BUV17 v Minister for Immigration, Citizenship and Multicultural Affairs

The proceedings in the Tribunal 6 Both appellants filed an application to review the delegate's decision with the Tribunal and engaged in correspondence and communications with it, usually by or on behalf of the husband, numerous of which sought to ensure that he still had access to Medicare cards so that he could get treatment for his various health concerns. 7 On 16 December 2016, the Tribunal wrote, pursuant to s 441G of the Migration Act, to the authorised representative of both appellants, being their solicitor migration agent, enclosing a letter of the same date addressed to each appellant headed "Forthcoming hearing". That letter advised that a file was being prepared for referral to a Tribunal member to conduct the review. It said that to assist the Tribunal in preparing the case for hearing: Advise us as soon as possible if there are any reasons why you may not be able to attend a hearing at any time in the coming months … If you have any additional evidence that is relevant to your application, please send this to us as soon as possible. 8 The letter also provided contact details if the appellants had any questions and invited them to utilise those details. The appellants did not reply to this letter. 9 Unbeknownst to the Tribunal until after it made the dismissal decision, the husband visited the solicitor on 4 January 2017, who began to take a statement from him, but that exercise ultimately proved abortive. 10 On 13 January 2017 the Tribunal wrote to the solicitor, enclosing a letter addressed to the appellants, inviting them to attend a hearing of the Tribunal on 23 March 2017. The letter stated that if they were not able to attend the hearing, they should advise it as soon as possible, and noted that any request to postpone the hearing also had to be made in writing as soon as possible and include reasons for the request. The letter cautioned that the Tribunal would only postpone the hearing if the person had very good reason for being granted an adjournment, and that if there was no advice from the Tribunal that it had granted an adjournment, they should presume that the hearing would proceed. It warned the appellants that if they did not attend the hearing on the scheduled day, the Tribunal could make a decision on the review without taking any further action to allow or enable them to appear before it, or it could dismiss the application for review without any further consideration of it or any information before it. The letter said, summarising the substantive effect of the provisions of s 426A, that a dismissed case could be reinstated if the Member considered it appropriate to do so and the application was made within 14 days of receiving notice of the dismissal, and that if the Member confirmed the dismissal, the decision under review was taken to be affirmed.

The dismissal decision 11 The appellants did not communicate with the Tribunal prior to the hearing on 23 March 2017. That led to it making the dismissal decision that simply recorded that the appellants had not appeared at the scheduled time and place for the hearing on 23 March 2017 and had not contacted the Tribunal since to explain their non-appearance. It noted that the Tribunal had received no response to the hearing invitation, and that, as no satisfactory reason for their non-appearance had been given, it had decided on 24 March 2017 to dismiss the application without further consideration. 12 The Tribunal sent the solicitor notice of the dismissal decision, and by doing so, notified the appellants in accordance with the Migration Act. The Tribunal's letter suggested that the appellants could apply in writing by 7 April 2017 to the Tribunal to reinstate their application for review. It said that a reinstatement application should set out why they failed to appear and provide any other information they wanted the Tribunal to take into consideration when deciding whether to grant the reinstatement application.

Correspondence from the appellants' solicitor 13 The Tribunal's letter of 24 March 2017 at least prompted some response from the appellants' side, on 7 April 2017, when the solicitor wrote saying that "evidence demonstrating that [the husband] was unable of his own accord to appear at the hearing will be provided". It referred to the "rough medical history" that he had had since October 2012, his then current age of 68, and ailments both physical and mental, including his first heart attack in 2012 and various operations. The solicitor's letter referred to the husband having been admitted to hospital on numerous occasions between 2013 and 2015 regarding his heart condition, reports of which had been provided to the delegate. The letter informed the Tribunal that the husband currently took medication for his condition, was both physically and emotionally frail, suffered from chest pain and had numerous other physical ailments, together with anxiety and depression. It attached letters provided by a psychologist referring to the husband's asserted fear of persecution as having caused his depression, anxiety and stress. The letter said attending an interview relating to his fears of persecution: …will undoubtedly result in the recurrence of these symptoms and would result in negative health consequences. Therefore [the husband] could not attend on the date of his [hearing]. 14 The letter said that the husband would be unable to attend a hearing due to his medical issues but informed the Tribunal that, nonetheless, he had been willing to prepare for and attend the hearing scheduled for 23 March 2017. That was because, so the letter said, the husband had attended an appointment at the solicitor's office on 4 January 2017, and continued: We began to prepare [the husband] for the interview by questioning him on his claims. During the appointment we could visibly see the distress it was causing him. [The husband] had trouble breathing and was distressed even after we chose to cease preparing him for the interview. [The husband's] visit to our office proved that he is in no shape to attend the interview and give oral evidence for his claims. From the medical history given above and the medical reports attached, if [the husband] was to attend the hearing, his health would undoubtedly suffer. (emphasis added) 15 The solicitor's letter attached documents including photographs of the husband while in hospital and medical certificates that did not provide any information about the condition of the husband in March or April 2017 or his (in)ability to attend the hearing at the time fixed. The solicitor's letter went on to ask that the Tribunal reverse the dismissal decision because a failure to do so would deny their client natural justice. It concluded by saying: [W]e would like an opportunity to provide written submission outlining the supporting arguments for our client's matter.

The confirmation decision 16 The confirmation decision, made on 10 April 2017, recorded the Tribunal's receipt of the 7 April 2017 letter and noted the solicitor's submission that the husband said that he was willing to prepare for and attend the hearing because he had attended his solicitors' office on 4 January 2017. It referred to the medical material that the solicitors had submitted. It concluded that, having carefully considered those matters, all of the medical evidence significantly predated the date of the 23 March 2017 hearing and there was no contemporaneous medical evidence as to the husband's fitness or otherwise to attend that day. The Tribunal said (at pars 8-9 of the confirmation decision): I have taken into account that the [appellants] were invited to the hearing by email on 13 January 2017 well in advance of the date of the hearing and that they were represented and yet no evidence of the [appellants'] unfitness to attend a hearing was submitted or requests for postponement were made to the Tribunal despite the [husband] being apparently unable to be interviewed by his agents on 4 January 2017. On the evidence before me I do not accept that the [husband] was unfit (mentally and/or physically) to attend the hearing as has been claimed. Further, there is nothing before me to indicate that the [wife] was unable or unfit to attend the hearing. The decision to dismiss the application is confirmed. In these circumstances, the decisions under review are taken to be affirmed. (emphasis added)

The trial judge's decision 17 The appellants applied to the Division 2 Court for constitutional writ relief. In their further amended application, they challenged each of the dismissal and confirmation decisions as being affected by jurisdictional error because each was an unreasonable exercise of administrative discretion or involved a failure to consider relevant information. The particulars for that assertion relied on the history of communications between the delegate, the husband and those acting on the appellants' behalf to demonstrate that the Tribunal was aware of the husband's health issues. The appellants also relied on the telephone records of the Tribunal that suggested that, on 23 November 2016, in the presence of the husband, a case worker assisting him had asked the Tribunal to ensure that he would be able to renew his Medicare card, because, as the Tribunal recorded, he had a heart condition. The appellants argued that each exercise of discretion in the dismissal and confirmation decisions was legally unreasonable, because the Tribunal had, in French CJ's colourful phrase in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 352 [30], used "a sledgehammer to crack a nut". 18 The trial judge set out the history of the matter. His Honour found that the medical reports and opinions included in the material provided to the delegate pre-dated the Tribunal hearing and were general and non-specific on the question as to whether or not the husband was medically fit enough to attend the scheduled Tribunal hearing. The trial judge found that there was nothing in the Tribunal's record of the 23 November 2016 phone call that established that the husband's heart condition had any effect on his ability to attend a hearing five months later and noted that the appellants had not relied on any other or later medical evidence that addressed the question whether the husband was, in fact, fit or unfit to attend the hearing on 23 March 2017. His Honour found that the fact that the husband might have had a serious medical condition some years before the date of the Tribunal hearing was not determinative as to his fitness to attend on 23 March 2017. 19 His Honour reviewed the authorities and concluded that ground 1, that challenged the dismissal decision, was without merit and should be dismissed. 20 His Honour set out the Tribunal's reasoning process for the confirmation decision, noted the letter from the solicitor dated 7 April 2017, and found that it was open to the Tribunal to make that decision in the circumstances where no good reason had been shown as to why the husband had not been able to appear before the Tribunal on 23 March 2017. His Honour found there was nothing irrational, illogical or unreasonable in that regard, and that, accordingly, there was no merit to ground 2. 21 Accordingly, the trial judge dismissed the application with costs.

The appellants' submissions on appeal 22 The notice of appeal, beguilingly, challenged only his Honour's decision to refuse constitutional writ relief in respect of the dismissal decision. During the course of the hearing, I granted leave to the appellants to rely upon a ground challenging his Honour's decision not to find the confirmation decision was affected by jurisdictional error on the same basis as had been put below. The Minister did not suggest there was any prejudice in that course. 23 The appellants argued that the Tribunal had express notice that the husband had suffered from numerous conditions affecting his physical and mental health that formed part of the Departmental record and which presumably was before the Tribunal for the purposes of the review. In particular, they relied on the telephone communications which the husband had with the Tribunal seeking to continue his ability to access Medicare (the latest of which occurred on 23 November 2016) and asserted that the Tribunal should have realised that he had serious medical conditions that may in some way have impacted his ability to appear at the hearing on 23 March 2017. 24 The appellants argued that the decision of the High Court in TTY167 v Republic of Nauru (2018) 362 ALR 246 strongly supported their contention that the failure of the Tribunal not to grant an adjournment or make some inquiry of them as to why they had not appeared evinced legal unreasonableness on the Tribunal's part. They also contended that each of the dismissal and confirmation decisions was an entirely disproportionate response to the situation, and that a reasonable decision-maker in the Tribunal's position would have perceived that the husband was unwell and that it needed to use some other means of communication, because he would not be likely to be able to attend an interview without serious risk to his health. They submitted that the Tribunal's failure to give them a proper opportunity to address their inability to attend and instead immediately make the dismissal, and later confirmation, decisions was a jurisdictional error that was material, because, had they been able to address it, then there may, or was likely to, have been a different outcome. However, I interpolate, the appellant did not further elaborate by evidence or reference to any other material what might have been put.

Consideration 25 I am of opinion that both grounds of appeal are hopeless. 26 The decision in TTY167 362 ALR 246 bears no relationship to the facts of the present case. There, the High Court found legally unreasonable the decision of a review tribunal in Nauru to dismiss a proceeding in circumstances where, first, the tribunal knew that TTY167 was legally represented and had informed it that he had mental health issues, which should have raised a reasonable apprehension that he had not attended for health reasons, and, secondly, the absence of TTY167 and his lawyers from the hearing was surprising because he had been strongly engaged with his application, had informed the tribunal that he and his lawyers would attend, his lawyers also had informed the tribunal only two days before the hearing of their expectation that he would attend, and his lawyers had provided a detailed submission to the tribunal in support of his claims. The Court found that the appellant's personal attendance, in that case, was a matter of considerable importance both to TTY167 and in respect of the matters with which the tribunal was concerned. It found that, because the Court could take judicial notice that Nauru was a small island (see TTY167 362 ALR at 252 [30]), the tribunal's decision to dismiss the substantive application was legally unreasonable in circumstances where it made no inquiries of TTY167 or his lawyers as to why he had not attended. 27 This case is substantively different. Here, although the appellants had a solicitor acting for them at all times, neither the appellants nor their solicitor sent any correspondence to, or had any communication with, the Tribunal until after the dismissal decision. The Tribunal's letter of 16 December 2016 informed the solicitor and the appellants that the hearing date would be set soon. It invited them to inform the Tribunal of any impediments likely to arise for their participation in a future hearing and to provide further evidence. From that time until 7 April 2017, the appellants made no effort to communicate, directly or through their solicitor, with the Tribunal. They did not respond to the invitation to the hearing sent to them on 13 January 2017. The only, desultory, explanation that the appellants gave was in the solicitor's letter of 7 April 2017 that simply told the Tribunal that, on 4 January 2017, the husband was aware that the hearing was imminent and had turned up at the solicitor's office but was not then able to continue with the interview because of some distress. For reasons that were completely unexplained, even today, six years later, none of that was communicated to the Tribunal. For all the Tribunal knew on 23 March 2017, the appellants were not interested in pursuing their application for review. 28 Nonetheless, the Tribunal was concerned to inform the appellants that it had dismissed the application for review and to offer them the opportunity, provided in s 426B of the Migration Act, to apply within 14 days to have it reinstated. When seeking the reinstatement, the solicitor did not seek to provide to the Tribunal any up-to-date medical information or any other substantive reason or information that indicated that if there were a reinstatement, the husband would be able to give it any further information. The solicitor's letter did not explain what, if anything, the husband had done between 4 January 2017 and 7 April 2017 to assist in the prosecution of his application to review the delegate's decision. 29 In my opinion, the appellants' lack of any substantive engagement with the processes of the Tribunal and, in particular, their failure in the response of 7 April 2017 to provide the Tribunal with any meaningful information as to how the husband was putting his claims or proposed to supplement what he had provided to the delegate so that the Tribunal would have some further material to review, spoke volumes about of the lack of merit in the application for review and the appellants' unwillingness or unpreparedness to prosecute it. At the same time, they sought to keep the application on foot without any suggestion as to how it was going to be brought to a conclusion by enabling whatever further claims or material the husband might have had to be provided. 30 Each of the dismissal and confirmation decisions was open to the Tribunal as a person acting reasonably and in accordance with the law. Neither of the dismissal nor confirmation decisions was affected by any jurisdictional error. Each was rational and reasonable on the material, or rather lack of it, before the Tribunal. As Kiefel CJ, Bell, Keane, Gordon and Edelman JJ said in Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at 563 [26]: A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power". (footnotes omitted; emphasis added)

Conclusion 31 Each of the dismissal and confirmation decisions was not affected by any jurisdictional error. The appeal must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.