Back v Minister for Immigration and Border Protection

1. The application is dismissed.
2. The appellant to pay the first respondent's costs of the appeal fixed at $6400. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NORTH J: 1 Before the Court is an appeal from the Federal Circuit Court. On 14 November 2016, the Federal Circuit Court dismissed an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal), as it then was, given on 25 March 2015. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a Visitor (Class FA) (Subclass 600) (Tourist) visa. 2 On 19 December 2014, the appellant applied for the visa. She is a citizen of South Korea. At that time, she did not hold a substantive visa. As a result, pursuant to cl 600.223(2) of the Migration Regulations 1994 (Cth) (the Regulations), she had to comply with, inter alia, criterion 3004 in Schedule 3 of the Regulations, which relevantly required the Tribunal to be satisfied that she did not hold a substantive visa "because of factors beyond her control". 3 The circumstances in which the appellant did not hold a substantive visa on 19 December 2014 were as follows. The appellant held a tourist visa which expired on 16 December 2014. On that day, she applied for a new tourist visa. On the same day, the application was refused. The Tribunal explained the reason at [14] as follows: As she did not have sufficient funds on her bank account, the application was found to be invalid on the same day. She conceded that it was her mistake that she did not check the balance on her bank account to the exact amount required for the payment of the application fees. 4 As a result, the Tribunal stated: 17. The Tribunal finds that the applicant ceased to hold a substantive visa because of her inattention to the availability of funds held on her bank account. This was not beyond the visa applicant's control, in the tribunal's view. It was within the applicant's control to be aware of the department's visa application fees and balance of funds available on her bank account. 18. The tribunal accepts that the applicant was affected by her personal circumstances, the death of her father. The tribunal does not accept however that the effect of this was such that she could not be expected to be aware of the length of time during which the initial visitors' visa was in effect. 5 Before the Federal Circuit Court, there were three grounds for review. The first ground related to the statement in the decision of the day on which the appellant appeared before the Tribunal. The hearing was held on 25 March 2015. The Tribunal recorded, at [6], that the appellant appeared before the Tribunal on 26 November 2014. The Federal Circuit Court rejected this error as a ground of review on the basis that it was a simple typographical error. 6 The second ground before the Federal Circuit Court concerned the appellant's mental state at the date of the hearing. After the Tribunal made its decision, the appellant sent an email on 14 April 2015 and informed the Tribunal as follows: ... although the summary of evidence refers to my father's illness and death I did not realize that I should have explained that I was clinically depressed in March of 2014 and had to be treated by the Box Hill Hospital CAT team and have been taken the medication since then which was what prevented me from continuing my Monash Study for my Master's degree. This is also the reason why I couldn't check the fee for an extension of the tourist visa has increased. I am now well enough to be able to continue my master's degree and Monash prepared to allow this. Monash could give any evidence to the Tribunal if it is required. 7 The purpose of this ground was to suggest that the appellant was not in a fit state on the date of the hearing to participate in that hearing. 8 The Federal Circuit Court found at [11], in reliance on s 368 of the Migration Act 1958 (Cth) (the Act), that the decision of the Tribunal was made when the written statement was made and thus, the decision was made on 25 March 2015. The email, having been sent after that date, was received after "the Tribunal's powers had come to an end". 9 The third ground before the Federal Circuit Court was that the evidence tendered before the Court of the emails sent to the Tribunal after the decision was made demonstrated that the appellant was not given the opportunity to participate in the review hearing required by s 425 of the Act. 10 The Federal Circuit Court first referred to the applicable test from Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 (per Tracey J), including the following at [30]: It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing. 11 The Federal Circuit Court addressed the question whether that test was fulfilled in the present case as follows: 14. In this case there is limited material before the Court as to the mental state of the applicant at the relevant time. She has not filed an affidavit with a report by an expert squarely addressing her mental state at that date. There is, however, material in the court book by way of hospital notes from Eastern Health at page 141, which provide as follows: Relapse to depressive episode in context of failure to prove herself to her abusive and obsessional father. Heartbroken that she could not finally prove herself t [sic] him. Has developed her own strong work ethic / obsessional traits and perceives depression as a failure / sign of weakness. Plan Psychoeducation given that her feelings were understandable given her past and recent stressors; however, her prior depressive episode had 'primed' her for relapse to depression Stella to recommence escitalopram (already has packet). Has students coming tomorrow so will take table when CATT call tomorrow and will then be reviewed in afternoon. Direct supervision Sunday. Discuss Monday need for daily vs switch to alls. Once more table requires referral to psychologist under MHP for discussion about her ambivalent attitude toward her father and the impact of this on her mental state and assistance with coping skills 15. As counsel for the Minister points out, her mental health was not so poor at that time as to result in the hospital suggesting that she not continue to provide tuition to students, nor requiring her to be hospitalised. It appears that those progress notes were made at or about the time of the decision, being dated 20 March 2015. It does not appear to me that that material shows that the applicant's mental health was such as to come within the test as described by Tracey J. Clearly, she was capable of attending to her own needs and providing tuition for students. She certainly was not unfit to attend a hearing, nor could it be said on that material that she was denied a real and meaningful opportunity to attend and participate in the hearing process. In these circumstances, I am not persuaded that the Tribunal erred or that for reasons beyond the Tribunal's control or knowledge, the applicant did not receive a fair hearing. 12 The Federal Circuit Court then dismissed the application. 13 The appellant then failed to comply with the time limit for the lodging of an appeal and instead, filed an application for an extension of time annexing a draft notice of appeal. The first respondent does not oppose the grant of an extension of time. Consequently, the matter will proceed on the grounds of appeal in the draft as follows: 1. Hon. Judge Riethmuller of the Federal Circuit Court failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the assessing factors that were beyond control of applicant in relation to cl.600.223 (2) and requirements of Schedule 3004. The AAT decision is unreasonable with regards to this provisions. 2. The Applicant claims that she was denied procedural fairness when she was denied of her evidence to be heard and considered for her case. The applicant claims that the benefit of doubt should be given to her. The AAT used s368 of the Migration Act without considering the consequences of result of Visa Application. The applicant has good prospect of success in her application for Review. She was denied natural justice and procedural fairness. 14 The appellant filed an affidavit, sworn on 11 May 2017, in which she outlined the history of the matter and the fact of her depression following the death of her father. She repeated the details of the illness as follows: My CCAT Team doctor 'Kwong' prescribe the medication 'Escitaloptam tablet 100 mg' to me. The dosage is twice that a normal depression patient. And my church's friend visited at my house to check my eating every thing. In the period, my refrigerator was empty because I didn't eat anything. I lost my weight to 15 kg. 15 The appellant explained, in that affidavit and in oral submissions, that she did not explain to the Tribunal the details of her depression because culturally, in South Korea, "We have a tendency to hide depression". 16 In oral submissions on the appeal the appellant did not particularly address the two grounds of appeal. In essence, she contends that she suffered from a depressive illness at the time of the Tribunal hearing which meant that she was not able to explain to the Tribunal that the reason for failing to have the appropriate funds in her bank account was a result of her illness. 17 However, the Tribunal did not make an error, let alone a jurisdictional error, in circumstances where the evidence upon which the appellant relies only came into being after the decision of the Tribunal had been made. 18 In respect of the two grounds of appeal, although they were not directly addressed, it is appropriate to say that neither should be upheld. 19 The first ground of appeal suggests that the Federal Circuit Court failed to apply the correct test in relation to assessing factors that were beyond the control of the appellant. In fact, the Tribunal stated what the appellant was required to show, namely, that the failure to have the substantive visa was a result of matters beyond her control. It then considered the evidence which she had given about the reasons why she did not hold a substantive visa and made a determination that the reasons given did not establish that the matters were beyond her control. This was a straightforward finding of fact and the appellant's critique of it was simply on the basis that she asserted that the merits lay with her. Such an argument does not avail on an application for judicial review or an appeal from a dismissal of that review. 20 The second ground of appeal seems to again raise the failure of the Tribunal to take into account the appellant's mental state at the time of the hearing. As explained, the difficulty of that argument is that the material on which she relies was not before the Tribunal and once the decision had been made, the Tribunal had no power to reopen the case. 21 It follows from these reasons that the application is dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.