AYT16 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The Appellant pay the First Respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 The Appellant applied to the First Respondent for the issue of a protection visa on 4 April 2014. This application was refused by a delegate of the First Respondent on 31 October 2014. He then sought a review on the merits of that decision in the Administrative Appeals Tribunal ('the Tribunal'). This he did on 27 November 2014. On 28 January 2016, the Tribunal invited the Appellant to attend a hearing before it, which was scheduled for 3 March 2016. 2 Through his migration agent, the Appellant sought an adjournment of that date on health grounds. The request was contained in an email sent to the Tribunal on 1 March 2016 in which the migration agent referred to the Appellant's stress, anxiety, high blood pressure and elevated levels of diabetes (sic) due to the death of a family member in Pakistan. A medical certificate was attached which did not refer to these matters but which did say he was unfit to 'continue his usual occupation' until 4 March 2016 (the day after the hearing). An adjournment to 16 March 2016 was granted by the Tribunal. 3 On 14 March 2016, the migration agent sought a further adjournment, this time of the 16 March 2016 hearing. This request was supported by a medical certificate from a doctor which stated that the Appellant needed time to recover from the death of his brother, who had been killed - and this is important - on 23 February 2016. The Tribunal then requested that it be provided with a copy of the brother's death certificate. 4 On 15 March 2016, the migration agent forwarded to the Tribunal a hospital certificate which stated that the Appellant's brother had died on 23 January 2016, that is to say, a whole month before the date stated in the earlier medical certificate. At the same time the migration agent also, apparently, provided a death certificate which said that the Appellant's brother had died on 12 January 2016. 5 On that same day, the Tribunal wrote to the Appellant's migration agent stating that the various certificates stated three different dates for the death of the Appellant's brother. It informed the migration agent that it proposed to proceed with the hearing the following day when the Appellant could, if he wished, have the opportunity of explaining the anomaly and the hearing could, if necessary, be adjourned. 6 As events transpired, the Appellant did not appear the next day. The Tribunal then exercised the power in s 426A(1A)(b) of the Migration Act 1958 (Cth) ('the Act') to dismiss the proceeding before it. Section 426A applies if, inter alia, a visa applicant has been invited to attend a hearing before the Tribunal but does not attend. It provides that in such a case the application may be dismissed by the Tribunal 'by written statement under section 426B…without any further consideration of the application or information before the Tribunal': subsection 426A(1A)(b). 7 This the Tribunal did. Its written statement was dated 16 March 2016. The salient features of the written statement were the recitation of the three different dates proffered for the date of the brother's death and the failure of the Appellant to appear and explain the problem: '…The applicant was given an opportunity to discuss these issues, but he failed to appear before the Tribunal to do so and has not given any explanation for the variation in dates relating to his brother's death and no further medical evidence has been provided in relation to the "health issues" affecting the applicant's ability to attend a hearing. Therefore, as no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.' 8 This was not the end of the matter. Although a dismissal for non-appearance may not be varied or revoked after the day upon which it is issued (s 426B(4)), provisions exist for the reinstatement of applications that have been dismissed in this manner. If reinstated, the application is taken never to have been dismissed (s 426A(1D)(a)). However, these provisions are attended by strict time limits with which, as will be seen, the Appellant did not comply. 9 Section 426A(1B) allows an applicant, whose application has been dismissed for non-attendance at a hearing, to apply to have it reinstated, but only if this is done within 14 days of receiving notice of the Tribunal's decision to dismiss the application. If an applicant does not apply within that 14 day window the Tribunal must 'confirm' the decision: s 426A(1E). The effect of the confirmation is to deem the decision under review as having been affirmed: s 426A(1F). Section 430A(1) provides that the Tribunal must then notify the applicant of its decision to confirm the dismissal of the primary application (although failure to provide such notification does not affect the validity of the dismissal: s 430A(3)). 10 These provisions made it important for the Appellant to seek to reinstate his application within 14 days of being notified that it had been dismissed due to his non-attendance. He did not do so. Consequently, the Tribunal was obliged by law, to wit s 426A(1E), to 'confirm' the decision. This it did, without any lawful ability to do otherwise, on 1 April 2016. It provided the Appellant, through his migration agent, with notice of this decision on 4 April 2016. 11 The Appellant then sought judicial review of that decision in the Federal Circuit Court. However, since the Appellant had not sought to reinstate the application within 14 days of being notified of it, this was an argument which could not succeed. Once that fact was established, the Tribunal's hands were tied and the dismissal had to be confirmed. The Federal Circuit Court so held. It was correct to do so. 12 In the Federal Circuit Court, the learned primary judge, apprehended - correctly with respect - that a more fertile forensic field might be found by more closely considering the Tribunal's decision on 15 March 2016 not to grant an adjournment and to continue to deal with the matter on 16 March 2016. His Honour granted leave to the Appellant to amend his originating application to raise such a ground of review. The amendments were, on one view, out of time and required an extension of time application to be brought, which the primary judge granted. The amendment to raise the challenge to the refusal of the adjournment was made in advance of the trial (on 12 October 2016; the trial was on 24 October 2016). At the trial, the Appellant submitted that he had been unwell and could not attend the hearing on 16 March 2016. He pointed to the fact that he had sought an adjournment of that date. 13 But that did not address the basic problem which was the Tribunal's desire to have explained to it the discrepancy between the various dates which had been provided for the brother's death. That discrepancy was reasonably capable of undermining the value of the Appellant's medical certificate. Upon receipt of the Tribunal's communication of 15 March 2016, the Appellant could have sought, but did not seek, an adjournment to explain the inconsistency by which the Tribunal was troubled. He could, as the primary judge rightly observed, have applied to address the Tribunal on the topic of the discrepancy on 16 March 2016, but this too he did not do. Furthermore, at any time within the 14 days, he could have applied for a reinstatement of his application. None of this was done. Those considerations tend to suggest that the Appellant was not denied procedural fairness by the adjournment being refused in the manner it was. 14 What was that manner? The Tribunal did not refuse the adjournment request outright. It just wished to explore the date inconsistencies a little further. In my opinion, this was, in the circumstances, a course which was reasonably open to it. 15 On some occasions, a denial of an adjournment may result in a breach of procedural fairness: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J. A good example of the principle in action is afforded by Warrell v Fair Work Australia [2012] FCA 267; (2012) 64 AILR 101-561 where a refusal of an adjournment to a brain damaged and illiterate man, necessary so that his counsel could appear, was held to be procedurally unfair. However, I do not think in the circumstances of this case, that it was unfair or unreasonable for the Tribunal to proceed as it did. 16 I agree therefore with the conclusion of Judge Driver that the Appellant has not made good a case based on the refusal of the adjournment. The remaining grounds of appeal were formulaic in nature. Judge Driver gave cogent reasons for rejecting them. I detect no error in his Honour's approach. 17 Finally, before this Court, the Appellant advanced an oral argument seeking to put his case on the basis of alleged incompetence on the part of his legal representatives. The obligation on the Tribunal was to give the Appellant a hearing in substance and not merely form: s 425(1) of the Act; see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at 205-206 [48]. Assuming in the Appellant's favour that his earlier migration agent was incompetent (a proposition on which that migration agent has not been heard) one would need to know more before the argument went anywhere. For example, in what way was he incompetent? Assuming the argument is open to be pursued, I would not accept it on the basis of what was put before me during the hearing. 18 It will follow that the appeal should be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.