circumstances” for the granting of the visa, the Tribunal will have regard to the findings in Kim v Minister for Immigration and Anor [2008] FMCA 1577 (“Kim”) (at [12]-[13]).
The Tribunal continued:
14.Under Departmental guidelines (PAM3) ‘exceptional reasons’ may include but are not limited to situations where:
•there is a ‘benefit to Australia’ (for example where the visa grant would improve bilateral relations or provide significant economic benefits to Australia),
•the applicant is a dependent of a departing temporary resident and has been studying in Australia for at least one year and wishes to complete her or his current course or undertake further studies,
•the applicant held a student visa in Australia and was granted a specified temporary visa and now wishes to undertake further study,
•the applicant previously held a student visa and now holds either an FA-600 or a TR-676 (visitor) visa granted under s.351 (Ministerial intervention).
The Tribunal acknowledged that it was not bound by the PAM3 guidelines but accepted that the guidelines are a relevant consideration when assessing whether “exceptional circumstances” exist (at [15]).
The Tribunal stressed that there was an emphasis on the word “exceptional” and that, as determined in Kim, when assessing “exceptions”, the assumption is that the applicant should not be granted the visa unless “exceptional reasons” are identified to justify the grant of the visa (at [16]).
The Tribunal then determined as follows:
17.Having considered the Departmental and Tribunal files, and in the absence of the applicant’s response to the Department’s and Tribunal’s invitations to provide further information, there is nothing in the material before the Tribunal which indicates or suggests that the grant of a Subclass 570 visa to the applicant would improve bilateral relations or provide a significant economic benefit to Australia. As recorded in the delegate’s decision, he has not previously been the holder of a student visa nor is there any evidence or claim that he is a dependent of a departing temporary resident as described above.
18.As he did not attend the hearing the Tribunal was unable to explore these or other possible reasons any further with the applicant. Having carefully considered the Departmental and Tribunal files, there is nothing further in the material before the Tribunal which indicates that there may be exceptional reasons warranting the grant of the visa.
Citing the reasons in Kim, the Tribunal was not satisfied that the applicant had established “exceptional reasons” and did not satisfy cl 570.227 of Schedule 2 of the Regulations (at [19]).
The Tribunal ultimately found that the applicant did not satisfy the criteria for the grant of the visa (at [20]). On that basis, the Tribunal affirmed the decision not to grant the applicant the visa (at [21]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicant on 21 April 2017 contains one lengthy “ground of review”, as follows:
1.My concern about the decision by the AAT department is that I am a victim of poor guidance by the AAT department. I was sick on 21st March 2017 and I am providing my medical certificate with this application. I called the AAT department and I was told my application will be dismissed and I will be given a chance to show my reasons for not attending the hearing. I was also told that if AAT department is satisfied then my application would be reinstated. I was waiting for the correspondence from the AAT department but I got the decision on my application instead. I was ready to provide the evidence for not attending the hearing but I wasn’t given a chance to do so. When I got my refusal from the AAT department, I realized that I am a victim of misguidance from the AAT department. Judge because of misguidance, my whole future is ruined and I am standing in middle of nowhere. This is very unfair treatment from AAT department. I want to dispute this unfair treatment of AAT department in the judicial court. I believe that AAT department has made an error in handling my review application lawfully. I request the Federal Circuit Court to exercise its powers and reverse the decision of the Administrative Appeals Tribunal.
Document is attached with application.
Attached to the applicant’s application for judicial review is a statutory declaration from the applicant dated 27 March 2017. That declaration states:
I have been medically unwell on the 20th and 21st of March 2017 inclusive. I was absent due to a medical problem. I saw the doctor 27/03/17 because I was unable to get an appointment prior to this.
The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions. No further material was filed.
The materials before the Court thus includes the application for judicial review and supporting affidavit filed by the applicant on 21 April 2017, a Court Book numbering 85 pages (Exhibit 1), the applicant’s statutory declaration made on 27 March 2017 (Exhibit 2) and written submissions filed by the Minister on 17 January 2018.
The applicant appeared before this Court without legal representation. He had requested the assistance of an interpreter in the Punjabi and English languages and that assistance was made available to him on the day of the hearing. Ultimately, translation assistance was not required as the applicant chose to proceed with the hearing in English (with the interpreter remaining on “standby” to assist if and when required). The Court is satisfied that no issues arise in this regard. The applicant effectively conveyed his arguments and concerns to the Court.
The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that the only issue before it in matters such as this is whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that he “only requested to study to improve his English and that he did not really have any assistance with any of his paperwork”. Nor did he “understand what was required of him”. The applicant acknowledged that he may have “made some mistakes” but stressed that he did not have any help. He also suggested that the Tribunal “might have made a mistake because other people are being granted visas to study”.
Unfortunately, whilst the Court is sympathetic to self-represented litigants in the applicant’s situation (all of whom must navigate the complex legislative requirements for the visas they seek), the concerns raised above do not identify errors of the sort that this Court can address. However, the Court does note that the applicant prepared his application for judicial review without legal assistance. In the circumstances the Court will, in its duty to him as a
self-represented litigant, read his sole ground of review as broadly as possible and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
CONSIDERATION
As noted above, the applicant’s application for judicial review provides one lengthy statement, as follows:
1.My concern about the decision by the AAT department is that I am a victim of poor guidance by the AAT department. I was sick on 21st March 2017 and I am providing my medical certificate with this application. I called the AAT department and I was told my application will be dismissed and I will be given a chance to show my reasons for not attending the hearing. I was also told that if AAT department is satisfied then my application would be reinstated. I was waiting for the correspondence from the AAT department but I got the decision on my application instead. I was ready to provide the evidence for not attending the hearing but I wasn’t given a chance to do so. When I got my refusal from the AAT department, I realized that I am a victim of misguidance from the AAT department. Judge because of misguidance, my whole future is ruined and I am standing in middle of nowhere. This is very unfair treatment from AAT department. I want to dispute this unfair treatment of AAT department in the judicial court. I believe that AAT department has made an error in handling my review application lawfully. I request the Federal Circuit Court to exercise its powers and reverse the decision of the Administrative Appeals Tribunal.
Document is attached with application.
Read broadly, it is arguable that the applicant has the following concerns in relation to the Tribunal’s decision:
(a)the Tribunal acted unfairly by making a decision (pursuant to s 362B of the Act) without the applicant in attendance (“issue 1”);
(b)the Tribunal “misguided” the applicant (or gave him poor advice) in relation to his need to attend the hearing and his review rights (“issue 2”); and
(c)the Tribunal failed, broadly, to afford the applicant procedural fairness (“issue 3”).
These issues will be addressed below.
Issue 1
The first concern the applicant appears to raise is that the Tribunal acted unfairly by making its decision under s 362B of the Act without any input from the applicant.
At the time of the Tribunal’s decision, s 362B of the Act relevantly provided:
362B Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(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.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.
In order for s 362B of the Act to apply, the Tribunal needed to invite the applicant to appear at a Tribunal hearing (pursuant to s 360 of the Act).
Here, the Tribunal wrote to the applicant (through his registered migration agent) via email on 22 February 2017 and invited him to attend a hearing (CB 65-72).
For that invitation to be a valid invitation, it needed to comply with s 360A of the Act.
At the time of the Tribunal’s decision, s 360A of the Act provided:
360A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(5) The notice must contain a statement of the effect of section 362B.
The letter sent to the applicant relevantly provided (CB 67-68):
Date: 21 March 2017
Arrive By: 9:10 am (VIC time)
Arrive by this time and report to the reception counter.
Time: 9:30 am (VIC time)
Your hearing is scheduled to start at 9:30 am and is one of several cases to be heard in the following two hours.
Location: Level 10, 120 Spencer Street, MELBOURNE, VIC 3000
Interpreter: Please advise us at least 7 days before the hearing if you require an interpreter.
Bring: Your passport or other document that proves your identity.
…
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
In this case, the letter from the Tribunal:
(a)notified the applicant that the hearing was scheduled to take place at 9.30am (VIC time) on 21 March 2017 at the Tribunal’s Melbourne registry: s 360A(1) of the Act;
(b)was sent via email to the last email address provided to the Tribunal by the applicant in connection with the review (as outlined in ss 379A(5)(b) and (d) of the Act), being the email address of the applicant’s registered migration agent: s 360A(2)(a) of the Act;
(c)gave the applicant more than the prescribed period of notice for the hearing. The prescribed period in matters of this sort is 14 days (see reg 4.21 of the Regulations). Here, the notification was sent to the applicant’s migration agent 27 days prior to the hearing date: s 360A(4) of the Act; and
(d)included a statement (as per s 362B of the Act) which notified the applicant that, in the event that he did not appear at the hearing, the Tribunal might make a decision without taking any further action to allow him to appear before it or dismiss the application without any consideration of the application: s 360A(5) of the Act.
The hearing notification complied with s 360A of the Act and the applicant was validly invited to the hearing. However, the applicant did not appear at the hearing which, as outlined above, was scheduled to take place on 21 March 2017 (CB 73-76).
Once the applicant failed to appear at the scheduled hearing, s 362B of the Act empowered the Tribunal to be able to either make a decision in relation to the application based on the material before it (s 362B(1A)(a) of the Act) or dismiss the application (s 362B(1A)(b) of the Act).
The Tribunal opted to produce a written statement under s 368 of the Act (CB 81-85) and “make a decision on the review without taking any further action to enable to … enable the applicant to appear before it”. The Tribunal had the power to do so pursuant to s 362B(1A)(a) of the Act. There was nothing unfair or unreasonable in the Tribunal doing so. It was clearly empowered by s 362B of the Act to proceed as it did.
The Court also agrees with the Minister (as outlined in written submissions dated 17 January 2028 at [17] and [21]) that it was also not unreasonable for the Tribunal not to exercise its discretion to adjourn the hearing under s 363(1)(b) of the Act.
In this matter, there was no pattern of contact between the applicant and Tribunal (an issue addressed in more detail below) prior to the hearing invitation being sent to the applicant’s migration agent.
A copy of the Tribunal’s case notes indicates that two text messages were sent to the applicant to remind him of the hearing (on 17 March 2017 and 20 March 2017) (CB 77). Those text messages failed. The Court notes that no “reminder text messages” were sent to the applicant’s registered migration agent and no phone calls were made to the applicant (or the applicant’s migration agent) on the date of the hearing. However, in circumstances where ss 360 and 360A of the Act were complied with and the hearing invitation sent to the applicant’s registered migration agent was valid, the Tribunal was under no further obligation to consider if there was any other way to notify the applicant of the hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39] per Spender, French and Cowdroy JJ (in relation to ss 425 and 425A of the Act).
Context matters in this regard. Here, the applicant had failed to engage with the Department (as well as the Tribunal). He did not respond to two requests for further information from the Department and the invitation to attend a hearing from the Tribunal made it quite clear what was expected of him and what might happen if the information asked for was not provided. Further, there was no evidence before the Tribunal that the applicant's contact details had changed or that he had advised the Department of any change in his contact details. Nor does any evidence of that sort exist now. Further, as stressed by the Minister, the applicant's ground of review does do not state that he did not receive the hearing invitation. Rather, he appears to concede that he did receive the invitation but that he was ill around the time of the scheduled hearing. In this regard, it is noted that there is no evidence of a medical certificate ever having being provided to the Tribunal or, indeed, that the Tribunal was aware that the applicant was unwell at the time of the hearing.
In the circumstances, it cannot be said that the Tribunal acted unfairly or unreasonably in proceeding as it did or by not adjourning the hearing to a later date.
No error arises in relation to issue 1.
Issue 2
The second concern the applicant appears to raise is that the Tribunal gave him poor advice in relation to what would happen if he did not attend the hearing.
Relevantly, the applicant claims that he called the Tribunal and discussed his review with someone at the Tribunal. He claims that he was told that his application would be dismissed and that he would be provided with a “chance to show [his] reasons for not attending the [Tribunal] hearing”. The applicant also claims to have been told that, if the “department [was] satisfied, then [his] application would be reinstated”.
There is no reference to any phone call from the applicant in the Tribunal’s case notes (CB 77). Nor has the applicant provided any evidence in this regard or any detail about who he spoke to or when the alleged call was made. There is simply no evidence that any conversation of the sort alleged actually occurred.
In so far as the Tribunal might be seen to have otherwise “misguided” the applicant, the hearing invitation and attached information sheet both outlined what might happen in the event that the applicant failed to appear at the hearing. Specifically, the hearing invitation letter stated (emphasis added) (CB 68):
If you are not able to attend the hearing, you need to advise me as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
Further, the information sheet provided to the applicant with the hearing invitation (CB 69-72) outlined what would be required in the event that the applicant was unable to attend the hearing.
Specifically, that document provided (CB 71-72):
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
As noted above, the applicant claims that he was sick on 21 March 2017 (being the date upon which the Tribunal hearing was scheduled) and claims to provide a medical certificate with his application to this Court.
What is attached to the application is not a medical certificate. Rather, it is a statutory declaration which was made by the applicant on 27 March 2017. It states:
I have been medically unwell on the 20th and 21st of March 2017 inclusive. I was absent due to a medical problem. I saw the doctor 27/03/17 because I was unable to get an appointment prior to this.
There is nothing before the Court to suggest that the applicant (or the applicant’s registered migration agent) contacted the Tribunal on 20 or 21 March 2017 (being the dates the applicant claims he was unwell) to notify the Tribunal that the applicant would not be able to attend the hearing or to seek an adjournment of that hearing.
The applicant has not provided any medical evidence to support his claim that he was unwell on the scheduled hearing date or that he saw a doctor on 27 March 2017. The only supporting documentation provided to the Court in this regard is the statutory declaration referred to above (provided to the Court as an attachment to the application for judicial review filed by the applicant). There is no evidence to suggest that the applicant provided a copy of a statutory declaration to the Tribunal, or indeed any evidence whatsoever in this regard.
As detailed in the information sheet provided to the applicant, in the event that an applicant is unable to provide a medical certificate, convincing reasons must be provided for why this is the case. The information sheet also put the applicant on notice that, should he not attend the hearing, the Tribunal may make a decision “without taking any further action” to allow him to appear again or dismiss the application.
As outlined above, there is no evidence before the Court to suggest that the applicant (or the applicant’s migration agent) contacted the Tribunal to advise that the applicant was unwell and could not participate in the Tribunal hearing. Further, the hearing invitation letter clearly stated that the Tribunal could either make a decision on the review application or dismiss the application for non-appearance, providing the applicant with 14 days within which to seek reinstatement. The applicant was therefore on notice from 22 February 2017 of his options in the event that he was unwell or otherwise unable to attend the Tribunal hearing. He was also on notice from that time of the Tribunal’s options in the event that he did not appear at the hearing.
There is no evidence before this Court to suggest that the Tribunal “misguided” the applicant or have him poor or incorrect advice.
No error arises in this regard.
Issue 3
Arguably, the applicant also queries whether the Tribunal adhered to its broad procedural fairness obligations.
In this regard, the Court notes as follows:
(a)the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments: s 360 of the Act (CB 65-72);
(b)the applicant failed to appear at that hearing (CB 73-76);
(c)as outlined above, because the applicant failed to appear at the scheduled hearing, the Tribunal was empowered by s 362B of the Act to make a decision without inviting the applicant to attend a further hearing;
(d)there is nothing on the face of the Tribunal’s decision to suggest that the Tribunal displayed any bias or prejudgment;
(e)in circumstances where the applicant did not respond to any invitations from the Department to provide information and failed to appear at a hearing before the Tribunal to give evidence, the Tribunal made its decision based on the limited evidence before it, as was its statutory right; and
(f)based on the limited information before the Tribunal, the findings made by the Tribunal were entirely open to it, as was its decision to continue with hearing (rather than adjourn it to a later date).
Any allegation of “unfairness” in relation to the Tribunal’s conduct cannot be made out.
CONCLUSION
The application for judicial review filed by the applicant on 21 April 2017 has failed to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 31 January 2022
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